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[1990] HCA 57
High Court of Australia
1990-07-01
McHugh JJ, Toohey J, Webb J, Mason J, Deane J
Original judgment source is linked above.
High Court of Australia Mason C.J. Brennan, Deane, Toohey and McHugh JJ. Annetts v McCann [1990] HCA 57
ORDER Appeal allowed. Set aside the orders of the Full Court of the Supreme Court of Western Australia. In lieu thereof, order that
The question in this appeal is whether Mr. Coroner McCann S.M., who is conducting an inquiry into the death of James Arthur Annetts (the deceased), misconceived or exceeded his jurisdiction in refusing to hear submissions from counsel representing the parents of the deceased ("the appellants"). The facts and relevant statutory provisions are set out in the judgment of Toohey J. We need not repeat them.
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v. Tanos [1] ; Twist v. Randwick Municipal Council [2] ; Heatley v. Tasmanian Racing and Gaming Commission [3] ; J. v. Lieschke [4] ; Haoucher v. Minister for Immigration and Ethnic Affairs [5] . In Tanos [6] , Dixon C.J. and Webb J. said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales [7] . In Kioa v. West [8] , Mason J. said that the law in relation to administrative decisions "has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In Haoucher [9] , Deane J. said that the law seemed to him "to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making".
Accordingly, the critical question in the present case is not whether "the rules of natural justice require an extension of the rights expressly conferred upon the [appellants] by s. 24 of the Act" as was said in one of the judgments in the Full Court of the Supreme Court of Western Australia in this case. It is whether the terms of the Coroners Act 1920 W.A. ("the Act") display a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests.
The judgments in the Full Court appear to assume that the appellants had no right to be heard because nothing in the evidence suggested that anything adverse to them personally could emerge from the Coroner's finding or rider. But this assumption overlooks two matters. First, the appellants have been granted - and properly granted - representation at the coronial inquiry. The grant of representation did more than recognise the appellants' personal interest in the performance of the duties which the law imposes on the Coroner, as to which see Bilbao v. Farquhar [10] . It also created a legitimate expectation that the Coroner would not make any finding adverse to the interests which they represent without giving them the opportunity to be heard in opposition to that finding. Secondly, the interests which they represent include the protection of the reputation of their deceased son. It does not matter, except for the purposes of jurisprudential analysis, whether that interest is classified as the interest of the deceased or the interest of the appellants as parents of the deceased or both. Whichever analysis is adopted, the appellants have a common law right to be heard in opposition to any potential adverse finding in relation to themselves and the deceased unless by express terms or necessary implication the Act has excluded their common law right to be heard.
In determining whether this Act has excluded the rules of natural justice, two considerations need to be kept in mind. The first is that many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine's protection. Thus, it was not until 1969 that the common law rules of natural justice were extended to the protection of legitimate expectations: see Haoucher [11] . It was even later that the common law rules of natural justice were held to apply to public inquiries whose findings of their own force could not affect a person's legal rights or obligations. As recently as 1963, this Court, by majority, held that an inspector, appointed under the Companies Act 1961 Vict., was not obliged, before reporting on a company's affairs, to give the company an opportunity to answer or explain matters which might give rise to adverse findings or comment in the report: Testro Bros. Pty. Ltd. v. Tait [12] . The majority concluded [13] that the investigation of the inspector was not "in the nature of a judicial proceeding in which the rights of the company which is being investigated may be prejudicially affected by a report made to the Minister". It is beyond argument that the view of the majority in that case would not prevail today: see Mahon v. Air New Zealand [14] ; National Companies and Securities Commission v. News Corporation Ltd. [15] . The second matter which must be taken into consideration is that the purpose of the legislature in enacting s. 24 of the Act was to resolve a dispute concerning the rights of interested parties to attend coronial inquests and examine and cross-examine witnesses. At the time that section was enacted, the prevailing, but not universal, view in England was that a coroner had an unfettered discretion to exclude any person from attending the inquest and an unfettered discretion to allow or refuse interested parties to be legally represented at the inquest: see Jervis, The Coroners Acts, 1887 & 1892, 6th ed. (1898), pp. 24-25.
Against this background, the terms of s. 24 of the Act provide no ground for concluding that the Act evinces any intention to exclude the operation of the principles of natural justice. The evident purpose of the section was to abolish a coroner's discretion and to give interested parties the absolute right to attend the inquest, to examine and cross-examine witnesses, and to be represented by counsel. The terms of s. 24, therefore, are explicable on historical grounds and provide no basis for concluding that the legislature intended to exclude the rules of procedural fairness except to the extent specified in that section. But, independently of the historical background of s. 24, it is impossible to accept that the legislature, in enacting that section, intended to exclude the rules of natural justice. It simply would not have occurred to anyone in the legal profession in 1920 that the common law rules of natural justice applied to an inquiry whose findings could not alter legal rights or obligations. No doubt the legislature assumed that the rights of natural justice did not apply to coronial inquiries. But that is no ground for concluding that the legislature intended to exclude those rights if they were otherwise held to apply.
Apart from s. 24, nothing else in the Act provides any support for the proposition that the Act excludes the rules of natural justice. Accordingly, the rules of natural justice are applicable to the present inquest. That being so, the Coroner cannot lawfully make any finding adverse to the interests of the appellants without first giving them the opportunity to make submissions against the making of such a finding.
Counsel for the appellants argued that, as he could not know what findings the Coroner would make until the case was over, he was entitled to address on the whole of the evidence. The conclusion does not follow from the argument. The issues in respect of which findings adverse to the appellants may possibly be made can be isolated and, once isolated, counsel for the appellants is not entitled to address the Coroner on matters which are not relevant to those issues. At the same time, the Coroner has a responsibility to define the issues in respect of which there exists a possibility that he may make findings adverse to the appellants. By defining those issues he can effectively assist the identification of the topics on which counsel can relevantly and usefully address and limit the scope of that address.
It needs to be stressed that, although the appellants are entitled to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, they have no right to make submissions on the general subject matter of the inquest. Their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased. This does not mean that their submissions must be perfunctory or limited to assertions or denials. In opposing the making of any adverse finding, the appellants are entitled to put every rational argument open on the evidence and, where necessary, to refer to and analyse the evidence to support that argument.
Once the Coroner decided that he did not wish to hear general submissions from counsel on the subject matter of the inquest, he was left with only two practical choices. He could invite counsel representing the appellants to make submissions in respect of those matters which could result in adverse findings concerning the appellants or the deceased or he could inform counsel that he did not propose to make any adverse findings affecting them.
Unfortunately, the Coroner appears to have taken the view that he had an unfettered discretion to decide whether or not counsel should be permitted to address him, irrespective of any findings which he might make concerning the deceased or the appellants. The Coroner said:
I think that it is necessary to remember that a Coroner doesn't act in response to parties who come before him. It's the Coroner who initiates the inquiry and conducts it. Persons interested may appear and ask questions of the witnesses, but they're not parties in the sense of parties to litigation in criminal and civil cases, and I continue to hold to that view. I believe I have a discretion and I exercise it, not to permit addresses.
I am mindful, through the cross-examination of witnesses by counsel for the interested parties, of the lines that they took. I shall review the evidence and I shall give due weight to those matters as I think fit. I agree that the relatives of each of the deceased are persons who are interested in the subject and, indeed, the result of the inquest, but I don't believe them to be parties to the proceedings in the sense that has been referred to in the cases that have been put before me. One would hope that while there may be representation for those persons who are interested in the subject, the result of the inquest, it is the role of the Coroner to remain the advocate of the deceased himself, and I shall try to do that to the best of my ability.
I have noted those matters particularly that counsel for the two boys have wished to put to me. I feel that I am able to embark on the task of dealing with those matters without their further assistance. I have derived, I think, sufficient assistance from the cross-examination. The only other matter is that spoken of by Mr. Murray as to the role of the Coroner per se, as revealed by the events connected with these deaths. All I can say is that if it is sought to make those submissions, then they should be made to the Attorney-General of this stage [sic]. I cannot guarantee when a finding will be made. I would hope that it is going to be during this year, but that is merely a hope.
It has been my practice in the past to not reconvene the inquest but merely the [sic] issue the finding in writing at a later date.
Mr. McKechnie Q.C., who intervened on behalf of the Attorney-General of Western Australia, did not contend that the Act excluded the rules of natural justice. Moreover, contrary to what appears to have been the opinion of the Coroner, Mr. McKechnie accepted that the Coroner was bound to hear the appellants before making any finding adverse to them or the deceased. But Mr. McKechnie contended with some force that this was not the case which the appellants sought to make before the Coroner, the Full Court or this Court. He submitted that the appellants sought nothing less than an unrestricted right to address on all the evidence before the Coroner. In these circumstances, Mr. McKechnie submitted that the proper order for this Court to make was one dismissing the appeal.
Before the Coroner, the Full Court, and even initially in this Court, Mr. Murray Q.C., counsel for the appellants, asserted what he called in this Court "an unqualified right to make a relevant address". He explained that this meant not only an address relevant to the interests of his clients but one which was "relevant to the deliberations the coroner has to make". He went so far as to contend that he could make a submission that "certain people should be committed for trial". Mr. Murray contended that the grant of the right to appear gave the appellants a general right to be heard on the subject matter of the inquiry. Much of his address in this Court was taken up in supporting that proposition. It is a proposition which, as we have already said, cannot be accepted. At one stage of his address, however, Mr. Murray appeared to accept that the only right of the appellants to be heard was in respect of matters which affected their interests.
Although we appreciate the force of Mr. McKechnie's submission, we think that this Court should allow the appeal, direct that mandamus go to the Coroner to reconsider the question whether the appellants should be heard in respect of any matter arising out of the inquest, and prohibit the Coroner from making any findings or publishing any rider until he reconsiders that question. The Coroner has misconceived the nature of his jurisdiction by holding that he had an unfettered discretion to determine whether the appellants could make submissions. In addition, although the Full Court correctly held that the Coroner was bound to hear the appellants before making any findings adverse to their interests, the members of that Court concluded that the appellants had no interest which could be adversely affected by the Coroner's findings or rider. The Full Court appears to have incorrectly assumed that the interests of the appellants did not include the protection of the interests of the deceased. Thus, it is far from clear that the Full Court was correct in coming to its conclusion that the appellants have no interest which can be adversely affected by the Coroner's findings or rider. To allow the ruling of the Coroner to stand is to run the risk - which cannot be considered fanciful - that the Coroner will make adverse findings concerning the appellants or the deceased without them being heard. Coronial inquiries involve the public interest. Mandamus and prohibition should not be refused simply because counsel for the appellants sought to put his case on a basis higher than the law permits.
In the circumstances, the appeal should be allowed, the Coroner should be ordered to reconsider the question whether the appellants should be heard in respect of any matters arising out of the inquest, and he should be prohibited from making any finding or publishing any rider until he has reconsidered that question. It goes without saying that the Coroner is bound to hear the appellants before making any finding adverse to the appellants or the deceased. On the other hand, the Coroner may, on such reconsideration, conclude that it is unnecessary to hear submissions from counsel for the appellants for the reason that he does not propose to make any such adverse finding. There should be no order as to costs.
Judicial review is not designed to control the way in which coroners and other public officers perform their functions: it is simply an application of the law governing the extent and exercise of a power. The focus of judicial review is a power created by statute conferred on an authority prescribed by statute. (It is unnecessary to consider whether the remedies of judicial review are available in respect of an exercise of prerogative power.) The remedies prohibit the exercise of a power or compel the exercise of a power or hold invalid a purported exercise of a power. To hold a purported exercise of a power invalid is to deny it the legal effect which, if it were valid, it would have. An order prohibiting or compelling an exercise of power is made when the intended exercise of the power or the failure to exercise the power is contrary to law; an order holding a purported exercise of a power to be invalid is made when its purported exercise fails to satisfy a condition governing its validity. The law governing the extent and exercise of a power exists independently of the circumstances which evoke its exercise or the circumstances in which the exercise or purported exercise occurs. That must be so, not only as a legal truism but as a matter of practical necessity: a repository of a power must know what the law requires for the valid exercise of the power before attempting its exercise.
The relevant law must be found in the statutory provisions which create the power and confer it on the repository, though the terms of the statute may be expanded by the implication of conditions supplied by the common law. Thus the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This is the foundation and scope of the principles of natural justice. The common law confers no jurisdiction to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates and confers the power. If it were otherwise, the common law would be asserting a jurisdiction to review an exercise of a power contrary to a statutory provision that gives effect to an exercise of the power by the authority in whom it is reposed when it is exercised in conformity with the statute. It follows that the statute, construed to include any terms supplied by the common law, must define the conditions governing the exercise of a statutory power by a statutory authority.
When a writ of prohibition or an injunction is sought to restrain the exercise of a power, the applicant must show that there is a failure to satisfy some condition governing the proposed exercise of the power; for example, that the repository of the power has failed to accord natural justice to a person whose interests are liable to be affected adversely by the proposed exercise. Whether an exercise of a particular power is so conditioned is a question of law. It is not a question which depends on a person's entertainment of a "legitimate expectation" as to the manner of the exercise of the power.
True it is that a remedy by way of judicial review may protect "legitimate expectations", in the sense of interests which do not amount to legal rights, powers or privileges. That was the sense in which the term was first used, as Dawson J. pointed out in Haoucher v. Minister for Immigration and Ethnic Affairs [16] . When used in that sense, a "legitimate expectation" falls within the category of those interests which, being liable to adverse affection by an exercise of the relevant power, import observance of the principles of natural justice as a condition of its valid exercise. But the protection of a "legitimate expectation" in the sense of an interest not legally enforceable is a consequence of the availability of a remedy to give effect to the statute; the protection of a "legitimate expectation" is not an independent foundation of a jurisdiction to grant a remedy. If the jurisdiction to grant a judicial review remedy is thought to arise from the existence of a legitimate expectation rather than an implied statutory condition, what is the criterion of legitimacy? Legitimacy has been attributed to expectations which originate in specified ways, such as representations, practices and assurances: see Council of Civil Service Unions v. Minister for the Civil Service [17] ; Attorney-General (N.S.W.) v. Quin [18] . But the list of ways in which a "legitimate" expectation may arise is not exhaustive and the characteristic of legitimacy remains undefined. No doctrine of administrative estoppel has emerged. Indeed, the epithet "legitimate" begs the question whether an exercise of the power which disappoints the expectation is conditioned on according natural justice to persons whose interests (including expectations) are affected. To employ the term "legitimate" in this way drives the court to evaluate the sufficiency or reasonableness of the source of the expectation in order to determine whether an expectation is "legitimate" and, on that account, deserving of protection by judicial review remedies. Thus, in Haoucher, expectations that a person would not be deported and that a recommendation that he not be deported would be followed were held to be legitimate "because they were founded on a considered statement of policy made by the responsible Minister in Parliament": per McHugh J. [19]
The origins of an expectation may assist in determining the content of the requirements of natural justice in a particular case (Kioa v. West [20] ; Attorney-General (N.S.W.) v. Quin [21] ) but I respectfully dissent from the notion that, if legitimacy depends on the origin of an expectation as to the manner in which a power will be exercised, legitimacy determines whether the requirements of natural justice condition a valid exercise of the power. The only sound foundation for judicial review is, in my opinion, the statute which creates and confers the power, construed to include any terms supplied by the common law.
The term "legitimate expectation" is sometimes used in a different sense, describing an expectation by a person that procedural fairness will be extended to him before a power is exercised: see, for example, the decision in Macrae v. Attorney-General (N.S.W.) [22] . When used in this sense, the notion furnishes no criterion by which the court may determine whether the expectation should be fulfilled. An expectation that natural justice will be accorded, whatever the origin of the expectation may be, furnishes no criterion as to whether the exercise of the power is conditioned by the requirement to accord natural justice.
I have returned to this topic of legitimate expectations not merely to reinforce what I have said before (Kioa v. West [23] ; Attorney-General (N.S.W.) v. Quin [24] ), nor merely to explain why I do not adopt the so-called "test" of legitimate expectation, but to show that the so-called test might open the way to a disconformity between the true scope of the jurisdiction of the court to intervene in the exercise of power reposed in a statutory authority and the scope of a jurisdiction indicated by linking judicial review to the existence of a legitimate expectation. On the one hand, if the jurisdiction is seen to depend on the court's evaluation of the facts giving rise to the expectation, the court may be led to intervene in a case in which, on a true construction of the statute, it has no jurisdiction. On the other hand, a conclusion that there is no legitimate expectation may lead the court to refuse a remedy in a case in which the statute requires that natural justice be accorded and the power has been or is proposed to be exercised in neglect of that requirement. I respectfully agree with the thrust of the observation by Deane J. in Haoucher [25] :
Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [26] ), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. 1. (1985) 159 C.L.R., at pp. 617-618, 626-627. 2. (1990) 170 C.L.R., at pp. 34-41. 3. (1990) 169 C.L.R., at p. 652. 4. (1963) 113 C.L.R. 475, at p. 504.
There is another difficulty inherent in the adoption of legitimacy as a test for judicial review. If legitimacy is established merely by an evaluation of the facts, it contains no explicable legal principle. Without an explicable legal principle to support the remedies of judicial review, the courts will be perceived to be asserting an authority to intervene in the affairs of the Executive Government whenever the court determines for itself that intervention is warranted. The essential authority of the courts to enforce the law governing the extent and exercise of executive and administrative power would be undermined.
Therefore, my route to the conclusion of the present case does not lead me to examine whether the appellants had a legitimate expectation either that their counsel would be permitted to address the Coroner at the close of the evidence or that they would receive some other benefit. The first step on my route goes directly to the relevant provisions of the Coroners Act 1920 W.A. to ascertain the extent of the coroner's powers and to determine their aptitude to affect interests adversely. A coroner is empowered "to inquire into the manner and cause of the death" of persons who, within Western Australia, have died a violent or unnatural death: s. 6(1)(a). After hearing the evidence, the coroner is required by s. 11(3) to -
give his decision or finding, or the jury their verdict (as the case may be) and certify it by an inquisition in writing setting forth, so far as such particulars have been proved -
(b) how, when and where the deceased came by his death.
(a) The coroner shall not express any opinion on any matter outside the scope of the inquest except in a rider which, in the opinion of the coroner is designed to and may, if given effect to, prevent the recurrence of similar occurrences.
(b) A rider is not part of the decision or finding of a coroner but it may be recorded if the coroner thinks fit.
(j) A coroner shall not frame his decision or finding in such a way as to appear to determine any question of civil liability or as to suggest that any person is found guilty of an indictable or simple offence as defined in section four of the Justices Act 1902.
However, if a coroner is satisfied beyond reasonable doubt that a death has occurred and if he is of the opinion that the evidence taken at the inquest into the death is sufficient to put a person upon his trial for wilful murder, murder, manslaughter or infanticide, the coroner is required to commit that person for trial before a court of competent jurisdiction: s. 12A(1)(a). A coroner has power to summon witnesses and to compel the production of documents or other things: s. 37.
It is difficult to envisage a case in which a coroner's exercise of the mere power to hold an inquest is likely to affect adversely the interests of any person, but a coroner's finding as to "how, when and where the deceased came by his death" is plainly apt to affect adversely the interests of any person upon whom the finding would reflect unfavourably, even if that person is not committed for trial and the finding is not framed in such a way as to appear to determine any question of civil liability or guilt of an offence. The nature of the power to make findings that are unfavourable (whether such findings are incorporated into the written inquisition or into a rider) is such as to import the requirement to accord natural justice as a condition governing the exercise of that power. Prima facie, before a finding is made, it is incumbent on a coroner to accord natural justice to any person upon whose conduct the coroner's finding may reflect unfavourably.
Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made. In Mahon v. Air New Zealand [27] , Lord Diplock said in delivering the judgment of the Privy Council that the repository of a power to inquire and make findings and who contemplates making an unfavourable finding "must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made." This is a general principle which, subject to any contrary intention expressed or implied in the statute, applies to statutory inquiries in which the inquisitor is authorized to publish findings that might reflect unfavourably on a person's conduct. It has been applied to company investigations (In re Pergamon Press Ltd. [28] ) but it is not restricted to those inquiries: see the comments in National Companies and Securities Commission v. News Corporation Ltd. [29] . There is no reason why the general principle should be inapplicable to the coronial power to make findings on evidence taken at an inquest, unless the statute relating to the performance of the coroner's functions excludes its application.
Section 24(1) of the Coroners Act provides for the attendance at an inquest of persons interested in the subject or result of the inquest. It reads:
At any inquest, any person who, in the opinion of the coroner, has a sufficient interest in the subject or result of the inquest -
provided that such examination and cross-examination -
(d) is conducted according to the law and practice of coroners' inquests,
and the coroner shall disallow any question which, in his opinion, is not relevant or is otherwise not a proper question. This provision, though it expressly relates to attendance at an inquest and to the right of a person whom the coroner holds to have "a sufficient interest" to examine and cross-examine witnesses, does not exclude the coroner's duty to do whatever is necessary to accord natural justice to any person against whom he is contemplating the making of an unfavourable finding. The classes of persons with "sufficient interest" to attend and to be allowed to examine and cross-examine witnesses are, or may well be, larger than the class of persons against whom a coroner may contemplate making an unfavourable finding. The duty to accord natural justice applies only with respect to the latter class, who alone are entitled to insist on being heard by addressing a submission that an unfavourable finding should not be made. However, the coroner's duty to allow a person to make such a submission arises only when the coroner has reached the stage of contemplating the making of an unfavourable finding against that person. It is only at that stage that the coroner is bound to give that person notice of the possible finding and to allow that person an opportunity to submit why the finding should not be made.
That is not the basis of the argument addressed by counsel for the appellants to this Court, to the Full Court or to the Coroner. The appellants contended for a right to address on any matter with which the Coroner might deal - not only with the "how, when and where the deceased came by his death", but with the Coroner's opinion expressed in a rider to his findings and with the Coroner's power to commit for trial. It was said that the appellants had a "sufficient interest" in any and all of these matters. The argument was rejected by the Coroner who held that he had a general discretion as to receiving addresses at the close of evidence. The general discretion was said to arise under a practice which had been followed in Western Australia under the influence of coronial practice in England. Whatever the practice may have been, it cannot prevail over the general principle of law to which I have referred and which was so clearly confirmed in Mahon v. Air New Zealand. But, equally clearly, the valid exercise of the coronial power to make findings and to express opinions in a rider to the findings does not require a coroner to allow any person who is entitled to attend an inquest and to examine and cross-examine witnesses to address him on matters unconnected with any contemplated unfavourable finding which is adverse to that person's interests. Counsel's claim to be entitled to address on any aspect of the inquest was too wide, but the rejection of the claim was too absolute.
In the Full Court, an order nisi for writs of prohibition and mandamus directed to the Coroner was discharged. Wallace J. said:
I am not prepared to accede to the argument that this Court should tell the Coroner that he should allow the applicants' counsel to address him when it is common ground that there is no suggestion of any finding adverse to the applicants' interest to be made. There was no evidence placed before the Full Court as to the facts canvassed at the inquest. The Court knew nothing of the facts (as some of their Honours stressed in argument) and nothing was placed before the Court suggesting that the Coroner was contemplating the making of any finding unfavourable to the appellants' deceased son or, if it matters, unfavourable to the appellants. The affidavit filed in support of the application for prohibition and mandamus stated the basis on which the Coroner had been asked to hear submissions from the appellants' counsel: The application for a hearing was based on the right of a person granted audience at a Coroner's Inquest to be heard concerning the "result" of the Inquest. In the Full Court that argument was advanced again by the affidavit: It is respectfully submitted that the right to be represented includes the right to be heard and that the Coroner's refusal is unlawful and a wrongful exercise of a discretion if there be one. The basis of the submission was erroneous. Kennedy J. correctly observed: The fact that the coroner properly recognised [the appellants] as having "a sufficient interest in the subject or result of the inquest" and therefore permitted them to attend the inquest personally or by counsel and to examine and cross-examine witnesses does not appear to me to advance the position, for it does not follow that a person who has a sufficient interest to attend has such an interest as would entitle him to address the coroner. Franklyn J. agreed with Wallace and Kennedy JJ. Having regard to the basis of the argument propounded on behalf of the appellants before the Full Court and the fact - recorded by Wallace J. in his judgment - that it was common ground that there was no suggestion of a finding adverse to the appellants' interests, the Full Court was, in my opinion, correct in discharging the order nisi. It is not open to this Court to allow an appeal against an order that, on the material before the Full Court, was rightly made.
However, the Coroner has withheld the making of his findings while this litigation has been pending and the question will arise whether the findings which he contemplates making might adversely affect the interests of the appellants. The majority holds that the interests of the appellants include the interests of their deceased son and that the Coroner should be ordered to reconsider the question whether the appellants should be heard in address. I should therefore state my view as to the extent of the appellants' interests - not because I would make an order directing the Coroner to reconsider, but because I foresee that the Coroner may reach the stage where he will be bound to give the appellants an opportunity to make a limited submission if their interests extend to the protection of the reputation of their deceased son.
A finding in an inquest into a death is naturally likely to deal with the conduct of the deceased leading to death. An unfavourable reflection on the deceased is usually a matter of concern to her or his parents, spouse or children and, if they choose to appear at the inquest in order to safeguard the reputation of the deceased, the familial relationship suffices, in my view, to establish the deceased's reputation as a relevant interest which should not be adversely affected without according natural justice to those who are seeking to safeguard that reputation. It is immaterial that the common law denies parents, spouse or children a legal right to sue in defamation for damage done to that reputation, for interests falling short of legal rights suffice to give a person standing to seek judicial review. In my view, therefore, if and when the Coroner reaches the stage of contemplating the making of a finding unfavourable to the reputation of the appellants' deceased son, he should afford the appellants an opportunity to address him on that contemplated finding. This view differs from the order proposed by the majority for the reason that I do not think the Full Court was in error in refusing a mandatory order.
As the order made by the Full Court was right on the material before it, I would dismiss the appeal.
Late in 1986 or early in 1987 James Arthur Annetts, aged sixteen, and Simon Amos, aged seventeen, perished in desert country south-east of Halls Creek in the north of Western Australia. They had been working on a station owned by Sherwin Pastoral Co. ("the Company") and were under the direction of Giles Loder. The Company and Mr. Loder are named as second respondents to this appeal but they have given notice of intention not to appear. The Attorney-General for Western Australia was given leave to intervene.
Over a period of many months the Coroner, Mr. David McCann S.M., conducted an inquiry into the deaths of the two young men. Their families and the Company and Mr. Loder were all represented by counsel. Counsel, including counsel for the appellants, Mr. and Mrs. Annetts, were permitted to examine and to cross-examine all witnesses who gave evidence at the inquiry. In the course of the hearing in the Full Court of the Supreme Court of Western Australia, senior counsel for the appellants said:
I understand that the total record is in excess of 1000 pages of transcript and there are literally double or triple alphabet lists of exhibits.
At the conclusion of the evidence, counsel for the families of the two young men told the Coroner that they wished to make submissions before the Coroner made any finding. There was considerable debate before the Coroner as to the operation of the Coroners Act 1920 W.A. ("the Act"). It will be necessary to look at the contents of that Act in some detail but, for the moment, it is enough to note that at the conclusion of the debate the Coroner said:
What I do say is that until the statute is changed, or until I'm told by a higher court, it is my view I have a discretion as to whether representatives of persons interested in the proceedings have a right to make submissions, and it is my view at this time that I should exercise that discretion not to allow submissions. It is apparent from what the Coroner said later that, by the term "submissions", he really had in mind closing addresses. No doubt, that is how the matter was put to him as indeed it was to this Court. The Coroner spoke in amplification of his view and later published formal reasons for his decision not to permit closing addresses.
Mr. and Mrs. Annetts obtained an order nisi for writs of prohibition and mandamus against the Coroner in respect of his decision. The matter came before the Full Court of the Supreme Court of Western Australia which discharged the order nisi. In the view of the Full Court, the Coroner had a discretion whether or not to receive submissions from counsel and, in all the circumstances, the appellants were not denied natural justice by the refusal of the Coroner to hear from their counsel. It is against the judgment of the Full Court that the appellants now appeal.
The jurisdiction of the Coroner arises out of s. 6(1) of the Act which reads:
Subject to this Act, where a coroner or his clerk is informed that a person has died within the State, and -
(a) there is reasonable cause to suspect that such person has died either a violent or unnatural death, or has died a sudden death of which the cause is unknown; or
(b) such person has died in prison, or while detained in any hospital for the insane, or in such place or under such circumstances as to require an inquest under any Act, the coroner shall have jurisdiction to inquire into the manner and cause of the death of such person.
Section 7 provides, inter alia, that every coroner shall have, in respect of all inquests:
(a) all the powers, authority, and jurisdiction which belong to the office of a coroner in England, except so far as the same are varied by, or are inconsistent with this Act.
In so far as the marginal notes to the sections of the Act provide an accurate guide, it is s. 11 that deals with proceedings at inquests. The following sub-sections of that section have some relevance to the issues now before the Court:
(2) Subject to the provisions of subsection (2a) of this section, the coroner shall examine on oath touching the death or suspected death all persons who tender their evidence respecting the facts whom he thinks it expedient to examine.
(2a) On an inquest evidence may be given by affidavit, but the coroner, if he thinks just cause exists for doing so, may summon the person making an affidavit to attend before him as a witness for further examination or cross-examination.
(3) On an inquest concerning the death of a person, after viewing the body, if a view is had, and hearing the evidence, the coroner shall give his decision or finding, or the jury their verdict (as the case may be) and certify it by an inquisition in writing setting forth, so far as such particulars have been proved -
(b) how, when and where the deceased came by his death.
(5) Where an inquest is held touching the death or suspected death of an infant, the coroner or the jury, as the case may be, may inquire, not only into the immediate cause of death or the circumstances of the suspected death, but also into all such circumstances as may throw light upon the treatment and condition of the infant before death or before the time when death is suspected to have occurred and into such other matters as, in the opinion of the coroner, require investigation in the interest of public justice.
By reason of s. 5(1) and (2) of the Age of Majority Act 1972 W.A., James Annetts and Simon Amos were infants for the purposes of s. 11(5) of the Act.
Section 12A of the Act requires a coroner to commit a person for trial if, in his opinion, the evidence taken at an inquest is sufficient to put that person upon trial for wilful murder, murder, manslaughter, infanticide or, in the case of a fire, for arson or any other indictable offence in which the question whether the person caused the fire will be in issue.
It is desirable to set out s. 24 in full because it was treated in the Full Court as the key section for relevant purposes. It reads:
(1) At any inquest, any person who, in the opinion of the coroner, has a sufficient interest in the subject or result of the inquest -
provided that such examination and cross-examination -
(d) is conducted according to the law and practice of coroners' inquests,
and the coroner shall disallow any question which, in his opinion, is not relevant or is otherwise not a proper question.
(2) Where the death of the deceased, or in the case of the suspected death of a person it is suspected that his death, may have been caused by an injury received in the course of his employment or by an industrial disease, any person appointed by a trade union to which the deceased at the time of his death, or the person whose death is suspected at the time of his suspected death, belonged shall be deemed to be a person who, in the opinion of the coroner, has a sufficient interest in the subject or result of the inquest for the purposes of this section, if the coroner is satisfied there is consent thereto -
(a) by the spouse of the deceased or the person whose death is suspected; or
(b) where there is no such spouse but there is a child, or there are children, of the deceased or the person whose death is suspected -
(i) by that child or the eldest of those children, as the case requires; or
(ii) where that child or the eldest of those children, as the case requires, is a minor, by the guardian thereof
but, where the coroner is satisfied that there is no person of a kind referred to in paragraph (a) or (b) of this subsection available and able to give that consent, the coroner may dispense with it, on an application being made in that regard to the coroner by the person appointed by the trade union.
Certain sections of the Act are described as "Supplemental". Among them is s. 43(1), which is declared to have been made "with respect to procedure at coroner's inquests". Section 43(1)(i) reads:
(a) The coroner shall not express any opinion on any matter outside the scope of the inquest except in a rider which, in the opinion of the coroner is designed to and may, if given effect to, prevent the recurrence of similar occurrences.
(b) A rider is not part of the decision or finding of a coroner but it may be recorded if the coroner thinks fit.
Section 43(1)(j) requires a coroner not to frame his decision or finding "in such a way as to appear to determine any question of civil liability or as to suggest that any person is found guilty of an indictable or simple offence".
Nowhere does the Act speak of a right of appearance, as opposed to a right to attend and to examine and cross-examine witnesses and elicit evidence. No right to address the coroner (or the jury, if there be one) is conferred in express terms. In the Full Court, referring to the absence of any right in the statute to address the coroner or the jury, Kennedy J. said:
This is, of course, not at all remarkable, for it is clear that, in England, at the time when the present Act was passed and being based as it was on the English coronial system, no person was permitted to make such an address. That, indeed, is still the position in England - see r. 40 of the Coroners Rules 1984 which prohibits any person from addressing the coroner or the jury as to the facts.
An explanation for the practice followed in England may be found in the judgment of Lord Lane C.J. in Reg. v. South London Coroner; Ex parte Thompson (reported only, it appears, in The Times, 9 July 1982, but quoted in Jervis on the Office and Duties of Coroners, 10th ed. (1986), p. 6) when he said:
Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.
Burton, Chambers and Gill, Coroners' Inquiries (1985), p. 60, refer to r. 40 in these terms:
No person may address the coroner or the jury as to the facts (Rule 40). Where a matter of law is in question, it can be the subject of discussion on the part of lawyers who have a duty to assist the court. In his formal reasons for decision, the Coroner suggested that this passage may provide a clue to the practice relating to addresses which developed in England in the twentieth century. The Coroner pointed out that in England, since 1926, appointments to the position of coroner have been made from persons who were barristers, solicitors or medical practitioners of not less than five years standing. Mr. McCann observed: In matters of law, medically qualified coroners could be expected to look to the legal representatives appearing before them for guidance.
Section 4 of the Act empowers the Governor to "appoint such and so many persons as he thinks fit to be coroners and deputy coroners". Section 5 provides that the jurisdiction and powers of a coroner may be exercised by a stipendiary magistrate. Notwithstanding the breadth of s. 4, the practice in Western Australia, as I understand it, has been to appoint a stipendiary magistrate as coroner.
What was said by Lord Lane in Ex parte Thompson holds good for coronial inquiries in Western Australia. It is true that the court of a coroner has been regarded historically as a court of record: see Garnett v. Ferrand [30] . But that is for certain purposes; it remains an inquisitorial body.
In so far as the appellants sought to establish a right to address the Coroner, that right cannot be found in s. 24 or in any other section of the Act.
That of course is not the end of the matter. It was common ground before this Court, as it was before the Full Court, that the rules of natural justice apply to a coronial inquiry. Certainly the Coroner was alive to their application, for he said in his formal reasons for decision:
It has not been the practice in this State for Coroners to receive addresses from counsel representing interested persons at the conclusion of the evidence.
In the unusual circumstance where suspicion might surround the activities of some person who was thus in jeopardy of being committed for trial from an Inquest, natural justice would require that that person or his counsel be acquainted with the possibility and be given the opportunity of bringing forward any further evidence and to make submissions, if he so desired, on the question of committal for trial. (Emphasis added.)
As has been observed on more than one occasion, the rules of natural justice are not fixed and immutable. In National Companies and Securities Commission v. News Corporation Ltd. [31] , Gibbs C.J. said:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. 1. (1984) 156 C.L.R. 296, at p. 312.
To say that the rules of natural justice apply in the present case (a proposition which is undoubtedly correct), of itself advances the matter very little. Kennedy J. described the critical question as whether "the rules of natural justice require an extension of the rights expressly conferred upon the applicants by s. 24 of the Act". The question could be posed differently - in all the circumstances, do the rules of natural justice require that counsel for Mr. and Mrs. Annetts be given an opportunity to address the inquiry? It was not suggested that, in any relevant respect, the Act excludes the rules of natural justice. As the matter was argued before us, it seems to have been assumed all round that a right to make submissions to the Coroner was a right for counsel to address. If there be such a right, or if the Coroner had been prepared to exercise the discretion he believed he had by permitting submissions, there is no reason why he could not have confined that address or those submissions to an address or submissions in writing. Indeed, the order nisi refers to "oral or written submissions". To return to the question asked above, if natural justice requires that the Coroner hear an oral address or receive written submissions from counsel for Mr. and Mrs. Annetts, is the address or are the submissions at large or are they confined to some particular aspect of the inquiry?
To ask the last question is to point up the difficulties associated with the appellants' argument in this Court. That argument appeared to assume that, if there was a right to address the Coroner, it was a general right extending to every aspect of the inquiry. Counsel for the appellants submitted that, as his clients had satisfied the Coroner they had a sufficient interest in the subject or result of the inquiry, they therefore had "a wide-ranging legal right to be heard in submission, or address, at the end". He illustrated the breadth of the matters on which he might wish to address the Coroner, in several passages. He said:
But the question of the adequacy of the search response in the arid north-west; whether or not the police radio network was adequate; whether or not the provisions of money to the police officers on the ground - public moneys - permitted an adequate immediate response; whether the Aboriginals' communities living in the Tanami Desert should or should not have been involved, or should in future be involved; whether or not the fact that there was no signposting, no warning to people; now, these are matters, Your Honour, that would be certainly involved in the outcome, possibly, of the Coroner's inquest, with which my clients are interested and vitally concerned because the purpose of the rider, with which the Coroner is under the common law and also by this statute close, in part, is to prevent a recurrence of this tragedy, or similar tragedies. Later, counsel said: Now, there are several matters that could arise. Did they die? They died of thirst. One was shot. Did he shoot himself, or did his colleague shoot him? They are the matters - one died by a gunshot wound through his head, and the manner and cause of death is one of the findings that is to be made. But, what about the circumstances of their work? What about the search? What about the adequacy of the infrastructure that exists in the north-west for such things? They are matters that are concerned with the subject-matter or result.
The rules of natural justice will have a different operation in a coronial inquiry where no finding in any way adverse to a person who is represented is likely to be made compared with their operation in an inquiry where such a finding may be contemplated. In Mahon v. Air New Zealand [32] , Lord Diplock, delivering the judgment of the Privy Council, said in relation to a person making a finding in the exercise of an investigative jurisdiction:
The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.
The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.
Although Lord Diplock was there speaking of the opportunity to adduce additional material, his remarks apply equally to the right to address. Kennedy J. spoke of the very real concern that the parents of both young men had in the subject matter and result of the inquest. But, he said, "there is nothing in the evidence before this Court to suggest that anything adverse to them could conceivably emerge from the inquest". If "them" is a reference to the parents themselves, the observation is undoubtedly correct. If it is a reference to James Annetts and Simon Amos, the proposition is by no means self-evident. For instance, the circumstances in which the young men left the station gave rise to questions as to whether they had stolen the motor vehicle in which they were travelling and why they had left their employment. More importantly, James Annetts appears to have died from thirst while Simon Amos may have died from a gunshot wound. Either that wound was self-inflicted or, according to counsel for Mr. and Mrs. Annetts, "the possibility is real that my clients' son would have put him out of his misery". Of course, both young men having died, there can be no question of any committal for trial in their case, even if the evidence pointed to the commission of an offence. In a passage quoted earlier in these reasons, the Coroner made it clear that, where a person was in jeopardy of being committed for trial, he would afford that person the opportunity to make submissions on the question of committal.
That is not necessarily the end of the matter. If the Coroner were to make a finding that bore adversely on the conduct of the young men in leaving their employment or in relation to the motor vehicle in which they left the station or, more particularly, as to how Simon Amos received the gunshot wound that caused his death, that would be something in relation to which the parents have a real interest in being heard. The parents have been recognized as having "a sufficient interest in the subject or result of the inquest" (the language of s. 24 of the Act) as to warrant their appearance by counsel. In the course of his judgment in the Full Court, Wallace J. said that it was "common ground that there is no suggestion of any finding adverse to the applicants' interest to be made". That is no doubt so if his Honour was referring to any conduct on the part of the appellants. But the observation may not truly reflect the position if it is intended to include the conduct of the deceased. Any finding of the sort referred to at the beginning of this paragraph would be one in respect of which procedural fairness (the appropriate emanation of natural justice in the present case) requires that counsel for the parents be given an opportunity to address the Coroner. The relationship of parent and child and the emotional consequences for the family of such a finding demand that such an opportunity be afforded.
There is a difficulty with the word "finding" in this context. The jurisdiction of the Coroner is "to inquire into the manner and cause of the death" of the two young men: s. 6. The scope of his inquiry may be expanded because the death of infants is involved: s. 11(5). He may not express an opinion on any matter outside the scope of the inquest, except in a rider which is in accord with s. 43(1)(i)(a). A rider is not part of the decision or finding: s. 43(1)(i)(b). Certainly the Coroner may make a "decision" or "finding" as to the manner and cause of death of Simon Amos; indeed, he must in so far as the evidence permits him to do so. If there is any possibility of a decision or finding that the gunshot wound was not self-inflicted, the appellants have a direct interest in being heard. That interest cannot be discounted by saying that only their son's conduct, and not their conduct, was involved.
Unfortunately, all these matters were not explored before the Coroner when the question of a right to address was aired. Had it been put directly to the Coroner that counsel for Mr. and Mrs. Annetts wished to address him in respect of any matter which might result in a finding adverse to their son, the Coroner might well have responded that no such finding was in contemplation. And if no finding adverse to their son was in contemplation, there would be no denial of natural justice in their not being heard, unless a right to be heard could arise in relation to the conduct of persons connected with James Annetts' employment or in relation to the conduct of persons connected with the search for him after he disappeared. Counsel for the appellants submitted that a right to address the Coroner did arise in this way. However, whether or not to allow an address on these matters was entirely within the Coroner's discretion; consequently there was no denial of procedural fairness involved in refusing counsel for the appellants an opportunity to address on them.
And these matters were not explored before the Full Court. It is clear that the appellants' case before that Court, as before this Court, was that their counsel had a right to address the Coroner on any aspect arising in the course of the inquiry, on the ground that the appellants' interest encompassed all the circumstances surrounding their son's death. That case cannot be sustained. In this regard it is of some importance to refer to another passage from the judgment of Kennedy J.:
When counsel for the applicants was pressed to identify the interest of the applicants which conferred the right to address the coroner, he indicated that the interest was that the conduct which led to the circumstances of the death of their son should not be overlooked, the right to ensure that the facts are arrived at by the recognition of contradictions in the evidence, changes in the evidence, an interest "in knowing, in it emerging, the facts, the truth", "an interest in measures that might militate against the repetition of such a tragedy". Finally, he suggested that the applicants' "concern" was to come to the inquest about their son's death and have it properly ventilated. It should also be noted that the affidavit in support of the application for an order nisi for writs of prohibition and mandamus makes no reference to the circumstances of the death of the young men; it relies upon "the right to be heard".
The result is to place this Court in something of a dilemma. Having regard to the way in which the matter was argued before the Full Court, I am of the opinion that it was entirely appropriate for that Court to discharge the order nisi. On that basis, and on the basis on which the matter was argued before this Court, the appeal should fail. And, in the circumstances, it is appropriate that the appeal be dismissed. It will be clear to the Coroner that, if he is minded to make a decision or finding adverse to the character or conduct of James Annetts, or to include in any rider comments that bear adversely on the conduct or character of the deceased, counsel for the appellants should be informed and be given the opportunity of addressing the Coroner or making written submissions in regard thereto.
Annetts
McCann