Helicopter Resources Pty Ltd v Commonwealth of Australia

Background matters 2 It is desirable to first commence with a brief statement of the background to the matter. The applicant is a helicopter company which provides the service of transport of goods and people with a helicopter pilot to the Australian Antarctic Division (AAD), in the Antarctic. The AAD is a unit within the Commonwealth Department of Environment and Energy. It operates the Davis base and a scientific research program in the Antarctic, including the Australian Antarctic Territory. 3 On 11 January 2016, a pilot employed by the applicant to provide services to the AAD, Captain David Wood, was engaged in an activity at the Davis base. It involved carrying fuel in a sling load below his helicopter. Having landed on snow, Captain Wood exited the helicopter and undertook several tasks. Upon seeking to return to his helicopter, he tragically slipped and fell into a crevasse, which had been covered by a snow bridge. Even though Captain Wood happened to be accompanied on the occasion by another pilot engaged by the applicant, the other pilot was unable to rescue Captain Wood. The pilot returned to base and returned with other people. Captain Wood was able to be rescued from the crevasse, but tragically he died the following day. 4 An inquest into Captain Wood's death is currently being conducted by the Coroners Court of the ACT. That Court exercises jurisdiction in relation to deaths in the Australian Antarctic Territory pursuant to either ss 6 or 10 of the Australian Antarctic Territory Act 1954 (Cth). Several parties, including the applicant and Ms Mary Macdonald, who is Captain Wood's widow, as well as the Commonwealth, have been granted leave to appear at the Coroners inquest. Prior to the commencement of the public hearings in relation to Captain Wood's death, a coronial brief was prepared and circulated to the parties who had been given leave to appear. 5 That brief included a transcript of an interview between the Australian Federal Police and Mr David Lomas, who is the chief pilot at the applicant. The public hearings commenced on 19 September 2017 and on 9 October 2017, the applicant's solicitors provided a signed statement by Mr Lomas to counsel assisting the inquest. That statement was circulated to all the parties who had been given leave to appear. It was envisaged that Mr Lomas would give evidence during the inquest on a number of occasions, but on each occasion he was not reached. On 20 December 2017, some months after the public hearings had commenced in the Coroners Court, Comcare laid an information in the ACT Magistrates Court against both the Commonwealth and the applicant, in which breaches of criminal provisions of the Work Health and Safety Act 2011 (Cth) were alleged. The alleged breaches involved summary offences which carry a maximum penalty of $1.5 million on each count. The alleged offences are not indictable offences. On 21 December 2017 at a public hearing of the inquest, the Chief Coroner notified the parties that, subject to finding a suitable venue, the inquest would resume on or about 1 May 2018. On that day, there was some discussion as to any issues arising insofar as the expectation of Mr Lomas giving evidence was concerned, having regard to what was then known to be the pending criminal charges against both the applicant and the Commonwealth. 6 Directions were made by the Chief Coroner on 21 December 2017 that any submission in relation to the progress of the matter be filed by 16 February 2018 and directions were also made for replies. On application by a party other than the applicant, the Chief Coroner subsequently amended that timetable so as to require submissions on the issue of an adjournment by 23 March and any response to be filed by 30 March 2018, which happened to be Good Friday. The applicant provided, in accordance with her Honour's directions, a written submission on 23 March 2018 seeking an adjournment of the proceeding because of the related criminal proceedings. 7 The applicant's submissions included a contention to the effect that an important consideration to be taken into account was the relevance of the fact that there were pending criminal proceedings and that there was potential prejudice that could arise as far as the applicant was concerned if Mr Lomas was to give evidence and be cross-examined during the coronial inquest. Her Honour's attention was specifically drawn to the High Court's decision in X7 v Australian Crime Commission (2013) 248 CLR 92 (X7). The submission was made that close consideration needed to be given to the implications for the accusatorial process in criminal proceedings if Mr Lomas was to be subject to coercive cross-examination in the coronial inquest. 8 In particular, her Honour's attention was drawn to what the High Court said in [71] and [124] of X7. The applicant made clear that its position did not depend upon any asserted privilege against self-incrimination. One suspects that this recognised that a corporation does not enjoy that privilege. The thrust of the applicant's submission below was, however, that there was no relevant distinction for the purposes of protecting the accusatorial process in the fashion discussed in X7 that the applicant was a corporation, as opposed to a natural person. Her Honour's attention was also drawn to Jagot J's decision in this Court in Ransley v Commissioner of Taxation [2016] FCA 778. 9 The request for an adjournment of the inquest until the criminal proceedings were concluded was opposed by both the Commonwealth and Ms Macdonald. The Commonwealth filed written submissions in the Coroners Court, opposing the applicant's request. The applicant was given an opportunity to provide submissions in response, which it did on 11 April 2018. On 12 April 2018, the parties were informed by counsel assisting that the Chief Coroner had made a decision that the inquest would proceed and the hearing would resume on 1 May 2018. 10 No reasons for decision were provided by the Chief Coroner at that time. Notification of the Chief Coroners decision was given by email. A copy was sent to a relatively junior solicitor in the firm of solicitors acting for the applicant. The partner with responsibility for the applicant's involvement in the matter, Mr Martin, gave evidence before me, which I accept, that he did not learn of the Chief Coroners decision until several days after the 12 April 2018 email was sent. He did not find out about that matter until 16 April 2018, although it appears that notification was given not only to the junior solicitor in his firm, but also to counsel acting for the applicant. 11 Mr Martin gave evidence, again, which I accept, that to the best of his knowledge, the applicant itself was not aware until 16 April 2018 of the decision. On 16 April 2018, Mr Martin, acting on behalf of the applicant, asked the Chief Coroner to provide reasons for her decision. That occurred later on the same day. The reasons are dated 12 April 2018. It is unclear why those reasons were not provided at an earlier time, but nothing turns on that for the purposes of this proceeding. It is also relevant to note that, on 19 April 2018, a subpoena was issued to Mr Lomas to give evidence in the Coroners Court on 1 May 2018. 12 On 20 April 2018, the applicant sought a direction from the Chief Coroner that any questioning of Mr Lomas would not extend to matters outlined in the information and statement of facts, which had been filed in the ACT Magistrates Court. On the same day, the Chief Coroner declined to make that direction, and her Honour indicated as follows: I do not intend to make such a direction in advance of the hearing. It is impossible to predict what questions may fall foul of the proposed direction, yet be otherwise appropriate. 13 In the applicant's solicitor's letter to the Coroners Court, in which the direction was sought regarding the extent of the questioning of Mr Lomas, it was made clear, in the final paragraph, that if the direction was not made, the firm was instructed to apply to the Federal Court for judicial review of the decision not to adjourn the inquest until finalisation of the Comcare prosecution. Pausing there, and noting that that letter was copied to all parties, everyone was aware - at least, as at 20 April 2018 - of the distinct prospect of proceedings being brought in this Court. 14 It is appropriate, before saying anything further about the Chief Coroners reasons for the decision, to say something more about the proceedings in this Court.

The proceeding in this Court 15 The proceedings were commenced by an originating application and a statement of claim. The Commonwealth, Ms Macdonald and the Coroners Court were joined as parties. The proceedings are in the nature of a judicial review of three decisions, including the decision to refuse the adjournment. The applicant made that clear in the originating documentation, that it was relying upon this Court's jurisdiction under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). It is significant to emphasise that, although the Commonwealth opposes the interlocutory relief sought by the applicant, nothing has been said by it - either in writing or orally - to suggest that the Court does not have jurisdiction, under one or other of those sources, to entertain the substantive proceeding or the application for interlocutory relief. 16 I should also pause to say, at this stage, that although Ms Macdonald was named as the second respondent in the proceeding, she recently filed an interlocutory application in which she seeks to be removed as a party to the proceeding, on the basis that it is not necessary for her to be joined. Ms Macdonald was represented at the commencement of the interlocutory application hearing today, but her counsel was granted leave to be excused from the proceeding when Mr Brennan made plain that his client would not be seeking costs of the interlocutory application against Ms Macdonald. It is appropriate to stand over the hearing of Ms Macdonald's interlocutory application for hearing by the docket judge. 17 The judicial review grounds upon which the decisions are challenged and, in particular, the decision to refuse the adjournment, are set out at some length in the statement of claim. For the purposes of determining the interlocutory application, it is sufficient to focus upon two primary grounds upon which the judicial review has been brought. The first is set out in paragraph 38 of the statement of claim: 38. The decision alleged in paragraph 34 was not authorised by the enactment pursuant to which it was purported to be made. Particulars a. The enactment was the Australian Antarctic Territory Act 1954 (Cth) (AAT Act) or in the alternative the Coroners Act 1997 (ACT) as an instrument made under the AAT Act. b. The Third Respondent is authorised by the enactment to conduct an inquiry for the purpose of providing a report on the matters specified in s 52 of the Coroners Act and not otherwise. c. The questioning of Mr Lomas was not for the purpose, or proposed to be limited to the purpose, of providing a report for the purpose within the meaning of s.52 of the Coroners Act. 18 The contention that the decision to refuse the adjournment was not authorised by the enactment relied upon a series of cases including the High Court's decision in X7, to which I have already made reference, as well as to other authorities, including the High Court's decision in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 and, in particular, pages 515-516 per Brennan J. Insofar as X7 is concerned, particular reliance was placed upon [71] and [87] of the joint judgment of Hayne and Bell JJ. As I have already mentioned, reliance was placed upon Jagot J's decision in Ransley, especially at [21] to [27] noting, in particular, her Honour's reference in [27] to some observations of the High Court in Lee v The Queen [2014] HCA 20; (2014) 253 CLR 458. 19 Independently of the allegation that the decision was not authorised, the applicant also proposes, in paragraph 39 of its statement of claim, to argue that the decision involved an improper exercise of power. Mr Brennan confirmed, in his oral address, that if it be assumed, for the sake of the argument that s 58 of the Coroners Act 1997 (ACT) (Coroners Act) does not apply but s 36 does, that latter provision confers a discretion on the Coroner whether or not to adjourn a proceeding. The applicant contended that the exercise of that discretion had miscarried on various grounds. 20 One of those grounds was that the Chief Coroner had failed to take into account a relevant consideration, by rejecting a submission that the applicant's defence of the criminal proceeding could be compromised by Mr Lomas giving evidence. In support of that contention, reference was made to paragraphs 36 and 37 of the statement of claim: 36. The applicant is aggrieved by the decision alleged in paragraph 34 or in the alternative the conduct alleged in paragraph 35 because compelling Mr Lomas to give evidence at the inquest will provide to the First Respondent opportunities not available to it in the criminal process: a. to seek admissions which will be admissible against the Applicant in the proceeding on the information without the need for the First Respondent to call Mr Lomas in those proceedings; and b. assess, through the conduct of a compulsory cross examination, the risks to the First Respondent in compelling Mr Lomas to give evidence for the First Respondent and against the interests of the Applicant in the proceeding on the Information. 37. Further the Applicant is aggrieved by the decision alleged in paragraph 34 or in the alternative the conduct alleged in paragraph 35 because compelling Mr Lomas to give evidence at the inquest may provide to the prosecutor on the information opportunities not available to him in the criminal process, and under s.155 of the Work Health and Safety Act 2011 (Cth), to: a. rely upon admissions admissible against the Applicant in the proceeding on the information without the need for the prosecutor to call Mr Lomas; b. enable the prosecutor to assess the risks to the prosecution case of compelling Mr Lomas to give evidence against Applicant in the proceeding on the Information when Comcare had not availed itself of the opportunity to make that assessment by exercise of its powers under s. 155 of the Work Health and Safety Act 2011 (Cth) at a time when it was lawful for it so to do. 21 Another particular of the claim that the discretion has miscarried is that the Chief Coroners decision constituted an exercise of discretionary power that was so unreasonable that no reasonable person could have exercised the power. That claim is particularised by reference to concepts of irrationality and illogicality as set out, not only in the statement of claim, but as also further elaborated upon in the applicant's written submissions before me. 22 The applicant's submissions in support of the interlocutory application may be summarised as follows. The applicant emphasised that the history of this matter reveals a keen interest by the Commonwealth to cross-examine Mr Lomas as the chief pilot of the applicant company. The list of issues prepared by the Commonwealth for the purposes of the coronial inquest show that it wished to examine Mr Lomas as the chief pilot on questions going to his personal responsibility for safety failures. In paragraph 9 of the submissions of the Commonwealth to the Chief Coroner in opposition to the request for an adjournment, the Commonwealth said that Mr Lomas was an important witness for various reasons, which included that he was the applicant's chief pilot and had responsibility for maintaining pilot proficiency at such a standard as to ensure the highest possible level of safety in the applicant's operations. 23 Mr Brennan submitted, and I did not understand Mr O'Donovan who appeared for the Commonwealth to resist the proposition that, as chief pilot, Mr Lomas was the directing or controlling mind of the applicant. The same might be said about Mr English who is the chief executive officer of the applicant. This is a matter of some significance because of the emphasis that was placed by the Commonwealth in opposing the interlocutory application on the contention that the cases relied upon by the applicant are distinguishable. They were said to be distinguishable because there is not, in this case, an identicality, between the witness, Mr Lomas, and the entity, or person, against whom the criminal proceedings had been commenced, namely, the applicant. 24 In response, Mr Brennan submitted that, having regard to the relevant passages from the cases referred to above, the fundamental consideration was one of protecting the accusatorial process, whether or not that accusatorial process involves an individual or a corporation. 25 I accept, for the purposes of this interlocutory application, that it is sufficient for the applicant to demonstrate that there is an arguable question or a serious issue to be tried. With great respect to Mr O'Donovan (who appeared for the Commonwealth), he seemed to approach today's hearing on the basis that the applicant had to establish, on a final basis, the allegations raised by the applicant in its statement of claim. 26 I am persuaded by what has been put on behalf of the applicant that there is a serious question or prima facie case to be tried, if not in respect of the alleged lack of authorisation by the Chief Coroner to make the decision, at least in respect of the claim that the Chief Coroners discretion under s 36 of the Coroners Act has miscarried. Reference should be made to the applicant's outline of submissions, which was made on 23 March 2018 to the Chief Coroner in support of the requested adjournment and the reliance that was placed there on authorities such as X7 and Jagot J's decision in Ransley. The applicant made very clear that an important aspect of its request for an adjournment was the potential prejudice that it said it would suffer if Mr Lomas was subjected to cross-examination, particularly bearing in mind the observations of Hayne and Bell JJ at [124] of X7. 27 The applicant did not rely on that aspect of that passage relating to the privilege against self-incrimination. Rather, emphasis was placed by it upon the need to protect the accusatorial and adversarial criminal trial and avoid a situation arising whereby the Commonwealth would have an opportunity to test its case by cross-examining Mr Lomas in the coronial inquest. 28 When one turns to the Chief Coroners reasons for decision, which as I have indicated are dated 12 April 2018, her Honour summarised the various points made, not only on behalf of the applicant, but also on behalf of Ms Macdonald and the Commonwealth in opposing the adjournment request. For relevant purposes, the critical passage of her Honour's reasons is to be found in paragraph 14: I accept that even when section 58 of the Act does not apply, that summary criminal proceedings are instituted against one of the parties is a relevant consideration in the exercise of the Court's general discretion in relation to adjournment of an inquest. I have considered that issue. The remaining witness is Mr Lomas. He is not subject to a criminal prosecution nor has there been any suggestion that he will be. His interests and those of Helicopter Resources are not the same. He is a compellable witness in both jurisdictions. His interests, as opposed to those of his employer, insofar as they may be affected by being required to give evidence in both fora, can be protected by asserting his rights in respect to self-incrimination. I reject the submission that Helicopter Resources' defence will be compromised by Mr Lomas giving evidence. 29 It is notable that her Honour did not enter into any analysis or discussion of the cases which were cited by the applicant in its detailed written submissions in favour of the adjournment request. 30 The judicial review ground of failing to take into account a relevant consideration, is, of course, a ground which cannot be approached as inviting a review of the merits of an administrator's decision. It seems to me, however, that what the applicant proposes to argue is that her Honour did not properly engage with a significant submission made in favour of the applicant's adjournment request. Her Honour did not descend into any detail as to why the applicant's interests would not be prejudiced if its chief pilot was to be cross-examined by the Commonwealth or the transcript of the evidence otherwise being made available to the prosecutor. 31 Her Honour did not address the applicant's reliance on X7 at [71]: Even if an answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment. 32 It seems to me that it is at least arguable on a prima facie basis that this statement of general principle applies to the circumstances here and not just where there is an identicality between the witness and the accused as referred to by Mr O'Donovan. Arguably, the principle extends to proceedings in which a corporation has been accused of a criminal offence and its directing or controlling mind is subject to cross-examination in related coronial proceedings. There is a serious issue to be tried in relation to the applicant's claim that the discretion under s 36 of the Coroners Act has miscarried. 33 It is unnecessary for me to say anything more about the prospects or strength of the other judicial review grounds raised by the applicant, including those grounds relating to lack of authorisation, the proper construction of s 58(6) of the Coroners Act or the claim of unreasonableness. 34 Let me turn then to the balance of convenience. The Commonwealth contended that the balance of convenience weighed against the grant of interim relief. It did so on various grounds. In the written submissions at least, the matter which received most emphasis, (which was also reflected in Mr O'Donovan's cross-examination of Mr Martin) was the delay which it was said had occurred in bringing these proceedings. I do not accept the Commonwealth's position that the delay here has been of a magnitude that relief should be denied as an aspect of the balance of convenience. 35 It is notable that the criminal information was not laid until 20 December 2017. It was evident from Mr Martin's cross-examination that he may have had some concerns a week or two at most before then that it was possible his client might be prosecuted. The formal criminal proceedings having been commenced, steps were taken immediately by the Chief Coroner to ensure that any issue arising by the juxtaposition of the criminal proceeding and the coronial inquest should be ventilated and determined within a timeframe which recognised the importance of bringing the coronial inquest to as early a completion as possible. 36 As I have already indicated, directions were made by the Chief Coroner for the parties to file written submissions on the issue. It was not the applicant who sought an extension of the time originally set down by the Coroners Court for that to occur. That was done by another party. The applicant complied with the timeframe as varied and lodged its written submission seeking the adjournment request on 23 March 2018. The decision refusing that request was notified to the parties' representatives on 12 April 2018. I accept Mr Martin's evidence that he did not become aware of the decision until 16 April, noting that there was a weekend between 12 April and 16 April. 37 Upon learning of the decision, Mr Martin moved quickly to obtain instructions to seek a direction of the sort that I have already described. The parties were on notice that the applicant intended to commence proceedings in the Federal Court if the direction, as sought, was not granted. The Chief Coroner, through counsel assisting, indicated on the same day that the direction would not be granted. It was not until late on Monday, 16 April, that the applicant reviewed the reasons for the Chief Coroners decision. It seems to me not unreasonable in the circumstances for the applicant to have some time to give proper consideration to those reasons with a view to determining the basis upon which any judicial review challenge might be made. 38 It is also relevant to take into account that it was not until 19 April 2018 that a subpoena was issued to Mr Lomas to appear at the inquest, which was scheduled to resume on 1 May 2018. Again, noting that there was an intervening weekend after the Chief Coroners refusal to limit the questioning of Mr Lomas, on Tuesday, 24 April 2018 (i.e. two business days after the decision to refuse the direction was known), these proceedings were commenced in this Court. Without doubt, the timing of these proceedings has put great pressure on all parties. I am not persuaded, however, that the delay is of a magnitude as to disentitle the applicant to relief under the rubric of the balance of convenience. 39 Nor do I accept the other grounds upon which the Commonwealth claims that the balance of convenience weighs against the applicant. I do not accept the Commonwealth's submission that there is no irreparable harm. I do not consider that the applicant's rights and entitlements in an accusatorial criminal process are adequately protected by the theoretical possibility of powers being exercised under, for example, s 138 of the Evidence Act 2011 (ACT) in the fashion suggested by the Commonwealth. 40 Nor do I accept the Commonwealth's submission that relief should be withheld because proper parties have not been joined in the application. That submission is made by reference to the fact that there are other parties in the coronial inquest who have not been joined by the applicant in the proceedings in this Court. I accept Mr Brennan's submission that this point is answered by the decision of the Court of Appeal of the Supreme Court of Victoria in Boyce v Munro [1998] 4 VR 773. It was held there that the fact that a person is a party to an inquest is not sufficient to make that person a necessary party in an application to a Court to set aside the findings of that inquest. In my respectful view, the same can be said about proceedings in the nature of those in the present application. 41 There was also some suggestion by the Commonwealth that there was no power under s 15 of the ADJR Act to grant the relief which has actually been sought by the applicant, as was clarified in oral address. But the applicant relies not only upon the ADJR Act, but also s 39B of the Judiciary Act, in respect of the substantive application and also its interlocutory application. The fact, therefore, that there may or may not be issues under s 15 is neither here nor there at this stage of the proceeding. The Commonwealth submitted that if the Court was minded to grant interlocutory relief, the usual undertaking as to damages should be sought. I accept that submission. 42 Another important aspect of the balance of convenience concerns the interests of Captain Woods' family in having this inquest finalised as soon as possible. Ms Macdonald has provided an email to her instructing solicitor, which was put in evidence, about the possibility of the inquest being further adjourned. I understand that Ms Macdonald and her children reside in Canada. There are obvious physical and financial costs and challenges involved in them attending the inquest. In her letter dated 25 April 2018 to her instructing solicitor, Ms Macdonald said that the prospect of the inquest being postponed is: …terrible for our family on so many levels. She wrote that: …the ongoing challenges of being geographically removed from the proceedings has taken a huge toll on our family life these past years. 43 Ms McDonald said that the proposed resumption on 1 May would provide the only chance for her sons to be able to travel to attend the inquest and stand up for their father, because of their university commitments and summer job obligations. She asked that this matter be brought to the attention of the Court. She also drew attention to the costs that she would incur in having to travel to Australia would be a large burden, whether she cancelled the trip or not. She concluded her letter by saying that: To postpone the final sitting of this inquest for an undetermined length of time would be a cruel blow to our family. 44 These matters have weighed heavily with the Court and are, without question, an important aspect of the balance of convenience. I mean no disrespect to Ms Macdonald if I say that in the particular circumstances, however, the interests of the applicant prevail, having regard to the fundamental importance of the accusatorial processes to which I have referred to above and the difficult issues which can arise when both civil and criminal proceedings relating to similar matters are on foot. By having the substantive judicial review application heard quickly, the pain and distress caused to Ms Macdonald and her children will hopefully be ameliorated to some extent. 45 For those reasons, the Court will grant interlocutory relief in the form of order 2 of the revised short minutes of order, and on condition that, through its counsel, the applicant gives the usual undertaking as to damages. Insofar as costs are concerned, they should be reserved, until the outcome of the substantive application is known. 46 Insofar as that substantive application is concerned, in view of the need not to create any excessive and inappropriate delay in the future conduct of the inquest, the substantive proceedings should be heard and determined as soon as possible. There will be a case management hearing tomorrow at 4:45 pm before the docket judge, Bromwich J, with a view to the final hearing occurring on 29 May 2018. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.