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Walter Mining Pty Ltd v Coroner Hennessey

 

[2009] QSC 102

Reported at [2010] 1 Qd R 593
 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Walter Mining Pty Ltd v Coroner Hennessey and Ors [2009] QSC 102

PARTIES:

WALTER MINING PTY LTD
v
CORONER HENNESSEY
(first respondent)
AND
ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD
(second respondent)
AND
QUEENSLAND GOVERNMENT DEPARTMENT OF MINES AND ENERGY
(third respondent)
AND
JOY MINING MACHINERY PTY LTD
(fourth respondent)
AND
CONSTRUCTION FORESTRY AND MINING ENERGY UNION
(fifth respondent)
AND
ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA
(sixth respondent)
AND
RACHEL BLEE
(seventh respondent)
JASON DE VOODG
(eighth respondent)
AND
GERRY LAMB
(ninth respondent)
AND
ANDREW ITZSTEIN
(tenth respondent)
AND
DOUG GARDNER
(eleventh respondent)
AND
WAYNE PICKSTONE
(twelfth respondent)

FILE NO/S:

S64/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

7 May 2009

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

8 April 2009

JUDGE:

McMeekin J

ORDER:

The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – QUEENSLAND - JUDICIAL REVIEW – GROUNDS OF REVIEW –IMPROPER EXERCISE OF POWER – POWERS AND DISCRETION OF THE COURT – Coronial inquest into death of Mr Jason Blee – coroner made preliminary ruling as to what evidence she would consider in making her findings under s 45 and s 46 of the Coroners Act 2003 (Qld) - application made under Judicial Review Act 1991 (Qld) that coroner erred in accepting opinion evidence - whether opinion evidence admissible - whether court should intervene in interlocutory decision of coroner.

Judicial Review Act 1991 (Qld) s 20, s 41, s 43

Coroners Act 2003 (Qld) s 37, s 45, s 46

Coal Mining Safety and Health Act 1999 (Qld)

Annetts  v McCann (1990) 170 CLR 596

Clark v Ryan (1960) 103 CLR 486

Doomadgee v Clements [2006] 2 Qd R 352

Atkinson v Morrow [2005] QSC 92

Queensland Fire and Rescue Authority v Hall [1998] 2 Qd R 162

Australian Securities and Investments Commission v Rich and Another [2005] NSWSC 149

Cain v Glass (No. 2) (1985) 3 NSWLR 230

Ex Parte Rutledge (1943) 60 WN (NSW)

COUNSEL:

R W Gotterson QC for the applicant

G C O’Driscoll for the fifth respondent

SOLICITORS:

Sparke Helmore for the applicant

Hall Payne Lawyers for the fifth respondent

  1. McMeekin J: The Coroners’ Court, constituted by the first respondent,[1] is holding an inquest into the death of Jason George Elliott Blee.  Mr Blee died when crushed between a shuttle car and a rib of a mine wall at the Moranbah North Coal Mine on 9 April 2007.  The coroner has completed taking evidence but has consented to a stay of the inquiry to enable this application to be determined.
  1. The applicant seeks a statutory order of review pursuant to the Judicial Review Act 1991 (Qld) (the Judicial Review Act) of the decision of the first respondent to admit into evidence the testimony of one Stephen Allan John Smyth.  The coroner submits to the jurisdiction of the court. The only respondent to take any active role in resisting the application was the fifth respondent, the Construction Forestry and Mining Energy Union, who called Mr Smyth to give evidence before the coroner.
  1. The decision under review is contained in a five page document entitled “Decision – Objection to Admissibility of Smyth’s Evidence on the Grounds of Lack of Expertise” dated 21 January 2009 (“the Decision”). The objections taken by the applicant to the Decision are:
  1. Mr Smyth was not qualified to give expert opinion evidence but purported to give such opinion evidence;
  1. His evidence was inherently infected with bias;
  1. The Coroner’s Decision “indistinctly particularised portions of Mr Smyth’s evidence interpreted to be inadmissible.”[2]
  1. Primarily the applicant focused on the first ground – Mr Smyth was not an “expert” in any identified field of knowledge recognised by the law, and so no opinion that he holds is admissible as it could not be “logically probative” of any matter the subject of the enquiry. Reliance was placed on well known decisions relating to the receipt of expert opinion evidence – Clark v Ryan;[3] R v Bonthyon;[4] Makita (Australia) Pty Ltd v Sprowles.[5]

The Evidence

  1. The inquest heard evidence over some six weeks. I have been provided with the Coroner’s file – the material includes several hundred pages of transcript and documents.
  1. I am told that Mr Smyth gave evidence on numerous sitting days. As well he provided two written reports – an investigation report (Exhibit 18) and a supplementary report (Exhibit 97). Mr Gotterson of Queens Counsel who appeared with Mr Bremhorst for the applicant submitted that it was not my task to go through the evidence of Mr Smyth and determine in relation to each passage whether it was admissible or not. Rather I was to rule generally on the question of law said to be raised by the application and hence give direction to the Coroner and it would be her task to go through the evidence with that direction in mind.
  1. The table summarising the objections that the applicant makes is nine pages in length. It contains in excess of 100 objections.[6] 
  1. In Annexure C to its submissions the applicant sets out its analysis of the topics covered by the evidence given by Mr Smyth. There are twenty three topics nominated. I will not mention them all. They include behaviour of workers, organisational culture, training documentation and worker competency, safety procedures and risk assessment, mine risk management, deputy practices and duties, mine design, document control, operation characteristics of shuttle cars and interpretation of legislation. The point, I take it, was that it was unlikely that any person could claim expertise in so many and varied fields, and perhaps that these fields were not fields of specialised knowledge as recognised by the law.

Mr Smyth’s Experience and Qualifications

  1. Mr Smyth was educated to year 10. By the time of the inquest he had had some twenty years experience in underground coal mining. That experience included working as a mine deputy for seven years and, at the time of the inquest, holding a statutory position under the Coal Mining Safety and Health Act 1999 (Qld) as an industry health and safety representative (referred to by the parties as an “ISHR”). 
  1. Mr Smyth explained that a mine deputy is a person appointed to a zone in the mine and his main function concerns the health and safety of the people in that zone of the mine.[7] To hold a deputy’s certificate he needed to master 11 core competencies. They included but were not restricted to strata ventilation, gas management, and infrastructure of mines.[8]  He had held his Deputy qualification for 15 years by the time he gave his evidence.
  1. An ISHR is a full time position that the fifth respondent is required by statute to fund, liable to be terminated by the Minister for non-performance, with the functions and powers set out in the Coal Mining Safety and Health Act.[9] Mr Smyth has held the position for 7 years. By legislation he is required to hold a “G2 Risk Management Competency” but in fact Mr Smyth holds a superior qualification, a “G3” competency, which enables him, inter alia, to establish a risk management system.[10]  Mr Smyth explained that the G3 qualification that he possessed went “into document control and the aspects of what is required as far as scoping risk assessments all the way through to closing them out then the review process that is required with the continuous improvement and the tracking of that through the system”.  He gave that answer in response to a query as to whether he had formal qualifications in “document management”.[11]
  1. The legislature has charged these representatives with significant responsibilities. They include duties to inspect coal mines to assess whether the level of risk to the safety and health of coal mine workers is at an acceptable level; to review procedures in place at coal mines to control the risk to safety and health of coal mine workers so that it is at an acceptable level; to detect unsafe practices and conditions at coal mines and to take action to ensure the risk to the safety and health of coal mine workers is at an acceptable level; to participate in investigations into serious accidents and high potential incidents and other matters related to safety or health at coal mines; to investigate complaints from coal mine workers regarding safety or health at coal mines; and to help in relation to initiatives to improve safety or health at coal mines.[12] By reason of his statutory position Mr Smyth investigated the accident the subject of this coronial inquiry and the report of he and his colleagues is Exhibit 18.
  1. In the course of his career Mr Smyth has been a reviewer of coal mining legislation for a mining warden’s enquiry and has undertaken training in various matters related to mine safety. Mr Smyth holds a “Certificate 4” in training and assessment. He has been trained in auditing processes and in accident investigation techniques and methods.
  1. In addition Mr Smyth has been involved in a number of overseas study tours. The National Institute of Occupational Safety and Health (usually known as NIOSH) perform all safety testing and research for the American mining industry. Mr Smyth was invited to that Institute to talk about health and safety “from a worker’s perspective” and to be involved in a series of workshops and presentations on “all aspects of risk management, mine seal-up, gas monitoring, respirable dust”[13].  He had given presentations to the Mine Safety and Health Administration in the United States.[14]
  1. Mr Smyth explained that in his twenty years experience he had been involved “in processes looking at the set-up of mining sections”, not in a management position but “from the shop floor as a worker, deputy and local check inspector involved in developing sections for place change mining, friction ignition mining zones etc.”[15]
  1. Finally Mr Smyth is studying to qualify as a “ventilation officer” but has a “couple of competencies” to complete to achieve that qualification.
  1. In short, Mr Smyth has twenty years experience in underground coal mines for much of which he has been interested in mine safety. He has undertaken training in various ways in relation to mine safety in an underground coal mine. He has been entrusted by mine management with the health and safety of persons within a mine by reason of his mine deputy work. His competency and experience have been acknowledged by his peers in being elected to the ISHR position, a responsible position plainly requiring a significant level of knowledge of matters relating to mine safety, and for which he would seem to be eminently well qualified.

The Coroner’s Role

  1. The Coroner is not of course conducting a trial. Mr O’Driscoll, who appeared for the fifth respondent, drew my attention to a passage in the judgment of Lord Lane CJ in Reg v South London Coroner; ex parte Thompson[16] quoted by Toohey J in Annetts v McCann[17] which emphasises the important distinctions between a coronial inquiry and a trial:

“Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of proportioning 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.”[18]

  1. In this State, for an inquiry such as this, the rules of evidence are abrogated by statute. The Coroner’s power to inform herself could not be expressed in wider terms. Section 37 (1) of the Coroners Act 2003 (Qld) (“the Coroners Act”) provides:

“(1) The Coroners Court is not bound by the rules of evidence, but may inform itself in any way it considers appropriate.”

  1. As Doomadgee v Clements[19] and other cases show, it is well accepted that there are constraints on coroners in relation to the gathering of evidence.  Her Honour expressly recognised those constraints in her Decision.  The evidence must be relevant to and logically probative of the matters within the scope of the coronial inquiry. 
  1. Sections 45 and 46 of the Coroners Act identify the Coroner’s duties in relation to this inquiry.  The primary role is set out in subsection 45(2) which provides:

“A coroner who is investigating a death…must, if possible, find –

(a)who the deceased person is; and

(b)how the person died; and

(c) when the person died; and

(d)where the person died, in particular whether the person died in Queensland; and

(e)what caused the person to die.”

  1. It has been held that the scope of the inquiry under that provision is extensive and not confined to evidence directly relevant to the matters listed.[20]
  1. The Coroner has an ancillary role under s 46. Subsection 46(1) provides:

“A coroner may, whenever appropriate, comment on anything connected with a death investigated at an inquest that relates to –  

(a)public health or safety; or

(b)the administration of justice; or

(c) ways to prevent deaths from happening in similar circumstances in the future.”

  1. Muir J (as his Honour then was) explained the width of an inquiry under s 46 in Doomadgee v Clements:

“The purpose of section 46(1)(c) is self explanatory.  The purpose of the other two paragraphs of the subsection is to empower the coroner to address the topic specified in them with a view to exposing some failing, deficiency or wrong and or suggesting measures which may be implemented for the public benefit.  Section 46(1), being remedial in nature, should be construed liberally.”

“Public health or safety” and “the administration of justice” are also broad subject matters with indefinite boundaries…”.[21]

  1. Of some significance is that each of sections 45 and 46 contains a provision that the Coroner “must not include” in the findings or comments any statement that a person is or maybe guilty of an offence or civilly liable for something.[22] 

The Decision

  1. As I have mentioned, the Decision of the first respondent is contained in a five page document. I will not repeat the whole of it. Her Honour determined to receive the evidence of Mr Smyth.
  1. It is plain from the Coroner’s decision that she was alive to the criticisms that the applicant makes of Mr Smyth’s evidence and acutely conscious of the need for care in assessing Mr Smyth’s evidence. The Decision itself was a response to objections made by the applicant and other parties. Her Honour expressly acknowledged that some of his evidence “did seem to extend beyond his experience, for instance in relation to mine design”.
  1. It would seem that the Coroner received Mr Smyth’s evidence for three fundamental reasons. Firstly he had obvious broad practical experience and competency training. Secondly his evidence was useful in that it “described with practical knowledge many aspects of the operation being undertaken on the day in question, the deputy’s roles and responsibilities and how they are carried out and the usual work practices in this mode of mining”. Thirdly, she considered that Mr Smyth’s evidence reflected the investigation carried out by the ISHR team and the relevant views of his Union (the fifth respondent). The investigation was one performed pursuant to the statutory responsibilities of the representatives. Her Honour held that both the investigation and the relevant view of the Union were “important information for a Coroner to consider in the appropriate way”.
  1. Her Honour made plain that evidence from Mr Smyth in the nature of opinion evidence that fell outside “the limits of his practical experience and competency training… would not only be of limited weight but could not be relied upon as expert opinion”.
  1. At this stage of course the inquiry is continuing. What weight the Coroner will give to the testimony of Mr Smyth is unknown. It is clear from her Decision that she is very much alive to the limitations inherent in its receipt.
  1. Whilst the applicant has sought a ruling on the admissibility of evidence in my view it is doubtful that the ruling in question should be seen as such – it was a Decision by the Coroner on whether she would inform herself of the matters on which Mr Smyth wished to speak or was asked to speak. The legislation required of her no more than that and the wording of her response suggests that she was not attempting to determine an evidential point as she would in a trial.
  1. With that characterisation in mind criticisms that the applicant makes of the wording and approach of the Coroner are of little assistance. For example one criticism that the applicant pressed strongly was that the coroner accepted as an area of defined expertise “underground coal mining” which was, the applicant submits, a field of expertise not known to the law. Her Honour referred to the phrase in the following passage:

“In the present case the inquiry is into an underground coal mining accident. Determining the nature and cause of the accident in such a setting requires some understanding of the process and details of underground coal mining. Previous experience or study in the underground coal industry is not the purview of inexperienced persons outside of the industry. Consequently the assistance of a witness with the experience and qualifications of Mr Smyth for instance is necessary in order to form a judgement of the matters required to be determined in this matter.

I am satisfied that the extent of the practical experience, competencies held and training undertaken by Mr Smyth in his 20 year career is sufficient to qualify him as an expert within the confines of this inquiry (that is relating to underground coal mining of the type relevant to this matter).”

  1. I do not think the criticism justified. “Underground coal mining” is an activity with which most judicial officers will have little or no personal knowledge. It takes place in an environment foreign to common experience. The subject matter of the inquiry includes an understanding of the risks inherent in such activity in such an environment and how they can best be met. The test postulated for the receipt of opinion evidence by Dixon CJ in Clark v Ryan[23] that “inexperienced persons would be unlikely to prove capable of forming a correct judgment upon [the subject matter of the inquiry] without [the assistance provided by the opinion of a witness possessing peculiar skill]” is, in my view, sufficiently satisfied.  Someone of Mr Smyth’s background, involved in such activity and in such an environment for over 20 years, will almost certainly have knowledge and expertise of assistance to the Coroner in forming a correct judgment.
  1. A secondary consideration is that even in trial situations it is apparent that courts should not be too quick to narrow the acceptable categories of specialised knowledge - for example see the comments of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd.[24]  Where, as here, the enquiry is far broader than in any trial there seems to me to be good reason to exercise even greater restraint in limiting what is an acceptable field of specialised knowledge. 

The Merits of the Applicant’s Case

  1. I commence with the observation that there is no claim that the opinions expressed by Mr Smyth are not relevant to the issues before the Coroner. Indeed I am told that numerous experts have been called, allegedly better qualified than Mr Smyth, on the same topics and it is submitted that it is their evidence that should be received.
  1. In my view this is of considerable significance. If evidence is relevant then it is prima facie admissible in the inquiry. Relevant evidence is excluded only by the application of the rules of evidence, those rules which do not constrain the Coroner here.
  1. The fallacy in the submission made by the applicant lies in its fundamental contention that opinion evidence that would not be admissible in a court of law cannot, by reason of that inadmissibility, be logically probative of any matter that the Coroner must decide. The legislative direction that the Coroners Court is not bound by the rules of evidence and may inform itself “in any way it considers appropriate” on its face precludes any such argument.
  1. Nor is it difficult to see why, in the instant case, evidence from someone with Mr Smyth’s background and training may be of assistance to the Coroner. Let us say that an “expert” advances a proposition that some change ought to be made to the way in which underground mining is carried out. What if Mr Smyth responds that, by reason of his experience he could anticipate that such a change would not work for reasons that he states. He is expressing an opinion. He may not have the expertise of the alleged expert. But he brings to the task a different perspective and one which deserves respect.
  1. And what if the situation be that Mr Smyth has advanced some proposition that in his opinion will meet a risk to health and safety exposed in the circumstances of the death the subject of the inquiry? He may not have the expertise that would permit a court of law to receive his opinion. But to advance the opinion, based as it would be, presumably, on his practical background, might throw open for discussion a line of enquiry that might otherwise have been ignored by the “experts”. The Coroner, or interested parties, might be prompted to ask questions that would not otherwise occur to them. It may be that after closer examination the Coroner would reject any such suggestion. She would be obliged to do so if the only evidence supporting the proposition was that of a lay person without any special knowledge on the subject, or if such evidence was contradicted by unanimous, strong and appropriately qualified opinion. But until all the evidence is in and weighed what is of assistance and what is not cannot be known.
  1. The relevant question for me to decide is whether I am persuaded that by no logical process could the evidence that Mr Smyth has given be probative of any issue before the Coroner. It seems to me that by reason of his 20 years experience in underground coal mining, 14 of which have involved statutory responsibilities that required consideration of mine safety and all its aspects, Mr Smyth may provide evidence of a practical nature detailing what has or has not been successfully adopted in his experience in the past, why those measures have succeeded or failed, why in his opinion alternatives that have been proposed by others or that are proposed by him might or might not be useful in meeting the risks to health and safety which have bought about the death in this instance, and give evidence touching on the practicality and utility of the opinions expressed by others, purportedly better qualified. In my view the Coroner was well justified in thinking that a man of such experience and competency might well have information which the Coroner could usefully use to inform herself on the issues that she was required to consider in the inquiry.
  1. I make no finding as to how probative his opinions might be. I lack the knowledge of the case materials to do so. It is of course trite to say that evidence can be relevant and logically probative in theory but have limited probative value in fact. For example the “Propensity Evidence” under consideration in Doomadgee was said to have a probative value that was “marginal, at best”.[25]  Nonetheless the evidence was relevant, potentially logically probative of a fact to be determined and the Coroner was held to be entitled to receive it.

The Lack of Authority

  1. That is my reaction to the argument presented. I turn then to the authorities. No case was cited to me in which it has been held that the opinion of a lay person, one not holding the qualifications that a court would require before receiving that opinion, was required to be excluded in a coronial inquiry, or any inquiry governed by a provision such as s 37 of the Coroners Act
  1. Indeed the only cases cited to me where the Court had directed the Coroner not to receive evidence were cases where it could be said that the proposed evidence was not relevant to, or within the scope of, the inquiry being conducted. Reference was made to Queensland Fire and Rescue Authority v Hall[26] where Lee J directed that the Coroner could inquire into the training and experience of certain members of a rural fire brigade but only “if the Coroner finds that the fire which ultimately damaged the…property was lit by members of the fire brigade”.  He ruled that if that finding was not made then those matters would be irrelevant and outside the scope of the inquiry.
  1. The absence of citation of any authority in which a superior court has directed a coroner not to receive evidence which admittedly falls within the legitimate scope of the enquiry but which would, or may, be excluded by application of rules used in common law courts to exclude the receipt of evidence, save and unless certain conditions are satisfied, suggests that there is no such principle. It is at least legitimate to reflect that there may be good reason for that lack of precedent.

Bias

  1. It was submitted that Mr Smyth was biased and that was a further ground for rejecting his evidence, or that in combination with the complaints about his lack of expertise the two grounds together justified rejection of his evidence.
  1. It seems plain that Mr Smyth is at least aligned with the fifth respondent. The applicant submits that as well he represented the interests of two material witnesses – Mr Lucas, who drove the shuttle car involved in the accident, and Mr Smith, the only eye-witness to the accident.
  1. I am content to assume for the purposes of argument, without deciding, that he is actively biased.
  1. The bias of a witness is not, in my opinion, a ground for the rejection of that witnesses’ testimony, even though the witness be advanced as an expert offering opinion evidence. That is so even in a trial situation. Austin J explained the law in the following terms in Australian Securities and Investments Commission v Rich and Another,[27] a decision concerning the receipt of forensic accounting evidence:

“[334] According to the preponderance of Australian authority, the fact that an expert is aligned to the party engaging him or her, and biased or not independent, is not a bar to the admissibility of the expert's opinion evidence, though it may go to the weight of the evidence[28]… The reason, as explained by Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, is that the evidence of the witness can be tested in adversarial proceedings, and so the possibility that the witness may be biased does not infect the impartiality of the Court. The ability of the Court to give biased evidence little or no weight ensures that there is no inherent unfairness to the other party in admission of the evidence. Indeed, the presence of a risk of bias (unconscious or otherwise) is not of itself a reason to exclude evidence of an expert either on grounds of admissibility or in the exercise of discretion…”[29]

  1. The parties had ample opportunity to test Mr Smyth’s evidence for partiality. The Coroner has made plain that the weight that she might give to Mr Smyth’s testimony is far from determined. She is very much aware that Mr Smyth may be representing the views of the fifth respondent – she saw that as a ground for inclusion not exclusion of his evidence. I see no error in that approach.
  1. Whilst the applicant’s submissions are plainly relevant to the weight to be given to Mr Smyth’s views, they do not afford a ground for a rejection of his evidence. In my view this complaint, whether considered singly or in conjunction with the complaints based on the receipt of opinion evidence, provides no reason for the Coroner to reject Mr Smyth’s evidence.

The Coroner’s Decision “Indistinctly Particularised Portions of Mr Smyth’s Evidence Interpreted to Be Inadmissible”

  1. The third ground of complaint too should be rejected. It amounts to a criticism of the wording of the Decision under review. Given my characterisation of the Decision mentioned earlier[30] the criticism is misplaced.  I am conscious also of the need not to be “over zealous” in my approach to judicial review of the way in which the Coroner has sought to express her reasons.[31]

Discretionary Considerations & the Legal Test

  1. I can detect no error in the Coroner’s Decision. However, even if I had been persuaded that the Decision to receive the evidence was of doubtful validity, I would have refused the application on discretionary grounds.
  1. In my view an application of this type faces at least four significant obstacles.
  1. First, the impetus to intervene by way of review is considerably lessened in a case where, as here, the Coroner will not determine the rights or liabilities of the applicant or any party to the coronial inquiry. As I have mentioned her Honour is expressly enjoined by the legislation from doing so.[32] 
  1. The nature of the grievance claimed here highlights the point. It is contended that that if this application is not acceded to then the applicant, who was the deceased’s employer, will need to address the whole of the evidence given by Mr Smyth, even though parts of it are in the nature of opinion evidence which he may not be qualified to give and which the Coroner ought to ignore. Given that by this application close and detailed consideration has been given to every word of his evidence the added burden thereby placed on the applicant by a refusal of the application does not seem, with respect, to be so great.
  1. This grievance may be contrasted with the important public function that the Coroner is required to discharge of establishing the causes and circumstances of a death and exploring ways that deaths in the like circumstances can be avoided in future. While this court will be astute to protect the rights of citizens affected by the inappropriate use of administrative powers here no significant right is even potentially adversely affected.
  1. An alternative argument that the applicant advances is that the danger to the applicant is that a finding might be made, adverse to its interests, based solely on an opinion expressed by Mr Smyth for which he is not qualified within the common law test and in respect of which no form of redress is open to the applicant. In my view that submission is wrong.  The Coroner is required to reduce her findings and comments to writing and deliver them to certain named parties including the applicant.[33]  Her findings can be set aside.[34]  The grounds on which a District Court may set aside a finding include if there was no evidence to support it or if the finding could not “be reasonably supported by the evidence”.[35]  Those provisions seem plainly wide enough to offer the protection the applicant claims is lacking. If the only evidence to support a finding was the unqualified opinion of a lay person, unsupported by any other evidence, then the applicant or any other interested person dissatisfied with the finding has the right to apply to have it set aside. 
  1. Second, the very width of the evidence gathering power that Parliament has entrusted to a coroner will make it a rare case indeed where this Court should interfere with the gathering of that evidence. The inappropriateness of doing so was explained by Muir J in Doomadgee, in a passage which seems to have been ignored in the present application:

“[36]The scope and indefinite boundaries of a coroner’s roles under sections 45 and 46, generally make it inappropriate to interfere with the gathering of evidence by a coroner, at least with the exercise in which the coroner is engaged is within the ambit of either section 45 or section 46.  Normally, it will be inappropriate also to seek from a coroner a ruling that one piece of evidence or another is inadmissible or irrelevant as if the coroner were conducting a civil or criminal trial.  Questions of judgment which require the exercise of common sense and restraint are involved and reasonable minds may well differ as to what evidence ought to be received…”[36]

  1. Third, the nature of the Decision in question is of a type that the courts have been traditionally reluctant to interfere with.[37]  It is an interlocutory ruling and one that evidence should be received not rejected.  In Coco v Shaw[38] McPherson SPJ (as His Honour then was) lamented, in respect of committal hearings, “the growing tendency to seek rulings on matters of procedure and evidence, its form and admissibility” from this Court.  His Honour went on:

“While not doubting that the jurisdiction exists and may be exercised, occasions calling for the interposition of this Court in proceedings being conducted within the jurisdictional limits of another tribunal appointed by Parliament must necessarily be relatively infrequent.”[39]

  1. McPherson SPJ there doubted that a committing magistrate was required to rule on the admissibility of evidence. But a committing Magistrate must be satisfied that the defendant has a case to answer and so some regard must be had to the admissibility of evidence. Here the point can be made even more strongly where the rules of evidence do not apply.
  1. The last two considerations have led to what Kirby P (as his Honour then was) termed in Cain v Glass (No. 2)[40]the “basic rule of restraint”.  His Honour spoke in the context of intervening in the process of committing for trial but his comments have as much or greater application to a review of an evidential ruling in a coronial inquiry as is evident from the reasons given for that restraint:

“… (1) the undesirability of discontinuity, disruption or delay in committal proceedings; (2) the superior knowledge of the committing magistrate concerning the whole facts and circumstances of the case under his consideration; (3) the undesirability of the beneficial remedies of declaration or the prerogative writs being issued to justify transfer to the superior courts of matters committed by law to the magistracy; (4)  the cost, much of it borne by the public purse, of proliferating litigation, especially at an interlocutory stage, which diverts attention from the real substance of the accusations brought and concentrates instead upon peripheral and often procedural matters; (5) the undue advantage that may be given to rich and powerful defendants to interrupt and delay the operation of the criminal law in a way not so readily available to ordinary citizens; ….”

  1. Fourth, the test that the applicant needs to satisfy to have this court interfere is a demanding one. The Decision must be one that no reasonable decision maker could reach. In Atkinson v Morrow [2005] QSC 92, Mullins J was asked to direct that a Coroner not receive into evidence a statement by the acting chief superintendent of the Police concerning Queensland Police Service policy and procedural issues associated with the situation that confronted the police officers in relation to their dealings with the person whose death was the subject of the inquiry.  Her Honour declined to so rule. The test that her Honour applied is reflected in the following conclusion:

“I am not satisfied that it can be unreservedly concluded at this stage that the evidence of [the acting Chief Superintendent] has no relevance whatsoever for the purpose of assisting and establishing how Mr O’Sullivan died or the circumstances of his death.”[41]

  1. Her Honour’s Decision was confirmed on appeal, McPherson JA specifically referring, with apparent approval, to the passage that I have quoted.[42]
  1. I have only limited knowledge of the issues before the Coroner. Her Honour is plainly in a far better position than I to determine the relevance of the evidence that Mr Smyth gives and the probative weight that it deserves. Muir J’s cautionary comment that I have quoted above[43] has application here. In my view the case would need to be a very clear one to merit interference.
  1. In my view each of these considerations is against intervening and no strong ground is shown for doing so, even assuming an incorrect determination by the Coroner. This case is not one of those rare cases where a court should overcome its prima facie reluctance and overturn what is no more than an interlocutory decision determining no one’s rights and so interfere in the evidence gathering process of a Coroner entrusted with the duty of discharging an important public function of wide scope and “indefinite boundaries”.

Jurisdiction

  1. The fifth respondent disputed that this Court had jurisdiction to entertain the application. Given my determination I do not intend to examine the issue at any great length.
  1. As the applicant points out superior courts have long exercised a supervisory jurisdiction over the Coroner’s inquiry. Jordan CJ in Ex Parte Rutledge[44] saw no need to cite any authority for the following:

“When a coronial inquiry has been held into a death which has occurred in such circumstances as to give rise to suspicion, a superior court has a supervisory jurisdiction over the inquisition, which is exercisable if the court is satisfied that the person acting as coroner had no jurisdiction, or if the coroner misconducted himself, or for defects apparent on the face of the inquisition, or if it appears that insufficient inquiry was made, or that since the inquiry, facts have come to light which make a further coronial inquiry desirable…”

  1. Applications have been made pursuant to the Judicial Review Act to exercise that supervisory role on several occasions – Queensland Fire and Rescue Authority v Hall,[45]Doomadgee v Clements,[46] and Atkinson v Morrow[47] are each examples.  Doomadgee concerned the Act with which I am concerned, the Coroners Act
  1. Only in Queensland Fire and Rescue Authority v Hall[48] was there any examination of the foundation of the jurisdiction of the Court but that was a case decided under the Coroners Act 1958 (Qld), the material provisions of which were different to those applicable here.
  1. The fact that jurisdiction has been assumed in the Court of Appeal is of course a significant consideration.
  1. The applicant’s response to the challenge to the jurisdiction was to amend its application so as to seek relief pursuant to s 43 of the Judicial Review Act as opposed to one brought pursuant to s 20 of that Act. 
  1. Section 41(2) of the Judicial Review Act provides:

“If, before the commencement of this Act, the Court had jurisdiction to grant any relief or remedy by way of a writ of mandamus, prohibition or certiorari, the Court continues to have the jurisdiction to grant the relief or remedy, but must grant the relief or remedy by making an order, the relief or remedy under which is in the nature of, and to the same effect as, the relief or remedy that could, but for subsection 1, have been granted by way of such writ.”

  1. There is no question that the Court had jurisdiction to make prerogative orders controlling Coroners and the exercise of their inquisitorial functions before the commencement of the Judicial Review Act.  This jurisdiction is plainly preserved by s 41(2).  I am satisfied that I have the necessary jurisdiction to entertain the application given that relief is now sought by way of an application for review under s 43.

Conclusion

  1. The application is dismissed. I will hear the parties as to the appropriate order as to costs.

Footnotes

[1] A “local coroner” by virtue of s. 82 Coroners Act 2003 (Qld).

[2] See paragraph 5.3 of the applicant’s written submission.

[3] (1960) 103 CLR 486 at 491

[4] (1984) 15 A Crim R 364 at 366

[5] (2001) 52 NSWLR 705

[6] I have accepted the invitation not to become involved in the detail of the evidence but nonetheless took the opportunity of briefly examining the transcript provided as Annexure D. Mr Smyth’s evidence includes many statements that are not in the nature of opinion evidence but rather statements based on his experience. It includes statements of opinion that might well fall within areas of knowledge that an observant coal miner with an interest and training in aspects of mine safety might garner over 20 years and in respect of which the Coroner would be unlikely to have personal experience. At least some of the passages to which objection is taken fall into these categories.

[7] Transcript 25 June 2008 at p84/55-85/1.

[8] Transcript 25 June 2008 at p38/55-39/1.

[9] See sections 109 -121 of the Coal Mining Safety and Health Act 1999 (Qld).

[10] Transcript 25 June 2008 at p39/10.

[11] T16.

[12] s 118(1) of the Coal Mining Safety and Health Act 1999 (Qld).

[13] Transcript 25 June 2008 at p83/30.

[14] Transcript 25 June 2008 at p83/50.

[15] T16-55/40 (16 October 2008).

[16] As Toohey J remarked “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.”

[17] (1990) 170 CLR 596.

[18] (1990) 170 CLR 596 at 616.

[19] [2006] 2 Qd R 352.

[20] Atkinson v Morrow [2005] QSC 92; Queensland Fire and Rescue Authority v Hall [1998] 2 Qd R 162 at 170; Doomadgee v Clements [2006] 2 Qd R 352 at 360 [28].

[21] [2006] 2 Qd R 352 at 360, paras [31] and [32] – footnotes omitted.

[22] See subsections 45(5) and 46(3) Coroners Act 2003 (Qld).

[23] (1960) 103 CLR 486 at 491.

[24] [2001] NSWSC 123 at [153]; endorsed by Austin J in Australian Securities And Investments Commission v Rich and Another [2005] NSWSC 149 at [273].

[25] [2006] 2 Qd R 352 at 364 para [52].

[26] [1998] 2 Qd R 162.

[27] [2005] NSWSC 149 at [334]

[28] Austin J cited in support: Heydon, JD, Cross on Evidence (looseleaf), at [29080]; Odgers, S, Uniform Evidence Law (6th ed, 2004), at [1.3.4340]; Ritchie's Supreme Court Practice at [36.13C.4]; Heydon, JD, "Comments on May LJ's Paper", Supreme Court of New South Wales Annual Conference, 22 August 2003, pp 6-8 and 10-12; and generally, Sperling, HD, "Expert Evidence: the Problem of Bias and Other Things", Supreme Court of New South Wales Annual Conference, 3 September 1999; Spigelman, JJ, "Forensic Accounting in an Adversary System" (2003) 41 Law Society Journal 60.

[29] Again I have omitted the extensive citation of authority:  Li v The Queen (2003) 139 ACrimR 281 per Ipp JA, Whealy and Howie JJ; see also SmithKline Beecham (Aust) Pty Ltd v Chipman (2003) 131 FCR 500 per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 144 per Crennan J.

[30] See [31] above.

[31] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 cited by Muir J in Doomadgee at [47].

[32] Subsections 45(5) and 46(3) Coroners Act 2003 (Qld)

[33] See subsection 45(4) and 46(2).

[34] s 50 Coroners Act 2003 (Qld).

[35] Subsection 50(5)(c) and (d) Coroners Act 2003 (Qld).

[36] [2006] 2 Qd R 352 at [36].

[37] Cain v Glass (No. 2) (1985) 3 NSWLR 230 at 235; Coco v Shaw [1994] 1 Qd R 469 at 485; Walker v Corporate Affairs Commission (1988) 13 NSWLR 550 at 556-557; Doomadgee v Clements [2006] 2 Qd R 352 at p 361 at [37].

[38] (1994) 1 Qd R 469.

[39] See p 485.

[40] (1985) 3 NSWLR 230 at 235.

[41] [2005] QSC 92 at [33].

[42] [2006] 1 Qd R 397 at 404.

[43] See [58].

[44] (1943) 60 WN (NSW) 184.

[45] [1998] 2 Qd R 162.

[46] [2006] 2 Qd R 352.

[47] [2005] QSC 92 and on appeal [2006] 1 Qd R 397.

[48] Ibid above n 45.

Close

Editorial Notes

  • Published Case Name:

    Walter Mining Pty Ltd v Coroner Hennessey & Ors

  • Shortened Case Name:

    Walter Mining Pty Ltd v Coroner Hennessey

  • Reported Citation:

    [2010] 1 Qd R 593

  • MNC:

    [2009] QSC 102

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    07 May 2009

Litigation History

Event Citation or File Date Notes
Primary Judgment [2010] 1 Qd R 593 07 May 2009 -

Appeal Status

No Status