Gentner v Barnes[2009] QDC 377

DISTRICT COURT OF QUEENSLAND

Delivered ex tempore

1. [1]
   On the 30^th of September 2009, I ordered that an inquest be held into the death of Adrian Elliott Jones who died in a motor vehicle accident at Yandina on the 8th of April 2006.  The order was made pursuant to s 30(7) of the Coroner's Act 2003 (Qld) (the Act).  The applicant had applied to the State Coroner to hold an inquest pursuant to s 30(1) of the Act and the State Coroner decided not to hold an inquest.  Section 30(5) provides that if the State Coroner refuses an application the applicant can apply to this Court which, pursuant to subsection (7), has a discretion to order that an inquest be held "if satisfied it is in the public interest to hold the inquest".
2. [2]
   In making the order I did on the 30^th of September 2009, I allowed the parties liberty to apply on the basis that the applicant was considering whether or not to apply for costs.  I did not place any time limit on liberty to apply, and no question as to whether this Court is functus officio is raised now.  The applicant has applied for costs and the application was filed on his behalf on the 11^th of November 2009.
3. [3]
   I have been assisted by written submissions from counsel for the applicant, Mr Courtney; for Mr Barnes, Mr Horneman-Wren, instructed by Crown Law; and Mr McLeod, appearing on behalf of the Attorney-General as amicus curiae.  I have read and considered those helpful submissions.
4. [4]
   There is no dispute that this Court has jurisdiction to order costs.  There is no power as such in the Coroner's Act 2003 Qld) but, by a combination of s 8 of the District Court Act 1967 (Qld) and rules 3(1) and 681 of the Uniform Civil Procedure Rules 1999 (Qld), the Court has a discretionary power to award costs.
5. [5]
   In his written submission, Mr Courtney properly concedes that there is a long line of authority to the effect that costs will not be ordered against a Magistrate or Tribunal unless there are exceptional circumstances.  These authorities were gathered together and analysed by Mullins J in Kingham v Yorkston [2002] 2 Qd R 595.  Her Honour held in that case (involving a successful jurisdictional challenge to a Magistrate sitting as a referee of the Small Claims Tribunal}, after considering the authorities, that a costs order should not be made unless the conduct of the Magistrate could be described as "perverse or showing gross ignorance or showing flagrant disregard of elementary provisions". 
6. [6]
   Mr Courtney submits that, in this case, the decision of Mr Barnes not to hold an inquest was an administrative decision and should therefore not be considered as a decision of a Court or a Tribunal.  As I observed during argument, I'm not entirely sure that a decision made in these circumstances is an administrative decision, but for the purposes of the argument, I'm prepared to assume that it is.
7. [7]
   It is accepted by Mr Horneman-Wren on behalf of Mr Barnes that the powers conferred upon the State Coroner under s 70(1) of the Coroner's Act 2003 (Qld) are of an administrative character and are not performed by him constituting a Coroner's Court under part 4, division 1 of the Act.  As Mr Horneman-Wren observes, the question is whether or not the State Coroner exercising his administrative duties under the Act should be subject to the same consideration on costs applicable to the exercise by him of his judicial function.
8. [8]
   Mr Horneman-Wren has referred me to s 81 of the Coroner's Act 2003 (Qld), not in support of his argument but to demonstrate that the normal protection and immunity is extended to a Coroner under the Act, and subsection 4 defines "function", referred to in subsection 1 of s 88, as including an administrative function.
9. [9]
   Mr Horneman-Wren has referred me to a West Australian decision of Thorne v McGuire SM, Perth Coroner [1999] WASC 137.  In that case, there had been an administrative decision made under the Coroner's Act 1996 (WA) by Mr McGuire to release the body of a deceased person to one relative, which decision was overturned by the Supreme Court (by way of making absolute an order nisi for a writ of certiorari and quashing the decision) on application of another relative.  The Judge gave the parties liberty to apply, and this decision of Heenan J of the West Australian Supreme Court concerned applications for costs made by the relatives under provisions of the Act similar to our Appeal Costs Fund Act 1973 (Qld).
10. [10]
    The relevant passage in Heenan J’s decision is at paragraph 9.  It is clear that his Honour was not considering the argument made here by Mr Courtney in relation to administrative decisions, and that he proceeded on an assumption that the same protections that are afforded to a Magistrate or a Tribunal extend to a Magistrate or Tribunal, or in that case the Coroner, exercising administrative functions.  By reference to the earlier decision in which the order nisi for the writ of certiorari had been made absolute, a decision of Parker J, his Honour said:  

"However, although Parker J found that there had been jurisdictional error on the part of the Coroner, there was no suggestion of misconduct, serious incompetence or error of a nature calling for strong disapproval or censure of the Coroner by this Court."

11. [11]
    I agree with Mr Horneman-Wren that it would be most unusual for a judicial officer in the position of Mr Barnes, exercising administrative functions under the Act, to be not afforded the same protection at common law in respect of administrative decisions as for decisions made in his capacity as a judicial officer.
12. [12]
    In this case, there is no conduct by Mr Barnes that would in any way qualify as perversity or gross ignorance or flagrant disregard of elementary provisions of the Act.  Indeed, as I perceive the test pursuant to s 30(7), it was not even necessary that I find that his decision was erroneous.  On the basis of my analysis of the evidence, and taking into account the guidelines and other matters referred to in the judgment, I came to a different view to that of Mr Barnes.
13. [13]
    In those circumstances, I'm satisfied that the ordinary protections set out in decisions such as Kingham v Yorkston extend to the State Coroner exercising administrative functions under the Coroner's Act 2003 (Qld), and it would follow therefore that the application is dismissed.