Gentner v Callaghan[2012] QDC 238

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   By originating application filed in this Court on 16 September 2011, the applicant seeks the setting aside of a finding of the first respondent, as delivered on 24 August 2011, in relation to an inquest conducting into the death of Adrian Elliott Jones (the applicant’s stepson) on 8 April 2006. In broad terms, it is not contentious that the deceased died from injuries suffered when he lost control of his motorcycle, on the Yandina Bli Bli Road, at about 8.00am on 8 April 2006, with the result that he came into contact with a vehicle travelling in the opposite direction. 

3. [3]
   These are my reasons for orders that were made on 17 August 2012 upon the further application made by the applicant and filed on 3 August 2012, in effect seeking to be allowed to rely upon some additional material for the purpose of his application, as far as it seeks the setting aside of a finding of the Coroner on the basis of this Court being satisfied that “new evidence casts doubt on the finding”.

4. [4]
   That issue arose in the context of the direction of the Court, given on 18 November 2011 and requiring that:

“The applicant, by 22 December 2011, file and serve on the respondents and the Attorney General details of which finding or findings made by Coroner Callaghan he seeks to challenge together with the reasonable reasons for such challenge as fall within the requirements of s 50(5) of the Coroners Act 2003, together with any further affidavit material on which it is intended to rely on the hearing of this application.”^[1]

At that time there were also directions made for the consequential filing of outlines of submission and any material in response, by each of the respondents and the Attorney General.^[2]

5. [5]
   Then and when the matter next came before the Court on 31 May 2012, for further directions, objection was taken by the legal representatives for the respondents that notwithstanding the abovementioned direction, the applicant had filed and served three further affidavits of Geid Silveria De Oliveira, Allan John De Graaf and Glen Reginald Blyth.^[3] Directions were made in relation to the filing of the application which is the subject of these reasons, for hearing on 17 August 2011 and the substantive hearing of the originating application was listed for hearing in this Court on 5 and 6 November 2012. Leave was also then given for the applicant to issue a subpoena to the Commissioner of Police and the expectation was that the applicant identify, by his further application, all of the additional material he sought to rely upon. 

6. [6]
   These expectations were subsequently re-enforced by further directions issued on the papers, on 18 July 2012. This included directions as to a timetable for the filing of the further application and an outline of submissions to support it and confirming that the purpose of the listing for 17 August 2012, was to determine whether the applicant would be permitted to rely upon additional material not filed and served in accordance with the direction made on 18 November 2011.

7. [7]
   It was common ground on this application that, in effect, the applicant was seeking a form of indulgence and that the Court was being invited to exercise a discretion pursuant to rule 367 of the Uniform Civil Procedure Rules (“UCPR”), to allow the reliance upon the additional evidence and any consequential enlargement of the scope of the application to be considered in November 2012. 

8. [8]
   On the hearing of the application the respondents remained opposed to a favourable exercise of that discretion.

Some Context

9. [9]
   It is convenient to set out some essential context in which this application falls to be decided.

10. [10]
    The applicant was one of a number of parties given leave to appear at the inquest and the primary issue which had been agitated by the applicant, was the prospect of debris being left on the roadway by drilling operations that had been conducted there shortly before the accident (pursuant to the combined efforts of the second and third respondents) and that this debris contributed to the deceased, his step-son, losing control of his motorcycle.

11. [11]
    In fact, the inquest was only held as a result of this issue being identified as the focus of a successful application made to this Court for an order pursuant to s 30 of the Coroners Act, that the inquest be held.^[4] 

12. [12]
    The originating application appeals to the power provided to this court in s 50(5) of the Coroners Act as follows:

“(5) The District Court may set aside a finding if satisfied that –

(a) new evidence casts doubt on the finding; or

….

4. (d)
   the finding could not be reasonably supported by the evidence.”

13. [13]
    Here the finding in issue is that relating to the exercise of the Coroner’s function of making findings pursuant to s 45(2)(e) of the Coroners Act and which requires:

“(2)  A coroner who is investigating a death or suspected death must, if possible, find—

…

5. (e)
   what caused the person to die.”

14. [14]
    The Coroner’s findings in this case were not stated in any separate or formal manner and are to be gleaned from the written reasons published on 24 August 2011 and entitled “Findings of Inquest”. First, it is convenient to go to the following paragraphs in that document:

“Conclusion:

87. Given all of the evidence I am of the view that the accident was caused by the deceased losing control of his motorcycle such as he travelled into the path of the vehicle driven by Michael Miley Senior. 

88. There is no evidence that the deceased was travelling in excess of the 80 kilometres limit.  In fact there is no evidence of what speed the deceased was travelling at.  The Yandina Bli Bli Road is a narrow country road with a shoulder that is unsealed.  Debris from Burtons Road is tracked onto the Yandina Bli Bli Road.  The deceased at the time of the accident was approaching the intersection of Burtons Road with the Yandina Bli Bli Road around a bend. 

89. The deceased, an inexperienced rider of motorcycles of the size that he was riding on this day, lost control of his motorcycle and travelled over into the path of Michael Miley Senior.”

15. [15]
    It can be noted that the statements as to the deceased losing control of his motorcycle and travelling into the path of an oncoming vehicle are, to an extent, statements of conclusion or result, in that they beg the questions as to how and why such loss of control occurred. It is in that way that the issue critically raised by the applicant is to be viewed as a potential cause or contribution to these events and therefore to the death.

16. [16]
    It may also be the implication from the passage taken from the Coroner’s reasons and set out above, that she found that the inexperience of the deceased as a rider of the size of motorcycle he was riding and the possibility of debris on the road as tracked from Burtons Road, were contributing factors or causes of the death, but this is far from clear. However and apart from excluding any evidence of any responsibility of the driver of the other vehicle^[5], no other potential contributing factors or causes are expressly excluded.

17. [17]
    Accordingly, reference to an earlier passage in the findings document, is required in order to understand how the issue agitated by the applicant and the reason identified in Gentner & Barnes^[6] for holding the inquest, was dealt with:

“[76] Both Golder Associates and Drillsure owed a duty of care to road uses to conduct their work in as safe a manner as the exercise of reasonable care could make it.

[77] Michael Dobe, Peter Hooper and Anthony Steensen all gave evidence that at the conclusion of the drilling on the day prior to the accident a cleanup had occurred.  I found all of these three witnesses to be credible witnesses and I accept that a cleanup did occur at the conclusion of drilling on 7 April 2006. 

[78] Any evidence before this inquest that debris had been on the road as a result of the drilling was a result of comments made by the Jakemans to other people in the area namely Caleb Fitzpatrick and to the private investigator employed by the family of the deceased.  I am of the opinion that the Jakemans’s conversation contaminated the evidence of Caleb Fitzpatrick.  Mr Jakeman completely resiled from his comments with regard to debris on the road in the witness box and apologised for making those statements.  I found at the time of her giving evidence Ms Jakeman’s evidence to be unreliable.  It is unfortunate (perhaps an understatement) that the Jakemans involved themselves in the investigation of this death because that has clearly caused distress to a number of people.              

[79]   There is no evidence that could be relied upon to establish that there was any debris left on the road as a result of the drilling that may have caused this accident.  In fact I accept that the roadway in the vicinity of the intersection of Burtons Road was left cleaner after the drilling than it was before in light of Mr Steensen’s evidence of sweeping the gravel off the road which had been tracked across the intersection from Burtons Road.” 

18. [18]
    It is, of course, necessary to note some provisions of the Coroners Act and which provide for the control of the conduct of an inquest by the Coroner.  An inquest, of course, is a formal process conducted in a judicial manner as part of the exercise of a Coroner’s duty or function of investigating a death and in this regard it can be noted that the findings required of a Coroner pursuant to s 45(2), are required of “a Coroner who investigating a death or suspected death”.  Further, the circumstances in which a Coroner investigating a death must hold an inquest are regulated by s 27 of the Coroners Act.  Other provisions of the Coroners Act which regulate the process of holding an inquest by a Coroner which may be noted for present purposes include s 34, which relates to the holding of a pre-inquest conference and in part provides:

“(1) The Coroners Court investigating a death may hold a conference before holding an inquest –

 (a) to decide –

1. (i)
   what issues are to be investigated at the inquest; or

2. (ii)
   who may appear at the inquest; or

3. (iii)
   which witnesses will be required at the inquest; or

4. (iv)
   what evidence will be required at the inquest…”

Also, s 36 regulates the right of persons to appear at the inquest and to ‘examine witnesses’ (which is defined to include cross-examine), and make submissions at the inquest.  Apart from a person designated to assist the Coroner and the Attorney General, the Coroner may allow any person who is considered to have “a sufficient interest in the inquest” leave to “appear, examine witnesses, and make submissions, at an inquest” and may also such a person to be represented by a lawyer.

19. [19]
    Importantly s 37 provides:

“37 Evidence

3. (1)
   The Coroners Court is not bound by the Rules of Evidence, but may inform itself in any way it considers appropriate.

3. (2)
   The Coroners Court may require a person to produce a document to the Court before the start of an inquest.

3. (3)
   The Coroners Court may inspect anything produced at an inquest, copy it, or keep it for a reasonable period.

3. (4)
   The Coroners Court may do any of the following –

1. (a)
   order a person to attend an inquest, until excused by the Court –

1. (i)
   to give evidence as a witness; or

1. (ii)
   to produce something;

2. (b)
   order a person called as a witness at an inquest –

1. (i)
   to take an oath; or

2. (ii)
   to answer a question….”^[7]

20. [20]
    The level of control that a Coroner has over the conduct of an inquest is confirmed by s 35 of the Coroners Act.  However and given the context which has been set out above, it is apparent that having achieved his object of the holding of the inquest and a right to appear at and be legally represented at the inquest, the applicant took on a role of seeking to identify any evidence suggestive of the presence of debris on the relevant section of roadway, for the coroner’s consideration.

The Present Application

21. [21]
    For the purposes of deciding the present application and whilst it may be noted that the applicant seeks to also have the finding as to what caused the death set aside upon the basis that the finding (in that it excluded the presence of debris on the roadway from the drilling operations as a contributing or causative factor) could not be reasonably supported by the evidence, what is critical to this application is the alternative claim that new evidence casts doubt on that finding.^[8] 

22. [22]
    First it is convenient to refer to the outline of submissions filed for the applicant in accordance with the direction given on 18 November 2011, as far as it relates to the application being based on there being new evidence that casts doubt on the finding. Those submissions proceed upon the basis that:

“there were sources of evidence that were ‘relevant to and logically probative of the matters within the scope of the coronial enquiry’ but which Her Honour declined to have placed before the inquest.”

23. [23]
    First there is reference made to what is described as the lengthy and wide ranging affidavit made by the applicant on 16 June 2009. It is submitted only that:

“the Coroner could have and should have been assisted at least by Mr Gentner’s recollections of his dealings with the Jakemans and Mr Church on 1 May 2006.  In particular:

90.1. Mr Jakeman’s comments about the debris from the drilling.

90.2. Mrs Jakeman’s comments about debris from the drilling.

90.3. The existence of a photograph showing dirt protruding from a parked vehicle

90.4. The emergence of Mr Fitzpatrick as a witness.”

24. [24]
    It can be seen that these references to the evidence of Mr and Mrs Jakeman and Mr Fitzpatrick bear relationship to paragraph [78] of the Coroner’s reasons^[9] and are directed at evidence indicative of the presence of debris on the roadway. Essentially the contention is that the Coroner should have had regard to the evidence of the applicant’s dealings with these witnesses and accordingly, early statements that were made to him indicating observation of debris on the relevant section of roadway. An aspect of Mrs Jakeman’s evidence was that she had seen a photograph of a police vehicle parked in a position where she had observed debris spilling from underneath it.^[10] However no such photograph was ever produced at the inquest. The Coroner dealt with this issue as follows:

“[59] Church took a number of photographs on the day of the accident and these are before the inquest in Exhibit 17.  Church’s evidence was that he did not see any debris or other obstruction on the road that could have caused the accident.

[60] Church was questioned about a missing photograph and in particular whether he showed Mr Gentner a photograph which had shown a police vehicle parked in the vicinity of bore hole 5.  Church identified photograph 8 of Exhibit 17 as being this photograph taken at the scene of the accident and showing a scenes of crime unmarked police vehicle in the vicinity of bore hole 5.  Church could not say whether or not that vehicle was there when he conducted his visual inspection of the roadway.”

25. [25]
    In further support of the existence of some unproduced photographic evidence supporting the contention of relevant debris being found on the roadway, the applicant seeks to rely on a statutory declaration prepared by a lawyer. The submission proceeds:

“[96]   Clearly the central issue at the Inquest was whether dirt had been left on the road by the drilling.  An associated issue was whether ever existed a photograph of a police car parked in the area of BH5 with dirt protruding from underneath.

[97]   At the pre-inquest conference I raised the evidence of Geoffrey Barr, a then solicitor employed by my instructor.  Mr Barr provided a statutory declaration swearing to a conversation that he had with Mr Church in which Mr Church told him that there was material on the road in the area of where the incident occurred but that it was not captured in a photograph because a police car was parked over it.  Her Honour ruled that the evidence was a ‘bit far removed’.

[98]   At the inquest I cross-examined Mr Church on the issue.  When I put the conversation to Mr Church he said he could not recall it but stated ‘If that’s what Mr Barr says I’ve said, well, who am I to argue with it?’

[99]   I submit in the circumstances it was appropriate for the Coroner the call Mr Barr or at least have accepted into evidence his statutory declaration.”

26. [26]
    However, there was a photograph produced to the inquest by an employee of the Third Respondent, on the basis that it was taken at the conclusion of the relevant drilling operations, on 7 April 2006 and showing the roadway to be clear of debris. This was marked as Exhibit 3. The Coroner deals with the issues relating to this photo as follows:

“[48] Peter Hooper is an employee of Golder Associates.  He attended the drilling works on 7 April 2006 with Michael Dobe from Drillsure Pty Ltd and Drillsure’s employee Anthony Steensen.  Hooper’s report is contained in Exhibit 1 from page 320 onwards.  Hooper’s evidence was that because of the type of rock in that location they lost a great deal of water down the hole.  Because one needs water to force the debris out of the hole nothing came out and they had to stop drilling.  They abandoned the hole.  His evidence was that they sealed the hole and swept the road.  He could not recall whether it was he who swept the road or the driller.  Exhibit 3 is a digital photograph of the drilling works.  Hooper’s evidence was that he had taken that photograph at the conclusion of the drilling and could identify from the photograph the white plaster of paris cap on the top of the drill hole just to the left of the steel bucket.  Close scrutiny of the photograph does indicate that this is in fact the case.  There is no debris on the road near the drill hole.  Mr Courtney states that the fact that the person standing next to the drilling machine in Exhibit 3 cannot be identified raises doubt as to when the photograph was taken.  This would require there to be a grand conspiracy involving a large number of people including Drillsure and the Men at Work whose truck can be identified in the background going back to the location setting up the drilling rig to take the photo – I cannot accept that.  The photo is clear.  I can see the plaster cap near the bin and I can see the road is clear of debris. 

[49] I found Hooper to be a credible witness.”

27. [27]
    Although it seems that there has been some confusion in the applicant’s submissions in reference to another photo admitted and marked as Exhibit 2, at the inquest, as it is understood the applicant had produced to counsel assisting, a folder of materials which was said to cast doubt on the appearance of both Exhibits 2 and 3, as photos taken late on an April day, due to the location of shadows. Although the Coroner declined to admit the folder of materials, she dealt with Exhibit 2 as follows:

“[51] Later in the proceedings Mr Courtney, pointed out that in one of the photographs there is a shadow which appears to be the silhouette of the person taking the photograph.  The drill holes are on the right hand side of the road and therefore the photographer would have been standing facing in a roughly southerly direction.  As the sun sets in the west one would therefore not expect to see a shadow of the photographer in the photograph.  None of this was specifically put to Mr Dobe but this does question exactly when the photograph was taken.  Because of this I will not be relying on Exhibit 2.”

28. [28]
    However and as can be discerned from the extract from her reasons as set out above,^[11] the Coroner did place considerable weight on Exhibit 3, as evidence tending to exclude the remainder of drilling residue, as debris on the road.

29. [29]
    Further and whilst both of the outlines of submission of the applicant have suffered from some confusion as between the numbering of Exhibits 2 and 3 and whilst there was particular emphasis placed upon evidence relating to Exhibit 2 in the original submissions, it is also apparent that not only was there issue raised about the probity of Exhibit 3 at the inquest but this also remained an issue for the originating application made to this Court.^[12]

30. [30]
    By the present application, the applicant seeks to include the affidavits of the three traffic controllers, who were engaged to work in connection with the drilling operations conducted on 7 April 2006. Although each of these witnesses gave evidence at the inquest, it is apparent that the affidavits (each sworn on 29 May 2012) are calculated to provide some additional evidence from them as to their observations of what is depicted in Exhibit 3 and particularly as to aspects of inconsistency of that photograph having been taken on 7 April 2006, as was contended and accepted by the Coroner.

31. [31]
    Further, the applicant seeks to rely on additional evidence relating to the existence of a photograph depicting debris on the roadway and over which a police vehicle was parked:

1. (a)
   first there is the declaration of Mr Barr, made on 30 May 2007 and which was not admitted or considered by the Coroner, at the inquest;

2. (b)
   secondly, the applicant sought material by subpoena directed to the Commissioner of Police.^[13]  By way of response (accepted as satisfying the requirements of the subpoena) the Commissioner filed three affidavits (by leave on 17 August 2012).^[14]  The applicant seeks to rely on that material on the basis that:

“24. In the course of cross-examination of Senior Constable Church the identity of the police photographer was raised.  Mr Church accepted a police photographer named Jeanette Cox was at the scene.  Later Mr Church accepted that in a report he named the police photographer as Senior Constable Donohoe.  On further questioning Mr Church stated that Cox and Donohoe were the same person.  When asked how he knew he stated ‘I’d rather not say in court.’  I was prevented by the Coroner from exploring the matter further.”^[15]

“This material confirms that Cox and Donohoe are different persons, provides reference to their work rosters on relevant dates and also the contents of an email sent by an employee of the second respondent to Sergeant King on 19 November 2008, which included a copy Exhibit 3.  In respect of the issue as to the separate identity of the police photographers, the applicant contends that this raises the prospect of there being two such photographers at the scene and importantly as potentially going to the credit of the police investigator because this:

‘Cannot be excused as a mistake given he eluded to having a precise but confidential reason for that knowledge.  It is relevant I submit that the first respondent relied on Mr Church’s reliability in accepting that he walked the roadway where this death occurred but saw nothing that may have contributed to the accident.’”^[16]

Conclusions

32. [32]
    Accordingly the applicant submits that this additional material may be of potential significance to his satisfying the Court that new evidence casts doubt on the finding, which he seeks to have set aside. Importantly, it can be noted that each aspect of the additional material has relevance to, at least, an aspect of the application which is otherwise listed for hearing on 5 and 6 November 2012.

33. [33]
    Further and with one potential exception,^[17] the expectation is that the applicant has now identified all of the material which he seeks to have the Court consider, on this basis, on 5 and 6 November 2012.  That exception arises in this way.  As has been noted, the applicant sought from the Commissioner of Police, by subpoena, a copy of the electronic file sent to Sergeant King by Darryn Quinn on 19 November 2008, by email.  Whilst in his affidavit, Sergeant King says he could not locate the email, he did locate a computer record saved on 19 November 2008 and which appears to relate to that email.  Although his affidavit exhibits only a hard or paper copy of the contents of that computer file, the second respondent filed, on 17 August 2012, an affidavit of Mr Quinn, which included reference to the issue of digital date stamping of electronic records, including that of the photograph admitted at the inquest as Exhibit 3.  In essence Mr Quinn points to a hard copy print-out of computer records relating to images kept in respect of the relevant work performed on the Yandina Bli Bli Road.  Generally the point was to support the consistency of the previous evidence of the photograph having been taken on 7 April 2006 and downloaded to a computer on 10 April 2006.

34. [34]
    The applicant was correctly criticised by the respondents, for providing little or no explanation for the additional material not being collected and included within the time period set by the direction made in November 2011. However, in essential respects the position is obvious. The declaration of Mr Barr was obviously overlooked and it is specifically referred to in the earlier outline of submissions, filed in accordance with that direction. The material in response to the subpoena was only received on 17 August 2012 and after leave to issue the subpoena was granted on 31 May 2012. However the issues to which this material and the affidavits of the traffic controllers are relevant, did emerge at the inquest and whilst there may be factors relating to timing and sequencing of witnesses and the emergence of issues at the inquest, there is no explanation provided as to why it took until 29 May 2012 for these affidavits to be obtained and the seeking of the issue of the subpoena.

35. [35]
    The exercise of discretion in respect of the present application is informed by reference to UCPR 367(2) which requires that “the interests of justice are paramount”^[18] and by those of the matters listed in UCPR 367(4) that may be relevant.  Of significance to this application are the following matters:

“(a) that each party is entitled to a fair trial or hearing;

…

3. (c)
   the complexity or simplicity of the case;
4. (d)
   the importance of the issues in the case as a whole;
5. (e)
   the volume and character of the evidence to be lead;

…

8. (h)
   that each party must be given a reasonable to lead evidence and cross-examine witnesses;”

36. [36]
    From the time this originating application first came before the Court, the respondents have been clear and emphatic, not only in their opposition to but also in strident criticism of the application, particularly insofar as it is contended that there is any new evidence that casts doubt on any finding. They have raised criticism of the apparently continued and relentless searching by the applicant for information that may, in any way, be seen to lend support to his contention as to the presence of debris on the roadway and his apparent refusal to accept evidence tending to a contrary conclusion.

37. [37]
    In the course of directions hearings conducted in respect of this matter, it was contended that there should be a separate preliminary hearing in order to determine whether any, and if so what, of the applicant’s reported new evidence could or did constitute such new evidence, as this was a separate legal issue. However, I have previously determined that whilst there may be a question of statutory interpretation as to the meaning of the phrase “new evidence casts doubt on the finding”, in s 50(5)(a) of the Coroners Act,^[19] the issue ultimately requires a factual determination^[20] and will be determined upon the matter being fully heard on 5 and 6 November 2012.

38. [38]
    On the present application, the third respondent, in particular, sought to argue that it was an abuse of process and should be dismissed on that basis.^[21]  That submission comes largely from a position that the applicant was given opportunity to place all relevant material before the Coroner and that the allegations in relation to there being debris left on the road and particularly in relation to any lack of probity of Exhibit 3 are not only unsustainable but include unwarranted suggestions of serious misconduct by it and its employees. Moreover, it was contended that the applicant had ample opportunity to place such material before the Coroner and is now belatedly seeking to relitigate issues which have been appropriately determined by the Coroner.

39. [39]
    The affidavit of Mr Quinn is further directed to demonstrating the ongoing prejudice of the application and particularly to the extent that the applicant continues to press allegations that reflect badly on the second and third respondents and Mr Hooper. This prejudice is identified not only in respect of the ongoing publicity attracted to this matter and the risk of damage to commercial reputation but also in respect of the position of Mr Hooper who now suffers from serious illness.

40. [40]
    Further and although it is recognised that largely these are matters for later debate, it is pointed out that the applicant’s attack on Exhibit 3 in particular is “a collateral attack”, in the sense that it seeks to undermine the probity of Exhibit 3 rather than providing evidence of the presence of debris on the road and that the application confronts a number of pieces of evidence accepted by the Magistrate as demonstrating that there was no such debris on the road. However no aspect of the applicant’s contention should be considered in isolation from the other aspects and particularly the contentions in respect of unconsidered evidence of the past existence of photographic evidence of the presence of debris on the road. In the end result, the issue will be as to whether the applicant satisfies the court that any new evidence casts doubt on the finding, whether separately or in combination with other evidence.

41. [41]
    It may be that the respondent’s position is found to be correct or substantially correct when the matter is fully heard but that hearing should not be pre-empted, unless it can now be determined without conducting a full hearing, that the application is futile or doomed to fail or for some other reason, an abuse of the process of this Court.

42. [42]
    Whilst it can be observed that the originating application confronts a number of hurdles, for the reasons set out above, the material out of which the applicant seeks to establish new evidence casting doubt on the findings as to the cause of death, relates to that finding and particularly the issue as to the presence or otherwise of relevant debris on the road. This was not just a critical issue at the inquest but a basal reason for the holding of the inquest. Moreover none of the purported new evidence was actually considered by or at least, fully assessed by the Coroner, at the inquest. The originating application will require a full hearing to determine it, given the complexities involved and at least to the extent that it was conceded that some matters were for later debate, this appeared to be accepted by the respondents.

43. [43]
    Subject to the one possible remaining issue in respect of the electronic files which are referred to in the affidavit of Mr Quinn, all of the new evidence to be the subject of the originating application is now identified. Significantly, all of the additional material which is the subject of the present application can be seen to be logically related to and therefore relevant to the originating application. Therefore and to the extent that there was need for the applicant to demonstrate some level of cogency in the additional material, he has, in this sense, done so.

44. [44]
    It follows that it should not be concluded that the present application is an abuse of process and in the circumstances, the balancing of the competing considerations favour an exercise of discretion to allow the applicant to also rely on the additional material in the application to be heard in November.

45. [45]
    Notwithstanding that it is clearly not for this Court to attempt to re-hear any of the issues ventilated at the inquest, questions are raised as to the cogency of the additional material and which may be relevant to the question to be determined by this Court, as to whether any of it is new evidence that casts doubt on the finding as to what caused the death. Accordingly a direction was made to allow for the cross-examination of witnesses, on 5 November 2012, as the parties determine necessary.^[22]

46. [46]
    Further directions were made allowing each of the respondents and the Attorney General to make any further written response, necessary for the purpose of the hearing in November but only on the basis that this will occur by way of filing of a composite and complete written outline to be relied upon at that hearing.

47. [47]
    Finally and because the question may be best dealt with at the conclusion of the originating application, the costs of and incidental to the present application were reserved.

48. [48]
    Therefore on 17 August 2012 the following orders were made:

1. I direct that all of the material which is the subject of the application to this Court being:

1. (a)
   affidavit of Geid Silveria De’Oliveria, filed 30 May 2012;

2. (b)
   affidavit of Allan John De Graaf, filed 30 May 2012;

3. (c)
   affidavit of Glen Reginald Blyth, filed 30 May 2012 ;

4. (d)
   affidavit of Andrew John King, filed by leave on 17 August 2012;

5. (e)
   affidavit of Amanda Grace Ghion, filed by leave on 17 August 2012;

6. (f)
   affidavit of Michael Thomas Buckley, filed by leave on 17 August 2012; and

7. (g)
   exhibit NKG2 being a statutory declaration of Mr Geoffrey Barr;

be considered as part of the application to be heard on 5 and 6 November 2012.

2. That Geid Silveria De’Oliveria, Allan John De Graaf, Glen Reginald Blyth, Geoffrey John Barr and Darren John Quinn each be made available for cross-examination on 5 November 2012, unless all parties and the Attorney General agree in writing that any of them are not so required, at least 14 days prior to that date.

3. Costs reserved.

4. Direct that each of the respondents and Attorney General may file a further consolidated outline of submissions on or before 22 October 2012.

5. The question that the provision of the digital file/files that are exhibited to Darren John Quinn’s affidavit is reserved until the time of publication of reasons.