Attorney-General v Barnes
[2023] TASSC 2
•2 March 2023
[2023] TASSC 2
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Attorney-General v Barnes [2023] TASSC 2 |
| PARTIES: | THE HONOURABLE ELISE ARCHER |
| ATTORNEY-GENERAL FOR THE STATE OF TASMANIA | |
| v | |
| BARNES, Alisha | |
| FILE NO: | 3001/2022 |
| DELIVERED ON: | 2 March 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 14 December 2022 |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Administrative Law – Prerogative writs and orders – Certiorari – Grounds for certiorari to quash – Excess of want of jurisdiction – Particular matters where no defect of jurisdiction - Coronial inquest – Issue of summonses to witnesses by coroner's associate for purpose of "taking a deposition" said to be outside statutory power and an abuse of process – "Taking a deposition" falls within statutory power and is "for the purposes of an inquest" – Alternative remedy available – Summonses may be set aside by coroner.
Coroners Act 1995 (Tas) s 13, 15(4)(c), 53(1).
Priest v West [2012] VSCA 327, 40 VR 521, referred to.
Aust Dig Administrative Law [1228]
REPRESENTATION:
Counsel:
Prosecutor: P Turner SC, D Osz Respondent: L Mackey
Solicitors:
Prosecutor: Solicitor-General Respondent: Ogilvie Jennings
| Judgment Number: | [2023] TASSC 2 |
| Number of paragraphs: | 70 |
Serial No 2/2023
File No 3001/2022
ATTORNEY GENERAL v ALISHA BARNES
| REASONS FOR JUDGMENT | WOOD J 2 March 2023 |
| Introduction |
1 This proceeding concerns the conduct of a coroner's associate, Alisha Barnes, Associate to Coroner R Webster, in issuing summonses to nine medical practitioners to attend court either as witnesses or to produce documents in connection with an inquest. It was explained in a covering letter that this was for the purpose of "taking a deposition" from them on oath. This was to be done when an affidavit or statutory declaration from the medical practitioners had not been prepared. The usual purpose of issuing a summons to a witness is for the witness to attend an inquest to give evidence against a background where an affidavit or statutory declaration has been prepared and disclosed to the parties. The Honourable Attorney-General contends that the coroner's associate has exceeded her power and seeks correction by bringing these proceedings before the Court.
The proceedings
2 An application for relief in the nature of a writ of certiorari or other relief is brought under Pt 26, r 623 of the Supreme Court Rules 2000 on behalf of the Attorney-General. On 9 November 2022, the learned Chief Justice made a general order to show cause why the summonses should not be set aside and the decision to issue them quashed. His Honour also made an order that the summonses be stayed and an order requiring service of the general order and other documents. In compliance with the general order, the order and other documents were served on the coroner's associate as the defendant to these proceedings and his Honour Coroner Webster. Coroner Webster has provided notice submitting to the jurisdiction of the Court. The coroner's associate is represented by counsel and so is the Attorney-General.
3 The general order specified the grounds for seeking relief as follows.
The grounds for relief
"(a) The Defendant made material jurisdictional error by:
(i)
purporting to exercise the power conferred by s 15(4)(c) of the Coroners Act 1995 to issue a summons requiring a witness to attend an inquest to give oral evidence or produce documents or other materials by issuing summonses requiring witnesses to attend something other than an inquest; and
(ii)
purporting to make a decision to issue summonses requiring witnesses to attend something other than an inquest when that decision was not authorised under s 15(4)(c) of the Coroners Act 1995.
(b)
And further that the Defendant's issuing of the summonses amounts to an abuse of process by reason of:
(i) Ground 1 above; (ii) the fact that the Defendant did not - 2 No 2/2023
(a) for the purposes of ss 15(4)(c) and 53(1)(a) of the Coroners Act 1995; and (b) having regard to the clinical materials and evidence already available to the Coroners Cout1;
turn her mind to whether it was reasonably necessary for the purposes of an inquest into the cause of Master Kane Leary's death to issue the summonses she did. In particular, she did not consider or turn her mind to the fact that: …."
4 After setting out particulars with respect to each medical practitioner such as they had no role in the care or treatment of the deceased or a limited role, the grounds further state:
"(iii) there was an irrelevant reason for issuing the summonses, which can be
discerned from -
(a) the correspondence from the Office of the Solicitor-General and the Tasmanian Health Service to representatives of the Coroners Office to the effect that neither the Office of the Solicitor-General nor the Tasmanian Health Service had the resources to prepare affidavits and provide expert witnesses to the Coroners Courts in all of the inquests in which the State was involved; and (b) the Defendant's stated reason for issuing the summonses, being the- (i) Coroner's receipt of the correspondence immediately above;
(ii) fact that the Coroner's office 'has far less (sic) resources than both THS and OOSG';
(iii) Coroner had 'determined the taking of depositions in this case, given the advice of Ms Dargaville of the Medico-Legal Department of the THS and Gretel Chen of the OOSG, is the only way in which he can carry out his statutory duty'; and
(iv) depositions taken are to be 'tendered at the inquest and tested'."
5 It can be seen that, in essence, there are two issues at stake. The first is whether the conduct of the coroner's associate fell outside her statutory power. This is a matter of statutory interpretation. If it does, relief will turn on whether the error amounts to a jurisdictional error. The second issue is whether the exercise of her power amounts to an abuse of process.
The role of the Attorney-General
6 The role of the Attorney-General as chief law officer of the Crown is to execute the duty of the Crown to ensure the due administration of Parliament's laws: Solicitor-General v Wylde (1946) 46 SR (NSW) 83, 93. One of the most important duties attaching to the office of Attorney-General, as first law officer of the Crown, is the enforcement of public rights: R v Matterson Ex Parte Moles (No 1) (1993) TASSC 74, Underwood J (as he then was) at p 4. His Honour went on at p 5 to quote from Lord Wilberforce in Gouriet v Union of Post Office Workers (1977) 3 All ER 70 at [9]: "…In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown…".
7 It was submitted that where an independent repository of public power abuses or exceeds their authority in respect of a public body, it is solely the Attorney-General's interest and duty to seek correction by the only appropriate means available: adjudication of the matter in the Courts. It is implicit in these propositions that in such cases the Attorney-General may institute proceedings and have the role of prosecutor. The coroner's associate is a repository of public power with respect to a
3 No 2/2023
public body, the coroner's court. The question is whether in exercising that power she has abused or
exceeded her authority.
The inquest
8 The inquest concerned the death of Master Kane Leary who suffered multiple major injuries in a motorcycle accident in Newnham, Launceston on 27 May 2021. He was taken by ambulance to the Launceston General Hospital where he received treatment in its emergency department and after an operation on his right foot he was transferred to the intensive care unit. Before surgery, CT scans were performed. His condition deteriorated and further CT scans were taken later on 28 May 2021. The CT scan reports did not detect a dissection of the left carotid artery. On 30 May 2021, brain death was declared. Evidently, there were no neurosurgical or specialist neuroradiology experts at the LGH.
9 The State Forensic Pathologist, Dr Christopher Lawrence conducted an autopsy. His opinion was that the cause of Master Leary's death was a left middle cerebral infarct (a large stroke to the left side of his brain) and motorbike/motor vehicle collision. He referred to the opinion of a neuroradiologist at the Royal Hobart Hospital, Dr Hayden Bell (evidently he had reviewed the CT scans at Dr Lawrence's request) that there was a traumatic dissection present in the left carotid artery and that this was probably present in the initial scan even though the infarct had not yet become apparent, and that there may have been a subsequent thrombotic embolism. Dr Lawrence inclined to the view that the cause of the infarction was traumatic damage to the left carotid artery at the time of the collision with thrombus formation and subsequent embolization. He recommended the case be reviewed by Dr Anthony Bell to assess whether earlier involvement by the neurosurgical/neuroradiology team may have led to a better outcome. Subsequently, Dr Bell at the Coroner's Office provided a comprehensive report by way of a review of the case, the details of which need not be canvassed for the purpose of these proceedings.
10 It is uncontentious that the coroner has jurisdiction to investigate this death. The coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death. There is no suggestion that here, the death was not reportable. It is also uncontentious that the coroner may hold an inquest in this case if he considered it desirable to do so (s 24(2) of the Coroners Act.)
11 The inquest commenced on 26 September 2022 before his Honour Coroner Webster and continued the following day in Launceston, in the Magistrates Court. The intention was to hear the non-medical evidence in Launceston and then, to adjourn to a later date in Hobart for the medical evidence.
The summonses
12 On 12 October 2022 the coroner's associate issued summonses to "Attend as Witness or Produce Documents" to Dr Sangeeth Mohan, Dr Lori Coulson, Clinical Associate Professor Kathleen Atkinson, Dr Peter Renshaw, Dr Ashley Croswell and Dr Daniel Aras. The summonses required them to attend at the Hobart Coroners Court on 15 November 2022.
13 On 25 October 2022 the coroner's associate issued summonses to "Attend as Witness or Produce Documents" to Dr Shiekh Muhammad, Dr Hayden Bell and Dr Jens Peter-Wilkie." These summonses also required them to attend at the Hobart Coroners Court on 15 November 2022. The summonses were each sent with a letter from the defendant which provided that its purpose was to:
"… take a deposition from you on oath. This is equivalent to taking a statutory declaration or affidavit from you. The reason this course is being taken rather than a statutory declaration or affidavit being taken from you is that the Medico-Legal Department of THS has either said you are unable to assist and/or Counsel for the
4 No 2/2023
THS (Gretel Chen from the Office of the Solicitor General (OOSG)) has said the following:
'Ms Hutton's position reflects the position of this office also. That is, we now prefer to leave it to the Coroner's office to gather the evidence by way of preparing initial affidavits and we may, in appropriate cases, assist by settling them.
As you know, the preparation of affidavits is time and labour intensive. Regretfully, neither the Agencies nor this office has sufficient resources to dedicate to the preparation of affidavits for all of the inquests in which the State is involved.
Accordingly, I thank you for the invitation to prepare the evidence but on this occasion I will decline.
I nevertheless remain happy to assist by settling draft affidavits the Coroners office prepares.'
While the Coroner understands the position both the THS and OOSG are in his office has far less resources than both THS and OOSG. He has determined the taking of depositions in this case, given the advice of Ms Dargaville of the Medico-Legal Department of THS and Gretel Chen of the OOSG, is the only way in which he can carry out his statutory duty.
Once the depositions are taken they will be transcribed and a copy will be provided to all parties. There will then be a subsequent hearing at which the evidence in the depositions will be tendered at the inquest and tested."
14 Evidently, some of the practitioners had limited involvement in the treatment and care of Mr Leary and some had no involvement at all. Ms Megan Hutton sought advice from the defendant on 26 October 2022 seeking the reason each doctor had been summonsed and what was sought from them at the inquest. The defendant responded by email on 1 November 2022, in which she stated, among other things:
• "the only reason the depositions are being taken is because this office received advice from the office of the Solicitor-General and the Department of Health and both have insufficient time or resources to provide affidavits. This office has far less resources; " • "the hearing will not resume on 15 November. It is for depositions only; " and • "Each witness will be examined, cross examined and they might be re-examined at the subsequent hearing. That is what is meant by the term "tested". That hearing of the inquest will take place in the week commencing 27/2/23."
15 There is considerable background information regarding the state of affairs leading to the issuing of the summonses for the purpose of depositions. In essence, it is a case of the Medico-Legal Department of the Tasmanian Health Service and the Office of the Solicitor-General declining to prepare affidavits for the Coroner, and the Office of the Coroner maintaining it did not have the resources. If not for this quarrel about resources, this litigation would not have arisen and nor would the costs, no doubt the considerable costs, associated with it. Fortunately, it is unnecessary to delve into the history and details of this disputation.
Hypothetical question or real legal controversy
16 The first issue that arises is the matter of whether the relief sought in the nature of certiorari or declaratory relief should be available given that the summonses are spent. The summonses were
5 No 2/2023
returnable before the coroner on 15 November 2022. The summonses were not pressed given the application to this Court for a general order to show cause and the stay that was ordered by the Chief Justice.
17 It is argued for the defendant that the issue at stake in these proceedings is hypothetical and academic. It is submitted that public interest does not reside in the determination of a hypothetical question about the lapsed summonses.
18 It is argued for the prosecutor that there remains a real legal controversy about whether or not the learned coroner was empowered to cause the issue of summonses for the purpose of compelling witnesses to provide evidence by deposition other than at an inquest. Further, the issue concerning the impugned summonses relates to a misapprehension of the extent of the coroner's powers under the Coroners Act which if uncorrected may lead to coroners exceeding their authority by following a practice of summonsing witnesses to provide evidence by deposition.
19 It was highlighted for the prosecutor that the coroner issued the impugned summonses because that is "the only way in which he can carry out his statutory duty" (letter from the defendant accompanying the summonses at [13] above). Also, the defendant does not resile from this statement and the investigation into Master Leary's death continues. Furthermore the defendant does not concede that the issue of summonses in these proceedings are outside a coroner's powers. Consequently, the doctors summonsed in this proceeding are at a real risk of being summonsed again for the same purpose of preparing their depositions.
20 The principles governing the Court's jurisdiction are well-established. Relief in the nature of certiorari would not be available if the decision sought to be quashed was of no legal effect and carries no legal consequences: Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 580. Declaratory relief is a discretionary power which would not be available where there is no legal controversy, or it is directed to answering abstract or hypothetical questions: Ainsworth v Criminal Justice Commission at 582; Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at [48].
21 This is not merely a hypothetical case. The coroner took a considered step of issuing summonses for a certain purpose. Underpinning this step is the coroner's view about the extent of his powers. It is plain that the step was regarded as within power and necessary because of an impasse about resources. That impasse remains. Whether or not this view solidifies into a general practice extending to other coroners remains to be seen. Regardless, it is likely to emerge in this case again if this application is dismissed with no decision on the point. The inquest is part-heard and there is no other solution in sight for the obtaining of the information that is sought by the coroner.
Availability of relief
22 Relief is available in the nature of certiorari or declaratory relief where a decision is made by a court or inferior tribunal which is infected with jurisdictional error. The first question that arises is whether there was error and whether the defendant had power under the provisions of the Coroners Act to issue summonses for the stated purpose of taking depositions. This is a question of statutory interpretation.
The boundaries of power
The Attorney-General's submissions
23 It is submitted for the prosecutor that the defendant did not have power under s 15(4)(c) of the Coroners Act to issue the summonses. That provision states that "A coroner's associate may issue a summons requiring a witness to attend an inquest to give oral evidence or to produce documents or other materials."
6 No 2/2023
24 It is highlighted that a coroner's associate may only issue a summons to require a witness to attend an "inquest" for the purpose of "giving oral evidence" or to produce documents or other materials. The definition of "inquest" in s 3 of the Act is relied upon: "a public inquiry that is held by a coroner in respect of a death, fire or explosion."
25 It is submitted that a summons to attend an inquest is a summons to attend a public inquiry to
give oral evidence.
26 It is further submitted for the prosecutor that it can be seen from the defendant's response on 1 November 2022 that the witnesses summonsed to attend on 15 November 2022 were not summonsed to attend an inquest as a public inquiry. It was expressly stated in the associate's letter that the hearing of the inquest did not resume until the week commencing 27 February 2023.
27 It is further submitted that there is no power in a coroner's associate to cause a summons to issue to a witness to provide a deposition for the purpose of an inquest. There is no power in a coroner's associate to compel a witness to provide evidence. There was also consideration given in argument to the terms of s 53(1)(a) regarding the coroner's powers of compulsion in respect of witnesses. It was submitted that having regard to the terms of s 53(1)(a) and s 15(4)(c) it is clear that a coroner, acting through his or her associate, only has the power to summons a person to attend an inquest as a witness. Again, it was emphasised that the coroner's powers under s 53 are conferred for a public inquiry.
28 It is also submitted for the Attorney-General that there is a bifurcation in the Act between the coroner's powers when conducting an inquest and his or her powers of investigation. The Coroners Act draws a clear distinction between the investigation of deaths (Pt 5) and the conduct of inquests (Pt 7). Not all investigations will lead to an inquest and a coroner is only bound to hold an inquest in certain specified circumstances. A coroner's power to hold an inquest "is a separate source of authority and obligations": Harmsworth v State Coroner [1989] VR 989, 993.
Submissions for the defendant
29 The defendant's counsel surveyed the Act and highlighted a number of provisions. It was submitted that the investigation and the inquest are not delineated and separate processes. An inquest is a public inquiry. By definition, an inquiry is the process of investigating which is to be contrasted with a public hearing which is a process of hearing evidence. The inquest is part of the investigation. It is after the investigation, not the inquest, that the coroner must make the findings required by the Act, s 28.
30 It was submitted that the power to summons is a power to summons as part of the investigation and not limited to a return to the inquest.
31 It was submitted that the coroner had the jurisdiction to issue the summons under s 53. A coroner has power to delegate to the coroner's associate, s 13, and the rules provide for a summons to issue under s 53, r 17.
32 A grant of a statutory power includes ancillary powers to achieve the purpose of the grant: Commissioner of Police v Coroners Court of South Australia; Commissioner of Police v Australian Lawyers Alliance Ltd [2018] SASCFC 26, 130 SASR 321. Accordingly, even if the power to compel by summons is limited to oral evidence and does not extend to depositions, a coroner has an ancillary power to compel for the purpose of taking a deposition.
7 No 2/2023
Discussion
33 The question of whether there was error in the issue of the summonses by the defendant in this case is a question of statutory interpretation. Did the issue of summonses by the defendant for the identified purpose fall outside the power conferred in the Coroners Act?
34 A coroner's associate has power to issue a summons under s 15(4)(c):
"15 Coroner's associates …
(4) A coroner's associate may–
…(c) issue a summons requiring a witness to attend an inquest to give oral
evidence or to produce documents or other materials."
35 A coroner's associate also has delegated functions or powers that a coroner has. A coroner has power under s 53 of the Act. This section appears in Pt 7 of the Act concerning the "Conduct of Inquests". Subsections (1)(a) and (e) are relevant for our purposes but it is useful to set out the subsection in full which makes provision for various powers of the coroner in this context:
"53 Powers of coroners at an inquest
(1) If a coroner reasonably believes it is necessary for the purposes of an inquest, the
coroner may –
(a) summon a person to attend as a witness or to produce any document or
other materials; and
(b) inspect, copy and keep for a reasonable period any thing produced at the
inquest; and
(c) order a witness to answer questions; and
(d) order a witness to take an oath or affirmation to answer questions; and
(e) give any other directions and do anything else the coroner believes
necessary."
36 The Coroner has power to delegate in s 13 of the Act:
"13 Delegation by coroner
(1) Subject to any direction given by the Chief Magistrate, a coroner may delegate to a coroner's associate any function or power of a coroner other than this power of delegation or a power prescribed by the regulations.
(2) A direction of the Chief Magistrate may be a general or specific direction."
37 Comparing the power in s 53(1)(a5) and in s 15(4)(c), it can be seen that s 15(4)(c) is more specific in its terms. The power to issue a summons under this section is to require a witness "to attend an inquest" to give oral evidence or to produce documents or other materials.
38 The sources of power to issue a summons are not linked in any way. The terms of the Act do not suggest that the two provisions both have application, providing a dual set of requirements, so that s 15(4)(c) applies if the coroner's associate is exercising delegated authority to issue a summons. It is
8 No 2/2023
plain from the terms of the Act that they are separate sources of power. Presumably, s 15(4)(c) enables the coroner's associate to exercise his or her own initiative and issue a summons. Counsel for the defendant drew attention to the Coroners Rules and the reference to a rule concerning issuing summonses which refers only to s 53 of the Act. However, a general rule of statutory construction is that it is impermissible to refer to delegated legislation for the purpose of construing the governing statute: Pearce, Statutory Interpretation in Australia, 9th ed. (2019) at [3.48].
39 As discussed, ss 53 and 15(4)(c) are separate sources of power. This means that if s 53 applies, and the summonses fall within the power in that provision, s 15 has no application and no work to do. The fact that there are separate sources of power under ss 53 and 15 of the Coroners Act has significance. The application sets out that the coroner's associate "purported" to exercise her power under s 15(4)(c). However, she did not specify this provision in the summonses or the accompanying correspondence. The particular section is left unsaid. Thus, the question is whether the issue of the summonses falls within s 15(4)(c) or s 53. I begin with a consideration of s 53.
40 Before focussing on the terms of s 53, I note it is not suggested for the Attorney-General that the coroner in this case did not delegate his power to issue a summons to the witnesses. In this context, we are also not concerned with whether or not the coroner reasonably believed the summonses were necessary for the purposes of the inquest as required by the chapeau in s 53. The arguments about whether the coroner's associate exceeded her powers did not concern those questions of fact but rather, whether she had the power to issue the summonses given the stated purpose of taking depositions and given that this was not to be at an inquest.
41 It can be seen that the conferred power in s 53(1)(a) is "for the purposes of an inquest" not for the witness to attend at an inquest. The terms of the provision are wide enough to allow for the coroner to list the matter under investigation "for the purposes of an inquest", and not only for the hearing of the inquest as such. So, the language of the section is wide enough to enable the matter to be listed for case management of the inquest or for procedural matters such as a return date for a summons to produce documents. Court staff or the coroner's staff may naturally enough, refer to the listing as part of the inquest or a listing associated with it. I cannot see anything would turn on how the date was characterised, either way, the power in s 53 is wide enough to embrace it.
42 However, I will consider whether, if the section is to be construed so that it only allows for a person to be summonsed to attend an inquest, this construction poses any difficulty for the defendant in this case. The question I will consider here is whether there is any information suggesting that the return date for the summonses was not a date for the inquest.
43 It was submitted for the Attorney-General that the information in the correspondence made it clear that 15 November 2022 was not an inquest date.
44 The submissions for the Attorney-General referred to the letter from the coroner's associate and the purpose identified of "taking depositions" on oath. There was reliance upon a demarcation in the Act between the processes of investigation and holding an inquest, and that the process of taking depositions was investigative rather than part of a public hearing. It was submitted for the defendant that an inquest is a public inquiry, rather than a hearing, and a vehicle for the investigation. Accordingly, taking depositions is not at odds with a process of fact-finding and to further the investigation.
45 The argument for the defendant is supported by a consideration of the Act. The taking of a deposition from a witness in lieu of taking an affidavit or statutory declaration may be regarded as an investigative step but still falling within the purpose of holding an inquest. A strict demarcation between inquest and investigation is not borne out by a consideration of the Act. It can be seen from
9 No 2/2023
the scheme of the Act, that an inquest forms part of a coroner's investigation attracting the same
obligation to make findings: ss 24 and 28.46 The argument that there is not a strict demarcation between inquest and investigation is also supported by authority. An inquest is an inquisitorial process of investigation and not a proceeding between parties: Etter v Legal Profession Board of Tasmania [2022] TASSC 11 at [32].
47 Coroners have a broad scope in conducting an inquest. Section 51 of the Coroners Act provides that: "A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit." Similar powers have been described as giving the coroner considerable latitude in the manner in which an inquest is conducted and broad scope to shape and direct an investigation: Priest v West [2012] VSCA 327; 40 VR 521 at [6].
48 The issue of the summonses for an investigative purpose may fall within the broad scope of a coroner in conducting an inquiry. The fact that the step proposed of taking a deposition is an unusual process during an inquest does not mean that it could not be done as part of an inquest.
49 The defendant submitted that the submissions for the Attorney-General teetered on a number of propositions including that the return date was not the inquest. It was argued for the defendant that there is nothing that says or implies the return date is not to be open to the public. I agree that the proposition that the venue for the return of the summonses was not to be a public inquiry is tenuous. The summons in each case states: "The inquest date is 15 November 2022" and under the heading "What you must do" it is said "You must attend the inquest". The venue for the listing was at the Magistrates' Court (coronial division) at Hobart, court 6. While the first two days of the inquest were at the Magistrate's Court in Launceston and, absent any suggestion to the contrary, it is reasonable to assume that the court in Launceston was open to the public, and likewise the court in Hobart.
50 The argument for the Attorney-General relied upon parts of the defendant's email response on 1 November 2022 at [14] above which states "the hearing will not resume on 15 November. It is for depositions only … the hearing of the inquest will take place in the week commencing 27/2/23". This was said to demonstrate that the return date was not to be a date for the inquest. However, the details in that letter, in particular, any characterisation of the return date, may well be the defendant's understanding and caution should be exercised in attributing such statements to the coroner. I cannot see how it matters if the coroner's associate regarded the return date as not part of the inquest. I conclude that the correspondence does not reliably indicate that the return date for the summonses was at a listing not part of the inquest.
51 It was argued for the Attorney-General that it would be beyond power for a coroner to provide a return date for a summons which was not formally part of the inquest. It was contended that there is no statutory allowance for a return date other than at the inquest. I consider this argument is defeated by the terms of s 53(1)(a) which do not require a listing of a return date of a summons at an inquest but rather that the power be exercised if the coroner reasonably believes it is necessary "for the purposes of an inquest".
52 The next proposition upon which the Attorney-General relies is that the scope of power in s 53(1)(a) is not wide enough to encompass the purpose of taking depositions. It is submitted that this sub-section is confined to the purpose of giving oral evidence. The sub-section provides that the coroner may "summon a person to attend as a witness or to produce any document or other materials".
53 I do not regard the course proposed of "taking depositions" as falling outside the terms of the sub-section. To understand the course that was proposed, I return to the letter from the coroner's
10 No 2/2023
associate set out at [13]. It can be seen that the deposition is to be taken on oath, and is "equivalent to taking a statutory declaration or affidavit". Further, "once the depositions are taken they will be transcribed and a copy will be provided to all parties. There will then be a subsequent hearing at which the evidence in the depositions will be tendered at the inquest and tested." This was elaborated upon in the defendant's email sent on 1 November, 2022, above at [14]. It appears that the witnesses will respond to questions under oath and this process will be recorded and transcribed. The depositions are to be the transcripts of the answers given by the witnesses under oath or affirmation.
54 The pause in the proceedings before the witnesses are to be "tested" and questioned by the parties would provide the parties with an opportunity to review the transcript and prepare their questioning. Presumably this opportunity is a response to the requirement of natural justice. Just as a statutory declaration or affidavit becomes part of a witness's evidence when tendered as an exhibit on the hearing, the deposition will become part of witness's evidence. An approach which is not dissimilar is sometimes taken in other proceedings, even adversarial proceedings, such as a criminal trial. For any number of reasons, a witness may be called to the witness-stand "cold" when they have not provided any form of statement. After evidence in chief, involving responding to questions under oath, their evidence may then be then tested in cross-examination. Counsel would often have the transcript of evidence-in-chief before embarking on cross-examination.
55 I consider that the proposed course falls within the terms of s 53(1)(a). The individuals would be attending "as a witness". Their responses as they fall are to be transcribed and form part of their evidence.
56 As an aside, I note that a process of giving evidence by deposition is referred to in the Coroners Rules (rr 19 and 20). The term "deposition" is defined in r 3 and involves a "written proof of evidence prepared by a witness" and "an examination of the witness in relation to that proof". That is not what is proposed here.
57 However, even if s 53(1)(a) is not sufficiently wide to cover the taking of depositions as proposed, s 53(1)(e) is wide enough to encompass this process. This sub-section provides that if a coroner "reasonably believes it is necessary for the purposes of an inquest, the coroner may give any other directions and do anything else the coroner believes necessary." I note that the breadth of this power in s 53(1)(e) sits comfortably with the scheme of the Act and in particular the wide powers of the coroner in conducting an inquest: see in particular, s 51 Coroners Act and a discussion about similar powers in Priest v West (above) at [5]-[6], [167]-[169].
58 It would seem that the power in subs (e) should read down to some extent, and regard should be had to the context in which it appears. If the statutory rule of construction known as the ejusdem generis rule applies, the general power in (e) is to be interpreted as limited to powers of the same kind as those specified in the other sub-sections (see Pearce, Statutory Interpretation in Australia, 9th ed (2019) at 4.34).
59 Allowing for the application of that rule of construction, the course proposed by the defendant falls squarely within this sub-section, assuming the coroner believed it was necessary for the purposes of the inquest.
60 There is no substance in the proposition that the summonses fell outside the coroner's powers in s 53. Even if it could be said that the summonses fell outside the power in s 53(1)(a), they were within the very broad power in s 53(1)(e).
61 It was argued for the defendant that even if the power that was exercised under s 53 to compel by summons does not extend to depositions, a coroner would have an ancillary power to compel for this purpose. There was reliance on the principle that a grant of a statutory power confers ancillary powers as well. These implied powers are to do any incidental thing reasonably necessary to make
11 No 2/2023
the express grant of power effective: Commissioner of Police v Coroners Court of South Australia (above) at [54]. It is unnecessary to consider this argument in light of my determination that the issue of the summonses falls squarely within an express power.
62 It is also unnecessary for me to consider whether the course taken by the coroner's associate also falls within s 15(4)(c). I merely add that having regard to my observations and conclusions about the course proposed by the defendant, it may be maintained that the summonses in this case require "a witness to attend an inquest to give oral evidence…".
Jurisdictional error
63 In Craig v South Australia [1995] HCA 58, 184 CLR 163, the judgment of the Court at 176– 179 considered examples of the sorts of errors that amount to jurisdictional error. In light of these examples, it was argued for the defendant that the impugned conduct, if it amounted to an error, was not an error as to jurisdiction. Rather, it concerned an ancillary power enabling the exercise of jurisdiction rather than an exercise of jurisdictional power. It did not strike at the heart of the coroner's jurisdiction to investigate deaths.
64 It is acknowledged that the question of jurisdictional error is not a straight forward inquiry and the line between jurisdictional error and error in the exercise of jurisdiction may, in some cases be particularly difficult to discern: Craig at 178.
65 In this case it is unnecessary to consider the arguments about jurisdictional error. There has been no error made in the first place.
Abuse of process
66 It was argued that the issue of the summonses amounted to an abuse of process. The category of what amounts to an abuse of process includes the use of a court's processes for an illegitimate purpose, proceedings that are unjustifiably oppressive to one of the parties or would undermine the administration of justice and bring it into disrepute. See Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, 226 CLR 256 per Gleeson CJ, Gummow, Hayne and Crennan JJ at 265-268. It was contended for the prosecutor that the exercise of power in issuing summonses to the witnesses did not have a legitimate forensic purpose, they were outside the scope of the inquest, and, they were oppressive.
67 The exercise of power to issue the summonses would be informed by the information available to the coroner and whether he or she reasonably believed it was necessary for the purposes of the inquest. The coroner's belief would be informed by the legislative framework including s 28(2) of the Coroners Act, which provides that: "A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate." And of course, it would be informed by the scope of the investigation, which has been defined by the coroner in this case. In the defendant's written submissions it was argued that in the case of each medical practitioner there was a legitimate forensic purpose for the issue of the summonses.
68 At the hearing of these proceedings, the prosecutor's argument relying on an abuse of process fell away in the face of an obvious remedy available to address the concerns raised.
69 A discretionary consideration in granting relief of the kind sought in these proceedings is whether there is an alternative remedy available. Here there is a remedy in sight for the recipients of the summonses. They may seek that his Honour Coroner Webster set aside the summonses on the basis that they are an abuse of process, in that they are oppressive or lack a legitimate forensic purpose. This is the usual way that objections of this kind to summonses that have been issued are
12 No 2/2023
dealt with. It is accepted by the prosecutor that coroners have an implied power to set aside a summons as being an abuse of process, with reference made to Attorney-General (Tas) v Von Stalheim [2008] TASSC 88 at [12]–[15]. The Coroner in this case would be well placed to determine such objections. The recipients may appeal the determination to this Court. In reviewing that decision this Court would have the benefit of a considered decision by the coroner. This remedy is more than adequate and in my view should not be bypassed.
Order
70 For the reasons provided, the grounds for relief specified in the general order to show cause are not made out. Accordingly, I refuse to grant the relief sought. The general order is discharged.
0
10
1