Attorney-General v Copper Mines of Tasmania Pty Ltd

[2019] TASFC 4

[2019] TASFC 4

COURT:        SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:  Attorney-General v Copper Mines of Tasmania Pty Ltd [2019] TASFC 4

PARTIES:     THE HONOURABLE ELISE ARCHER,

ATTORNEY-GENERAL FOR THE

STATE OF TASMANIA

v

COPPER MINES OF TASMANIA PTY LTD

COPPER MINES OF TASMANIA PTY LTD

v

COOPER, Simon John

THE HONOURABLE ELISE ARCHER,

ATTORNEY-GENERAL FOR THE

STATE OF TASMANIA

FILE NO:     2074/2018

JUDGMENT

APPEALED FROM:  Copper Mines of Tasmania Pty Ltd v Cooper

[2018] TASSC 25

DELIVERED ON:   7 June 2019

DELIVERED AT:   Hobart

HEARING DATE:  18 April 2019

JUDGMENT OF:    Blow CJ, Pearce J, Marshall AJ

CATCHWORDS:

Magistrates – Coroners – Inquests and inquiries – Proceedings at inquest or inquiry – Evidence – Admission of mixed expert and lay opinion evidence – Duty of procedural fairness.

Coroners Act 1995 (Tas), s 51.

Walter Mining Pty Ltd v Hennessey [2009] QSC 102, [2010] 1 Qd R 593; Priest v West [2012] VSCA 327, 40 VR 521, followed.

Aust Dig Magistrates [1377]

REPRESENTATION:

Counsel:

Appellant/Second Cross-Respondent:    M E O'Farrell SC, P Turner SC

Respondent/Cross-Appellant:      C J Gunson SC, B Lim

First Cross-Respondent    No Appearance

S Clyde:          K Baumeler

Solicitors:

Appellant/Second Cross-Respondent     Solicitor-General

Respondent/Cross-Appellant:      McCullough Robertson

S Clyde:          Kennedys

Judgment Number:  [2019] TASFC 4

Number of paragraphs:    50

Serial No 4/2019

File No 2074/2018

THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA

v COPPER MINES OF TASMANIA PTY LTD

COPPER MINES OF TASMANIA PTY LTD v SIMON JOHN COOPER

(First cross-respondent) and THE HONOURABLE ELISE ARCHER,

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT      FULL COURT

BLOW CJ

PEARCE J

MARSHALL AJ

7 June 2019

Orders of the Court

1. Appeal allowed.

1. Orders of the learned primary judge set aside.

1. General order to show cause discharged.

1. Originating application dismissed.

1. Cross-appeal dismissed.

   Serial No 4/2019

   File No 2074/2018

THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA

v COPPER MINES OF TASMANIA PTY LTD

COPPER MINES OF TASMANIA PTY LTD v SIMON JOHN COOPER

(First cross-respondent) and THE HONOURABLE ELISE ARCHER,

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT      FULL COURT

BLOW CJ

7 June 2019

1  In an accident at the Mt Lyell Mine in Queenstown in January 2014, a miner named Michael George Welsh was killed as the result of quantities of mud and water rushing into the area of the mine where he was working.  He was employed by the respondent to this appeal, Copper Mines of Tasmania Pty Ltd. It leased and operated the mine.  A coroner, Mr S Cooper, has commenced an inquest relating to the death of Mr Welsh, as well as the deaths of two other men on another occasion that is of no relevance to this appeal.

2  The respondent contends that it will be denied procedural fairness if the coroner receives evidence from a mining consultant named John Webber, if he receives as evidence a report written by Mr Webber relating to the fatal mud rush incident, and if he receives as evidence several reports and documents that Mr Webber took into account in writing his report.  The respondent instituted proceedings, seeking orders prohibiting the coroner from receiving that evidence.  Those proceedings were partly successful.  After a defended hearing, Estcourt J made an order prohibiting the coroner from receiving as evidence seven reports and documents that were taken into account by Mr Webber, but decided not to prohibit the coroner from receiving Mr Webber's oral evidence or his report: Copper Mines of Tasmania Pty Ltd v Cooper [2018] TASSC 25.

3  The Attorney-General was represented in those proceedings as an intervenor.  She has now appealed from his Honour's orders.  She contends that orders in the nature of prohibition should have been refused. The respondent has cross-appealed.  It contends that the coroner should have been prohibited from receiving oral evidence from Mr Webber, and from receiving his report. The mine manager, Mr S Clyde, was represented at the hearing of the appeal and cross-appeal.  His counsel adopted and supported the submissions of counsel for the respondent. For the reasons which follow, I have concluded that the appeal should succeed, and that the cross-appeal should fail.

Mr Webber's report

4  Mr Webber was engaged by the State as an expert witness in relation to the fatal mud rush incident.  He obtained a degree in mining engineering in the UK in 1975, and had worked in the mining industry ever since.  However he had never been engaged as an expert witness before.  He was engaged as an expert witness not just for the purposes of the inquest, but also for the purpose of a prosecution in relation to the same incident that had been commenced by the Chief Inspector of Mines in the Magistrates Court for an alleged contravention by the respondent of a provision in the Work Health and Safety Act 2012.

5  In a number of respects, his report did not take the form that a report by an expert witness should take. He did not identify the facts and assumptions on which his opinions were based.  He did not separately identify the facts known to him, information supplied to him, and assumptions made by him.  He failed to distinguish facts from opinions.  He did not make clear the reasoning process on which his opinions were based. He expressed opinions on subjects that were beyond his expertise.  He did not distinguish between matters within his expertise and matters that were not.

6  The prosecution in the Magistrates Court was abandoned as the result of a magistrate, Mr C P Webster, after conducting a voir dire, holding that the report was not admissible as expert evidence. 

7  In his report, Mr Webber took into account the seven reports and documents that are the subject of the order of the learned primary judge.  Those documents are described in that order as follows:

"a.           Geotechnical Review of Sublevel Caving at Mt Lyell Mine report authored by Ernesto Villaescusa dated August 2013;

b.  Geotechnical Review of Sublevel Caving at Mt Lyell Mine report authored by Ernesto Villaescusa dated April 2013;

c.  Mt Lyell Inrush – Mudrush Risk Assessment report authored by Peter Standish dated 29 October 2012;

d.  draft Mt Lyell Review of Mudrush TARPS report authored (it seems) by Mike Thomas dated 19 November 2011;

e.  Mt Lyell Draw Strategy Review report authored (it seems) by Tony Grice dated 21 September 2011;

f.  memorandum on Iron Blow Open Pit water level monitoring and potential inflow into cave area authored by Clint Scott dated 21 June 2010;

g.  Hydrogeology of the Prince Lyell Copper Mine report authored by R Virtue and K Taylor dated February 2010."

8  Mr Webber also took into account reports by a meteorologist and a statistician that are not the subject of the order now appealed from.

Proceedings in the courts below

9  On 7 September 2017 the then solicitors for the respondent, who had learned that the coroner intended to hold an inquest, wrote to the coroner's associate about Mr Webber and his report, among other things.  They said that Mr Webber's opinion evidence had been ruled inadmissible in the Magistrates Court because of deficiencies including "the witness' lack of independence and his admitted lack of specialist knowledge in the areas on which he intended to opine".  They said that the respondent intended to seek that his evidence not be admitted for the reasons articulated by the magistrate, and provided a copy of the transcript of the voir dire and the magistrate's ruling.

10                   On 10 November 2017, after a change of solicitors, the respondent's new solicitors wrote to counsel assisting the coroner, advising that the respondent intended to seek that Mr Webber's evidence not be admitted for the reasons articulated by the magistrate. Those solicitors wrote to counsel assisting the coroner again on 20 November 2017 after they had been served with a brief of evidence that included Mr Webber's report.  They said that they reiterated their concerns. 

11                   On 8 January 2018, counsel assisting the coroner sent an email to the respondent's solicitors and others saying that the coroner requested that any further material they wished to bring to his attention regarding Mr Webber's report be filed no later than the close of business on 17 January 2018.  The respondent's solicitors responded on that day as follows:

"While Copper Mines of Tasmania Pty Ltd (CMT) continues to have the concerns raised in our letter to you of 10 November 2017, CMT does not intend to bring any additional material to the attention of the Coroner regarding Mr Webber's Overview Report at this time.

This is on the basis, consistent with our conversation on 9 January 2018, that CMT will, in the course of the Inquest, have the opportunity to make submissions as to the weight, if any, that the Coroner ought to attribute to any evidence of Mr Webber."

12                   On 1 February 2018 the coroner gave a written ruling, including detailed reasons. He concluded, at [16]:

"Mr Webber will be called to give evidence and the 'objection' raised by Copper Mines of Tasmania to that course is not made out."

13                   In his reasons the coroner noted that he was not bound by the rules of evidence.  He referred to the judgment of Wright J in Connelly v P & O Resorts Pty Ltd T/A Cradle Mountain Lodge [1996] TASSC 132, which concerned a tribunal that was not bound by the rules of evidence and was empowered to inform itself on any matter in such manner as it thought fit. He emphasised the following comment by his Honour at [22]:

"So long as the material relied upon satisfies the test of being evidence rather than a mere supposition, guess or intuitive hypothesis, it may be received by the Tribunal."

14                   He went on to conclude, at [15], that Mr Webber's report contained material that might assist him in answering the question how the death occurred.  He said:

"It appears to be more than mere supposition, guess or intuitive hypothesis. As such, I consider that I may be assisted by receiving it."

15                   Earlier in his reasons, at [13], the coroner made it clear that he understood that he would ultimately have to decide what weight to give to the report.  He said this:

"... weight is not a determinative factor in deciding whether to receive evidence or indeed if something is properly categorised as evidence (although of course the weight to be afforded to any evidence will always be a relevant consideration in determining what use is to be made of it)."

16                   On or about 7 February 2018, counsel assisting the coroner published an "inquest plan" setting out the sitting days, sitting places, and proposed witnesses for each day of the inquest.  That document showed that it was proposed that Mr Webber would be called as a witness on 27 April.  The authors of the seven reports and documents named in the order of the learned primary judge were not shown as proposed witnesses.

17                   On 26 February 2018 the respondent filed an originating application seeking orders in the nature of prohibition.  On 13 May 2018, Holt AsJ made a general order to show cause why an order in the nature of prohibition should not be made. As I have said, the Attorney-General intervened in those proceedings.  She opposed the making of an order in the nature of prohibition.

The respondent's contentions

18                   The respondent contends that, because Mr Webber's report so substantially fails to comply with the principles applicable to the admissibility of expert evidence, it will be denied procedural fairness if he gives evidence at the inquest, and if his report is received as evidence at the inquest.  Further, it contends that the tendering of the seven reports and documents, without their authors being called as witnesses, will also deprive it of procedural fairness. 

19                   Counsel for the respondent made submissions to the following effect:

•    Because Mr Webber has not identified the facts and assumptions on which his opinions are based, he cannot be asked questions directed to testing those facts or assumptions.

•    Because the report does not distinguish facts or assumed facts from opinions, and does not identify reasoning processes, Mr Webber cannot be asked questions directed to testing the cogency of his opinions. 

•    It would be unfair to place the respondent in a position where first Mr Webber would be cross-examined as to the basis for his opinions, his reasoning processes, and whether or not his opinions fall within his area of expertise; then the respondent would take advice from its own experts; and then its counsel would cross-examine about the correctness or merits of his opinions.  That would be unduly complex, time-consuming and costly.

•    The unfairness could not be sufficiently remedied by calling the authors of the seven reports and documents because the defects in Mr Webber's report extend well beyond his reliance on those documents.

•    The seven documents, which were not prepared for the purpose of legal proceedings, have similar defects to Mr Webber's report.

Coroners and inquests

20                   The jurisdiction of the coroner is conferred and regulated by the Coroners Act 1995 ("the Act"). The provisions in that Act that are relevant to this case can be summarised as follows:

•    In s 3, "inquest" is defined to mean "a public inquiry that is held by a coroner in respect of a death, fire or explosion".

• Amongst other things, a coroner investigating a death must find, if possible, how death occurred, and the cause of death: s 28(1)(b) and (c).

• "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": s 28(2).

•    "A coroner may comment on any matter connected with the death": s 28(3).

• "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": s 51.

• A person whom the coroner considers to have a sufficient interest may make submissions to the coroner at any stage of an investigation: s 52(2).

•    A person whom the coroner considers to have a sufficient interest may appear or be represented by an Australian legal practitioner at an inquest, call and examine or cross-examine witnesses, and make submissions: s 52(4).

•    "A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence": s 28(4).

•    "A statement or disclosure made by any witness in the course of giving evidence before a coroner at an inquest is not admissible in evidence against that witness in any civil or criminal proceeding in any court other than a prosecution for perjury in the giving of that evidence: s 54.

•    The Chief Magistrate may reopen an investigation and re-examine some or all of its findings, or direct another coroner to do so, if she is satisfied, amongst other things, that "the investigation was not sufficiently thorough or was compromised by evidentiary or procedural irregularity"; or that "the findings were not supported by the evidence"; or that "there is another compelling reason to reopen the investigation": s 58(1)(b), (e) and (f).  That power may be exercised on the application of a person whom the Chief Magistrate considers has a sufficient interest in the findings of the investigation: s 58(2)(b).

•    "Any person may apply to the Supreme Court for an order that all or any of the findings of an inquest are void": s 58A(1).  Such an order may be made if the court is satisfied, amongst other things, that "the inquest was not sufficiently thorough or was compromised by evidentiary or procedural irregularity"; or that "the findings were not supported by the evidence"; or that "there is another compelling reason to reopen the inquest": s 58A(3)(b), (e) and (f).  If such an order is made, there must be an order for the reopening of the inquest: s 58A(4).

21                   An inquest is an inquisitorial proceeding, and not a proceeding between parties: R v South London Coroner; ex parte Thompson (1982) 126 Sol Jo 625 at 628; Annetts v McCann (1990) 170 CLR 596 at 616; R v North Humberside Coroner; ex parte Jamieson [1995] QB 1 at 17; R v State Coroner; ex parte Minister for Health [2009] WASCA 165, 38 WAR 553 at [21].

22                   The significance of a coroner not being bound by the rules of evidence was discussed in the Victorian Court of Appeal in Priest v West [2012] VSCA 327, 40 VR 521. The relevant legislative provision was s 62(1) of the Coroners Act 2008 (Vic). In that case Maxwell P and Harper JA said, at [5]-[6]:

"[5] Under s 62(1) of the Act, the Coroner holding an inquest is expressly not bound by the rules of evidence. The subsection provides, moreover, that the Coroner 'may be informed … in any manner that the Coroner reasonably thinks fit'. As Tate JA notes, the trial judge took the view that these and related provisions gave coroners 'considerable latitude as to the manner in which an inquest is conducted'. In his Honour's view, this statutory flexibility and 'wide discretion' told against the argument that the coroner in the present case was bound to have regard to the material in the disputed statements.

[6]       With respect, we think these provisions point to the opposite conclusion. While undoubtedly giving the Coroner (appropriately) broad scope to shape and direct an investigation, these provisions emphasise Parliament's intention that the coroner should not be constrained in carrying it out. It is precisely because the Coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibitions on the collection and consideration of material which may assist in that task. Parliament has, in particular, exempted the Coroner's processes from the rules which limit the admissibility of evidence in court proceedings. Far from justifying a narrow view of the scope of an investigation, these provisions oblige the coroner to take an expansive or inclusive approach, in our view." [Footnotes omitted.]

23                   That case concerned an inquest into the death of a child.  The Court of Appeal concluded that the coroner had wrongly excluded statements about the deaths of five other children.

24                   In Walter Mining Pty Ltd v Hennessey [2009] QSC 102, [2010] 1 Qd R 593, a mining company sought an order under the Judicial Review Act 1991 (Qld) challenging the decision of a coroner to receive evidence from a witness called at an inquest by a trade union. It was argued that the witness lacked expertise and was biased, and that his evidence should therefore not have been received. McMeekin J dismissed the application. He said the following at [35]-[40]:

"[35]    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.

[36]     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.

[37]     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.

[38]     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.

[39]     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.

[40]     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."

25                   His Honour went on to reject the argument as to bias at [45]-[50].  He assumed, without deciding, that the witness was actively biased, but held that the bias of a witness was not a ground for the rejection of evidence, even if it was offered as expert evidence.  He did so on the basis that any bias went to the weight, if any, to be attached to the evidence, which was able to be tested in cross-examination.

26                   Counsel referred the Court to a number of cases relating to contentions that coroners had breached the rules of natural justice by denying procedural fairness.  The earliest of these was a case in the Court of Appeal in Northern Ireland – Re McKerr's Application (No 2) [1993] NI 249.  In that case a police witness had refreshed his memory from a document prepared shortly after he had made certain observations, and the coroner had refused to provide a copy of the document to counsel for the next of kin of the deceased.  Not surprisingly, it was held that there had been a denial of natural justice. 

27                   In R v Avon Coroner; ex parte Bentley [2001] EWHC Admin 170, which concerned the death of a heroin addict who overdosed in a hostel whose staff claimed to have expertise in looking after drug addicts, a coroner refused to disclose any documents before the inquest, including a post mortem report and a toxicologist's report.  Not surprisingly, it was held that there had been a denial of natural justice. 

28                   In R v Doogan; ex parte Lucas-Smith [2004] ACTSC 91, Whitlam J made orders prohibiting a coroner from taking evidence from two expert witnesses. Counsel appearing at the inquest had been provided with reports prepared by those witnesses for the inquest, but the coroner had refused requests for disclosure of their notes and source materials. His Honour held that certain categories of documents would satisfy the "legitimate forensic purpose" test if their production had been sought in civil litigation, and concluded, at [16] that the coroner had failed to afford procedural fairness.

Prohibition and procedural fairness

29 By virtue of s 43 of the Judicial Review Act 2000, various prerogative writs including prohibition are no longer to be issued in Tasmania. However relief similar to prohibition may be granted by a judge: Supreme Court Rules 2000, rr 623(1), 627(1)(a); Tasman Quest Pty Ltd v Evans [2003] TASSC 110, 13 Tas R 16. It follows that the criteria to be applied in determining whether to prohibit a coroner from receiving certain evidence are those that would have been applicable in determining whether to make an order for the issue of a writ of prohibition directed to a coroner when such prerogative relief was available.

30 From the outset there was clearly a possibility that the coroner might make adverse findings in relation to the respondent or one or more of its employees and/or contractors. It follows that the respondent had a sufficient interest for the coroner to be obliged to permit it to be legally represented, call and examine or cross-examine witnesses, and make submissions, pursuant to s 52(2) and (4) of the Act. It follows that the coroner had a duty to afford procedural fairness to the respondent: Annetts v McCann (above).  A failure to afford procedural fairness would constitute a constructive failure to exercise jurisdiction for which relief in the nature of prohibition could be granted.  See, for example, Re Refugee Tribunal; ex parte AALA [2000] HCA 56, 204 CLR 82 at [41].

31                   When a decision-maker has a duty of procedural fairness, relief in the nature of prohibition may be granted when there has been a denial of procedural fairness, or when a denial of procedural fairness is likely.  This case raises a question as to what degree of likelihood of a denial of procedural fairness will be sufficient to warrant the granting of relief.  Some guidance as to that point might be found in the High Court's decision in R v Australian Stevedoring Industry Board, ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100. That case concerned an inquiry as to whether a particular employer was unfit to continue to be registered as an employer of waterside labour or had acted in a manner whereby the proper performance of stevedoring operations had been interfered with. Dixon CJ, Williams, Webb and Fullagar JJ said, at 117-118:

"There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power ... or that an erroneous test of the liability of the employer to the cancellation or suspension of his registration will be applied or that some abuse of authority is likely. In any such case a writ of prohibition may lie ...".

32                   The Attorney-General contends that there is no evidence that the coroner has denied the respondent procedural fairness, nor that any such denial is likely. 

33                   R v Doogan; ex parte Lucas-Smith [2005] ACTSC 74, 158 ACTR 1, was a second case relating to the same inquest as the case with the same name referred to above. In this second case, the Full Court dealt with two applications for orders prohibiting the coroner from further conducting the inquest on the ground of apprehended bias. In dismissing the applications, Higgins CJ, Crispin and Bennett JJ said, at [189]:

"The arguments advanced by the prosecutors would have raised, at most, grounds for concern in relation to circumstances that have not arisen and might never arise. Prerogative relief will not usually be granted to address fears of such possibilities."

The reasoning of the primary judge

34                   The learned primary judge rejected the respondent's contentions in relation to Mr Webber's oral evidence and his report, quoting from Priest v West (above) and Walter Mining Pty Ltd v Hennessey (above). 

35                   At [22], he concluded that the fact or likelihood of a breach of the principles of natural justice had not been established, saying this about Mr Webber's evidence and his report:

"Woefully inadequate as it may be, parts of the report comprise admissible evidence. Difficult as it may be, the report can be dissected. Parts of it can be objected to on the inquest as unfair. And, Mr Webber can and no doubt will be cross-examined upon it. The complexity of the cross-examination does not to my mind amount to a relevant unfairness given the length at which the report has already been scrutinised. Nor does Mr Webber's role as an investigator. Moreover, any finding of the coroner based on inadequate or partial evidence can be set aside by this Court."

36                   At [23]-[39], his Honour addressed the arguments relating to the seven "source documents" that had been taken into account by Mr Webber.  At [23], he inferred that the coroner proposed to receive the seven documents without their authors being called as witnesses at the inquest.  His conclusions as to a denial of procedural fairness were all based upon that inference.

37                   At [27] his Honour referred to the cases in which coroners had been held to have denied procedural fairness and continued:

"While it is true ... that these cases, in the main, concern access to documents or materials to which an expert had regard, the underlying principles that emerge from those authorities are to my mind subtly different. They are, I apprehend, first, that a failure to call witnesses with relevant evidence, and instead simply relying on their statements is unfair, and second, that the fact that the respondent [the coroner] is not bound to observe the rules of evidence is an important reason for the applicant to be given generous access to any material available to the expert in connection with his report so as to be able to cross-examine effectively."

38                   After referring to Re McKerr's Application (above), R v Avon Coroner (above), and the first R v Doogan (above), his Honour said, at [33]:

"In the circumstances of the present case the application of the principles to be distilled from those cases means, to my mind, that the mere provision of copies of the source reports, without calling the authors of those reports, is not sufficient to afford the applicant procedural fairness. The focus must be on access to the facts and matters underpinning, but not necessarily stated or explained, on the face of those reports. This is particularly so given that the reports are not scientific data of general application, which may be derived from sources usually relied on by experts, and that Mr Webber cannot himself speak with the relevant specialised knowledge to the particular matters within those reports that are peculiar to the case."

Mr Webber's oral evidence and his report

39 In relation to the oral evidence of Mr Webber and his report, I consider that the learned primary judge was correct in reaching a conclusion to the effect that neither a denial of procedural fairness nor a likelihood of such a denial had been established. Under s 28(1) of the Act, the coroner has a duty to investigate the death of Mr Welsh and to try to find out how his death occurred. Because of s 28(2) of the Act, he has a duty to investigate the circumstances leading up to the death of Mr Welsh with a view to making recommendations with respect to ways of preventing further deaths and other appropriate matters. By virtue of s 51, he is not bound by the rules of evidence, and may inform himself in any manner that he reasonably thinks fit. He was therefore obliged to take an expansive or inclusive approach towards the scope of his investigation: Priest v West (above) at [6].

40                   Mr Webber has over 40 years' experience in the mining industry.  As I have said, he obtained a degree in mining engineering in 1975.  He worked as a mining engineer and as a mine manager until 1993, and thereafter undertook management and consultancy work in the industry.  It appears that he has undisputed expertise as to some subjects dealt with in his report, but not others.  It may be that there are better qualified experts who can opine as to most, if not all, of the topics relevant to the cause of Mr Welsh's death, but that is beside the point.  It was reasonable of the coroner to decide to receive Mr Webber's report and oral evidence from him because his report and his evidence were likely to be capable of assisting, at least to some degree, in establishing how the death occurred. 

41 The coroner's duty of procedural fairness obliges him to give the respondent an opportunity to cross-examine Mr Webber and to make submissions relating to his evidence and his report, by virtue of s 52(2) and (4) of the Act. That duty does not oblige him to narrow the scope of his investigation by not receiving Mr Webber's oral evidence or his report. By deciding that Mr Webber will be called as a witness, he has afforded a measure of procedural fairness to the respondent by making it possible for him to be cross-examined. It remains open to counsel for the respondent to make submissions to the coroner as to the weight to be attached to anything or everything that Mr Webber has said or written, or to the effect that no weight at all should be attached to some or all of his evidence. If any of Mr Webber's answers in cross-examination take counsel by surprise, or create a need for counsel to seek the advice of experts before cross-examining further, the coroner's duty of procedural fairness may require him to adjourn the inquest or defer further cross-examination of the witness. Counsel will have the right to make submissions as to the taking of any such course. It may well be that thorough and appropriate cross-examination of Mr Webber will be a difficult and time consuming exercise. But a man has died, and there is a witness who may well be able to provide very useful evidence as to the circumstances, and as to appropriate precautions to avoid future deaths. In those circumstances, there is nothing unfair about receiving relevant evidence that is poorly presented.

42                   I am not in a position to decide whether Mr Webber is biased against the respondent, let alone assess the extent of any such bias.  However, whilst any bias is relevant to the weight to be given to the evidence of a witness, it does not afford a ground for not receiving the evidence: Walter Mining Pty Ltd v Hennessey (above) at [50]. When the evidence of a witness can be tested by cross-examination, the possibility that the witness may be biased does not infect the impartiality of the court: Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 at [8]. In adversarial proceedings to which the rules of evidence apply, the fact that an expert witness is biased or not independent is not a bar to the admissibility of that expert's opinion evidence, though it may go to the weight of the evidence: Australian Securities and Investments Commission v Rich [2005] NSWSC 149, 190 FLR 242 at [334].

The seven "source documents"

43 The orders made by the learned primary judge in relation to the seven documents were based upon an inference drawn by him that the coroner proposed to receive those documents without their authors being called as witnesses at the inquest. The only evidence upon which that inference could have been based was the evidence that, on or about 7 February 2018, counsel assisting the coroner published an "inquest plan" that showed that certain witnesses were proposed to be called on certain days, but did not name any of the authors of the seven documents. There was no evidence that the coroner had closed his mind to the possibility of calling any of those authors. There was certainly no evidence that he had ever been asked to arrange for any of them to be called. It remained open to the legal representatives of the respondent to request that one or more of them be called. By virtue of s 52(2) of the Act, it was, and still is, open to counsel for the respondent to make a submission to the coroner that any or all of them should be called.

44                   If the inquest had reached a stage where the coroner had been asked to call the authors of the documents, and he had refused, then it might have been appropriate to challenge his refusal by instituting proceedings for relief in the nature of prohibition or some other form of relief.  But that stage had not been reached.  It follows that, insofar as the originating application related to the seven documents, it was premature. 

45 The respondent had commissioned and received the seven documents during the four years that preceded the fatal mud rush incident. Their contents might well be able to assist the coroner in discharging his duty to investigate how the death of Mr Welsh occurred. They might well be able to assist him in deciding whether it is appropriate to make some recommendations with respect to ways of preventing further deaths, or on some other matter, for the purpose of discharging his duty under s 28(2). It follows that they have such potential importance that it is reasonable for the coroner to inform himself by receiving them as evidence. It may be that one or more of their authors should be called to help him understand what they have written. It may be that the contents of one or more documents will be so significant that his duty of procedural fairness will require him to call the author or authors to give oral evidence for the purpose of cross-examination. He has not ruled that out.

46                   In my view, therefore, it was reasonable for the coroner to decide to receive the seven documents as evidence, and the evidence has not established that he has denied the respondent procedural fairness in respect of any of those reports in any way, nor that there is a likelihood of any such denial.

Conclusion

47                   For these reasons, I would dismiss the cross-appeal, allow the appeal, set aside the orders of the learned primary judge, discharge the general order to show cause, and dismiss the originating application.

File No 2074/2018

THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA

v COPPER MINES OF TASMANIA PTY LTD

COPPER MINES OF TASMANIA PTY LTD v SIMON JOHN COOPER

(First cross-respondent) and THE HONOURABLE ELISE ARCHER,

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT      FULL COURT

PEARCE J

7 June 2019

48                   I agree with the orders proposed by Blow CJ and his Honour's reasons for those orders. I wish to add one brief further observation about the proposed receipt by the coroner of the seven reports and documents referred to in Mr Webber's report. Those documents are listed in the Chief Justice's reasons.

49 Mr Welsh died in January 2014 as a result of mud and water rushing into the part of the mine where he was working. The reports and documents were commissioned and received by the respondent over the course of the four years or so before Mr Welsh died and seem, at least on the face of it, to bear direct relevance to the circumstances of his death. Leaving aside the issue taken with Mr Webber's report, it borders on the absurd to suggest that the coroner should be precluded, for reasons of procedural fairness, from informing himself of the contents of those documents and reports unless the authors are called as witnesses. In my view, the fact that the respondent had the reports before Mr Welsh's death is sufficient to make the contents properly receivable by the coroner as relevant to the investigation under Pt 5 of the Coroners Act 1995 and in particular to the discharge of the coroner's functions under s 28.

File No 2074/2018

THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA

v COPPER MINES OF TASMANIA PTY LTD

COPPER MINES OF TASMANIA PTY LTD v SIMON JOHN COOPER

(First cross-respondent) and THE HONOURABLE ELISE ARCHER,

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT      FULL COURT

MARSHALL AJ

7 June 2019

50                   I agree with the reasons for judgment of Blow CJ.