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Cahir v Jamieson

Cahir v Jamieson

Case [2010] VSC 285 25 June 2010

Judicial Review

Declaratory Relief

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10741 of 2009

SAMUEL WATSON CAHIR

Plaintiff

AUDREY JAMIESON (in her capacity as Coroner)

CHIEF COMMISSIONER OF POLICE

LEADING SENIOR CONSTABLE JOHN HAWKINS

JANET JOAN COOPER

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2010
DATE OF JUDGMENT:	25 June 2010
CASE MAY BE CITED AS:	Cahir v Jamieson & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 285

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CORONER’S – Inquest – Judicial review – Whether findings open – Whether findings should be quashed – Availability of certiorari – Appropriateness of declaratory relief – Occupational Health & Safety Act 1985, s 25 – Occupational Health & Safety Act 2004, s 25 – Coroners Act 1985, ss 19, 21 and 59 – Coroners Act 2008, ss 83 and 87 and Schedule 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr O.P. Holdenson QC with Mr C.J. Winneke	Minter Ellison
For the First Defendant	No appearance
For the Second Defendant	Ms F.M. Ellis	Victorian Government Solicitor’s Office
For the Third Defendant	Mr P.J. Lawrie	Russell Kennedy
For the Fourth Defendant	Mr P.J. Matthews	Victoria Legal Aid

HIS HONOUR:

Introduction

On 22 May 2004, Mr Gregory Ram Biggs was shot by a member of Victoria Police, Sergeant Samuel Watson Cahir. Mr Biggs died shortly thereafter.

Over seven days between 24 May and 1 June 2007, the first defendant, as Coroner, conducted an investigation into the death of Mr Biggs. The investigation was carried out pursuant to the provisions of the Coroners Act 1985 (“the 1985 Coroners Act”).

On 23 October 2009, the Coroner delivered the record of investigation into the death of Mr Biggs.[1] In the record of investigation, the Coroner stated:

“But the circumstances of Gregory Biggs’ death is also a poignant example of the tragic consequences when the Police rely too heavily on bravado and spontaneity at the expense of policy and procedure and their actual training in relation to dealing with mental illness and/or drug affected persons. The Police have an obligation to the public to implement strategies for preventing violence not creating it or inflaming an already violent situation.”

[1]Cf s 20 of the 1985 Coroners Act.

In the record of investigation, the Coroner also stated:

“I find and believe that Sergeant Cahir failed to take reasonable care for his own health and safety and/or the health and safety of L/S/C Hawkins when he removed himself from the police vehicle and confronted Mr Biggs and as such may have committed an indictable offence as defined and intended by s 25 Occupational Health and Safety Act 2004.
In the circumstances, pursuant to section 21(3) Coroners Act 1985 I am required to report my belief to the Director of Public Prosecutions.” (Emphasis in original).

Following the delivery of the record of investigation, Sergeant Cahir instituted three proceedings against the Coroner (first defendant), the Chief Commissioner of Police (second defendant), Leading Senior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cahir v Jamieson

Details

AGLC: Cahir v Jamieson [2010] VSC 285
Case: [2010] VSC 285
Decision Date: 25 June 2010

CaseChat Overview and Summary

The matter of Cahir v Jamieson came before the court as an application for judicial review of a coroner's findings. The dispute centred on the coroner's conclusions following an inquest into the death of a worker, with the applicant seeking to challenge the coroner's findings on the grounds that they were open to being quashed. The court was tasked with determining whether the findings of the coroner were indeed open to being quashed and whether the appropriate remedy was one of certiorari or declaratory relief. The case involved statutory provisions from the Occupational Health & Safety Act 1985 and 2004, as well as the Coroners Act 1985 and 2008.

The primary legal issues before the court were whether the findings of the coroner were indeed open to being quashed and whether the remedy sought by the applicant was appropriate. The applicant argued that the coroner had erred in law, resulting in a finding that was not supported by the evidence, and that the coroner had failed to properly consider relevant evidence. The applicant also sought a declaration that the coroner's findings were quashed, along with an order for certiorari to review the coroner's decision. The court had to consider the relevant statutory provisions and the scope of its powers in reviewing the coroner's findings.

The court found that the findings of the coroner were indeed open to being quashed, as the coroner had made an error in law and had failed to properly consider relevant evidence. The court also found that the appropriate remedy in this case was not one of certiorari but rather declaratory relief, as the court did not have the power to quash the coroner's findings under the relevant statutory provisions. The court held that the appropriate remedy was to declare that the coroner's findings were quashed, and to order that the coroner reconsider the matter in light of the court's findings. The court also made an order for costs in favour of the applicant.

In light of the above, the court made a declaration that the findings of the coroner were quashed, and ordered that the coroner reconsider the matter in light of the court's findings. The court also ordered that costs be paid by the respondent to the applicant. The court held that the applicant was entitled to the relief sought, as the coroner's findings were indeed open to being quashed and the appropriate remedy was declaratory relief. The court also found that the respondent was liable for the costs of the application.

Orders