Gallagher v The Coroners Court of the Australian Capital Territory
[2022] ACTSC 160
•6 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gallagher v The Coroners Court of the Australian Capital Territory |
Citation: | [2022] ACTSC 160 |
Hearing Date: | 30 March 2022 |
DecisionDate: | 6 July 2022 |
Before: | McCallum CJ |
Decision: | (1) Remove the Second Defendant as a party to the proceedings. (2) Set aside order 1 of the First Defendant made on 19 January 2022 refusing leave to the plaintiffs to appear at the inquiry into the cause and origin of the Orroral Valley Fire. (3) Remit the matter to the First Defendant to determine the plaintiffs’ application in accordance with these reasons. |
Catchwords: | CIVIL PROCEDURE — JURISDICTION — Judicial Review —Coroners Court — Where leave refused to NSW property owners to appear at inquiry into Orroral Valley Fire in the ACT — Whether Coroner mistook jurisdiction as constrained by geographical location of damage caused by fire |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1989 (ACT), s 19 Australian Capital Territory (Self-Government) Act 1988 (Cth), s 22 Legislation Act 2001 (ACT), s 122 |
Cases Cited: | Barci v Heffey [1995] VSC 13 |
Parties: | Karen Gallagher ( First Plaintiff) Michael Gallagher ( Second Plaintiff) Nicole Small (Third Plaintiff) Nina Clarke (Fourth Plaintiff) Tony Weston (Fifth Plaintiff) Steven Littlehales (Sixth Plaintiff) Annika Safe (Seventh Plaintiff) Gini Eagle (Eighth Plaintiff) Peter Bottomley (Ninth Plaintiff) The Coroners Court of the Australian Capital Territory (First Defendant) The Australian Capital Territory (Second Defendant) Attorney-General of the Australian Capital Territory (Intervenor) |
Representation: | Counsel W Sharwood ( Plaintiffs) H Younan SC with K Musgrove ( Intervenor and Second Defendant) |
| Solicitors Ken Cush & Associates ( Plaintiffs) ACT Government Solicitor ( Intervenor and Second Defendant) | |
File Number: | SC 45 of 2022 |
Decision under appeal: | Court/Tribunal: Coroners Court Before: Chief Coroner Walker Date of Decision: 19 January 2022 Case Title: Inquest into the Orroral Valley Fire Court File Number(s): CF 1 of 2021 |
McCallum CJ:
These proceedings raise an interesting question as to the nature and scope of the coroner’s jurisdiction to inquire into the cause and origin of fire.
On 27 January 2020, bushfire broke out in Orroral Valley in Namadgi National Park in the Australian Capital Territory. It appears to be uncontroversial that the fire was ignited by the heat generated by the landing light on an Australian Defence Force helicopter that landed in the area during a reconnaissance task. In the hot, dry and windy conditions prevailing at the time, the fire spread quickly and burned out of control for almost two weeks. It was not completely put out until a month after it started. It destroyed about 80% of the National Park. That fire has been referred to by authorities and in public discourse as the Orroral Valley Fire.
On 1 February 2020, the fire crossed the border into the State of New South Wales where it spread into residential areas. The fire there became known as the Clear Range Fire. The Clear Range Fire caused extensive damage to property, including destroying or damaging a number of properties in the Bumbalong area in NSW.
On 29 March 2021, a solicitor acting for a group of residents of the Bumbalong area wrote to the Chief Coroner of the Australian Capital Territory inviting her to hold an inquiry into the cause and origin of the Orroral Valley Fire. The Chief Coroner’s response drew a distinction between the Orroral Valley Fire and the fire that destroyed properties in Bumbalong. The letter acknowledged that the Orroral Valley Fire “crossed from the Territory into New South Wales”. However, the letter went on to argue that, from that point, the fire that burned in NSW was a separate fire that was managed by the New South Wales Rural Fire Service and known as the Clear Range Fire. The Chief Coroner took the view that the Coroners Act 1997 (ACT) did not authorise her to hold an inquiry into the Clear Range Fire and accordingly declined the request to hold “an inquiry into the fire that resulted in damage and destruction to [the Bumbalong residents’] properties in New South Wales”. The Chief Coroner stated however that she did propose to hold an inquiry into the cause and origin of the Orroral Valley Fire, exercising her jurisdiction under s 18(2) of the Act.
A question then arose as to who should be entitled to be represented at the hearing of that inquiry. Section 42 of the Act relevantly provides:
A coroner may grant leave to a person—
(a) …
(b) who, in the opinion of the coroner, has a sufficient interest in the subject matter of the inquest or inquiry;
to appear in person at a hearing or to be represented by a lawyer and, at the hearing, to examine and cross-examine witnesses on matters relevant to the inquest or inquiry to which the hearing relates.
The Bumbalong residents sought leave under that section to be represented at the hearing. The solicitor who represents them also acts for two residents of the ACT whose property was damaged by the Orroral Valley Fire who also sought leave to be represented at the hearing. The Chief Coroner granted leave to the ACT residents but refused leave to the nine residents of Bumbalong.
By these proceedings, the Bumbalong residents seek judicial review of the decision refusing them leave to be represented at the inquiry. This judgment determines that application.
Parties to the application
The originating application in this Court named the Coroners Court as first defendant and the Australian Capital Territory as second defendant. Although a notice of intention to respond was filed on behalf of the Territory, it was common ground at the hearing of the application that the only proper defendant is the Coroners Court as the decision-maker. The Coroners Court (appropriately) did not file a notice of intention to respond or seek to be heard. The Australian Capital Territory appeared only for the purpose of making an application pursuant to r 230 of the Court Procedures Rules 2006 (ACT) to be removed as a party on the ground that it had been inappropriately included. It is appropriate to make that order.
In the absence of a contradictor, the Attorney-General intervened in the proceedings, invoking his entitlement to do so under s 27 of the Court Procedures Act 2004 (ACT), s 35 of the Human Rights Act 2004 (ACT) and s 19 of the Administrative Decisions (Judicial Review) Act 1989 (ACT). I note that the human rights argument was not pressed by the plaintiffs but the other sources of the Attorney’s right to intervene remain in play.
The Plaintiffs’ application for leave to be represented
Following the Chief Coroner’s decision to hold an inquiry into the Orroral Valley Fire, the plaintiffs gave notice by letter of their intention to make an application pursuant to s 42 of the Coroners Act for leave to be represented at the inquiry. The application was heard on 30 November 2021. The transcript of the application was not put before this Court. However, subsequent correspondence suggests that an issue was raised at the hearing of the application as to whether the Clear Range Fire ought not more properly be the subject of a coronial inquiry in NSW. The plaintiffs subsequently provided confirmation to the ACT Coroner’s office (obtained from the relevant authority in NSW) that the Clear Range Fire had not been reported by Police to the NSW Coroner “as the fire originated in the ACT”. The correspondence confirmed that, accordingly, that fire was not part of the NSW Bushfire Coronial Inquiry being conducted by the NSW State Coroner into the 2019/20 bushfires in NSW. That information was subsequently confirmed directly to the Chief Coroner. The plaintiffs submitted in correspondence with the Chief Coroner’s office that “it is accepted by everyone that the Orroral Valley Fire morphed into the Clear Range Fire” and accordingly that the fact that the so-called Clear Range Fire had damaged property outside the ACT was legally irrelevant.
The Chief Coroner determined the plaintiffs’ application on 19 January 2022 in a detailed and thorough judgment delivered orally. After reciting the circumstances in which she had determined to hold an inquiry, her Honour noted the terms of s 42 of the Coroners Act and the fact that the applicants relied on the second limb of the section (set out above). That required the Chief Coroner to determine whether, in her opinion, the plaintiffs had a “sufficient interest” in the subject matter of the inquiry. Her Honour considered authorities concerning that term, including the decision of the Victorian Supreme Court in Barci v Heffey [1995] VSC 13 in which Beach J observed that the determination as to whether a person has a sufficient interest is a question of fact.
Her Honour then said:
“The approach taken by coronial courts, particularly in Australia, encompasses a broad and beneficial, one might even say therapeutic, approach to determination of what amounts to a sufficient interest. Although discretionary, the discretion must be exercised judicially. Having regard to the personal interests of the applicant for leave and any likely public benefit which might flow from a grant of leave where the personal interest is not sufficient.”
With respect, those remarks appear to conflate two discrete aspects of the task under s 42. The section provides that a coroner may grant leave to a person who, in the opinion of the coroner, has a sufficient interest in the subject matter of the inquest or inquiry. The formation of the opinion as to whether a person has a sufficient interest is not aptly described as discretionary. The discretion to grant or refuse leave is enlivened only upon the formation of that opinion.
In the present case, the Chief Coroner readily accepted that the two ACT residents who also sought leave had a sufficient interest. Leave was granted to those persons. However, in considering the same issue in respect of the plaintiffs, her Honour undertook a broader inquiry. It is appropriate to set out the relevant passage in full:
“That said, the scope of what may constitute sufficient interest must be circumscribed in some way. There are a number of considerations to that end, including but no doubt not limited, to the following; has the applicant for leave suffered any loss, material or otherwise, beyond that of the broader community?
And, particularly in relation to a fire inquiry, have they suffered property damage? Are there physical jurisdiction constraints? Will the applicant adduce evidence relevant for the coroner’s consideration? Will the applicant bring a level of expertise to the issues to be considered by the coroner beyond that of the general public?
The New South Wales residents will not be called as witnesses as to the cause and origin of the Orroral Fire as to which they have no particular knowledge or expertise. They will not be exposed to any risk of adverse comment. Whilst I accept for the purpose of this application that those residents of New South Wales making the application have suffered property damage, I reject the submission that the geographical location of that damage is irrelevant in determining sufficient interest.”
The Chief Coroner concluded that she was not satisfied that the plaintiffs had a sufficient interest to warrant a grant of leave to appear.
While that conclusion followed a discussion of the several questions posed in the passage set out above, it appears to have been informed primarily by the fact that, in the case of the plaintiffs, the damage to property had occurred outside the ACT. Her Honour said:
“The power of a coroner is limited to investigation of matters within her physical jurisdiction unless extended by exception as in relation to deaths, in which case, jurisdiction is extended to the deaths of people ordinarily resident in the ACT (section 13(2)(a)). In his oral submissions Mr Maconochie stated that the New South Wales residents would not be asking the coroner to enquire into the circumstances or nature of their loss.
But relied on their cultural and economic connection to the ACT. If one disregards the property damage suffered by the New South Wales residents is a basis for finding they hold sufficient interest in this inquiry one is left with their claim to be able to assist the coroner either simply as an effective contradictor or as a skilled contradictor having regard to the claimed expertise of their legal representatives.” (Emphasis added.)
The emphasised words indicate that the Chief Coroner approached the question of sufficient interest on the premise that, because she has no authority to investigate matters outside the ACT (subject to an exception that is not relevant here), the geographical location of the physical damage caused by a matter within her authority must be disregarded in the formation of the relevant opinion. I will return to that issue.
Grounds for review of the decision in this Court
The originating application specifies several grounds for review based on contended jurisdictional error (ground 1); improper exercise of power (ground 2) and error of law (ground 3). However, the argument as developed at the hearing before me focussed primarily on the contention that the Chief Coroner misconceived or mistook her jurisdiction. Ms Younan SC, who appeared with Ms Musgrove for the Attorney, accepted that, if that were established, it would amount to jurisdictional error and so would warrant the intervention of this Court.
Counsel for the plaintiffs submitted that the Chief Coroner’s misconception as to her jurisdiction lay in her consideration of “physical jurisdictional constraints” as a factor that was relevant in the formation of her opinion as to whether the plaintiffs had a “sufficient interest” within the meaning of s 42. He accepted that the geographical location of the matter the subject of the inquiry would be relevant to the issue raised under s 18 of the Coroners Act as to whether to hold an inquiry into the cause and origin of a fire at all. Thus, it may be accepted that it would be beyond the jurisdiction of the ACT Coroner to hold an inquiry into the cause and origin of a fire wholly contained within NSW. Counsel submitted, however, that “physical jurisdictional constraints” are legally irrelevant to the question of leave to be represented at the hearing of an inquiry within the authority of the ACT Coroner. He submitted that s 42 imposes no geographical restriction as to who is entitled to be granted leave under that provision.
It was not in dispute that the Chief Coroner did consider herself to be so constrained. Ms Younan accepted that, in determining the applications for leave, the Chief Coroner made two determinations: first, that the geographical location of the damage caused by the fire was a relevant consideration and secondly that she was “constrained by geographical limitation”. Ms Younan submitted, however, that there was no error in that approach.
I respectfully disagree. In assessing the Attorney’s submission, it is necessary to understand how the Chief Coroner considered her authority to be constrained geographically. The critical passage is set out at [16] above. It is clear from those remarks that her Honour considered, as a matter of power, that she was obliged to disregard property damage suffered in NSW in determining whether the plaintiffs had a sufficient interest. It may be accepted that the geographical location of the damage caused by a fire (including whether it occurred outside the ACT) is a relevant consideration in the exercise of the discretion whether to grant leave. The problem lies in the second determination accepted to have been made by the Chief Coroner, that is, that the geographical location of the damage imposed a constraint on her authority. The misconception lies in the fact that the subject matter of the inquiry is “the cause and origin” of the fire that was ignited within the ACT. The Chief Coroner has authority to inquire into that matter regardless of whether the damage caused by the fire reached over the border into the State of NSW. To put the matter another way, the fact that the fire crossed the border does not deprive the Chief Coroner of her authority to hold an inquiry into the cause and origin of that fire. Indeed, as recorded in her Honour’s judgment, the decision to hold an inquiry appears to have been reached in response to the request by the plaintiffs in their capacity as owners or occupiers of destroyed or damaged property, even though it was understood that the property was located in NSW: cf s 18(2) of the Coroners Act.
Ms Younan put three central arguments against the conclusion that the Chief Coroner misconceived her jurisdiction in that respect. First, she submitted that the Coroners Act, properly construed, reveals an intention to confine the scope of an inquiry under s 18 by reference to the geographical location of property destroyed or damaged by the fire. Ms Younan noted the terms in which the coroner’s functions concerning deaths and fires are described in s 3BA(3) of the Act:
(i) to hold inquests into particular kinds of deaths or suspected deaths, and to make findings about the deaths, including the identities of deceased people and causes of death;
(ii) to hold inquiries into, and make findings about, the cause and origin of—
(A) fires that have destroyed or damaged property; and
(B) disasters; and
Ms Younan noted that, in the case of an inquiry into a death, the Act expressly confers jurisdiction to hold an inquest into the manner and cause of death, outside the ACT, of a person who is ordinarily resident in the ACT (s 13(2)) whereas there is no equivalent provision in relation to fire. She submitted that, given the express requirement for a “jurisdictional hook” in the case of deaths outside the ACT, and the absence of any similar provision in relation to fires, the Act implicitly imposes a geographical limitation in the case of fires.
The second argument, which was really an aspect of the first, relied on s 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), which authorises the Legislative Assembly to “make laws for the peace, order and good government of the Territory”. It was submitted that that provision supports the proposition that there is an implicit geographical constraint.
So much may be accepted. The question is the proper content of that constraint. The Attorney’s argument tended to assume that the inquiry concerns the damage caused by the fire. While the existence of damage to property is a requirement for the coroner’s jurisdiction to be enlivened, the inquiry concerns the fire (specifically, its cause and origin), not the damage it causes. There are multiple reference in the Act to inquiries into a fire or the cause of a fire; nowhere in the Act is there any reference to an inquiry into damage. It follows in my view that the geographical limit on the coroner’s jurisdiction concerns the location of the cause and origin of the fire, not the location of the damage.
Finally, Ms Younan relied on s 122 of the Legislation Act 2001 (ACT), which provides:
(1) In an Act or statutory instrument—
(a) a reference to an entity or position by name or description is a reference to the entity or position of that name or description in or for the Territory; and
(b) a reference to a place, jurisdiction or anything else by name or description is a reference to the place, jurisdiction or thing of that name or description in or for the Territory.
(2) If the name of an entity or position established under an Act or statutory instrument includes the words ‘of the Australian Capital Territory’, ‘for the Australian Capital Territory’, ‘(ACT)’, or words having a similar effect, a reference in an Act or statutory instrument to the entity or position need not include the words.
Ms Younan submitted that the reference to “fire” in the Coroners Act is a reference to a “thing” within the meaning of s 122 of the Legislation Act and accordingly that such references to fire should be understood to mean fire “in or for the Territory”. I doubt whether the Legislation Act was intended to apply in that way (still less, whether fire is a “thing” in the relevant sense) but in any event the argument does not answer the plaintiffs’ point. By seeking leave to be represented at an inquiry into the cause and origin of an ACT fire, the plaintiffs do not seek to hijack the inquiry so as to consider the cause and origin of a fire outside the ACT.
Ms Younan submitted that, contrary to a suggestion I made during argument, our conception of fire is not metaphysical; fire is “a thing that is manifest by damage and destruction to property”. I do not accept that fire is manifest only by the damage it causes. Fire, like wind and water, has its own existence apart from the country it affects. Not all fire is damaging. The Coroners Act implicitly acknowledges as much; only a fire that has destroyed or damaged property enlivens the coroner’s jurisdiction. The point is that the coroner’s statutory function focusses on the fire, not the damage.
For those reasons, I am satisfied that the Chief Coroner mistook her jurisdiction in that she considered herself to be constrained, as a matter of power, to disregard damage to property outside NSW in determining whether the plaintiffs had a “sufficient interest” within the meaning of s 42 of the Coroners Act. It follows that jurisdictional error is established.
In light of this conclusion, it is not necessary to consider the plaintiffs’ alternative arguments. However, to be clear, it is appropriate to record that this decision should not be understood to derogate from the coroner’s entitlement to have regard to the importance of keeping the inquiry within reasonable bounds and expense, a principle endorsed by the Court of Appeal in R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 at [28] in the following remarks cited in argument:
“[The Coroners Act] does not authorise the Coroner to conduct a wide-ranging inquiry akin to that of a Royal Commission with a view to exploring any suggestion of a causal link.”
Orders
For those reasons, I make the following orders:
1) Remove the Second Defendant as a party to the proceedings.
2) Set aside order 1 of the First Defendant made on 19 January 2022 refusing leave to the plaintiffs to appear at the inquiry into the cause and origin of the Orroral Valley Fire.
3) Remit the matter to the First Defendant to determine the plaintiffs’ application in accordance with these reasons.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 6 July 2022 |
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