Herald & Weekly Times Ltd v West and Rix

[2002] VSC 176

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. 5518 of 2002

THE HERALD & WEEKLY TIMES LTD	Plaintiff
v
I.T. WEST and B.L. RIX	Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 13 May 2002
DATE OF JUDGMENT:	13 May 2002
CASE MAY BE CITED AS:	The Herald & Weekly Times Ltd v West and Rix
MEDIUM NEUTRAL CITATION:	[2002] VSC 176

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Prerogative relief – Application for order in nature of certiorari quashing Order of Deputy State Coroner – Revocation of impugned order – Costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Houghton, QC with Mr J. Pizer
For the Defendants	Mr G. Dreyfus, QC with Mr D. Gilbertson

HIS HONOUR:

1. On 2 May last the Deputy State Coroner made an order concerning, according to the order copies of which were distributed to organs of the media, an investigation into the deaths of Paul King and Margaret Wales-King.  The Deputy State Coroner described the application which led to the making of the order as an application by Detective Inspector Brian Rix of the Victoria Police for the suppression of publication of the existence of eight items.

1. His Worship, according to the order, was satisfied that the publication or release of this information was not in the public interest and, relying on s.58 of the Coroner's Act 1985, he ordered that the reporting, release or publication of the existence of what were described as "these potential exhibits" be suppressed.

1. It appears from the material before me that journalists employed by the Herald & Weekly Times Limited, the plaintiff in this proceeding, knew of the existence of some of the items quite independently of the order to which I have referred and that there had been some discussion between one or more of those journalists and Detective Inspector Rix as to whether and when the existence of the items might be disclosed in the media.  That discussion, it seems, took place both before and after the making of the order.  It was apparently contemplated that the Herald & Weekly Times might disclose the existence of the various items with police approval on about 8 May.  But when that day arrived and the position of the police was still that there should not be publication, the Herald & Weekly Times commenced the present proceeding – an application that the order of the Deputy State Coroner be quashed. 

1. When the matter came on for hearing before me on Friday, no person had been charged with the killing of Mr King and Mrs Wales-King.  The matter was part heard on Friday. In the interim a person has been charged with the substantive offence. 

1. This morning, it appears, the Deputy State Coroner revoked the order made on 2 May. 

1. On Friday I made orders suppressing any reporting of the present proceeding and precluding any search of the court file.  It is common ground that those orders should now be discharged.

1. The remaining issue is that of costs.  According to the submission of Senior Counsel for the Herald & Weekly Times, costs should lie where they fall.  According to the submission of Senior Counsel for Mr Rix, the second defendant to this proceeding, the costs should be paid by the Herald & Weekly Times.  Essentially, the arguments as to costs have focussed upon the viability or otherwise of the bases upon which the proceeding was brought.  For the plaintiff Herald & Weekly Times it has been submitted that the two grounds upon which an order was sought quashing the order of the Deputy State Coroner were viable.  For Mr Rix it was submitted they were hopeless.  The two grounds were first that the Deputy State Coroner had exercised a jurisdiction which he did not have in relying upon s.58(1) of the Coroner's Act to make the order which was impugned;  and second, that Herald & Weekly Times should have been given, but was not given, an opportunity to be heard before the order was made.

1. It is, I must say, not satisfactory that an application for costs falls to be determined by considering in turn something of the substance of a matter which does  not now require determination.   That said, I consider that the first basis upon which the plaintiff put its case - at the time when the proceeding was commenced and I think also at all stages during the hearing on Friday last - was far from being hopeless.

1. Critical to determination of the first ground upon which the Deputy State Coroner's order was challenged was the question whether the order was made in the course of the investigative process to which the Coroner's Act makes much reference or, alternatively, was made in the course of an inquest.  The order itself in terms did not suggest that an inquest had been convened.  It referred, as I pointed out a little while ago, to an investigation into the deaths of two persons.  Such information as the Herald & Weekly Times otherwise possessed at the inception of the proceeding was consistent with the order not being made at an inquest.  Not until an incomplete transcript  of the hearing before the Deputy State Coroner was exhibited to an affidavit sworn by Mr Rix last Friday  was there a suggestion that the order had been made at an inquest, a suggestion which might be said to have raised more questions than it answered because of apparent non-adherence to the regime which the Coroner's Act requires when an inquest is to be held and with respect to the conduct of an inquest once established.  It might be the case, in light of further material recently prepared on behalf of Mr Rix, that the court would have been affirmatively persuaded that the order  was made at an inquest and so was putatively authorised by s.58(1) of the Coroner's Act.  Even now, that is perhaps not as clear as it might be.  Further, there would or might arise a question as to the form of the order itself.  Whether that form - assuming that s.58(1) applied - was authorised by the section is, I think, a moot point.

1. Without saying anything about the second basis upon which the order of 2 May was attacked in this proceeding, I am persuaded that the proceeding was at its inception  not without reasonable foundation;  and even now that it could not  be said in light of additional material that it was assured of failure. 

1. I consider that upon the issue of costs, the proper course is that each party pay its, or in the case of Mr Rix his, own costs.

1. Order that -

1Paragraphs 1, 2 and 3 of the Orders made in the proceeding on 10 May 2002 be discharged. 

2There be no order as to costs.

3The proceeding be otherwise struck out.

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