MARK JONES (applicant) v STATE CORONER (first respondent) and
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(second respondent)
FILE NO:
SC No 3589 of 2018
DIVISION:
Trial Division
PROCEEDING:
Originating Application
DELIVERED ON:
24 July 2019
DELIVERED AT:
Brisbane
HEARING DATE:
7 June 2019; supplementary submissions from the second respondent received 11 June 2019
JUDGE:
Wilson J
ORDERS:
The order of the Court is:
The application for judicial review is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – where there is a delay of some six to seven years between the applicant becoming aware of the decisions and the applicant seeking judicial review of the decisions – whether the application for judicial review was made within a reasonable time pursuant to section 26(3) of the Judicial Review Act1991 (Qld)
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – APPLICATION FOR JUDICIAL REVIEW – where an inquiry into a missing person was held under the Coroners Act1958 (Qld) – where the second respondent directed the first respondent to reopen the inquest – where the inquest was reopened under the Coroners Act1958 (Qld) – where the applicant seeks judicial review of the decision of the second respondent to direct the reopening of the inquest under the Coroners Act1958 (Qld) – where the applicant seeks judicial review of the decision of the first respondent to reopen the inquest under the Coroners Act1958 (Qld) – whether the inquest should have been reopened under the Coroners Act1958 (Qld) or the Coroners Act2003 (Qld)
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the applicant contends that the inquest should have been reopened under the Coroners Act2003 (Qld) – where the issue turns on the meaning of “pre-commencement death” in section 100(4) of the Coroners Act2003 (Qld) – whether there was a “pre-commencement death” within the meaning of section 100(4) of the Coroners Act2003 (Qld), and if so, whether the Coroners Act1958 (Qld) applies to the reopened inquest
Coroners Act1958 (Qld) s 5, s 7, s 7B, s 8, s 9, s 10, s 40, s 43, s 47
Coroners Act2003 (Qld) s 36, s 37, s 45, s 46, s 50, s 50A, s 100 Judicial Review Act1991 (Qld) s 4, s 20, s 26, s 46, s 49(1)
[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.
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AGLC
Jones v State Coroner [2019] QSC 175
Case
[2019] QSC 175
Decision Date
CaseChat Overview and Summary
The case of Jones v State Coroner involved a dispute regarding the reopening of an inquest into the death of a missing person. The applicant sought judicial review of the decision by the second respondent to direct the reopening of the inquest, as well as the decision of the first respondent to reopen the inquest. The central legal issue was whether the inquest should have been reopened under the Coroners Act 1958 (Qld) or the Coroners Act 2003 (Qld). The applicant argued that the inquest should have been reopened under the 2003 Act, while the respondents contended that the 1958 Act applied. The court was required to interpret the meaning of “pre-commencement death” in section 100(4) of the 2003 Act to determine which Act applied to the reopened inquest.
The court held that the applicant's application for judicial review was not made within a reasonable time, as there was a significant delay of six to seven years between the applicant becoming aware of the decisions and seeking judicial review. The court found that the applicant's application was therefore out of time and dismissed the application for judicial review. Additionally, the court held that the Coroners Act 1958 (Qld) applied to the reopened inquest, as there was no “pre-commencement death” within the meaning of section 100(4) of the 2003 Act. The court also considered the implications of the 2003 Act's provisions on evidence and witness testimony, finding that while transcripts of witness testimony from the reopened inquest may be admissible, there is a risk that witnesses may need to be recalled, which could result in additional costs, inconvenience, and delay.
The court dismissed the application for judicial review and held that the Coroners Act 1958 (Qld) applied to the reopened inquest. The court found that the applicant's application was out of time and that the Coroners Act 1958 (Qld) applied to the reopened inquest, as there was no “pre-commencement death” within the meaning of section 100(4) of the 2003 Act. The court also considered the implications of the 2003 Act's provisions on evidence and witness testimony, finding that while transcripts of witness testimony from the reopened inquest may be admissible, there is a risk that witnesses may need to be recalled, which could result in additional costs, inconvenience, and delay.
Orders
Orders of the court
The order of the Court is:
1. The application for judicial review is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is noted that section 37 of the 2003 Act provides:“37 Evidence(1) The Coroners Court is not bound by the rules of evidence, but may inform itself in any way it considers appropriate.(2) The Coroners Court may require a person to produce a document to the court before the start of an inquest.(3) The Coroners Court may inspect anything produced at an inquest, copy it, or keep it for a reasonable period.(4) The Coroners Court may do any of the following—(a) order a person to attend an inquest, until excused by the court—(i) to give evidence as a witness; or(ii) to produce something;(b) order a person called as a witness at an inquest—(i) to take an oath; or(ii) to answer a question.(5) In addition to the ways in which something may be served under the Acts Interpretation Act 1954, section 39, the Coroners Court may authorise service of an order in another way.(6) A person must comply with an order of the Coroners Court, unless the person has a reasonable excuse.Maximum penalty—40 penalty units.(7) If a person fails to attend an inquest as ordered, the court may issue a warrant for the person’s arrest.Note—For particular police powers relating to the arrest of a person, see the Police Powers and Responsibilities Act 2000, sections 21 (General power to enter to arrest or detain someone or enforce warrant) and 615 (Power to use force against individuals) and, for what happens if the person can not be taken before the coroner on the day of the arrest, see section 395 (Duty of officer receiving custody of person arrested under warrant other than for offence).(8) However, the court may issue the warrant only if satisfied the person was served in time for it to be practical, in normal circumstances, for the person to appear before the court.(9) The police officer must, as soon as practicable after the arrest, cause the person to be brought before the Coroners Court.(10) Once arrested, the person may be detained in custody until the Coroners Court excuses the person from attending the inquest.(11) The issue of a warrant, or the arrest of the person, does not relieve the person from liability incurred by the person for not complying with the order to attend.” The second respondent acknowledges that it is conceivable that all, or some, material acquired to date may be used by the Coroner upon any reopening under the 2003 Act, however, also sets out possible arguments as to why this may not occur:[76][76]Second respondent’s supplementary outline of submissions dated 11 June 2019, p 3, [10]-[15]. 1.first, as is made express in section 37(1) of the 2003 Act, such a procedural freedom is discretionary. The admissibility of material acquired under the reopened inquest will be a matter for the coroner and is a matter upon which reasonable minds may differ.[77] Respectfully, it cannot be presupposed that any or all material will automatically be admitted into evidence;[77]Doomadgee v Clements [2006] 2 Qd R 352; [2005] QSC 357 at 361 [36] (Muir J). 2.second, regardless, all documentary evidence from the reopened inquest will need to be acquired afresh using the coercive powers afforded to the coroner under section 37(2) and section 37(4)(a)(ii) of the 2003 Act. This is because all previously acquired documentary evidence will not be lawfully within the State Coroner’s possession or control;3.third, there is a real possibility that witnesses will need to be recalled at any reopened Initial Inquest under the 2003 Act because:a.the scope of any reopened Initial Inquest will include the ability for the coroner to comment upon matters of public health or safety or the administration of justice under sections 46(1)(a) and (b) of the 2003 Act, and witnesses may need to be recalled so as to ensure:i.procedural fairness is afforded to those witnesses;[78] andii.each interested party’s rights to examine witnesses under section 36(1) of the 2003 Act as to those issues is not curtailed;b.another person or other persons may seek leave to appear at any reopening of the initial inquest (including to address any comments upon matters of public health or safety or the administration of justice) and to admit prior transcripts of witness testimony without permitting a right of examination is tantamount to rendering that person’s or those persons’ right to examine witnesses nugatory under section 36(1) of the 2003 Act;[79] andc.the privilege against self-incrimination is abrogated under the 2003 Act in wider terms than the 1958 Act, such that it is possible a witness or witnesses may need to be recalled;4.for those reasons, whilst conceivably transcripts of witness testimony from the reopened inquest will be admissible under section 37(1) of the 2003 Act, there is a possibility such material would (legitimately) not be admitted into evidence and, even if it was, there is a real risk that witnesses will need to be recalled in any event with all attendant cost, inconvenience and delay.5.Notwithstanding the broad procedural freedom afforded by section 37(1) of the 2003 Act, an unanswered question, for which no authority could be identified (one way or the other), is whether it will be open for a witness to argue that, because he or she was summonsed and compelled to answer questions unlawfully, any answers provided by them are tainted by that unlawfulness and are thus cannot be used against them.6.That is, a serious question arises as to whether the admitting into evidence of those transcripts disadvantage or are unfair to those witnesses within the meaning of Kostas v HIA Insurance Services Pty Ltd[80] and K-Generation Pty Ltd v Liquor Licensing Court,[81] or constitute a curtailing of the rights of those witnesses who have been affected by the inappropriate use of administrative powers.[82][78]Copper Mines of Tasmania Pty Ltd v Cooper [2018] TASSC 25 at [22] (“there is no doubt that the principles of natural justice apply to coronial proceedings…”: Estcourt J).[79]Copper Mines of Tasmania Pty Ltd v Cooper [2018] TASSC 25 at [30] (Estcourt J), citing R v Avon Coroner; ex parte Bentley [2001] EWHC Admin 170.[80]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at 396 [17] (French CJ).[81]K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at 528 [82] (French CJ).[82]Walter Mining Pty Ltd v Hennessey [2010] 1 Qd R 593; [2009] QSC 102 at 603 [56] (McMeekin J).