B v Coroners Court at Auckland
[2020] NZHC 2278
•2 September 2020
NOTE SUPPRESSION ORDERS AS PER PARAGRAPHS [136] AND [137] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2665
[2020] NZHC 2278
BETWEEN B
Applicant
AND
CORONERS COURT AT AUCKLAND
Respondent
CIV-2019-404-2271 BETWEEN
A
Applicant
AND
CORONERS COURT AT AUCKLAND
Respondent
Hearing: 2, 3 June 2020 Appearances:
M F McClelland QC, R T Daley & T Mijatov for B A J Gaborieau for A
A F Pilditch - Counsel assisting the Court
Judgment:
2 September 2020
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 2 September 2020 at 3:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Wotton Kearney, Wellington Parker Cowan, Queenstown
B & A v CORONERS COURT AT AUCKLAND [2020] NZHC 2278 [2 September 2020]
[1] On 8 July 2009, Zachary Gravatt died from meningococcal C while in the care of Auckland hospital. He was 22 years old.
[2] On 8 April 2019, following the second of two coronial inquiries into the circumstances of Zachary’s death, Coroner McDowell (the Coroner) issued her findings. She found that there were no deficiencies in the hospital’s medical treatment of Zachary. Prior to the commencement of the inquiry, the Coroner had made interim non-publication orders in respect of the names of the medical staff directly involved in providing medical care for Zachary, and in respect of an anonymous letter written to Zachary’s parents regarding the hospital’s care of Zachary. This letter was the catalyst for the Second Inquiry.
[3] Upon release of her Second Inquiry findings, the Coroner invited submissions from the parties involved in the inquiry regarding the making of non-publication orders, and as to non-publication of the contents of the anonymous letter.
[4] Drs A and B were both doctors involved in Zachary’s care. Each applied for a non-publication order, with respect to:
(a)The anonymous letter, insofar as it relates to them; and
(b)Any name or particulars likely to lead to their identification in relation to the investigation and inquest into Zachary’s death.
[5] The Coroner denied their applications in a Ruling delivered on 2 October 2019. Drs A and B now challenge this decision and say that the non-publication orders should have been made.
[6] By originating applications, Drs A and B both apply pursuant to s 74 and 75 of the Coroners Act 2006 (the Act) for:
(a)An order quashing the Coroner’s decision to decline to grant them permanent non-publication orders in respect of their names and identifying particulars;
(b)A permanent non-publication order in relation to their names and identifying particulars and the unredacted contents of the anonymous letter;
(c)Consequential orders redacting their names and identifying particulars as well as the contents of unredacted parts of the anonymous letter from the Court’s determination of the applications.
[7]In this judgment I shall determine the following:
(a)Does s 75 of the Act apply where there has been a refusal by the Coroner to order a prohibition?
(b)If s 75 applies, what is the nature and scope of the review?
(c)The merits of B’s appeal.
THE MERITS OF A’S APPEAL
Background
8 July 2009
[8] The details of what happened on 8 July 2009 have been comprehensively set out in other decisions.1 The following summary is focussed on and limited to the respective roles played by Drs A and B in relation to Zachary’s treatment at the hospital.
[9] At around 4.00 am on 8 July 2009, Zachary woke up vomiting, with a fever, a headache, and pain in his groin. Having made an appointment he was examined by his General Practitioner (GP) at the Herne Bay Medical Centre around midday. His GP referred him to Auckland City Hospital and he was taken there by ambulance. He
1 See, for example, the decision of Whata J in Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345.
arrived at the Emergency Department at around 1.35 pm. He continued to complain of pain in his upper abdomen and his lower chest and had an elevated heart rate.
[10] At that time, New Zealand was in the midst of the “swine flu” global pandemic, and the hospital was struggling to cope with significantly increased patient numbers well above normal for that time of year. As Zachary presented with “flu-like symptoms”, the hospital medical staff initially suspected that he too was suffering from swine flu.2 After being triaged and assessed as ‘triage category 3’, which required him to be seen by a medical practitioner within 30 minutes, he was transferred to the Admission and Planning Unit (APU) and placed in a room being used for patients suspected of having contracted the swine flu. Over the course of the afternoon, Zachary’s condition deteriorated, and at 6.40 pm following assessments undertaken by Drs A and B, he was moved from the APU to the Department of Critical Care Medicine (DCCM). At 7.15 pm, just 35 minutes after arriving at the DCCM, he tragically died.
The First Coronial Inquiry
[11] The First Coronial Inquiry took place on the papers (the First Inquiry). Coroner Shortland issued his initial findings on 11 November 2011. He identified several deficiencies in the care provided to Zachary. These included delays in assessing and treating Zachary, in diagnosing meningococcal disease, and in referring Zachary to the DCCM. Coroner Shortland also made several detailed recommendations. The findings of the Coroner were summarised by Whata J at [5]-[18] of his decision in Gravatt.3
[12] In June 2013, the ADHB issued a media release recording that a settlement had been reached with the Gravatt family in recognition of the shortcomings in care. This included an apology, an indication that measures based on the lessons learned from Zachary’s death had been implemented, and an ex gratia payment. The statement said that the issues arising from Zachary’s death had been resolved, although it was noted that the Gravatt family and the ADHB continued to hold different views on whether the shortcomings in care had caused Zachary’s death.
2 This assessment was made by his GP, the triage nurse, and the nurse who gave him his initial assessment at 2.00pm.
3 Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345.
The anonymous letter
[13] Some seven years after Zachary’s death, in September 2016, Zachary’s father received a typewritten letter signed by an anonymous “ADHB employee” and dated 29 August 2016. The author of the letter alleged that there had been a cover-up of the true circumstances of Zachary’s death, questioned the ADHB’s motives in its handling of the case, and named four ADHB employees involved in Zachary’s care. The anonymous letter was critical of Dr A’s actions and medical competence in his care of Zachary. The letter was also critical of Dr B’s medical competence and his management of Zachary’s care, and alleged that he had not told the truth about aspects of what had occurred.
[14] Zachary’s father sent the anonymous letter to the Crown Law Office and requested the Solicitor-General to order a new inquiry under s 97 of the Act. The Deputy Solicitor-General, acting under delegation, then ordered a Second Coronial Inquiry into Zachary’s death (the Second Inquiry).
The Second Coronial Inquiry
[15] The hearing for the Second Inquiry was held between 24 and 31 October 2018 and focussed on the actions of Dr A and Dr B to a greater extent than had been the case in First Inquiry. The Coroner subsequently released her findings on 8 April 2019.4 In her findings, the Coroner addressed and determined the following issues:
(a)The sequence of events between the time of the first contact made with the DCCM through until Zachary’s death.
(b)Whether there were opportunities to increase or escalate treatment options for Zachary earlier than had occurred in relation to: fluid resuscitation; vasopressor initiation; mechanical ventilation; intubation; the prescribing and administration of antibiotics; and the attendance/involvement of the DCCM team, including senior doctors.
4 Inquest into the death of Zachary Gravatt: Findings CSU-2009-SUK-000932, 8 April 2019 [Coroner’s Findings].
(c)To what extent any earlier treatment or intervention, (as identified from issue (b)) or the earlier presence of the Duty Intensive Care Consultant (or other senior doctor) could have affected Zachary’s chances of survival.
(d)Whether any recommendations or comments were required for the purpose of reducing further deaths occurring in circumstances similar to those in which Zachary’s death occurred.
The sequence of events with particular reference to the roles of Drs A and B
[16] In July 2009 Dr A was working at the ADHB as an intensive care registrar. He was first contacted at about 5.30pm, by the on-duty consultant physician in the APU. The on-duty consultant made a full assessment of Zachary’s condition and considered that his symptoms were consistent with an influenza illness, myocarditis and disseminated intravascular coagulopathy. The consultant concluded that Zachary should be admitted to the DCCM to support his blood pressure, obtain a surgical opinion and get a CT scan. He had noticed one purpuric lesion on Zachary’s back. At around 5.30pm the consultant physician made a telephone call to the Intensive Care Registrar cell-phone and spoke to Dr A, and requested that he review Zachary and decide whether he should be admitted to the DCCM.
[17] The Coroner accepted that Dr A commenced his assessment of Zachary between 5.45pm and 6pm. Dr A immediately observed that Zachary was in significant discomfort, and towards the end of his examination saw that he had a non-blanching rash, which he considered indicated severe sepsis and possible meningococcal disease. The Coroner was satisfied that it was around this time that the diagnosis of meningococcal disease was first discussed as a possibility, and that the diagnosis was made. Dr A immediately ordered the antibiotic ceftriaxone, which he considered to be the preferred antibiotic for meningococcal disease. Dr A then telephoned Dr B, who was the on-call duty consultant intensivist to explain the situation.
[18] At the time of this phone call, Dr B was not at the hospital. He had commenced work that morning at approximately 8.30am and had completed the afternoon ward round at 4pm. Sometime after 5pm he had left the hospital to go for dinner with a
medical colleague at a restaurant in Ponsonby approximately 2.8 kilometres distance from the hospital. The ADHB telephone data presented in evidence records that a telephone call was made from the APU to Dr B’s cellphone at 6.08pm and lasted six minutes and 20 seconds.5 Dr B says he recalls receiving the phone call from Dr A towards the end of his dinner.
[19] Dr A advised Dr B of Zachary’s medical history and the test results. On hearing this information, Dr B immediately concluded that it indicated Zachary had meningococcal disease, which Dr A had also suspected. Dr B directed that Zachary be admitted urgently to the DCCM and that an antibiotic be requested, and invasive monitoring commenced. Dr A says, however, that by then he had already requested the antibiotic. Dr B also advised that intravenous fluids should be given, and that medication to support Zachary’s blood pressure should be administered if required. Dr B told Dr A that he would return to the hospital immediately.
[20] The Coroner found that Dr B arrived back at the hospital some minutes after Dr A had intubated Zachary about 7.00pm. That time was established from the time of a “difficult airway alert” initiated by Dr A, and from Dr A’s evidence to the Coroner that Dr B had arrived back in the DCCM some few minutes after that alert had been issued.
[21] The time interval between Dr A’s phone call to Dr B and his arrival back at the DCCM was a keenly contested issue at the hearing before the Coroner. Dr B explained the time interval, saying that he had been delayed in traffic. The Coroner rejected the explanation that traffic congestion was the reason for the delay. She found that the time interval of between 35-50 minutes was longer than would be expected for someone to drive the 2.8km distance. The anonymous letter claimed that Dr B had also been telephoned by a staff nurse four times over a period of 20-30 minutes while he remained at the restaurant, and a nurse gave evidence that Dr B had commented to her about a week after Zachary’s death, that he had needed to finish his dessert before he returned to the hospital. However, the Coroner found Dr B’s remark about having to
5 The Coroner noted in her Findings evidence presented to her that the time of telephone calls made through Auckland Hospital’s Grafton PABX telephone system could not be regarded as being completely accurate as the system tended to ‘drift’ and could be incorrect by more than ten minutes. Coroner’s Findings at [68] – [70]
finish his dessert to have been nothing more than a “flippant comment”, and that there was “no evidence that [it] was the actual reason for any delay in his return to the hospital”.6 Significantly, the Coroner found that although it would have been preferable for Dr B to have been present back at the hospital earlier than he had, it was too speculative to conclude that had he been present earlier, Zachary’s prospects, particularly as regards the intubation, would have been improved.
[22] Dr B was telephoned at least twice by one of the nurses to update him on what was happening: the first while he was driving back to the hospital, and the second after he had arrived back at the hospital and was in a lift on his way to the DCCM.
[23] Immediately following his telephone call with Dr B, Dr A arranged for Zachary to be transferred to the DCCM. This transfer took place at around 6.40pm. Almost immediately following his arrival at the DCCM Zachary’s condition deteriorated rapidly, and he developed extreme respiratory failure and distress. It was then decided that Zachary required intubation. As Dr B had not yet arrived back at the hospital, Dr A decided to carry out the intubation procedure himself. Despite encountering difficulties with the intubation which caused him to initiate a difficult airway alert, Dr A managed to successfully intubate Zachary shortly after 7.00pm. Dr B arrived in the unit a few minutes later.
[24] Notwithstanding all attempts by the medical staff to stabilise Zachary’s heart and his blood pressure, his condition became progressively unstable, and he died at 7.15pm.
Were there opportunities to escalate care earlier?
[25] The Coroner found that the expert evidence showed that a “Code Red” alert could have been made between 4.15 – 5 pm. A “Code Red” alert is activated for people who are pre-arrest and physiologically unstable. The Coroner found that had a Code Red alert been called, there would have been an emergency team response which would have included the DCCM registrar. Had that occurred, Zachary would have been seen and assessed by DCCM staff earlier, the severity of his condition may have
6 Coroner’s Findings at [130].
been realised sooner, and he would likely have been transferred to the DCCM earlier than had actually occurred.7 However, the Coroner was not prepared to conclude that an earlier escalation of Zachary’s care would have materially affected his chances of survival. At most, it could be concluded that the opportunity to maximise his chances of survival was missed.8 The Coroner concluded:9
On the totality of the evidence surrounding this point, including Zachary’s rapid deterioration and the general mortality rates, I am satisfied that the weight of evidence indicates that Dr [B’s] earlier presence in the DCCM (at the time of Zachary’s arrival) would unlikely have made a difference to Zachary’s outcome.
[26] Ultimately the Coroner was not critical of the actions of Drs A and B, and she made no recommendations relating to any aspect of their care. To the contrary, several of the Coroner’s findings in the Second Inquiry were supportive of their actions.
[27]In relation to Dr A, the Coroner held that:
(a)Dr A’s attendance and assessment of Zachary, as the DCCM registrar, complied with applicable standards in terms of expected time frames;
(b)Dr A’s decision not to intubate Zachary in the High Dependency Unit was reasonable and appropriate;
(c)Dr A was sufficiently qualified and competent to perform intubation;
(d)The intubation was managed appropriately and in accordance with standards of care;
(e)Dr A did not miss any opportunity to escalate care;
(f)There was no unreasonable delay by Dr A to administer the appropriate antibiotic;
7 Coroner’s Findings at [186]
8 Coroner’s Findings at [331]
9 Coroner’s Findings at [334]
(g)Dr A discussed diagnosis and treatment of meningococcal disease with Dr B in their first telephone call;
(h)Dr A’s attendance and assessment of Zachary complied with all applicable standards in terms of expected timeframes and level of care.
[28]In relation to Dr B, the Coroner found that:
(a)Although there was some confusion and disagreement about some of the factual details during the inquest, the findings did not unfairly criticise Dr B;
(b)There was no substantial scope for Zachary to have received additional treatment;
(c)Although it would have been ideal for Dr B to have been present at the time of Zachary’s admission to the DCCM, it was too speculative to conclude that had he been present earlier, Zachary’s prospects would have been improved;
(d)Dr B identified meningococcal disease in the course of the first telephone call from Dr A regarding Zachary, he identified the appropriate treatments, and then returned to the hospital;
(e)The Coroner was not critical of Dr B’s decision to leave the hospital to have dinner. She noted that he had worked a normal business day, and there was a “lull” in the DCCM’s workload following the afternoon ward round;
(f)As regards Dr B’s comment around needing to finish his dessert, although preferring the nurse’s evidence that Dr B had made such a comment, the Coroner accepted that it had been a flippant remark which was not intended to be taken seriously. The Coroner found that there was no evidence proving that the actual reason for Dr B being delayed
returning to the hospital was that he had taken time to finish his dessert at the restaurant.
Coroner McDowell’s Decision on Suppression
[29] Following the Coroner issuing her findings, Dr A and Dr B both applied pursuant s 74 of the Act for orders for permanent non-publication of the anonymous letter insofar as it refers or relates to them on the grounds that the anonymous letter contains unsubstantiated claims that are damaging to their personal and professional reputations. They also sought permanent non-publication of their names and any identifying particulars likely to lead to their identification in relation to the Coroner’s Second Inquiry decision regarding Zachary’s death. The applications were made on the grounds that their personal interests outweigh any public interest in the publication of their names, and that the orders for the prohibition of publication are in the interests of justice.
[30] In her Ruling declining the applications for non-publication delivered on 2 October 2019, the Coroner first addressed and considered Dr A’s application.10 Dr A’s primary concern was that there is a real possibility of reputational damage should his name be published, both in relation to the findings themselves and in connection with the anonymous letter. Dr A is concerned that publication would have a detrimental impact on his professional and personal life, particularly in connection with the trust his patients would have in him and also on his ability to gain future employment. He contended that a non-publication order was in the interests of justice.
[31] In her Ruling, the Coroner noted that the findings were not in any way critical of Dr A.11 She highlighted a number of examples where the findings from the Second Inquiry were actually supportive of his actions.12 This strongly mitigated against any adverse reputational impacts arising out of the decision, and as reported in the media.
10 Inquiry into the death of Zachary Gravatt: Ruling in relation to applications for non-publication
CSU-2009-AUK-000932, 2 October 2019 [Coroner’s Suppression Decision].
11 At [94].
12 At [95].
[32] Further, the Coroner observed that the possibility of negative media coverage did not trigger interests of justice considerations, and that an inquiry into whether a non-publication order should be made needed to focus on the content of the findings themselves and the likely effect of their publication. Applying Whata J’s decision in Gravatt, the Coroner found that the risk of negative media publication was “simply too opaque a basis to derogate from freedom of speech on interests of justice grounds”, and considered Dr A’s application to be “on all fours” with the health professionals in Gravatt.13 Finally, there was insufficient evidence for the Coroner to be satisfied that Dr A had ‘health interests’ capable of engaging the interests of justice exception. The Coroner also found that Dr A did not have any personal privacy interest, nor any legitimate argument relevant to the public order ground. She concluded that none of the statutory grounds in s 74 were established, and the application for a permanent non-publication order was dismissed.
[33] The Coroner then turned to Dr B’s application. Dr B had submitted that the findings are unfairly and disproportionately critical of him. If named, he was concerned he would be permanently and unjustifiably associated with the sensationalised media reporting of the case.
[34] Adopting the same approach as she had in making her findings regarding Dr A, the Coroner held that her findings regarding Zachary’s death were not unfairly critical of Dr B’s character, reputation, or of his treatment of Zachary. She addressed and considered her conclusions on the traffic-related delay explanation advanced by Dr B which she had rejected, and his comments about needing to finish his dessert. The Coroner concluded that these aspects of her findings did not meet the threshold required to trigger the interests of justice requirement.
[35] The Coroner recognised that media coverage about Dr B’s role in Zachary’s death had been negative. For example, the media reported that Dr B’s evidence about being stuck in traffic was “slapped down” during the inquest, that Dr B had laughed at a staff member who suggested Zachary had meningococcal disease, and that Dr B failed to answer to the first call about Zachary. However, the Coroner did not consider
13 At [100], citing Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345 at [68].
that the articles were “unfairly critical”, particularly when viewed in the context of the findings.14 In addition, despite this media coverage, the Coroner concluded that the potential for negative comment by media in the future is not a basis itself on which to justify non-publication, even where publication would link an individual to existing negative media articles. The Coroner expressed concern at being asked to be an arbiter of whether there has been fair reporting in the media in relation to her own findings. In addition, and consistent with her decision in relation to Dr A, the Coroner emphasised that any reputational impact associated with the coronial findings needed to be assessed “with reference to the speech subject to prohibition” – and the risk of sensationalised media reporting did not trigger the interests of justice.15 Although she accepted that the findings might “create an unfair impression of him and the evidence he gave”, she concluded that “standing back” the media reporting to date, when “objectively assessed”, did not unfairly impugn Dr B’s character and reputation.
[36] However, the Coroner accepted that the interests of justice were engaged on a narrow basis. 16 There was potential for future reputational harm in relation to the allegations contained in the anonymous letter which were made public in the course of the inquiry hearing, but which were not the subject of any findings.
[37] The Coroner then considered the third step of the analysis – whether the infringement on the principle of open justice and freedom of expression was justified. The Coroner held that a broad non-publication order of Dr B’s name would be an unjustified infringement on the principle of freedom of expression.17 There was public interest in his actions surrounding Zachary’s care. However, the Coroner did make non-publication orders in respect of those parts of the anonymous letter which were not addressed in the findings and had not been materially traversed during the course of the hearing. Non-publication was the most effective way of mitigating against reputational concerns that might arise out of re-publication.
14 At [148].
15 At [67].
16 At [152]
17 At [161]
General Principles – Name Suppression under the Coroners Act 2006
[38] The Coroners Court is a specialist court which conducts inquisitorial investigations into the death of a person. Although inquests involve hearings, they are not conducted in the same manner as most other civil or criminal proceedings in a court. The same is true for the results of a coronial inquiry. Coroners will issue written findings, and may make recommendations or comments to help prevent similar deaths in the future. Coronial findings do not give rise to criminal or civil liability.
[39]The purpose of the Act is to help prevent deaths and promote justice through:18
(a)investigations, and the identification of the causes and circumstances, of sudden or unexplained deaths, or deaths in special circumstances; and
(b)the making of recommendations or comments that, if drawn to public attention, may reduce the chances of further deaths occurring in circumstances similar to those in which the deaths occurred.
[40] Any person affected by a refusal by the Chief Coroner to grant an exemption from a restriction under the Act applying to the publication of details of self-inflicted deaths, or by a prohibition on the making public of evidence, may apply to the High Court for a review of that decision. On an application for review, the Judge may confirm or revoke a refusal and issue an authority, or confirm, modify, or revoke the prohibition.
[41] Section 85(1) of the Act provides that inquests are to be held in a place open to the public, however this provision is subject to s 74. Section 74 provides:
Coroner may prohibit making public of evidence given at any part of inquiry proceedings
If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of —
18 Coroners Act 2006, s 3.
(a) any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and
(b) the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.
[42] The leading case on the application of s 74 is Gravatt v Coroners’ Court at Auckland.19 That case followed the First Inquiry into Zachary’s death. In Gravatt, Whata J reviewed the decision of Coroner Shortland, granting non-publication orders in respect of a number of health professionals.
[43] The purpose of the Act is two-fold: to prevent deaths and to promote justice.20 Underlying this purpose, and the Act as a whole, is the importance of transparency and open justice. Justice Whata referred to a number of sections of the Act which support this view.21 For example, s 57(3) empowers the Coroner to make specific recommendations that in his or her opinion, “may, if drawn to public attention, reduce the chances of the occurrence of other deaths in circumstances similar to those in which the death occurred”; s 85 of the Act requires that inquests are “usually to be public”; and s 3 recognises the “public good associated with a proper and timely understanding of the causes and circumstances of deaths”.
[44] Justice Whata set out a three-step threshold enquiry to ensure that open justice and the right to freedom of expression are properly protected.22 The three steps are:
(a)there must be statutory authority to suppress;
(b)the authority must, where possible, be interpreted and exercised consistently with freedom of expression; and
(c)even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified.
19 Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345.
20 Coroners Act 2006, s 3(1).
21 Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345 at [50]
22 At [43].
[45] The Court also needs to be satisfied that the prohibition is a demonstrably justified limit on the right to open justice and freedom of expression, having balanced the competing interests. For this, the decision-maker is required to articulate clear and specific reasons for the prohibition orders.23
Application of s 75
[46]Counsel differ on whether s 75 applies to this review.
[47]Section 75 provides:
75 Review of decisions relating to publication of details, evidence, etc
(1) This subsection applies to a person affected by—
(a) a refusal by the chief coroner to grant an exemption under section 71A from a restriction applying to the publication of details of self- inflicted deaths; or
(b) a prohibition under section 74.
(2) A person to whom subsection (1) applies may apply to a High Court Judge for a review of the refusal or prohibition.
(3) Until the Judge reaches a decision on the application, the refusal or prohibition concerned continues in effect.
(4) The Judge may (as the case requires), in the Judge’s absolute discretion and on any ground the Judge thinks fit,—
(a) confirm the refusal, or revoke it and issue an authority; or
(b) confirm, modify, or revoke the prohibition.
(5) An authority may be issued under subsection (4)(a) unconditionally, or subject to conditions the Judge thinks fit.
[48] Ms Gaborieau, counsel for Dr A, submits that s 75 applies. She submits that although the section is “injudiciously worded” it should nevertheless be interpreted widely, so as to cover persons affected by a refusal to grant a prohibition. Mr Mijatov for Dr B also submits that s 75 should be interpreted broadly to confer a right of review on persons affected where a coroner has declined to make an order prohibiting publication. Mr Pilditch, on the other hand, submits that s 75 by its terms does not
23 Stuff v Coroners’ Court at Palmerston North [2019] 3 NZLR 243 (HC) at 242.
extend to a person affected by a refusal of a Coroner to make a non-publication order and says that if the section is interpreted strictly, this case cannot proceed as a review under s 75, and must proceed by way of judicial review of the decision made pursuant to s 74 to decline to make a prohibition order. Mr Pilditch however accepts that the effect of a strict interpretation of the section resulting in those persons affected by a prohibition order made under s 74 having a right of review under s 75, and not those people affected by a decision declining a prohibition order, is an inconsistency pointing towards the Court adopting a broad interpretation of s 75 so as to apply to both. Furthermore, Mr Pilditch submits that the review to be undertaken pursuant to s 75 is not a judicial review but a review in the nature of a general appeal.
[49] A literal interpretation of the language of s 75 necessarily excludes the ability of individuals affected by a refusal to grant a prohibition to review that decision under s 75. It applies only to those affected “by a prohibition” under s 74. Subsection (2) provides that those affected by the prohibition may apply to the Court for a “review of the refusal or prohibition” (not refusal of the prohibition), and subsection (3) provides that “the prohibition concerned continues in effect” until the Judge reaches a decision. There is no ambiguity in that language. The meaning is that s 75 is only concerned with reviews of decisions to prohibit publication, not the converse. To interpret it otherwise would require the court to read in words to the section which are not there.
[50] Whether or not this section is considered “injudiciously worded” it does not mean a wider interpretation should be adopted. Although there is some scope for Judges to adopt a purposive interpretation of statutes, having regard to the unambiguous language of s 75, I do not consider that it is open to the Court here to adopt an interpretation that would enable decisions declining applications for orders for prohibition of publication to be reviewed or appealed under s 75.24 Although this interpretation will result in two separate processes for reviews of decisions made pursuant to s 74, depending on whether a prohibition of publication order was made or declined, that consequence does not result in significant inconvenience, improbability, or administrative complexity such as to justify the Court adopting what would clearly be a strained interpretation. Moreover, given reviews under s 75 tend to
24 Burrows and Carter Statute Law in New Zealand (5th ed, online ed, 2015) at 344.
be treated as though they are judicial reviews in any case, the only difference will be remedial.
[51] Finally, this interpretation is consistent with how Judges have approached reviews of decisions to not prohibit the publication of evidence and names in coronial hearings. In Matenga, for example, Kos J heard an urgent application on a Pickwick basis for interim orders that his name be suppressed, following a decision by the Coroner to not prohibit the publication of his name. Kos J did not approach the decision as a review under s 75.25 Similarly, in Fardell v Coroner’s Court at North Shore, Heath J heard an appeal by a widow against a decision of the Coroner to refuse to grant non-publication orders.26 The case proceeded as a judicial review of the Coroner’s decision under the equivalent provision in the 1998 Act, s 25, not under the equivalent review provision, s 30. Neither case was brought pursuant to the s 75 statutory review provision.
[52] Therefore, I conclude that this review proceeds on the basis it is a judicial review – and not a review or appeal under s 75 of the Act.
[53] This leaves the question of what remedies are available. Judicial review is principally concerned with the procedural aspects of a decision, rather than its substance. The general remedy is remitting the decision back to the original decision- maker for reconsideration, although the Court does have some discretion.27
[54] Ms Gaborieau and Mr McClelland QC both ask the Court in this case to impose non-publication orders. They provide no statutory, or other, power for doing so. Although on its face this appears inconsistent with judicial review, it is nevertheless consistent with a body of case law in which the Court has been willing to make non- publication orders or otherwise quash non-publication orders itself, as a remedy in judicial review proceedings.28 Part of this is due to the substantive nature of the
25 Matenga v Coroner’s Court at Dunedin [2014] NZHC 2994.
26 Fardell v Coroner’s Court at North Shore [2007] NZAR 122 (HC).
27 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington) at [5.23].
28 Fardell v Coroner’s Court at North Shore [2007] NZAR 122 (HC); Newton v Coroner’s Court (No 1) [2005] NZAR 118 (HC) (the orders in that case were made without opposition).
remedies under s 75, which was the basis for Whata J doing so in Gravatt.29 But this has also been the approach adopted by the Court in cases which are judicial reviews of decisions made under s 74.
[55]For example, in Fardell, Heath J said:30
Because the exercise of the discretion is clear in this case and as it is desirable to conclude the inquest promptly, I regard it as appropriate for me to exercise the discretion afresh”.
[56] Heath J proceeded to grant the application for judicial review, and make alternative orders suppressing the publication of evidence. I propose to exercise my discretion and adopt the same approach in this case.
[57] In treating this case as a judicial review, I need not determine the issues raised by Mr Pilditch in his oral submissions, pertaining to the proper standard of review to be applied in cases raised under s 75. As I have said, Mr Pilditch contended that s 75 should properly be construed as an “appeal”, allowing the Judge to come to their own view on the merits of a case, rather than a “judicial review” with a substantive flavour, which is the approach judges have adopted in other decisions.31 Although I need not finally determine the issue as it is not strictly relevant in this case, I think Mr Pilditch’s submissions hold weight. Although the word “review” is used in s 75, this does not necessarily mean that principles of judicial review should be invoked.
[58] First, the remedies available under subsection (4) are incongruent with judicial review remedies. The statutory powers to confirm, modify or revoke the publication order are fundamentally inconsistent with the more limited remedies available in judicial review.
[59] Second, other enactments use the language of “review” to describe what is, in fact, an appeal right. For example, part 5 of the Accident Compensation Act 2001 uses very similar wording to that used in ss 74 and 75 of the Coroners Act, but has been applied as though it is an ‘appeal’, rather than a judicial review.
29 Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345.
30 Fardell v Coroner’s Court at North Shore [2007] NZAR 122 (HC) at [56].
31 See, for example, Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345.
[60]Third, this interpretation is consistent with the High Court Rules 2016. Rule
19.2 of the High Court Rules provides that applications to the court under s 75 of the Coroners Act 2006 are to be made by way of originating application. That is not the process for starting judicial review proceedings in the High Court. In fact, Part 30 of the Rules outlines the specific process required, and provides that an application for judicial review must be commenced by a statement of claim and a notice of proceeding. This further suggests that reviews under s 75 are distinct from judicial reviews.
[61] However, as noted above, it is strictly unnecessary for me to finally resolve this issue. Instead, this case proceeds by way of judicial review. As such, it is common ground that in order to succeed, the Court must be satisfied that there was an error of law, that the Coroner took into account irrelevant considerations, failed to take account of relevant considerations, or reached an unreasonable decision.
Dr B Analysis
Submissions
[62] Mr McClelland submits that the Coroner erred in finding that the interests of justice threshold was only met on the narrow basis that certain allegations made in the anonymous letter were not fully traversed in the course of the evidence and in respect of which no findings were made. He submits that while undoubtedly the interests of justice ground is triggered on that basis, it is also engaged in two further respects, namely: by the contents of the Coroner’s findings; and by the sensationalised nature of the media reporting that has been focussed on Dr B.
[63] As regards the Coroners findings, Mr McClelland submits that some specific findings unfairly impugn or otherwise prejudice Dr B. The specific findings identified and relied on are:
(a)The Coroner’s finding in which she expressed her “doubt as to whether [Dr B] was quite as definite about the diagnosis [of meningococcal disease] as he later claimed to be in his interview… and
subsequently”.32 Counsel submits that this finding by implication unfairly impugns Dr B’s motivations and honesty in relation to the evidence he gave at the inquiry.
(b)The Coroner’s rejection of Dr B’s evidence that the reason he was delayed returning to the hospital was that he was held up by traffic congestion. The Coroner found that: “There is no support for the proposition that there were extreme traffic delays on the day in question. I am not prepared to accept, on the basis of [Dr B’s] evidence alone, that there was traffic congestion in Newton Gully and Ponsonby Road on the relevant night which delayed his return to the hospital.”33 Counsel submits that this finding implies that where Dr B’s evidence stands alone or is not corroborated by other evidence, it is not to be accepted as being accurate or truthful.
(c)The Coroner’s observation that Dr B’s claim that he was delayed in his return to the hospital because he was stuck in traffic was the first occasion in the course of the inquest that he had identified traffic congestion as being the reason for his delayed return. Counsel submits that the Coroner’s finding and observation implies that Dr B’s evidence was not truthful or that it lacked credibility.34
(d)The Coroner’s observation and finding it was concerning Dr B was delayed in returning to the hospital given the emergency situation was underway. This was despite the fact it was not possible to determine how delayed Dr B had been in returning to the hospital from his dinner, if his delay was at the upper end of the possible range in the order of 45- 50 minutes, and the absence of proactive communication from him to the DCCM to assess whether he could provide assistance via telephone. Counsel submits that this observation indicates the Coroner’s criticism of Dr B.
32 Coroner’s Suppression Decision at [128]
33 At [157].
34 At [154] and [155].
[64] As regards the media coverage of the matter, counsel submits that the Coroner was wrong to find that the interests of justice were not engaged by the ongoing and sensationalised media reporting of the second coronial inquiry. This is particularly because the allegations made against Dr B, notwithstanding that he is not named, had become the focus of media reporting on the inquest. Counsel submits that the Coroner was wrong to find that the media reporting was sufficiently balanced and did not unfairly criticise Dr B. Mr McClelland supports his submissions with reference to several specific media articles, which focussed on Dr B’s actions on the evening of Zachary’s death, his evidence, and how the Coroner treated his evidence. These media articles are to be addressed in more detail later in my judgment.
[65] Mr McClelland submits that the Coroner’s criticisms of Dr B, together with the sustained media focus on him, satisfy and engage the interests of justice threshold. He says that if Dr B is named, he will suffer significant reputational damage and prejudice. He submits that in the circumstances of this case, the extensive media publicity focussing on Dr B was unfair and demonstrates a sensationalist interest in those aspects of the matter. To that end, he submits that it is an “absolute certainty that if his name is published, he will be the subject of intense media scrutiny and given what has happened to date…there is no reason to believe that that will be fair, balanced, or accurate”. He further submits that if Dr B is named there can be little doubt that the previous unfair reporting will be readily linked to him, and these reports operate to contradict the Coroner’s actual findings.
[66] Mr McClelland further submits that the Coroner erred in her overall assessment of whether infringement of freedom of expression by the making of a non-publication order would be justified. Counsel submits that having erred in her finding that the interests of justice ground was not engaged, the Coroner also erred in her decision as to whether the making of a non-publication order would be a justified infringement on open justice and freedom of expression. He submits that a non-publication order in respect of Dr B’s name would amount to a “minimal impairment” of the requirements of open justice. As the Coroner’s findings would still be publicly available, the public would still be able to obtain the benefits of open justice and freedom to receive information.
[67] Counsel submits that another factor favouring the making of a non-publication order is the long period of time that has elapsed since the events and circumstances related to Zachary’s death. He submits that the principles of open justice and freedom of expression would have had greater significance in 2009 than at present given the time that has since elapsed. He submits that although Dr B was identified and named in Gravatt in 2013, this is not a “horse has already bolted” situation and that there is nevertheless benefit and utility in making a non-publication order at this time.35
[68] In his submissions, Mr Pilditch accepts that the combination of factors identified by Dr B’s counsel operated unfairly on Dr B. He notes that the Coroner had assessed these factors individually and in isolation, while the interests of justice criteria requires them to be considered as a combination. Mr Pilditch acknowledges that the Coroner may have been in error by not standing back and assessing the overall effect of the combination of circumstances. However, Mr Pilditch submits that the alleged errors identified by Mr McClelland are not reviewable errors of law, and says that the Coroner’s decision was in any event one which was reasonably open to her, and the Coroner did not err in her interpretation of the interests of justice grounds in the ways alleged by Mr McClelland.
Discussion and analysis
[69] I do not consider that the interests of justice are met in relation to the findings themselves. Contrary to Mr McClelland’s submissions, the Coroner’s findings do not “unfairly impugn or otherwise prejudice Dr B”.36 The Coroner ultimately concluded that Dr B’s treatment of Zachary and decisions on 8 July were appropriate. That is the context in which the Coroner’s decision needs to be viewed. The Coroner’s findings regarding certain aspects of Dr B’s evidence do not “unfairly impugn” Dr B’s character. The role of the Coroner necessarily involves assessing witnesses’ credibility and making findings in relation to the evidence. There is nothing unfairly prejudicial in those findings.
35 Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345.
36 Mr McClelland pointed to paragraphs 109, 128, 154, 155, 157, 241 and 255 as examples where the Coroner’s findings unfairly prejudiced Dr B.
[70] However, I am nevertheless satisfied that non-publication orders regarding Dr B should have been made, as for reasons I shall explain, I consider that the Coroner erred in her interpretation and application of the interests of justice threshold.
[71] As regards the question of media publication, the issue of suppression is unusual. The Court has recognised that the potential for negative, sensationalised media coverage in the context of alleged negligence of medical professionals can justify the making of non-publication orders, where those allegations are untrue or untested.37 However, here the question is not whether the publication of Dr B’s name in the Coroner’s findings would engage the interests of justice, but whether the potential for negative media coverage and the risk that Dr B’s name would be linked to existing media reports and articles justifies non-publication. The risk of reputational damage affecting Dr B essentially stems from the allegations regarding his conduct made in the anonymous letter that led to the Second Inquiry. The allegations contained in the anonymous letter received considerable media attention, and there has been substantial media interest in this case.
[72] By way of example, Mr McClelland supports his submission that Dr B had been the subject of unfair criticism in media reports of the inquiry by referring to a number of media articles published in and around the time the Coroner’s findings were released. The first was a report published on the New Zealand Herald website on the day following the release of the Coroner’s findings on 9 April 2019 headlined, “Coroner dismisses Auckland traffic-jam evidence in second Zachary Gravatt meningococcal inquest”. It read:
A doctor’s evidence about being stuck in bad traffic while rushing back to hospital to attend to a young man who died soon after of meningococcal disease has been slapped down by a coroner.
But Coroner Morag McDowall has also found that even if the doctor had got back to Auckland Hospital sooner, it would have been unlikely to have changed the outcome for Zachary Gravatt.
A fourth-year medical student, Gravatt, 22, died at the hospital on Wednesday, July 8, 2009. A second Inquest into his death was held last October after an anonymous letter which claimed to be from and Auckland District Health Board staffer alleged a “cover up”.
…
37 Ryan v Auckland District Health Board HC Auckland CIV-2007-404-006177, 5 December 2008.
[73] Dr B’s counsel says that the Herald article published on 9 April 2019 focussed on Dr B’s explanation of why he had been delayed returning to the hospital and submits that it was unbalanced and unfair. He submits that the contents of the article were likely to have a “vilifying” effect and turn readers against the unidentified “on- call” doctor referred to in the media report.
[74] Mr McClelland also refers to an article published by Radio New Zealand. The Radio New Zealand article, published on 26 October 2018 while the inquest was underway, was headlined: “Anonymous letter alleges doctor delayed treatment of critical patient”. The article stated:
Allegations that an on call doctor wanted to finish his dessert before going to hospital to treat a critically ill young man have surfaced from the anonymous letter that reopened an inquest.
Medical student Zachary Gravatt, who was 22, had been healthy and active before he died at Auckland Hospital in 2009 from meningococcal disease.
In 2011, a coroner found Mr Gravatt was not treated in a timely fashion and the District health Board paid the family compensation.
The inquest was re-opened after the family received an anonymous letter that questioned aspects of the DHB’s Investigation.
Coroner Morag McDowell has suppressed identities in the hearing.
Aspects of the letter’s claims include an on-call doctor not responding to the initial call about Mr Gravatt’s deteriorating health and he apparently laughed at a staff member who suggested the student had meningococcal disease.
…
[75] Counsel for Dr B also refers to several other media reports of the inquest including a Stuff article published on 25 October 2018 under the headline: “Doctor ‘failed to respond’ the night young patient died of meningococcal disease, coroner hears.” Mr McClelland submits it is difficult to imagine a more serious allegation being made than that a doctor had failed to respond immediately after having been requested to respond to a medical emergency. The article stated:
A doctor “joked he needed to finish dessert” before seeing a young patient who later died of meningococcal disease, a coroner has heard.
…
Questions were raised on Thursday as to why an on-call doctor took nearly 40 minutes to get from having dinner in Ponsonby to the hospital on the night Gravatt was diagnosed – usually a 10-20 minute journey.
The doctor said it was because of traffic, and he had left the restaurant as soon as the registrar doctor called him about Gravatt and his condition.
The doctor said the letter alleged he had “failed to respond to calls at the hospital”.
However, that was untrue, and he had been incredibly nervous and worried while he sat in the car on the way to the hospital.
…
[76] These articles are informative in two respects. First, they provide a clear indication of the likely future media treatment of Dr B if a non-publication order is not made. Second, it is likely that if Dr B’s name is released, he will be connected to these prior publications. That does not require any speculation as to future media reporting, and will undoubtedly damage his reputation.
[77] Part of the reason these reports are sensationalised and inaccurate is that they were based on allegations made in the anonymous letter, which the Coroner rejected in her findings. For example, although the Coroner found that Dr B made a “flippant” comment about finishing his dessert and did not accept Dr B’s evidence about being delayed by traffic congestion, she concluded that he discharged his professional responsibilities appropriately. I agree with Mr McClelland that should Dr B’s name not be made the subject of a non-publication order, he will inevitably be linked to the presently anonymised media reports regarding the “on call Doctor” who joked about being late to care for Zachary because he had to “finish his dessert”. Such publicity would inevitably damage his professional reputation.
[78] In this respect, the present case bears some similarity to the circumstances in Ryan v Coroner’s Court.38 In that case, the question was whether the name of a surgeon who was involved in the care of a young boy with Creutzfeld-Jakob disease should be suppressed, after civil proceedings against the surgeon were discontinued. Although there are some obvious differences between Ryan v Auckland District Health Board and this present case, one of the factors that influenced Associate Judge
38 Ryan v Auckland District Health Board HC Auckland CIV 2007-404-006177.
Doogue’s decision was that the identification of the surgeon as the person responsible would have particularly negative consequences for him given there had been “sensationalist type reporting of incidences of the disease, and that future treatment by news media is likely to be of a similar kind”.39 It is material that the nature of previous, sensationalised media coverage contributed to Judge Doogue’s decision that publication would harm the doctor’s reputation. Ultimately, it was that harm, coupled with the fact the proceeding had been discontinued, which was found to amount to exceptional circumstances that outweighed the principles of open justice.40
[79] Furthermore, the issues here are not the same as were previously determined by Whata J in Gravatt. The focus in the First Inquiry was the potential systemic failure within the health system that contributed to Zachary’s death.41 However, the focus in the Second Inquiry was the conduct of identified medical health professionals, including Dr A and Dr B. The evidence before the Second Inquiry included the anonymous letter in which serious allegations against both doctors were made. Media coverage of the Second Inquiry focussed on the allegations of failure to meet appropriate professional standards as contained in the anonymous letter, and particularly those regarding Dr B being delayed because of the traffic jam and his comment a week or so later about needing to finish dessert. The Coroner accordingly erred by treating Gravatt as having dealt with the same issues, in her interpretation and application of the “interests of justice” ground.
[80] A holistic approach to determining the “interests of justice” should be adopted. While the Coroner’s findings themselves may not engage the interests of justice ground, limiting the scope of the interests of justice issue to matters contained within the Coroner’s findings is too narrow. An assessment of the “interests of justice” should also encompass consideration of any reputational damage that is likely to flow from publication. It is not limited to the speech in question, i.e. the Coroner’s findings.
[81] Stepping back and viewing the matter having regard to the media reporting which has already taken place, I consider it to be likely that the allegations contained
39 At [16].
40 At [20].
41 Coroner’s Findings at [65]: “Indeed the emphasis on systemic failure both in the primary findings and in the prohibition decision strongly mitigates any adverse reputational impacts”.
in the anonymous letter would again receive a disproportionate level of focus and attention from the media, notwithstanding the Coroner’s findings that the allegations were without substance. This is not case where there is “remaining latent potential for unfair media coverage”42. Here, there is a very high likelihood that there will be unfair media coverage directed at Dr B based on the anonymous and unsubstantiated claims already published in the media. Such media coverage will unfairly damage Dr B’s reputation. I accordingly agree with Mr McClelland’s submission that the “interests of justice” ground in s 74 is engaged here, and that the Coroner erred in the application of the “interests of justice” threshold. That was an error of law. I consider that it is in the interests of justice that his name be suppressed so as to prevent his professional reputation from being unjustly and unfairly damaged.
[82] I must, however, also determine the third balancing exercise step, and decide whether the making of a non-publication order in respect of Dr B amounts to a justifiable infringement of open justice having regard to the principles of freedom of expression. The Coroner found that the importance of open justice was paramount and that there was public interest in respect of Dr B’s role in Zachary’s care, and public scrutiny of the “more peripheral matters” was also relevant in understanding his role in Zachary’s care.
[83] I disagree. The question is not whether there ‘is’ public interest, but whether the public interest served by having the information in the public domain outweighs the individual and personal interests of Dr B in protecting his professional reputation. That requires the decision-maker to undertake an assessment of the importance of the information being in the public domain in accordance with the principle of open justice against the degree to which that principle would be compromised, and the significance of the harm or damage to the individual who would be adversely affected by publication were it to occur. Where the public interest in the information being in the public domain is outweighed by the private interests of the individual who will be adversely affected by being identified, and the decision-maker determines that protection of the individual’s private interests is a justified limitation of the principle
42 Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345 at [67].
[133] I do not accept the submission made for Dr A that publication of his name in connection with Zachary’s case will amount to re-punishment of him. Any balanced and accurate media report of the Coroner’s findings will not involve any criticism of his professional standards when caring for Zachary. Such reporting should it occur could not possibly be regarded as amounting to “punishment”. I similarly reject the submission that the passage of time since the events surrounding Zachary’s death would make any media reporting more harmful or damaging given that Dr A has now moved on with his life. The fact that Dr A was involved in providing appropriate and competent care and treatment of Zachary in July 2009, could not be damaging to his reputation, and in my view the passage of time since then would not render any contemporary media reporting regarding those events of July 2009 unfair or harmful to Dr A or his reputation.
[134] I also note that as Dr A now resides and practises in Australia, any reporting of the case and the Coroner’s findings will relate to matters not only well in the past, but also well removed from his present professional working environment.
[135] I have considered the concerns expressed by Dr Wilsher and in particular her concern that the ‘Just Culture’ that she has been working to establish within the ADHB could be adversely affected by any unfair and damaging media reporting naming Drs A and B. However, so far as Dr A is concerned, there is no basis for concern that media reporting which names him would be unfair or harmful to him. Having found that the whole of the anonymous letter and Dr B’s name are to be prohibited from publication, any further media reporting of the Coroner’s findings or in relation to the events and circumstances surrounding Zachary’s death could not have the affects she fears of undermining her efforts to establish a ‘Just Culture’ environment for health professionals at the ADHB.
Result
[136]As regards Dr B, I make the following orders:
(a)An order quashing the Coroner’s Ruling declining Dr B’s application for a permanent non-publication order in respect of his name and identifying particulars.
(b)A permanent non-publication order in respect of Dr B’s name and identifying particulars in connection with the inquest into the circumstances of the death of Zachary Gravatt.
(c)A permanent non-publication order in relation the entire contents of the anonymous letter dated 29 August 2016.
(d)An order directing the redaction of Dr B’s name and identifying particulars from the version of the Coroner’s Findings distributed for publication.
[137]As regards Dr A, I make the following order:
A permanent non-publication order in relation the entire contents of the anonymous letter dated 29 August 2016.
Costs
[138] I make an order reserving costs. The applicants have each succeeded and are entitled to costs. The applicants are each to file and serve a costs memorandum within 10 working days of the date on which this judgment is delivered. I further direct Mr Pilditch, in his role as counsel assisting the Court, to file a reply memorandum as to costs as contradictor, within a further 10 working days after being served with the costs memoranda of both applicants.
Paul Davison J