In January 2003, fires that had started burning in the ACT and NSW merged together and entered Canberra causing widespread damage and leaving four people dead. A lengthy inquest was held that lead to adverse comments being made against members of the Emergency Services Bureau (‘the ESB’). In the course of the inquest, the members of the ESB took the coroner to court on three occasions to challenge her conduct of the inquiry and her findings.

The first case was R v Doogan; ex parte Lucas-Smith & Ors [2004] ACTSC 91 (17 September 2004). In this case the applicants sought order to stop the Coroner taking evidence from two experts that had, allegedly, been appointed by the Coroner as independent experts to assist the inquiry. It appeared on the evidence that the witnesses had not been duly appointed by the Coroner rather they had been appointed by the ACT Government, itself a party to the inquiry. The applicants applied for, and were refused, copies of all documents and letters of instruction that had been provided to the witnesses and which may have influenced their reports. Whitlam J held that the decision to refuse access to the documents used in the preparation of the report was a denial of natural justice and ordered that the Coroner not hear that evidence until the documents were made available.

In R v Doogan [2005] ACTSC 74 (8 August 2005) the applicants sought to have the Coroner discharge herself on the basis that she had shown bias. The allegation was that she had, from the start of the inquiry, set out to find someone to blame for failing to extinguish the fire or failing to warn the community of the impending fire. The applicant’s argued that as the Coroner’s jurisdiction was to investigate the cause of the fire, it was not open to her to investigate the response of the ESB. The Court (Higgins CJ, Crispin and Bennett JJ) rejected that argument, taking an expansive view of the meaning of ‘the fire’. They said

20. If the concept of “the fire” were to be interpreted narrowly, the jurisdiction might be confined to determining whether the initial ignition was due to arson or was caused by some accident or natural phenomenon such as a lightning strike. The most obvious impediment to such a construction is that, unlike a death, a fire is not a one-off event but a process that develops over time. The process may have been initiated by a single event such as ignition due to a lightning strike or, as in the present case, by ignition due to lightning strikes at four separate places. However, when the concept of causation is applied to a process that has developed over a period of several days, it must extend beyond such origins to embrace those factors that had a causal effect on the development or continuance of the process. It would be quite unrealistic to regard a fire that had travelled long distances and/or burnt out vast areas of bushland as coextensive with a fire that had been smouldering on the end of a cigarette when negligently thrown from a car window and, then to dismiss from consideration any intervening or contributing events.

22. … we are satisfied that the term, “the fire”, in s 18 of the Act should be construed to mean the fire that caused the damage to property rather than merely the initial ignition from which that fire ultimately developed. In the present case, it was open to the coroner to inquire into “the cause and origin” of the fire that swept through parts of Canberra causing the deaths of four people and immense damage to property on 18 January 2003, and to consider all of the factors that might reasonably be regarded as having been causative of the entire process of that fire.

Without going into all the allegations of conduct that were alleged to show bias (this can be read if you follow the link to the case above), the court found that the conduct complained of did not show bias and even if it did, the application was brought too soon. The applicants were concerned that the Coroner intended to make adverse comments against them and was collecting evidence to that end. Even so the court said

188. Whilst we understand the considerations that led to the prosecutors seeking prerogative relief at this stage rather than waiting for notification … of any adverse comments proposed, we think that the applications have nonetheless been made prematurely. Some of the grounds relied upon plainly provide no basis for any reasonable apprehension of bias, while others provide some possible ground for concern but only if adverse findings as to certain issues are contemplated. Any findings as to some of those issues would clearly be beyond the scope of the jurisdiction conferred by the Coroners Act and the likelihood of adverse findings on others is presently a matter of speculation. In these circumstances we can not be satisfied that even the cumulative weight of the matters raised by the prosecutors have established grounds upon which a reasonable lay observer might reasonably apprehend that the first respondent might not bring an impartial mind to the resolution of some question that she is required, entitled or likely to decide.

189. … The arguments advanced by the prosecutors would have raised, at most, grounds for concern in relation to circumstances that have not arisen and might never arise. Prerogative relief will not usually be granted to address fears of such possibilities.

In due course the inquest was concluded and the Coroner, after giving notice to allow the ESB stafff to respond, did make adverse comments about them and their conduct during the fires. The applicants again returned to court in Lucas-Smith & Ors v Coroner’s Court of the ACT & Ors [2009] ACTSC 40 (8 April 2009). This time they were seeking to have the adverse comments set aside as they were not, so it was argued, supported by the evidence. The argument again revisited issues of procedural fairness and the jurisdiction of the coroner.

In the end Higgins CJ rejected all the applicants arguments, save one. He found that the comments made by the Coroner were open on the evidence so that even though others may not have drawn the conclusions she did, she was entitled to draw them from the evidence before her. The only comment that was affected was comment 25 where the coroner found that the ESB managers knew that the fire would enter the Canberra suburbs. Higgins CJ said “the assertion that the plaintiffs “knew” that fire “would burn into Canberra” overstates the evidence to an impermissible degree.” He quashed the comment (at [60]) finding that at best the comment was intended to say ‘they should have known’ rather than they did know.

This limited victory was indeed very limited, for otherwise the Court upheld the Coroner’s approach to her jurisdiction and the inquest. Higgins CJ concluded by saying:

261. The comments made by the Coroner were, no doubt, expressed somewhat harshly. However, the loss and suffering caused by the fires was a circumstance that would excite scrutiny. It is true that the comments, understandably, they being “adverse”, do not fully acknowledge the good the plaintiffs did. They did their best. It was not, in the Coroner’s view “the best”. She was entitled so to conclude. It may also be acknowledged that even the worst case scenario was exceeded in the firestorm that struck on 18 January 2003.
262. Nevertheless, it was the Coroner’s duty to examine the cause and origins of the firestorm and the circumstances surrounding it and, within those limits make recommendations and comment, honestly and without fear or favour. That she did.
263. The plaintiffs’ applications, save as relates to comment n.25, are dismissed.

Presumably that is the end of the litigation arising out of the inquest. The litigation arising from the fires themselves continues, with NSW v West due to be heard later this year and a number of other matters ‘waiting in the wings’.

Michael Eburn