Can an employee be compelled to give evidence in a coronial inquiry where the employer is facing a WHS proceeding?
The inquest, which commenced in September 2017, was concerned with the death of Captain David Wood (Captain Wood) in Antarctica on 11 January 2016. The inquest raised questions about the responsibility of Captain Wood’s employer, Helicopter Resources Pty Ltd (Helicopter), and the responsibility of the Commonwealth. Subsequent to the commencement of the inquest, Helicopter was charged with three summary offences under Work Health and Safety Act 2011 in relation to 3 separate incidents. One of those alleged contraventions related directly to the circumstances giving rise to Captain Wood’s death.
A statement of Mr Lomas was available to the Coroner and the Commonwealth indicated that he would be cross-examined on topics that “…at least overlap with key aspects of the subject matter of the criminal proceedings”. The Coroner refused an application by Helicopter to adjourn the inquest until the criminal proceedings against it had been concluded and issued a subpoena for Helicopter’s employee and Chief Pilot, Mr Lomas, to give evidence.
Helicopter lodged a judicial review application claiming, amongst other things, that Lomas was its guiding mind and that if compelled to give evidence, Mr Lomas’ evidence would give the Commonwealth a forensic advantage in the criminal proceedings and, “…would constitute an interference with the due administration of criminal justice amounting to contempt of court or otherwise as an impermissible interference with the criminal proceedings”.
The Court considered that there are two forms of ‘interference’ – direct and indirect:
- Direct: where the “…inquest or other process may cause interference in the nature of prejudice or embarrassment to related curial proceedings” and goes to the integrity of those proceedings.
- Indirect: “…the potential for an inquest or other process to have an indirect impact on fundamental rights of the participant in the parallel curial proceedings”.
According to the Federal Court, the argument that a person who has not been charged cannot be examined in order to avoid interference with the proceedings against another person could not be sustained as indirect interference.
The Court found that Helicopter had failed to demonstrate an actual or real risk of such interference and that “…[m]erely to affect adversely the interest of a party” in criminal proceedings may not constitute impermissible interference. What had been complained of by Helicopter was “…forensic disadvantage and a generalised sense of unfairness as a result of certain advantages being afforded to the prosecution or to the Commonwealth, but not of a nature or extent the meets the description of interference. It is in the nature of consequence, rather than an interference.”
After failing to establish that calling Mr Lomas’ would cause an interference with the criminal proceedings involving Helicopter, it was held that it would not be unreasonable, nor an abuse of power, nor irrational, in declining to defer Mr Lomas’ examination until after the criminal proceedings against Helicopter.
Thank you to Nadeem Hekmat for his contribution to this article.
 Helicopter Resources Pty Ltd v Commonwealth of Australia (No 2)  FCA 991