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Kivung v Lihir Gold Ltd [2010] PGNC 150; N4145 (22 October 2010)

N4145

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 145 OF 2008

BETWEEN

LITIA SANDRA KIVUNG
Plaintiff

AND

LIHIR GOLD LIMITED
First Defendant

AND

PATRICIA TIVESE
Second Defendant

AND

HITELAI POLUME KIELE
Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Lae : Gabi, J
2010 : 22nd October

JUDICIAL REVIEW – application to review decision of coroner not to proceed with coronial inquest – application for an order of certiorari to quash coroner's certificate- whether judicial review is available when there is no inquisition - Coroner to decide whether or not to hold an inquest after receiving information of death - reasons for refusing to reopen case - request made after more than 12 months - no new grounds for request provided - Coroner correctly refused request to reopen case - no inquisition and judicial review not available – proceedings dismissed – ss7, 21 Coroners Act, s 22 District Courts Act

Facts
The Plaintiff is the widow of an employee of Lihir Gold Limited who was killed by a massive landslide while on duty at the mine. On 11th December 2005, the Coroner issued a certificate stating "that no good purpose will be served by holding an inquest." The plaintiff seeks an order by way of certiorari to quash the Coroners Certificate and an order for the Coroner to re-open the inquest.

Held:

1. Where there is no inquisition, judicial review is not available.
   
2. A request cannot be made after the expiration of more than12 months unless approval granted by the Attorney General. Here the inquest was made after more than 12 months and approval was not granted by the Attorney General for an inquest.
   
3. No new grounds for the request have been provided. The Coroner correctly refused the request to reopen the case.
   

Cases Cited
Kekedo vs. Burns Philip (PNG) Limited [1988-89] PNGLR 122

Text and Other Publication Cited:
Halsbury's 4th Edition, Volume 9, paragraphs 1145

Counsel
S. Tedor, for the Plaintiff
I. Shepherd, for the First Defendant

DECISION

22nd October, 2010

1. GABI, J: Introduction: By an Originating Summons filed on 28th March 2008, the plaintiff seeks an order by way of certiorari to quash the Coroners Certificate dated 11th December 2005 and an order for the Coroner to re-open the inquest. The review is sought "not so much as to the nature of the Certificate issued but as to the first four (4) findings of fact that the Coroner sets in the Certificate which she made without one shred of evidence to back it up as there was never any Coronial hearing conducted to enable her to make such findings." The findings of the Coroner are now "part and parcel" of Lihir Gold Limited's defence to the claim for damages against it by Litia Sandra Kivung.

The issue before me is whether judicial review is available when there is no inquisition.

The Evidence

2. The following affidavits were filed: (i) affidavit of Sialis Tedor dated 28th March 2008; and (ii) affidavit of Litia Sandra Kivung dated 20th October 2008.

Facts

3. In order to appreciate the background it is appropriate that I set out the brief facts in chronological order. Litia Sandra Kivung, the plaintiff, is the widow of the late Kivung Warwakai, who was in the employ of Lihir Gold Ltd in 2005. On the night of 9th October 2005, the late Kivung Warwakai disappeared, presumed dead, while on duty in a massive landslide at the Lihir Gold Mine. He is survived by the plaintiff and their two infant children. On 11th December 2005, the Coroner issued a certificate stating "that no good purpose will be served by holding an inquest." She gave five reasons for the decision. In January 2006, the plaintiff obtained a copy of the Coroner's certificate. On 21st November 2006, a Writ of Summons by the plaintiff for damages against Lihir Gold Ltd was filed. On 23rd March 2007, an amended Writ of Summons was filed and thereafter served on Young & Williams Lawyers, lawyers for Lihir Gold Ltd. On 21st September 2007, Sialia Tedor & Associates, lawyers for the plaintiff wrote to the Attorney-General asking her to direct the Coroner to reopen the inquest pursuant to section 21 of the Coroners Act (hereinafter the "Act"). On 1st November 2007, Sialis Tedor & Associates again wrote to both the Attorney-General and the Coroner regarding reopening the inquest into the death of the late Kivung Warwakai. On 30th November 2007, the Coroner wrote to Sialis Tedor & Associates advising that the request to reopen the inquest is refused on the basis that the request is made after more than twelve (12) months and that there are no new or compelling grounds to conduct an inquest (see sections 7(3) and 21(3) of the Act).

Decisions of 11th November 2005 and 30th November 2007

4. The Coroner made two decisions. I set out the decisions in full below:

CORONER'S CERTIFICATE

"PAPUA NEW GUINEA
Coroner's Act 1953

Act,Sec. 7(4)

Form 11

CORONER'S CERTIFICATE WHERE INQUEST ON DEATH WILL SERVE NO GOOD PURPOSE

TO: the Attorney-General; and all members of the Police Force and; to all others to whom it may concern.

Having made inquiries in respect to the death of the late KIVUNG WARWAKAI of Tinganalom village in East New Britain Province. Who died at Lihir on the 9th day of October 2005. By virtue of my Office as a Coroner, I certify that no good purpose will be served by holding an inquest on the body of the Late KIVUNG WARWAKAI. My reasons(s) for coming to this decision / are:

1. The late Kuvung Warwakai was a geotechnical Technician Engineer. He was assigned to monitor the movements of the landslide with clear instructions from his supervisor not to venture back into the danger zone.
   
2. The decease walked back into the danger zone for some unknown reasons and the landslide covered him while he was attempting to escape from it.
   
3. The late Kivung Warwakai died from a natural cause.
   
4. This death could have been avoided had the late Kivung Warwakai complied with his supervisor's instructions to stay off from the danger zone and monitor the landslide from a safe area.
   
5. There are no suspicious circumstances surrounding the death of the late Kivung Warwakai.
   

Dated at Lihir 11th of December 2005

P. TIVESE

CORONER"

CORONER'S RESPONSE TO REQUEST TO REOPEN

"MAGISTERIAL SERVICES COMMISSION
DISTRICT COURT
PO BOX 24
NAMATANAI NIP

Officer:

Y/Ref:
A/Officer: P. TIVESE

TEL: (675) 984 3017 Designation: CORONER

FAX: (675) 984 3037 Date: 30.11.07

SIALIS TEDOR & ASSOCIATES

LAWYERS

SECTION 22 25 LOTS 1 & 2

MARKHAM Haus Room 2

Milford Haven Road

P. O. Box 607

MOROBE PROVINCE

Dear Sir,

RE: REQUEST TO RE OPEN THE INQUEST INTO THE DEATH OF THE LATE WARVAKIA KIVUNG

This serves as a reply to your letter requesting the Coroner to re-open the inquest into the death of the late Mr. Warvakia Kivung who disappeared whilst in the course of his employment when he exercised my jurisdiction pursuant to S7 of the Coroners Act to inquire into the manner and cause of the death of the late Warvakia Kivung and after considering all the relevant facts which I had before me, I came to a conclusion to issue the Coroners Certificate where inquest on death will serve no good purpose on the 11.12.05.

I am aware that s21(5) of the Coroner's Act gives authority to a Coroner to re-open or held an inquest if the request comes to the Coroner from a Commissioner of Police, a Superintendent of Police and any members of the decease family. This can only be done subject to the following requirements.

1. The request to re-open an inquest shall be done 12 months after the death or 12 months after the body is found. The only person that can entertain request to re-open or open a Coroner's inquest after one year, is the Attorney General s7(3) CORONERS ACT.
   
2. Any letter requesting the Coroner to re-open the inquest must also contain compelling statements to convince the Coroner to consider re-opening the inquest. S21(3) of the CORONERS ACT.
   

Sir, the investigation into the death of the late Warvakia Kivung was completed on 11.12.05.

Your request to re-open this inquest came nearly two years later. Your letter dated 01.11.07 does not contain any new or compelling statements to convince the Coroner to re-open the inquest.

Your application for the Coroner to re-open the inquest into the death of the late Warvakia Kivung, is refused on both grounds referred to above.

Yours faithfully,

PATRICIA TIVESE

Coroner

C.C: Attorney General

Department of Justices' Attorney General

P.O Box 591

WAIGANI

National Capital District"

5. It is clear to me that the Coroner informed herself of the manner and cause of death from facts or information before her before taking the decision on 11th December 2005 not to hold an inquest as it would serve no useful purpose. I do not have the facts or information before me; however, what is not disputed is that there was no inquisition as no good purpose would be served and that the Coroner had jurisdiction to make the decision she made. Is the decision of 11th December 2005 an appropriate one for review?

6. In an application for judicial review, the court is not concerned with the merits of the decision which has been sought to be reviewed but with the decision making process itself. Judicial review is available where the decision making authority lacks, exceeds or abuses its powers, commits an error of law, breaches the principles of natural justice or reaches a decision, which a reasonable tribunal could not have reached (see Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122).

7. Counsel for the plaintiff submits that the Coroner's decision not to call evidence but issue a certificate where she made findings of facts is an error of law on the face of the record. The plaintiff objects to grounds 1 to 4, not ground 5. The plaintiff claims that grounds 1 to 4 now form part of first defendant's defence to her claim for damages against the company and should be quashed as there is no factual basis for the findings.

8. Counsel for the first defendant handed up written submissions at the trial. He submits that there is no statutory authority to vary a decision of a Coroner. Section 22 of the Act states that the powers that the Coroner has are those conferred on a Magistrate by the District Court Act in respect of the preliminary hearing of an indictable offence. As such, the findings are non-justiciable. Secondly, that by seeking to review the first four (4) findings of fact set out in the certificate, the plaintiff is not disputing the jurisdiction of the Coroner to issue a certificate under section 7(4) of the Act. Thirdly, in this case the coroner was of the view from the facts before her that the cause of death was "natural causes" and there were "no suspicious circumstances" which would have warranted an inquest. As such, the decision under section 7(4) is non-justiciable either under statute or at common law. Fourthly, there is a common law right to apply to quash the findings of an inquest by way of an application for certiorari. Inquisitions by Coroners have been quashed in the following instances: (i) where the facts set forth in the inquisition do not warrant the finding of the jury; (ii) where there was insufficient inquiry to find a suicide verdict as the Coroner failed to call the family doctor whose evidence was vital; (iii) where the inquisition did not sufficiently identify the persons to be charged with manslaughter; (iv) where the inquisition was taken before a Coroner who did not have jurisdiction; (v) where the inquest was not held on the day that it had been adjourned to; (vi) where the finding of the jury was uncertain; (vii) where the inquest did not adequately describe the manner of death; and (viii) where the inquest was irregular in not stating where the death happened or where the body was found or where there was misconduct or irregularity on the part of the Coroner or jury (see Halsbury's 4th Edition, Volume 9, paragraphs 1145). In this case, there was no inquisition. Finally, the plaintiff has not demonstrated that the Coroner lacked power or that there is an error on the face of the record or that there is a breach of the rules of natural justice or that there is a breach of the "Wednesbury" principles.

9. Under section 7 of the Act, a Coroner has jurisdiction to inquire into the manner and cause of the death of a person. A Coroner is required to decide whether or not to hold an inquest after receiving information of death. Where the Coroner is of the opinion from the "information as to the death" that an inquest will serve no useful purpose, he or she must notify the Attorney General of his/her finding pursuant to section 7(4). The "information" includes post mortem reports, medical certificate of death or "other reports that have come to his attention." In this case, the Coroner stated that having "made inquiries" or "after considering all the relevant facts," she made the decision that an inquest was not necessary. It was suggested by Mr. Shepherd during submissions that the Coroner considered the post mortem or medical certificate of death which determined that the cause of death was "natural causes." I am of the view that the Coroner rightly exercised her powers under section 7(4) to certify that an inquest would serve no useful purpose. There was no error on the face of the record. The remedy for a person, who wants to reopen a case, is to state clearly to the Coroner the grounds for reopening the case within 12 months or to seek the approval of the Attorney General after the expiration of 12 months. The request to reopen was refused. As such, there was no inquisition.

10. The complaint in this case arises from the fact that grounds 1 to 4 in the Coroner's certificate are now "part and parcel" of the first defendant's defence in the claim for damages by the plaintiff. This is a matter that can be raised and dealt with at the appropriate time by an appropriate body. It appears to me that the complaint indicates a possible challenge to the admissibility of certain evidence. These are not matters going to the jurisdiction of the Coroner to make the decision not to conduct an inquest. The complaint may be raised at the trial before the National Court, which is the appropriate forum. The plaintiff has all the safeguards including the appeal process provided by the system.

11. With respect to the decision of 11th December 2005, there was no inquisition and judicial review is not available. I agree with counsel for the first defendant that the proceedings are misconceived.

12. Counsel for the first defendant suggests that perhaps the decision to be reviewed is the decision of 30th November 2007 where the Coroner refused to reopen the inquest. The Coroner gave two reasons for refusing to reopen the case. First, the request was made after more than 12 months. Under section 7(3) of the Act, an inquest "shall" not be held after the expiration of twelve (12) months "unless the Attorney General otherwise orders." No approval was granted by the Attorney General. Secondly, no new grounds for the request have been provided. The Coroner correctly refused the request to reopen the case.

13. For all the above reasons, I dismiss the proceedings with costs.

______________________

Sialis Tedor & Associates Lawyers: Lawyers for the Plaintiff
Blake Dawson Lawyers: Lawyers for the First Defendant
Solicitor General: Lawyer for the Second, Third & Fourth Defendants