Telstra Corporation Limited v Attorney General for New South Wales

This is an urgent application for judicial review of a decision of the State Coroner (the “Coroner”) refusing to make orders preventing the publication of the identity of certain witnesses and other persons in a forthcoming inquest who are employed by the plaintiff, Telstra Corporation (“Telstra”). No issue is taken with Telstra's standing to bring this application.

The urgency arises because the Coroner is due to commence an inquest into the disappearance and suspected death of Theo Jean Hayez on Monday, 29 November 2021. When these proceedings were commenced Telstra apprehended that, at least at some time during next week, reference would be made to the identity of its employees. The Attorney General for New South Wales (the “Attorney-General”), who was joined as a party to these proceedings to act as a contradictor, read an affidavit at the hearing of this matter that suggested that that was unlikely to occur. Nevertheless, the matter is still urgent, principally because, and for the reasons which I will explain, the highest relief that Telstra can obtain in these proceedings is an order setting aside the Coroner's decision which would enable Telstra to reapply to the Coroner to make her decision according to law. If Telstra is successful, then it is at least entitled to have the opportunity to renew its application before the inquest starts although, of course, how it is determined and when it is determined will ultimately be a matter for the Coroner.

The urgency and nature of the proceedings has necessitated the delivery of these reasons orally, in closed court and subject to an interim suppression order which will be later revised with a view to enabling a version of these reasons to be made public.

Two further matters should be noted at the outset. First, much of the proceedings has been attended by applications, some successful and some unsuccessful, for suppression orders. Experience suggests that the making of such orders can have the effect of arousing suspicion that the secrecy sought is designed to achieve some purpose other than what was actually intended. It suffices to state that the application for orders made by Telstra to the Coroner, as well as in this Court, concerning the identity of the Telstra employees does not relate to any concern over any aspect of their or Telstra's conduct.

Secondly, as I will explain, these proceedings are by way of judicial review and not appeal. Save for the suggestion of unreasonableness in the decision made by the Coroner, the merits of the Coroner's decision are not matters for this Court to opine on. Nothing in this judgment is to be taken as either an endorsement or a disapproval of the Coroner's decision.

Sections 47, 65 and 74 of the Coroners Act 2009 provide:

As was explained by Hamill J in Commissioner of New South Wales Police v Deputy State Coroner for New South Wales [2021] NSWSC 398 at [23], the above provisions differ from the regime established by the Court Suppression and Non-Publication Orders Act 2010 (“CSNPO”). Thus they do not provide for the making of any "suppression order" as that term is defined in the CSNPO Act, and do not require that the Coroner form the view that it is "necessary" to make any order. This is not surprising in circumstances where the Coroner is not exercising the function of a court being the determination of rights. Instead, the Coroner's function is to hold inquests and conduct enquiries (see s 17).

As I will explain, the application made by Telstra to the Coroner was for the non-disclosure of material identifying any of its employees who are witnesses or are mentioned in the evidence. Such an order was, at least in part, expressly supported by s 65(2) and s 74(1) of the Coroners Act. Further, on this application it was accepted that the Coroner had implied powers to supplement those orders to, say, prevent the disclosure of the identity of such persons if that was referred to in any aspect of the proceedings before the Coroner, even though it might not necessarily be in "evidence" or "submissions". That said, it was accepted that those implied powers were governed by the same principles as operate in relation to ss 74 and 65.

Subsection 74(1) enables the Coroner to make orders if in her opinion "it would be in the public interest" to do so. In Pilbara Infrastructure Pty Limited v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 at [42], French CJ, Gummow, Crennan Hayne, Heydon, Kiefel and Bell JJ stated:

A consequence of that statement is that the formation of an opinion on what is in the public interest is an evaluative matter that "not readily susceptible to review for error of law" (Minister of Immigration and Ethnic Affairs v Teoh (1995) 57 FCR 194; [1995] FCA 246 at 199G). The same point applies to so much of Telstra's application to the Coroner which requested that the Coroner determine that it was "appropriate" or not "appropriate" to allow access to the file under s 65.

Later in these reasons it will be necessary to identify the evidentiary basis upon which evidence of the following events was received by the Court in these proceedings.

Since at least November 2019, various technical staff engaged by Telstra have assisted the New South Wales Police with their enquiries into Mr Hayez's disappearance. In November 2019 and October 2020 Telstra provided the New South Wales Police with certain [redacted]. At this point it suffices to state that [redacted] included technical information of assistance to the inquest. On or about 5 November 2020 one of Telstra's technical staff provided a statement responding to specific questions concerning the [redacted]. This all occurred in the context of Telstra being a telecommunications carrier having various statutory and licensing obligations to assist investigative agencies.

On or about 20 October 2021, Telstra filed a notice of motion with the Coroner seeking various orders including an order suppressing the identities of those of its employees referred to in the Coroner’s brief. It later filed an amended notice of motion which relevantly sought an order that:

At around the same time, the Commonwealth of Australia applied to the Coroner for orders for the non-disclosure or non-publication of information in the brief which included the [redacted] and information which also identified Telstra employees.

Both applications were listed before the Coroner on 29 October 2021. The Commonwealth application was heard first in closed court without Telstra being present or represented. At some point the Coroner indicated that she was not minded to make the orders sought by the Commonwealth. Her Honour adjourned both applications to 12 November 2021.

On 12 November 2021, counsel assisting advised the Coroner that there had been discussions about narrowing the scope of the Commonwealth's application which resulted in agreed orders for the non-publication of certain documents in the brief of evidence. Accordingly, orders were made suppressing the disclosure of the [redacted] to which I have referred, as well as an order to which I will return concerning a particular statement.

The Coroner then heard Telstra's application. Telstra read two affidavits from the same deponent, who also was the person who had previously provided the statement noted earlier ("the Telstra employee"). He was not cross-examined. One of those affidavits was sworn 28 September 2021 and described the assistance provided by Telstra and Telstra's statutory and licensing obligations which I have already referred to. Part of that affidavit stated as follows:

These concerns were expanded upon in the Telstra employee's second affidavit sworn 20 October 2021. [Redacted]:

In the balance of the affidavit the Telstra employee identified particular parts of the Coroner's brief that identified members of the law enforcement liaison section, the call tracing service desk and the legal team within Telstra. The employee stated that he had concerns for the safety of those persons as well [redacted].

The Telstra employee then stated:

[Redacted]

As the grounds of review relied on by Telstra include a complaint of procedural fairness, it will be necessary to return to the submissions that were made to the Coroner in more detail. At this point it suffices to state that, in oral submissions, Senior Counsel for Telstra commenced by limiting the application to the names, honorifics, initials, contact details and roles of their various employees. Senior Counsel then referred to the fact that the employees were only assisting the New South Wales Police with the inquest and were not in any way persons linked to the manner and cause of the suspected death. [Redacted]

Counsel assisting submitted that Telstra's application was superseded by the orders made concerning [redacted], which would only be disclosed in closed court during the inquest. It will be necessary to return to consider that statement. [Redacted].

In reply Senior Counsel for Telstra contended that the submissions of counsel assisting did not address the Telstra employee's evidence about [redacted] as described in the Telstra employee’s second affidavit (see [18] above).

The Coroner rejected Telstra's application. Her Honour gave short ex tempore reasons for doing so. After describing the relevant provisions of the Coroners Act, her Honour stated as follows:

Her Honour then described the evidence given by the Telstra employee to which I have referred and then addressed Telstra's submissions as follows:

After considering and rejecting a contention that the Telstra employees were somehow analogous to police informers, her Honour rejected the application and stated as follows:

As noted, there is no direct appeal from the Coroner's decision to this Court. Instead this Court exercises the supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970. The exercise of that jurisdiction is not concerned with the merits of the Coroner's decision (see Rich v Attorney General of New South Wales and Ors [2013] NSWCA 419 at [49]).

Historically, coroners have been seen as inferior courts of record to which the prerogative writs will go (see Attorney General v Mirror Newspapers (1980) 1 NSWLR 374 at [386]). It follows that this Court’s supervisory jurisdiction extends to both review for jurisdictional error and error of law on the face of the matters (Craig v South Australia (1995) 184 CLR 163, [1995] HCA 58 at 175 to 176; “Craig”).

Absent s 69 of the Supreme Court Act, "the record" in this case would be confined to the "motion" filed by Telstra and to the Coroner's orders dismissing the application (Craig at 182). However, s 69(4) extends the record the Court to include the Coroner's reasons for refusing the application being the pages of the transcript that I summarised above. To the extent that evidence was received in these proceedings that travel beyond the "record", this was subject to an order under s 136 of the Evidence Act 1995 confining its use to so much of the Telstra's case that sought to demonstrate jurisdictional error or on the part of the Coroner.

In that regard the concept of jurisdictional error on the part of an inferior court, such as the Coroner, was discussed in Craig from [176] to [180] and in Kirk v Industrial Court of New South Wales and another (2009) 239 CLR 531; [2010] HCA 1 at [71] to [75] (“Kirk”). The discussion in Kirk emphasises that it is neither necessary nor possible to mark the boundaries of jurisdictional error (Kirk at [73]). However it suffices to state that an inferior court will fall into jurisdictional error if it “mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or requirements of its functions or powers” (see Craig at [177]). Further, a failure to afford procedural fairness will ordinarily involve jurisdictional error (see Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at 490 Gleeson CJ).

I have already noted one principle of restraint referable to this case, namely, the width of the phrase the "public interest". Another principle of restraint follows from the fact that the Coroner's reasons were delivered ex tempore on a procedural application. Such reasons are not construed strictly. Instead their substance is to be examined to see whether the correct legal test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478 to 479A).

One part of the grounds in Telstra's amended summons contends that there was error by reason of the Coroner's supposed failure to give "adequate weight" to a particular consideration. It suffices to state that such a formulation does not constitute any relevant form of error, jurisdictional or otherwise, (see Minister for Aboriginal Affairs v Peko-Wallsend (1985 - 1986) 162 CLR 24; [1986] HCA 1 at 41, per Mason J). Further, aspects of Telstra's submissions appear to identify the alleged consideration that was wrongly taken into account or failed to be taken into account by reference to some particular factual contention peculiar to Telstra's application. Such a matter does not amount to either a relevant or irrelevant consideration. Such considerations are not identified by reference to the facts of a particular case, but instead are determined wholly by reference to the relevant statute (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [7]).

Telstra's amended summons identifies five grounds for review that were said to be either jurisdictional error or an error of law on the face of record; namely, the application of the wrong legal test (ground 1), failing to give any or any adequate weight to the evidence of the Telstra employee (ground 2), failing to afford procedural fairness (ground 3), taking into account irrelevant considerations (ground 4); and, making a decision that was legally unreasonable or which was affected by illogical or irrational reasoning (ground 5). The deficiencies in the formulation of ground 2 have already been outlined.

At the hearing of the proceedings senior counsel for Telstra, Mr Lloyd SC, addressed the various grounds by reference to particular findings set out in part of the Coroner's reasons. Some of the grounds advanced departed from the particulars of the amended summons, but ultimately no point was taken in that regard by senior counsel for the Attorney General, Mr Emmett SC. I will address the various points in the order in which they were outlined.

Mr Lloyd SC pointed to the passage from the Coroner's reasons set out earlier which refers to the "default position in this jurisdiction", being that proceedings are open to the public (see [25] above). It was contended that that passage revealed an error of law on the part of the Coroner. In particular, it was contended that s 74 of the Coroners Act does not establish any "default position" operative on s 47 because s 47 is only concerned with a "hearing conducted in coronial proceedings", which is said to correspond with s 74(1)(a), but has no express counterpart in s 74(1)(b) or (c). It was also contended that her Honour erred in referring to the factors in s 74(2) as matters that were obliged to be taken into account when they were only matters that the Coroner may consider in forming an opinion on the public interest. It was further submitted that, by commencing with a default position of proceedings being open to the public, the Coroner foreclosed a proper consideration of s 74(2)(a), which still remained to be considered in forming an opinion overall about the public interest.

I reject these contentions.

Absent an order under s 74, a hearing in coronial proceedings will be open to the public, and any person who is present is permitted to publish a report of the evidence and submissions heard in open court. That position will pertain unless and until the Coroner positively forms the opinion that it is in the public interest to order to the contrary under s 74(1). It is not erroneous to state that, absent an order under s 74(1), the position will be as described as the "default position." Describing the provision in that way does not involve imposing any limit on the test under s 74(1). Otherwise I do not accept that there was any relevant error in the Coroner regarding herself as bound to consider such matters in s 74(2)(a) to (d) as may be apposite, provided that those matters are not said to be exhaustive.

Mr Lloyd SC outlined a related complaint under this ground. He contended that, as a consequence of the error about the operation of s 74(1), the Coroner did not address a submission that he had made to the effect that the Telstra employees were peripheral to the inquest, and thus the making of the order would not affect both the conduct of the inquest and amount to any particular encroachment upon the principle that the inquest be open to the public. I referred to that submission earlier (see [22]). Mr Lloyd SC noted that there was a concession by counsel assisting that the orders sought by Telstra would not interfere "with the inquest in any way." Mr Lloyd SC submitted that, despite this concession, the Coroner did not expressly consider or even weigh up the effect of the orders sought on the particular inquest that is to be conducted.

Mr Emmett SC contended that, because of counsel assisting's concession, her Honour did not have to expressly consider this contention. He pointed out that counsel assisting added that, the fact that the orders sought would not affect this particular inquest, was "not the point" because, in effect, there was still the wider "principle" that coronial proceedings should generally be heard in open public that needed to be addressed. Mr Emmett SC contended that the entire premise of the Coroner's reasoning was that, accepting that this inquest would not be affected by the orders sought, was it in the public interest to make an order under s 74(1) bearing in mind the “principle” stated in s 74(2)(a).

Having reviewed the Coroner's reasons, I accept Mr Emmett SC's construction of them. What her Honour’s reasons were directed to was not the impact upon this inquest in particular but, rather, that impact on the “principle” stated in s 74(2)(a) generally. I do not accept that her Honour had somehow overlooked, or at least did not take as a given, that there would be no impact or no substantive impact upon the openness of this inquest if Telstra's orders were to be made. I do not accept that any aspect of this particular complaint involves any jurisdictional error or error of law on the face of the record.

The next set of grounds concerns the manner in which the Coroner addressed so much of Telstra's application that rested upon its employees' concerns for their safety arising from [redacted].

As noted at the commencing of the hearing before the Coroner on 12 November, orders were made precluding the disclosure of [redacted]. Relevantly, those orders also addressed the statement of the Telstra employee dated 5 November 2020 but only stated that those parts that were "highlighted in yellow" would be suppressed. This statement was tendered on this application and it was accepted that it can be taken to have been before the Coroner in that it was part of the Coroner's file.

Those parts of the statement which are not to be redacted contain a detailed discussion of the contents [redacted]. [redacted].

The proposed redactions of that statement are not consistent with the Coroner's decision refusing Telstra's application, including refusing to not disclose the identity of the deponent, that is the Telstra employee.

As noted in his submissions to the Coroner, senior counsel for Telstra referred to the material concerning the publication of the identity of the Telstra employees noted above. As stated, his submission was not that they were concerned about the publication of their role in a general sense, but of their "role in [redacted].

Counsel assisting in his submissions in response stated, amongst other matters, “The short answer to that is the orders made this morning. They won't be linked to [redacted] because there is not going to be any disclosure beyond this court of that data at that.”

The reference to the "orders made this morning" is to the orders made at the behest of the Commonwealth that I have already described. However, this submission does not appear to reflect the effect of the very limited non-disclosure order that was made in respect of the Telstra employee's statement.

As noted, in submissions in reply before the Coroner, Senior Counsel for Telstra reminded the Coroner that paragraph 10 of the Telstra employee's second affidavit was not limited to the contents of [redacted] but referred to concerns over [redacted]. Senior Counsel contended that it was "unreal" to consider there was not going to be any reference in open court [redacted]. Counsel assisting then further addressed on this point asserting that there was a "paucity of information" about [redacted].

I have set out that part of the Coroner's reasons which addressed this aspect of Telstra's submissions (see above at [26]). Her Honour rejected Telstra's contention as being “illogical”, stated that there will be no publication or disclosure of the information the Commonwealth seeks to protect and, "it will accordingly not be linked to those employees.”

I take the reference to "it" to be a reference to the [redacted]. I take her Honour as finding that her Honour's understanding of the orders is that the sensitive information [redacted] will not be linked to the Telstra employees because of the order that her Honour made under s 74. However, with respect, this appears to overlook or misapprehend the very limited redactions being made to the Telstra employee's statement of 5 November 2020 which, on any sensible reading, would involve a linking of the Telstra employee to, at the very least, [redacted]. It would also reveal the capacity of Telstra to produce and utilise that [redacted].

In and of itself, a mistake by the Coroner in this respect does not amount to a jurisdictional error and could not amount to an error of law on the face of the record, given the record is confined in the manner that I have described. However, this mistake appears to have had the effect of causing a significant aspect of Telstra's application to the Coroner to remain, in substance, unaddressed.

[Redacted], it meant that her Honour did not address the basis on upon which Telstra made its application.

[Redacted]. Her Honour did not have to accept that contention, but her Honour had to address it. However, because of the approach taken to the orders sought by the Commonwealth, this aspect of Telstra's application was not addressed.

Mr Emmett SC contended that her Honour did address Telstra's argument but her Honour only accepted that what was truly confidential was the precise data that was set out in [redacted] that was to be suppressed and that otherwise her Honour did not accept that anything beyond that had changed since [redacted].

However, as I have stated, the language of the reasons is not rejection, but puzzlement ("do not understand"; "not sure"). The only reason that the Coroner could have been left unsure of the basis for Telstra’s submission was by wrongly assuming that the orders that had been made dealt with the basis of Telstra's concerns when they only dealt with the Commonwealth's concerns. The orders did not deal with Telstra's concerns, and the effect of the mistake about those orders meant that Telstra's concerns remain to be addressed.

In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] Gummow and Callinan JJ referred to a failure to respond to a clearly articulated argument relying on established facts as at least involving a failure to accord natural justice. In this court Mr Lloyd SC relied on this passage and, amongst other matters, contended that one way or another a substantial and clearly identified argument put on behalf of Telstra was not in substance addressed. I agree. It follows from what I said earlier that such a denial amounts to jurisdictional error.

Two further matters should be noted about this complaint. [Redacted].

Second, Telstra also contended that this aspect of the Coroner's decision rendered it unreasonable or illogical (citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, especially at [29] and [88]). I will return to consider this ground shortly, but it suffice to say that nothing on the part of the Coroner's reasoning appears illogical or lacking plausible justification. Perhaps, at best, this contention might ground an argument that the decision was susceptible for review on this ground in that it was based on a finding of fact not supported by probative material or logical grounds (see Minister for Immigration v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [195], per Gummow J). It is not necessary to decide that.

In light of the finding just made, I will deal with the balance of Telstra's contentions reasonably briefly.

First, Telstra contended that various passages in the Coroner's decision involved a rejection of unchallenged evidence from the Telstra employee, and for that reason grounds 2, 3 and 4 are established. Various passages within the Coroner's reasons were relied upon to support the contention that the Coroner rejected the Telstra's employee's evidence. They are exemplified by the following statement in the Coroner’s reasons: “[a]s far as I can discern, beyond the deponent's feeling, there does not appear to be any real substance to the application." Telstra also referred to the passage from the Coroner's reasons set out above concerning the "calculus of risk" approach, in which the Coroner referred to the "concerns raised by the deponent" (see [27]).

I do not take these passages or any of the other passages relied upon by Telstra as amounting to a rejection of the Telstra employee's evidence. His evidence has already been described. [Redacted]. I do not regard her Honour as having rejected this evidence in the sense of finding that the Telstra employee did not genuinely hold the opinions he stated. Instead, I treat her Honour as not accepting that the apprehended fear was sufficiently based on evidence.

I have already addressed the effect of the misapprehension about the Telstra statement. However I do not accept that the balance of the Coroner's reasoning involves any failure to take into account a relevant consideration, denial of procedural fairness or unreasonableness. It simply involved the Coroner evaluating the strength of the evidence and not reaching the requisite state of satisfaction about the public interest in order to make an order under s 74(1).

Second, Telstra pointed to what it contended were two irrelevant considerations taken into account by the Coroner, namely the material relied upon by counsel assisting [redacted] and the fact that [redacted]. Leaving aside whether either matter is truly a "consideration", none of this material was irrelevant.

The Coroner's path of reasoning has already been described. In light of the [redacted], Telstra needed to, and sought to, point to material to indicate that a different approach to their identities needed to be adopted. All that can be accepted, but it does not render material concerning [redacted] irrelevant.

A similar contention was made in respect of the passage from the Coroner's reasons which refers to the adoption of the calculus of risk approach (See Commissioner of New South Wales Police v Deputy State Coroner for New South Wales [2021] NSWSC 398 at [53] to [58] per Hamill J). In that passage her Honour described the possibility of a risk being realised as "nothing more than quite theoretical" and, again, referred to [redacted]. For the reasons already stated the description of it being "theoretical" was, in one sense, correct in that it related to an assessment of the potential future risk. A consideration of the Telstra employees' [redacted] was not irrelevant.

Third, Telstra took issue with that part of the Coroner's reasons in which her Honour rejected a submission attributed to the Commonwealth which sought to draw an analogy between the Telstra employees and police informers. At one point her Honour observed that, if the Telstra employees were to be treated as police informers, then "it is difficult to understand who would escape the moniker". Telstra contended that this reasoning somehow revealed the taking into account of an irrelevant consideration or unreasonableness. It was submitted that the Coroner had overlooked the fact that the Telstra employees assisted the Coroner as part of the discharge of their employer’s statutory and licensing responsibilities and that this distinguished them from other witnesses.

There is no substance to this contention. In the relevant part of the reasons the Coroner recorded and addressed a submission made to her which sought to draw an analogy between police informers and Telstra employees. Her Honour correctly rejected it. Police informers provide information or evidence in the expectation that their identity will be kept secret. There is nothing to suggest that Telstra employees do so under those conditions. Otherwise, many other persons, especially employees of State agencies, assist the Coroner as part of their duties to their employer who, one way or another, are obliged to assist the Coroner. All the Coroner was observing was that if the treatment of informers as a class, namely that as a class they are entitled to some confidentiality, was extended to the Telstra employees, then the number of people who would fall into a similar position would be large.

One part of Telstra's submissions sought that this Court make an order under s 69(3)(b) of the Supreme Court Act effectively compelling the making of an order by the Coroner under s 74(1) of the Coroner's Act. Section 69(3)(b) provides:

Telstra's written submissions refer to the following passage from Spencer v Coshott [2021] NSWCA 235 at [82]:

Accepting the correctness of that statement for the present, it is of no assistance to Telstra. An order of the kind referred to in s 69(3) can only be made if the Court determines "as a matter of law" that only one particular determination should have been made. This does not enable or authorise this Court to make assessments on questions of fact, including in this case, findings on such matters as the likely prospect of harm coming to the Telstra employees should their identity not be suppressed. As a matter of law this is not a case where "only one particular determination should have been made".

It follows that the appropriate relief is that the Court set aside the Coroner's decision. This will enable Telstra to apply again for its motion to be determined.

As adverted to earlier, when these reasons are available it will be necessary for the parties to approach the Court in relation to the revision of the interim non-publication order that I will shortly make.

Accordingly: