It’s like a cow’s opinion – it just doesn’t matter. It’s moo.

About two weeks ago (or six months – who can tell anymore?), the High Court handed down judgment in The Commonwealth v Helicopter Resources Pty Ltd. What is unusual about the judgment is that by the time it was handed down (indeed, by the time the case was argued in the High Court), it had ceased to have any practical significance for the parties. That is, the case had become moot. More strangely, only Edelman J – who would have withdrawn special leave to appeal for this very reason – discussed why it was that the case had become moot and why it is unusual for a court to deliver judgment in such a case. As a result, Helicopter Resources is an interesting judgment that illustrates – but, unfortunately, does not explain – when a court will continue to hear an application for judicial review of a decision that has ceased to have any legal effect on the rights or interests of the parties.

The facts

On 11 January 2016, Captain David Wood – a helicopter pilot employed by the respondent – died after falling into a crevasse in the Australian Antarctic Territory. A coronial inquest into his death was commenced under the Coroners Act 1997 (ACT). Later, when the inquest had almost concluded, both the Commonwealth (which, by virtue of s 10(2) Work Health and Safety Act 2011 (Cth), can be charged with and found guilty of an offence against that Act) and the respondent were charged in the Magistrates’ Court of the Australian Capital Territory with summary criminal offences arising out Captain Wood’s death. However, before the inquest reached its conclusion, the Commonwealth advised the coroner that it would require another helicopter pilot employed by the respondent – Captain David Lomas – to be called as a witness and cross-examined. Accordingly, the coroner issued a subpoena requiring Captain Lomas to appear and give evidence at the inquest.

Proceedings in the Federal Court

The respondent commenced judicial review proceedings in the Federal Court, seeking a writ of certiorari to quash the coroner’s decision to issue the subpoena and a writ of prohibition to prevent the coroner from issuing any further subpoena requiring Captain Lomas to give evidence at the inquest before the criminal proceedings had concluded. In this regard, the respondent submitted that requiring Captain Lomas to give evidence at the inquest would give the Commonwealth, as the respondent’s co-accused in the criminal proceedings, an improper advantage of exploring and assessing the evidence he might give in the criminal proceedings. Further, the respondent submitted that requiring Captain Lomas to give evidence at the inquest would enable admissions that would be contrary to the respondent’s interests in the criminal proceedings to be extracted from him in cross-examination. Pursuant to s 87(1)(b) of the Evidence Act 2011 (ACT), those admissions would be attributed to the respondent, and would thus be admissible against the respondent in the criminal proceedings pursuant to the exception to the hearsay rule contained in s 81 of that Act. This, the respondent submitted, would offend the principle that a prosecutor in a criminal proceeding ‘cannot compel a person charged with a crime to assist in the discharge of its onus of proof.’ According to the respondent, the coroner had no power to issue a subpoena that would have this effect.

At first instance, Bromwich J dismissed the respondent’s application, holding that there was no reason to consider that Captain Lomas was ‘in any different position to any other witness who may be called at any inquest.’ Rather, as a natural person who was separate from the corporate entity that was the respondent, there was nothing to prevent him from being required to give evidence against the respondent in the same way that any witness whose evidence might be unfavourable to the respondent could be required to give evidence at an inquest.

A Full Court comprising Rares, McKerracher and Robertson JJ allowed the respondent’s appeal from the judgment of Bromwich J. In holding that the coroner had no jurisdiction to require Captain Lomas to give evidence, the Full Court commenced from the proposition that ‘anything said by Captain Lomas in giving evidence before the Coroner could be tendered against the [respondent] as an admission by it in the court hearing the criminal proceedings.’ From this proposition, the Full Court concluded that:

The consequence of the Coroner requiring Captain Lomas to give evidence will be to reveal matters about whether he will, or may, give evidence for the appellant at the trial and, possibly, what that evidence is. All of those matters are not now known to the [Commonwealth Director of Public Prosecutions] or the Commonwealth (AAD), as the co-accused, and neither can compel the appellant to reveal them. That is because of the appellant’s common law right to decide how to meet the case that the prosecution must prove beyond reasonable doubt, without the prosecution or co-accused having any entitlement to know, beyond the appellant’s plea of not guilty, how it will defend the charge. That is so, even if it knows (but the prosecution or co-accused do not) that, for example, Captain Lomas will not give evidence for it because of a concern about his own potential exposure or for some other reason.

Thus, the Coroner’s use of her compulsory powers has the real potential of forcing the appellant’s hand prematurely, before the time in the criminal trial when the prosecution has closed its case. A second, but separate, aspect of the potential forcing of the appellant’s hand is the role of the Commonwealth (AAD), as its co-accused in the criminal trial, urging the Coroner to overrule the appellant’s objection to her requiring Captain Lomas to give evidence at the inquest before the trial, when knowledge of his evidence would be likely to assist it, as co-accused, in its own defence of the charges.

The Full Court thus concluded that ‘if Captain Lomas were compelled to give evidence in the inquest, as a matter of practical reality, the appellant’s position as an accused corporation in the criminal proceedings would be altered fundamentally.’ To give effect to this conclusion, it ordered that the subpoena issued by the coroner, and any further subpoena requiring Captain Lomas to give evidence, be stayed until after the conclusion of the criminal proceedings.

Appeal to the High Court

The Commonwealth successfully sought special leave to appeal to the High Court from the judgment of the Full Court. However, by the time the matter proceeded to hearing, both the inquest into Captain Wood’s death and the related criminal proceedings had reached their conclusion. Captain Lomas had not been cross-examined at the inquest and the respondent had been acquitted of the charges against it. As Edelman J noted, it followed from this that while the Commonwealth had standing to appeal from the judgment given against it by the Full Court, its only practical interest in continuing its appeal was ‘effectively to obtain advice from this Court relevant to future coronial inquests’. For this reason, his Honour would have revoked the Commonwealth’s grant of special leave. But since the other six members of the Court considered it appropriate to give judgment on the Commonwealth’s substantive appeal, his Honour took the same course.

In allowing the Commonwealth’s appeal, the six-member majority stated that ‘there is nothing fundamental to the accusatorial system of criminal justice that requires that an accused employer be free to prevent statements of an employee from being used as evidence against the employer.’ This was sufficient to dispose of the substantive issue presented by the appeal. Similarly, it was sufficient for Edelman J to state that ‘s 87(1)(b) of the Evidence Act does not have the effect that, without more, the compulsion at an inquest of an employee of a corporation to provide evidence that is relevant to pending criminal charges against the corporation involves a real risk of improper interference with the due administration of criminal justice.’ Curiously, the majority said nothing about why it had chosen not to revoke the Commonwealth’s grant of special leave after the appeal became moot.

Continuing to hear a matter that has become moot

The term ‘moot’ can be used to describe two different types of case. First, it describes ‘those cases in which a justiciable controversy once existing between the parties is no longer at issue due to some change in circumstance after the case arose.’ Arguably, this is the true legal meaning of the term. However, the word can also be used to describe a proceeding that, from its inception, raises no practical controversy that can be resolved by a court. While it might be preferable to limit the use of the word ‘moot’ to the first class of case, the natural meaning of the word also clearly encompasses the second class (and there is no word that better describes it). As such, it seems to me that using the word ‘moot’ to describe both classes of case is unavoidable. However, this does not change the fact that it is important to distinguish between cases that have ‘become moot’ (the first class) and cases that are ‘moot ab initio‘ (the second class).

Where an application for judicial review of an administrative decision is moot ab initio, the plaintiff or applicant will simply lack standing to bring the proceeding. Thus where an applicant seeks to challenge the lawfulness of an instrument authorising a maritime voyage that has already departed and is well under way, the proceeding will be dismissed for lack of standing. Further, if a case that is moot ab initio is brought in federal jurisdiction, there will be no justiciable ‘matter’ in respect of which that jurisdiction can be invoked under any of ss 75, 76 and 77 of the Commonwealth Constitution. It follows that judicial review proceedings that are moot ab initio can  often be dealt with by way of summary dismissal (even if it may be necessary for the party seeking summary dismissal to lead evidence as to why the case was moot from its outset).

Proceedings that have become moot are more complicated. Ordinarily, a proceeding will cease to have any utility once it has become moot. For example, where the plaintiff in a  proceeding seeks an order in the nature of certiorari to quash an administrative decision that has ceased to have any practical effect on its rights, the remedy will be unavailable and there will ordinarily be no point in continuing the proceeding. A court will also ordinarily decline to grant declaratory relief with respect to a proceeding that has become moot. However, there are some circumstances in which it is appropriate to give judgment in respect of a judicial review proceeding that has become moot. For example, Kenny J has suggested that, at least in some cases, an Australian trial court may follow the position adopted by the Supreme Court of the United States in Roe v Wade, under which it may be appropriate to continue hearing a matter that has become moot if it raises an issue that is ‘capable of repetition, yet evading review’ (in this regard, while Norma McCorvey, the plaintiff in Roe, was pregnant when she commenced proceedings, she had given birth by the time her case was heard in the Supreme Court). At the appellate level, it is well established that an Australian court has a discretion to continue to hear a proceeding that has become moot, and may exercise that discretion if ‘the decision subject of the appeal is likely to affect other cases‘.

Why did the High Court give judgment in Helicopter Resources?

When one considers the bases on which an Australian court may continue to hear a case that has become moot, it becomes clear why Helicopter Resources was an appropriate case in which to exercise the discretion to do so. The judgment of the Full Court would have had sweeping implications for the conduct of a range of proceedings – not just coronial inquests – that might intersect with criminal proceedings. Taken to its logical conclusion, the Full Court’s judgment would mean that in any civil proceeding relating to a matter in respect of which an employer had been charged with an offence, the court hearing the civil proceeding would have no power to require an employee of the employer to give evidence if that evidence would be likely to contain admissions adverse to the employer’s interests in the related criminal proceeding. This would go far beyond the well-established practice pursuant to which a court or tribunal may stay civil proceedings pending the outcome of related criminal proceedings if it considers this appropriate, having regard to the effect a stay would have on all interested parties. It would, in effect, require the civil court either stay to its proceedings pending the outcome of the criminal trial (and any subsequent appeals) or to proceed on the basis of incomplete evidence. In workers’ compensation, transport accident, and intentional tort claims  – which frequently overlap with criminal proceedings – such a rule would have the potential to seriously prejudice the interests of injured plaintiffs by denying them access to relevant evidence and/or by preventing their interests from being properly taken into account in deciding whether to stay their civil claims. For this reason, it seems to me that the majority in Helicopter Resources must (quite rightly) have considered that the Full Court’s judgment needed to be corrected before it became entrenched, regardless of the fact that leaving it in place would have had no practical effect on the parties themselves. However, I can’t help thinking that it would have been more useful for trial judges, appellate courts and public law practitioners if the majority had explicitly stated its reasons for continuing to hear the Commonwealth’s appeal, rather than leaving them to make educated guesses as to what those reasons might have been.