Queensland Fire and Rescue Level III Incident Controllers course. Dr Michael Eburn ANU College of Law and Fenner School of Environment and Society

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1 Queensland Fire and Rescue Level III Incident Controllers course Dr Michael Eburn ANU College of Law and Fenner School of Environment and Society

2 Fire brigades before the courts Courts before the fire brigades Allendale Russell County Rees, Courthouse, Chief Officer South CFA Carolina, USA, 2009 May Victorian 18, Bushfires Royal Commission

3 A Royal Commission Can make findings and recommendations. They may be adopted, they may not. If people don t have confidence in the Commission its report may sit on a shelf. The fate of the Commission s recommendations depends on political will. Courts of law are different.

4 Courts 1. Identify the facts; what happened. 2. Identify what the law is controversial where it is unclear, ambiguous or the facts raise new and novel issues 3. Apply the law to the facts to come to a conclusion.

5 Case Highest court Approximate time to finalisation Nelligan v Mickan SA Court of Appeal 5 years Keller v MAS and Victoria Supreme Court of Victoria 8 years Gardner v NT High Court of Australia 10 years (Leave to appeal refused) Neal v NSW Ambulance NSW Court of appeal 7 years NSW v Tyszyk High Court of Australia (Leave to appeal refused) 5 years Stuart v Kirkland-Veenstra High Court of Australia 10 years Warragamba Winery v NSW NSW Supreme Court 13 years Myer Stores v State Fire Tasmania Supreme Court 5 years. Commission West v NSW ACT Supreme Court. 9 years but appeals are pending

6 Type of court or tribunal Royal Commissions and coronial inquest Trial courts, that is a magistrate, a single judge or judge and jury hearing a case for the first time Appeal court Court of Appeal, Court of Criminal Appeal or High Court of Australia. A panel of judges. Rulings on facts and law. Determine the facts; can make no binding legal decisions. Hears the evidence, makes a ruling on what the facts are and makes a binding legal determination on what the consequences of the law, applied to the facts as determined by the court. Reviews the decision of the trial judge on the law. Determines whether the trial judge accurately identified the law and applied the law to the facts as established by the trial court. They do not conduct a further investigation into the facts.

7 Importance Importance Observers Lawyers Lawyers Observers Royal Commission/ Coronial Inquest Trial Court Appeal Court

8 Royal Commissions Can compel the production of evidence. They are limited by their terms of reference. Their duty is not to investigate everything. Cannot (fully) take account of things outside those terms of reference (such as budgets, competing issues).

9 Coroners Established in the 12 th Century. Investigate deaths and fires. Can take a broad view of their jurisdiction and to determine for themself what is relevant to their inquest or inquiry. May make recommendations to avoid future deaths and fires.

10 Inquiries are not meant to be adversarial but Once the truth is established however, it is often impossible to learn from mistakes made without finding fault on the part of individuals Maria Doogan, The Canberra Firestorm; Inquests and Inquiry into Four Deaths and Four Fires between 8 and 18 January 2003: Volume I (2006, ACT Coroners Court), 7.

11 Or it has to be borne steadily in mind that one can always find fault in a setting of such complexity. The temptation to criticise the minutiae of every decision that was taken by a group of individuals or by the individuals themselves is sometimes difficult to resist. Anthony E Schapel Inquest Into The Deaths Of Star Ellen Borlase, Jack Morley Borlase, Helen Kald Castle, Judith Maud Griffith, Jody Maria Kay, Graham Joseph Russell, Zoe Russell-Kay, Trent Alan Murnane and Neil George Richardson (2007, Coroners Court of South Australia), 345.

12 And they re staffed by lawyers A small number of counsel approached the inquiry very aggressively, leaving me with the impression that they were seeking to turn the inquiry into adversarial litigation rather than seeking the truth about what happened. Maria Doogan, The Canberra Firestorm; Inquests and Inquiry into Four Deaths and Four Fires between 8 and 18 January 2003: Volume I (2006, ACT Coroners Court), 51.

13 The rules of evidence don t apply, but even so Examination in chief no leading questions. Cross examination leading questions are ok. The rule in Browne v Dunn.

14 Think about this scenario

15 It s never hard if nothing goes wrong It has to be also considered that if there had been a favourable outcome in this fire it is unlikely that the members of the Incident Management Teams would have been accorded accolades in any sense proportionate to the opprobrium that they have now had to endure. Anthony E Schapel Inquest Into etc (2007, Coroners Court of South Australia), 345.

16 And just because someone asks a question, doesn t mean there isn t a perfectly good answer. Warragamba Winery v NSW had members of the IMT taken sufficient action to communicate their urgent need for helicopters?

17 Walmsley AJ said: A general allegation was made that [name] knew full well what was needed that morning but seemed to do very little about it, making an extremely slow attempt to obtain contact with the air desk [His] explanation shows why, in my view, the plaintiffs criticism of him and the RFS and the NPWS generally that morning for not showing a sense of urgency, is completely empty, and shows only a misunderstanding of how a well run organisation works.

18 What to do... Consider and follow the SOPs but don t become inflexible if it s not working, change tactics. Ensure effective communication across the team; Record everything; and keep the records. Good records, good defence; poor records, poor defence; no records, no defence. Try not to have the post event inquiry at the forefront of your mind during the response.

19 Questions? Comments? Thank you for your attention. Michael Eburn P: E: