Recovery of inquest costs in subsequent civil proceedings

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By Louise Cantrill, Partner and Melanie Fayad, Lawyer

A coronial inquest is fundamentally different to ordinary litigated proceedings. Its jurisdiction is inquisitorial in nature, established primarily for the purposes of fact-finding with respect to cause and manner of death. It does not involve adjudications of criminal responsibility, civil liability, negligence or duty of care.[1]

Accordingly, the legislation governing inquests, the Coroners Act 2009 (NSW), does not contemplate the awarding or recovery of inquest costs.

In cases where families of a deceased subsequently bring civil proceedings (claims under the Compensation to Relatives Act 1897 (NSW)) on the back of the findings of an inquest, we are seeing, with increasing frequency, the relief claimed in such claims to include the costs of legal representation at the preceding inquest.

In principle, the costs of an inquest should not be recoverable in a subsequent civil claim. The basic position is that Compensation to Relatives claims are statutory claims governed by the provisions of the Compensation to Relatives Act 1897 and inquest costs are not a type of loss which this legislation foresees as recoverable for the death of a relative.[2]

However, it is possible a Court may award some of the costs associated with a coronial inquest where sufficiently linked to the proceedings on foot, and only insofar as they were clearly warranted and properly incurred. This is what the limited authorities on this issue, as explained below, tell us. 

Cremona v Roads and Traffic Authority [2000] NSWSC 556 (Cremona)

Cremona involved a claim by a deceased’s widow under the Compensation to Relatives Act 1897 for damages arising from her husband’s death in a motor vehicle accident.

Mrs Cremona sought an order that the defendant, the Roads and Traffic Authority, pay the costs of the coronial inquest into her husband’s death.

Justice Dowd awarded Mrs Cremona her costs of representation at the inquest on the basis that “it was proper in the circumstances for the plaintiff to be represented” at the coronial inquest and the costs of representation were “clearly warranted” and “properly incurred”.[3]

This costs order was not appealed by the defendant, which the Court has since commented was a surprise,[4] given there did not appear to be any prior authority on the point and Justice Dowd’s reasons for ordering the defendant to pay the costs of Mrs Cremona’s representation at the inquest were sparse.

Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518 (Chaina)

The Chaina case explored in greater detail the right to recover inquest costs in the context of a Compensation to Relatives claim, which followed an inquest into the death of Nathan Chaina on a school hiking trip.

Among the costs the Chaina family sought to recover were those incurred in relation to the inquest, involving a sum of $531,820.41 for the costs of solicitor and counsel, transcript, expert fees and transport in relation to the inquest.

Justice Davies had regard to the UK decision of Roach v Home Office; Matthews v Home Office [2009] EWHC 312; [2010] QB 256 (Roach), in which the UK High Court was asked to interpret the Court’s wide powers under section 51 of the UK Supreme Court Act in relation to awarding “costs of and incidental to all proceedings“. Although the equivalent provision in NSW does not use the expression “of and incidental to all proceedings“,[5] the decision of the UK High Court was informative in outlining the scope for recovery of inquest costs, including the following words by Justice Davis:

Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings. … it was open in the instant case to the Home Office … to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest. … the inquests here in practice seem to have had the effect of causing the civil proceedings thereafter relatively speedily (and thereby in a way saving of some costs) to be compromised.”[6]

As above, Justice Davies formed the view that costs of attendance at an inquest were not incapable of being recoverable as costs in subsequent civil proceedings.[7] Based on the Roach decision, his Honour considered the relationship between costs incurred in the later civil proceedings and admissions of liability before or following the inquest were relevant considerations in allowing recovery of inquest costs.[8]

In the present case, Justice Davies viewed it a “reasonable inference that the evidence which emerged at the inquest was of some relevance to the present proceedings and to the decision on the part of the Defendant to admit breach of duty.”[9] His Honour also accepted there was a forensic benefit in the Chaina family being represented at the inquest as they had formed the intention to commence civil proceedings from the outset.

Accordingly, his Honour concluded it was appropriate to make an allowance for the costs of the Chaina family’s representation at the inquest, but emphasised the need to “err on the conservative side” for a number of reasons, including:

  • the material relied upon was produced at such a late stage in the proceedings such that the defendant was prejudiced;
  • the plaintiffs led no evidence as to the number of hearing days of the inquest and what took place on those days.
  • there was no clear justification for the need for both junior and senior counsel to be involved for the whole or greater part of the inquest;
  • there was evidence Mr Chaina insisted on arranging his own pathologist to travel from overseas to conduct a further autopsy, which prolonged the inquest;
  • costs should only be payable on the usual party-party basis not on an indemnity basis.[10]

Based on the above, Justice Davies made a modest allowance for the costs of representation at the inquest of $75,000.

Key takeaways

The case law above suggests that the basis on which costs may be recoverable requires a reasonable reflection of itemised costs and assessment of whether these costs are sufficiently linked to the subsequent proceedings (including, for example, its relevance to the decision of a defendant to admit breach of duty), and the extent to which they were clearly warranted and properly incurred.

[1] Coroners Court of New South Wales, Coronial Practice Note No 1 of 2018, 19 November 2018, para 3.1.

[2] Swan v Williams Demolition Pty Ltd (1987) 9 NSWLR 173, 188.

[3] Cremona v Roads and Traffic Authority [2000] NSWSC 735, [45]-[46].

[4] Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518, [782].

[5] Civil Procedure Act 2005 (NSW) s 98.

[6] Roach v Home Office; Matthews v Home Office [2009] EWHC 312; [2010] QB 256 at [48].

[7] Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518, [790].

[8] Ibid [788].

[9] Ibid [791].

[10] Ibid [794].

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