NOTICE OF FILING

This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
24/04/2018 1:58:52 PM AEST and has been accepted for filing under the Court’s Rules. Details of
filing follow and important additional information about these are set out below.

Details of Filing

Document Lodged: Statement of Claim - Form 17 - Rule 8.06(1)(a)

File Number: NSD629/2018
File Title: HELICOPTER RESOURCES PTY LTD ACN 006 485 105 v
COMMONWEALTH OF AUSTRALIA & ORS
Registry: NEW SOUTH WALES REGISTRY - FEDERAL COURT OF
AUSTRALIA

Dated: 24/04/2018 2:13:12 PM AEST Registrar

Important Information

As required by the Court’s Rules, this Notice has been inserted as the first page of the document which
has been accepted for electronic filing. It is now taken to be part of that document for the purposes of
the proceeding in the Court and contains important information for all parties to that proceeding. It
must be included in the document served on each of those parties.

The date and time of lodgment also shown above are the date and time that the document was received
by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if
that is a business day for the Registry which accepts it and the document was received by 4.30 pm local
time at that Registry) or otherwise the next working day for that Registry.
Form 17
Rule 8.05(I )(a)
Statement of claim

No. of 20
Federal Court of Australia

District Registry: New South Wales

Division: General

Helicopter Resources Pty Ltd ACN 006485105

Applicant

Commonwealth of Australia & Ors named in the Schedule

Respondents

The Parties

I. The Applicant is a corporation established under the Corporations Act 2007

2. The Third Respondent is established under the Coroner^ Act f 997 (ACT) and exercises
jurisdiction with respect to deaths in the Australian Antarctic Territory pursuant to ss. 6
and/or 10 of the Australian Antarctic Territory Act 7954 (Cth).

The Third Respondent is conducting an inquest into the death of Captain David Wood.
Captain Wood died at Davis base in the Australian Antarctic Territory in January 2016.

The First Respondent operates Davis Base and a scientific research program in the
Antarctic, including in the Australian Antarctic Territory, through the Australian Antarctic
Division (AAD).

At all relevant times the First Respondent acquired from the Applicant the service of
transport of goods and people by helicopter with pilot.

The Second Respondent is the widow of Captain David Wood.

Captain David Wood was employed by the Applicant as a pilot to deliver services to the
First Respondent in the Antarctic, including the Australian Antarctic Territory.

The Inquest

8. The inquest commenced public hearings on 19 September 2017.

9. Hearings in the inquest were conducted over 12 days concluding on 21 December 2017.

Filed on behalf of (name & role of party) ^!jggpter Resources P ^^Applicant

Prepared by (name of person/lawyer) Mark Mackrell
Law firm (if applicable) Norton White Ref: I 66347
Tel Jg2. ) 9230 9400 Fax 02 9230 9499
Email mark. mackrell@nortonwhite. coin
Address for service Level4,66 Hunter Street, Sydney NSW 2000
(include state and postcode)
[Form approved 01/08/2011]
10. The inquest is listed to resume for three days of public hearings on I to 3 May 2018 in
Melbourne.

The Third Respondent has caused a Subpoena to issue to David Loinas, the chief pilot
of the Applicant to give evidence at the resumed hearing.

12. There may be no further witness, other than Mr Loinas, proposed to be called to give
evidence at the inquest.

The Death of Captain Wood

13. The western ice shelf within the Australian Antarctic Territory includes areas of ice with
crevasses.

14. On the day prior to his death, while providing services to the First Respondent Captain
Wood landed a helicopter on the western ice shelf and disembarked from the helicopter.
15. While re-embarking the helicopter Captain Wood slipped and fell into a crevasse from
which he was not rescued for some time.

16. Captain Wood died the following day as a result of his prolonged exposure to cold.

The Work Health and Safety Act Charges

17. On 22 December 2017 both the Applicant and the First Respondent were charged on
Information (Information) with three counts each of breaching s. 32 of the Work Health
and Safety Act 201 I (Cth) (WHS Act).

Particulars

A copy of each Information as laid and each Statement of Facts served by the
prosecution is available on request from the Applicant's solicitor.
18. Each of the three offences with which the Applicant is charged is punish able by a fine
not exceeding $1,500,000.

The Adjournment Application

I9. Following the laying of the Information the Applicant applied to the Third Respondent for
an order that the inquest be adjourned until resolution of the criminal prosecution against

Particulars

The Applicant's Submissions in support of its application for an adjournment

dated 23 March 2018 and 11 April2018 are available upon request from the
Applicant's solicitor.

20. The First Respondent opposed the adjournment of the inquest.

 3

Particulars

The First Respondent's Submissions in opposition to the adjournment are

available on request from the Applicant's solicitor.

21. The Second Respondent opposed the adjournment.

Particulars

The Second Respondent's Submissions dated 23 March 2018 and 11 April2018

are available upon request from the Applicant's solicitor.

22. With Reasons dated 12 April2018 and published to the Applicant on I6 April2018, the
Coroner refused to adjourn the inquest and directed that it would resume on I May 2018
at 10 am.

Particulars

A copy of the Coroner's Reasons for Decision on Stay Application is available on

request from the Applicant's solicitor.

23. On 19 April2018 the Third Respondent issued a subpoena requiring the attendance of
Mr Loinas to give evidence at the resumed inquest.

24. On 20 April the Third Respondent refused to direct that questioning of Mr Loinas would
not extend to matters alleged in the Information.

The Prosecution

25. In proceedings on the Information, the prosecutor, the Applicant or the First Respondent
is able to subpoena Mr Loinas to attend and to call Mr Loinas to give evidence in the
prosecution.

26. Prior to the decision to commence criminal proceedings against the Applicant the
prosecutor was entitled pursuant to SI55 of the Work Health and Safety Act 2017 (Cth)
to require Mr Loinas to answer questions.

27. Following the decision of Coincare to commence the prosecution the prosecutor has not
been entitled to exercise the power under s. 155 to require Mr Loinas to answer any
questions, and has not otherwise been entitled to require Mr Loinas to communicate with
the prosecutor or make any disclosures to him.

28. The First Respondent has no entitlement in the criminal process to require any
disclosures by Mr Loinas concerning the evidence which he may give if called by any
party in the prosecutions.
M r Loinas

29. Mr Loinas is employed as the Chief Pilot of the Applicant.

30. As Chief Pilot of the Applicant, Mr Loinas was personally responsible for the aviation
safety standards of the Applicant and was the guiding mind of the Applicant with respect
to aviation safety standards.

31. Pursuant to its Contract of Employment the Applicant is entitled to proof Mr Loinas and
to test the evidence which he might give, before deciding whether to subpoena him or to
call him in the proceedings on the Information.

32. Mr Loinas was not in the Antarctic at the time of Captain Wood's death and is not able to
give any evidence concerning the immediate circumstances of that death.
33. At all relevant times the Respondents and each of them have known of the facts alleged
in paragraph 32.

Decision and Conduct

34. By the matters alleged in paragraphs 22 and 23 or in the alternative 22 to 24 the Third
Respondent decided that Mr Loinas was required to give evidence at the resumed
inquest on and from I May 2018.

35. In the alternative to paragraph 34 the Third Respondent engaged in conduct directed to
requiring that Mr Loinas give evidence at the resumed inquest, including on matters
alleged in the Information, on and from I May 2018.

36. The applicant is aggrieved by the decision alleged in paragraph 34 or in the alternative
the conduct alleged in paragraph 35 because compelling Mr Loinas to give evidence at
the inquest will provide to the First Respondent opportunities not available to it in the
criminal process:

to seek admissions which will be admissible against the Applicant in the

proceeding on the Information without the need for the First Respondent to call
Mr Loinas in those proceedings; and

b. assess, through the conduct of a compulsory cross examination, the risks to the
First Respondent in compelling Mr Loinas to give evidence for the First
Respondent and against the interests of the Applicant in the proceeding on the
Information.

37. Further the Applicant is aggrieved by the decision alleged in paragraph 34 or in the
alternative the conduct alleged in paragraph 35 because compelling Mr Loinas to give
evidence at the inquest may provide to the prosecutor on the Information opportunities
 not available to him in the criminal process, and under s. 155 of the Work Health and
Safety Act 207 I (Cth), to:

a. rely upon admissions admissible against the Applicant in the proceeding on the
Information without the need for the prosecutor to call Mr Loinas;

b. enable the prosecutor to assess the risks to the prosecution case of compelling
Mr Loinas to give evidence against Applicant in the proceeding on the
Information when Coincare had not availed itself of the opportunity to make that
assessment by exercise of its powers under s. 155 of the Work Health and Safety
Act 2077 (Cth) at a time when it was lawful for it so to do.

38. The decision alleged in paragraph 34 was not authorised by the enactment pursuant to
which it was purported to be made.

Particulars

a. The enactment was the Australian Antarctic Territory Act I954 (Cth) (AAT Act)
or in the alternative the Coroner^ Act 7997 (ACT) as an instrument made under
the AAT Act.

b. The Third Respondent is authorised by the enactment to conduct an inquiry for

the purpose of providing a report on the matters specified in s. 52 of the Coroner^
Act and not otherwise.

c. The questioning of Mr Loinas was not for the purpose, or proposed to be limited
to the purpose, of providing a report for the purpose within the meaning of s. 52 of
the Coroner^ Act.

39. The decision alleged in paragraph 34 was an improper exercise of the power conferred
by the enactment in pursuance of which it was purported to be made.
Particulars

a. The Applicant repeats particular 38 a

b. The Third Respondent took into account irrelevant considerations in the

exercise of the power:

the Third Respondent took into account that the First Respondent
sought to ask Mr Loinas questions concerned with the
responsibility for circumstances leading to the death of Captain
Wood when it was beyond the functions of the Third Respondent
to enquire into the responsibility for the circumstances of the death
except irisofar as any such inquiry concerned matters of public
safety;
 the Third Respondent took into account that the Second
Respondent sought to ask Mr Loinas any question about the
circumstances of the death of Captain Wood that was reasonable
when only questions asked for the purpose of providing a report
within the meaning of s. 52 of the Coroner^ Act, which were
reasonable, could be asked;.

c. The Third Respondent made the decision failing to take into account a
relevant consideration in the exercise of the power by rejecting a
submission that the Applicant's defence of the proceeding on the
Information would be compromised by Mr Loinas giving evidence:

The Applicant repeats and relies upon the allegations in

paragraph 36 and 37 above.

d. The decision constituted an exercise of discretionary power that was so

unreasonable that no reasonable person could have exercised the power;
or in the alternative in a way that constitutes abuse of the power:

the decision depended upon rejection of the submission that the

Applicant's defence of the proceeding on the Information would be
compromised by Mr Loinas giving evidence when that rejection
was irrational so as to render the refusal of the adjournment
unreasonable.

40. The decision alleged in paragraph 34 involved an error of law.

Particulars

(a) The Applicant repeats particular 38 a

(b) The Third Respondent construed s. 58(6) of the Coroner^ Act as having no
application except where a Coroner decides to terminate an inquest when the
Third Respondent should have found that s. 58(6) created a duty to not hold
an inquest at a time when the Coroner was satisfied that by reason of
concurrent criminal proceedings the inquest should not be continued at that
time.

41. Requiring that Mr Loinas give evidence at the resumed inquest, including on matters
alleged in the Information, on and from I May 2018 was not authorised by the enactment
pursuant to which the Third Respondent proposes to impose that requirement.

Particulars

The Applicant repeats the particulars to paragraph 38.

42. Requiring that Mr Loinas give evidence at the resumed inquest, including on matters
alleged in the Information, on and from I May would be in improper exercise of the
power conferred by the enactment pursuant to which that requirement was proposed to
be imposed.

Particulars

The Applicant repeats the particulars to paragraph 39.

43. An error of law has been committed in the Third Respondent's conduct alleged in
paragraph 35.

Particulars

The Applicant repeats the particulars to paragraph 40.

Jurisdictional Error

44. The decision alleged in paragraph 34 was in excess of the jurisdiction of the Third
Respondent by reason of each or any of the errors alleged in paragraphs 38, b and b
above.

45. In the alternative the Third Respondent proposes to exceed heriurisdiction by requiring
Mr Loinas to give evidence at the resumed inquest, including on matters alleged in the
Information on and from I May 2018 in excess of its jurisdiction.

Particulars

The Applicant repeats and relies on the allegations and particulars to paragraphs
41 to 43 above.

Igned by Mark Mackrell

Lawyer for the Applicant

This pleading was prepared by Mr Torn Brennan of Counsel

 8

Certificate of lawyer

I Mark Mackrell certify to the Court that, in relation to the statement of claim filed on behalf of the
Applicant, the factual and legal material available to me at present provides a proper basis for
each allegation in the pleading.

Date: 24 April2018

I
I
Signed by Mark Mackrell
Lawyer for the Applicant
 Schedule

No. of 20

Federal Court of Australia

District Registry: New South Wales

Division: Sydney

MARY MACDONALD

Second Respondent

CORONER'S COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Third Respondent

Filed on behalf of (name & role of party) HeIico ter Resources Pt Ltd, Applicant
Prepared by (name of person/lawyer) Mark Mackrell
Law firm (if applicable) Norton White Ref: 166347
Tel 02 9230 9400 Fax 02 9230 9499
Email mark. mackrell norionwhite. coin
Address for service Level4,66 Hunter Street, Sydney NSW 2000
(include state and postcode)
[Form approved 01/08/2011]