A Supreme Court judge has reserved his decision on whether the managers of Melbourne's St Basil's aged care home should give evidence at a coronial inquest into the deaths of dozens of people at the facility.
Kon Kontis and Vicky Kos were running the Fawkner home during a fatal COVID-19 outbreak in July 2020.
Within six weeks of the outbreak, 50 elderly residents had died, most from COVID-19 but some from malnutrition and dehydration after authorities struggled to provide an adequate workforce.
Mr Kontis and Ms Kos were called to give evidence at a coronial hearing late last year but refused on the grounds they might incriminate themselves.
Coroner John Cain made an order compelling them to appear, but the pair challenged the ruling in the Supreme Court.
Pair's lawyer argues coroner formed 'alliance' with victim's families
In a two-day hearing before Justice Stephen O'Meara, the pair's barrister Ian Hill QC argued Mr Kontis and Ms Kos should not be forced to give evidence while Victoria's workplace safety regulator WorkSafe was investigating what happened at St Basil's.
He said there was a reasonable chance they could face criminal charges and giving evidence at the coronial inquest with lawyers for WorkSafe watching on would amount to a "dress rehearsal" for a criminal trial.
"The scope of the inquest formulated by the defendant (the coroner) was a template for a WorkSafe prosecution," Mr Hill said.
Mr Hill also argued Judge Cain's decision to compel Mr Kontis and Ms Kos to give evidence was affected by "apprehended bias".
He said while the coroner was deciding whether to compel their evidence he conducted what Mr Hill described as an "extraordinary" hearing where families of the deceased gave statements detailing the impact the deaths had on their lives.
At that hearing, Judge Cain moved down from the bench to sit among the families and asked them to address him as 'John' rather than 'Your Honour', a move Mr Hill suggested showed Judge Cain had formed an alliance with the families that would affect his judgement.
But barrister Edwina Smith, acting for the Attorney General, defended the coroner's decision to hold the informal hearing, arguing it fulfilled his obligation under the Coroners Act to conduct an inquest "with as little formality and technicality as the interests of justice permit".
"It was entirely appropriate for His Honour to sit at the bar table to convey a less intimidating presence to family members who were speaking to the court on matters that may be distressing," Ms Smith said.
Justice O'Meara told the court he was "a bit bemused" by Mr Hill's argument that it was inappropriate for the coroner to allow family members to address him by his first name.
"It's the practice in this court now to introduce ourselves (to a jury) by first name, so the system even here is somewhat more informal," the judge said.
Justice O'Meara has reserved his decision on the case to a date yet to be fixed.
