The lawyer for a group of NSW residents just across the border is fighting for them to take part in the coronial inquiry into the Orroral Valley fire that tore through a national park and sparked two fires in the Snowy Mountains.
The ACT fire appeared to have been ignited by a defence helicopter in Namadgi National Park on January 27 last year during a reconnaissance exercise between the Australian Army and the ACT Emergency Services Agency (ESA).
The fire burnt across the territory for one month and led to the Clear Range and Calabash fires across the border that left numerous facilities and homes destroyed.
Chief Coroner Lorraine Walker in July announced the inquiry, which will focus on the 45 minutes it took for the helicopter crew to alert the ACT Emergency Service Agency to the fire's location fire's location, which the court heard may have been ignited by the aircraft's landing light.
The inquiry came before the ACT Coroner's Court on Tuesday for a directions hearing when counsel assisting Kylie Nomchong, SC, said the draft terms of reference of the inquiry would explore three key issues.
First, the circumstances of the operation by the Australia Defence Force, ACT ESA and ACT Parks and Conservation Services.
Second, the arrangements between those organisations about their roles and communications.
Third, a detailed examination of the roles, movements and actions of personnel aboard the helicopter ANGEL21 and, in particular, the communications between those personnel and the relevant organisations and the impact of those matters on efforts to control the fire's spread.
"The fire spread and burnt through large sections of the park, causing widespread damage to flora and fauna and infrastructure within the park," Ms Nomchong said.
John Maconachie, QC, representing the group of about nine Bumbalong, NSW, residents, argued for them to have "a voice in determining the cause and origin" of the ACT fire because they had a sufficient interest in it as the fire led to them suffering materially and emotionally.
"A bushfire ranging around your property and putting your life at risk has a capacity to impact upon your psychic and your emotional wellbeing ... in an enormously impressive way," Mr Maconachie said.
He said that despite accepting that the inquiry was limited to the territory, his clients were "not so far away that they are culturally and economically divorced from the ACT and Canberra".
"Their emotional response to this horrific event is something that must be given great weight in determining whether or not they should have a voice," Mr Maconachie said.
He said their case would not be trying to run "some sort of behind-the-scenes negligence action" but "to bring a sharper focus to the forensic contest."
Counsel assisting the coroner, Ms Nomchong, however, said there could be sufficient interest only if an inquiry's findings would have adverse impacts to their interests, which she said did not exist in this case.
"The difficulty presented to your honour is that the terms of reference are crystal clear: that is, the inquiry begins at the border between the ACT and NSW," she said.
"It is for that reason that the inquiry does not extend to the Clear Range fire."
The chief coroner has reserved her decision on the application.
Defence granted non-publication order
Michael Fordham, SC, for the defence department, asked more time and was granted until March 30 to obtain the information requested in the subpoena issued in August.
Mr Fordham said some information, including emails and situation reports, have been produced but they needed to more IT expertise to inspect 120 email accounts that may also obtain relevant information.
Mr Fordham's application for a non-publication, based on confidentiality issues, on the brief of evidence was granted, which would allow only the legal parties access.
His suggestion for the department to conduct its own interviews was rejected, with the chief coroner saying she preferred Australian Federal Police-appointed investigators to conduct them.
Discussion to view bushfire site
Ms Nomchong said there would be discussions with the parties - ACT ESA, ACT Parks and Conservation Services and the Australian Department of Defence - about conducting an aerial view of the site via "a helicopter of the same kind as ANGEL21" to help address the inquiry's questions.
Margaret Jones, SC, representing the ACT departments, said they could "facilitate the land transport aspect" of the view.
"We have indicated we can also assist with the arrangement of the helicopter view, subject to discussion," Ms Jones said.
"ESA has advised that the most advisable time would be in early March at the end of the high-risk weather season."
The inquiry is listed for another directions hearing on January 19 before the hearing proper, which is listed tentatively for July 11-15 next year.
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