St Basil’s aged care managers lose bid to avoid giving evidence

Two St Basil’s aged care managers have lost their last ditch effort to avoid testifying in a coronial inquest into the deaths of 50 residents.

Two St Basil’s Home for the Aged managers have lost their last-ditch bid to avoid giving evidence at a coronial probe into the deaths of 50 residents during the height of the Covid pandemic.

St Basil’s chairman Kon Kontis and facility manager Vicky Kos had pulled out all stops to ensure they did not have to testify in a coronial inquest into the July 2020 disaster.

But on Monday their third attempt to overthrow court rulings forcing them to enter the witness box was thrown out by three Court of Appeal judges.

Mr Kontis and Ms Kos objected telling the inquest what they knew unfolded at the Fawkner aged care provider on the ground that it may incriminate them.

The duo also argued their evidence would be of “low probative value” because there was already ample evidence before the coroner.

In December, State Coroner John Cain ruled against their request, stating it was in the “interests of justice” for them to take the stand as their “hands on’ roles meant they played an integral role in the daily management of St Basil’s.

St Basil’s chairman Kon Kontis had pulled out all stops to ensure he did not have to testify in a coronial inquest. Picture: Andrew Henshaw

Mr Kontis and Ms Kos went to the Supreme Court to have Judge Cain’s decision quashed, only to have their application dismissed by Justice Stephen O’Meara on August 1.

They even refused an offer for a special certificate that would have prevented their evidence from being used against them.

With their options running out, they took their fight to the Court of Appeal.

They argued Judge Cain wrongly construed and applied relevant provisions of the Coroners Act 2008 in requiring them to give evidence.

“In our opinion, he did not,” appeal justices Stephen McLeish, Kristen Walker and Jack Forrest ruled on Monday.

Mr Kontis and Ms Kos are the last of 57 witnesses to give evidence at the inquest, which began in November last year and has had to be put on hold due to their appeals.

Vicky Kos will have to give evidence. Picture: Andrew Henshaw

Harrowing details were heard over 23 days of the inquest about how residents were left starving and dehydrated as Covid spread through the facility.

Confusion about company infection control policies meant staff continued working while waiting for Covid results to return, only to find out they were positive.

Staff were stood down and temporary workers, who were under-trained and ill-prepared for the work expected of them, were brought in.

Family members of elderly residents who died at the home have pushed the coroner to find their loved one’s deaths were “caused or contributed to by conduct on the part of St Basil’s which fell below the appropriate standard of care and was in breach of St Basil’s statutory obligations as an aged care provider”.

Fifty residents during the height of the Covid pandemic.

The Coroner’s Court heard WorkSafe was not conducting any investigation into the personal liability of Mr Kontis or Ms Kos, only suspected contraventions of the OHS Act by St Basil’s.

The workplace watchdog has charged St Basil’s — owned by the Greek Orthodox Archodiocese of Australia — with nine offences, including failing to provide a safe environment, failing to provide information, instruction and supervision, and failing to ensure residents were not exposed to risk.

The criminal case returns to Melbourne Magistrates’ Court in March.