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 inquiry into the deaths of dozens of people at the facility.
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 of them COVID 19 but some were malnutrition and dehydration because 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 to give evidence on the grounds that they might incriminate themselves.
Coroner John Cain made an order compelling them to appear, but the pair challenged the ruling in the Supreme Court.
In a two day hearing before Justice Stephen O'Meara, the pair's barrister Ian Hill QCHill QC argued that 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 that they could face criminal charges and giving evidence at the coronial inquest with lawyers for WorkSafe watching on would be 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 argued that Judge Cain's decision to compel Mr Kontis and Ms Kos to give evidence was affected by apprehended bias. He said that while the coroner was deciding whether to compel their evidence, the families of the deceased gave statements detailing the impact the deaths had on their lives.
At the hearing, Judge Cain moved from the bench to sit among the families and asked him to be referred to as 'John' rather than 'Your Honour', a move Mr Hill suggested showed that Judge Cain had formed an alliance with the families that would affect his judgement.
But the barrister Edwina Smith, acting for the Attorney General, defended the coroner's decision to hold an informal hearing, saying that it was appropriate for his Honour to sit at the bar table to convey a less intimidating presence to family members who are speaking to the court on matters that may be distressing.
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.
The system is somewhat informal, because it is the practice in this court to introduce ourselves to a jury by first name.
Justice O'Meara has reserved his decision on the case until a date that is yet to be fixed.