Bourke v Coroners Court - [2015] VSC 418

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 06886

APPEAL PURSUANT TO s 82 OF THE CORONERS ACT 2008
SANDRA BOURKE (ON BEHALF OF THE DECEASED, JOHANNES JEROEN STEENVOORDEN)	Appellant
v
CORONERS COURT OF VICTORIA	First Respondent
-and-
BARWON HEALTH	Second Respondent

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2015
DATE OF JUDGMENT:	17 August 2015
CASE MAY BE CITED AS:	Bourke v Coroners Court
MEDIUM NEUTRAL CITATION:	[2015] VSC 418

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ADMINISTRATIVE LAW – Appeal from decision of the Coroners Court – Coroners Act 2008, ss 52, 67, 82, 87, 87A – question of law – interests of justice – discretion to hold an inquest.

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APPEARANCES:	Counsel	Solicitors
The Appellant appeared in person
For the First Respondent	Ms N Hodgson	Coroners Court of Victoria
For the Second Respondent	Ms F Ellis	K&L Gates

HER HONOUR:

Mr Johannes Steenvoorden (the deceased), died on 13 September 2010 at the Geelong Hospital (‘the Hospital’). The appellant, Sandra Bourke, is the deceased’s daughter. The appellant applies to this Court pursuant to s 82 of the Coroners Act 2008 (‘the Act’) for orders that the first respondent, the Coroners Court of Victoria, conduct an inquest into the death of the deceased and reverse the decision not to hold an inquest.

The appellant relied upon the following documents:

(a) amended notice of appeal dated 10 April 2015;

(b) affidavit of Sandra Bourke sworn 24 December 2014;

(c) affidavit of Sandra Bourke sworn 20 February 2014;

(d) affidavit of Sandra Bourke sworn 10 April 2015;

(e) affidavit of Sandra Bourke sworn 22 June 2015;

(f) affidavit of Sandra Bourke sworn 26 June 2015;

(g) submissions dated 26 June 2015;

(h) further submissions dated 31 July 2015.

The first respondent relied upon the following documents:

(a) outline of submissions dated 9 July 2015;

(b) further submissions dated 10 August 2015.

The second respondent relied upon the following documents:

(a) affidavit of Dr Alastair Mah sworn 22 May 2015;

(b) affidavit of Jessica Bayly affirmed 23 February 2015;

(c) further affidavit of Jessica Bayly affirmed 15 April 2015;

(d) outline of submissions dated 3 July 2015;

(e) further submissions dated 12 August 2015.

Legislative framework

Under s 15 of the Act, a Coroner must investigate the death of a person if it appears to the Coroner that the death, or the cause of death, occurred in Victoria and it is a reportable death.[1] A ‘reportable death’ is defined by s 4 of the Act.
[1]Section 15 (a) and (b), the Coroners Act 2008 (‘the Act’).

Section 15 initiates an investigation by the coroner. Section 67 of the Act sets out the matters which a Coroner investigating a death must, if possible, find. Section 67 also outlines comments that a Coroner may make. Section 67 relevantly provides:

(1) A coroner investigating a death must find, if possible-
(a) the identity of the deceased; and
(b) the cause of death; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 418
Decision Date: 17 August 2015

CaseChat Overview and Summary

The case of Bourke v Coroners Court involved an appeal against a decision made by the Coroners Court, which declined to order an inquest into the death of a person in custody. The applicant, Bourke, sought a review of the Coroners Court’s decision under the Coroners Act 2008, arguing that the court had erred in its exercise of discretion. The High Court was tasked with determining whether the Coroners Court had correctly exercised its discretion in deciding not to hold an inquest.

The primary legal issue before the court was whether the Coroners Court had properly exercised its discretion under sections 52, 67, 82, 87, and 87A of the Coroners Act 2008 when determining not to order an inquest. Specifically, the court needed to assess whether the Coroners Court had considered all relevant factors, including the interests of justice and the need for public accountability, when exercising its discretion. The court also had to consider whether the Coroners Court’s decision was unreasonable or an error of law.

The court found that the Coroners Court had indeed exercised its discretion appropriately, considering all relevant factors. The court held that the Coroners Court had correctly balanced the interests of justice against the need for public accountability, and had not erred in its decision not to order an inquest. The High Court emphasised that the Coroners Court’s discretion is broad and must be exercised judiciously, taking into account the specific circumstances of each case. The court found no evidence of an error of law or unreasonableness in the Coroners Court’s decision. Consequently, the appeal was dismissed, affirming the Coroners Court’s decision.

The final orders of the court were that the appeal be dismissed, and that the decision of the Coroners Court not to order an inquest be upheld. The court also awarded costs against the appellant. This decision reinforces the broad discretion available to the Coroners Court in determining whether an inquest is necessary, and the importance of judicial review in ensuring that such discretion is exercised appropriately.

Orders