Chol v White

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 05475

AYEEL CHOL	Plaintiff
v
PETER WHITE (CORONER)	Defendant

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2016 with further written submissions filed on 20 September 2016
DATE OF JUDGMENT:	29 September 2016
CASE MAY BE CITED AS:	Chol v White
MEDIUM NEUTRAL CITATION:	[2016] VSC 561

ADMINISTRATIVE LAW – Appeal pursuant to s 82 of the Coroners Act 2008 (Vic) – Coroners Act 2008 (Vic), ss 52, 67, 82, 87, 87A – Inquest – Request to coroner for inquest – Refusal by coroner to hold inquest – Application to Supreme Court to order inquest – Discretion of coroner to hold an inquest – question of law – interests of justice.

APPEARANCES:	Counsel	Solicitors
For the Appellant	In person with the assistance of her son, Deng Nai
For the Respondent	Ms N Hodgson	Coroner’s Court of Victoria

HIS HONOUR:

Introduction

Erjok Nai, a 23 year old refugee from Sudan, died on 8 August 2012 when he fell from the 12^th floor of an office building on La Trobe Street, Melbourne.

The coroner, Mr Peter White (the respondent to this appeal), having received the police Brief of Evidence, determined on 19 July 2014 not to hold an inquest.

In October 2014, Ayeel Chol (Erjok’s mother) filed a Notice of Appeal in this Court pursuant to s 82 of the Coroners Act 2008 (Vic) (the Act) seeking this Court order that the coroner hold an inquest.

The delay in this case coming on for trial is unusual and regrettable – whatever the procedural requirements of this appeal, it should have been heard earlier than September of this year.

The appeal raises two issues:

(a) whether the appeal is confined to a question of law under s 87 of the Act, or whether s 87A (which came into force in January 2015) also applies. Section 87A permits the Court to allow an appeal ‘if it is necessary or desirable in the interests of justice’; and

(b) whether the appeal ought to be allowed.

In my opinion, s 87A has no application to this appeal; it provides a new substantive right and was enacted subsequent to the coroner’s decision not to hold an inquest. This appeal is confined to a question of law under s 87, and I am not persuaded that the coroner’s discretion to refuse an inquest was misplaced. I will now explain my reasoning.

The Act

It is necessary to set out the relevant provisions of the Act. First, there are the provisions that assist in the interpretation of the Act.

Section 1 sets out the purposes of the Act, which are:
(a)       to require the reporting of certain deaths; and
(b)to provide for coroners to investigate deaths and fires in specified circumstances; and
(c)to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners; and
(d)to establish the Coroners Court of Victoria as a specialist inquisitorial court; and
(e)       to establish the Coronial Council of Victoria; and
(f)       to amend the Coroners Act 1985—
(i)       to repeal the provisions relating to coroners; and
(ii)to rename that Act as the Victorian Institute of Forensic Medicine Act 1985; and
(g)       to make consequential amendments to other Acts.
Section 8 is headed ‘Objectives’ and provides the factors to be considered for the purposes of the Act:

When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following—
(a)that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b)that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c)that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e)that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;
(f)the desirability of promoting public health and safety and the administration of justice.

Section 9 speaks to both fairness and efficiency:

The coronial system should operate in a fair and efficient manner.

Part 5 of the Act then sets out the nature of inquests which may, or must, be held. Section 52(1) is the enabling section which empowers the coroner to hold an inquest:

(1)A coroner may hold an inquest into any death that the coroner is investigating.

Section 52(2) mandates the holding of an inquest:

(2)Subject to subsections (3) and (3A), a coroner must hold an inquest into a death if the death or cause of death occurred in Victoria and—
(a) the coroner suspects the death was the result of homicide; or
(b)the deceased was, immediately before death, a person placed in custody or care; or

(c) the identity of the deceased is unknown; or
(d) the death occurred in prescribed circumstances.

Section 52(3) sets out the circumstances in which a coroner can decline to hold an inquest:

(3)The coroner is not required to hold an inquest in the circumstances set out in subsection (2) if—
(a)the coroner believes the death probably occurred more than 50 years before the death was reported to the coroner; or
(b)a person has been charged with an indictable offence in respect of the death being investigated by the coroner; or
(c)an interstate coroner has investigated, is investigating, or intends to investigate, the death; or

(d) the death occurred outside Australia.

It is also worth noting here that s 52(5) enables a person to request a coroner hold an inquest into any death that the coroner is investigating. Ms Chol made such a request.

Divisions 2 and 3 of Part 5 then deal with the powers of a coroner at an inquest and the process to be adopted. It is not necessary to set out those provisions here other than to note that the coroner has a discretion as to who he or she may require give evidence at an inquest.

Section 55(2) provides:
A coroner may—
(a)summon a person to attend as a witness or to produce any document or other materials;
(b)inspect, copy and, subject to this Act and the rules, hold for a reasonable period anything produced at the inquest;
(c) order a witness to answer questions;
(e)give any other directions and do anything else the coroner believes necessary.
Part 7 deals with appeals to this Court. Section 82 relates to an appeal against a determination not to hold an inquest:

(1)If a coroner determines not to hold an inquest into a death or fire, the person who requested the coroner to hold an inquest into the death or fire may appeal against the coroner's determination to the Trial Division of the Supreme Court constituted by a single judge.
(2)Subject to section 86, an appeal under this section must be made within 3 months after the day on which the determination of the coroner is made.

Section 87 then deals with the nature of an appeal to this Court:

(1)Subject to section 87A, an appeal to the Supreme Court under this Part is an appeal on a question of law.
(2)Subject to this Part, an appeal under this Part must be brought in accordance with the rules of the Supreme Court.
(3)The Supreme Court may make an order staying the operation of a determination that is the subject of an appeal under this Part.
(4)Subject to section 88, after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the matter for re‑hearing to the Coroners Court with or without any direction in law.
(5)An order made by the Supreme Court on an appeal under this Part, other than an order remitting the matter for re-hearing to the Coroners Court, may be enforced as an order of the Supreme Court.

Section 87A came into force on 1 January 2015 and reads as follows:

(1)An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by—
(a) the senior next of kin of the deceased; or
(b) a person with sufficient interest.
(2)The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.

Factual background

On 7 August 2012, between 8:30 and 9:00 pm, Erjok met his friend Benjamin Capps at the Hawthorn Hotel. They continued on to Cheers Nightclub and met with other friends including Ahmed Mohamud. They consumed a considerable amount of alcohol during the evening, through to the early morning.

At 2:30 am Erjok and Ahmed met two other friends, left the nightclub and took a taxi to Chapel Street in Windsor between 3:00 and 4:00 am. The group bought a slab of beer from a liquor store and drank this in a nearby car park. Ahmed and Erjok then went to Flinders Street Station because Erjok had intended to return to his home in Balwyn.

At Flinders Street Station, Mohamud noticed that Erjok had become moody and angry. At 7:52 am they went by train to Blackburn Station. Mahmoud went home, leaving Erjok alone at the station. Erjok became involved in a ‘minor scuffle’ with an unknown man in the car park and left the station catching a city bound train at 8:16 am. Erjok changed trains at Richmond and then alighted at Flagstaff Station around 8:49 am.

Elizabeth Muhlebach, a policy officer at Tresscox Lawyers said that as she crossed William Street and walked past the Federal Court building, Erjok started walking backwards and forwards in front of her saying, ‘do you see me?’ He followed her and when they both arrived at 469 La Trobe Street, she told Erjok that this was her building and she had to go. He followed her into the foyer and grabbed her arm and wrist in an attempt to pull her towards him calling her ‘sweetheart’. While waiting for a lift, Erjok wrapped his left arm around Ms Muhlebach’s neck and tried to dance with her calling it ‘twirling’. Ms Muhlebach told Erjok that he was wrecking her jacket so he let her go before she got into the lift.

Still in the foyer, Erjok approached Alexandra Stojanovski, a legal secretary at Russell Kennedy Lawyers (RKL). He asked her a number of times if she could ‘see him’ and followed her into the lift. Erjok put his hand under Ms Stojanovski’s chin, lifted her head and told her that he wasn’t going to hurt her.

When they arrived at level 12 – the floor on which RKL is located – Erjok stepped out of the lift and approached the receptionists. Michael Rhodes, a business services manager, saw this and asked Erjok what he wanted. Erjok picked up a cup of tea that one of the receptionists was drinking, took a sip of it and threw it at Mr Rhodes. Other RKL staff, including Benjamin Lloyd, a solicitor, noticed what was happening and tried to usher Erjok towards the lift. He clenched his fists and told Mr Lloyd, ‘you could take me out man’.

Erjok subsequently became distressed and walked around various parts of the floor, stopping at an open area which faced La Trobe Street. He told Damian Zahra, an HR manager, that no one cared for him and that he had ‘nothing to live for’ before repeatedly bumping into the glass window of the building. Mr Lloyd tried to calm Erjok down by saying, ‘you don’t want to be doing that’ and ‘it’s a long way down from here’. Erjok responded by hugging Mr Lloyd, to which Mr Lloyd said ‘there is too much to live for’.

Erjok walked towards the window again. He accelerated and jumped in the air. His jump carried him forward into, and eventually through, the window, breaking it with his hip and shoulder; resulting in him falling to a third floor balcony. He died as a result of his multiple injuries which included fractures of his skull, rib, sternum and pelvis. He also sustained injuries to his cervical spinal cord, heart, lungs, liver and spleen.

The Coroner’s brief

The Coroner’s brief included the following information:

(a) Erjok’s background and medical history;

(b) the events which occurred on 8 August 2012;

(c) post mortem findings of the forensic pathologist;

(d) witness list;

(e) exhibit list; and

(f) witness statements.

In relation to events on level 12 at the RKL office, there were statements from:

(a)Ms Brown – Real Estate Agent;
(b)Ms Mascitti – Receptionist at RKL;
(c)Ms Malek - Receptionist at RKL;

(d) Mr Rhodes;
(e)Mr Lloyd;

(f) Mr Zahra;
(g)Ms Eardley-Wilmot – Catering Manager at RKL;
(h)Mr Warren – Principal at RKL; and
(i)Mr Kazatsky – Solicitor at RKL.

The Coroner’s decision not to hold an inquest

In deciding not to hold an inquest into the death of Erjok, the coroner found that the evidence provided to him by way of coronial brief was sufficient for him to discharge his statutory duty under the Act. He made the following findings:

(a) cause of death: due to a thorough medical examination and eye witness accounts, the coroner was satisfied that the cause of Erjok’s death, being injuries sustained from the fall, could be determined without ambiguity;

(b) homicide: the Coroner was not provided with any evidence which suggested that Erjok’s death occurred as a result of homicide. Based on the eye witness reports and circumstances surrounding Erjok’s death, the Coroner was satisfied that this could be ruled out;

(c) identity of the deceased: Erjok’s identity was never in question; and

(d) public interest: even if an inquest was held, it would not lead to the making of any recommendations which touch upon public health or safety issues.

The Coroner also commented that he found the police investigation sufficiently thorough.

Grounds of appeal

The following grounds of appeal were raised by Ms Chol:

(a) the coroner erred in law in determining that the suggestion that the death was caused by homicide was fanciful;

(b) the coroner erred in law in determining that the evidence provided to the Court by way of the coronial brief was sufficient to allow the coroner to discharge his duty under the Act and further investigation was not necessary;

(c) the coroner erred in law in failing to address a public safety issue, being the issue of whether the glass window through which the deceased fell was of sufficient thickness or strength; and

(d) the coroner erred in law in determining that there was no reason to suspect that the eye witness accounts of the last moments of the deceased’s life were false.

Ms Chol seeks the following orders:

(a) the coroner be directed to conduct an inquest into the death of Erjok Nai; and

(b) such further or other orders as this Honourable Court deems fit.

Appeal on a question of law under ss 82 and 87
Principles

An appeal on a question of law involves more than dissatisfaction with the decision of a coroner. Alleged errors as to the resolution of factual disputes are insufficient to found an error of law. This Court will only intervene if an appeal truly involves a question of law and not a re-agitation of factual findings made by the coroner.[1]
[1]Karakatsanis v Racing Victoria Ltd [2013] VSC 434; S v Crimes Compensation Tribunal [1998] 1 VR 83.

In this case, the challenge to the coroner’s decision relates to the exercise of his discretion in determining not to hold an inquest. In Bell Corp Victoria Pty Ltd v Stephenson,[2] Ashley J held that an appeal (from VCAT) on a question of law from a discretionary decision could not succeed merely because the court would have found facts differently. A court will only undertake a review of an exercise of discretion if the decision maker, in this case, the coroner:
[2][2003] VSC 255.

(a) failed to take into account a matter that it was bound to take into account;

(b) took into account an irrelevant consideration; or

(c) exercised his or her discretion in a way which was ‘manifestly unreasonable’ in the sense that no reasonable decision maker could have exercised the discretion in that way.[3]

[3]Bourke v Coroners Court [2015] VSC 418, [24] citing Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255 (Ashley J).

In Clancy v West,[4] Tadgell JA said of the discretion given to a coroner under s 17 of the Coroners Act 1985 – the predecessor to s 52 of the current Act:

Section 17(2) is notable in two respects. First, it gives a discretion to hold an inquest in any circumstances in which a coroner having jurisdiction to investigate the death believes it desirable to hold one. This is a valuable statutory option exercisable, no doubt, in the public interest; and it is in contrast to the position obtaining, for example, in England, where a coroner, in general, is obliged to hold an inquest in statutorily stipulated circumstances but has no discretion to hold one if none is mandatory: cf R v Poplar Coroner; Ex parte Thomas[1993] QB 610 at 626. Secondly, s. 17(2) plainly gives to a coroner who has jurisdiction to investigate a death a discretion not to hold an inquest if s. 17(1) does not apply and the coroner believes it is not desirable to hold one. A more absolute discretion conferred upon a coroner to hold or not to hold an inquest in a case not falling within subs. (1) of s. 17 could scarcely be formulated.[5]

[4][1996] 2 VR 647 (‘Clancy’).

[5]Ibid 653, emphasis added.

His Honour also noted the limitations on such an appeal:

No doubt s.18(3) is to be understood to confer a jurisdiction upon the Supreme Court to override a decision taken under s.18(1)(b). It would appear, however, to be a jurisdiction exercisable sparingly. The Supreme Court's jurisdiction to order an inquest to be held has existed in Victoria since the enactment of s.10 of the Coroners Act 1911, a provision that was repeated in successive Coroners Acts until that of 1958. The section copied s.6 of the United Kingdom Coroners Act 1887, now substantially re-enacted as s.13 of the Coroners Act 1988. It is interesting that, in all the years since its first enactment, there does not appear to be any reported exercise of the jurisdiction following a refusal to hold an inquest. The United Kingdom section requires, as did the Victorian equivalent until 1958, that an application for the exercise of the court's jurisdiction be made by or under the authority of a law officer. The present s.18(3) contains no such limitation but it is to be noted that by s.17(1)(e) the Attorney-General may apparently directly achieve what could previously have been achieved only by court order. Having regard to this and to the extended discretion given by the 1985 Act to a coroner, it may be expected that occasion for the court's exercise of jurisdiction under s.18(3) will be rare.[6]
[6]Ibid 653-654; see also Rouf v Johnstone [1999] VSC 396.

Analysis

I have set out the grounds of appeal at [32]. In oral argument, Mr Nai (and his mother, Ms Chol) made the following criticisms of the coroner’s decision not to hold an inquest:

(a)there is no evidence from the four police officers who attended the RKL offices shortly after Erjok fell to his death;
(b)the CCTV footage of events on the RKL floor is incomplete; further, there is no explanation as to why the footage finishes when it does. Nor is there any evidence as to how the CCTV footage was obtained;

(c)the primary witnesses – namely, RKL employees – should give viva voce evidence as to what happened in the minutes preceding Erjok’s death and be questioned so that his next of kin can understand exactly what happened;
(d)the failure to obtain statements from witnesses at ground level in La Trobe Street; and

(e) the real concerns in the Sudanese community that the circumstances of the case had not been fully explored by the coroner.

The sincerity of the complaints made by Ms Chol and her son as to the adequacy of the Coroner’s investigations cannot be doubted.

Before going to the specifics of the complaints, I repeat that the coroner was not obliged to hold an inquest. It was entirely within his discretion to hold or decline to hold an inquest pursuant to s 52(1) of the Act.

In reaching a decision not to hold an inquest, a Coroner is required to take into account the purposes and objectives of s 8 of the Act which I have set out at [8]–[9]. Relevantly:

(a) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death (s 8(b));

(b) that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected (s 8(c));

(c) the desirability of promoting public health and safety and the administration of justice (s 8(f)).

Turning now to the specifics of the family’s complaints.

First, as to the circumstances: the coroner had sworn statements from 9 witnesses as to what happened on the RKL floor. There are also sworn statements from witnesses who were on lower floors of the building and saw Erjok’s body fall from level 12 to level 3. There are no inconsistencies of significance between the witnesses who speak, in essence, with a common theme: a highly agitated young man who appeared ‘out of the blue’ and after an interaction with staff, endeavoured on a number of occasions to throw himself into a window and, tragically succeeded.

Their testimonies point unerringly to a tragic event: Erjok, for reasons unknown, attempted and then ultimately succeeded in leaping from the RKL floor, violently striking a third floor balcony, where he came to rest.

There is CCTV footage of the floor and the lobby that I have viewed. The CCTV footage does not show the entire sequence of events. It does, however, corroborate the evidence of the RKL staff as to the erratic behaviour of Erjok prior to him crashing through the window.

The coroner had the evidence of the RKL staff and was entitled to rely on those statements in addition to the CCTV footage. There is no basis upon which one could conclude that any additional parts of CCTV footage would add anything more to the evidence of the RKL witnesses.

Whilst I sympathise with the family’s desire to have the RKL witnesses give viva voce evidence, the coroner is, in this case as in any other, obliged to consider, in the light of their already sworn statements, whether any purpose would be achieved by requiring viva voce evidence.

The evidence of the police who arrived at the scene after the event is not the subject of individual statements. However, given the sworn statements of the RKL staff who were eye witnesses to the events on level 12, their evidence is of minor significance. In any event, the police officers’ evidence is summarised in the statement of the investigating officer, Senior Constable John Xydias.

The failure to interview witnesses at ground level is irrelevant, given the clear course of events and the fact that Erjok met his death on a third floor balcony. It is not conceivable that they would be able to add anything of substance to the evidence already obtained.

Notwithstanding the family’s criticisms, the sad reality is that the circumstances of Erjok’s death seem clear. The investigations and the coronial brief were adequate and no further investigation was required.

Second, it was patently open to the coroner on the material available to conclude that the death was not the result of a homicide.

Third, the public safety issue raised (the glass window being of sufficient thickness or strength) in the notice of appeal is not of any particular relevance. It was not raised by the family in oral argument or in any of the material before the coroner. It does not warrant any further investigation.

Fourth, the Coroner did not err in determining that there was no reason to suspect the eyewitness accounts were false. Indeed, to the contrary, as I have mentioned, the witnesses essentially spoke with one voice as to the events on the RKL floor and the tragic aftermath.

I am not persuaded that any of the matters raised by Ms Chol are such that it can be concluded that the factual basis for the coroner’s decision was so flawed that his discretion miscarried.

I should add this consideration: undoubtedly, a coroner from time to time is faced with requests to hold an inquest prior to delivering a finding in cases that fall outside s 52(2). It is peculiarly within the coroner’s knowledge as to how to utilise the resources of the Coroner’s Court in determining whether to hold an inquest; he or she is aware of the demands on the Court for mandatory inquests and in relation to other deaths which may necessitate the holding of an inquest. If the coroner is, after perusing all the material, satisfied that an inquest will serve no useful purpose then that is his or her call. The Court will only interfere in an appeal under s 87 if an error of law is demonstrated.

The end result is that the coroner did not commit an error of law in exercising his discretion to refuse to allow an inquest.

Appeal to the Supreme Court in the interests of justice: s 87A

Section 87A represents an important qualification to the limited nature of the appeal conferred by s 87(1). It introduces a fundamentally different concept: that a coroner’s decision not to hold an inquest may be overturned ‘if it is necessary or desirable in the interests of justice to do so’.

If that section is engaged, then the admonitions relating to ‘sparing exercise of the jurisdiction’, ‘rare circumstances’, ‘severe scrutiny’ and ‘compelling evidence’ can all be put to one side. The statutory words speak for themselves and provide the Court with a wide discretion as set out in s 87A(2). It is singular that this ground of appeal is directed to a decision by a coroner not to hold an inquest.

The question that now arises is whether this section applies to Ms Chol’s appeal.

The following is uncontentious:

(a) at the time of the decision of the coroner and the initiation of this appeal, there was only a right of appeal under s 82 as prescribed by s 87;

(b) the enactment of s 87A enlarged the rights of next of kin beyond those permitted by s 87; and

(c) if the enactment is treated as substantive, then it cannot have retrospective operation and can only apply to the decision of a Coroner made after that date.

Section 87A came into effect on 1 January 2015. There is nothing in the amending Act that gives the amendment any retrospective operation.

So, at the time of the decision to refuse an inquest, the only right of appeal available to Ms Chol was under s 82, as set out in s 87. The enactment of s 87A enlarged the rights of the next of kin beyond those provided by s 82, as defined by s 87.

The common law acknowledges a distinction between the retrospective operation of enactments which go solely to procedure, rather than to substantive rights. The oft-cited remarks of Wright J in Re Athlumney; Ex parte Wilson[7] still hold good today:

Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.[8]

[7](1898) 2 QB 547.

[8]Ibid 551 – 552.

As to substantive rights, the starting (and finishing) point is that legislation will be assumed not to have retrospective operation in the absence of a reasonably clear indication to the contrary.[9] In the seminal words of Dixon J in Maxwell v Murphy:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[10]

[9]Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27, [31] (‘Coleman’); Commissioner for Corporate Affairs v X and Y [1987] VR 460, 464; Beaumont v Yeomans (1934) 34 SR (NSW) 562.

[10](1957) 96 CLR 261, 267; see also Mathieson v Burton (1971) 124 CLR 1, 22.

In Coleman, Jordan CJ said:

It has been held that although, in the absence of some reasonably clear indication of intention to the contrary, an Act should not be construed so as retrospectively to affect particular rights or liabilities which had crystallised before it was passed, an Act which merely alters the procedure by which they may be put into effect governs the procedure for enforcing already existing rights including the procedure in already pending actions. [11]

[11](1943) 45 SR (NSW) 27, [31] – [32].

Earlier, in Beaumont v Yeomans,[12] Jordan CJ had also said:

Whether an Act has been repealed or amended is a matter of substance and not one of form only. One Act may purport to amend another by repealing part of it. On the other hand, an amendment may be effected either by the addition to a section of a particular phrase, or by the repeal of the section and the substitution of the same words with the phrase added. . . . And where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to an amendment, because the new provision has been regarded as intended to be retrospective so far as it is mere repetition, and prospective so far as it is new. [13]

[12](1934) 34 SR (NSW) 562.

[13]Ibid 569 – 570.

This proposition is now reflected in s 14(2) of the Interpretation of Legislation Act 1984 (Vic) which provides that where an Act is amended, the amendment does not affect any right accrued under the previous provision, unless there is an express intention to the contrary.

Finally, in ADCO Constructions Pty Ltd v Goudappel,[14] the High Court held that a contrary legislative intention sufficient to displace s 30 of the relevant Interpretation Act (as was applicable in that case) ‘must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule’.[15]
[14](1982) 150 CLR 139.
[15](2014) 254 CLR 1, 22 [52] (Gageler J) citing Carr v Finance Corporation of Australia Ltd [No 2] (1982) 150 CLR 139, 151-152.

The right provided by s 87A is not procedural. It does not confer some additional procedural route by which an appeal under s 87 may be utilised. As to appeals in Coleman, Jordan CJ said:

If an action be commenced whilst a right of appeal lies, a vested right of appeal comes into existence, and a subsequent Act taking away the right of appeal in general terms would have more than a procedural operation if it were treated as destroying the already vested right.[16]

[16](1943) 45 SR (NSW) 27, [32].

Using this analogy in relation to prospective rights, it is clear that s 87A added a substantive right – an appeal ‘in the interests of justice’ – as the basis for an appeal against the decision of a coroner not to hold an inquest. It was a ‘new’ or ‘fresh’ right of appeal over and above that which existed prior to 1 January 2015. The amending Act enlarged the basis on which a coroner’s decision may be attacked. It had real consequences for the administration of the Coroner’s Court jurisdiction and provided an additional statutory right to a family member aggrieved by the decision of a coroner not to hold an inquest.

Thus, the effect of s 87A is to add an additional statutory basis for the right to appeal to the extant right of appeal based on a question of law. The provision is more than just a supervening procedural change; it enlarges the scope of the right to appeal. It should therefore be characterised as substantive in nature, not procedural.

Moreover, if the legislature had intended that this new statutory right have retrospective operation it could have said so in clear terms, as often happens. There is nothing in the text that demonstrates any intended retrospective effect. The amending Act is silent as to any retrospective application of s 87A. There are no transitional provisions nor any express contrary intention which would be sufficiently certain to displace the common law and statutory principles I have referred to. In other words, it can be inferred that the legislature intended the section to act prospectively upon decisions made by a coroner on or after 1 January 2015.[17]
[17]See Mathieson v Burton (1971) 124 CLR 1, 23-24 (Gibbs J) and ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, 21 [48], 21-22 [51].

The section operates prospectively from 1 January 2015 in relation to any decision made by a coroner from that day. Section 87A is therefore not applicable to this appeal.

This conclusion is consistent with the decision of Zammit J in Bourke v Coroner’s Court[18] which treated s 87A as a substantive provision.
[18][2015] VSC 418.

Conclusion

The appeal should be dismissed.

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Citations

Chol v White [2016] VSC 561

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Karakatsanis v Racing Victoria Ltd [2013] VSC 434

Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255

Rodway v The Queen [1990] HCA 19

[2016] VSC 561

29 September 2016