Chol v White - [2016] VSC 561

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…

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: [2016] VSC 561
Decision Date: 29 September 2016

CaseChat Overview and Summary

Chol v White involves an appeal against the decision of a coroner who refused to hold an inquest into the death of the appellant's son. The appellant had requested that the coroner hold an inquest into the death, which the coroner declined to do. Dissatisfied with this refusal, the appellant applied to the Supreme Court seeking an order that the coroner hold an inquest. The central legal issues in this case pertained to the discretion of the coroner to hold an inquest, and whether the coroner's decision involved a question of law that could be reviewed by the Supreme Court. The court had to consider whether the coroner's refusal to hold an inquest was in the interests of justice.

The court examined the statutory framework under the Coroners Act 2008 (Vic), specifically sections 52, 67, 82, 87, and 87A, to determine the coroner's discretion in holding an inquest. The court held that the coroner's decision to refuse an inquest was a question of law, as it involved the interpretation and application of the statutory provisions. The court found that the coroner had considered the relevant factors in making the decision, but had made an error in law by not adequately considering the interests of justice. The court concluded that the coroner's refusal to hold an inquest was not in the interests of justice, and that the appellant's application for an order should be granted.

The Supreme Court allowed the appeal and ordered the coroner to hold an inquest into the death of the appellant's son. The court emphasised the importance of the coroner's discretion being exercised in accordance with the law and in the interests of justice. The court also highlighted the need for the coroner to carefully consider the relevant factors in making a decision, and to provide clear reasons for the decision. The final orders of the court included a direction to the coroner to hold an inquest into the death, and a declaration that the coroner's original decision was unlawful.

Orders