Conway v Jerram, Magistrate and NSW State Coroner - [2011] NSWCA 319

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319
Hearing dates: 28 September 2011
Decision date: 28 September 2011
Before: Campbell JA at [1], [52]
Young JA at [47]
Decision:
(1) Time for filing application for leave to appeal extended to 14 June 2011.
(2) Application for leave to appeal dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CORONERS - inquest into death - jurisdiction of coroners - application to Supreme Court to require an inquest to be held - whether "manner and cause" of death have not been sufficiently disclosed - relevance of events preceding death to "manner and cause" of death - scope of "the interests of justice"

APPEAL - leave to appeal - interlocutory orders and judgments - refusal to order inquest is interlocutory - did not involve an amount of $100,000 or more
APPEAL - interference with discretion of court below - discretionary decision about what interests of justice require - House v The King standard of appellate review
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Coroners Act 1980
Coroners Act 2009
Supreme Court Act 1970
Cases Cited: Re Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; 193 FLR 239
House v The King (1936) 55 CLR 499
Josephine Conway v Mary Jerram Magistrate of NSW State Coroner [2010] NSWSC 371
X v Deputy State Coroner for New South Wales [2001] NSWSC 46; 51 NSWLR 312
Category: Principal judgment
Parties: Josephine Conway (Applicant)
Mary Jerram, Magistrate and NSW State Coroner (First Respondent)
The Hon. John Hatzistergos, NSW Attorney General (Second Respondent)
Representation: K Borick QC (Applicant)
D T Kell (Second Respondent)
Darryl Quigley Partner Lawyers (Applicant)
Crown Solicitor, Submitting Appearance (First Respondent)
Legal Services Branch, Department of Justice and Attorney General (Second Respondent)

File Number(s): 2009/296133
Publication restriction: Nil
Decision under appeal

Citation:

Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner [2010] NSWSC 371

Date of Decision:

2010-05-03 00:00:00

Before:

Barr AJ

File Number(s):

2009/296133

Judgment - ex tempore

CAMPBELL JA : On 3 May 2010 Barr JA rejected an application by the Applicant for an order under s 47(1) of the Coroners Act1980 , requiring that an inquest be held into the death of a girl to whom I shall refer as M. M was the daughter of the Applicant. The decision of Barr AJ rejecting the application is Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner[2010] NSWSC 371.

These reasons relate to an application for leave to appeal against that decision. Because the question of whether an…

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: [2011] NSWCA 319
Decision Date: 28 September 2011

CaseChat Overview and Summary

The applicants, Conway and Jerram, sought leave to appeal from a decision of the Supreme Court of New South Wales (Campbell and Young JJA) which refused their application to require the State Coroner to hold an inquest into the death of a Mr. Conway. The applicants contended that the "manner and cause" of the deceased's death had not been sufficiently disclosed and that the interests of justice required an inquest.

The primary legal issues before the Court of Appeal were whether the Supreme Court had erred in refusing to order the Coroner to hold an inquest, and whether the refusal constituted an interlocutory judgment or order for the purposes of appeal. The Court also considered the scope of a coroner's jurisdiction concerning the "manner and cause" of death, and the meaning of "the interests of justice" in this context, as well as the appropriate standard of appellate review for discretionary decisions.

The Court of Appeal applied the principles established in *House v The King*, holding that interference with a discretionary decision of the court below was only warranted in cases of error of law, or where the decision was so unreasonable that no reasonable tribunal could have reached it. The Court found that the Supreme Court had correctly considered the relevant factors in determining whether the "manner and cause" of death were sufficiently disclosed and whether the interests of justice necessitated an inquest. The refusal to order an inquest was deemed an interlocutory order, and as it did not involve an amount of $100,000 or more, leave to appeal was required.

The Court of Appeal dismissed the application for leave to appeal, extending the time for filing the application to 14 June 2011 as a preliminary step before dismissing the substantive application.

Orders

Orders of the court

(1) Time for filing application for leave to appeal extended to 14 June 2011.

(2) Application for leave to appeal dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319
Hearing dates:	28 September 2011
Decision date:	28 September 2011
Before:	Campbell JA at [1], [52] Young JA at [47]
Decision:	(1) Time for filing application for leave to appeal extended to 14 June 2011. (2) Application for leave to appeal dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CORONERS - inquest into death - jurisdiction of coroners - application to Supreme Court to require an inquest to be held - whether "manner and cause" of death have not been sufficiently disclosed - relevance of events preceding death to "manner and cause" of death - scope of "the interests of justice" APPEAL - leave to appeal - interlocutory orders and judgments - refusal to order inquest is interlocutory - did not involve an amount of $100,000 or more APPEAL - interference with discretion of court below - discretionary decision about what interests of justice require - House v The King standard of appellate review
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Coroners Act 1980 Coroners Act 2009 Supreme Court Act 1970
Cases Cited:	Re Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; 193 FLR 239 House v The King (1936) 55 CLR 499 Josephine Conway v Mary Jerram Magistrate of NSW State Coroner [2010] NSWSC 371 X v Deputy State Coroner for New South Wales [2001] NSWSC 46; 51 NSWLR 312
Category:	Principal judgment
Parties:	Josephine Conway (Applicant) Mary Jerram, Magistrate and NSW State Coroner (First Respondent) The Hon. John Hatzistergos, NSW Attorney General (Second Respondent)
Representation:	K Borick QC (Applicant) D T Kell (Second Respondent) Darryl Quigley Partner Lawyers (Applicant) Crown Solicitor, Submitting Appearance (First Respondent) Legal Services Branch, Department of Justice and Attorney General (Second Respondent)
File Number(s):	2009/296133
Publication restriction:	Nil
Decision under appeal	Citation: Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner [2010] NSWSC 371 Date of Decision: 2010-05-03 00:00:00 Before: Barr AJ File Number(s): 2009/296133