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Danne v Coroner

Danne v Coroner

Case [2012] VSC 454 2 October 2012

Natural Justice & Procedural Fairness

Legal Privilege

Statutory Interpretation

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 02482

Peter Danne	Plaintiff
v
Dr Jane Hendtlass (sitting as Coroner)	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	26 September 2012
DATE OF JUDGMENT:	2 October 2012
CASE MAY BE CITED AS:	Danne v Coroner
MEDIUM NEUTRAL CITATION:	[2012] VSC 454
JUDGMENT APPEALED FROM:	Re Inquest into the Death of Rodney Moore (Unreported, Coroners Court, Dr J A Hendtlass, Coroner, 5 March 2012)

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ADMINISTRATIVE LAW – Hearing rule of natural justice – Legal professional privilege – Whether a coroner is authorised to provide material to an interested party on condition that a copy of any report prepared for that party on that material be provided to the coroner – Such a condition undermines the hearing rule of natural justice and legal professional privilege and is invalid.

CORONERS COURT – Power of a coroner to impose conditions on the provision of material to an interested party – Whether a tissue sample taken from a body remains part of the body – Whether a coroner has control over the tissue sample – Whether legal professional privilege under the common law or under the Evidence Act 2008 applies – Coroners Act 2008 ss 22, 28, 47, 49, 56, 58, 62, 66, 67, 114, 115 and the definition of ‘body’ in s 3(1) – Human Tissue Act 1982 ss 27, 29, 30, 33; Evidence Act 2008 ss 118, 119, 131A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Murdoch	Avant Law Pty Ltd
For the Defendant	Mr B Ihle	Solicitor, Coroners Court of Victoria

HIS HONOUR:

Introduction and summary

The defendant (‘Coroner’) is conducting an inquest (‘Inquest’) under the Coroners Act 2008 (‘Act’) into the death of Rodney Moore (‘Deceased’), who died on 1 February 2008. A pathologist, Dr Sarah Parsons, conducted an autopsy and concluded that the cause of death was ‘haemoperitoneum following recent laparoscopic cholecystectomy’.

As the general surgeon who conducted the operation on the Deceased on 24 January 2008, the plaintiff is an interested party in the Inquest.[1] The plaintiff disputes Dr Parsons’ conclusion about the cause of the Deceased’s death and has sought from the Coroner access to a post-mortem CT scan and photographs of the Deceased’s body, and tissue samples taken from the Deceased’s body that were used for histopathological analysis (collectively, ‘Requested Items’).[2] The plaintiff has requested access for the purpose of obtaining legal and expert medical advice on the Requested Items.
[1]Act, s 56.
[2]The plaintiff also sought access to ante-mortem CT scans but it appears that none have been located. The principles discussed in this judgment in relation to post-mortem CT scans are equally applicable to ante-mortem scans.

At the commencement of the Inquest on 5 March 2012, the Coroner made a ruling that the Requested Items would not be released to the plaintiff unless he agreed to a condition that he would provide to the Coroner any report…

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.

Continue reading Danne v Coroner

Details

AGLC: Danne v Coroner [2012] VSC 454
Case: [2012] VSC 454
Decision Date: 2 October 2012

CaseChat Overview and Summary

The case of Danne v Coroner involved a dispute regarding the handling of a tissue sample taken from a deceased person. The Coroner, as the party holding the sample, sought to provide it to an interested party under the condition that any report prepared on the sample would be shared with the Coroner. The applicant challenged the validity of this condition, arguing it undermined the hearing rule of natural justice and legal professional privilege. The matter was heard in the Coroners Court of Victoria.

The central legal issues before the court were whether a coroner has the authority to impose conditions on the provision of a tissue sample to an interested party, and if such a condition breaches the principles of natural justice and legal professional privilege. The court had to consider the applicability of the Coroners Act 2008 and the Evidence Act 2008, alongside the Human Tissue Act 1982, to determine the coroner's powers and the nature of the tissue sample as it pertains to the body.

The court determined that the coroner's condition was invalid as it infringed upon the hearing rule of natural justice and legal professional privilege. The coroner does not have the authority to impose such a condition on the provision of the tissue sample. The court held that a tissue sample, once taken from a body, ceases to be part of the body and therefore, the coroner's control over it is limited. The legal professional privilege, both under common law and the Evidence Act 2008, protects the confidentiality of communications between a client and their legal advisor, which the coroner's condition would compromise. Consequently, the condition was deemed to be unenforceable.

The court's decision concluded that the coroner's authority does not extend to imposing conditions on the use of a tissue sample provided to an interested party in a manner that contravenes natural justice and legal professional privilege. The condition was struck down, and the coroner was not allowed to require a copy of any report prepared on the sample.

Orders