Fink v State Coroner of Western Australia - [2022] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FINK -v- STATE CORONER OF WESTERN AUSTRALIA [2022] WASC 44
CORAM:   CURTHOYS J
HEARD:   29 JULY 2021
DELIVERED          :   11 FEBRUARY 2022
FILE NO/S:   CIV 1071 of 2021
BETWEEN:   CHRISTIAN FINK
First Plaintiff
PAMELLA FINK
Second Plaintiff
AND
STATE CORONER OF WESTERN AUSTRALIA
Defendant

Catchwords:

Coroners - Coroner declined to hold an inquest - Application to the court that an inquest be held - Whether necessary or desirable in the interests of justice that an inquest be held

Legislation:

Coroners Act 1996 (WA), s 24(2), s 24(3), s 25(1), s 25(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	LCA Palmos & A Gordon
Second Plaintiff	:	LCA Palmos & A Gordon
Defendant	:	J Berson

Solicitors:

First Plaintiff	:	Palmos Legal
Second Plaintiff	:	Palmos Legal
Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Domaszewicz v The State Coroner [2004] VSC 528
Herron v Attorney General for New South Wales (1987) 8 NSWLR 601
Hewitt v NSW State Coroner [2019] NSWSC 1724
Mullaley v State Coroner of Western Australia [2020] WASC 264
Re State Coroner; Ex parte The Minister for Health (2009) WASCA 165; (2009) WAR 553
Veitch v The State Coroner [2008] WASC 187

CURTHOYS J:

Introduction

The plaintiffs, Christian Fink and Pamella Fink, are the father and mother of the late Cohen Daniel Fink. Cohen died on 4 June 2019, aged 17, by plastic bag asphyxiation.
By originating motion, Mr and Mrs Fink seek an order from this court that the State Coroner hold an inquest into Cohen's death.

For the following reasons, the application is dismissed.

Factual background

Cohen was born on 19 April 2002.
Cohen was a year 12 student enrolled at Warnbro Community High School (WCHS).
In or around July 2018, Cohen complained to his mother that 'his brain isn't working correctly'.[1]
[1] Affidavit of Pamella Elizabeth Fink sworn 9 February 2021, attachment PEF-10, 261 (First Fink Affidavit).
On 30 July 2018, Mr and Mrs Fink attended a consultation with general practitioner, Dr Sarah Cox of Rockingham City Family Practice. Dr Cox:
(a)diagnosed Cohen with major depression and anxiety disorder;
(b)referred Cohen to psychologist Richard Pascal of Rockingham Psychology for ongoing treatment; and
(c)urged Mrs Fink to inform WCHS of Cohen's diagnoses.
By email dated 31 July 2018, Mrs Fink wrote to Julie Grobbelaar, the then Acting Deputy Principal of WCHS.[2] No response to that email was received. It is not clear whether the email was or was not seen by the Acting Deputy Principal.
[2] First Fink Affidavit, attachment PEF-10, 261.
By email dated 27 August 2018, Mrs Fink contacted Amy Dransfield, the school psychologist for WCHS, informing her of Cohen's diagnoses. Ms Dransfield replied stating that she intended to inform year 11 student services about Cohen's conditions at their next meeting.[3]
[3] First Fink Affidavit, attachment PEF-10, 265.
A confidential school psychology record was prepared by Ms Dransfield. That document:
(a)noted that Mrs Fink's email of 31 July 2018 had been forwarded to relevant student services staff; and
(b) recommended that Cohen be added to the Students at Educational Risk (SAER) list.[4]
[4] First Fink Affidavit, attachment PEF-14, 287.
The relevant Department of Education policy defines 'students at educational risk' as 'students whose academic, social and/or emotional attributes are a barrier to engagement with the content and standards defined in the Western Australian Curriculum'.[5]
[5] Affidavit of Pamella Elizabeth Fink sworn 8 July 2021, attachment PEF-2, 20 (Second Fink Affidavit).
On 21 February 2019, Mrs Fink sent an email to the Associate Principal of WCHS, Craig Chadwick, requesting permission for Cohen to discontinue his modern history class on the basis that he had been diagnosed with anxiety and depression and wished to alleviate his stress. Mr Chadwick responded by email the following day advising that Cohen could withdraw from the class.[6]
[6] First Fink Affidavit, attachment PEF-10, 267.
On 13 March 2019, Mr and Mrs Fink attended a meeting with Cohen’s chemistry teacher, Melissa Barnier, to discuss concerns that she held about Cohen's declining academic performance. The parents allege that Ms Barnier told Mrs Fink during that meeting that she was unaware of Cohen's diagnoses.[7]
[7] First Fink Affidavit, attachment PEF-4, 17; Plaintiffs' Outline of Submissions filed 19 July 2021 [28] (Plaintiffs' Submissions).
On the same date, Cohen sent a Facebook message to his girlfriend stating that ‘he wanted to die’. When his girlfriend asked why, he replied, '1. Depression 2. Anxiety 3. Misophonia 4. School 5. The future'.[8]
[8] Affidavit of Kelly Marie Niclair affirmed 9 April 2021, attachment KMN1, 13 (First Niclair Affidavit).
Cohen had also made handwritten entries in his school notebooks that reflected upon his suicidal ideation.
Cohen attended his last appointment with psychologist, Mr Pascal, on 10 May 2019. Mr Pascal subsequently reported that Cohen did not report concerns for suicidal ideation and that he agreed to attend further appointments booked for June 2019 onwards.[9]
[9] First Niclair Affidavit, attachment KMN11, 86.
On 27 May 2019, Mrs Fink received an email from Fiona Powley, the head of the English department and Cohen's English teacher. In this email Ms Powley raised concerns about the fact that Cohen had failed to complete his last two assessments. Mrs Fink responded the same day informing Ms Powley, amongst other things, of Cohen's diagnoses. Ms Powley agreed that Cohen could have an extension to resubmit his work and that he could present his oral assessment to her rather than in front of the class.[10]
[10] First Niclair Affidavit, attachment KMN7, 55 - 57.
Between 24 and 30 May 2019, Cohen undertook his semester one examinations. Cohen did not answer the examination questions and instead recited the factual scenario or question in the space provided. In one examination Cohen did not provide an answer at all and instead drew a series of geometric patterns. Elsewhere, Cohen wrote comments in answers such as 'I don't even care if I got it wrong [because] … I already know I'm failing this test' and 'The smallest value of n is 0 because I say so, so don't question it'.[11]
[11] First Fink Affidavit, attachment PEF-9, 230 - 260.
WCHS records indicate that on 31 May 2019, Cohen's human biology teacher, Michelle Pilkington, raised concerns with Ms Grobbelaar about Cohen's 'mental health regarding his exam paper'. Ms Grobbelaar noted that she would 'catch up with Cohen on his return to school next week'.[12]
[12] First Fink Affidavit, attachment PEF-18, 294.
School records also indicate that on the same date, Cohen's English, chemistry and mathematics teachers contacted Mr Chadwick to raise their concerns regarding Cohen's examination results. The incident report states that Mr Chadwick asked them to ‘contact home and alert student services to their concerns as this was obviously a mental health issue'.[13] In an email sent to Cohen's chemistry teacher, Ms Barnier, on 31 May 2019, Mr Chadwick stated that she and Ms Pilkington 'need to be making contact with home to express concern'.[14] I note that 31 May fell on a Friday prior to a long weekend.
[13] First Fink Affidavit, attachment PEF-18, 293.
[14] First Fink Affidavit, attachment PEF-16, 291.
On the evening of 3 June 2019, Cohen interacted with his mother and older siblings at their family home. He appeared to be in a good mood.
In the early morning of 4 June 2019, Cohen's body was discovered by his older brother in the garage of their family home. Cohen was transported by ambulance to Rockingham General Hospital where he was pronounced dead. A post‑mortem examination concluded that Cohen's cause of death was suicide by plastic bag asphyxiation.
Later that morning, Mr Chadwick left a voicemail message on Mrs Fink's phone inviting her to call him to discuss Cohen's examination answers.

The first request to the coroner

On 3 July 2019, Mr and Mrs Fink's solicitors requested by letter that the State Coroner hold an inquest into Cohen's death (the first application).
On 4 July 2019, the Acting Principal Registrar of the Coroner's Court confirmed receipt of the letter and advised that:
(a) the coronial investigation into Cohen's death was still ongoing; and
(b) that the letter of 3 July 2019 would be considered an application under s 24 of the Coroners Act 1996 (WA) (the Act) for an inquest to be held.[15]
[15] First Fink Affidavit, attachment PEF-2, 9.
On 7 November 2019, Mr and Mrs Fink provided documents and submissions in support of their application.
On 27 November 2019, the State Coroner determined that an inquest was not desirable. That decision, and the reasons for refusing the application, were communicated by letter to Mr and Mrs Fink's solicitors on 2 January 2020. The reasons for refusal were as follows:[16]
[16] First Fink Affidavit, attachment PEF-11, 270 - 272.
Cohen lived with his parents and siblings and he was sitting his semester one ATAR exams shortly before he died. I am aware that Cohen had been diagnosed with anxiety and depression, and that he was in the care of a psychologist. I am also aware that he experienced misophonia, which he found troubling.
It is clear to me that your clients are dissatisfied with the conduct of staff at Warnbro Community High School in various respects. My attention is drawn to the Department of Education's School Response and Planning Guidelines for Students with Suicidal Behaviour and Non‑Suicidal Self‑Injury (the Guidelines), together with case specific materials from school related records, which point to a deterioration in Cohen's mental state.
In essence, your clients are concerned that the school missed a number of opportunities, at specified and critical junctures, to identify factors that may have reflected upon the gravity of Cohen's mental or emotional disturbances. Further, your clients are concerned that, potentially, the school did not comply with the Guidelines because they did not identify Cohen as an 'at risk' student and consequently, they did not implement a risk management plan for him.
It is my view that individual staff members could have engaged in better and more timely and productive communications with your clients about Cohen's mental health at a number of junctures (including when the school was initially informed by Cohen's mother of his diagnoses, and immediately following the identification of concerns about his ATAR exam performances).
I do not however consider that the school failed to identify Cohen as an 'at risk' student, such as to have caused or materially contributed to his death.
I note that a number of teachers did proactively contact and liaise with your clients in order to discuss (and where possible remedy) aspects of Cohen's declining academic performance in particular subjects. Whilst this was approached from the viewpoint of academic performance, in hindsight it is clearer that the relatively sudden decline in this area was connected with his deteriorating mental state. The Guidelines· note that a decrease in academic performance is an example of one of a number of common indicators of concern that a student may be stressed or distressed.
I turn now to your clients' concern about the school's potential non‑compliance with the Guidelines, and specifically the expected responses and planning for students with suicidal behaviour and non-suicidal self-injury. Having reviewed that document, I consider that the applicability of the Guidelines to Cohen's case may be doubtful given the definition of 'suicidal behaviour' and the information that was actually known to the school and its staff about Cohen at the material time.
Other than the declining academic performance, that at the material time may have reasonably been attributed to a range of factors, I am unable to identify any evidence in the materials that goes to show that the school was aware, prior to Cohen's death, of his having any suicidal ideation or his having committed a deliberate act to attempt to end his own life.
Extracts from Cohen's school exercise books contain disturbing handwritten entries that reflect upon his suicidal ideation. Clearly if they were seen by a staff member, there would have been cause for immediate measures to be taken to endeavour to protect Cohen and engage with his family and mental health clinicians. However, there is no evidence that goes to show that any of his teachers saw the contents of his exercise books.
Cohen's answers in his exam papers, which were clearly seen by teachers, are troubling. They do not so much reflect on suicidal ideation, as on a student who is disengaged and unwilling or unable to address the questions posed. I am aware that teachers had planned to address these with Cohen on his return to school. Tragically, Cohen died before this could happen. I am aware that your clients are concerned about the school's decision to defer bringing the exam answer issues to your clients' attention. Again, in hindsight, those answers reflect upon a deterioration in his mental state.
I also note that your clients have raised various concerns about the school's approach during what you have referred to as the 'postvention' period. Although the actions and responses by a Government entity to a death may be 'a matter connected with the death' for the purposes of s 25(2) of the Coroners Act, I do not consider that the potential shortcomings in systems of support offered by the school to its students, family and members of the community that were affected by his death are wider systemic matters relevant to public health or safety which a coroner is likely to comment upon following an inquest.
In addition to the particular concerns your clients have raised, when considering whether an inquest is desirable, I must take account of whether a public inquest is likely to generate further relevant evidence that would assist the coroner in making the findings on the cause and manner of Cohen's death (as required by s 25(1) of the Coroners Act). Taking account of all the material before me, I have decided that there is sufficient information for the coroner to make the required findings as to cause and manner of death without holding an inquest. I do not consider that an inquest is likely to supplement the existing evidence in a material manner, for the purposes of s 25(1). You will be aware that s 25(5) precludes a coroner from framing a finding or comment in such a way as to appear to determine a question of civil liability.
I am also mindful that any inquest into the apparent suicide of a student cannot necessarily be confined in focus to the actions and inactions of school staff. Although those are clearly the primary concerns of your clients, any inquest would traverse a range of circumstances connected with his mental state and care and treatment.
An investigation (without an inquest) was undertaken by Deputy State Coroner King.
On 11 February 2020, the Deputy State Coroner published a Record of Investigation into Death (Administrative Finding). He found that Cohen's death occurred in the following circumstances:[17]
[17] Affidavit of Alexander William Francis Gordon sworn 23 March 2021, attachment AWFG-2, 8 ‑ 9 (Gordon Affidavit).
Cohen was a Year 12 student who lived with his parents and siblings in Port Kennedy. He was in a relationship with a girl his age.
In June 2018, Cohen presented to his doctor complaining of being tired and unmotivated. He returned to the doctor two weeks later in a similar condition, with anxiety and a flat mood. When he saw his doctor again on 30 July 2018, he admitted to occasional suicidal ideation. The doctor diagnosed him with severe anxiety and depression, prepared a mental health plan and referred him to a psychologist. At some stage, Cohen also began to experience misophonia, an aversion to specific sounds that caused him significant distress.
Cohen went to the psychologist for cognitive and behavioural therapy. His last appointment with the psychologist was on 10 May 2019, at which time he did not express concerns for suicidal ideation. He agreed to attend further appointments in June 2019.
On 13 May 2019, Cohen sent a message to his girlfriend stating that he wanted to die. When she asked why, he replied, '1. Depression 2. Anxiety 3. Misophonia 4. School 5. The future'. He also noted suicidal ideation in a school notebook.
In late May 2019, Cohen undertook his first semester ATAR exams. His exam answers indicated a deterioration in his mental state.
On Monday 3 June 2019, a public holiday, Cohen was at home playing video games in his bedroom. During the evening, he watched TV and talked with his mother, brother and sister. He appeared to be in a good mood, chatting and laughing. He went to bed at about 11.00 pm.
At about 8.20 am the next morning, Cohen's mother went to his bedroom. She saw that he was not in his bed, which had been neatly made. His car was still in the garage and his school bag on the floor in the house, which was unusual. She went back to his bedroom and found an envelope addressed to her. The envelope contained a typed letter explaining why Cohen decided to commit suicide. When she started to read the letter, she began screaming.
Cohen's brother heard his mother's screaming. He went to her, read the letter and began looking for Cohen. He found him lying on the floor of a shed adjoining the house. Cohen had a plastic shopping bag over his head, secured with a thick elastic band around his neck.
Cohen's brother removed the plastic bag and called '000'. He and Cohen's sister administered CPR until ambulance paramedics attended and took over. The paramedics took Cohen to Rockingham General Hospital where resuscitation attempts continued, but he could not be revived.
A forensic pathologist conducted a post mortem examination and found no evidence of injury or natural disease. The forensic pathologist formed the opinion that the cause of death was plastic bag asphyxia.
On the basis of the information available, I am satisfied that Cohen placed a plastic bag over his head and secured it with an elastic bag, which led to asphyxia and caused his death.
I find that death occurred by way of suicide.
The parents were dissatisfied with the Deputy State Coroner's decision and had seven days in which to apply to this court under s 24(2) of the Act.
They decided against making such an application, electing instead to make a legally misguided application for the Attorney General to direct that an inquest be held. The Attorney General refused on the basis that he did not have the power to do so.[18]
[18] First Fink Affidavit, attachment PEF-12, 273 - 276; Gordon Affidavit, attachment AWFG-6, 18, attachment AWFG-7, 19, attachment AWFG-9, 22, attachment AWFG-10, 23.

The second request to the coroner

On 5 November 2020, Mr and Mrs Fink's solicitors made a written request under s 24(1) of the Act for the State Coroner to hold an inquest (the second application). It is common ground that this application was capable of constituting a valid request under the Act.
The basis for the second application was that, since the first application, Mr and Mrs Fink had obtained a considerable volume of new material mainly as a result of requests made pursuant to the Freedom of Information Act 1992 (WA).[19]
[19] First Fink Affidavit, attachment PEF-13, 283 - 286; First Niclair Affidavit, attachment KMN13, 96 ‑ 97.
By 6 February 2021, being more than three months from the date of the request, the State Coroner had not replied and Mr and Mrs Fink’s right to apply to this court under s 24(2) of the Act was enlivened.
On 9 February 2021, Mr and Mrs Fink commenced these proceedings by originating motion. The second application had not been determined at the time proceedings were commenced.

On 24 February 2021, the State Coroner set aside the Administrative Finding to enable further investigations arising from the provision of the new material, namely:
(a) a report compiled for Regional Executive Director of the South Metropolitan Education Region of the Department of Education, Sue Cuneo, in response to Cohen's death;[20]
(b) an email from Deputy Director General of the Department of Education, Stephen Baxter, dated 19 August 2020;[21] and
(c) an email from Director General of the Department of Education, Lisa Rodgers, to Stephen Baxter dated 19 August 2020.[22]
[20] First Fink Affidavit, attachment PEF-19, 295 - 314.
[21] First Fink Affidavit, attachment PEF-20, 315 - 316.
[22] First Fink Affidavit, attachment PEF-21, 317.
On 21 April 2021, the Department of Education provided counsel assisting the coroner with a detailed report.[23] The report was produced as a result of a review undertaken by the South Metropolitan Education Office about the operations of WCHS before and after Cohen's death.
[23] Supplementary Affidavit of Kelly Marie Niclair affirmed 2 June 2021, attachment KMN18, 4 - 81 (Second Niclair Affidavit).
By letter dated 20 May 2021, the State Coroner advised Mr and Mrs Fink’s solicitors that she had, once again, determined that an inquest was not desirable. On 27 May 2021, written reasons for refusing an inquest were provided to Mr and Mrs Fink’s solicitors. These reasons were as follows:[24]
The State Coroner has carefully considered the content of the material you have provided and the report provided by the Department [of Education]. The State Coroner has had regard to the further information, and has determined to maintain her previous decision, namely that an inquest into the death of Cohen is not desirable, within the meaning of section 22(2) of the Act. Accordingly, your clients' initial and subsequent requests (the inquest request) is refused.
The State Coroner's reasons for refusing the inquest request are as set out in the State Coroner's letter dated 2 January 2020, and in light of the further information, are supplemented as follows:-
·Cohen's school did not fail to act in accordance with the Students at Educational Risk policy. Although he was not included on the [SAER] list, his identified educational needs were addressed by the school. There were no welfare concerns identified by teachers based on their knowledge and observations of Cohen at the material time.
·There is nothing to suggest that the school ought to have formed the view that Cohen had suicidal ideation or was at risk of self‑harm. Staff did not consider Cohen to be distressed or at risk of suicidal behaviour or non-suicidal self-injury during the exam period. There was no change in Cohen's presentation or interaction with staff.
·After Cohen failed to respond to questions in his exams, his teachers saw him behaving normally and made a decision not to immediately raise it with his parents. This was a decision based on the information available to the school at the time. With the benefit of hindsight, it would have been preferable to raise it with Cohen's parents immediately, but where hindsight is concerned, it is important not to assume that matters should have been more obvious than they appeared at the material time. I note that Cohen's private psychologist, who he last saw three weeks before tragically taking his life, did not report concerns for suicidal ideation and Cohen agreed to attend a further appointment.
[24] Second Niclair Affidavit, attachment KMN20, 101 - 102.
A second administrative finding has not yet been made by reason of the commencement of these proceedings.

Application to this court

Mr and Mrs Fink have applied to this court under s 24(2) of the Act for an order that the coroner hold an inquest into Cohen's death.

Legal principles

The Act

Section 19 of the Act confers jurisdiction on a coroner to investigate a death if it appears to the coroner that the death is or may be a reportable death. 'Reportable death' is defined in s 3 of the Act as a Western Australian death[25] falling within any of the 10 categories specified in the definition.
[25] As defined in s 3 of the Coroners Act 1996 (WA).
Section 22 of the Act is the source of a coroner's authority to investigate a death by conducting an inquest. A coroner is not obliged to conduct an inquest into all reportable deaths. Section 22(1) of the Act provides that a coroner must conduct an inquest if the death appears to be a Western Australian death falling within any of the six categories specified, namely:
(a) the deceased was immediately before death a person held in care; or
(b) it appears that the death was caused, or contributed to, by any action of a member of the Police Force; or
(c) it appears that the death was caused, or contributed to, while the deceased was a person held in care; or
(d) the Attorney General so directs; or
(e) the State Coroner so directs; or
(f) the death occurred in prescribed circumstances.
Section 22(2) of the Act provides that a coroner with jurisdiction to investigate a death may also hold an inquest if the coroner believes it is desirable.
Cohen's death does not fall within a category specifically outlined in s 22(1) of the Act. Accordingly, an inquest is not mandatory under the Act. However, a coroner has a discretion under s 22(2) to hold an inquest for matters falling outside the categories in s 22(1).
Section 24(1) of the Act provides for a person to apply to the coroner for an inquest. If a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may:
(a)hold an inquest or ask another coroner to do so; or
(b)refuse the request and give reasons in writing for the refusal to the person and to the State Coroner within a reasonable period after receiving the request.
A request under s 24(1) must be made in writing and contain reasons for the request.[26] Section 24(2) of the Act provides that if the coroner refuses the request or does not reply to the request within three months after the request was made, a person may apply to this court for an order that an inquest be held. Section 24(3) of the Act provides that the court may make such an order 'if it is satisfied that it is necessary or desirable in the interests of justice'.
[26] Coroners Act 1996 (WA) s 24(1a).
Section 25(1) of the Act details the findings that a coroner investigating a death must make:
A coroner investigating a death must find if possible -
(a)the identity of the deceased; and
(b)how death occurred; and
(c)the cause of death; and
(d)the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.
Section 25(2) of the Act provides that a coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

Applications to the court for an inquest

Mr and Mrs Fink have applied to this court under s 24(2) of the Act for an order that an inquest be held into Cohen's death. An application under s 24(2) is not an appeal from the decision of a coroner. The court is not bound by a coroner's decision, nor is it obliged to find error in that decision.[27]
[27] Re State Coroner; Ex parte The Minister for Health (2009) WASCA 165; (2009) WAR 553 [50] (Buss JA).
The criterion for a court to order an inquest under s 24(3) of the Act is that it is satisfied that it is necessary or desirable in the interests of justice that an inquest be held. The power in s 24(3) is a broad discretionary power that must be exercised sparingly. The decision to exercise the power involves a discretionary value judgment.[28] This discretion is informed by the statutory objects of the legislation and the underlying policy considerations in the coroner's statutory functions.[29]
[28] Veitch v The State Coroner [2008] WASC 187 [35] citing Herron v Attorney General for New South Wales(1987) 8 NSWLR 601, 608, 613, 617.
[29] Hewitt v NSW State Coroner [2019] NSWSC 1724 [63]; Veitch [36].
In determining an application, the court may have regard to the scope and focus of a potential inquest. The scope of an inquest is affected by the findings that a coroner must, if possible, make under s 25 of the Act.[30]
[30] Veitch [38].
The principal matter under s 25(1) that Mr and Mrs Fink submit provides a basis for the granting of their application is 'how death occurred' at s 25(1)(b).[31] This provision confers on the coroner jurisdiction to find, if possible, by what means and in what circumstances the death occurred.[32]
[31] Plaintiffs' Submissions [23], [35].
[32] Re State Coroner; Ex parte The Minister for Health [42].
Mr and Mrs Fink submit that there is little doubt regarding the means by which Cohen's death occurred but that the evidence demonstrates that the circumstances attending his death remain unclear in many material respects.
'How death occurred' necessarily involves questions of causation.[33] A coroner is not to make findings of causation or contribution in relation to matters that are too remote. An inquest cannot properly be an exercise in endless regression.[34]
[33] Mullaley v State Coroner of Western Australia [2020] WASC 264 [104].
[34] Mullaley [111].
A coroner also has the power under s 25(2) of the Act to comment on any matter connected with the death including public health or safety or the administration of justice. The power to comment arises as a consequence of the obligation to make findings under s 25(1) of the Act. It is not a separate or distinct source of power enabling a coroner to enquire for the sole or dominant purpose of making comments. Accordingly, the coroner's role under s 25(2) of the Act is ancillary to the role under s 25(1) of the Act.[35]
[35] Mullaley [137].
The court may decide to not grant an inquest if it is for the substantial reason of making comments or recommendations. In Mullaley v State Coroner of Western Australia,[36] Le Miere J observed that the opportunity to consider police procedures relating to the security, safety and welfare of any child involved in an incident of domestic violence was not a sufficient reason to order that an inquest be held.
[36] Mullaley v The State of Western Australia [2020] WASC 264 [127].
To satisfy the court of the need for an inquest under s 24(3) of the Act, it is not necessary to show that an inquest would produce findings different to those previously made by the coroner. In Veitch v The State Coroner,[37] Beech J said the following with respect to s 14(1) of the repealed Coroners Act 1920 (WA), the analogous provision to s 24(3) of the Act:
It has been held in Western Australia that, in an application under that section, in order to satisfy a court that it is necessary or desirable in the interests of justice that another inquest should be held (when one has already been held) it is not necessary to establish that a different verdict will probably be arrived at on a second inquest. Rather, it will be sufficient if there is a possibility that the result of a second inquest will be different from the first. There must be something more than mere speculation: Attorney General v McCann (Unreported, FCt SCt of WA Library No 940816, 11 April 1994) 13 ‑ 15; Re Zapelli; Attorney General for the State of Western Australia [2000] WASC 183 [11], [16].
[37] Veitch v the State Coroner [2008] WASC 187 [43].
Although his Honour's observations concerned an application for a second inquest under s 14(1) of the repealed Act, they also apply to a situation where a coroner refuses to hold an inquest. Accordingly, to satisfy a court under s 24(3) of the Act, it will be sufficient to establish that there is a real or realistic possibility that an inquest would produce a different outcome.
An application must be supported by a body of additional evidence. In Herron v Attorney General of NSW,[38] McHugh JA said:
In the forefront of matters to be considered in determining whether it is in the interests of justice to hold a fresh inquiry is the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death … was erroneous. The public interest requires that the finding as to the manner and cause of death … if it be an error, should be corrected.
[38] Herron v Attorney General of NSW (1987) 8 NSWLR 601, 617. See also Hewitt [64].
However, it is not necessary that the evidence relied on be 'fresh' in the sense of 'fresh evidence' for the purposes of appeals. Nonetheless, the new evidence relied upon must reach a threshold of some degree of cogency. If the evidence reaches this threshold, the court must determine whether the additional material would alter the decision previously reached.[39] In this matter, that involves considering whether the additional material is capable of bearing upon the previous decision not to hold an inquest.
[39] Veitch [50].
Ultimately, the broad discretion conferred by s 24(3) of the Act means that the court's determination of an application may involve considering several factors. In Mullaley, Le Miere J had regard to the following relevant factors in determining that an inquest was not necessary or desirable in the interests of justice:[40]
[40] Mullaley [131] - [138].
(1) whether the inquest was likely to elicit new evidence;
(2) whether the inquest was likely to find new facts or clarify the facts around the deceased's death;
(3) the fact that the function of an inquest is to find facts around the death, not to attribute criminal or civil liability or blame for the death beyond findings necessary for the finding of 'how death occurred';
(4)the likelihood that a coroner would find that the failure of police to protect the deceased by taking him into care and protection contributed to the deceased's death;
(5)the matters and circumstances which the plaintiff wished the coroner to investigate, in the context of the entirety of the circumstances leading to the death;
(6)whether there was doubt as to the cause of death;

(7)whether the inquest was requested for the sole or substantial reason of the coroner making comments or recommendations; and
(8)the inconvenience an inquest will cause to those required to give evidence about a traumatic incident, and the hurt and pain to some of them, and the expense of holding an inquest.[41]

[41] Le Miere J also considered the importance of finality as a relevant factor in the circumstances: Mullaley(33).

Implicit in these factors is that an inquest should only be ordered when it is in the public interest to do so.

Evidence and circumstances to be considered

Mr and Mrs Fink submit that the decision of Ashley J in Domaszewicz v The State Coroner[42] is authority for the proposition that the court is to approach this application on the basis of the 'circumstances extant at the time of the request'.
[42] Domaszewicz v The State Coroner [2004] VSC 528; (2004) 11 VR 237 [34].
Mr and Mrs Fink further submit that if this proposition is accepted, the court should limit its consideration to the evidence and circumstances extant on 5 November 2020, thereby excluding the evidence received after the request for an inquest. Accordingly, they argue that the following matters ought to have no bearing on the outcome of these proceedings:
(a)the State Coroner's 2021 decisions to set aside the Administrative Finding and conduct further investigations;
(b)the evidence obtained or generated by the further investigations in 2021; and
(c)the State Coroner's 2021 decision to refuse an inquest and the reasons for that decision.
It is not entirely clear why it is in the interests of justice that the evidence obtained after the request was made should be excluded from the court's consideration. To the extent that the evidence is relevant to the determination of whether an inquest is in the interests of justice it is difficult to see why it should be excluded simply by reason of the time that information was provided.
There is a logical inconsistency on the one hand submitting that evidence obtained after the request for an inquest was made is relevantly fresh evidence but not relevant to the decision of whether an inquest should be ordered.
Ashley J's decision in Domaszewicz contemplated more than one request being made if new evidence becomes available. It seems to me that such an approach simply puts the parties to additional and unnecessary expense. If new evidence is allowed up to the hearing, then it can be dealt with by the court at the hearing. That approach is consistent with the broad discretion conferred on this court by s 24(3) of the Act and the approach generally adopted in an administrative review of the merits.
In any event, Ashley J's statement that the evidence is limited to that which was extant at the time of the request is obiter because his Honour based his decision on a lack of jurisdiction arising from a failure to exercise a discretionary function rather than on the evidence before the court.[43]
[43] Domaszewicz [73] - [74].
I am not persuaded that fresh evidence is not relevant to the outcome of these proceedings. Accordingly, I shall have regard to the fresh evidence in determining Mr and Mrs Fink’s application.

The evidence in support of the application

Mr and Mrs Fink rely on the following affidavits in support of their application:
(a)Affidavit of Pamella Elizabeth Fink sworn 9 February 2021;
(b)Affidavit of Alexander William Francis Gordon sworn 23 March 2021;
(c)Affidavit of Kelly Marie Niclair affirmed 9 April 2021;
(d)Supplementary Affidavit of Kelly Marie Niclair affirmed 2 June 2021; and
(e)Affidavit of Pamella Elizabeth Fink sworn 8 July 2021.

Mr and Mrs Fink’s submissions

Mr and Mrs Fink submit that because an inquest is a more formal and reliable fact-finding procedure it should be preferred to an administrative investigation.[44]
[44] Plaintiffs' Submissions [26] - [30].
They contend that the absence of a formal inquest in this matter, and the lower standard of investigation, led to the Administrative Finding made by the Deputy State Coroner containing material errors of fact. Those errors, they say, included the coroner finding that:
(a) Cohen suffered from misophonia;
(b)Cohen was added to the SAER list; and
(c) senior staff of WCHS were aware of Cohen’s diagnosis of depression and anxiety.
Mr and Mrs Fink submit that these purported errors are now either accepted as being errors or are directly contradicted by new evidence such as to render them doubtful.[45]
[45] Plaintiffs' Submissions [31].
Should the court take the approach of limiting its consideration to the circumstances extant at the time of the request, Mr and Mrs Fink submit that it is necessary and desirable in the interests of justice to hold an inquest for the following reasons:
(a)when conducting its initial investigation, the coroner did not have, and therefore did not consider, a considerable body of new evidence relevant to the circumstances of Cohen's death;
(b)consideration of the new evidence is essential to accurately and reliably making findings as to how, and in what circumstances, Cohen's death occurred; and
(c)it has been demonstrated that the investigation and Administrative Finding contain material errors of fact. Those errors should be corrected, and the most effective means of doing so is an inquest.[46]
[46] Plaintiffs' Submissions [34].
Mr and Mrs Fink submit that the circumstances of Cohen's death remain unclear in many material respects, including:
(a) was Cohen ever diagnosed with misophonia;
(b)if Cohen was diagnosed with misophonia:
(i)when and by whom was he diagnosed;
(ii)what treatment did he receive;
(iii)what are the likely effects of the diagnosis both with and without treatment;
(iv)whether, and to what extent, the condition may have caused or contribute to Cohen's death;
(c)of the senior staff of WCHS:
(i)which, if any were aware of Cohen's conditions;
(ii)when and by what means did they become aware;
(iii)would their judgments and decisions concerning Cohen have been different had they been aware;
(d)of Cohen's general teaching staff at WCHS:
(i)which, if any, were aware of Cohen's conditions;
(ii)when and by what means did they become aware;
(iii)would their judgments and decisions concerning Cohen have been different had they been aware;
(e)what were the circumstances of the 'administrative error' that the Department of Education contends was the reason Cohen was omitted from the SAER list in 2019;
(f)what further support, if any, may have been provided had the school psychologist received communications about Cohen's conditions directly from Cohen's general practitioner, Dr Cox;
(g)whether the principal should have been aware of Cohen's conditions, and if so, what steps may have been taken had the principal been made aware;
(h)did any staff read, review or observe any of Cohen's workbooks;
(i)if Cohen had been included on the SAER list in 2019 as he should have:
(i)what additional care, support or supervision would he have been provided;
(ii)would this have impacted the decision to defer raising his exam answers until after the long weekend; and
(j)who (including, but not limited to teachers) observed or interacted with Cohen during his exam week and over the weekend, and what did they observe?[47]
[47] Plaintiffs' Submissions [35].

Mr and Mrs Fink submit that in the circumstances outlined above:
(a)it is necessary for an inquest to be held to properly clarify these questions and potentially others; and
(b)to allow these questions to remain unanswered is contrary to:
(i)the purpose and statutory duties of the coroner under s 25 of the Act; and
(ii)the interests of justice generally.[48]
[48] Plaintiffs' Submissions [36].
Mr and Mrs Fink contend that:
(a)An inquest is likely to elicit new evidence;
(b)An inquest is likely to find new facts or clarify the facts around Cohen's death;
(c)The function of an inquest is to find facts around the death, not to attribute criminal or civil liability or blame for the death;
(d)The matters and circumstances which they wish the coroner to investigate, in the context of the entirety of the circumstances leading to death, favour an inquest; and
(e)An inquest would not cause inconvenience to those required to give evidence about a traumatic incident, and the hurt and pain to some of them.[49]
[49] Plaintiffs' Submissions [37]; ts 12 - 18 (29/7/2021).

Analysis

Formal inquests and administrative investigations

I do not accept Mr and Mrs Fink's submission that because an inquest is a more formal and reliable fact-finding procedure it should be preferred to an administrative investigation. It seems to me that such an approach puts the cart before the horse. The relevant question is whether it is necessary or desirable in the interests of justice for a formal inquest to be held.
Although an inquest may generally be more exacting than an administrative investigation (for example, through the power to call witnesses and test evidence) the quality of fact finding undertaken for an administrative finding should not be discounted as unreliable.

Material errors of fact

Mr and Mrs Fink submit that the Administrative Finding contains material errors of fact, including findings that:
(a) Cohen suffered from misophonia;
(b)Cohen was added to the SAER list; and
(c)senior staff of WCHS were aware of Cohen’s diagnosis of depression and anxiety.
These errors must be material to provide a basis for ordering an inquest.
Mr and Mrs Fink contend that the above material errors could be corrected through the consideration of a considerable body of new evidence relevant to the circumstances of Cohen's death.
There is no evidence that a finding that Cohen did not suffer from misophonia would have led to any different outcome. All that the Deputy State Coroner said about misophonia is that it 'caused [Cohen] significant distress'.[50] Further, the State Coroner's reasons for refusal merely state that Cohen 'experienced misophonia, which he found troubling'.[51]
[50] Gordon Affidavit, attachment AWFG-2, 8.
[51] First Fink Affidavit, attachment PEF-11, 270.
Similarly, there is no evidence as to whether adding Cohen to the SAER list would have made a material difference to the coroner's finding given that he was seeing a private psychologist.
The fact that Cohen was seeing a private psychologist is also relevant to whether staff at WCHS were aware of his diagnosis of depression and anxiety. If the staff were aware of his diagnoses the likely outcome is that he would have been referred to a psychologist.

Circumstances of death

Mr and Mrs Fink submit that it is in the interests of justice to hold an inquest to bring clarity, as far as possible, to the circumstances of Cohen's death.[52] They have identified several questions concerning the circumstances of Cohen's death which they submit remain unclear.[53] These questions in effect seek to clarify the circumstances regarding:
(1) Cohen's misophonia diagnosis;[54]
(2) The knowledge and conduct of WCHS staff;[55] and
(3) Cohen's omission from the SAER list.[56]
[52] Plaintiffs' Submissions [23].
[53] See [75].
[54] Plaintiffs' Submissions [35](a), (b).
[55] Plaintiffs' Submissions [35](c), (d), (f) - (h).
[56] Plaintiffs' Submissions [35](e), (i), (j).
I will address each issue in turn.

Misophonia diagnosis

The parents do not contend that Cohen suffered from misophonia. It would be a pointless exercise to investigate that issue when the parents would not argue that he had misophonia at an inquest.
I note that there is evidence upon which it was reasonable for the Deputy State Coroner and the State Coroner to conclude that Cohen suffered from misophonia.[57] I also note that there is evidence that Cohen believed he suffered from misophonia.

Knowledge and conduct of WCHS staff

[57] First Niclair Affidavit, attachment KMN12, 91 - 92.

Even if senior and general staff at WCHS may have been aware that Cohen suffered from anxiety and depression there is no evidence to suggest that they were aware that he suffered from suicidal ideation. In her various correspondence with school staff, Mrs Fink made no mention of any suicidal ideation. Had staff read Cohen's school notebooks they might have seen matters that raised suicidal ideation. However, it is unrealistic to expect that staff forensically scrutinise a student's notebooks looking for instances of suicidal ideation.
Even if staff were aware of Cohen's suicidal ideation, there is no evidence that they could have or should have done anything other than refer Cohen to a psychologist which is exactly what had happened or was happening anyway. Dr Cox was aware that Cohen suffered from depression and suicidal ideation. Appropriately, Dr Cox prepared a mental health plan and referred Cohen to psychologist, Mr Pascal. At his last appointment with Mr Pascal on 10 May 2019, Cohen did not express suicidal ideation and agreed to attend further sessions in June.[58] Mr and Mrs Fink's submissions do not offer any basis as to why the school psychologist would have been in any better position to treat Cohen than Mr Pascal.

Omission from SAER list

[58] First Niclair Affidavit, attachment KMN11, 86.

Although Cohen was omitted from the SAER list, for that omission to be relevant Mr and Mrs Fink would need to raise at least some evidence that his inclusion in the SAER list might have led to a different outcome. Once again even though Cohen was omitted from the SAER list he was seeing a psychologist. The staff responses to his examinations show that they were clearly monitoring his educational outcomes and mental state.[59]
[59] Second Niclair Affidavit, attachment KMN18, 6 - 7.
Mr and Mrs Fink submit that it is necessary to establish whether Cohen's inclusion in the SAER list would have affected the level of additional support provided by the school and whether it would have impacted the decision to defer raising his examination results until the Tuesday after the long weekend. Mr and Mrs Fink are very critical of the decision to wait until the Tuesday. They describe it as a 'decision not to act'.[60] That is a mischaracterisation of the decision. The decision was to act on the next school day immediately after the long weekend.
[60] Gordon Affidavit, attachment AWFG-4, 14.
It is extremely difficult to see how any criticism can be directed at school staff for waiting until after the long weekend to contact Cohen's parents. I note that members of staff 'formed the view that speaking to Cohen about his failures during the exam week would only add to his pressure and that [they] would call him in on Tuesday morning and also ask his parents to come in for a planning meeting on how to turn this around'.[61]
[61] Second Niclair Affidavit, attachment KMN18, 74.
On the day before his death, Cohen appeared to be in good spirits. His family did not detect any suicidal ideation or they surely would have acted. It is not a criticism of the family, a family clearly devastated by Cohen’s death, but if they did not detect any suicidal ideation is it reasonable to expect that teachers who would have less contact and less familiarity with Cohen to be aware of his suicidal ideation?
In hindsight one might conclude that Mr and Mrs Fink should have been contacted late on Friday. However, that is mere speculation. One cannot conclude that the decision by WCHS not to contact the parents was thoughtless or negligent. Perhaps if WCHS had contacted Mr and Mrs Fink on Friday then Cohen may not have committed suicide. One can speculate endlessly as to what Cohen's reaction might have been if his examination performance had been raised with him. However, we simply cannot know. An inquest will not be able to answer that question.
Mr and Mrs Fink state that they understand and appreciate that an inquest may or may not reveal any further contributing factors to Cohen's death. However, in the absence of an inquest, they submit that they will be left in a position where they will never truly know the nature and extent of the factors that may have caused or contributed to Cohen's death.[62]
[62] Plaintiffs' Submissions [47]
I am not unsympathetic to the concerns raised by the parents. However, in effect they invite the coroner to conduct an inquest to find some explanation for the factors that may have contributed to Cohen's death in the absence of any real evidence that an inquest would be capable of providing the explanations they seek.

Comments on public health and safety

Mr and Mrs Fink submit that without an inquest into Cohen's death, a valuable and important opportunity for an independent body to examine the circumstances of Cohen's death and if appropriate, make comments or recommendations to advance the interests of public health and safety in the WA school system, and prevent recurrence, would be lost.[63]
[63] Plaintiffs' Submissions [47].
It is important to note that each of the factual matters identified by Mr and Mrs Fink relate to the individual circumstances surrounding Cohen’s death and not to a more general consideration of the policies and principles that should be applied in relation to students suffering from depression with or without suicidal ideation.
Given that the facts relate at best to the individual circumstances of Cohen it is difficult to see how an inquest could or should be a forum for the coroner to make comments or recommendations on public health and safety in the WA school system.
The parents have not advanced any basis for making comments and or recommendations to advance the interests of public health and safety in the WA school system. The circumstances surrounding Cohen's death are very specific to him. No basis is offered for making any wider findings or recommendations.
It is also important to bear in mind that the Department of Education has prepared a detailed report into the circumstances surrounding Cohen's death and has made a series of recommendations as a consequence of that report. All of those recommendations have been implemented by the Department.[64]

The Mullaley factors

[64] Second Niclair Affidavit, attachment KMN18, 81.

I am not persuaded that an inquest is likely to elicit new evidence nor find new facts or clarify the facts around Cohen's death. I do not find that the evidence obtained after the Administrative Finding makes it in the interests of justice to order an inquest.
The matters and circumstances that Mr and Mrs Fink wish the coroner to investigate are not sufficiently supported by evidence showing how they are relevant to an inquest.
Mr and Mrs Fink agree that there is no doubt as to the cause of Cohen's death.[65]
[65] ts 17 (29/7/2021).
The facts before the coroner were sufficient for the coroner to determine how death occurred. There is little evidence that an inquest would unearth new facts or alter the conclusions. No suicide is ever easily explained. Inevitably there will be raft of unexplained and inexplicable facts that lead to a decision by someone to take their life. More often than not the questions that arise from those facts cannot be answered by anyone.
The Department of Education report followed a detailed investigation into the facts. An inquest would not disclose any more material facts.
The scope of the inquest proposed by Mr and Mrs Fink would be extensive. It could involve multiple staff being called as witnesses. I note that the staff involved in the Department of Education's review of the operations of WCHS found recalling events to be 'distressing and difficult'.[66] It is apparent from the correspondence from Mr and Mrs Fink's solicitors that WCHS staff are likely to be aggressively cross‑examined. The inconvenience to be considered is not limited to Mr and Mrs Fink's potential witnesses but also includes the effect on school staff.
[66] Second Niclair Affidavit, attachment KMN18, 17.
The cost of an inquest is likely to be high. It is difficult to see how such a cost could be justified. While that is not a decisive factor, it does weigh against an inquest being ordered.
I do not accept that the opportunity of the coroner to make comments or recommendations to advance the interests of public health and safety in the WA school system and prevent the recurrence of student suicide is a sufficient reason for ordering an inquest. Section 25(2) of the Act does not provide an independent head of power to hold an inquest for the purposes of making comments.
In effect, Mr and Mrs Fink ask for an inquest to determine whether WCHS complied with the Department of Education's policies and procedures. The Department has conducted a thorough investigation of the facts surrounding Cohen’s death as it relates to the Department and the staff of WCHS. The fact that it may not be 'independent' does not take away from the force of its conclusions. It is evident that the Department was not seeking to whitewash the events surrounding Cohen's death. The Department's review concluded that in Cohen's case WCHS did not comply with the Department's policies and procedures. Accordingly, they have put in place procedures to prevent it from happening again.
I am unable to conclude that an inquest would disclose any additional material facts.
There is no public interest in conducting an inquest.
This is not an occasion which would justify the exercise of the court's jurisdiction, a jurisdiction which should be exercised sparingly.
Even if the jurisdiction should be exercised more than sparingly, it is not an appropriate occasion on which to exercise that jurisdiction.

Conclusion

I do not accept that it is necessary or desirable in the interests of justice for an inquest to be held into Cohen's death. In order to satisfy the court to this standard, Mr and Mrs Fink need to establish more than potential questions. They need to establish a basis for those questions to be asked. Mr and Mrs Fink have not done so.
I do not accept that to allow those questions to remain unanswered is contrary to the purpose and statutory duties of the coroner and the interests of justice generally.
The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
11 FEBRUARY 2022