Foote v Coroner's Court of the ACT
[2018] ACTSC 119
•4 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Foote v Coroner’s Court of the ACT |
Citation: | [2018] ACTSC 119 |
Hearing Date: | 15 December 2017 |
DecisionDate: | 4 May 2018 |
Before: | McWilliam AsJ |
Decision: | See [83] |
Catchwords: | CORONERS – powers of superior court – review of findings made at a coronial inquest – scope of s 93 of the Coroners Act 1997 (ACT) |
Legislation Cited: | Coroners Act 1920 (WA) (repealed) s 14 Coroners Act 1956 (ACT) (repealed) Court Procedures Rules 2006 (ACT) rr 1521, 3556 |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Veitch v The State Coroner [2008] WASC 187 |
Texts Cited: | J Abernethy et al, Waller’s Coronial Law and Practice in New South Wales (LexisNexis Butterworth, 4th ed, 2010) |
Parties: | Dr Andrew Foote (Plaintiff) Coroner’s Court of the ACT (First Defendant) Calvary Health Care ACT Ltd (ACN 105 304 989) (Second Defendant) Attorney-General of the Australian Capital Territory (Intervener) |
Representation: | Counsel Self-represented (Plaintiff) W Sharwood (Second Defendant) P Garrison AM SC with K Musgrove (Intervener) |
| Solicitors Self-represented (Plaintiff) Minter Ellison (Second Defendant) ACT Government Solicitor (Intervener) | |
File Number: | SC 423 of 2017 |
On 19 May 2011, Ms Corrina Anne Medway gave birth to twin daughters at Calvary Private Hospital, under the care of her obstetrician, the plaintiff in the present proceedings. She later died on 22 May 2011, following urgent neurosurgery at Canberra Hospital. As Ms Medway had died following surgical intervention, pursuant to s 13(1)(e) of the Coroners Act 1997 (ACT) (the Act) an inquest was conducted into her death.
On 18 December 2015, Coroner Hunter delivered her findings. The Coroner found the cause of death to be a massive postpartum intracerebral haemorrhage of a spontaneous hypertensive origin. One of the interim findings made by the Coroner was that the plaintiff’s “failure to treat Ms Medway's acute pregnancy-induced hypertension ... resulted in her blood pressure continuing to escalate to a critical level which ultimately caused her cerebral haemorrhage and death.”
By an amended originating application dated 5 October 2016, the plaintiff in these proceedings seeks to quash the specific findings of the Coroner that were critical of his conduct. The grounds include a denial of procedural fairness, an excess of power under s 52 of the Act (which concerns the findings that a Coroner must make), a failure to conduct a sufficient enquiry in relation to a number of matters, and that new evidence has come to light since the Coroner handed down her findings.
Issues
The basis on which the application is brought is s 93 of the Act. The application is somewhat novel, in that only particular findings are sought to be quashed, not the inquest in its entirety.
In addition, the parties consider there to be some ambiguity as to how to proceed with a review under s 93 of the Act. They accordingly applied to the Court pursuant to r 1521 of the Court Procedures Rules 2006 (ACT) (Rules) for the determination of four separate questions, with a view to defining the framework for the future conduct of the application, and potentially reducing the scope (in terms of preparation and duration) of the substantive hearing.
That course was consistent with the object in s 5A of the Court Procedures Act 2004 (ACT) (Court Procedures Act) for the just resolution of disputes as quickly, inexpensively and efficiently as possible. Accordingly, on 18 September 2017, the Court made orders by consent for the following questions to be separately determined:
1. Is an application made pursuant to s 93(1) of the Act equivalent to an appeal made under ss 273 and 274 of the Magistrates Court Act 1930 (ACT)?
2. If the answer to Question One is ‘No’, is an application made pursuant to s 93(1) of the Act equivalent to an application for judicial review made pursuant to s 34B of the Supreme Court Act 1933 (ACT) and r 3556 of the Rules?
3. If the answer to each of Question One and Question Two is ‘No’, what rules and principles apply to determining whether it is necessary or desirable in the public interest or the interests of justice that the inquest or inquiry be quashed and that another inquest be held on account of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence or otherwise?
4. On an application made pursuant to s 93(1) of the Act, can the Court grant any substantive relief other than to order that the inquest be quashed and another inquest be held into the death?
Those four questions form the issues for resolution.
Parties to the proceedings
The plaintiff was self-represented. The first defendant filed a submitting appearance. The second defendant was separately represented by Mr Sharwood of counsel.
The Attorney-General of the Australian Capital Territory appeared in the matter as intervener, pursuant to s 27 of the Court Procedures Act, or alternatively pursuant to s 93(3) of the Act, represented by the ACT Solicitor General, with Ms Musgrove of counsel.
The intervener filed comprehensive written submissions and made oral submissions on the separate questions, which were adopted by the second defendant. The plaintiff also filed written submissions and made brief oral submissions on the separate questions.
The Coroner’s Court and its functions
Section 4 of the Act establishes the Coroner’s Court, with every magistrate (excluding special magistrates) being a coroner under s 5 of the Act. The Chief Magistrate is also the Chief Coroner under s 6 of the Act, and she may appoint special magistrates to the position of coroner.
Under s 12 of the Act, the functions of a coroner are those set out in the Act. As now set out in the objects (s 3BA(1)(c) of the Act), the functions (broadly stated) are to conduct inquiries or inquests into certain deaths, fires or disasters. Although s 3BA of the Act was only introduced in September 2011, after the death the subject of these proceedings, s 12(2) of the Act, which was in force at the relevant time, provides that a coroner has all the functions vested in a coroner immediately before the commencement of the Coroners Act 1956 (ACT), the Act’s predecessor. This recognizes that the office of Coroner has a long history, described elsewhere as ancient: Attorney-General v Maksimovich (1985) 4 NSWLR 300 at 305, referring to an earlier edition of Waller’s Coronial Law and Practice in New South Wales: see 4th ed at [1.5]-[1.16]. It suffices here to state that the conduct of inquiries, or the investigative function of the role, forms part of the common law.
Those functions are to be carried out in a manner that maintains the inquisitorial, non-adversarial nature of the Coroner's Court, and its function to inquire into and publicly examine the causes of death, fire and disaster: s 3BA(2)(b).
A coroner must make certain findings, as set out in s 52 of the Act (such as the identity of the deceased, and the location, timing, manner and cause of death).
However, a coroner may also, at any time before concluding an inquest or inquiry, make an interim finding on any matter connected with the inquest or inquiry: s 53 of the Act.
Courts have found it difficult to characterise the precise juristic nature of an inquest. It has been described as a hybrid process containing both adversarial and inquisitorial elements: Musumeci v Attorney-General (NSW) [2003] NSWCA 77; 57 NSWLR 193 (Musumeci) at [33] per Ipp JA, with whom Beazley JA agreed. Coroners exercise judicial power, notwithstanding the executive nature of their functions: S v Director of Public Prosecutions [2007] ACTSC 100 (S v DPP) at [6]; Musumeci at [33].
The Court’s power to review findings of coroner
Section 93 of the Act creates a statutory power for the Supreme Court to quash an inquest or order a fresh inquest or inquiry in the following terms:
Supreme Court—power to quash, or order fresh, inquest or inquiry
(1) If—
(a) an inquest into the cause of the death of a person, or an inquiry into the cause of a fire or disaster, has been held; and
(b) the Supreme Court, on an application made by or under the authority of the Attorney-General or by anyone else is satisfied that, because of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence or otherwise, it is necessary or desirable in the public interest or the interests of justice that the inquest or inquiry be quashed and that another inquest or inquiry be held;
the Supreme Court may order that the inquest or inquiry be quashed and another inquest or inquiry be held into the death, fire or disaster.
(2) If an application is made under subsection (1) by a person (other than the Attorney-General or someone acting under the Attorney-General’s authority), the application must be served on the Attorney-General.
(3) The Attorney-General may appear on the hearing of any application under subsection (1).
The power in s 93 has been described in Peter Lucas-Smith & Ors v Coroners Court of the Australian Capital Territory & Ors [2009] ACTSC 40; 166 ACTR 42 (Lucas-Smith) by Higgins CJ at [35] as applying only to those extreme cases where the entire coronial process is tainted or has miscarried or, as anticipated in the section, new facts or evidence emerge requiring a new inquiry.
However, s 93 is not the sole source of the Court’s power to review the findings of a coroner. It has long been established that the Supreme Court holds the power of supervisory jurisdiction over coroners: Ex parte Routledge (1943) 60 WN 184 per Jordan CJ, with whom Halse Rogers an Street JJ concurred; Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 381-386; see also In Re Blanchard (Unreported, Supreme Court of New South Wales, Forbes CJ, Stephen and Dowling JJ, 1832), cited in Waller’s Coronial Law and Practice in New South Wales at [1.19].
In the ACT, this is seen through the operation of ss 20 and 34B of the Supreme Court Act 1933 (ACT) (Supreme Court Act). Section 34B is in the following terms (with emphasis added to the words that are material to a consideration of Question Two below):
(1) The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order.
(2) In this section:
"habeas corpus order" means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus.
"prerogative order" means an order the relief under which is in the nature of, and to the same effect as, relief by way of—
(a) a writ of mandamus, prohibition or certiorari; or
(b) an information in the nature of quo warranto.
"relief" includes remedy.
Rule 3556 of the Rules (referred to in the Question Two posed for the Court) sets out the procedural requirements where relief by way of judicial review is sought. It is unnecessary to set out its terms for the purpose of determining the questions below.
Question 1 – Is s 93 equivalent to an appeal from the Magistrates Court?
For reasons that follow, the answer to this question is ‘no’.
The intervener submitted that, whilst s 93 of the Act does not provide a right of appeal, s 93 of the Act is in effect equivalent to an appeal made under ss 273 and s 274 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). The commonalities relied upon by the intervener to make that submission are specifically addressed below.
The plaintiff submitted that the answer to this question should be ‘no’. The plaintiff submitted that a construction of s 93 as being equivalent to an appeal under the Magistrates Court Act would depart substantially from the actual text of the statute, an as such, ought not be preferred.
I accept the plaintiff’s submission. Appeals are a creature of statute. There is no general right of appeal at common law: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619. The nature and extent of appeals are to be found in the provisions by which they are established: Capital Property Projects (ACT) Pty Ltd v ACT Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 at [37] (and the cases there-cited).
Accordingly, where there is a different statutory process but no express right of appeal created, a Court cannot simply infer that the process should be treated as an appeal of a particular nature. Appeal rights and the powers given to the Court when such a right is invoked, may take various forms.
An example is the words of the statute which the intervener submitted was the equivalent. The nature and extent of an appeal from the Magistrates Court is set out in ss 273 and 274 of the Magistrates Court Act:
273Jurisdiction
(1) The jurisdiction of the Supreme Court to hear and decide appeals is subject to the exceptions and conditions in this part.
(2) Subsection (1) does not affect the operation of any other law that provides for the appellate jurisdiction of the Supreme Court.
274Cases in which appeal may be brought
(1) An appeal may be brought only with the leave of the Supreme Court.
(2) However, an appeal may be brought as of right from a judgment or order—
(a) for, or for the payment of, an amount of $2 000 or more; or
(b) in a proceeding in the Magistrates Court—
(i) in which the matter in issue amounts to, or is of the value of, $2 000 or more; or
(ii) that involves directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.
Comparing s 274 of the Magistrates Court Act with the text of s 93, the text of s 93 plainly does not expressly create a ‘right of appeal’. A distinct process has been created in the Act, directed to the Court’s satisfaction of what is in the public interest or the interests of justice. It would be difficult to imply a different process, involving an appeal by way of rehearing, from those discretionary words.
Statutory frameworks in other jurisdictions
That point is emphasised when the words of s 93 are compared with express statutory rights of appeal provided in other jurisdictions, which were annexed to the intervener’s written submissions. These include s 27 of the Coroners Act 2003 (SA):
Appeals from findings made on inquests
(1)The Attorney-General or a person who has a sufficient interest in a finding made on an inquest may, subject to this section and in accordance with the rules of the appellate court, appeal to the Supreme Court against the finding.
(2)The appeal lies to the Supreme Court constituted of a single Judge (but the Judge may, if the Judge thinks fit, refer the appeal for hearing and determination by the Full Court).
(3)An application under subsection (1) must be made within one month after the findings on the inquest are given by the Coroner's Court.
(4)However, the Supreme Court may, in its discretion, extend the time fixed for making an application, even if the time for making the application has ended.
(5)On an appeal, the appellate court may, if the interests of justice so require, re-hear witnesses or receive fresh evidence.
(6)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm or set aside the finding subject to the appeal;
(b) it may substitute a finding that appears justified by the evidence;
(c) it may order that the inquest be re-opened, or that a fresh inquest be held;
(d) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(7) For the purposes of this section, a person has a sufficient interest in a finding made on an inquest if—
(a)the finding affects or may affect that person's pecuniary interests; or
(b) the finding reflects adversely on that person's competence in his or her trade, profession or occupation; or
(c) the person has, in the opinion of the Supreme Court, some other interest sufficient to ground an application under this section.
By that section, the Supreme Court in South Australia has been given the power on appeal to rehear witnesses, receive further evidence, reopen an inquest, and to substitute a particular finding.
Another example is pt 7 of the Coroners Act 2008 (Vic), which also expressly sets out a detailed process for appeals, depending on what type of decision is being challenged. Section 83 of the Victorian statute (located in pt 7) creates a right of appeal against findings of a coroner:
Appeal against findings of coroner
(1) A person with a sufficient interest in an investigation may appeal against the findings of a coroner in respect of a death or fire after an investigation to the Trial Division of the Supreme Court constituted by a single judge.
(2)An interested party may appeal against the findings of a coroner in respect of a death or fire after an inquest to the Trial Division of the Supreme Court constituted by a single judge.
(3) Subject to section 86 [which concerns extensions of time], an appeal under this section must be made within 6 months after the day on which the determination of the coroner is made.
However, the extent of that right is limited to an appeal on a question of law, through ss 87 and 87A, which are in the following terms:
87 Appeal to Supreme 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.
87A Appeal to Supreme Court in the interests of justice
(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.
The detailed statutory frameworks in other jurisdictions concerning appeals from the respective Coroner’s Courts in those states are but a brief illustration of the variety of matters to which a legislature might give consideration when creating a statutory right of appeal. As stated in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [11]:
…the statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the Tribunal concerned or powers that are common to other appellate bodies. There is thus, no definitive classification of appeal, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.
They demonstrate why it is not possible (let alone necessary) to imply from the words of s 93 of the Act not only that a statutory right of appeal was intended to be created, but that the nature and extent of any such right was intended to be equivalent to that created by s 274 of the Magistrates Court Act, as opposed to any other variant, such as an appeal limited to a question of law.
Further, statutory frameworks in other states which have provisions similar to the words of s 93 of the Act have not been construed as impliedly giving rise to the equivalent of an appeal by way of rehearing. Section 52 of the Coroners Act 1996 (WA) (WA Act) provides:
New inquests and re-opening of inquests
(1) Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.
(2) The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner —
(a)to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or
(b)to re-open (or direct another coroner to re-open) the inquest and re-examine any finding.
(3) The Supreme Court may only make an order if it is satisfied that —
(a)it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or
(b)there is a mistake in the record of the findings; or
(c)it is desirable because of new facts or evidence; or
(d)the findings are against the evidence or the weight of the evidence.
In Re Inquest Into the Death of Romauld Todd Zak; Ex parte Zak [2006] WASC 186 (Zak) at [25], Murray J surveyed the authorities relevant to s 52 (including its predecessor, Coroners Act 1920 (WA), s 14) and then stated at [28]-[30]:
In my view, the proper interpretation of s 52(3) is firstly that it is the "findings" of the inquest which may be challenged by the application. In my opinion, those are the findings referred to in s 25(1) of the Act, distinguished from mere comment on matters not central to the Coroner's function.
I think the discretion to order that a new inquest be held or to reopen an inquest is a wide one, but it is confined, because the discretion may only be exercised if the Court is satisfied that the matter can be brought under some provision of s 52(3). Putting to one side the question of a formal mistake in the record, the width of the discretion is made apparent by the use of the word "desirable". Given that the Coroner necessarily now will be investigating a death, it will be necessary or desirable to set aside findings, having regard to the public interest in the completeness of the investigation and inquest, and having regard to the recognised private interests in achieving that result.
Section 52(3)(a) and (b) are provisions which refer to the evidence and proceedings before the Coroner. It is the adequacy of those proceedings and that investigation with which the subsection in these paragraphs is concerned. The evidence may need to be reviewed and the task may be an onerous one. So be it. …
That is a different approach from that taken by the Court on an appeal from a magistrate’s decision by way of rehearing; an approach that to my mind reflects the conceptual difference between the task of a magistrate and that of a coroner.
Section 85 of the Coroners Act 2009 (NSW) (NSW Act), provides:
Orders for fresh inquests or inquiries
The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice because of:
(a)fraud, or
(b)the rejection of evidence, or
(c)an irregularity of proceedings, or
(d)an insufficiency of inquiry, or
(e)the discovery of new evidence or facts, or
(f)any other reason.
The wording of the NSW Act is similar to (indeed, substantively the same) s 93 of the Act. In Country Energy v Deputy State Coroner Paul MacMahon & Anor [2010] NSWSC 943 (Country Energy), the Attorney-General of NSW adopted a position that s 85 of the NSW Act did not create a statutory right of appeal: Country Energy at [30]. Schmidt J did not analyse s 85 of the NSW Act as being equivalent to an appeal by way of rehearing. On the contrary, her Honour reasoned at [39]:
In my view, the construction of s 85 is relatively straightforward. It requires the Court to be satisfied that the interests of justice require that a fresh inquest be ordered. That satisfaction must be reached in the face of the evidence, as to the matters specified. The Court of Appeal's view in Herron, that the predecessor section contained a wide discretion, applies equally to s 85.
Her Honour was there referring to Herron v Attorney-General for New South Wales & Ors (1987) 8 NSWLR 601 (Herron), a case concerning s 47(2) of the Coroners Act 1980 (NSW), the predecessor to s 85 of the NSW Act.President Kirby (as his Honour then was) referred (at 603) to the importance of keeping in mind the antiquity and importance of the office of the coroner and the high public interest which exists in the discharge by a coroner of his or her functions, before later referring to the words 'in the interests of justice' as being words of the widest possible reference: at 613.
The Coroner performs a different role
The very particular function of the coroner is a further reason for finding that the process under s 93 should not be treated in an equivalent manner to appeals from the Magistrates Court. The Magistrates Court determines controversies between parties. The coroner carries an inquisitorial function with the scope of the investigation including broader questions of the public interest and with issues arising for determination being in the control of the Coroner’s Court. There are no parties as such, but there are interested persons, who may be granted leave to appear and who may have divergent interests: S v DPP. A coroner’s findings do not constitute a judgment. Unlike a criminal, civil or disciplinary proceeding, no right of any person is directly at stake in a coronial inquest.
The differences between the roles were commented upon in Domaszewicz v State Coroner [2004] VSC 528; 11 VR 237 at [81] and Chief Commissioner of Police v Hallenstein [1996] 2 VR 1 at 15.
The findings of a Coroner become a matter of record, but that does not of itself affect the liberty, livelihood or property of any person: Herron at 616. However, that is not to deny that a person’s interest may be indirectly affected through recommendations or unfavourable findings which affect his or her reputation (a matter to which I will return in considering Question Two).
The intervener’s argument as to common or similar elements
The intervener listed a number of common features between an appeal from the Magistrates Court and the process under s 93 of the Act as providing the basis for construing s 93 of the Act as deserving equivalent treatment. These included:
(a)In each case fresh evidence is able to be put before the Court;
(b)The language of s 93 of the Act accords with an appeal being by way of rehearing, as with an appeal from the Magistrates Court; and
(c)In each case a real review must be conducted; the Court does not lightly overturn findings, and error must be established.
It may be accepted that applications under s 93 of the Act and appeals under ss 273 and 274 of the Magistrates Court Act do have some similar features. For example, fresh evidence is permitted on an appeal, pursuant to s 276 of the Magistrates Court Act, while under s 93 of the Act, the ‘discovery of new facts or evidence’ would also involve a consideration of fresh evidence. However, it does not follow from the fact that the two provisions contain similar features that s 93 is a statutory equivalent of an appeal.
The intervener submitted that another similarity was that the language of s 93 accords with an appeal by way of rehearing, with something akin to error needing to be established. There is no doubt that an appeal under s 274 of the Magistrates Court Act is by way of rehearing: Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78]; Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 3; Malek v Remondis Australia Pty Limited [2015] ACTSC 135 at [11].
Further, on an appeal by rehearing, the appellant carries the onus of showing that the decision appealed from ought to be reversed: Powell v Streatham Manor Nursing Home [1935] AC 243 at 249, 263. The principle inherent in the appeal concept is that an appeal court must determine whether the appealed decision was correct; that is, not the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23].
The task under s 93 of the Act is different. The words of s 93 refer to specific circumstances in which, ‘it is necessary or desirable in the public interest or the interests of justice that the inquest or inquiry be quashed’. The focus of the Court is upon whether the process was somehow tainted or whether new facts emerge such as to require a fresh inquiry, to use the language of Higgins CJ in Lucas-Smith at [35]. Section 93 of the Act empowers the Court with a wide discretion: Herron at 613.
True it is that the exercise of that discretion requires something more than mere dissatisfaction with a conclusion reached at an inquest: Country Energy at [40] per Schmidt J. However, it is not fundamental to the making of an order that a fresh inquiry would likely lead to a different finding or verdict: Director-General Department of Community Services v Crombie (Unreported, Supreme Court of New South Wales, Harrison M, 19 August 1998) (Crombie).
What is required is a real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the statute envisages, namely that the manner and cause of death be determined: Country Energy at [40] per Schmidt J.
Thus, although the words of s 93 of the Act may include features in the review process that also arise in appeals to the Court from the Magistrates Court, that does not mean applications under s 93 ought be treated in the same manner as an appeal by rehearing. In some cases, that may be appropriate, but the process adopted may depend upon the issue that gives rise to a particular application.
The duty of the Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have: see Project Blue Sky v Australian Broadcasting Association (1998) 194 CLR 355 (Project Blue Sky) at [78]. If the legislature had intended there to be a statutory right of appeal under the Act in the nature of a rehearing (or the equivalent of one), in my view, it would have said so explicitly. For these reasons, I accept the plaintiff’s submission that s 93 of the Act is not equivalent to an appeal under ss 273 and 274 of the Magistrates Court Act.
Question 2 – Is s 93 of the Act equivalent to an application for judicial review?
The answer to this question is also ‘no’.
The reasons for this answer may be briefly stated, given that all parties to the application ultimately agreed on the answer to this question. The Court’s power on judicial review is limited to determining whether the decision-maker acted lawfully, and if he or she did not, whether to exercise discretion to grant relief. The Court does not look to the factual merit of the decision maker. It has no jurisdiction to simply cure administrative injustice or error: Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 36.
The express words of s 93 of the Act are not so limited. The most obvious example is the inclusion of the words ‘or otherwise’. There is nothing in the text, context or purpose or objects of the Act to suggest that those words (or any of the other components of s 93) are to be read as being limited to establishing legal error.
Further, the statutory context includes not just the Act, but the Court’s supervisory power of judicial review through s 34B of the Supreme Court Act, set out above. Higgins CJ found in Lucas-Smith at [37] that s 93 of the Act did not oust the supervisory jurisdiction of the Court.
If s 93 of the Act was read as being equivalent to an application for judicial review, it would be otiose, because the power of judicial review already exists. The legislature is taken to have intended a statutory provision to be given useful work to do: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 at [90].See also Project Blue Sky at [78].
Again, there may be overlapping features where the complaint might be characterised as one attracting judicial review or as requiring the Court’s intervention under s 93 of the Act. However, that does not mean that an application under s 93 is ‘equivalent’ to an application for judicial review.
An example of an overlapping feature is natural justice (one of the plaintiff’s complaints here), the denial of which is amenable to relief by way of judicial review, but may also constitute an ‘irregularity in proceedings’ under s 93 of the Act. The coroner, in conducting the inquest, is obliged to exercise procedural fairness as regards the interested parties: Annetts v McCann (1990) 170 CLR 596 at 598 per Brennan J (in obiter):
… a coroner’s findings as to “how, when and where the deceased came by his death” is plainly apt to affect adversely the interests of any person upon whom the finding would reflect unfavourably, even if that person is not committed for trial and the finding is not framed in such a way as to appear to determine any questions of civil liability or guilt of an offence. The nature of the power to make findings that are unfavourable (whether such findings are incorporated into the written inquisition or into a rider) is such as to import the requirement to accord natural justice as a condition governing the exercise of that power.
To similar effect is Maksimovich v Walsh & Attorney-General (1985) 4 NSWLR 318 per Kirby P at 327 and Samuels JA at 337.
The issue may be the same, but the way it is determined is different – the Court’s satisfaction under s 93 of the Act and the matters it can take into account is different from the Court’s review for legal error in the exercise of supervisory jurisdiction under the Supreme Court Act.
The remedies available on judicial review as opposed to that prescribed in s 93 of the Act (discussed further in relation to Question Four below) are also different. In proceedings for judicial review, where a decision-maker’s report has no legal effect on anyone’s rights, obligations or powers, a Court granting relief cannot quash the report, but may grant declaratory relief as to the breach of natural justice, in recognition of the damage done to an applicant’s reputation: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581, 597.
Under s 93 of the Act, interested persons may achieve the quashing of the findings of an inquest in their entirety, even though there is no legal effect on the rights, obligations or powers of that person. Again, that remedy reflects the nature and function of a coronial inquest.
It is unnecessary to set out further reasons as the foregoing sufficiently supports the answer arrived at by both the parties and the Court.
Question 3 – What rules and principles apply to an application under s 93 of the Act?
There is no definition of what may be in the ‘public interest’ or what constitutes the ‘interests of justice’ in the Act. However, it is unnecessary (and might be seen as a fetter on the broad discretion of the Court) to attempt to set out with any precision what rules and principles apply to the Court’s discretion under s 93 of the Act.
That is especially the case where the context of the specific complaints of the plaintiff remains to be considered, and bearing in mind that there may be competing public interest considerations which arise, as Schmidt J observed in Country Energy at [40].
The authorities from jurisdictions with similarly worded statutory provisions are of sufficient guidance to the parties for the purpose of progressing the present litigation. Most of the principles paraphrased below have also been helpfully collected by Hidden J in Cecil v Attorney General of New South Wales & Anor [2012] NSWSC 1186 at [47]-[50].
The words 'in the interests of justice' are words of the widest possible reference: Herron, at 613 per Kirby P. What must be established is the real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve the purpose, namely that the manner and cause of death be determined: Country Energy at [40].
If there exists 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 will likely require that the finding as to the manner and cause of death, if it be an error, be corrected: Herron, at 617 per McHugh JA.
It is not fundamental to the making of an order that a fresh inquiry would be likely to lead to a different finding or verdict. It will be sufficient if there is a possibility that the result of a second inquest will be different from the first: Veitch v The State Coroner [2008] WASC 187 (Veitch) at [43] and the cases there-cited; Crombie at 31 per then Master Harrison.
However, the possibility of a different finding must be real, meaning something more than mere speculation: Veitch at [43]-[44]. Mere dissatisfaction with a conclusion reached at an inquest, or that a different conclusion might have been available on the evidence (whether existing or on new evidence subsequently discovered which supports evidence already before the Coroner in the earlier inquest), may not provide a sufficient basis for the discretion to be exercised: Country Energy at [40].
The words ‘new facts or evidence’ in s 93 of the Act should be read as any evidence which, for whatever reason, was not before the coroner at the original inquest or inquiry, consistent with Veitch at [43]; cited in Waller’s Coronial Law and Practice in New South Wales at [85.16].
The words ‘or otherwise’ in s 93 ought be given full meaning and should not be limited by reference to what precedes them: Makings v Jacobsen (1985) 18 A Crim R 138 at 146.
The Court should consider the nature and extent of the defect, its bearing upon the outcome or probable outcome of the coronial inquiry and the likelihood of a fresh inquiry conducted without such a defect producing a different finding or verdict: Crombie at 31-32.
In weighing the interests of justice, it is relevant to consider whether any practical end is likely to be gained by ordering a fresh inquiry. The Court does not look to mere technical deficiencies but, whether there is a real risk that justice has not been done: Crombie at 32.
It is not necessary to determine which, if any, of the above statements of principle are applicable in these proceedings in advance of hearing the substantive application. Although the intervener sought procedural directions to identify what a party is required to do so as to identify to the Court why it should be satisfied under s 93 of the Act, such directions will depend upon the particular complaints before the Court and should not be given in the abstract or at the level of generality posed by the question stated.
Question 4 - Can the Court under s 93 of the Act grant any substantive relief other than to quash an inquest and order a fresh inquest?
All parties submitted that the answer to this question is ‘no’, accepting that the clear words of the statute do not allow for partial quashing of individual findings (or comments) of the Coroner.
The reasoning of Higgins CJ in Lucas-Smith at [35]-[36] is to that effect. His Honour found that s 93 of the Act was directed to where the entire coronial process is tainted or miscarried. His Honour distinguished s 93 from the relief sought by way of judicial review in that case (although not ultimately granted) to quash certain adverse comments or findings made by the Coroner, not the inquest as a whole.
That reasoning appears consistent with Murray J’s statement in Zak at [28], (extracted at [36] of these reasons) as to what constituted ‘findings’ that could be quashed under s 52 of the WA Act.
In S v DPP, the parties agreed that individual comments were to be quashed on judicial review, as the application ultimately became on amendment, rather than the application being brought pursuant to s 93 of the Act: see S v DPP at [10].
Accordingly, where an application is brought under s 93, the only relief available is the quashing of the entire inquest.
Conclusion
On the case stated by the parties the answers are as follows:
1. Is an application made pursuant to s 93(1) of the Act equivalent to an appeal made under ss 273 and 274 of the Magistrates Court Act 1930 (ACT)? ‘No’.
2. If the answer to Question One is ‘No’, is an application made pursuant to s 93(1) of the Act equivalent to an application for judicial review made pursuant to s 34B of the Supreme Court Act 1933 (ACT) and r 3556 of the Rules? ‘No’.
3. If the answer to each of Question One and Question Two is ‘No’, what rules and principles apply to determining whether it is necessary or desirable in the public interest or the interests of justice that the inquest or inquiry be quashed and that another inquest be held on account of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence or otherwise? ‘It is unnecessary to determine’.
4. On an application made pursuant to s 93(1) of the Act, can the Court grant any substantive relief other than to order that the inquest be quashed and another inquest be held into the death? ‘No’.
Having regard to the nature of the application and the reasons given above, each party is to bear his or its own costs.
| I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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