Helmer v State Coroner of Victoria
[2011] VSC 25
•9 FEBRUARY 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4580 of 2009
| JOHN HELMER | Plaintiff |
| v | |
| THE STATE CORONER OF VICTORIA | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 AUGUST 2010 | |
DATE OF JUDGMENT: | 9 FEBRUARY 2011 | |
CASE MAY BE CITED AS: | HELMER v THE STATE CORONER OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 25 | |
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Statutory Interpretation – Repeal of Part 7 of Coroners Act 1985 - Transitional provisions in Coroners Act 2008 – Whether a hearing of plaintiff’s application had begun and the application was not completed before the commencement day of the new Act – Whether an adjournment by consent on the papers constituted a hearing – Whether a contrary intention expressly appeared – Coroners Act 1985, ss.3, 17, 18, 28, 29, 30, 35, 59 and 59B – Coroners Act 2008, ss.46, 77, 79, 80, 81, 82, 83, 84, 87 and clause 8 of Schedule 1 – Interpretation of Legislation Act 1984, s.14(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms C Melis | Victorian Government Solicitor |
HIS HONOUR:
Introduction
This is an appeal from an order of Wood AsJ dismissing the proceeding on the basis of lack of jurisdiction. The appeal raises questions about the construction of the transitional provisions in the Coroners Act 2008 following the repeal of the Coroners Act 1985, apart from Part 9 which relates to the Victorian Institute of Forensic Medicine.[1] For the reasons given below, I consider that the appeal should be dismissed.
[1]Pursuant to s 120 of the Coroners Act 2008, the Coroners Act 1985 is now called the Victorian Institute of Forensic Medicine Act 1985.
Background
By an originating motion filed on 5 February 2009 the plaintiff sought the following relief:
1.A declaration pursuant to s.59(2) of the Coroners Act 1985 that the findings made by State Coroner Hallenstein on 3 March 1989 into the manner and cause of the death of Cypra Ann Helmer are void.
2.An order pursuant to s.59(2) of the Coroners Act 1985 that the State Coroner re-open (or direct another coroner to re-open) the inquest into the death of Cypra Ann Helmer and re-examine the findings.
The grounds upon which that relief was sought were:
1.The inquiry at the inquest by State Coroner Hallenstein into the death of Cypra Ann Helmer on 3 March 1989 was inadequate.
2.The inquest by State Coroner Hallenstein into the death of Cypra Ann Helmer on 3 March 1989 should be re-opened because of new facts and evidence.
Section 59 of the Coroners Act 1985 (“the 1985 Act”) provided as follows:
59 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 to 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 and the weight of the evidence.
The originating motion was supported by three affidavits, one by the plaintiff, one by a friend of Ms Helmer and one by a former policeman who had been second in command and then in charge of an investigation by the Victoria Police between 1989 and 1994 into “allegations of child-stealing and fraud by members of the Hamilton-Byrne cult”. The plaintiff’s affidavit revealed that he was the older brother of Ms Helmer and that he was a foreign correspondent resident in Moscow, Russia. The originating motion was issued by the solicitors then acting for the plaintiff.
A summons on the originating motion was returnable before the Court on 20 March 2009. On that day, the summons was adjourned by consent on the papers to 17 April 2009 and then adjourned by consent on the papers to 5 June 2009. The summons was further adjourned by consent on the papers to 5 August 2009 at the request of the plaintiff, who by this time was acting for himself. He signed the minute of a proposed consent order. Prior to the new return date, the plaintiff sought an adjournment of his summons sine die as he would not be in Australia at that time. Again, the plaintiff signed the minute of a proposed consent order, agreeing to an adjournment of four months. On 4 August 2009, Daly AsJ adjourned the plaintiff’s summons by consent on the papers to 9 December 2009.
The summons came before Wood AsJ on 9 December 2009. The plaintiff appeared in person. After hearing preliminary argument, the parties were given leave to file written submissions in respect of the issues raised by the summons. Wood AsJ gave judgment on 28 April 2010 dismissing the proceeding on the basis that there was no jurisdiction to bring the application. The reasons for decision were emailed to both parties at the same time.
Extension of Time for the Appeal
By a notice of appeal dated 7 June 2010, but not filed until 15 June 2010, the plaintiff appealed against the order of Wood AsJ. The appeal was out of time. In an affidavit affirmed on 8 June 2010 the plaintiff explained that he had not been aware of the judgment of Wood AsJ until it was sent to him by his Honour’s associate following an inquiry from the plaintiff on 31 May 2010 about the outcome of the hearing. The plaintiff deposed that if there had been “an earlier dispatch” of the judgment to him, he had not received it.
Counsel for the defendant did not oppose an extension of time for the bringing of this appeal. In the circumstances, I determined that the time should be extended given that the plaintiff had not received notification of the judgment until 31 May 2010 and had moved quickly thereafter to appeal against his Honour’s judgment despite the difficulties of attempting to litigate this matter from Russia.
The Issues
The defendant’s initial opposition to the plaintiff’s proceeding was based on the submission that, as there had been no inquest into the death of Ms Helmer only an investigation, the application pursuant to s.59 of the 1985 Act was misconceived. This point was reiterated in correspondence between the defendant’s solicitors and the plaintiff in September 2009. The plaintiff was invited to consent to an order that his proceeding be dismissed. In that correspondence, the plaintiff’s attention was again drawn to s.18 of the 1985 Act, which provided for a person to ask a coroner to hold an inquest[2] and if, after the expiry of three months from the date of the request, the Coroner had not held the inquest or refused the request and given reasons in writing, the person could apply to the Supreme Court for an order that an inquest by held.[3] The Supreme Court could make an order that an inquest be held if satisfied that it was “necessary or desirable in the interests of justice”.[4] However, the plaintiff persisted with his existing application.
[2]Coroners Act 1985, s.18(1).
[3]Coroners Act 1985, s.18(2).
[4]Coroners Act 1985, s.18(3).
A second issue subsequently arose because, on 1 November 2009, the 1985 Act was repealed and a new Act, the Coroners Act 2008 (“the 2008 Act”), came into operation. By a letter dated 18 November 2009, the defendant’s solicitors informed the plaintiff of this development, in particular noting that Part 7 of the 1985 Act, which included s.59, had been repealed.[5] They advised the plaintiff that in their view the proper construction of the transitional provisions was that the plaintiff’s application under s.59 of the 1985 Act could no longer be brought. The plaintiff was further advised by the defendant’s solicitors that there was an option available to him under s.77 of the 2008 Act to apply to the Coroners Court for an order that some or all of the findings of a coroner after an investigation (whether or not an inquest has been held) be set aside and that the investigation be re-opened. Again, the plaintiff sought to proceed with his existing application.
[5]Coroners Act 2008, s.123(2).
I will examine each of the issues in turn, commencing with the jurisdictional or transitional provisions issue.
The Transitional Provisions Issue
The transitional provisions are contained in Schedule 1 of the 2008 Act.[6] Clause 8(1) provides that:
[6]Coroners Act 2008, s.119.
8 Applications commenced under old Act
(1)Subject to clause 10, if a hearing of an application to the Supreme Court has begun under section 18, 28, 29, 30, 35, 59 or 59B of the old Act and the application is not completed before the commencement day, the old Act continues to apply on and from the commencement day to the application.
(2)Despite subclause (1), the determination of the application by the Supreme Court under that subclause is deemed to be a determination of the Supreme Court under section 87 of the new Act.
Counsel for the defendant submitted that the repeal of s.59 of the 1985 Act and the wording of clause 8(1) of Schedule 1 of the 2008 Act meant that s.59 only continued to have operation in cases where a hearing of an application had begun prior to the commencement day of the 2008 Act, 1 November 2009, and not for applications which had only been filed, without any hearing, prior to that date. She submitted that no hearing of the plaintiff’s application had begun before 1 November 2009.
Counsel for the defendant further submitted that the first task for the Court was to construe the relevant part of the Act in question. She referred to two passages from the judgments of the High Court in Attorney-General (Qld) v Australian Industrial Relations Commission.[7] The first was the statement by Gleeson CJ that:
When a statute changes the law, the effect of the change upon existing rights, liabilities, claims, or proceedings is determined by the meaning of the statute.[8]
To similar effect was the statement of Kirby J that:
The primary task of a person obliged to construe a statutory provision is to start with the statute in question. More often than not that approach will yield the correct understanding of the applicable legislative command and obviate the need for resort to subsidiary aids to construction.[9]
[7](2002) 213 CLR 485.
[8](2002) 213 CLR 485 [6].
[9](2002) 213 CLR 485 [129].
Following this approach, it would seem that the initial questions are, first, whether “a hearing” of “an application” by the plaintiff to the Supreme Court under s.59 of the 1985 Act had begun and, secondly, whether any such application was “not completed” before the commencement day.[10]
[10]Clause 10 of Schedule 1 is not relevant to this construction issue.
I begin by considering the meaning of the word “application” in clause 8(1) of Schedule 1 to the 2008 Act. Sometimes, “application” is used to refer to the whole of the proceeding before the Court. In the past, other words such as “cause” or “action” or “matter” were also used to convey the same meaning. At other times, “application” means a resort to the Court, before or after trial, by summons or even orally for relief in the form of directions or interlocutory or other orders in the larger proceeding.
For three reasons, I consider that “application” in clause 8(1) means the proceeding itself. First, each of the relevant parts of the sections of the 1985 Act referred to in that clause empowers a specified person to “apply to the Supreme Court” for the particular order in question.[11]
[11]Coroners Act 1985, ss.18(2), 28(3), 29(3), 30(4), 35(2), 59(1) and 59B(1).
Secondly, the wording of clause 8(2) contemplates that it is “the application” which is finally determined by the Supreme Court.
Thirdly, the second pre-condition, namely that “the application is not completed before the commencement day” suggests to me that it is the absence of a final determination of the proceeding itself which gives rise to the continued application of the 1985 Act. If the “hearing of an application” referred to in the first pre-condition was simply a directions hearing or an interlocutory hearing, it would have made more sense for the second pre-condition to refer to the “hearing” not being completed, but it did not.
Thus, in R v Darmody,[12] the Court of Appeal emphasised the difference between the criminal proceeding, which commenced before the commencement day of the Evidence Act 2008, 1 January 2010, and continued after that day, and a hearing in the proceeding which commenced in September 2009 when a jury was empanelled and the applicant was arraigned, but which ended when the jury was discharged shortly thereafter and the applicant was remanded in custody for trial at the next sittings in early 2010, at which time a new hearing commenced.[13]
[12][2010] VSCA 41 (Nettle and Ashley JJA and Habersberger AJA).
[13][2010] VSCA 41 {19]-[20].
The next question is whether “a hearing” of the plaintiff’s application to the Supreme Court under s.59 of the 1985 Act had “begun” before the commencement day. As previously stated, according to the Court file the summons on the originating motion had been adjourned four times by consent on the papers, that is, there had been no appearance by or on behalf of either party on any of these days.
In Anon 2 v XXZ,[14] Kaye J dealt with an application by a newspaper to set aside an order prohibiting the publication of any report identifying the defendant. His Honour described the prior history in that case as follows:
Thus, all of the directions “hearings”, which have thus far occurred, have been by consent, and all but one was on the papers. The directions which were given by the Court were largely of an administrative type, setting a timetable for procedures, required by the Rules, to take place. Apart from the application which is now before me, there has been no application involving any controversy or contest before this Court. Thus, there has been no “hearing” in court of other than the most formal nature.[15]
Kaye J relevantly concluded that the proceeding which had been issued had not:
in a real sense, been the subject of any hearing in court.[16]
[14][2008] VSC 466.
[15][2008] VSC 466 [18].
[16][2008] VSC 466 [23].
The situation in this case is far stronger in that none of the consent orders involved the giving of any directions advancing the case for trial. Thus, it is not accurate, in my opinion, to describe any of the four consent adjournments on the papers in this case as a “hearing”. At the very least for a “hearing” to have “begun” would involve some oral exchange in court. This had clearly not occurred because no party had ever appeared in open court. But even an oral consent to an adjournment without more might not constitute the beginning of a “hearing”. However, it is not necessary to decide this point as it does not arise on the facts of this case.
The next point is whether, in any event, the “hearing” referred to in clause 8(1) is limited to the trial hearing, being a hearing on the merits, or whether it includes directions hearings or interlocutory hearings prior to trial.
In Hadid v Lenfast Communications Inc[17], Hill J considered the meaning of the word “hearing” in the context of s.50 of the Federal Court of Australia Act 1976 (Cth), which provides that:
The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
His Honour rejected the argument that because s.50 referred to “the hearing of a proceeding” it did not apply as the matter before him was still at an interlocutory stage. His Honour said:
The narrow interpretation sought to be given to the word "hearing" in s50 is, in my view, not warranted. The word "hearing" is equally apt to refer to a "directions hearing" or an "interlocutory hearing" (emphasis added), as it is to a hearing on the merits: … Had the word "hearing" been used in s50, together with the words "on the merits" or some such expression, the submission might have had more force. The word “hearing” in s50, in my view, is not limited to the trial of a proceeding. It will include the hearing of any motion or application before a judge or registrar from the first directions hearing to the final determination of the application to the Court. The power to suppress the name or names of parties and witnesses conferred by s50 would be somewhat hollow if restricted to the period during and after the trial and not capable of exercise at the earliest possible time.[18]
[17](1996) 70 FCR 403.
[18](1996) 70 FCR 403, 407.
Although this point does not have to be decided, because I have already held that there were no hearings at all, it seems to me that what clause 8(1) provides is that once there has been a hearing of any sort in the application, the 1985 Act continues to apply to any application that is not completed before the commencement day. Arguably, this makes sense in that the applicable Act does not change once a hearing has been undertaken. As counsel for the defendant pointed out, the transitional criterion could have been the commencement of an application under the various sections of the 1985 Act, but that was not what Parliament provided. Although the plaintiff sought to make something of what was said to be the unusual inclusion of the words “a hearing”, the Court is bound to apply the clear words of the legislation in question. In any event, using “a hearing” as the criterion for transitional provisions does not seem to be that unusual.[19] Presumably, the thinking behind the wording of the 2008 Act was that there was no reason not to exclude from the surviving applications one that had simply been issued and no hearing held before the commencement day.
[19]Apart from the transitional provisions of the Evidence Act 2008, considered in R v Darmody [2010] VSCA 41, see also the transitional provisions concerning the Supreme Court Act 1986, contained in the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008. That Act is No.78 of 2008. The Coroners Act 2008 is No.77 of 2008.
Adding some support to this conclusion is the fact that, subject to an important qualification, each of the applications under the sections of the 1985 Act referred to in clause 8(1) of Schedule 1 of the 2008 Act has a roughly equivalent provision in the 2008 Act. I have previously referred to the provisions of s.18 of the 1985 Act. The corresponding provision in the 2008 Act is s.82(1), which provides that if a coroner determines not to hold an inquest into a death or fire, the person who made the request may appeal to the Supreme Court.
Sections 28(3) and (4) and 29(3) and (4) of the 1985 Act respectively dealt with applications to the Supreme Court against a coroner’s refusal of a request to direct that an autopsy be performed, and a coroner’s decision that an autopsy was necessary despite a request by the senior next of kin that the coroner not direct an autopsy. The same topics are dealt with in s.79 of the 2008 Act.
Section 30(4) and (5) of the 1985 Act dealt with applications to the Supreme Court against a coroner’s decision that a body be exhumed. Authorisation of exhumation is dealt with in s.46 of the 2008 Act. Section 81 of that Act provides for an appeal to the Supreme Court against authorisation of an exhumation by the State Coroner[20] or against a refusal by the State Coroner to authorise the exhumation of a body.[21]
[20]Coroners Act 2008, s.81(1).
[21]Coroners Act 2008, s.81(3).
Section 35 of the 1985 Act dealt in part with applications to the Supreme Court against a coroner’s refusal to hold an inquest into a fire. The same topic is dealt with in s.80 of the 2008 Act.
The corresponding provision to s.59 in the 1985 Act is s.83 of the 2008 Act. It provides that an interested person may appeal against the findings of a coroner in respect of a death or fire after an investigation[22] or after an inquest.[23] After hearing and determining the appeal, the Supreme Court may make an 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.[24]
[22]Coroners Act 2008, s.83(1).
[23]Coroners Act 2008, s.83(2).
[24]Coroners Act 2008, s.87(4).
Section 59B of the 1985 Act dealt with the topic of an application to the Supreme Court against a refusal by the State Coroner to re-open an inquest. A similar topic is dealt with in ss.77 and 84 of the 2008 Act. I have previously referred to the provisions of s.77. Section 84(1) provides for an appeal against a refusal by the Coroners Court to re-open an investigation under s.77.
The important qualification referred to above is that there is a significant difference between the two sets of provisions concerning the type of appeal. Under the 2008 Act, each application to the Supreme Court is “an appeal on a question of law”.[25] The relevant test under the 1985 Act was that the Supreme Court had to be “satisfied that it is desirable” in the circumstances that an order be made[26] or “satisfied that it is necessary or desirable in the interests of justice” that an order be made[27] or satisfied of one of a number of matters for the making of an order under the broader test in s.59(3). Nevertheless, the fact remains that the plaintiff is not completely without other avenues of recourse even if he cannot proceed with his originating motion under s.59 of the 1985 Act.
[25]Coroners Act 2008, s.87(1).
[26]Coroners Act 1985, s.28(4), s.29(4) and s.30(5).
[27]Coroners Act 1985, s.18(3), s.35(3).
In Cahir v Jamieson,[28] the plaintiff instituted three proceedings against the Coroner and others following the delivery, on 23 October 2009, of the Coroner’s record of investigation after an inquest. One of the proceedings was an application under s.59 of the 1985 Act. Following the repeal of s.59 this proceeding was discontinued. Another proceeding was also discontinued. In his reasons dealing with the application for judicial review, the sole remaining proceeding, Beach J said by way of dicta that it was correct in his view that clause 8 of Schedule 1 of the 2008 Act had no application in the case because no hearing of any application under s.59 of the 1985 Act had begun prior to 1 November 2009.[29] However, his Honour said that was not the end of the matter as the question still arose as to whether s.59 continued to have application in respect of records of investigation delivered prior to its repeal, because of common law principles or the operation of s.14(2) of the Interpretation of Legislation Act 1984. It was not necessary for his Honour to decide that issue. Nevertheless, his Honour did say that it should not be thought that his judgment provided any support for the proposition that an application could not be made under s.59 of the 1985 Act after 1 November 2009 in respect of a record of investigation delivered before that date.[30]
[28][2010] VSC 285.
[29][2010] VSC 285, [10].
[30][2010] VSC 295, [10]-[11].
Section 14(2) of the Interpretation of Legislation Act 1984 (“the ILA”) relevantly provides that:
Where an Act or a provision of an Act … is repealed … the repeal … of that Act or provision shall not, unless the contrary intention expressly appears … affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision … [or] affect any … legal proceeding or remedy in respect of any such right, [or] privilege … and any such … legal proceeding or remedy may be instituted, continued or enforced … as if that Act or provision had not been repealed …
Provisions like s.14(2) have been said to give statutory force to the prima facie presumption that an Act is not intended to affect rights or liabilities which have already been acquired or incurred before it has come into operation.[31]
[31]J & P Lemming Holdings Pty Ltd v O’Keefe [1984] VR 1005, 1009 (Brooking J).
In my opinion, s.14(2) of the ILA does not preserve the plaintiff’s legal proceeding in respect of his right to apply under s.59 of the 1985 Act for a new inquest because “the contrary intention expressly appears” in clause 8 of Schedule 1 of the 2008 Act.
A similar issue was considered by Bongiorno JA in Secretary to the Department of Justice v Fletcher.[32] His Honour held that nowhere in the new Act in that case was there any expression of Parliamentary intention to exclude the ordinary operation of s.14(2) of the ILA. In reaching that conclusion, Bongiorno JA discussed two cases to which he had been referred. His Honour said that in the first case, J & P Lemming Holdings Pty Ltd v O’Keefe:[33]
Brooking J undertook a thorough analysis of s 14(2), particularly with respect to the effect of the phrase “unless the contrary intention expressly appears”. His Honour pointed out that the predecessor of s 14(2) of the ILA, s 7(2) of the Acts Interpretation Act 1958 did not contain the word “expressly”, nor did the Bill on which the 1984 Act was based. That word was evidently inserted on the recommendation of the Legal and Constitutional Committee to avoid the possibility of the relevant intent being implied into an Act which was otherwise affected by s 14(2). His Honour referred to decisions in which the word “express” or “expressly” had been construed as meaning no more than “plainly” or “clearly”: Chorlton v Lings;[34] Beresford-Hope v Sandhurst;[35] DeSouza v Cobden[36] and Healey v Festini.[37] He also referred to Shanmugam v Commissioner for Registration of Indian and Pakistani Residents[38], in which the Privy Council had held that an “express provision” is a provision the applicability of which does not arise by inference. In the event, Brooking J found it unnecessary to express any opinion as to the effect of the words “unless the contrary intention expressly appears” in s 14(2). Even on the widest possible view of the effect of those words, no contrary intention appeared in the legislation with which he was concerned.
[32][2010] VSC 170.
[33][1984] VR 1005.
[34](1868) LR 4 CP 374.
[35](1889) 23 QBD 79.
[36][1891] 1 QB 687.
[37][1958] VR 225.
[38][1962] AC 515; [1962] 2 All ER 609.
In respect of the second case, TAC v Lanson,[39] Bongiorno JA said:
In that case, this Court was concerned with recovery rights which the TAC might have against a tort‑feasor in circumstances where it had paid death benefits to the dependants of a person who died as a result of a transport accident. The question of whether a contrary intention appeared “expressly” in an amending Act was considered by the Court, which appeared to accept that “expressly” meant other than by implication. Phillips JA referred to an intention appearing “expressly” in contradistinction to one which could be clearly evinced otherwise.[40]
[39](2001) 3 VR 250.
[40](2001) 3 VR 250 at 273 (Phillips JA).
Although it is not expressly said in the 2008 Act that a person in the position of the plaintiff in this case cannot continue with his legal proceeding after the repeal of Part 7 of the 1985 Act, in my opinion such an intention “plainly” or “clearly” appears. Otherwise, what is the point of the Legislature including a provision such as clause 8(1) of Schedule 1 of the 2008 Act?
Further, in my opinion, the limited scope of the preserved rights under the 1985 Act is emphasised by clause 8(2), which provides that even when an application is determined under the 1985 Act it is deemed to be a determination under s.87 of the 2008 Act.
Accordingly, I consider that this Court has no jurisdiction to hear the plaintiff’s application, and that the plaintiff is not able to proceed with that application, after the repeal of Part 7 of the 1985 Act on 1 November 2009, as a hearing of the application had not begun before that date.
The No Inquest Issue
Counsel for the defendant’s alternative submission was that the plaintiff’s application should be dismissed under r.23.01 of the Supreme Court (General Civil Procedure) Rules 2005. She submitted that the application under s.59 of the 1985 Act was misconceived and did not disclose a cause of action or was an abuse of process because there had been no inquest into the death of Ms Helmer, only an investigation. In the circumstances set out in s.17(1) of the 1985 Act, none of which necessarily applied in this case, the Coroner investigating a death had to hold an inquest. Section 17(2) provided that in all other cases, the coroner investigating a death could hold an inquest if he or she believed it was “desirable”. An “investigation” was defined in s.3 of the 1985 Act as including “an inquest” and an inquest was defined as including “a formal hearing”. A record of each investigation into a death was required to be kept in the prescribed form.[41]
[41]Coroners Act 1985, s.20(1).
If it had been necessary for me to decide the point, I would not have been prepared to dismiss the plaintiff’s application on this basis at this early stage. It seems to me that there was a real question of fact which should be determined in the ordinary way and not in a summary way on limited and unsatisfactory evidence.
In the circumstances, I will limit myself to a number of brief observations as to why I would have reached this conclusion about the factual dispute. The defendant relied on the affidavit of Gayle Chirgwin sworn on 15 April 2009. Ms Chirgwin was then the Principal Registrar of the State Coroner’s Office. Although Ms Chirgwin made a number of statements based on her “experience”, she did not say for how long she had worked at the State Coroner’s Office and in particular whether she was familiar with how that office operated in 1988. She deposed that she had reviewed the file at the State Coroner’s Office relating to the death of Ms Helmer and stated that there were no records in the file which indicated that an inquest had been conducted into Ms Helmer’s death by former State Coroner Hallenstein. However, the plaintiff asserted in his written submissions in reply at first instance that this was not conclusive because documents were missing from the State Coroner’s file.
Exhibited to Ms Chirgwin’s affidavit was a photocopy of the entry in the Register of Deaths relating to Ms Helmer. She deposed that the entry in the Register relating to Ms Helmer’s death indicated that an inquest was not conducted into her death. No doubt this was because there was no date or comment alongside the entry “Inquest”. However, the plaintiff submitted, not without some justification, that it appeared that a date stamp had once been placed in that line and subsequently deleted. Only an inspection of the original entry would clarify that issue. The entry also disclosed that an “investigation” had been “completed” on “10/6/88”, that a “Brief” had been “requested” on that date and the Brief had been “received” on “8/2/89”, and that an “Inquisition” had been “forwarded” on “03 Mar 1989”. Just what all that meant was not explained.
The plaintiff principally relied on the “Record of Investigation into Death” dated 3 March 1989, which was purportedly prepared in compliance with Form 1 in the Coroners Regulations 1986. This document appeared to have been signed by the Coroner, Mr Hallenstein. However, the plaintiff asserted in his written submissions in reply at first instance that:
Mr Hallenstein had given plaintiff tape-recorded testimony that he had not signed the suicide ruling; that he knew Cypra Helmer’s name and the family well enough to know that he had had no familiarity at all with the death or with the investigation; and that his signature on the suicide ruling had been forged without his knowledge by person or persons unknown at the Coroner’s office.
Form 1 in the Regulations made provision for the Coroner to state that he or she had investigated the death of the person in question
* Without holding an inquest
* With an inquest held at on 19 .
One of the alternatives was to be deleted. In the form bearing Mr Hallenstein’s signature the typed words “*without holding an inquest” had been Xed out, but there was no reference at all to the holding of an inquest. Even if the document was not forged, it leaves open the question of whether or not there had been an inquest into the death of Ms Helmer.
However, as previously indicated, further examination of this issue is precluded because the Court no longer has jurisdiction to hear the plaintiff’s application.
Orders
There will be orders that:
1.The time for the filing of a notice of appeal against the judgment of Wood AsJ given on 28 April 2010 be extended to 15 June 2010.
2. The appeal by notice filed on 15 June 2010 be dismissed.
3. The originating motion filed on 5 February 2009 be dismissed.
In accordance with the position adopted by the defendant, there will be no order as to the costs of the proceeding, including the appeal.
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