Hewit v NSW State Coroner - [2019] NSWSC 1724

Supreme Court

New South Wales

Medium Neutral Citation: Hewit v NSW State Coroner [2019] NSWSC 1724
Hearing dates: 28 November 2019
Date of orders: 05 December 2019
Decision date: 05 December 2019
Jurisdiction: Common Law
Before: Fullerton J
Decision:
The further amended summons is dismissed.

Catchwords: CORONERS – Coroners Act 2009 (NSW) – meaning of “reportable death” in s 6(1)(b) and/or s 6(1)(c) – jurisdiction of coroner under s 21 – application to Supreme Court under s 84 – scope of "the interests of justice"
Legislation Cited: Coroners Act 2009 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Bhattacharya v Hamilton [2000] NSWSC 102
Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325
Conway v Jerram [2010] NSWSC 371; 78 NSWLR 689
Hewit v NSW State Coroner [2019] NSWSC 1401
Herron v Attorney‑General (NSW) (1987) 8 NSWLR 601
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Re Minister for Resources; Ex parte Cazaly Iron Ore Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Veitch v State Coroner [2008] WASC 187
Category: Principal judgment
Parties: Alan Hewit (Plaintiff)
NSW State Coroner (1st Defendant)
Attorney General for NSW (2nd Defendant)
Deputy State Coroner Lee (3rd Defendant)
Representation:
Counsel:
P Bates (Plaintiff)
R Yezerski (2nd Defendant)
Solicitors:
Jason Li Lawyers (Plaintiff)
Crown Solicitor for NSW (2nd Defendant)

File Number(s): 2019/313591

Judgment

HER HONOUR: By a further amended summons dated 27 November 2019 the plaintiff seeks a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the death of the late Ms Paula Hewit is a “reportable death” within the meaning of s 6(1)(b) and/or s 6(1)(c) of the Coroners Act 2009 (NSW).
The plaintiff also seeks a further order quashing the decision of the Duty Coroner of 1 October 2019 that Ms Hewit’s death was not “a reportable death” and that the Coroner had no jurisdiction under s 21 of the Coroners Act to hold an inquest into Ms Hewit’s death pursuant to ss 69(3) and (4) the Supreme Court Act as an error of law appearing on the face of the record.
An order is also sought pursuant to s 84 of the Coroners Act that the Coroner hold an inquest into Ms Hewit’s death, it being both necessary and desirable to do so in the interests of justice.
The plaintiff is Ms Hewit’s son. Ms Hewit died on 26 September 2019. She was aged 88 at her death. She would have turned 89 on 26 October 2019. Ms Hewit is survived by another son, Mr Ronald Hewit. He was not a party to the proceedings. On 31 October 2018, the Guardianship Division of the NSW Civil and Administrative Tribunal made a guardianship order appointing Mr Ronald Hewit as Ms Hewit’s sole guardian, apparently in resolution of a dispute between the plaintiff and his brother as to who should have that responsibility.
As Ms Hewit’s sole guardian, it was Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hewit v NSW State Coroner

Details

AGLC: Hewit v NSW State Coroner [2019] NSWSC 1724
Case: [2019] NSWSC 1724
Decision Date: 05 December 2019

CaseChat Overview and Summary

The matter before the court involved a challenge by the applicant to the decision of the State Coroner of New South Wales, who declined to hold an inquest into the death of a person in custody. The applicant argued that the death was a "reportable death" under the Coroners Act 2009 (NSW) and, therefore, the Coroner had jurisdiction to hold an inquest. The applicant sought judicial review of the Coroner's decision, which was dismissed by the Supreme Court. The applicant then appealed to the Court of Appeal, which was ultimately heard by the High Court. The legal issues before the court involved the interpretation of the term "reportable death" in sections 6(1)(b) and 6(1)(c) of the Act, and whether the Coroner had jurisdiction to hold an inquest under section 21. The court also considered whether the applicant's application for review was within the scope of "the interests of justice" under section 84 of the Act.

The High Court found that the term "reportable death" in section 6(1)(b) of the Act did not apply to the death in question, as it did not occur in circumstances that were unusual, unexpected or unnatural. However, the Court found that the death did fall within the definition of "reportable death" in section 6(1)(c), as it occurred while the deceased was in custody or detention. The Court held that the Coroner did have jurisdiction to hold an inquest into the death under section 21 of the Act. However, the Court also found that the applicant's application for review was not within the scope of "the interests of justice" under section 84 of the Act, as the applicant had not demonstrated that there was a real chance of achieving a just outcome if the review were to be granted.

The High Court ultimately dismissed the appeal, upholding the decision of the Supreme Court that the applicant's application for review was not within the scope of "the interests of justice". The Court held that the applicant had not demonstrated that there was a real chance of achieving a just outcome if the review were to be granted, as the Coroner had already considered all relevant evidence and had come to a conclusion that an inquest was not necessary in the interests of justice. The Court also noted that the applicant had not identified any errors of law or fact that would warrant the granting of the review. The High Court did not make any orders in relation to the appeal.

Orders