Mortimer v West
[2017] VSC 293
•29 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02877
| Stephanie Lorraine Mortimer | Appellant |
| v | |
| Iain West (in his role as Deputy State Coroner) | Respondent |
---
JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2017 |
DATE OF JUDGMENT: | 29 May 2017 |
CASE MAY BE CITED AS: | Mortimer v West (in his role as Deputy State Coroner) (Refusal to re-open investigation) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 293 |
---
ADMINISTRATIVE LAW — Plaintiff’s appeal of Coroner’s decision to refuse to re-open the investigation — Whether the Coroner made any error of law — Whether it is necessary or desirable in the interests of justice to allow the appeal — Test for ‘new facts and circumstances’ in s 77(3)(a) — Meaning of ‘appropriate’ in s 77(3)(b) — Appeal dismissed — Hecht v Coroners Court of Victoria [2016] VSC 635 — Coroners Act 2008 (Vic), ss 84, 87, 87A.
---
APPEARANCES: | Counsel | Solicitors |
| Plaintiff in person | ||
| For the Defendant | Ms R Ellyard | In-house solicitor, Coroners Court of Victoria |
TABLE OF CONTENTS
Introduction and issues..................................................................................................................... 3
Legislative framework....................................................................................................................... 5
Coroner’s decision to refuse to re-open the investigation.......................................................... 9
Grounds of Appeal.......................................................................................................................... 14
Did the Coroner make any error of law?................................................................................. 14
Proper construction of s 77(3).......................................................................................... 18
Did the decision involve an error of law?...................................................................... 23
Is it necessary or desirable in the interests of justice to allow the appeal?........................ 23
Other matters..................................................................................................................................... 29
Conclusion......................................................................................................................................... 29
HIS HONOUR:
Introduction and issues
Robena Lloyd, then aged 58 years, died at the Angliss Hospital, Upper Ferntree Gully on 7 August 2009, having been discharged from the Emergency Department of that hospital only two days earlier. Ms Lloyd, who was intellectually disabled and required 24 hour care, lived with her sister and primary carer, Mrs Stephanie Mortimer, the appellant. Mrs Mortimer is aggrieved by the findings made by the Deputy State Coroner (the ‘Coroner’) on 24 June 2013 as to the cause and circumstances of Ms Lloyd’s death (‘Finding’). This is Mrs Mortimer’s second attempt to have the Finding set aside and the investigation re-opened.
The Finding was made without inquest pursuant to s 67 of the Coroners Act 2008 (Vic) (‘the Act’). The Coroner (the respondent) found that the cause of death was enterosoccus faecalis sepsis (‘sepsis’) and acute renal failure; he also made findings in respect of the circumstances in which the death occurred; and, as empowered to do by s 67(3), he made some comments on matters connected with the death.
Although there are many aspects of the Finding to which Mrs Mortimer objects, two matters of special concern to her are contained in the Coroner’s comments. Each comment addressed certain, trenchant criticisms that Mrs Mortimer — herself an ex-registered nurse — had levelled at the medical management of Ms Lloyd’s various conditions while at the Emergency Department of the Angliss Hospital on 31 July 2009 and again on 5 August 2009. One comment concerned Mrs Mortimer’s own medical management of her sister; another concerned the medical and nursing management of her sister by the hospital. The second of those two comments was as follows:
On the evidence before me, I am satisfied that medical and nursing management was acceptable and within the parameters of reasonable health care practice. Following her discharge from the Angliss Hospital on 5 August, and with the knowledge of her past medical history, there was no indication that Ms Lloyd would re-present just 40 hours later with overwhelming sepsis and in renal failure .[1]
[1]Underlining added.
The underlined words in the comment above represent the key problem for Mrs Mortimer. She construes the Coroner’s comments as a finding that there was no indication that her sister, Ms Lloyd, ‘was dying’ when she was discharged on 5 August 2009. Mrs Mortimer’s argument is that the Coroner’s view was wrong and the principal focus of her appeal is to have it corrected.
Section 77 of the Act confers a discretion upon a coroner to set aside findings only if satisfied of two matters: first, that ‘there are new facts and circumstances’ and, secondly, that ‘it is appropriate to re-open the investigation’.
On 7 December 2013 Mrs Mortimer made her first application under s 77 of the Act to have the Finding set aside and the investigation into her sister’s death re-opened. After the Coroner refused that application, Mrs Mortimer was unsuccessful in two appeals.[2]
[2]Her appeal against the Coroner’s refusal was dismissed by Associate Justice Randall on 21 April 2015 and her appeal from that decision was dismissed by Justice Rush on 28 January 2016: Mortimer v West (in his role as Deputy State Coroner) [2016] VSC 11.
Mrs Mortimer brought a fresh application under s 77 of the Act to have the Finding set aside and the investigation into her sister’s death re-opened. On 24 June 2016 the Coroner again determined not to set aside his Finding or to re-open the investigation. Although the Coroner was prepared to treat certain information that Mrs Mortimer submitted as constituting ‘new facts and circumstances’, he was not satisfied it was appropriate to re-open the investigation. It is that second refusal to set aside the Finding with which the court is now concerned.
Mrs Mortimer appealed the Coroner’s second refusal to set aside the Finding and to re-open the investigation. Her right to do so is created by s 84 of the Act. It is important to bear steadily in mind that this is not an appeal against the Finding itself; such a right of appeal exists under s 83 of the Act, is governed by different time limits and the basis of the appeal is more limited than the basis for a s 84 appeal. The primary subject-matter of an appeal against a refusal to set aside and re-open is the refusal, not the original Finding.
Since 1 January 2015, any appeal under s 84 brought by a senior next of kin (as Mrs Mortimer is to Ms Lloyd) against a refusal to set aside a finding and re-open an investigation may be brought on either or both of two bases: first, on a question of law (s 87) and, secondly, because ‘it is necessary or desirable in the interests of justice’ to allow the appeal (s 87A). Mrs Mortimer brought her appeal on both. Section 87(3) empowers the court, after hearing and determining the appeal, to make any order that it thinks appropriate, including an order remitting the matter for re-hearing to the Coroner’s Court with or without any direction in law.
So, the question for this court is whether the appeal against the Coroner’s decision made on 24 June 2016 to refuse to set aside his Finding and to re-open the investigation into Robena Lloyd’s death should be allowed either:
(a) on a question of law; or
(b) because it is necessary or desirable in the interests of justice to do so?
Mrs Mortimer appeared for herself. The Coroners Court of Victoria (‘the CCV’) was represented by counsel in the proceeding. Counsel advised at the outset that, in accordance with the Hardiman principle,[3] she appeared to assist the court.
[3]R v Australian Broadcasting Tribunal & ors; Ex parte Hardiman (1980) 144 CLR 13.
Legislative framework
The purposes of the Act, as set out in s 1, include to provide for coroners to investigate deaths in specified circumstances, contribute to the reduction of the number of preventable deaths through the findings of the investigation of deaths and the making of recommendations and establish the CCV as a specialist inquisitorial court.[4]
[4]The Act s 1(b)-(d).
Parliament provided guidance for the administration and interpretation of the Act by specifying objects in Part 2.[5] Specifically, when exercising a function under the Act, a person should have regard, as far as possible in the circumstances, to various matters including –
(b)that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
…
(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
…
(f)the desirability of promoting public health and safety and the administration of justice.[6]
[5]S 6.
[6]S 8.
A further objective is that the ‘coronial system should operate in a fair and efficient manner’.[7]
[7]S 9.
The Act provides for the power of the coroner to ‘investigate a death’[8]. In connection with any such investigation, the Act requires that assistance be given to the coroner by specified persons and agencies and confers other general powers on the coroner.[9] In respect of any death that a coroner is investigating the coroner may, and in some circumstances must, hold an inquest.[10]
[8]S 14.
[9]Pt 4, div 3 - 4.
[10]S 52.
Section 67 describes the nature of the ‘findings’ a coroner must or may make, and also provides a power to ‘comment’ on any matter connected with the death:
67 Findings of coroner investigating a death
(1) A coroner investigating a death must find, if possible—
(a) the identity of the deceased; and
(b) the cause of death; and
(c)unless subsection (2) applies, the circumstances in which the death occurred; and
(d) any other prescribed particulars.
(2)Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if—
(a) an inquest into the death was not held; and
(b) the coroner finds that—
(i)the deceased was not, immediately before the person died, a person placed in custody or care; and
(ii)there is no public interest to be served in making a finding regarding those circumstances.
(3)A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
A coroner may make a report to the Attorney-General, or recommendations to any Minister or certain other statutory agencies, on matters in connection with a death which the coroner has investigated.[11] There are certain requirements for the publication of findings and reports.[12]
[11]S 72.
[12]S 73.
Section 77, a critical provision for the purposes of this proceeding, provides for the re-opening of an investigation in the following terms:
77 Re-opening an investigation
(1)A person may 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) should be set aside.
(2) Subject to subsection (3), the Coroners Court may order that—
(a) some or all of the findings be set aside; and
(b)if the Court considers it appropriate, that the investigation be re-opened.
(3)The Coroners Court may only make an order under subsection (2) if it is satisfied that—
(a) there are new facts and circumstances; and
(b) it is appropriate to re-open the investigation.
(4)For the purposes of an application made under this section, the Coroners Court must be constituted by the coroner who conducted the original investigation unless—
(a)the coroner who conducted the original investigation no longer holds the office of coroner; or
(b) there are special circumstances.
Part 7 of the Act provides for appeals to the Supreme Court. Separate provisions are provided for appeals against specific types of determinations, directions and decisions that may be made by a coroner. Among those, a person with a sufficient interest in an investigation may appeal against the findings of a coroner in respect of a death.[13] Further, and relevant to this particular proceeding, the Act provides for an appeal against the refusal by a coroner to re-open an investigation in the following terms:
[13]S 83.
84 Appeal against refusal by coroner to re-open investigation
(1)If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court's determination to the Trial Division of the Supreme Court constituted by a single judge.
(2)Subject to section 86, an appeal under this section must be made within 28 days after the refusal by the Coroners Court.
Section 87 makes general provisions for all appeals to the Supreme Court. Relevantly for present purposes, that section provides –
(1)Subject to section 87A, an appeal to the Supreme Court under this Part is an appeal on a question of law.
…
(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.
Importantly, with effect from 1 January 2015, s 87A provided a further basis for appeal, other than ‘on a question of law’, in relation to appeals by a limited class of persons in respect of a refusal to re-open an investigation:
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 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.
Coroner’s decision to refuse to re-open the investigation
Mrs Mortimer filed her second application to set aside the Finding and have the investigation re-opened on 14 March 2016. In support of her claim that there were new facts and circumstances and that it was appropriate to reopen the investigation, Mrs Mortimer submitted the following documents to the Coroner:
(a) a medical opinion of Mr Patrick Dewan dated 5 February 2016;
(b) an email to the Registrar of the Coroners Court of Victoria dated 25 June 2013 (‘Candice email’);
(c) medical notes marked ‘A’ (dated 5 and 6 August 2009);
(d) a letter from Sue Young dated 11 July 2013;
(e) a statutory declaration dated 5 July 2013 made by ‘Gary’;
(f) total progress notes dated 14-16 July 2009, Eastern Health;
(g) a ‘Final Report’ Urine dated 27 July 2009 and a ‘Flow Chart Print Request’ (26, 27, 28 and 29 July 2009); and
(h) emails from Mrs Mortimer to the Coroner’s Court dated 12, 13, 15 and 22 March 2016.
In declining to set aside the Finding on 24 June 2016, the Coroner stated that he was ‘not satisfied that there are new facts and circumstances and it is not appropriate to re-open the investigation pursuant to s 77(3) of the Coroners Act 2008’. He gave written reasons for refusing Mrs Mortimer’s application.[14] In the Reasons, the Coroner referred to the two-limbed test for re-opening an investigation as set out in s 77(3) of the Act, and continued –
The requirements of the first element of the test are clear. The reference to ‘new facts and circumstances’ encompasses facts and circumstances that are new and were not known to a coroner at the time of the original investigation.[15]
[14]‘Determination following application to set aside finding’, 24 June 2016, Deputy State Coroner Iain West (‘Reasons’).
[15]Ibid paragraph 16.
The Coroner considered each of the eight categories of documents which Mrs Mortimer put forward to establish the existence of a new fact and circumstance (listed in [22] above). He found that the documents described in subparagraphs (b), (c), (d) and (f) had been available to him at the time of the original investigation and did not constitute a new fact or circumstance for the purpose of the application.
The document described in sub-paragraph (a) is a medical opinion of a Mr Patrick Dewan dated 5 February 2016.[16] The report is two pages in length. Apart from the academic qualifications[17] listed after his signature on the second page, the report does not identify Mr Dewan’s particular area of practice or specialty. Further, the report does not expressly identify the information to which Mr Dewan had regard (although inferences can be drawn from its contents) nor does it identify the question on which he was asked to express an opinion. Nevertheless, Mr Dewan commenced his report as follows:
The following considerations of the autopsy report, the medical expert opinion, the coroner’s report and the supreme court findings, result in the Supreme Court findings being appropriately considered ‘unsafe’; in particularly the final comments on page 7 of the coronial report, “Following her discharge from the Angliss Hospital on 5th August, and with the knowledge of her past medical history, there was no indication that Ms Lloyd would represent (sic) just 40 hours later with overwhelming sepsis and in renal failure.”
And, given the outcome was death, and from probably undetected, not appropriately treated sepsis, the medical and nursing management should have been different – in contrast to the coroner’s findings. In particular, with the blood chemistry on 5th August the patient should not have been discharged, and there was also a failure to appropriately manage the urinary tract sepsis.
[16]Exhibit 1 to the affidavit of the appellant sworn 22 July 2016.
[17]PhD MD MMedSc FRCS FRACS.
Mr Dewan made eight specific points about the assessment of the urinary tract pathology which he considered were relevant to ‘a need to review the treatment in more detail’. Having also raised the possibility of obtaining expert opinion from a psychiatrist or pharmacologist concerning a theory that Ms Lloyd was allergic to anti-psychotic medication, he stated his conclusion as follows:
In conclusion, the death would reasonably be attributed to urosepsis, electrolyte imbalance and renal failure, but the death would not have occurred had Ms Lloyd not been discharged on 5/8/2009. If, instead, the patient had been managed for her electrolyte imbalance, investigated for urospesis and treated with antibiotics she would not have died on 7/8/2009.
The Coroner did not think that Mr Dewan’s report constituted a new fact or circumstance within the meaning of the Act because it was an ‘opinion of “an expert” on the existing evidence’.[18] Nevertheless, for the purpose of the application, the Coroner assumed that Mr Dewan’s report was a new fact or circumstance and referred it to the Court’s Health and Medical Team (the ‘HMIT’ or the ‘team’) for review.
[18]Reasons, paragraph 18.
The items described in sub-paragraph (g) consisted of two documents: the ‘Final Report’ Urine and a Flow Chart. The Coroner thought it was unclear whether those documents had been part of the material available at the time of the Finding. Despite suspecting that they had been considered at that time, he determined to treat them as potentially containing new facts and circumstances and, again, referred them to the HMIT for review.
The Coroner was unable to establish whether the statutory declaration referred to in sub-paragraph (e) had been in the relevant file at the time of the Finding. However, the Coroner noted that the content of Gary’s declaration was substantially similar to a letter from Sue Young (the other carer) which was available to the Coroner at the time of the original investigation. Sue Young was one of the two carers for Ms Lloyd—Gary being the other—and in her letter she had contradicted evidence which the Coroner had relied upon to the effect that the locum doctor who attended Ms Lloyd on 5 August 2009 had advised the carers to perform ‘trial void’ (passing of urine). Further, the Coroner noted that as part of his original investigation he had examined the issue whether Ms Lloyd’s urine was checked for infection on 5 August 2009. He did not consider the statutory declaration established any new facts or circumstances for the purpose of the application.
Although he was not affirmatively satisfied, for the purpose of the application to reopen the investigation, the Coroner was prepared to assume that two items supplied to him by Mrs Mortimer did constitute new facts and circumstances.[19] As indicated, those documents were supplied to the HMIT. Nevertheless, ‘for completeness’ the Coroner then determined to supply all of the documents which Mrs Mortimer had provided to the HMIT.
[19]As noted at [23] above the Coroner’s formal finding was that he was not satisfied there were new facts and circumstances. Of the documents he was prepared to assume contained or treated as containing new facts and circumstances, one (the medical opinion of Dr Dewan) he found not to be a new fact or circumstance and the other (the ‘Final Report’ Urine and a Flow Chart) he was unsure about so treated them as potentially containing new facts and circumstances. There was an element of inconsistency between the formal finding on the one hand and the manner in which the Coroner treated the documents on the other; however that inconsistency has no practical effect for the purposes of the appeal.
Having considered whether there were new facts and circumstances for the first limb of s 77(3), the Coroner turned his attention to the second limb: that is, he considered whether it was ‘appropriate’ to re-open the investigation in the light of the documents he was prepared to treat as containing ‘new facts and circumstances’.
The Coroner evidently received advice from the team following its review of those documents. The Coroner summarised its advice. The team noted that Mr Dewan had concluded that death was due to urosepsis, electrolyte imbalance and renal failure, observing that this was not disputed. The team then commented on several of Mr Dewan’s eight enumerated points. The Coroner noted the team’s discussion about the medical management of Ms Lloyd and whether actions taken had been reasonable, presumably in response to the opinions and conclusions of Mr Dewan. The Coroner observed –
HMIT did identify some areas of concern at the time, such as discharge on 31 July 2009 without assessing whether any urine was made or passed following removal of the catheter, and discharge on 5 August 2009 when there were some blood test abnormalities. However, after examination of statements by treating doctors and, on consideration of the challenges keeping Ms Lloyd in hospital for prolonged periods of observation posed, the management was considered reasonable in the circumstances.[20]
[20]Reasons, paragraph 30(d) (emphasis added).
Evidently the team expressly considered the ‘Final Report’ Urine, noting that it showed faecal contamination and mixed growth suggesting contamination. It concluded that it was ‘a non-significant finding’. It also considered the Flow Chart results to be ‘largely normal with only insignificant variations from normal’. The team also expressly commented on Mrs Mortimer’s email which had complained that certain documents had indicated that Ms Lloyd had a urine infection when discharged from the Alfred Hospital previously, that the relevant organism had not been isolated and no sensitivities were performed. The team commented that the urine culture results referred to indicated mixed growth with no organism isolated and a contaminated specimen with no obvious significant pathogen. The team said that sensitivities were not performed when no pathogen was isolated.
In substance, the team concluded there was no new information presented in the application that would alter prior conclusions regarding the medical management of the deceased. In view of that information, the Coroner did not consider that it was appropriate for the investigation to be reopened. In so finding, the Coroner expressed himself as follows:
Having considered all the documents provided by Mrs Mortimer in her application, I am unable to conclude that there are any new facts or circumstances which would cause a previously accepted fact, material to findings regarding the identity of the Deceased, the cause of death and/or other pertinent circumstances surrounding Ms Lloyd’s death, to be so altered that a relevant finding may be unsustainable. That is, there is no basis to conclude that it is appropriate for the investigation to be re-opened.[21]
[21]Ibid paragraph 31 (underlining added).
I will return to the significance of the underlined words above shortly.
Grounds of Appeal
The grounds of appeal as expressed in the amended notice of appeal (amended 23 August 2016) are as follows:
1. There has been a breach of Natural Justice (procedural fairness). The Coroner did not give the applicant an opportunity to see the Findings before they were released. He has consistently ignored everything she said, and all the evidence. He has refused to negotiate. He has showed bias in his Findings.
2. There is an Error of Law on the face of the record. Evidence to support this is still in the original Findings ‘that there was no indication on the 5th when the deceased was discharged that she would represent just 40 hours later with overwhelming sepsis and renal failure’ that there was every indication that death would be the result of discharge on the 5-8-2009.
3. There has been a failure to take into account a relevant consideration. That the Neuroleptic Malignant Syndrome was never investigated.
The plaintiff believes the new facts presented to the Coroner, are new facts and circumstances and as such it is appropriate to reinvestigate.
Because the appeal is founded alternatively on the two broad bases as described in [10] above, I will consider each basis separately.
Did the Coroner make any error of law?
It is important to emphasise, again, that the appeal under s 84 is against the Coroner’s refusal to re-open the investigation: it is not an appeal against the original Finding. A decision whether to reopen is governed by the particular set of considerations specified in s 77(3). It follows that any ‘question of law’ on which this appeal can be based must be a question of law in connection with the refusal to re-open made on 24 June 2016 , not the original Finding (and not the first refusal to re-open or the appeals consequent upon that refusal).[22] This is a distinction that Mrs Mortimer has struggled to maintain. Not having appealed the Finding pursuant to the statutory mechanism under s 83, Mrs Mortimer is not entitled to use her appeal against the refusal to re-open (under s 84) as a proxy for a s 83 appeal. Yet, generally speaking, that is what Mrs Mortimer has sought to do in relation to her arguments on a question of law.
[22]Referred to at [6] above.
As her written outline of opening confirms, her grounds of appeal are almost solely directed to challenging the original Finding. That is, she complains that:
(a) The Coroner did not accord her natural justice in making the original Finding because he –
· … ‘did not give the applicant an opportunity to see the Findings before they were released’.
· … ‘consistently ignored letters and evidence sent to him. He refused to negotiate regarding his Findings other than annotations which did not reflect the problems’.
· … ‘showed Bias in his Findings … against the plaintiff … in favour of the hospital and doctors … against my sister because she had a disability’.[23]
(b) The decision disclosed an error on the face of the record (of the original Finding), namely the comment (see [3] above) to the effect that there was no indication Ms Lloyd would die when discharged on 5 August when in fact … ‘there was every indication she had no chance of surviving because of the blood pathology. Her sodium levels were so low she could not possibly survive’.[24]
(c) There was a failure to take into account a relevant consideration (in respect of the original Finding), namely a CPK test was not undertaken on Ms Lloyd’s blood for the possible detection of neuroleptic malignant syndrome (NMS), an allergic reaction to neuroleptic medication … ‘so it will never be known if this was a factor or caused the death’.[25]
[23]Outline of Argument of Mrs Mortimer, page 3.
[24]Ibid.
[25]Ibid.
Each of the foregoing is a challenge to the making of the original Finding. Even if they had any merit as possible errors of law in the making of the Finding, they do not constitute available grounds of appeal against the refusal to re-open the investigation. I reject Mrs Mortimer’s arguments insofar as they purport to raise questions of law concerning the original Finding. None of the arguments raise questions of law in respect of the decision made on 24 June 2016 refusing to set aside the Finding and re-open the investigation.
The only ground of appeal referred to in Mrs Mortimer’s outline that potentially raises a question of law regarding the refusal to re-open the Finding is that –
The coroner refused to Set Aside his Findings despite evidence in the form of a Medical Opinion which refutes his Findings. He states he has examined the contents of the Medical Opinion before. How can this be when it is New Information?[26]
[26]Ibid.
This argument could be considered either under the ground of breach of natural justice (a failure to be heard) or a failure to take into account a relevant consideration. Neither of these grounds would succeed as, plainly, Mrs Mortimer did supply the medical opinion to the Coroner and the Coroner did take it into consideration. However, although not specifically raised by Mrs Mortimer, the argument obliquely raises the question whether the Coroner correctly construed and applied the test in s 77(3) when considering whether he was satisfied that there were new facts and circumstances and whether it was appropriate to re-open the investigation.
The Coroner addressed himself to the existence of new facts and circumstances and the significance of them in two places in his reasons for decision. Each of these is set out above—at [23] and at [34]. In the passage extracted at [34], the Coroner appeared to qualify the test of ‘new facts and circumstances’ as requiring them to be such as to ‘cause a previously accepted fact, material to the finding, to be so altered that a relevant finding may be unsustainable’. These same words were recently considered by J Forrest J in Hecht v Coroners Court of Victoria,[27] a decision published after the Coroner’s decision that is the subject of this appeal. His Honour held that the coroner’s construction of the test in s 77 by reference to those words amounted to an error of law which was enough to cause the appeal in that case to be allowed. His Honour said:
There is no warrant for importing a condition referable to either sustainability or a material alteration of a previous understanding of the facts. The question, rather, is that posed by the words of the statute — whether there are new facts and circumstances and, if so, do they justify a reopening of the investigation. It is no more and no less than those two basic propositions.
Each case will, as Parliament noted, turn on its own facts and circumstances and it is not open to this Court or the Coroners Court to read into the provision of s 77(3) a test which the legislature has not imposed.[28]
[27][2016] VSC 635 (‘Hecht’).
[28]Hecht [2016] VSC 635, [45]-[46].
Counsel for the CCV sought to distinguish the coroner’s application of the qualifying words in Hecht’s case from the Coroner’s use of them in the present instance. Counsel drew attention to that fact that, in Hecht, the coroner applied the qualifying words to the test of whether new facts or circumstances existed; that is at the first limb of the test in s 77(3) of the Act. By applying the qualification at that stage the coroner in Hecht found there were no new facts or circumstances so it was unnecessary to even consider whether it was appropriate to re-open the investigation. By contrast, in the present case, the Coroner applied an unobjectionable test of what were ‘new facts and circumstances’—quoted in [23] above—then used the qualifying words at the second stage when considering whether it was ‘appropriate’ to re-open. That is, they were used as a means of assessing the potential impact of the new facts and circumstances on the original finding for the purpose of determining the appropriateness of re-opening the investigation.
Counsel for the CCV pointed out that the use of the qualifying words at the second limb stage did not constitute any error of law. In the alternative, if the Coroner’s application of those words at that stage was wrong in law, the CCV contended that in the particular circumstances of this case that error was not material to the ultimate decision not to re-open the investigation. Accordingly, the decision did not ‘involve’ an error of law. [29]
[29]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ).
Proper construction of s 77(3)
With respect, I agree with the opinion of J Forrest J in Hecht that there is no warrant to qualify the words appearing in s 77(3)(a) by reference to the capacity of the new facts and circumstances to change the original finding. Apart from that qualification being a significant gloss on otherwise plain words, the presence of the second limb of the test, in s 77(3)(b), suggests that the second limb is the intended mechanism by which the coroner may consider, among other things, the potential for the new facts and circumstances to impact upon the original finding.
The power to re-open in s 77(2), expressed or amplified in s 77(3), is unlikely to be intended to be exercised merely because a new fact or circumstance has arisen. For instance, it would be unusual if a new fact that entirely supported and reinforced the original finding could be a ground to set aside the finding and re-open the investigation. Additionally, even if a new fact had a potential to bear upon the original finding, the extent of that impact could be anywhere on the scale between negligible and overwhelming. So, it seems logical that the likely impact of a new fact and circumstance on the original finding should be a relevant consideration when assessing whether any investigation should be re-opened. The chief error in Hecht, it seems to me, was the stage at which the coroner considered the impact of the new fact and circumstance within the two-tiered test, that is, at the first tier. Additionally, the test for measuring the ‘impact’ of the new fact and circumstance may have been too rigid.
Assuming that a coroner is satisfied of the existence of a new fact and circumstance—in the sense of there being something not known to the coroner at the time of the investigation—the coroner must determine in the light of those new facts and circumstances whether it is ‘appropriate to re-open the investigation’. These words have been given little if any analysis in the cases.
The word ‘appropriate’ means, relevantly, ‘suitable or fitting for a particular purpose’[30] or ‘proper, fitting’[31]. So understood, the test is inherently broad and its application to the relevant issue has been deliberately left to the judgment of the decision maker. That is not so surprising in the context of a ‘specialist inquisitorial court’.[32] The legislature can be taken to expect the coroner to have specialist knowledge and experience and to have consciously entrusted him or her to make judgments as to what is required or desirable by way of investigation to achieve the purposes of the Act as applied to a particular death or event. Indeed, there are several other places in the Act where Parliament has also left it to the coroner’s judgment as to what is either appropriate or inappropriate in relation to particular decisions.[33]
[30]Macquarie Dictionary.
[31]Shorter Oxford Dictionary.
[32]The Act s 1(d).
[33]Ibid s 19(1)—investigating a reviewable death without referral to the Institute; s 25(2)(b) and (5)(a)(i)—direction to perform an autopsy; s 56(a)—leave to appear at inquest; s 71—decision not to make findings after deciding not to hold an inquest in particular circumstances.
As wide as it is, however, the concept of what is appropriate is to be understood against the nature and purposes of the coroner’s powers and functions as defined in the Act. I have already referred above to some of the broader contextual purposes and objectives of the Act and functions of the coroner.[34] Notable, for present purposes, is the range of considerations that a coroner must balance when making judgments about what is appropriate in a given circumstance. Different considerations may pull in different directions. But, in the end, it is for the coroner to make a decision about what is ‘appropriate’—suitable, fitting or proper—when a provision calls for that judgment to be made.
[34]See [12]-[17] above.
In circumstances in which Parliament has entrusted such a judgment to a specialist court, an appellate court (not necessarily vested with that same special knowledge or experience) would be very slow to find that a judgment so made constitutes an error of law.
I agree with the CCV’s observation that the test applied by the Coroner to determine whether new facts and circumstances existed, extracted at [23] above, was unobjectionable. But, in this case, although not expressly argued by Mrs Mortimer, consideration needs to be given to whether the Coroner unduly restricted his view of what the test of appropriateness called for under s 77(3)(b). So the focus is fixed on what the Coroner said—set out at [34] above—when finding that there was ‘no basis to conclude that it is appropriate for the investigation to be re-opened’.
The coroner appeared to reach that decision because, as he stated, he was unable to conclude there were new facts or circumstances which would cause a previously accepted fact, material to the findings, to be so altered that a relevant finding may be unsustainable. I have already stated my view that the extent to which a new fact or circumstance might impact the original finding is a logical matter to weigh when considering whether it was appropriate to re-open an investigation. For that reason, there could be no error in the Coroner having regard to the potential impact of a new fact or circumstance when deciding if it was appropriate to re-open.
But, the way in which the Coroner expressed himself could imply that he construed and applied the test of appropriateness, generally, as solely invoking the question whether new material could cause him to alter any finding he had already made. Further, the language used could imply that he considered it would only be appropriate to re-open if new material would make a previous finding ‘unsustainable’. If that were so, it might be thought that the Coroner made a legal error because the concept of appropriateness is not so confined.
However, in the particular circumstances of this case I am not persuaded that the Coroner’s use of that language to explain why he was not satisfied that it was appropriate to re-open the investigation denoted any error of law. I remain unpersuaded because of the particular background to the subject application, the specific way in which the application had been put to the Coroner and needed to be addressed and the nature of the finding to which Mrs Mortimer’s application was chiefly directed.
By background to the application, I refer to the first application made by Mrs Mortimer to set aside findings and re-open the investigation and the two appeals which followed the refusal of that first application. In that first application the Coroner, an associate judge and a judge of this court raked over a range of arguments about alleged new matters that, so it was claimed, would have caused the Coroner to come to a different decision had they been taken into account. The specific way the second application was put was to produce a range of ‘new’ medical facts and circumstances which, had the Coroner taken them into account at the time, would arguably have caused the Coroner to reach a different conclusion about the medical management of Ms Lloyd.
I also bear in mind that the nature of the finding which is the real subject of this appeal is a ‘comment’ made by the Coroner set out at paragraph [3] above. As noted earlier, apart from making findings as to the cause of death which a coroner must make if possible to do so, a coroner may choose to comment on a matter connected with the death, including in relation to matters of public health and safety. In the present case, the comment that Mrs Mortimer is particularly focused upon was, essentially, a qualified comment of this kind.
The Coroner chose not to make a comment critical of the medical management of Ms Lloyd by the Angliss Hospital but, rather, stated his view that the management was within the ‘parameters of reasonable health care practice’. Going further, the Coroner supported that view with the additional comment that there was ‘no indication’ that Ms Lloyd would soon return to hospital in renal failure. As will be seen below, this was a considered view. It was a view reached in the face of a body of evidence that enabled argument to be put either way. It was also reached with the benefit of statements from and interviews with key medical staff, not simply the scientific results of pathology tests and other readings, together with the views of the HMIT and an independent medical specialist. Based on all of that evidence, the Coroner formed an opinion which is what his comment reflects.
It is the type of comment the coroner is empowered to make in the exercise of his statutory jurisdiction aimed at furthering the objects of the Act. Mrs Mortimer does not agree with it. It appears that Mr Dewan does not agree with it either. But it appears that the opinions of other persons, also medically trained and experienced, supported it and those views provide a reasoned foundation for the Coroner’s conclusion and thus his comment.
It is against those particular circumstances that I interpret the Coroner’s explanation for not being satisfied that it was appropriate to re-open the investigation. Having twice reconsidered arguments by Mrs Mortimer as to why the Coroner’s findings were allegedly unjustified and the investigation needed to be re-opened, and bearing in mind the inherently-debatable, opinion nature of the comment in question, it was not an error for the Coroner to then concentrate his focus upon the propensity of the so-called new facts to make the relevant finding unsustainable. In other words, I am not persuaded that the words used were intended to reflect a general construction of the test of what is ‘appropriate’; rather, they explained why in the particular circumstances of this case the Coroner did not think the material put forward justified the investigation being re-opened.
Did the decision involve an error of law?
If I am wrong in reaching this conclusion and the better view is that the Coroner did make an error of law in the way he construed and applied the test in s 77(3), I am not persuaded that his finding ‘involved’ an error of law. In Australian Broadcasting Tribunal v Bond[35] Mason CJ laid down the relevant principle as follows –
A decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[36]
[35](1990) 170 CLR 321.
[36]Ibid 353 (Mason CJ), 365 Brennan J, 369 Deane J.
I am not convinced that upon a wider consideration of factors beyond whether the new facts would make his comment unsustainable the Coroner might have reached a different decision. It is not easy to see any factor which would, as a matter of practical likelihood, reasonably cause the Coroner to come to a different view. On occasions, Mrs Mortimer stressed factors such as the Coroner’s duty to ‘protect the living’ and to correct what she saw as an unjustified absolution given to the hospital. But plainly the Coroner was alive to these issues and arguments. There is no reason to suspect that he did not consider such factors or that giving further consideration to them might have brought about a different result.
It follows that even if the Coroner was wrong in his construction and application of the legal test, the decision ultimately did not involve an error of law.
Accordingly, I reject the appeal insofar as it relies upon a question of law.
Is it necessary or desirable in the interests of justice to allow the appeal?
Section 87A has received relatively little judicial analysis. It was recently applied by Zammit J in Bourke v Coroners Court.[37] In that decision her Honour referred to and applied statements of principle outlined by Robson J in another case, Chiotelis v Her Honour Judge Coate.[38] I will return to these principles below.
[37][2015] VSC 418.
[38][2009] VSC 256 (‘Chiotelis’).
Beginning with the structure of s 87A itself, it is first necessary to observe that it provides in sub-s 1 for an appeal ‘other than on a question of law’. Read with s 87 which provides for an appeal only on a question of law, s 87A appears to allow for an appeal that extends to reconsidering the findings of fact and the conclusion to be drawn from them. Such an appeal only applies to a coroner’s decision not to hold an inquest into death (under s 82(1)) or not to re-open an investigation into death (under s 84(1)). It is also restricted to being brought by persons with a particular interest. Finally, the appeal may be allowed only if the Supreme Court is ‘…satisfied that it is necessary or desirable in the interests of justice to do so’.[39]
[39]S 87A (2).
Taken together, the whole section empowers the appellate court to overturn or vary a coroner’s decision based on factual findings if satisfied the interests of justice require it or make it desirable to do so. Again, it is necessary to be reminded that the decision the subject of this appeal is the refusal to re-open and therefore the scope for examining factual error is confined to the decision whether new facts and circumstances existed and any findings of fact upon which the Coroner concluded it was not appropriate to re-open the investigation.
Under the previous Act, the Coroners Act 1985 (Vic), the Supreme Court was empowered by s 18(3) to order an inquest be held into a death if, after three months of being asked to do so, a coroner had either not agreed or had not expressly refused and given written reasons for the refusal. The court could do so if satisfied that it was necessary or desirable in the interest of justice to make an order, the same test to be satisfied under s 87A.
In Chiotelis, Robson J reviewed the authorities on the construction of s 18(3) of the previous Act. In summary, the cases applicable to that statutory provision emphasise the broad discretion given to the coroner in deciding whether or not to hold an inquest. Consequently, and because of the particular nature of the coroner’s jurisdiction, the court took the view that the appellate power would be exercised ‘sparingly’, after subjecting the appeal to ‘most severe scrutiny’ and requiring ‘compelling evidence’ to warrant the court’s intervention.[40]
[40]Chiotelis [2009] VSC 256 [20]-[26].
Section 87A does not address precisely the same circumstances as did s 18(3) of the previous Act nor does the current section appear in precisely the same statutory framework as the former although there is some clear commonality. Both provisions concern the jurisdiction of the Supreme Court to review the exercise of power by a specialist coroner after he or she makes a discretionary decision of a kind that calls for a judgment which a coroner is peculiarly equipped to make on the basis of the material before them. For that reason I consider that the Supreme Court should exercise the appellate power in s 87A sparingly, acknowledging the particular advantages a coroner has over a non-specialist court in determining when it is ‘appropriate’ to re-open an investigation.
The words ‘reasonable or desirable in the interests of justice’ are to be understood in the specific context of the Act and particularly in relation to the decision in question: that is, whether an investigation into a death should be re-opened. The expression ‘interests of justice’ is a familiar one and a search of that expression across Victorian legislation reveals many results. Those results include provisions that condition the exercise of a power by what is ‘in the interests of justice’; ‘appropriate in the interests of justice’; ‘desirable in the interests of justice’; ‘appropriate and in the interests of justice’; and by ‘having regard to the interests of justice and fairness’.
Generally, the interests of justice are not the same as the interests of one party or even all the parties to the proceeding—they extend beyond the private interests concerned.[41] In the context of the Act and the specific subject matter of investigations those interests would, amongst other things, take into account the desirability of finality in investigations, the extent to which an issue of public health and safety is engaged and (because of the expressed conditions in s 87A(1)(a)) the particular interests of next of kin being heard in relation to and understanding the findings of a coroner about the death of someone near to them.
[41]BHP Billiton Limited v Schultz (2004) 221 CLR 400, 421; Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39 [17] and [18].
As has been mentioned several times, the real burden of Mrs Mortimer’s appeal is directed toward setting aside the comment by the Coroner in his original Finding extracted at [34] above concerning the medical management of Ms Lloyd and the indications she may have been experiencing renal failure. The Coroner’s comments followed significant background discussion of this issue in the Coroner’s reasons. At [4] of his reasons the Coroner said :
On 5 August 2009, Ms Lloyd re-presented to the Angliss Emergency, Department with the concern being that she had not passed urine for a significant time. The treating Emergency Department physician was Dr Colin Pearson who was aware of her extensive medical history. Investigations showed that Ms Lloyd was making urine, although there was limited voiding, and an abdominal X-Ray showed some distension of the large bowel, which was unchanged from previous admissions. Despite blood tests being suggestive of pending renal failure, Ms Lloyd was discharged back into her sister’s care, with advice to Mrs Mortimer to encourage oral fluids and to trial voiding at her premises, supervised by her carers. The plan was for review in the Emergency Department if any issues arose.[42]
[42]Underlining added.
At [10] of his reasons, the Coroner noted the results of HMIT’s consideration of the investigative materials. The Coroner said:
The HMIT identified issues regarding Ms Lloyd’s admission to the Angliss Hospital on 31 July and 5 August and her discharge without establishing a definite cause for the urinary retention. In regard to the presentation on 31 July, it was believed that a further period of observation would have been reasonable, in order to assess urine output and her ability to pass urine. The next attendance when concerns were raised about urine output is also an issue, because the low urine output was not established, observed or reviewed. Ms Lloyd’s sister was simply requested to encourage more fluids. With regard to this presentation on 5 August, the treating Emergency Department physician, Dr Pearson, provided a statement outlining all relevant past medical history and his management of her on the day.[43]
[43]Underlining added.
In the balance of that paragraph the Coroner set out in some detail the reasons given by Dr Pearson for discharging Ms Lloyd on 5 August. The Coroner recorded the HMIT’s conclusion in these terms:
The HMIT believed that the doctor provided a reasonable explanation of events, confirming that the medical management on this occasion included a review of urine output, blood tests, urine results and the rationale for not treating with further antibiotics. They recommended that the case investigation be closed and concluded: “Overall the medical management was reasonable in a very difficult setting of chronic behavioural disturbance and chronic medical illnesses”.
Notwithstanding the HMIT’s view, the Coroner went further as he explained at [11]:
Despite HMIT recommending the investigation be closed, the coroner believed it appropriate to get an expert opinion from a Consultant General Physician, with this being provided by Associate Professor, Richard King, Program Director-Medicine, Southern Health. Dr King observed that the relatively unexplained bladder dilation could have been caused by urinary tract infection, or caused by one of Ms Lloyd’s medications, Cogentin, which in his opinion, she had been on chronically. (Mrs Mortimer however, disagrees with the possibility of Cogentin being causally connected, as she states it was used only occasionally). Whilst Associate Professor King believed that Ms Lloyd should have been admitted and her biochemical and fluid status normalised, he noted the problems of hospitalising such a patient and checking her urine for infection. Nevertheless, it cannot be concluded that checking her urine for infection would have prevented her re-presenting in septic shock and the tragic outcome. Associate Professor King concluded with the following comment:
“Overall, Ms Lloyd’s management was of high quality, apart from the reservation expressed regarding the treatment on 5 August 2009”.[44]
[44]Underlining added.
It was against that background that the Coroner made the impugned comment. It was also against that background that the Coroner came to consider the materials now put forward by Mrs Mortimer in her second application to set aside the finding as amounting to new facts and circumstances. In deciding that it was not appropriate to re-open the investigation the Coroner considered and obtained advice about the written report of Mr Dewan. At the hearing of the appeal I took the unusual step of allowing Mrs Mortimer to call Mr Dewan (whom she had subpoenaed)[45] to give further evidence about the opinions he expressed in his written report. I gave reasons for doing so at the hearing. However I was conscious of several limitations I would face in hearing the further evidence from Mr Dewan:
[45]I noted however that Mr Dewan was present in court throughout the whole proceeding both before and after giving his evidence.
(a) I was hearing information that had not been considered by the Coroner;
(b) I did not have available to me all of the material that the Coroner had regard to when making his original Finding so as to appreciate the extent to which anything Mr Dewan said was new, significant or otherwise;
(c) Mr Dewan himself did not have all the information that had been available to the Coroner including the notes of staff or the benefit of the full statement of Dr Pearson.
Mr Dewan detailed his qualifications in oral evidence. He is a qualified medical practitioner and, among his qualifications, he is a Fellow of the College of Surgeons of Australia and England. His area of specialty is as a paediatric urologist. As it transpired I was not much assisted by the oral evidence of Mr Dewan. It simply served to underscore the fact that he agreed with the fundamental findings of cause of death as stated by the Coroner but disagreed with the views of the HMIT, Associate Professor King and the Coroner on the medical management by the hospital and the presence of warning signs at the time of Ms Lloyd’s discharge.
That there were signs indicating pending renal failure was not new nor was it ignored by the Coroner. That there was reason for concern about the management of the patient was also addressed by the Coroner in his initial Finding. But notwithstanding those signs and concerns which were squarely raised and addressed, the Coroner had regard to the totality of the evidence—including the explanation of the emergency doctor, the views of the HMIT on review and the further views of Associate Professor King—and reached an independent conclusion on the medical management. His conclusion was expressed with a degree of restraint but also with sensitivity to all of those concerned.
I find nothing in what Mrs Mortimer presented to the coroner in her second application—nor in the further oral evidence of Mr Dewan—that either necessitates or makes it desirable in the interests of justice to allow the appeal against the Coroner’s refusal to re-open the investigation. It follows that I reject the s87A basis for the appeal.
Other matters
Several times I have stated that Mrs Mortimer's principal focus in her application to the Coroner and on this appeal was the Coroner's comment about the standard of medical management and the presence of warning signs of her sister's pending renal failure when she was last discharged from hospital. I have not overlooked the fact that there were a number of other subsidiary concerns that Mrs Mortimer raised. However, those other concerns received relatively scarce attention in submissions.
Among them were included a complaint about the Coroner's comment about some aspects of Mrs Mortimer's care of her sister, specific features of pathology results or other medical evidence that arguably should have heightened doctors' concern for the prospect of imminent renal failure and argument about a theory that Ms Lloyd's death may have been caused by an allergic reaction (neuroleptic malignant syndrome) to an antipsychotic drug (Seranace) that she had been taking. Most of these other or subsidiary complaints were impermissible means of appealing the original Finding, did not amount to new facts or circumstances and merely reiterated arguments that had already been put forward either in the original investigation or in the first application to set aside the Finding. Some (such as the specific pathology results) were aspects of the evidence that had been taken into account previously and were not new or, to the extent they were new, they fed into the issue of medical management which has been dealt with above. No 'new facts' were presented in relation to the allergic reaction theory; indeed Mr Dewan who had been asked by Mrs Mortimer to give an opinion about it disclaimed any expertise on the topic.
Alone or in combination, none of the additional grounds for complaint cause me to come to any different view on whether an error of law was made or it is otherwise necessary or desirable in the interests of justice to allow the appeal.
Conclusion
The appeal must be dismissed.
4
8
0