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

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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.

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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…

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 Mortimer v West

Details

AGLC: Mortimer v West (in his role as Deputy State Coroner) (Refusal to re-open investigation) [2017] VSC 293
Case: [2017] VSC 293
Decision Date: 29 May 2017

CaseChat Overview and Summary

Mortimer brought an appeal against the Coroner's decision to refuse to re-open the investigation into the death of their family member, West. The Coroner had decided that there were no new facts or circumstances that warranted a re-opening of the investigation, nor was it appropriate to do so in the interests of justice. Mortimer contended that the Coroner had made an error of law and that the appeal should be allowed on the basis of new facts and circumstances, as well as being appropriate in the interests of justice. The court was required to determine whether the Coroner's decision was correct and whether it was necessary or desirable in the interests of justice to allow the appeal.

The court considered the test for ‘new facts and circumstances’ as outlined in Hecht v Coroners Court of Victoria, and concluded that Mortimer had not provided any new evidence or information that would warrant a re-opening of the investigation. The court also considered the meaning of ‘appropriate’ in the context of s 77(3)(b) of the Coroners Act 2008 (Vic), and found that it was not appropriate to allow the appeal in this case. The court held that the Coroner's decision was correct, and that there were no grounds for allowing the appeal.

The court dismissed Mortimer's appeal and affirmed the Coroner's decision to refuse to re-open the investigation into the death of West. The court found that Mortimer had not provided any new facts or circumstances that would warrant a re-opening of the investigation, and that it was not appropriate to allow the appeal in the interests of justice. The court held that the Coroner's decision was correct, and that there were no grounds for allowing the appeal. The appeal was therefore dismissed with no orders for costs.

Orders