Mortimer v West (in his role as Deputy State Coroner)
[2015] VSC 150
•21 April 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 3395
IN THE MATTER OF the death of the late Robena May Lloyd
BETWEEN
| STEPHANIE LORRAINE MORTIMER (sister) | Plaintiff |
| v | |
| IAIN WEST (in his role as Deputy State Coroner) | Defendant |
---
JUDGE: | Randall AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 October 2014 |
DATE OF JUDGMENT: | 21 April 2015 |
CASE MAY BE CITED AS: | Stephanie Lorraine Mortimer (sister) v Iain West (in his role as Deputy State Coroner) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 150 |
---
PRACTICE AND PROCEDURE – Application to set aside findings of the Deputy State Coroner – Appeal with respect to refusal to reopen an investigation – Appeal to the Supreme Court on a question of law – Coroners Act 2008, ss 77, 84 and 87.
DIRECTIONS – Identification of a question of law on which the appeal may be brought, arguable case on appeal – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 58.39(8).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms N Hodgson | Principal In-House Solicitor, Coroners Court of Victoria |
HIS HONOUR:
Introduction
The late Robena May Lloyd died on 7 August 2009. The appellant (Mrs Mortimer) is the deceased’s sister.
The Deputy State Coroner published a finding into the death of the late Robena May Lloyd without an inquest pursuant to s 67 of the Coroners Act 2008 (Vic) (‘the Act’) on 24 June 2014. That finding was amended pursuant to s 76 of the Act on 26 June 2013 (‘Original Finding’). The primary finding was that the cause of death was enterococcus faecalis sepsis and acute renal failure.
By application dated 7 December 2013, Mrs Mortimer sought a reopening of Original Finding. In response the Deputy State Coroner published a determination dated 3 June 2014, which refused to set aside the Original Finding (‘Determination’).
On 4 July 2014 Mrs Mortimer filed and served a notice of appeal with respect to the Determination (‘Notice of Appeal’). However, upon closer examination and after listening to submissions by Mrs Mortimer, it became readily apparent that Mrs Mortimer not only sought to appeal the Determination, but to appeal the Original Finding. Counsel for the Deputy State Coroner, who is a ‘model litigant’, was prepared for me to deal with all extant issues, regardless of adherence to the appropriate procedures. Notwithstanding the preparedness on the part of counsel to deal with all issues raised in either the Notice of Appeal or Mrs Mortimer’s submission purportedly setting out further grounds of appeal, this is an appeal pursuant to s 84 of the Act and not s 83.
The legislative framework
Section 3 of the Act defines the Coroner to include the Deputy State Coroner. Accordingly, wherever there is reference to the Coroner in this judgment, that reference includes the Deputy State Coroner.
Section 67(1) of the Act provides for the Coroner, among others, to find, if possible the identity of the deceased and the cause of their death. Section 67(3) permits the Coroner to comment on any matter connected with a death, including matters relating to public health and safety or the administration of justice.
Section 77 of the Act makes provision for the reopening of an investigation. Relevantly, s 77(1) to (3) provide as follows:
(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.
Section 83 of the Act provides that a:
‘…person with sufficient interest in an investigation may appeal against the findings of a coroner in respect of a death … to the Trial Division of the Supreme Court constituted by a single judge’, …
and that the appeal ‘must be made within 6 months after the day on which the determination of the coroner is made’. Hence, Mrs Mortimer was out of time to appeal the Original Finding.
The salient provision in relation to this appeal is s 84 of the Act which is the appeal provision with respect to the Coroner’s refusal to reopen an investigation. Section 84 provides as follows:
(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 3 months after the refusal by the Coroners Court.
Section 87 of the Act provides that an appeal to the Supreme Court is on a question of law.
Order 58 of the Supreme Court (General Civil Procedures) Rules 2005 (Vic) (‘Supreme Court Rules’) deals with the procedure for appeals under Part 7 of the Act. By r 58.35 of the Supreme Court Rules, the Notice of Appeal is required to set out or state:
(iii) the question of law upon which the appeal is brought;
(iv) concisely the grounds of appeal;
(v)the order sought in place of the determination from which the appeal is brought;
Rule 58.39(8) of the Supreme Court Rules sets out the role of the Associate Judge for the hearing of directions with respect to the appeal. In the case of an appeal under Part 7 of the Act, r 58.39(8) of the Supreme Court Rules provides:
(8) The Associate Judge may dismiss the appeal if satisfied that—
(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;
(b)the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c)the appeal is frivolous, vexatious or otherwise.
The Deputy State Coroner’s findings
Pursuant to s 76 of the Act, the Deputy State Coroner made a finding into death without inquest dated 24 June 2013, which was subsequently amended on 26 June 2013. The Deputy State Coroner found that Mrs Mortimer’s sister died from:
(1)(a) Entero[c]occus faecalis sepsis and acute renal failure.
Pursuant to s 67(2) of the Act, the Deputy State Coroner also made findings with respect to various circumstances. Those findings took into account submissions made by Mrs Mortimer.
The Determination pursuant to ss 77(2) and (3) of the Act was then published by the Deputy State Coroner on 3 June 2014. The Deputy State Coroner made the following order:
[T]hat the findings not be set aside as I am not satisfied that there are new facts and circumstances and it is not appropriate to reopen the investigation pursuant to s 77(3) of the Coroners Act 2008.
The Deputy State Coroner also set out the following in the Determination:
1.Application dated 7 December 2013 had been received from Ms Stefanie Mortimer, the sister and next of kin of Ms Robena Lloyd, to set aside the 2013 finding into Ms Lloyd’s death.
2.The Coroners Court Act 2008 provides by Section 77 that some or all of a finding may be set aside, and if appropriate, the investigation be reopened, if there are new facts and circumstances and it is appropriate to do so.
3.The investigation into the death determined that Ms Lloyd died of entero[c]occus faecalis sepsis and acute renal failure. She presented to the Angliss Emergency Department on 5 August 2009, as she had not passed urine for a significant time. Upon examination by the Emergency Department Physician, Ms Lloyd was discharged, despite blood tests being suggestive of pending renal failure. On 6 August 2009, Ms Lloyd attended a locum doctor where she was advised she could either have an ambulance transfer to hospital for overnight observations, or to be observed by night duty carers. The decision was made for Ms Lloyd to remain at home. On 7 August 2009, Ms Lloyd collapsed at home and was taken to the Angliss Hospital where she was found to be septic and in renal failure. Resuscitation was attempted but her condition deteriorated rapidly and palliative care was initiated. Ms Lloyd subsequently died.
4.The Coroner’s Health and Medical Investigation Team (HMIT) investigated the admission to the hospital and concluded that the overall medical management was reasonable. An expert opinion was sought from Consultant General Physician, Associate Professor Richard King, who also concluded that Ms Lloyd’s management was of a high quality, apart from a reservation expressed regarding her treatment on 5 August 2009.
5.Mrs Mortimer was not satisfied with the above finding and requested the matter be reviewed, as she believed Ms Lloyd died from Neuroleptic Malignant Syndrome (NMS) due to Serenace.
6.I have considered the two questions that arise. First whether there are ‘new facts and circumstances’ and second whether it is ‘appropriate’ to reopen the investigation. The new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relevant finding may be unsustainable. In this instance, based on Mrs Mortimer’s concerns, the matter was again referred to HMIT for review. On 2 April 2014, HMIT concluded that Ms Lloyd’s cause of death remained entero[c]occus faecalis sepsis and acute renal failure and not NMS, thus no new facts and circumstances were established. I am satisfied that is the case here. The second limb therefore, does not require consideration.
7.The application to set aside the finding into Ms Lloyd’s death is refused for the reasons I have stated.
Mrs Mortimer’s grounds of appeal
The Notice of Appeal relevantly sets out:
SUBJECT OF APPEAL:-
That the Coroner made a Finding into Death without inquest on 25-6-2013. The applicant applied to have the decision set aside. On the 3-6-2014 the applicant received a DETERMINATION FOLLOWING APPLICATION TO SET ASIDE FINDING Form 44 Rule 65(2) Sec 77(2) and 77(3) of the Coroners Act 2008 which refused the application to set aside the finding. …
THE DETERMINATION:-
This appeal is against the Refusal to Set Aside the Findings and the determination … dated 25-6-2013.
…
This appeal is for the whole of the determination including the cause of death and the death certificate. Including a statement from a Locum Manish Agaskar and a statement from the Coroner regarding the applicant, which is not factual.
QUESTION OF LAW:-
Procedural unfairness.
(Commission for Australian Capital Territory Revenue Vs Alphaone P/L.) Northrop, Miles and French JJ stated: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interest. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker.
That the plaintiff has put additional information and compelling evidence before the Coroner and this evidence has been ignored. That the Rule of Nature Justice has not been applied.
Sec 9 of the Coroners Act: The coronial system should operate in a fair and efficient manner.
GROUNDS OF APPEAL:-
That the coroner has not considered a life threatening Neuroleptic Malignant Syndrome that Robena had. … This evidence has been put before the Coroner and ignored.
The plaintiff believes the new facts presented to the Coroner, so alter the reasons for the cause of death as to make the relevant finding unsustainable.
Orders sought:-
That the decision is set aside.
That a new investigation must be instituted and an independent psychiatrist consulted for an opinion. That the [NMS] must be considered and investigated. That the history from February 2000 at Maroondah Hospital including the ICU admission are reviewed by this psychiatrist. That the plaintiff is given the opportunity to make a submission and provide information to the reviewing psychiatrist regarding past episodes.
That the locum Manish Agaskar’s statement is followed with the fact that he had told an untruth regarding the time he arrived. That he did not stay to speak to two night time Carers coming on after 11.15 at night. That the night time carer arrived at 7pm and was in the 3rd bedroom while Manish Agaskar was there. That he did not speak to Michael. That an insertion is made to say that the plaintiff has sworn that the Locum did not give the option of an ambulance.
That the Coroner’s statement regarding the plaintiff is removed completely. There is no reason for it to be there. It is not truthful. It reflects badly on the plaintiff who was doing her absolute best in shocking circumstances. A domestic home is not the place for a mentally ill person who is aggressive.
In addition to the grounds set out in the Notice of Appeal, Mrs Mortimer set out further grounds in her submissions:
(1)The Coroners Act Sec 77.3 (a) there are new facts and circumstances, and (b) it is appropriate to reopen the investigation. [This ground in effect, repeats the grounds set out in the Grounds of Appeal].
(2) The Coroners Act 2008. 25, 3(b) … the Coroner…failed to get blood and do her creatinine kinase levels … failed to instruct the pathologist to test the bowel contents for blood … failed to ensure any liver problems were investigated. Essential pre conditions were not followed. That an error of law has come about because the investigation was not exhaustive.
[3] Tests that should have been done [were not done] … Certiorari is the only remedy.
(4)The locum Manish Agaskar had lied in his statement to the coroner. This statement has been repeated as fact. The plaintiff had no opportunity to comment prior to the decision being made.
(5)[T]he Coroner has used The Coroners Act 2008 Sec 67(3) to make comments about the plaintiff … these statements are not factual and based on hearsay evidence … the rules of natural justice (procedural fairness) have not been applied.
(6)The Coroner has commented that except for the fact Robena was sent home on 5th [December] in impending renal failure that overall her management was good! Also that had she been treated on the 5th that this may not have prevented her death. This is pure speculation and not based on any fact.
…
The Charter of Human Rights and Responsibilities Act 2006, Part 2/8(2) Every person has the right to enjoy his or her human rights without discrimination.
(7)… Reopening an Investigation … There were new facts and circumstances which were ignored. Procedural fairness was not afforded to the plaintiff.
Question of law
The proceeding before me is an appeal pursuant to s 84 of the Act. By s 87 of the Act, the appeal must be founded on a question of law. It is not a judicial review. Accordingly, it is necessary to precisely identify the question of law on which the appeal is brought.
What is set out under the heading ‘Question of law’ in the Notice of Appeal seems to be that the Deputy State Coroner’s finding of fact that ‘I am not satisfied that there are new facts and circumstances’ is wrong, and that the error emerged by virtue of the Deputy State Coroner ignoring ‘additional information and compelling evidence’ put by Mrs Mortimer. Further, a common thread running through the grounds set out in Mrs Mortimer’s submission is that a lack of procedural fairness or a lack of natural justice led to an error of fact (with respect to the Original Finding) which could be characterised as an error of law as that expression is used in s 87 of the Act.
The modern statement of the concept of ‘natural justice’ connotes or incorporates the concept of ‘procedural fairness’ although the concept of ‘natural justice’, depending upon the circumstances, may have a wider purview as it also embraces requirements of rationality and logically probative evidence. Accordingly, I have discussed these two concepts as though the expressions are interchangeable in the circumstances of this appeal.
The necessity for precision to properly enliven the Court’s jurisdiction was set out in Osland v Secretary to the Department of Justice, where the High Court held that:
The questions of law are not to be distilled from the grounds of appeal. What Gummow J said of s 44 of the Commonwealth AAT Act in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation is true also of s 148: ‘The existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.’[1]
This statement has been cited with approval and applied in decisions of this Court.[2] In Commissioner of State Revenue v STIC Australia Pty Ltd,[3] the Court considered an appeal from a decision of VCAT which was also required to be based on a question of law. Davies J said:
The requirement that the leave of the Court be obtained in order for a party to appeal a decision of the Tribunal also evidences the Legislature’s intention that the question of law as framed must be one that is supported by the proposed grounds of appeal. In other words, the proposed notice of appeal must disclose that the Court’s jurisdiction to hear the appeal from VCAT is enlivened by the notice of appeal. The leave requirement is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal. The question of law is framed by the grounds. Where the grounds do no more than indicate that the subject matter of the proposed appeal invites reconsideration of the merits of the decision, the jurisdiction of the Court is not enlivened, even though the question of law identified may be expressed in judicial review terms. The proposed notice of appeal must identify that the issues sought to be agitated on the appeal raise a question of law. If the question of law, properly analysed, is not a question of law, the form of its expression does not turn it into a question of law.[4]
[1](2010) 241 CLR 320, 333 (footnotes omitted). Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides for an appeal from VCAT on a question of law.
[2]See, eg, Hoe v Manningham City Council [2011] VSC 37, [3], [4]; Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608, [9]–[10].
[3]Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608.
[4]Ibid [10].
The Notice of Appeal does not identify a question of law which could go forward. However, as Mrs Mortimer is representing herself, it is appropriate that I consider what is set out under the heading ‘Question of law’, and the grounds of appeal in both the Notice of Appeal and the submissions filed by Mrs Mortimer, to determine whether I can distil or reformulate a question of law and rehabilitate the appeal. Accordingly, the primary issue which I need to determine is whether the Notice of Appeal sufficiently identifies a question of law. If I am able to identify any question of law then I need to turn my attention to the criteria set out in rr 58.39(8)(b), (c) of the Supreme Court Rules.
Before dealing with each ground of appeal individually, it is useful to identify and discuss the major platforms of Mrs Mortimer’s appeal. Those platforms are:
(a) a lack of procedural fairness;
(b) a lack of natural justice; and
(c) an error of fact
which culminated in an error of law as that expression is used in s 87 of the Act.
Error of fact
In Thales Australia Ltd v Coroners Court of Victoria,[5] in an application against the findings of a coroner pursuant to s 83 of the Act, Beach J stated:
[5][2011] VSC 133.
[I]t is to be remembered that a question of law is not involved in the decision simply because a tribunal or court makes one or more findings of fact that are not supported by evidence, nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound. Like the view taken by Phillips J in Nikolik v Schultz … the present proceedings seem to me to be a case where Thales has laboured to convert what was essentially a question of fact into a question of law. To use the words of Phillips J:
Such attempts have not gone unnoticed by the courts which have tended to deprecate the practice of ‘attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by ‘some other body’ …[6]
[6]At [66].
Beach J further said:
Remembering that one is looking at these proceedings from the perspective of whether there has been an error of law (and not whether there has been some error of fact), it is for the Coroner (and not this Court) to find the facts …
…
Reasonable minds might come to different conclusions (or indeed conclude that a particular determination was wrong in fact). However, that is not to say that a particular conclusion (…) was not open.[7]
[7][2011] VSC 133, [58]–[59].
Notwithstanding the warning set out by Beach J, there are circumstances where error in finding facts may constitute an error of law. Those circumstances are conveniently summarised by the following passage:
There is a limited scope for a decision-maker to commit an error of law when finding the primary facts. Finding ultimate facts from which there is literally no evidence, and making inference from intermediate facts for which there is no evidence, have always been errors of law. Whether there is any evidence has always been a question of law. Those propositions are uncontroversial.[8]
[8]Mark Aronson & Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) 206, citing Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418.
In Azzopardi v Tasman UEB Industries Ltd,[9] Kirby P (as his Honour then was) said as follows:
What follows from this review concerning the test that should be applied in this Court to a challenge to the process of fact-finding by the compensation judge? The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself; expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge’s fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. … Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence.[10]
[9](1985) 4 NSWLR 139.
[10]At 151.
At 155–6 of Azzopardi v Tasman UEB Industries Ltd, Glass JA (with whom Samuels JA agreed) also said:
To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the [Workers’ Compensation Act 1926 (Cth)] does not allow this Court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law.
In Trawl Industries v Effem Foods Pty Ltd, Samuels JA said of interfering with a conclusion of fact:
The High Court requires a very strict test to be satisfied before an appellate court is authorised to review such a finding. In Brunskill (at 844; 56), it expressed the issue in terms of “whether the decision of the learned trial judge can be seen to be clearly wrong on grounds which do not depend merely on credibility; for example, on the ground that the evidence which was accepted was inconsistent with established facts or was glaringly improbable”. I think, with respect, that there is great practical difficulty in distinguishing between a “wrong” conclusion and a “clearly wrong” one: see Chambers v Jobling (1986) 1 NSWLR 1 at 20, citing Walsh J in Edwards v Noble (1971) 125 CLR 296 at 318. No doubt, this explains the tendency in the decisions of this Court to focus upon whether a conclusion was “glaringly improbable” or “inconsistent with established facts”, even though the Court in Brunskill treated those instances as only examples of conclusions which were “clearly wrong”.[11]
[11](1992) 27 NSWLR 326, 348–9.
In Ford v Transport Appeal Board (NSW),[12] Rogers J was dealing with a judicial review (not appeal) of decisions respectively of the Transport Appeal Board and the State Rail Authority of New South Wales. There were a number of grounds including ‘irrationality’. At [9] Rogers J cited Lord Diplock in Council of Civil Service Unions v The Minister for the Civil Services:
By ‘irrationality’ I mean what can now be succinctly referred to as the ‘Wendsbury unreasonableness’, (Associated Provincial Picture Houses Ltd v Wendsbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience will be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court’s exercise of this role, resort I think is today no longer needed to Viscount Radcliff’s ingenious explanation in Edwards v Bairstow [1956] AC 14 of irrationality as a ground for a Court’s reversal of a decision by ascribing it to an inferred, though unidentified mistake of law by the decision-making. …[13]
[12](1987) 18 IR 163.
[13][1985] 1 AC 374, 410.
In relation to each ground relying upon incorrectness, Mrs Mortimer does not demonstrate that the finding that ‘I am not satisfied that there are new facts and circumstances’ was irrational or even was simply not open. At its highest, Mrs Mortimer contends that the Deputy State Coroner was wrong by not accepting that death resulted from NMS or that NMS was a contributing factor.
Mrs Mortimer was a former registered nurse with extensive experience and had, subject to some difficulties with the Guardianship Board, taken it upon herself to care for her sister. Notwithstanding her obvious competence as a former registered nurse, Mrs Mortimer is not an expert witness. Although the distinction between ‘fact’ and ‘opinion’ can sometimes be blurred, a finding as to cause of death is an opinion based upon a review and consideration of the attendant facts.
Mrs Mortimer is prevented from offering any opinion for two reasons. First, although I accept that Mrs Mortimer was a competent registered nurse, that of itself is insufficient to demonstrate that she has ‘specialised knowledge based on the person's training, study or experience’ so as to permit the giving of evidence of an opinion ‘that is wholly or substantially based on that knowledge.’[14] Secondly, expert evidence as to opinion must be objective and be available to assist the Court, not to constitute an argument or submission. Understandably, Mrs Mortimer, even if she had the appropriate expertise and the foundation was laid pursuant to Order 44 of the Supreme Court Rules, could hardly be expected to present opinions in an unbiased manner.
[14]Section 79 of the Evidence Act 2008 (Vic).
Even if Mrs Mortimer’s opinion as to the cause of death were to be accepted, that opinion does not assist her. Acceptance of the soundness of the opinion does not bear on the issue of whether the refusal to reopen the finding led to an error of law. What is germane is that the Deputy State Coroner considered Mrs Mortimer’s contention and referred the same to HMIT for further consideration. Mrs Mortimer does not demonstrate why it was not open for the Deputy State Coroner to rely upon the further consideration by HMIT or, even accepting her opinion, why it was not open to accept the reaffirmation of the Original Finding.
Although specification for grounds such as ‘lack of procedural fairness’ or ‘lack of natural justice’ may be blandly stated as leading to a question of law on which an appeal may be brought, it is important to analyse each ground to identify how such ground is supported by the material upon which the Deputy State Coroner relied.
Natural justice and procedural fairness
Coroners must conduct investigations in a fair and efficient manner,[15] comply with the rules of natural justice[16] and act judicially. The rules of natural justice are flexible and vary based on the circumstances of the case. Additionally, coroners must determine the content of those rules in each case.[17] R v South London Coroner: Ex parte Thompson[18], Salemi v MacKellar(No 2),[19] and Wiseman v Borneman,[20] also support the requirement that the Deputy State Coroner determine what procedures are apt in the circumstances of publishing a finding into death without an inquest and in determining not to reopen the investigation.
[15]Section 9 of the Act.
[16]Annetts v McCann (1990) 170 CLR 596.
[17]Kioa v West (1985) 159 CLR 550.
[18][1982] 126 SJ 625.
[19](1977) 137 CLR 396, 444.
[20][1971] AC 297, 308.
In Hall v University of New South Wales,[21] McClellan J referred to Kioa v West and then garnered together some of the elements of procedural fairness. At [68] his Honour said:
[21][2003] NSWSC 669.
A fundamental element of procedural fairness is the hearing rule or the ‘right to be heard’. The elements of the right will vary in particular cases but will generally include some or all of the following:
·a reasonable opportunity to make submissions (Annetts v McCann (1990) 170 CLR 596) …
·Notice of various matters (Andrews v Mitchell [1905] AC 78 at 80) …
…
·the subject matter (Kanda v Government of Malaya [1962] AC 322 at 377) and adverse consequences of the decision …
…
·disclosure of any adverse conclusion not obviously open on the known material: see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591) …
The obligation to provide natural justice does not require the Coroner to give ‘a running commentary’ on his or her assessment of the evidence or the findings he or she is considering making. Natural justice for a person subject to the risk of an adverse finding requires the Coroner to give that person an opportunity to make submissions. It does not require the Coroner to warn the person that a specific adverse finding is under contemplation and to invite a response.[22]
[22]Onuma v Coroners Court of South Australia (2011) 111 SASR 382.
In appropriate cases, a coroner may limit the involvement of an interested party to particular issues in the case. The party will then only have a right to make submissions or question witnesses (if an inquest is held) where the party’s interest is engaged.[23]
[23]Inquest into the death of Tyler Cassidy — Orders made 4 March 2010.
In Priest v West,[24] Maxwell P and Harper JA explained that the obligation to make certain statutory findings, if possible, requires the Coroner to pursue all reasonable lines of enquiry. This is supported by the waiver of the rules of evidence, which ensures that a coroner has the power to conduct as broad an investigation as is necessary. The waiver of the rules of evidence require the Coroner to take an expansive approach to the investigation.
[24][2012] VSCA 327.
Section 62(1) of the Act facilitates a broad investigation:
62 Coroner not bound by rules of evidence
(1)A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit.
It is said that the Coroner’s role is unlike that of a judicial officer in a criminal or civil trial. While a coroner must conduct an inquest in accordance with procedural fairness, he or she may play an active role in directing the inquest. A coroner may:
(a) gather and present evidence;[25]
(b) seek out relevant witnesses and call for submissions;[26] and
(c) admit and act upon evidence that may not be admissible in criminal or civil proceedings.[27]
[25]See, eg, Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29.
[26]See, eg, Macedon Ranges Shire Council v Romsey Hotel & Anor (2008) 19 VR 422.
[27]Dommadgee v Clements [2006] 2 Qd R 352.
In R v South London Coroner; Ex parte Thompson, Lord Lane said:
Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.[28]
[28]The Times, 9 July 1982 (Quoted in Annetts v McCann (1990) 170 CLR 596, 616).
Grounds of appeal
I will now turn specifically to each of the grounds of appeal.
Ground 1 as per the plaintiff’s submission
The first ground relied upon in Mrs Mortimer’s submission filed 11 September 2014 is that information provided by her was not considered by the Coroner. It makes the Coroner’s cause of death unsustainable. There is a denial of procedural fairness not to consider this vital evidence. This has led to an error of law. The cause of death is wrong and is only based on some of the facts. The only remedy is certiorari.
Putting aside the remedy available, Mrs Mortimer submits that new information included:
(a) that Robena suffered with NMS;
(b) information in the form of a discharge summary, that Robena had a neuroleptic malignant reaction in 2000;
(c) records from 1985 proving Robena had NMS due to Serenace;
(d) records from 2000 showing creatinine kinase (‘CK’) levels were 13,450 (the normal level is 0-170);
(e) the chemical composition of Serenace and Seroquel both contain piperidinyl;
(f) the Coroner had not requested her blood and had not done CK levels; and
(g) this information was not considered by the Coroner.
During the course of submissions Mrs Mortimer also took me to information about sepsis (blood infection and septic shock) and made submissions about what tests were required to be done and what tests were not done.
Mrs Mortimer also made submissions that the Deputy Coroner was wrong about the drugs taken in that Cogentin had only been taken occasionally and that the symptoms of each of the sepsis and NMS are similar so that NMS can only be excluded by checking CK levels.
The Deputy State Coroner did not hold an inquest and it has not been submitted that he was required to do so. Section 52 of the Act provides there are conditions for requiring the Coroner to hold an inquest. In circumstances not covered by ss 52(2) and (3) of the Act, it is at the Coroner’s discretion whether to hold an inquest into a death.
In this particular matter the Deputy State Coroner exercised the discretion not to hold an inquest. Accordingly, the concept of procedural fairness must be tailored to suit the circumstances. The Deputy State Coroner was not bound to permit Mrs Mortimer to confront and cross-examine those persons on whom the Coroner relied. It was sufficient that Mrs Mortimer be given the opportunity to put submissions or matters to the Coroner. Each of the Finding into Death and the reasons for refusing the application under s 77 of the Act demonstrate that process was followed.
In relation to the Original Finding, the same included amendments to take into account matters raised by Mrs Mortimer. In paragraph 2 of the Original Finding, the Coroner referred to the dispute by Mrs Mortimer as to the circumstances of admission. Paragraph 5 noted that ‘Mrs Mortimer disputes the statement of Dr Agaskar as to the advice being given regarding available options, the time he spent at the premises and who he spoke to’. At paragraph 11, the Coroner took into account Mrs Mortimer’s disagreement about the significance of Cogentin.
Mrs Mortimer also produced material which demonstrated that she wrote to the Deputy State Coroner on 13 August 2009 with respect to her sister’s CK levels.
In any event, there is no suggestion that Mrs Mortimer did not have the opportunity to make submissions and put material before the Coroner prior to the publication of the Determination. That Determination occurred as a result of the application by Mrs Mortimer to set aside the 2013 finding into her sister’s death.
It is clear that the HMIT considered NMS and remained of the opinion that Ms Lloyd died of enterococcus faecalis sepsis and acute renal failure. The consideration by HMIT is evident from paragraph 4 and from where the Deputy State Coroner has set out at paragraph 6:
In this instance, based on Mrs Mortimer’s concerns, the matter was again referred to HMIT for review. On 2 April 2014, HMIT concluded that Ms Lloyd’s cause of death remained entero[c]occus faecalis sepsis and acute renal failure and not NMS, thus no new facts and circumstances were established.
The consideration by HMIT is not of itself open to appeal. Even so, it has not been demonstrated, with all due respect to Mrs Mortimer’s argument and considered opinions, that there is any factual or other error in the consideration. Alternatively, it cannot be determined that the Deputy State Coroner was either unreasonable or irrational in relying upon the HMIT consideration. It cannot be and has not been put by Mrs Mortimer that such reliance was ‘so outrageous in its defiance of logic or accepted mortal standards that no sensible person who had applied his mind to the question to be decided could have arrived at’ the decision.[29]
[29]Council of Civil Service Unions v The Minister for the Civil Services [1985] 1 AC 374, 410 (Lord Diplock).
Mrs Mortimer was entitled to put NMS and attendant material to the Coroner in support of the application pursuant to s 77 of the Act. If I were to accept Mrs Mortimer’s opinion as to the cause of death or as to matters which required further investigation to establish the cause of death, which I do not for the reasons previously set out, Mrs Mortimer has not adduced admissible material which would enable any Judge hearing this appeal to consider if the HMIT review was not open as that expression was used by Beach J in Thales. Mrs Mortimer has not produced admissible material which would enable any Judge hearing this appeal to consider if the HMIT review was unreasonable or irrational. At its highest, Mrs Mortimer disagrees with the exclusion of NMS as a factor.
Ground 2
Mrs Mortimer contends that the Coroner did not obtain tests as authorised by s 25(3) of the Act. Mrs Mortimer submits that the Coroner failed to obtain her deceased sister’s blood and her CK levels, failed to instruct the pathologist to test the bowel contents for blood and failed to ensure any liver problems were investigated. This ground and the grounds following relate to the Original Finding rather than the appeal under s 84 of the Act before me. Even if there were to be an appeal pursuant to s 87 of the Act (which there is not) the same criteria applies. That is, the appeal must be based on a question of law.
Section 25(3)(b) of the Act is facilitative rather than mandatory. It is a discretionary power enabling the Coroner, if he or she thinks fit, to direct tests to be carried out. Any Court would be slow to scrutinise the exercise of the discretion. In Australian Coal & Shale Employees’ Federation v Commonwealth, Kitto J said of a discretionary decision, rather than merely a discretionary power:
[C]ases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[30]
[30](1953) 94 CLR 621, 627.
Assuming that the failure to exercise the power to obtain further tests is an appealable question of law (which it is not in relation to the refusal to reopen) the Deputy State Coroner was entitled to refer the medical investigation to HMIT and to consider the pathology report. Neither the further HMIT investigation nor the pathology report required further tests or investigations. The findings in the pathologist’s reports are not of themselves amenable to appeal. Even so, it has not been demonstrated that there is any factual error in either of the findings or reports. Alternatively, it cannot be argued that acting upon the pathology report and/or HMIT findings, nor the failure to require further tests is either unreasonable or irrational. Given that NMS is the major issue in the request to reopen, the Deputy State Coroner is entitled to rely upon the advice of the pathologist and HMIT both of which did not advise that further tests were required.
More poignantly, this ground is a complaint about the initial finding and not germane to the refusal to reopen. However, if the failure to call for tests could be characterised as a ‘new fact or circumstance’ within the meaning of s 77 of the Act, the ground does not identify sufficiently or at all miscarriage of the discretion to call for tests so as to constitute a question of law on which the appeal may be brought. Further, given that the Deputy State Coroner is entitled to have regard to the pathologist and HMIT, neither of whom recommended further testing, this ground is not arguable.
Ground 3
Again this is a matter which does not relate to the appeal before this Court. Mrs Mortimer submitted that relevant factors were not taken into account (in making the Original Finding) and relied upon s 29 of the Act. Section 29 is the provision that requires the Principal Registrar of the Coroners Court to provide information to the investigators which would be necessary or helpful for the medical investigator performing the medical examination to know. Mrs Mortimer contends that ‘it appears the VIFM knew nothing about the deceased’s life threatening illness [NMS]’; accordingly, that was not taken into account. Mrs Mortimer contends that this led to an error of law on the face of the record because vital information was missed or not considered and that certiorari is the only remedy. I reiterate that this is not a judicial review. In any event, insofar as the ground relates to the Determination, it is clear from the Determination that the HMIT’s conclusions were given due consideration.
In Korp v Deputy State Coroner,[31] Gillard J considered a review pursuant to Order 56. Gillard J considered whether the ‘record’ included a coroner’s reasons for his decision. Gillard J found that they did so.[32] In considering a judicial review the Court confines itself to the record. Gillard J referred to the sixth edition of Professor Wade’s Administrative Law, where the learned author said:
A decision which is erroneous on its face, perhaps because it reveals some misinterpretation of the law, can be quashed even on the assumption that it is within jurisdiction and therefore involves no excess of power.[33]
[31][2006] VSC 282.
[32]Ibid [47].
[33]Ibid [49] citing Administrative Law (Oxford University Press, 6th ed, 1988) 45.
However, Gillard J determined:
The error must be an error of law which is apparent on the face of the record. In addition, it must be fundamental to the decision. But as Lord Denning has said, the Court will decline to intervene in the absence of ‘a real error of law’, meaning something more than a borderline question.[34]
[34]Ibid [50].
Using Gillard J’s test, I cannot identify any error on the face of the record which would expose the Determination to review. At its highest, this ground is that VIFM knew nothing about this ‘life threatening illness’ as tests which Mrs Mortimer contended were appropriate were not carried out. Such an observation ignores the consideration by HMIT as referred to in paragraph 6 of the Determination.
Disagreement with what information was necessary or obtained or forwarded or not forwarded to VIFM does not constitute a question of law as that expression is used in r 58.35(1)(b)(iii) of the Supreme Court Rules, which founds an appeal. It has not been demonstrated why it would be open to any hearing judge to determine that the Deputy State Coroner made an error in law by not furnishing information about ‘this life threatening illness’. Further, given the consideration by HMIT and reference to it in the Determination the contention put by Mrs Mortimer is plainly not sustainable.
Ground 4
Mrs Mortimer contends that the locum lied in his statement to the Coroner. In effect, paragraph 5 of the Original Finding includes amendments to note that Mrs Mortimer disputes the locum’s statement.
This ground either relates to the Original Finding or, given the dispute was noted in the Original Finding the same could not be a ‘new ground or circumstance’ as that expression is used in s 77 of the Act.
I do not accept that reference to Dr Agaskars’ conduct and discussion about management plans is anything more than background. I do not accept that such reference is a platform for, or an integral element for, the finding as to death. However, if I am wrong about such observations, as referred to herein under the heading of ‘Procedural fairness and natural justice’, in the appropriate circumstances, Mrs Mortimer ought to have been given fair opportunity to respond to the observations about Dr Agaskars. That does not mean that Mrs Mortimer was entitled to confront or to cross-examine Dr Agaskars.[35] It is axiomatic that an opportunity to comment on Dr Agaskars’ statement was afforded as the dispute was noted in the Original Finding.
[35]See, eg, the majority decision of O’Rourke v Miller (1985) 156 CLR 342, which held that to apply the principles of natural justice, it was enough for the appellant to be informed of the substance of allegations against him and to be given a fair opportunity to answer them. Application of those principles did not require the decision-maker to give the appellant an opportunity to confront and cross-examine those who made the allegation against the appellant.
Ground 5
Mrs Mortimer contends that the Deputy State Coroner has used s 67(3) of the Act to make comments about the plaintiff — that these statements are not factual and based on hearsay evidence.
This ground does not relate to the refusal to reopen. Putting that to one side, it is clear from the comments made pursuant to s 67(3) of the Act that Mrs Mortimer was afforded the opportunity to address the substance of the matters set out in the Original Finding. Procedural fairness and natural justice were afforded. Mrs Mortimer has not sought to argue that the substance of the observations is not appropriate for comment pursuant to s 67(3) of the Act. Such comments are appropriate if such comment is ‘connected with the death’ as that expression appears in s 67(3) of the Act. Beach J in Thales said ‘the words “connected with” are capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote”’.[36]The platform for this ground is that the comments are not factual and based upon hearsay. I refer to s 62 of the Act. The Deputy State Coroner is not bound by rules of evidence even if an inquest were held.
[36]At [75].
The reference to Dr King under this ground is incongruous. However, to the extent that Mrs Mortimer contends that Dr King’s observations are not sustainable or are wrong, I refer to and repeat my observations with respect to the pathologist’s findings and reports.
It has not been demonstrated why it would be open to any hearing judge to determine that the Deputy State Coroner made an error in law in basing comments upon hearsay, particularly where Mrs Mortimer had the opportunity to set out her observations as to the care regime which were incorporated into the comments. In so far as comments are findings of fact, Mrs Mortimer does not set out for a hearing judge why such judge should determine that such facts were not open or the finding was irrational. Further, the matters referred to pursuant to this ground cannot constitute new facts and circumstances as that expression is referred to in s 77 of the Act.
Ground 6
This ground relies upon the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) s 8(2). However, during submissions Mrs Mortimer agreed that it was an observation about her sister’s treatment rather than a ground relied upon as to this appeal. Accordingly, I do not need to consider this ground further.
Ground 7
The cause of death is not based on facts that are at hand
In effect, the matters set out under this ground mirror those in ground 1 and I do not need to deal with them any further.
Conclusion
I determine on the basis of what I have set out, that no point of law has been identified. Nor, after consideration of the grounds of appeal, could the Notice of Appeal be rehabilitated to identify a point of law. Further, I determine that even if an appeal ground could be formulated by relying upon a failure to find facts as contended for by Mrs Mortimer, with the attendant failure to afford procedural fairness or natural justice or by virtue of the Deputy State Coroner failing to procure any necessary reports or tests, those failures do not constitute an arguable case on appeal, and to refuse leave would not impose any substantial injustice.
The appeal is dismissed.
---
2
9
0