Onuma v The Coroner's Court Of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal)
ONUMA v THE CORONER'S COURT OF SOUTH AUSTRALIA
[2011] SASC 218
Judgment of The Honourable Justice Kelly
9 December 2011
MAGISTRATES - CORONERS - POWERS OF SUPERIOR COURT - QUASHING AND CORRECTING INQUISITIONS AND VERDICTS: AND REVIEW
Appeal against findings and recommendations of the Coroner’s Court - Inquest into the deaths of two women who died within months of each other after undergoing surgery performed by the appellant - nature of the appeal - powers and duties of the Coroner under the Coroners Act 2003 (SA) - grounds for interfering with Coroner's findings - whether finding of cause of death of one woman accurate – whether certain findings and recommendations were ultra vires - whether appeal lies to the Supreme Court from a recommendation made by the Coroner’s Court - whether the appellant was afforded procedural fairness during the inquest.
Held: cause of death of one woman inaccurate and incomplete - no evidence to justify comments concerning the competence and qualifications of the appellant to conduct the surgery performed on the two women - no right of appeal from a recommendation of the Coroner - appellant was afforded procedural fairness during the inquest - appeal allowed on grounds 1, 2, 3, 6, 7 and 11.3 - grounds 5, 8, 9, 10, 11.1 and 11.2 dismissed - not necessary to decide whether findings made beyond power of court (ground 4).
Coroners Act 2003 (SA) s 3, s 13, s 21, s 25 and s 27, referred to.
Annetts v McCann (1990) 170 CLR 596; Saraf & anor v Johns (2008) 101 SASR 87; Keown v Khan [1999] 1 VR 69; Anderson v Blashki [1993] 2 VR 89; R v South London Coroner; Ex parte Thompson (The Times, 9 July 1982); WRB Transport v Chivell (1998) 201 LSJS 102; Momcilovic v The Queen [2011] HCA 34; Re State Coroner; Ex parte Minister for Health (2009) 261 ALR 152; Szbel v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, considered.

ONUMA v THE CORONER'S COURT OF SOUTH AUSTRALIA
[2011] SASC 218
Miscellaneous Appeal
KELLY J.
Introduction

The appellant appeals from the findings dated 5 August 2011 of the Coroner’s Court after an inquest into the death of two women. The Attorney‑General intervened in the proceedings on the basis that the judicial powers of the Coroner’s Court are in question on this appeal and the appeal raises issues of public importance.
There are eleven grounds of appeal some of which raise the issue of the jurisdiction of the Coroner and others which raise the status of any recommendations made by the Coroner under the provisions of the Coroners Act 2003 (SA) (“the Act”).
Nature of the Appeal
Before turning to the specific grounds of appeal it is necessary to say something about the nature of an appeal from a finding of the Coroner’s Court.
Section 27 of the Act confers jurisdiction on the Supreme Court in relation to appeals from findings of an inquest. Section 27 relevantly states:
27—Appeals from findings made on inquests
(1) The Attorney-General or a person who has a sufficient interest in a finding made on an inquest may, subject to this section and in accordance with the rules of the appellate court, appeal to the Supreme Court against the finding.
(2) The appeal lies to the Supreme Court constituted of a single Judge (but the Judge may, if the Judge thinks fit, refer the appeal for hearing and determination by the Full Court).
…
Section 27(5) and (6) of the Act govern the powers of the Supreme Court on an appeal:
(5) On an appeal, the appellate court may, if the interests of justice so require, re-hear witnesses or receive fresh evidence.
(6) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm or set aside the finding subject to the appeal;
(b)it may substitute a finding that appears justified by the evidence;
(c)it may order that the inquest be re-opened, or that a fresh inquest be held;
(d)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
In Saraf & Anor v Johns[1] Debelle J identified the nature of an appeal brought under s 27 of the Act as one limited to correcting a finding for which there was no evidence or a finding that was not reasonably open on the evidence.
[1] Saraf & Anor v Johns (2008) 101 SASR 87.
Debelle J observed:[2]
As the function of the Coroner's Court is confined to making a finding or findings as to the cause of death or other prescribed event the subject of the inquest, this Court should limit its role to correcting a finding for which there was no evidence or a finding that was not reasonably open on evidence.
…
In my view, the intent of the legislation is to enable this Court to correct a perverse verdict, that is to say, to correct findings for which there was no evidence or that was not reasonably open on the evidence. If on any reasonable view of the evidence the Coroner's decision can be supported, the appellant who complains of that decision cannot have it set aside and have another decision that the appellant desires substituted for it.
[footnotes omitted]
[2] Saraf & Anor v Johns (2008) 101 SASR 87 at [21]-[23].
In reaching that conclusion his Honour was influenced by decisions of the Supreme Court of Victoria[3] concerning s 59 of the Coroner’s Act 1985 (Vic) which contains provisions which invest the Victorian Supreme Court with powers effectively as wide as those given to this Court by s 27 of the Act. I have approached the issues on this appeal on the basis that the statement of principle by Debelle J in Saraf concerning the powers of this Court on an appeal from the Coroner’s Court is correct, with one qualification, which I shall come to later, concerning the power of this Court to set aside a recommendation made by the Coroner.
[3] Keown v Khan [1999] 1 VR 69; Anderson v Blashki [1993] 2 VR 89.
Issues on Appeal
The first two grounds of appeal relate to the findings of the cause of death of one of the two women, namely Glenys Anne Hillman.
Each of grounds 3, 5, 6 and 7 are complaints about comments (“the impugned comments”) made by the Deputy Coroner in the body of the reasons of the “Finding of Inquest”. In brief, the impugned comments relate to the qualifications and competence of the appellant to undertake the surgery he performed on both the deceased women.
Ground 4 is a separate complaint that the impugned comments are tantamount to a suggestion of civil liability on the appellant’s part contrary to the provisions of s 25(3) of the Act and are therefore beyond the power of the Coroner’s Court.
Grounds 8, 9 and 10 are complaints that the Deputy Coroner should not have made the three recommendations which he did.
Ground 11 is in essence a complaint that the Coroner’s Court did not afford the appellant procedural fairness before making findings and recommendations.
The appellant seeks orders setting aside certain findings and all of the recommendations made by the Coroner’s Court.
The Inquest
Before I deal with the complaints which have been made it is convenient to record briefly the context in which the inquest into the two deaths took place.
Mrs Emily Ruth Leonard was 77 years old at the date of her death on 25 November 2008. She underwent surgery for a vaginal prolapse which was carried out by the appellant on 30 October 2008 at St Andrews Hospital (“St Andrews”). She remained in St Andrews after the surgery until she was discharged on the morning of 3 November 2008. She was readmitted to St Andrews on 6 November 2008, her condition having seriously deteriorated during that intervening period. She remained in hospital until her death on 25 November 2008.
A pathologist Dr McIntyre, employed by Forensic Science South Australia, determined the cause of Mrs Leonard’s death to have been multi‑organ failure due to overwhelming sepsis resulting from a perforation of the colon during a laparoscopic gynaecological procedure.
Mrs Glenys Anne Hillman was 67 years old on the date of her death on 18 July 2009. Mrs Hillman underwent surgery for a vaginal prolapse which was carried out by the appellant on 28 May 2009 at St Andrews. She remained in St Andrews until her death on 18 July 2009.
Both women experienced faecal peritonitis due in each instance to a perforation of the bowel that was caused at some stage during their respective surgical procedures. The post-operative course of Mrs Hillman was considerably more complicated than in the case of Mrs Leonard. In Mrs Leonard’s case the perforation of her bowel was identified only after her condition deteriorated and she was taken back to hospital. In Mrs Hillman’s case the bowel perforation was identified and repaired by the appellant during the course of the original surgical procedure. The repair broke down which resulted in faecal peritonitis and a number of other complications which eventually led to the death of Mrs Hillman on 18 July 2009. The cause of Mrs Hillman’s death was the subject of a number of reports by forensic pathologists. In brief Dr Langlois, a pathologist employed by Forensic Science South Australia, expressed the cause of Mrs Hillman’s death to be:[4]
IaHypoxic/ischaemic brain injury
IbIntracerebral and subdural haemorrhage
IILeft subclavian vein thrombosis and pulmonary thromboemboli – requiring anticoagulation, Peritonitis following perforation of small bowel, Surgery for vaginal prolapse.
[4] Exhibit C4a.
At the inquest counsel assisting the Deputy Coroner (Ms Taylor) and counsel for the appellant (then Mr Stratford) represented the interests of the appellant. At the outset Mr Stratford sought and was granted permission to appear on his behalf. The inquest was conducted partly on the papers and partly by oral evidence. A number of experts were called in addition to some of the medical practitioners and specialists who were involved in the treatment of one or other of the two women. It will be necessary to return to some of that evidence in the context of specific grounds of appeal.
That is a very brief summary of the circumstances in which the inquest took place.
Grounds 1 and 2: Cause of Death of Mrs Hillman
Ground 1 is a complaint about the accuracy of the finding of the cause of Mrs Hillman’s death. Ground 2 simply sets out the finding which the appellant submits the Court should have made, about the cause of Mrs Hillman’s death.
In the Findings of Inquest the Deputy Coroner discussed all of the relevant circumstances surrounding the deaths of both Mrs Leonard and Mrs Hillman. The document concludes with two sections, one headed “General Commentary” and one headed “Recommendations”. The Deputy Coroner observed that the circumstances surrounding the deaths of both of these women were complicated and that the task of analysing the circumstances had been unusually difficult.
He then made some comments which contain the impugned comments (the subject of grounds 3, 4, 5, 6 and 7 of the appeal) and concluded by making three recommendations (the subject of grounds 8, 9 and 10). The only express “findings” to be found in the entire document are at [1.4] and [1.8] concerning the cause of Mrs Leonard’s death [1.4] and the cause of Mrs Hillman’s death [1.8].
The formal finding of the cause of death in Mrs Hillman’s case was expressed as follows:[5]
I find Mrs Hillman’s cause of death to have been hypoxic ischaemic brain injury due to an intracerebral and subdural haemorrhage as a consequence of anticoagulation given to treat a left subclavian vein thrombosis and pulmonary thromboemboli, and peritonitis following perforation of the small bowel during surgery for vaginal prolapse.
[5] Findings of Inquest at [1.8].
That wording is taken in part from the pathology report of Dr Langlois.[6] The appellant’s complaint in brief is that the finding made by the Deputy Coroner in that paragraph is incomplete as it does not identify the multiplicity of catastrophic events which befell Mrs Hillman after the surgery performed by the appellant, the combination of which ultimately led to her death on 18 July 2009.
[6] Exhibit C4a.
Discussion
Before dealing with the substance of the complaint it is convenient to examine the powers and duties of the Coroner under the Act. The powers of the Coroner are to be found in ss 13, 21 and 25 of the Act. The Coroner’s jurisdiction is to hold inquests in order to ascertain the cause or circumstances of the events prescribed by the Act.
Section 21 sets out what those prescribed events are:
21—Holding of inquests
(1)The Coroner's Court must hold an inquest to ascertain the cause or circumstances of the following events:
(a)     a death in custody;
(b)     if the State Coroner considers it necessary or desirable to do so, or the Attorney-General so directs—
(i)any other reportable death or a death that would, but for section 3(2), have been a reportable death; or
(ii)the disappearance from any place of a person ordinarily resident in the State; or
(iii)the disappearance from, or within, the State of any person; or
(iv)a fire or accident that causes injury to person or property;
(c)     any other event if so required under some other Act.
(2)However, if a person has been charged in criminal proceedings with causing the event that is, or is to be, the subject of an inquest, the Court may not commence or proceed further with the inquest until the criminal proceedings have been disposed of, withdrawn or permanently stayed.
(3)An inquest may be held to ascertain the cause or circumstances of more than one event.
Section 3(1) of the Act defines what “reportable death” means.
In the circumstances of these two particular cases the jurisdiction of the Coroner arises by virtue of s 21(1)(b)(i) of the Act. Pursuant to the definition in s 3(1)(a) of the Act, the two deaths were reportable deaths.
Under the provisions of s 25(1) of the Act the Coroner must as soon as practicable after the holding of the inquest give his findings setting out as far as has been ascertained the cause and circumstances of the death. The first matter to note is that the Act empowers the Coroner to investigate both the cause and the circumstances of a prescribed event. The Coroner must report his findings as soon as practicable and set out as far as has been ascertained the cause and the circumstances.
It was therefore the duty of the Coroner’s Court in this matter to ascertain as far as it could the cause and circumstances of the death of the two women.
The duty is subject to the direction which appears in s 25(3) of the Act that the Court must not make any findings, or suggestion, of criminal or civil liability.
A convenient starting point for any consideration of the nature and extent of the Coroner’s powers is to be found in the often quoted statement of Lord Lane CJ in R v South London Coroner; Ex parte Thompson:[7]
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 …
[7] The judgment is only reported in The Times 9 July 1982; quoted in Paul Matthews & John Foreman Jervis on the Office and Duties of Coroners 11^th Edition at page 6.
In WRB Transport v Chivell[8] this Court considered the scope of the Coroner’s powers under the Act and the meaning of the words “cause and circumstances”, used in s 21 and s 25 of the Act.
[8] WRB Transport v Chivell (1998) 201 LSJS 102.
Although WRB was decided at a time when the predecessor of the Coroners Act 2003 (SA) was in force (Coroners Act 1975 (SA)), the relevant sections in both Acts are for all practical purposes identical. Lander J (with whom both Prior and Mullighan JJ agreed) said with regard to the meaning of the word “cause”:[9]
Clearly enough, the 'cause and the circumstances' must be two different things. If it was otherwise there would be no reason for Parliament to have included both words.
The cause of a person's death may be understood as the legal cause. In determining those events which may be said to give rise to the cause of the death, the Coroner is not limited by concepts such as 'direct cause', 'direct or natural cause', 'proximate cause' or the 'real or effective cause'. Nor is the Coroner limited to a cause which is reasonably foreseeable. The cause of a person's death in respect of the Coroner's jurisdiction is a question of fact which, like causation in the common law must be determined by applying common sense to the facts of each particular case; Mason CJ, March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515.
The Coroner, therefore, has to carry out an inquiry into the facts surrounding the death of the deceased to determine what, as a matter of common sense, has been the cause of that person's death. The inquiry will not be limited to those facts which are immediately proximate in time to the deceased's death. Some of the events immediately proximate in time to the death of the deceased will be relevant to determine the cause of the death of the deceased. But there will be other facts less proximate in time which will be seen to operate, in some fact situations, as a cause of the death of the deceased. That is a factual inquiry which only has, as its boundaries, common sense.
[9] WRB Transport v Chivell (1998) 201 LSJS 102 at 106-107.
As to the phrase “circumstances of the event” Lander J went on to say:[10]
Not only does the Coroner have jurisdiction to determine the cause of a deceased's death, he also has jurisdiction to determine the circumstances of the death of any person.
That jurisdiction must be in addition to the jurisdiction given to determine the cause of the death of the deceased.
There may be some circumstances surrounding the death of the deceased which, although not operating directly as a cause of the death of the deceased, are relevant for the coroner's inquiry.
Those circumstances might explain the origin of the causes of the death of the deceased or the interaction between a number of causes of death.
The circumstances surrounding the death of the deceased may be important, for the purpose of the coroner adding to his or her findings, recommendations which might prevent or reduce the likelihood of a recurrence of a death.
[10] WRB Transport v Chivell (1998) 201 LSJS 102 at 107.
Lander J concluded:[11]
… the circumstances to be inquired into cover a much wider area of inquiry than the cause.
In my opinion, the jurisdiction given by the Act to the coroner is quite extensive. It is not limited, as suggested, to a particular inquiry into the direct cause of death of the deceased. The coroner has a jurisdiction and, indeed, an obligation to inquire into all facts which may have operated to cause the death of the deceased and as well to inquire into the wider circumstances surrounding the death of the deceased.
[11] WRB Transport v Chivell (1998) 201 LSJS 102 at 108.
As Debelle J pointed out in Saraf,[12] the Coroner in carrying out his task is not limited by concepts such as “direct cause”, “direct or natural cause”, “proximate cause”, “causa sine qua non” (the but for test) or the “real or effective cause”.
[12] Saraf & Anor v Johns (2008) 101 SASR 87.

Debelle J said:[13]
Although the Coroner is to apply common sense and experience to the task of finding the cause or circumstances of a reportable death or other prescribed event the subject of an inquest, there remains the possibility that reasonable minds may reasonably disagree as to the cause. One problem with common sense is that it is not all that common. That is an inevitable consequence of the unfortunate fact that opinions sometimes differ as to what is the common sense of the matter. In the case of the cause of a death, reasonable medical practitioners might reasonably disagree. Another factor is that a medical practitioner or other person might consciously or subconsciously seek to determine the real or proximate cause while another may have regard to the causa sine qua non or some other aspect of "the logical and metaphysical controversies that beset the idea of cause"…
[13] Saraf & Anor v Johns (2008) 101 SASR 87 at [19].
In light of these considerations I consider that it was the task of the Coroner’s Court in carrying out its duty pursuant to s 25(1) of the Act to accurately record its findings setting out the cause and circumstances of the death of Mrs Hillman, which necessarily included the unfortunate and catastrophic series of post-operative complications described in the reports, particularly in the report of Dr Langlois. It is plain from the evidence before the Coroner’s court that it was the combination and accumulation of that chain of events which ultimately led to Mrs Hillman’s death on 18 July 2009. It is not apparent why the Court’s formal finding as to the cause of death focused on only some of those events to the exclusion of others. It might be argued that the Court did in its “Findings of Inquest” traverse all of the circumstances surrounding the death, however, they were not included in the only express finding which the Deputy Coroner made about the cause of Mrs Hillman’s death at [1.8] of the document.
As Debelle J pointed out in Saraf, findings made by a Coroner are quite indeterminate as to legal responsibility. It is not for the Coroner’s Court to apportion blame or responsibility but to identify the cause and circumstances, as far as can be ascertained, of the prescribed event, which for present purposes was the death of Mrs Hillman.
The combination of factors which led to Mrs Hillman’s death were all identified in the evidence before the Court. It is difficult to understand why they were not also identified in the formal finding as to the cause of death.
Strictly speaking the Deputy Coroner’s finding is not inaccurate but incomplete. However, in all of the circumstances I consider it was the duty of the Deputy Coroner to properly identify the multiplicity of factors which contributed to the death of Mrs Hillman.
The appellant succeeds on ground 1.
Ground 2 is the appellant’s formulation of the appropriate finding which should have been made on the evidence. With one minor variation, the Solicitor‑General agreed that the suggested formulation by the appellant represented an accurate statement of the cause of death. I am prepared to adopt that formulation, in substance, for the purpose of the order I intend to make concerning the finding as to the cause of death of Mrs Hillman.
Grounds 3, 5, 6, 7 and 11.3: The Impugned Comments
It is convenient to deal with each of these grounds compendiously as they all relate to particular complaints concerning the impugned comments made in [10.3] of the Court’s findings.
For convenience the whole of [10.3] is set out below:
10.3The Court recognises and takes into consideration the fact that bowel perforations may occur during complex abdominal procedures competently performed and that bowel repairs that are also competently performed do break down, but in the light of these events, occurring as they did only months apart and in circumstances where other practitioners may well have avoided or at least minimised the risks that these surgeries presented, the Court experiences a measure of disquiet about the manner in which these surgeries were carried out. This sense of unease is compounded by the fact that not only was Mrs Hillman dealt a significant injury during her surgery, the surgical attempt to rectify that injury failed. Both of these events are said to be uncommon. That her surgery should be characterised by both of these unfortunate circumstances leads one to legitimately question the competence of the medical practitioner concerned.
The impugned comments are underlined. In essence each of grounds 3, 5, 6, 7 and 11.3 are complaints that there was no evidence or insufficient evidence to justify the making of the impugned comments.
In fairness to the appellant it should be pointed out that strictly speaking the comments in [10.3] do not amount to findings as to the appellant’s incompetence. The language used by the Deputy Coroner is quite ambiguous and really goes no further than to express a doubt which the Deputy Coroner entertained about the competence of the appellant. However, the impugned comments plainly have the capacity to reflect adversely on the appellant. In these circumstances the Solicitor-General very fairly conceded that this Court should proceed on the basis that the impugned comments are for the purposes of the appeal “findings”. In my view that concession was correct. For the purpose of determining this appeal I accept that the impugned comments in [10.3] should be characterised as findings.
The question is whether there is any evidence to support the impugned comments. In considering this question I bear in mind that the relevant standard of proof in the Coroner’s Court is the civil onus on the balance of probabilities. If there was no evidence capable of satisfying the Court to the requisite standard then in my view it was not open to the Coroner to express any measure of disquiet he might subjectively have felt or to express any doubt about the competence of the medical practitioner concerned.
For the reasons which follow I consider that there was no evidence to justify the impugned comments.
The Evidence
There was evidence before the Coroner’s Court from a number of the medical practitioners who were involved in the treatment of both Mrs Hillman and Mrs Leonard. Some of the practitioners were involved in the post-operative care and treatment of both Mrs Hillman and Mrs Leonard. There was also expert evidence proffered from Professor Dwyer, a urogynaecologist whose evidence I shall return to in another context.
In summary the evidence before the Court was that both Mrs Hillman and Mrs Leonard, for different reasons to do with quality of life issues, elected to have the surgery offered by the appellant. They were both women who had significant comorbidities however the evidence reveals that both women consented to the surgery after being appropriately informed of the risks. Both women unfortunately suffered complications which are known to occur and may well have occurred irrespective of who performed the surgery.
None of the expert opinions before the Court questioned the need for surgery, the qualifications or the competence of the surgeon, or the nature of the procedures performed on each of the women. Some of the experts with the wisdom of hindsight expressed the view that they would have preferred to take a different approach, noting at the same time that their preferred choice was informed by their particular training and experience in Australia. None of the expert opinions questioned the appropriateness of the post-operative management of either woman. It is true that the catastrophic series of post-operative complications which befell both women commenced with the operation performed by the appellant. In both cases the operative procedures performed resulted in perforation of the bowel which led to other complications. It is also true that both of the events occurred within months of each other. Statistics produced at the inquest showed that the mishaps which occurred in the case of Mrs Hillman and Mrs Leonard, namely the perforation of the bowel and in the case of Mrs Hillman the failure to repair the bowel effectively during surgery, are events which are uncommon.
However, it is significant that none of the medical practitioners called to give evidence at the inquest questioned the qualifications, skill or competence of the appellant. In response to a direct question about that topic Professor Dwyer said:[14]
Well, I think he’s obviously a very experienced gynaecologist in the area particularly of laparoscopic surgery and perhaps his interests in the treatment of prolapse and incontinence have flowed from initially that interest in laparoscopic surgery and obviously he has worked in a number of good units. He has had an ongoing interest in this area and has been to a number of courses to improve his knowledge and he has obviously managed a large number of operations dealing with these problems. So, making a general comment, I would have thought his training as a gynaecologist in this area would be more than adequate. I’m perhaps coming from the laparoscopic area as opposed to coming from the urogynaecology background. His experience in, you know, dealing with these problems vaginally may be less and perhaps that may be part of the reason why he favoured one approach over the other but. As a general gynaecologist practising in Australia, doing pelvic floor work, I would have thought, you know, he has had good training and good experience.
[14] Transcript at 277.
Professor Dwyer was also asked to comment on the appellant’s evidence that in the whole of his career to date he believed he had created four to five bowel injuries:[15]
Four to five bowel injuries with the type of laparoscopic procedures both for treatment of prolapse and for treatment of other pelvic floor conditions does not sound excessive to me.
[15] Transcript at 278.
Professor Dwyer later said that patients with significant complications such as the presence of multiple adhesions were more complicated and the rate of bowel injuries in particular would be likely to be higher in those cases.[16]
[16] Transcript at 278.
Having read the whole of the evidence I cannot agree that the occurrence of the two deaths, albeit within several months of each other after complex bowel surgery performed by the same surgeon, was, without more, a proper basis on which to question the competence and skill of the particular surgeon. As Professor Dwyer himself observed it is very difficult to say that something has been done incorrectly or wrongly on the basis of one-off, or two-off, events. It follows that in my view there was nothing in the material before the Court which justified the impugned comments made in [10.3].
That is not to say that the Court ought to have, as the appellant submits in ground 5, gone further and found that the appellant was appropriately qualified and did possess the necessary skill and competence. The thrust of the expert evidence, particularly from Professor Dwyer, was that the surgery performed by the appellant was complex abdominal surgery in a highly specialised area, and as Professor Dwyer put it, “not an area for people to dabble in”.[17] Some of the experts called at the inquest indicated they would have adopted a different approach. The comments made by the Deputy Coroner in [10.1] and [10.2][18] were plainly based, at least in part, on some of the evidence given by the appellant and by the experts, in particular the evidence of Professor Dwyer. In the circumstances I do not consider the Deputy Coroner was obliged to go further. In my view there was no evidence before the Court to justify a finding on this topic one way or another.
[17] Transcript at 266.
[18] Set out in full in [65] herein.
For these reasons I uphold grounds 3, 6, 7 and 11.3 but not ground 5.
Grounds 8, 9 and 10
Grounds 8, 9 and 10 complain of each of the recommendations made by the Court in [11] of the findings.
The Deputy Coroner’s recommendations were:
11.2I make the following recommendations:
1)    That the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) consider promulgating a requirement that members and Fellows of the College who profess to have the competence to perform, and who do perform, abdominal vaginal prolapse surgery of the kind with which this Inquest is concerned, demonstrate to the College that they have the necessary training, experience and competence to perform such surgery safely and that they demonstrate this by way of examination. Such a demonstration should include convincing evidence that the practitioner is able competently to perform a proper risk assessment in respect of the nature of the surgery to be performed that should include consideration of risk posed by the presence, or potential presence, of adhesions within the abdomen and consideration of whether a drain should be placed following abdominal surgery, particularly where diathermy has been used to divide adhesions. The practitioner should also be required to demonstrate that he or she has the necessary skill to competently perform the repair of an injured bowel if necessary;
2)    That RANZCOG consider promulgating a requirement that members and Fellows of the College who profess to have the competence to perform, and who do perform, abdominal vaginal prolapse surgery of the kind with which this Inquest id concerned, obtain a Certificate of Urogynaecology from RANZCOG;
3)    That the Australian Health Practitioner Regulation Agency and the Australian Medical Association (SA) draw these findings and recommendations to the attention of the wider medical profession.
Counsel for the appellant submitted that those recommendations were plainly premised on the Deputy Coroner’s expressed disquiet about the manner in which the surgery was performed and his query as to the competence of the appellant.
I do not agree that the recommendations were based solely on the impugned comments. It is evident from the conclusions expressed in [10.1] and [10.2] of the findings that the Deputy Coroner was concerned that there appears to be no objective basis for assessing the competence and skill of a particular surgeon to perform this highly complex surgery.
The comments made by the Deputy Coroner at [10.1] and [10.2] are:
10.1.It surprised the Court that elective surgery of the complexity involved in the cases of Mrs Leonard and Mrs Hillman, carrying as it does a risk of harmful injury however small, can be carried out by medical practitioners whose qualifications and expertise to perform this surgery are in large part based upon self teaching, word of mouth and reputation but not upon objective assessment of the practitioner’s skill as might be evidenced by formal training, examination and certification by a professional institution.
10.2.The Court has found an analysis of the circumstances of Mrs Leonard’s and Mrs Hillman’s deaths to be unusually difficult. This is due to the fact that there is very little objective material to establish [the appellant’s] competence and skill to safely perform surgery of this complexity other than, for the most part, through somewhat self serving statements of his own. I recognise that Dr Harvey attested to [the appellant’s] skill and expertise, but he did so in circumstances in which two of the operations in which Dr Harvey was involved culminated in calamity.
Those particular findings have not been the subject of any ground of appeal. In my view those comments and recommendations are both explicable and logical in light of Professor Dwyer’s evidence on that topic. He said:[19]
Q.Just say for example a woman was contemplating having the same surgery as, say, Mrs Leonard or Mrs Hillman and the same kinds of complications or potential complications have been identified. If one was contemplating having a particular gynaecologist perform these procedures, how would that gynaecologist go about demonstrating their competence to do the procedure if called upon to do so.
A.Well, I think it’s fair to say that it’s still mainly by word of mouth and experience. The gateway to most of these referrals is either the general practitioner or the specialist gynaecologists who refers these patients on and I think it still works, by and large, in the medical profession by reputation, whether somebody has a good reputation and to do this sort of work with good results and low complication rates, then that’s probably the best type of advertising. Obviously increasingly there are forms of advertising – of self-advertising that gynaecologists do, but generally I think it’s fair to say it’s still by reputation. That is the main reasons that one doctor would refer a patient to another doctor. And I think, unlike in the United States where everyone seems to have their specialists for everything, I think our system in Australia is a good one, where the general practitioners are fairly effective gatekeepers. I guess also the Certificate of Urogynaecology and being known as urogynaecologist does carry weight and if you’re known to have this qualification and to have that training, then I think that would also be a reason for others to refer patients to you with these sort of problems. It would also be appropriate to say that in some States of Australia there are a lot more urogynaecologists that in other States. In South Australia there’s only one certified urogynaecologist that I know of at the present time as opposed to Victoria or New South Wales where there are many urogynaecologists who are certified. So it does vary from State to State.
Q.I mean, is there a case for saying that anyone who wants to practice as a urogynaecologist performing procedures such as these ought to be certified and receive that certificate from the college.
A.I think there’s certainly a case for it. At the present time anyone who is a qualified obstetrician gynaecologist can practice in any of the subspecialty areas, be it gynaecological cancer or urogynaecology, if they feel they’ve been adequately trained and they’ve got the expertise. So at the present time often it’s the confidence of that person that decides whether they’re going to do these procedures rather than anything else. Sometimes that confidence is misplaced. In most cases it seems to work pretty well and most gynaecologists know what they’re capable of and certainly don’t like having bad outcomes or complications and therefore are very keen to avoid doing something that is beyond them that leads to these sort of outcomes.
[19] Transcript at 273-275.
The type of surgery performed by the appellant was, as Professor Dwyer pointed out, complex abdominal surgery in a very specialised area. The effect of Professor Dwyer’s evidence is that any qualified obstetrician gynaecologist can practise in this area. At the present time it appears to be the confidence of the doctor which decides who will perform the procedure more than anything else. Furthermore, it would appear that the effective gatekeepers are usually other doctors who are prepared to refer patients to that particular practitioner. In my view the evidence of Professor Dwyer alone provides a proper basis for the comments of the Deputy Coroner at [10.1] and [10.2]. As the recommendations at [11], at least in part, flow from the findings at [10.1] and [10.2], I would not interfere with the recommendations in any event.
However there is a more fundamental reason why the recommendations should not be set aside.
I have reached the conclusion that the Solicitor-General’s submission to this Court that the provisions of s 25(2) of the Act do not give jurisdiction to this Court to entertain the appeal should be accepted. My reasons are as follows.
Section 27(1) of the Act provides that the Attorney-General or a person who has a sufficient interest in a finding made on an inquest may appeal to the Supreme Court against the finding. It is immediately apparent that in s 27 the right of appeal is against a finding.

Section 25 of the Act refers to both findings and recommendations.
Section 25 of the Act contemplates that in some cases a Coroner will deliver findings without any recommendations. There will be other cases where in accordance with s 25(2) of the Act the Court may add to its findings any recommendation. The recommendation which the Court is empowered to make is one which, in the opinion of the Court, might prevent or reduce the likelihood of a recurrence of an event similar to the event that was the subject of the inquest.
What is also immediately obvious from s 25 of the Act is that a recommendation has no binding force or legal effect. The only consequences which flow from a recommendation made by the Court are procedural. If the Court adds a recommendation to its findings it must, in accordance with the provisions of s 25(4)(b)(i), (ii) and (iii) of the Act, direct a copy of both the findings and any recommendations to the persons nominated in sub-paragraphs (i), (ii) and (iii).
It appears from the terms of s 25(5) that the only other consequence of the making of a recommendation by the Coroner is that the Minister responsible for any agency or instrumentality of the Crown to which a recommendation is directed must cause a report to be laid before Parliament setting out details of any action taken or proposed to be taken as a consequence of the recommendations. The Minister must also forward a copy of any tabled report to the Coroner.
Therefore the language used in s 25 and s 27 of the Act clearly distinguishes between recommendations and findings.
Counsel for the appellant submitted that I should follow the decision of Debelle J in Saraf[20] on this point. In Saraf Debelle J concluded that the right of appeal given in s 27(1) of the Act in respect of findings made by a Coroner extends to any recommendation made by the Court. Debelle J said:[21]
There is, therefore, an obvious and close connection between the findings made by the Coroner's Court and any recommendation. In some cases, the recommendation will depend on the findings that have been made. The recommendations might fairly be considered to be a subset of the findings. In order to understand the recommendation it might be necessary to examine the finding. Thus, while s 25 draws a distinction between the finding and a recommendation, I do not think that Parliament intended that the right of appeal in s 27(1) should be limited to a finding so that there was no right of appeal against a recommendation.
Policy reasons reinforce that conclusion. First, it would be curious indeed if there was a right of appeal against a finding but no right of appeal against a recommendation. If the Solicitor-General is correct and a coroner has made recommendations quite beyond his powers, there would be no appeal against that excess of power. That would be an entirely unsatisfactory result leaving an aggrieved person without remedy by way of appeal. Secondly, while it would be possible for a person with a sufficient interest to institute an application for judicial review seeking orders quashing the recommendations on the ground the Coroner's Court had acted beyond its power, it is unsatisfactory to require that person to resort to two remedies, an appeal against a finding of the Coroner's Court and an application for judicial review to quash a recommendation. The firm policy of the law is to put an end to litigation as speedily as justice allows.
[20] Saraf & Anor v Johns (2008) 101 SASR 87
[21] Saraf & Anor v Johns (2008) 101 SASR 87 at [33]-[34].
It can be seen that his Honour concluded that there were powerful policy reasons for reading into the words “the finding” in s 27(1) of the Act to include the word “recommendation”.
I cannot agree that the objects of the Act are advanced by disregarding the plain wording of the Act in that way. The Act itself has drawn a clear distinction between findings on the one hand and recommendations on the other.
There is in my view a good reason for that. Any recommendation made by the Coroner must be for the purpose of, and only for the purpose of, the matters set out in s 25(2), namely for the purpose of preventing or reducing the likelihood of a recurrence of an event similar to the event that was the subject of the inquest. That subsection very clearly defines the parameters in which a Coroner may make any recommendation. The recommendation itself does not establish, create or extinguish any legal right, liability or entitlement. It has no legal force or effect on any person. A Coroner making a recommendation cannot compel anyone to do anything and apart from the procedural requirements in ss 25(4) and 25(5), no action is necessary as a consequence of any recommendation made by the Coroner.
In Momcilovic v The Queen[22] the High Court considered a section of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which empowered the Supreme Court of Victoria to make a declaration that a statutory provision cannot be interpreted consistently with a human right under that Charter.
[22] Momcilovic v The Queen [2011] HCA 34.
The Court considered whether a declaration made under s 36 of the Victorian Charter was subject to the appellate jurisdiction of the High Court. In determining that it was not, French CJ (with whom Bell, Crennan and Kiefel JJ agreed) said:[23]
A declaration of inconsistent interpretation, being non-judicial and not incidental to judicial power, cannot be characterised as a judgment, decree, order or sentence of the Supreme Court falling within the appellate jurisdiction conferred upon this court by s 73 of the Constitution. As Gaudron, Gummow and Hayne JJ said of the words of s 73 in Mobil Oil Australia Pty Ltd v Victoria:
It is well established that “judgments, decrees, orders and sentences” is to be understood as confined to decisions made in the exercise of judicial power. (footnote omitted)
This court has no jurisdiction under s 73 of the Constitution to entertain the appeal so far as it relates to the declaration of inconsistent interpretation made by the Court of Appeal. In allowing the appeal, no order should be made in respect of the declaration.
[footnote omitted]
[23] Momcilovic v The Queen [2011] HCA 34 at [101].
In my view similar reasoning can be applied in the context of a recommendation made under s 25 of the Act. In my view there are sound policy reasons why this should be so. The Coroner should be able, within the confines of the parameters of s 25(2), to make any recommendation which he deems appropriate. Such a construction of the Act is, in my view, more likely to advance the public interest which is protected and enhanced by coronial investigations, than a construction which would permit appeals to be brought to the Supreme Court by any person aggrieved by a recommendation made by the Coroner. Further, such a construction would have the potential to create an open ended class of litigants who might be aggrieved by a Coroner’s recommendation.
The facts of the present case provide a good example of that. Would the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and all of the members of that College who profess to have the competence to perform this surgery have a sufficient interest in the matter to appeal the Coroner’s recommendation? Would any practitioners who already possess a certificate of urogynaecology under the auspices of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists have a sufficient interest? Would the Australian Health Practitioner Regulation Agency and the Australian Medical Association have a sufficient interest? In my view it is most unlikely that in enacting s 27 of the Act the Parliament intended to create such an open ended class of litigants.
A recommendation might have great weight, little weight, or no weight. If there is no basis at all in the evidence before the Coroner which could justify or explain a recommendation, then that recommendation would have no weight. The point is that a recommendation binds no one.
If a recommendation is made which is beyond the purpose permitted in s 25(2) of the Act, then a remedy by way of judicial review is available in any event to a party claiming to have a sufficient interest in the recommendation.
For these reasons I have reached the conclusion that Parliament cannot have intended that the right of appeal in s 27 of the Act extends to a right of appeal against a recommendation. The wording of s 27 is plain. A recommendation appears in contra distinction to a finding and deliberately so.
For these reasons I consider grounds 8, 9 and 10 to be incompetent.
Grounds 11.1 and 11.2: Procedural Fairness
I turn now to grounds 11.1 and 11.2, namely the complaint that the Deputy Coroner failed to accord procedural fairness to the appellant. Strictly speaking it is probably unnecessary to deal with this ground of appeal in light of my conclusion that grounds 3, 6 and 7 succeed; however as counsel for the appellant tied in some of his complaints under this ground to complaints made in grounds 5, 8, 9 and 10 I shall say something about this ground.
The main thrust of the appellant’s argument is that at no stage did the Deputy Coroner indicate that he had any concerns about the appellant’s experience and qualifications to perform advanced gynaecological surgery and that he failed to indicate that he was considering any of the recommendations he ultimately made. It was submitted that the appellant was therefore deprived of any opportunity to specifically address the Court on those recommendations or to respond to the concerns which the Deputy Coroner had about his qualifications and experience.
In Re State Coroner; Ex parte Minister for Health,[24] Buss JA (with whom Martin CJ and Miller JA agreed) said:
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; 72 ALD 613; [2003] HCA 6 at [37] per Gleeson CJ. The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal.
[24] Re State Coroner; Ex parte Minister for Health (2009) 261 ALR 152 at [111].
The complaint that the appellant here was not afforded procedural fairness needs to be evaluated in the context of the way in which the inquest unfolded.
At the outset, on the first day of the inquest, counsel for the appellant (Mr Stratford) sought and was granted permission to appear on the appellant’s behalf. Subsequently statements by the appellant were tendered on his behalf. Witnesses at the inquest were examined by counsel for the appellant. These included Dr Harvey, the appellant himself, Professor Dwyer, and at the conclusion of the evidence counsel for the appellant was invited to and did address the Court.
An examination of the transcript reveals that on at least two occasions counsel for the appellant made specific objections to questions which counsel assisting the Coroner sought to ask of certain witnesses. In the case of Dr Harvey counsel assisting sought to ask whether the appellant was suitably qualified to perform the types of surgeries the subject of the inquest. There was argument on the objection and ultimately the witness was permitted to answer the question. Counsel for the appellant when leading his own witness, dealt with the issue of his qualifications and experience. The appellant was closely cross‑examined by counsel for the Coroner as to the number of surgeries he has performed on others and as to his qualifications. During the evidence of Professor Dwyer there were further objections by counsel for the appellant as to the expertise of Professor Dwyer to comment on the appellant’s expertise generally.
Leaving aside the substance of the evidence given by those witnesses, I consider that the transcript reveals that there was a keen awareness on the part of the appellant’s legal advisors as to the implications of the line of questioning about the appellant’s expertise and qualifications generally. It is fair to say that a good deal of the material elicited at the inquest focused on the qualification, skill and experience of the appellant.
There is no doubt that a Coroner is subject to the rules of natural justice and procedural fairness.[25] Those principles require that any party likely to be affected, either directly or indirectly, by a decision is to be given the opportunity to be heard and to make submissions before any decision is made. It also follows that in the context of any particular matter a person to be affected by a decision or a finding should be appraised of the relevant issues in order that he or she can direct submissions to the relevant issues.
[25] Annetts v McCann (1990) 170 CLR 596 at 608-609.
In this case it was obvious to all concerned that what was common in the circumstances surrounding the deaths of both women was the surgical procedures performed by the appellant which carried with them the inherent risk of complications requiring surgical correction. In these circumstances I consider it was self-evident that the appellant’s qualifications, skill and competence would be a key issue under investigation. No doubt this was the reason he sought and received legal representation.
It is true that in the course of the hearing and during submissions the Deputy Coroner gave no indication of what his findings or any consequent recommendations might be. Both counsel, however, were given the opportunity to address the Court after the evidence had concluded. Counsel assisting the Coroner specifically raised the topic of the appellant’s competence. Counsel for the appellant had the right of reply.
In these circumstances the substance of the appellant’s complaint seems to be that the Deputy Coroner, in giving no indication of what his ultimate findings and any consequent recommendations would be, has failed to afford procedural fairness to the appellant. In my view the rules of procedural fairness did not require the Deputy Coroner to disclose during the hearing what his mental processes were concerning the resolution of the issues in the matter before him.
In Szbel v Minister for Immigration and Multicultural and Indigenous Affairs[26] the Court said:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
[footnote omitted]
[26] Szbel v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].
In all of the circumstances I do not consider that it is now open to the appellant to complain that he was not afforded procedural fairness in the conduct of the inquest.
Conclusion
In light of these reasons my conclusion is that the appellant succeeds on grounds 1, 2, 3, 6, 7 and 11.3.
It is not necessary in the circumstances to decide ground 4 therefore I make the following orders:
1Grounds 1, 2, 3, 6, 7 and 11.3 are made out.
2Grounds 5, 8, 9, 10, 11.1 and 11.2 are not made out.
3The finding of cause of death of Mrs Hillman at [1.8] of the Findings of Inquest be set aside and in its place the following finding be substituted:
Mrs Hillman died as a result of multiple complications which culminated in an hypoxic ischaemic brain injury. The brain injury was due to an intracerebral subdural haemorrhage as a likely consequence of anticoagulation given to treat a left subclavian vein thrombosis and pulmonary thromboemboli and peritonitis following perforation of the small bowel during surgery for a vaginal prolapse and failed operations to repair the perforation. Unidentified foreign material likely caused the formation of the thrombus. Mrs Hillman also aspirated gastric contents during the induction of anaesthesia and developed respiratory distress syndrome as a result of the aspiration. She also developed cellulitis and a right pneumothorax. The final cause of death was the hypoxic ischaemic brain injury.
4The whole of [10.3] in the Findings of Inquest be set aside.

[2011] SASC 218

9 December 2011

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Admissibility of Evidence

Res Judicata