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Priest v West

Priest v West

Case [2011] VSCA 186 23 June 2011

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2010 0140
JEAN MARIE PRIEST	Appellant
v
IAIN WEST (in his capacity as DEPUTY STATE CORONER)	First Respondent
and
DEREK PERCY	Second Respondent

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JUDGES	MAXWELL P, HARPER JA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 March and 6 April 2011
DATE OF JUDGMENT	23 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 186

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PRACTICE AND PROCEDURE – Appeal against the dismissal of an application for judicial review of two rulings made by the Deputy State Coroner in the course of an inquest into the disappearance of the appellant’s daughter – Rulings related to evidence about the possible involvement of the second respondent in that disappearance – Second respondent is an active party to the appeal – Application by the Attorney-General for leave to appear as a friend of the Court – Basis for application that, as the Minister responsible for the administration of the Coroners Act 2008 (Vic), the Attorney-General may be able to assist the Court in dealing with questions of statutory interpretation that are raised by the appeal – Consideration of the role of a friend of the Court and the matters to be considered in determining whether to grant leave to a person to appear as a friend of the Court – Attorney-General unable to identify any issue of fact or law that is likely to arise in the appeal on which the Attorney-General could provide assistance to the Court that would not otherwise be provided by the parties themselves – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Gillespie-Jones with Ms E McKinnon	Theo Magazis & Associates
For the First Respondent	No appearance
For the Second Respondent	Mr C G Fairfield	Frank Randle
For the Attorney-General	Dr I R L Freckelton SC	Victorian Government Solicitor’s Office

MAXWELL P
HARPER JA
KYROU AJA:

Summary

The Attorney-General for the State of Victoria has sought leave to intervene, as a friend of the Court,[1] in litigation between two private individuals. The litigation arises out of two rulings made by the Deputy State Coroner (the ‘Coroner’) in the course of an inquest into the disappearance in 1968 of Linda Stilwell, the daughter of the appellant, Jean Priest. (The Coroner is a party to the proceeding but is not participating in it.)
[1]In these reasons, we will use the expression ‘friend of the court’ in preference to the Latin expression ‘amicus curiae’.

The dispute concerns the scope of the inquest. Ms Priest contends that the Coroner erred in law by declining to require the second respondent, Derek Percy, to give evidence at the inquest, and by excluding a number of witness statements which – so Ms Priest contends – point to a possible connection between Mr Percy and her daughter’s disappearance. Ms Priest’s challenge to the Coroner’s rulings was rejected by Ross J, and she now appeals to this Court.

The Attorney first sought leave to intervene in the appeal as a party, but now…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Priest v West

Details

AGLC: Priest v West [2011] VSCA 186
Case: [2011] VSCA 186
Decision Date: 23 June 2011

CaseChat Overview and Summary

The appellant, Priest, initiated a judicial review application seeking to challenge the decisions made by the Deputy State Coroner in relation to an inquest concerning the disappearance of Priest's daughter. The second respondent, West, was implicated in the disappearance and was an active party to the appeal. The Attorney-General applied for leave to appear as a friend of the Court, arguing that, as the Minister responsible for the Coroners Act 2008 (Vic), they might be able to assist the Court with questions of statutory interpretation. The central legal issue was whether the Attorney-General should be granted leave to appear as a friend of the Court.

The court examined the role of a friend of the Court and the criteria for granting leave to appear. The court noted that the Attorney-General could not identify any specific issue of fact or law that would benefit from their assistance that the parties could not provide themselves. The court determined that the Attorney-General's potential assistance did not meet the threshold for being a friend of the Court and thus declined the application. The court concluded that the Attorney-General did not offer any unique insights that would aid the Court in resolving the appeal's legal issues.

The court's decision was to refuse the Attorney-General's application to appear as a friend of the Court in this matter. The court found that the Attorney-General's potential contributions did not meet the criteria for being a friend of the Court, and the parties were capable of addressing the legal issues on their own. This ruling emphasised the limited circumstances in which a friend of the Court may be permitted to intervene in a legal proceeding.

Orders