Saraf v Johns

Case [2008] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA

(Miscellaneous Appeal)

SARAF & ANOR v JOHNS

[2008] SASC 166

Judgment of The Honourable Justice Debelle

23 June 2008

MAGISTRATES - CORONERS - POWERS OF SUPERIOR COURT - QUASHING AND CORRECTING INQUISITIONS AND VERDICTS: AND REVIEW

Coronial inquest into death of resident of nursing home – whether death was a “reportable death” – nature of appeal – grounds for interfering with Coroner’s finding – Court to correct a finding only where there is no evidence to support finding or finding was not reasonably open on evidence – whether Coroner’s recommendations were ultra vires – appeal allowed – recommendations invalid.

Coroners Act 2003 s 3, s 21, s 25, s 27; Coroners Act 1985 (Vic) s 3, s 15, s 59; Coroners Act 1980 (NSW) s 13(1); Coroners Act 1996 (WA) s 3; Coroners Act 1997 (ACT) s 13(1); Crown Proceedings Act 1992 s 9(2), referred to.
Keown v Khan [1999] 1 VR 69; re DG & The Adoption Act 2000 (NSW) (2007) 244 ALR 195, applied.
Anderson v Blaski [1993] 2 VR 89; Commissioner of Police v Hallenstein [1996] 2 VR 1, not followed.
Attorney-General v Sillem (1863) 2 H & C 58; 159 ER 242; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; Delaney v Staples [1992] 1 AC 687; Khan v Keown [2001] VSCA 137; Khan v West (2002) 131 A Crim R 111; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; National Insurance Co of New Zealand v Espange (1961) 105 CLR 569; R v Tennent (2000) 9 Tas R 111; Plover v McIndoe (2000) 2 VR 385; Taylor v Armour & Co Pty Ltd [1962] VR 364; Taylor v Hayes (1990) 53 SASR 282; Timbu Kolian v The Queen (1968) 119 CLR 47; WRB Transport v Chivell (1998) 201 LSJS 102; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; Young v Paddle Bros Pty Ltd [1956] VLR 38, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"reportable death"

SARAF & ANOR v JOHNS
[2008] SASC 166

Miscellaneous Appeals

  1. DEBELLE J:        This is an appeal from findings and recommendations of the Coroner’s Court made following an inquest into the death on 18 July 2007 of Mrs Gladys Ruth Wells at the Brighton Aged Care Facility. 

  2. Neither the Coroner nor the Coroner’s Court appeared on this appeal. Instead, the Attorney-General exercised the power in s 9(2) of the Crown Proceedings Act 1992 and intervened on behalf of the Crown.  That effectively provided a contradictor to the appellants. 

  3. The Brighton Aged Care Facility (“the nursing home”) was owned and operated by a company called Bresant Pty Ltd (“Bresant”) which trades as “Brighton Aged Care Facility”.  The sole director of Bresant is Dr Jagdish Saraf.  Dr Saraf and his wife, Dr Madhu Saraf, are two of the three shareholders in Bresant.  Dr Jagdish Saraf and Dr Madhu Saraf are the appellants.  The…

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AGLC
Saraf v Johns [2008] SASC 166
Case
[2008] SASC 166
Decision Date

CaseChat Overview and Summary

The case of Saraf v Johns involves a dispute regarding the jurisdiction of a Coroner to hold an inquest into the death of a resident of a nursing home, Mrs. Wells. The issue before the court was whether the death was a "reportable death" under the Coroners Act 1985 (SA). The legal issues the court was required to decide included the scope of the Coroner's powers to investigate a death, and whether the recommendations made by the Coroner were within their authority.

The court held that the Coroner did have jurisdiction to hold an inquest to ascertain the cause or circumstances of Mrs. Wells' death. The court found that the definition of "reportable death" in the South Australian Coroners Act was broader than initially thought, and that the Coroner's Court had jurisdiction to conduct an inquest into the death. The court also held that the recommendations made by the Coroner were invalid, as they were beyond the scope of the Coroner's powers under the Act. The court noted that the recommendations were outside the scope of the Act, and therefore, were not valid.

In conclusion, the court found that the Coroner had jurisdiction to hold an inquest into the death of Mrs. Wells, but that the recommendations made by the Coroner were invalid. The court suggested that the Coroners Act in South Australia could be amended to align with the legislation in other states, to avoid similar disputes in the future. The court will hear the parties as to the terms of the order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is instructive to compare the scheme of the Coroners Act in this State with the Coroners Act in Victoria which by s 15 invests the Coroner with jurisdiction to investigate a death if it appears to the Coroner that the death is or may be a reportable death. Section 3 of the Coroners Act 1985 (Vic) defines the expression “reportable death”. One kind of reportable death is a death “that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly from accident or injury”. In Victoria the jurisdiction of the Coroner does not, as in South Australia, depend on a precise determination of the objective fact whether the cause of death is of a kind prescribed in the definition. A like approach is to be found in s 13(1) of the Coroners Act 1980 (NSW), s 3 of the Coroners Act 1996 (WA), and s 13(1) of the Coroners Act 1997 (ACT). Consideration might be given to amendment of the Coroners Act in this State along the lines of the legislation in Victoria. In that way, it might be possible to avoid arid questions as to whether the Coroner’s Court did in fact have jurisdiction to conduct an inquest. Conclusion For these reasons, the Coroner’s Court had jurisdiction to hold an inquest to ascertain the cause or circumstances of the death of Mrs Wells but the recommendations made by the Coroner are invalid. I will hear the parties as to the terms of the order.

Ratio Decidendi

Legal Principle Established

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