Shields v The State Coroner of Western Australia
[2021] WASCA 91
•21 MAY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHIELDS -v- THE STATE CORONER OF WESTERN AUSTRALIA [2021] WASCA 91
CORAM: MURPHY JA
MITCHELL JA
HEARD: 21 MAY 2021
DELIVERED : 21 MAY 2021
PUBLISHED : 21 MAY 2021
FILE NO/S: CACV 16 of 2021
BETWEEN: ROSLYN SHIELDS
Appellant
AND
THE STATE CORONER OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
Citation: SHIELDS -v- THE STATE CORONER OF WESTERN AUSTRALIA [2021] WASC 6
File Number : CIV 2269 of 2020
Catchwords:
Appeal and new trial - Practice and procedure - Whether requirement for statement of appellant's geographical address on court documents should be dispensed with - Turns on own facts
Legislation:
Coroners Act 1996 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 71A r 3A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | A Davies |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Nil
REASONS OF THE COURT:
On 21 May 2021, we heard the appellant's application in an appeal filed on 8 April 2021, for an order dispensing with the requirement to state her geographical address on any document in this appeal (Application). At the end of the hearing we made the following orders:
(1)The respondent have leave to file the affidavits of Dr White affirmed on 20 May 2021 and Dr Dallo sworn 20 May 2021.
(2)The Application is dismissed.
What follows are our reasons for making those orders.
Background
The appeal itself is against an order dismissing the appellant's application to the General Division of this court for an order, pursuant to s 36(3) of the Coroners Act 1996 (WA), that a post-mortem examination be performed on the body of her deceased mother.
The appellant's mother died on 2 November 2020. On 18 November 2020, the appellant sent a letter to the Coroner's Court requesting that an autopsy be performed on the deceased. On 4 December 2020, the Coroner's Court advised the appellant that her request was refused, on the ground that the death was not a reportable death under the Coroners Act which the State Coroner was authorised to investigate.
On 29 December 2020, the appellant applied to the General Division of this court under s 36(3) of the Coroners Act for an order that a post-mortem examination be performed on the deceased. As this was outside the time limit of two working days after receipt of notice of a refusal, the appellant required an extension of time to apply for a post-mortem examination. Section 36(3a) authorised the primary court to grant an extension only if it was satisfied that exceptional circumstances existed so that it was necessary or desirable in the interests of justice to grant the extension.
The application for a post-mortem examination came before the primary judge on an urgent basis on 6 January 2021. The primary judge gave ex tempore reasons on that day dismissing the application, essentially on the basis that there was no evidence that the deceased's death was a reportable death which the State Coroner had jurisdiction to investigate, and there were no exceptional circumstances which justified granting an extension of time to make the application.
The appeal to this court
On 11 March 2021, the appellant appealed against the primary judge's orders. She did so by filing a form 2 as required by r 29(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoA Rules), which included her residential address. As the appeal notice was filed well outside the 21 day time limit for commencing an appeal, an extension of time to commence the appeal is required.
On 8 April 2021, the appellant applied for an order dispensing with the requirement to state her residential address in court documents. It appears that the appellant did not serve the appeal notice on the State Coroner out of concern about disclosing her residential address. Under r 27 of the CoA Rules, an appeal is not commenced until the appeal notice has been both filed and served. Therefore, the appeal had still not been commenced at the time the Application was made. However, on 6 May 2021, the respondent, who is represented by the State Solicitor, filed a notice of respondent's intention indicating her intention to take part in this appeal.
The appellant swore an affidavit dated 26 March 2021 in support of the Application. That affidavit sets out a number of alleged interactions with various people, including a number of police officers. The appellant also states in her affidavit that she is concerned because she has had people 'around her home at night'. Although not stated in terms in her affidavit, the essence of the appellant's complaint appears to be that if she is required to serve on the State Coroner a document bearing her residential address, this information may be made available to people who she does not want to have access to her residential address.
Appellant's non-attendance at hearing
The appellant did not attend the hearing of the Application. A registrar's notice to attend court for the purposes of considering the Application was sent to the appellant by email on 20 April 2021. The appellant responded to that email on 21 April 2021 indicating that she understood.
In the circumstances where there is a public interest in the expeditious determination of the appeal, we were not satisfied that it was in the interests of justice to adjourn the hearing. The appellant had been notified of the hearing and there was no explanation for her non-attendance. She did not apply to adjourn the hearing. She was given a reasonable opportunity to advance oral submissions in support of her written material. We therefore decided to determine the Application on the basis of the written material.
Disposition of Application
Order 71A r 3A(1) of the Supreme Court Rules 1971 (WA) (Rules) provides that this court may, on the application of a person or on its own initiative, order that the person's geographical address does not have to be stated on a document that is otherwise required by the Rules to state the person's geographical address. Rule 3A(2) provides that, subject to a presently immaterial exception, the court must not make such an order unless the person is an individual who has provided an address for service and has provided his or her geographical address to the court on a confidential basis.
We were not satisfied that it was in the interests of justice to dispense with the requirement for documents to state the appellant's residential address in this case. The appellant's affidavit does not disclose an objectively rational basis for thinking that her personal safety may be compromised if her residential address is disclosed to the State Coroner or her legal representatives. The disclosure of concern to the appellant would appear to be to police officers who, it may be inferred, can access the appellant's residential address from police records in any event. Further, the appellant has not provided any alternative physical address for service of documents, as required by r 3A(2) of the Rules.
The Application has, in any event, been rendered redundant by the State Solicitor filing a notice of respondent's intention on behalf of the State Coroner. On doing so, the State Solicitor gained access to electronic versions of documents filed in the appeal, including the appeal notice.
Additional affidavits
At the hearing of the Application, the respondent attended by counsel who sought to file and rely on two affidavits, of Dr White affirmed on 20 May 2021 and Dr Dallo sworn 20 May 2021. Counsel indicated that both affidavits had been served on the appellant by email. She relied on the affidavits for the purpose of impressing upon the court the need for expedition in dealing with the appeal, and in support of the proposition that the appeal may be futile.
We decided to receive the affidavits for the purpose of considering the need for expedition. If the respondent intends to rely on the affidavits in the future, for the purposes of the determination of the appeal, then it will be necessary for the respondent to make an application to adduce the affidavits as additional evidence in the appeal when the respondent is required to file a respondent's answer in the appeal.
Progress of the appeal
We note our concern at the delays in the progress of this matter. By imposing a two working day limit for an application for a post-mortem examination, which is to be extended only in exceptional circumstances, Parliament has recognised the public interest in the prompt resolution of these questions.
It is now over five months since the deceased died. The affidavit of Dr White indicated that the deceased's body is currently stored in a mortuary freezer at Fiona Stanley Hospital. We were informed that the deceased has not yet been buried as a result of the pendency of this appeal. Respect for the dignity of the deceased demands that the appeal now be resolved as soon as possible.
The appellant has received an extension of time to 28 May 2021 for the filing of her appellant's case. The appellant must meet this deadline. The appellant should realise that, if no appellant's case is filed by that time, it may be appropriate to then dismiss the appeal for a failure to comply with the CoA Rules, without providing any further opportunity to file an appellant's case.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
21 MAY 2021
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