Smith v State Coroner
[2020] WASC 472
•18 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SMITH -v- STATE CORONER [2020] WASC 472
CORAM: SMITH J
HEARD: 13 DECEMBER 2020
DELIVERED : 13 DECEMBER 2020
PUBLISHED : 18 DECEMBER 2020
FILE NO/S: CIV 2220 of 2020
BETWEEN: ALANA TRACEE SMITH
Applicant
AND
STATE CORONER
Respondent
Catchwords:
Application for judicial review - Application for writ of mandamus - Decision by State Coroner to issue a certificate pursuant to s 29(1) of the Coroners Act 1996 (WA) to permit the burial of a body - Application dismissed on grounds no reviewable error disclosed in the decision
Legislation:
Administration Act 1903 (WA), s 4
Coroners Act 1996 (WA), s 3, s 29(1), s 29(3), s 34, s 36(3), s 36(4)(a), s 36(4)(b)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | In person |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Attwood v Office of the State Coroner [2020] WASC 198
Burrows v Cramley [2002] WASC 47
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Mourish v Wynne [2009] WASC 85
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Smith v State Coroner of Western Australia [2020] WASC 355
SMITH J:
Introduction
On 12 December 2020, the applicant applied for judicial review, of a decision, made by the State Coroner on 9 December 2020 to issue on 14 December 2020 a certificate pursuant to s 29(1) of the Coroners Act 1996 (WA), in favour of Ms Fiona Beverley Smith[1] permitting the burial of the body of Ms Kathleen Smith (the deceased) who died on 5 September 2020.
[1] In Smith v State Coroner of Western Australia [2020] WASC 355 it was not in dispute that Ms Fiona Smith was the senior of kin of the deceased.
The applicant applies for judicial review of the decision, and a writ of mandamus to compel the State Coroner to comply with orders 2, 3, 4 and 6 of the order made by the court on 6 October 2020 in CIV 1949 of 2020, on grounds that to permit the release of the body would be in breach of the order made by the court.
The applicant is a sister of Ms Fiona Smith, and the daughter of the deceased.
In CIV 1949 of 2020, the applicant, as plaintiff, commenced an action, pursuant to s 36(3) of the Coroners Act, seeking an order that a limited post-mortem examination be performed on the deceased. The parties to the proceedings were the State Coroner, Ms Fiona Smith and four other children of the deceased.
The application was determined on the papers, and following delivery of reasons for decision,[2] an order was made by the court on 6 October 2020 permitting a limited post-mortem of the deceased.[3]
1.Pursuant to s 36(4)(a) of the Coroners Act 1996 (the Act), the State Coroner direct Dr Clive Cooke, Forensic Pathologist at PathWest Laboratory Medicine WA to perform a limited post mortem examination on the deceased.
2.The limited post mortem examination will be restricted to the collection and analysis of hair and nail samples, and fluids without making a cut or incision into the body of the deceased (other than to remove a hair follicle or follicles or to make a puncture mark).
3.For the purposes of Order 2, Dr Cooke is authorised to cause to remove from the body, any hair and nail samples, and fluids which appear necessary to remove in order to investigate the death.
4.The State Coroner is to take steps as reasonably practicable to use her best endeavours to arrange for the testing and analysis of the hair and nail samples to the standards required by the Coroner's Court.
5.The plaintiff is to pay the reasonable cost of the testing and analysis of the nail and hair samples removed from the body of the deceased, prior to the testing and analysis being undertaken. The State Coroner is to take steps as reasonably practicable to reach an agreement with the plaintiff as to the payment of the costs of the testing and analysis of the nail and hair samples by 30 November 2020.
6.Pursuant to s 36(4)(b) of the Act, the burial, cremation or other disposal of the body of the deceased is prohibited until the limited post mortem examination has been conducted.
[2] Smith v State Coroner of Western Australia [2020] WASC 355.
[3] See Smith v State Coroner of Western Australia [2020] WASC 355 [97].
The applicant's application for judicial review was heard urgently, and ex parte, on Sunday, 13 December 2020. Having read the applicant's affidavit material and other documents filed in support of the application, I formed the opinion that no reviewable jurisdictional error could be identified in the decision made by the State Coroner and I made an order dismissing the application for judicial review.
However, I also made an order granting leave to the applicant to file an application for injunctive relief to restrain Ms Fiona Smith from acting on the s 29(1) certificate, as the applicant raised an issue about whether it was appropriate for the deceased's body to be buried or cremated.
These reasons set out the reasons why the application for judicial review was dismissed, and the order made granting leave to the applicant to apply for injunctive relief against her sister Ms Fiona Smith.
Legal principles - Judicial review
An application for judicial review is only concerned with the legality of a decision, not the merits.
Judicial review against a decision will only lie where jurisdictional error is established, that is where it is found that a decision-maker has not exercised a statutory power in accordance with the conditions for the valid exercise of the relevant power.
Jurisdictional error refers to a failure to comply with one or more statutory pre‑conditions or conditions, to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it.[4]
[4] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 [24] (Kiefel CJ, Gageler & Keane JJ).
To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction.[5] That is, the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks the power to do.[6]
[5] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 [24] (Kiefel CJ, Gageler & Keane JJ).
[6] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 141 (Hayne J).
In Kirk v Industrial Court of New South Wales, the plurality observed that it is not possible to mark the metes and bounds of jurisdictional error.[7] Their Honours did, however, refer at [71] to the categories outlined by Professor Mark Aronson in his paper 'Jurisdictional error without the tears'. In summary, those categories are:[8]
(a)a mistaken assertion or denial of the very existence of jurisdiction;
(b)a misapprehension or disregard of the nature or limits of the decision‑maker's functions or powers;
(c)acting wholly or partly outside the general area of the decision‑maker's jurisdiction, by entertaining issues or making the types of decisions or orders that are forbidden under any circumstance (for example, a civil court trying a criminal charge);
(d)acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact or other requirement when the relevant Act makes the validity of the decision‑maker's acts contingent on the actual or objective existence of those things, rather than on the decision‑maker's subjective opinion;
(e)disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision‑maker's act or decision;
(f)misconstruing the decision‑maker's Act in such a way as to misconceive the nature of the function being performed or the extent of the decision‑maker's powers;
(g)acting in bad faith; and
(h)breaching (the hearing or bias rules of) natural justice.
[7] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[8] Aronson M, 'Jurisdictional error without the tears' in Groves & Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, 335 ‑ 336.
Section 29 of the Coroners Act ‑ Certificate of disposal of body
Section 29(1) provides that a coroner investigating a death must issue a certificate as soon as reasonably possible in the prescribed form permitting burial, cremation or other disposal of the body or any parts of the body.
Pursuant to s 29(3) of the Coroners Act, if the Supreme Court has made an order under s 36(4) directing the State Coroner to require a pathologist or a doctor to perform a post-mortem examination and prohibiting burial, cremation or other disposal of the body until the post-mortem examination has been conducted, a coroner, other than the State Coroner, is prohibited from issuing a certificate of disposal of the body.
The statutory direction in s 29(3) and s 36(4) is that: (a) a certificate permitting the disposal of a body cannot be issued until the post‑mortem examination ordered by the Supreme Court has been conducted; and (b) the certificate can only be issued by the State Coroner, and no other coroner of the Coroner's Court.
The decision made by the State Coroner to issue the s 29(1) certificate
On 9 December 2020, the State Coroner issued written reasons for her intention to issue a certificate on 14 December 2020, in favour of Ms Fiona Smith, permitting the burial of the deceased.[9]
[9] Affidavit of Alana Smith sworn 13 December 2020, pages 19 ‑ 24.
In her written reasons, the State Coroner referred to the court's decision in Smith v State Coroner of Western Australia,[10] the order made by the court on 6 October 2020 prohibiting the disposal of the deceased's body until a limited post-mortem had been conducted, and set out the reasons why she intended to issue the certificate which can be summarised as follows:
[10] Smith v State Coroner of Western Australia [2020] WASC 355.
(1)The limited post-mortem had been conducted and therefore the deceased's body could be released for disposal in accordance with s 29(1) of the Coroners Act.
(2)The Coroners Act does not govern rights with respect to such disposal (the disposal of a deceased's body).
(3)There had been two separate and distinct requests for the removal of the deceased's body from the State Mortuary. (One request had been made by the applicant, and the other by Ms Fiona Smith, and some of her siblings). In light of these requests, on 22 October 2020, the Principal Registrar of the Coroner's Court wrote to the applicant, and Ms Fiona Smith and her siblings' legal representative (Ms Fiona Smith's legal representative) indicating:
(a)once the results of the segmental hair analysis were available, the Coroner would be in a position to consider release of the deceased's body;
(b)the parties (seeking release) were strongly urged to come to an agreement on whom the body should be released to; and
(c)in the event the parties could not agree, the Coroner would be obliged to make an order pursuant to s 29, and further delays were inevitable.
(4)On 28 October 2020, Ms Fiona Smith's legal representative advised the Principal Registrar that a written proposal representative had been put to the applicant, proposing that:[11]
[11] Affidavit Alana Smith sworn 13 December 2020, page 21, para 8.
a.all parties agree for the deceased's body to be released to Gift of Grace Funerals in Fremantle;
b.on a day to be agreed (once the Coroner indicated the deceased's body could be released following the receipt of the hair analysis results), Ms Alana Smith conduct her own service at the Fremantle Chapel with Gift of Grace Funerals at a cost to her of approximately $235.00 for the service plus the cost of her own celebrant; and
c.following that service on the same day, his clients would conduct their own service, and then lay the deceased to rest in the burial grounds.
(5)The applicant did not respond to the proposal.
(6)On 20 November 2020, the Principal Registrar wrote to the applicant and Ms Fiona Smith's legal representative, indicating that:
(a)the limited post-mortem examination and the segmental hair analysis had been completed;
(b)if the applicant agreed with the proposal put to her (about the funeral arrangements of the deceased), she should confirm that agreement in writing as soon as possible; and
(c)if there was no agreement the Coroner was obliged to act in accordance with s 29, and would be assisted by written submissions from the parties by 5.00 pm on Monday, 30 November 2020.
(7)On 29 November 2020, the Principal Registrar received from a legal representative of the applicant an email, attaching a letter that stated that the applicant did not agree to the release of the deceased's body and provided the following reasons why she claimed the body of the deceased should not be released:[12]
[12] Affidavit Alana Smith sworn 13 December 2020, pages 21 ‑ 22, [11].
a.Ms Alana Smith had not been provided with a copy of the results of the hair analysis for her to review and seek further advice on the results that may advise further examinations or tests be conducted;
b.Nail samples have not been tested. Ms Smith requests the Coroner locate a suitable laboratory beyond Australia and New Zealand;
c.Vitreous humour fluid samples have not been tested. Ms Smith requests this sample be tested for poisons; and
d.Ms Smith has not been advised if suitable sample/s have been taken from Kathleen Smith's body for DNA analysis as requested on 27 October 2020 by Ms Smith for genetic purposes.
(8)As the limited post-mortem examination had been conducted and samples had been taken in accordance with the orders of the Supreme Court, the reasons provided on behalf of the applicant did not support the need to further delay the release of the deceased's body.
(9)On 16 October 2020, the Principal Registrar was informed by the Director of Forensic Science Laboratory, ChemCentre WA, Ms B Douglas, who undertook an inquiry that other than a laboratory in Queensland which had limited testing capacity for heavy metals in nails, and no capability to screen for any other drugs or compounds, she had not identified any laboratories in Australia or New Zealand which were able to analyse nail samples.
(10)On 8 December 2020, Dr C T Cooke, the forensic pathologist, having reviewed medical records, advised the Principal Registrar, that there is no further examination of the body of the deceased that he recommends.
(11)There was no present indication that the applicant would be in a position to access the means to pay for the deceased's burial if the body was released to her. Her legal representative had indicated in his letter, sent by email on 29 November 2020, that the applicant is a disabled pensioner and holds a pension concession card.
(12)On 30 November 2020, the Principal Registrar received from Ms Fiona Smith's legal representative, an email attaching a letter that explained the reasons the siblings support the deceased's body being released to Ms Fiona Smith; outlined his clients' connection to the deceased; and confirmed that his clients have the financial means and present ability to dispose of the deceased's body in an appropriate way.
(13)Where there are two or more people who have equal ranking to apply for letters of administration, where there is no will, the practicalities of burial, without unreasonable delay will decide the issue.[13]
(14)On 29 November 2020, the applicant's legal representative provided a copy of a document signed by the deceased (dated 17 August 2020) which asserts the applicant held a power of attorney to act on behalf of the deceased (before she died). In February 2020, the applicant applied to be appointed the deceased's administrator and guardian but this application was ultimately unsuccessful. In those circumstances, it was not clear whether the document would operate as a valid enduring power of attorney or otherwise. Given the uncertainty about the circumstances of the creation of the document and its effect, and given there was no evidence that the deceased appointed an executor, the principles in Attwood v Office of the State Coroner[14] should be applied.
(15)The applicant did not agree to the release of the deceased's body and the written submissions provided on her behalf did not support the deceased's body being released to her.
(16)Ms Fiona Smith, with the support of her other siblings, satisfied the Coroner's Court that prior to her death, the deceased lived with and was cared for by Ms Fiona Smith; and Ms Fiona Smith was able to meet the practicalities of burial without unreasonable delay with all proper respect.
[13] In her reasons the State Coroner referred to s 14(1) and Table, item 5 of the Administration Act 1903 (WA) and Attwood v Office of the State Coroner [2020] WASC 198 (Archer J).
[14] Attwood v Office of the State Coroner [2020] WASC 198 (Archer J).
In her reasons for intention to issue a certificate to permit the burial of the deceased, the State Coroner stated that the applicant should be provided with an opportunity to challenge the decision to issue the certificate. For this reason, the State Coroner determined not to issue the certificate until two clear days after the applicant's legal representative had been notified of the reasons.
No justiciable jurisdictional error is disclosed in the reasons to issue a certificate pursuant to s 29
In her application, and in oral submissions to the court, the applicant argued that the decision of the State Coroner to issue a certificate to permit the burial of the body of the deceased was in breach of, and in contempt of, the order made by this court on 6 October 2020.
The applicant's argument is that until the testing and analysis of all samples (including the hair and nail samples, but particularly the nail samples) has been undertaken, as required by order 2, 3, and 4 of the Order, the burial, cremation or other disposal of the body of the deceased is prohibited pursuant to order 6.
It is clear that this argument is misconceived. Order 6 of the order expressly reflects s 36(4)(b) of the Coroners Act, which authorises the Supreme Court to make an order if satisfied that it is desirable in all the circumstances to prohibit burial, cremation or other disposal of the body until the post-mortem examination has been conducted.
However, order 6 only prohibits the burial, cremation or other disposal of the body until the samples and fluids authorised (by order 1 and 2 of the Order) to be taken from the body have in fact been taken. Put more simply, order 6 prohibited the disposal of the body only until Dr Cooke had performed the limited post-mortem examination on the deceased's body, and removed and collected the samples and fluids.
Whilst order 2 of the order expressly referred to the limited post‑mortem examination as restricted to the collection and analysis of hair and nail samples, the fact that the nail samples had not been analysed at the time the State Coroner made her decision to issue a certificate did not constitute a breach of order 6 of the order.
This is because order 4 only required the State Coroner to take reasonably practicable steps and use her best endeavours to arrange for the testing and analysis of the hair and nail samples.
In circumstances where no laboratory in Australia or New Zealand could be identified to carry out analysis of nail samples to detect the ingestion of drugs or poisons, it is not open to find that it was arguable that order 6 of the order had not been complied with.
In any event, the statutory scheme of the Coroners Act does not contemplate that a post‑mortem examination is to include the analysis of samples and fluids taken from a body.
Section 34, when read together with the definition of 'post mortem examination' in s 3 of the Coroners Act, expressly only contemplates that a post‑mortem examination is the physical examination of a body by a pathologist or doctor, and the removal of any 'tissue' as defined in s 3 of the Coroners Act, but not the analysis of any 'tissue'.
Section 34 provides:
34.Post mortem examinations
(1)If a coroner reasonably believes that it is necessary for an investigation of a death, the coroner may direct a pathologist or a doctor to perform a post mortem examination on the body.
(2)The coroner may direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death.
(3)The pathologist or doctor performing the post mortem examination may cause tissue to be removed from the body ‑
(a)in accordance with a direction under subsection (2); or
(b)in accordance with the written permission of the deceased; or
(c)subject to subsection (5)(b), in accordance with the written informed consent, in the prescribed form, of the senior next of kin of the deceased specifying the tissue which may be removed and the purpose (therapeutic, medical, teaching or scientific) for which the tissue may be removed.
(4)The coroner may direct the pathologist or doctor performing the post mortem examination not to cause tissue to be removed as authorised under subsection (3)(c) if the coroner is satisfied that the removal would be contrary to or inconsistent with wishes expressed in writing by the deceased.
(5)Where a post mortem examination is performed under this Act a person who causes tissue to be removed from the body ‑
(a)otherwise than as authorised under subsection (3); or
(b)contrary to a direction of a coroner under subsection (4),
commits an offence.
Penalty: $10 000.
(6)Tissue removed under subsection (2) is to be dealt with in accordance with the coroner's directions and any relevant guidelines.
(7)Where tissue is to be removed as authorised under subsection (3)(b), the coroner is to ensure that before the tissue is removed, the senior next of kin of the deceased is informed in writing what tissue is to be removed and the purpose for which it is to be removed and is given a chance to view the written permission of the deceased.
Section 3 defines a 'post mortem examination' as follows:
post mortem examination means an examination of the body of a person who has died, for the purpose of investigating the death;
Section 3 defines 'tissue' as follows:
tissue includes an organ or part of the human body or a substance extracted from, or from a part of, the human body;
It is clear from the decision of the State Coroner that the limited post‑mortem examination had been conducted and that the samples and fluids had been taken in accordance with the order made by this court.
The applicant in her oral submissions and written material attached to her affidavit did not raise any justiciable argument upon which it could be found that the decision of the State Coroner had been made outside the limits of the functions and powers conferred on her by the Coroners Act.
Instead, the applicant made oral submissions on matters going to the merits of the decision of the State Coroner and other matters which are not relevant to the decision to release the body such as whether an inquest into the death of the deceased should be held.
For these reasons, the application for judicial review was dismissed.
The reasons why an order was made granting the applicant leave to file an application pursuant to s 4 of the Administration Act 1903 (WA)
In her oral submissions, the applicant made a submission that it was her view that the deceased should not be buried in the Fremantle cemetery as it was the deceased's wish that she be cremated and the majority of her ashes be returned to the United Kingdom where she was born and where the remains of her deceased relatives are located. In support of this submission the applicant referred to an extract from the transcript of proceedings before the State Administrative Tribunal in which the deceased gave evidence.[15]
[15] Affidavit of Alana Smith sworn 13 December 2020, pages 42 ‑ 43.
In light of this submission, I made an order granting the applicant leave to file a separate application, pursuant to s 4 of the Administration Act 1903 (WA); or within the inherent jurisdiction of the court, to restrain Ms Fiona Smith from acting on the s 29(1) certificate by making arrangements for the burial of the body of the deceased, until further order of the court. I indicated to the applicant that this was not a matter that I could determine in the application for judicial review, as it was an issue that went to the merit of the decision of the State Coroner to release the body of the deceased for burial.
The applicant was informed that I was satisfied that she should be provided with an opportunity to be heard about whether her mother's body should be cremated or buried and if she wished to be heard in respect of this issue I would make an order granting her leave to make a new application to deal with this issue.
The applicant was also informed that if she was to make a new application, to be instituted by fresh proceedings it would be listed for directions on Wednesday, 16 December 2020 but before any decision could be made in respect of such an application an opportunity to be heard would have to be provided to Ms Fiona Smith and to any of her siblings who wanted to be heard in respect of this issue.
The reason why I made this order is because this court has jurisdiction pursuant to s 4 of the Administration Act to determine who should have carriage of a funeral and where and how a body should be disposed of, which jurisdiction includes whether a body should be buried or cremated.[16]
[16] See the discussion in Burrows v Cramley [2002] WASC 47 (Pullin J); Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94 (EM Heenan J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).
I also made an order that if an application was to be made to restrain Ms Fiona Smith from acting on the s 29(1) certificate, the application was to be filed by the applicant by 4.00 pm on Tuesday, 15 December 2020, as it is not in the interests of any interested party that there be any further unnecessary delay in arranging for the disposal of the deceased's body with all proper respect and decency.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
18 DECEMBER 2020
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