Smith v State Coroner - [2020] WASC 472

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…

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 Smith v State Coroner

Details

AGLC: Smith v State Coroner [2020] WASC 472
Case: [2020] WASC 472
Decision Date: 18 DECEMBER 2020

CaseChat Overview and Summary

In the case of Smith v State Coroner, the applicant sought judicial review of the decision made by the State Coroner under s 29(1) of the Coroners Act 1996 (WA) to issue a certificate permitting the burial of a body. The applicant contended that the decision involved jurisdictional error and sought a writ of mandamus compelling the State Coroner to refuse to issue the certificate. The case was heard and dismissed by the Supreme Court of Western Australia.

The court had to determine whether the State Coroner's decision to issue the certificate involved jurisdictional error, thus rendering it subject to judicial review. The applicant argued that the decision involved jurisdictional error, relying on various grounds, including misapprehension of the nature or limits of the decision-maker's functions or powers, acting on a mistaken assumption as to the existence of a jurisdictional fact, and misconstruing the decision-maker's Act.

The court considered the principles of jurisdictional error and the categories outlined by Professor Mark Aronson. The court found that the applicant failed to demonstrate that the decision involved jurisdictional error. The State Coroner's decision was made within the limits of the functions and powers conferred on him or her by the Act. The court held that the applicant had not demonstrated that the decision involved any of the categories of jurisdictional error. The application for judicial review was dismissed, and the writ of mandamus was not granted.

No orders were made in favour of the applicant. The decision of the State Coroner to issue the certificate permitting the burial of the body was upheld.

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

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Ratio Decidendi

Legal Principle Established

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(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.