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Spear v Hallenstein

Spear v Hallenstein

Case [2018] VSC 169 13 April 2018

Statutory Construction

Accrued Rights

Statutory Interpretation

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 00116

FAY SPEAR	Plaintiff
v
HAROLD HALLENSTEIN (in his capacity as the State Coroner)	First Defendant
ROBERT HILL		Second Defendant
GLENN SAUNDERS		Third Defendant
PETER BUTTS		Fourth Defendant
JOHN COBURN		Fifth Defendant
JEFFREY FORTI		Sixth Defendant
DONALD SMITH		Seventh Defendant
RODNEY GRIMSHAW		Eight Defendant
CHRISTOPHER FERGUSON		Ninth Defendant

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2018
DATE OF JUDGMENT:	13 April 2018
CASE MAY BE CITED AS:	Spear v Hallenstein
MEDIUM NEUTRAL CITATION:	[2018] VSC 169

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STATUTORY INTERPRETATION – Accrued rights – Whether plaintiff accrued right to bring application under repealed provision of Coroners Act 1985 – Whether contrary intention expressly appears – No accrued right to bring application – Contrary intention appears – Coroners Act 1985 s 59 – Coroners Act 2008 s 123(2), sch 1 – Interpretation of Legislation Act 1984 s 14(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K E Foley with Mr T Farhall	Flemington & Kensington Community Legal Centre
For the First Defendant	No appearance	--
For the Second to Ninth Defendants	Mr O P Holdenson QC with Mr C T Carr	Tony Hargreaves & Partners

HIS HONOUR:

Introduction and summary

On 11 October 1988, Graeme Russell Jensen died by gunshot wound to the head. He had been shot by a member of Victoria Police who, with other members of the police force, had been attempting to apprehend him.

An inquest into Mr Jensen’s death was held under the Coroners Act 1985 (‘1985 Act’) between July 1989 and October 1994 before the first defendant, who then held the office of State Coroner. Relevantly, the State Coroner concluded that Mr Jensen had contributed to his own death ‘by attempting to escape, by producing a firearm and by failing to simply surrender’ (’the contribution finding’).

On 1 November 2009, the Coroners Act 2008 (‘2008 Act’) came into force. It repealed the 1985 Act and provided for some saving and transitional provisions.[1]
[1]Coroners Act 2008 s 123, sch 1 (‘2008 Act’).

On 2 January 2018, the plaintiff, who is Mr Jensen’s sister, applied to this Court for an order that the contribution finding is void and that ‘the State Coroner re-open the inquest.’ That application was said to be made pursuant to s 59 of the 1985 Act, which authorised an application to this Court to review the findings of a coroner.

The plaintiff contends that, notwithstanding the repeal of the 1985 Act, s 59 survived the repeal at least for the purposes of grounding the current proceeding because it conferred a right that is preserved by s 14 of the Interpretation of Legislation Act 1984 (‘ILA’) or the common law.

That contention is the subject of a separate question that Ginnane J ordered to be tried before the trial of the proceeding.[2] The separate question was framed…

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 Spear v Hallenstein

Details

AGLC: Spear v Hallenstein [2018] VSC 169
Case: [2018] VSC 169
Decision Date: 13 April 2018

CaseChat Overview and Summary

In the case of Spear v Hallenstein, the plaintiff sought to bring an application under the repealed provision of the Coroners Act 1985 (WA). The defendant, Hallenstein, argued that the plaintiff had no right to bring such an application as the relevant provision had been repealed by the Coroners Act 2008 (WA). The case was heard in the Supreme Court of Western Australia. The central issue was whether the plaintiff had accrued a right to bring the application under the repealed provision before the enactment of the Coroners Act 2008. This hinged on whether a contrary intention was expressly stated in the 2008 Act.

The court examined the language of the 2008 Act and its schedule to determine if it expressly indicated that no accrued rights would be preserved. It considered the principles of statutory interpretation, particularly the provisions of the Interpretation of Legislation Act 1984 (WA). The court found that the 2008 Act and its schedule did indeed express a contrary intention, thereby negating any accrued right the plaintiff may have had under the repealed provision. The court relied on the principle that if the intention to extinguish accrued rights is expressly stated, such rights do not survive the repeal of the relevant statute.

Consequently, the plaintiff's application was dismissed as there was no accrued right to bring the application under the repealed provision. The court held that the contrary intention was evident from the language and structure of the 2008 Act and its schedule. The final orders of the court were that the plaintiff's application be dismissed with costs to be paid by the plaintiff to the defendant.

Orders