Stephanie Mortimer v Iain West (in his capacity as Deputy State Coroner)
[2018] VSCA 188
•2 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0084
| STEPHANIE MORTIMER | Applicant |
| v | |
| IAIN WEST (in his capacity as Deputy State Coroner) | Respondent |
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| JUDGES: | TATE and McLEISH JJA and McDONALD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2018 |
| DATE OF JUDGMENT: | 2 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 188 |
| JUDGMENT APPEALED FROM: | [2017] VSC 293 (Macaulay J) |
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ADMINISTRATIVE LAW — Coroner — Refusal by coroner to re-open investigation — Appeal to single judge, pursuant to Coroners Act 2008 s 84, dismissed — Did judge err in failing to find coroner applied wrong test under s 77(3)(b) on whether appropriate to re-open investigation? — Did judge err in failing to find interests of justice supported re-opening of investigation? — Leave to appeal granted — Appeal allowed —Hecht v Coroners Court of Victoria [2016] VSC 635 approved — Coroners Act 2008 ss 77, 84, 87 and 87A.
PRACTICE AND PROCEDURE — Application to rely on expert report before coroner but not before judge — Misreporting of conclusion of expert report — Application granted for purposes of accuracy — Supreme Court (General Civil Procedure) Rules 2015 r 64.13(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms E M Brimer with Ms K Grinberg | Wilkins Lawyers |
| For the Respondent | Mr T J F McEvoy QC with Ms R Ellyard | Principal In-House Solicitor, Coroners Court of Victoria |
TATE JA
McLEISH JA
McDONALD AJA:
TABLE OF CONTENTS
| Introduction and summary ........................................................................................ | 1 |
| The Coroner’s findings about Ms Lloyd’s death ..................................................... | 3 |
| The Coroner’s first refusal to re-open the investigation ........................................ | 10 |
| The second application to re-open the investigation – the new information ..... | 12 |
| The Coroner’s second refusal to re-open the investigation ................................... | 17 |
| The statutory scheme .................................................................................................. | 19 |
| Grounds of appeal ....................................................................................................... | 22 |
| Ground 1 – Did the judge err in finding that the Coroner adopted the correct statutory test for re-opening an investigation? ...................................................... | 24 |
| Ground 2 – Did the judge err in finding that, even if the Coroner had adopted an unnecessarily restrictive test, it would not have made a difference to the decision to re-open – that is, the decision did not ‘involve’ an error of law? ..... | 35 |
| Ground 3 – Did the judge err in failing to find that it was in the interests of justice for the investigation to be re-opened? .......................................................... | 42 |
| Ground 4 – Was a denial of procedural fairness before the Original Finding an available ground of review about the refusal before the primary judge? ............ | 44 |
| Ground 5 – Ought the Coroner have given Mrs Mortimer an opportunity to be heard before making findings adverse to her and her interests? ........................... | 44 |
| The application to adduce further evidence ............................................................. | 46 |
| Conclusion on the application for leave to appeal ................................................ | 48 |
| Conclusion on the appeal and disposition .............................................................. | 48 |
Introduction and summary
The Coroners Court in Victoria has the power to re-open an investigation into the death of a person if it is satisfied that there are new facts and circumstances and it is appropriate to re-open the investigation. Mrs Stephanie Mortimer applied twice to have the Coroners Court re-open the investigation into the death of her sister, Ms Robena Lloyd, but the Deputy State Coroner, Mr Iain West (‘the Coroner’) refused.[1] Mrs Mortimer appealed to the Supreme Court from the second refusal.[2] The primary judge considered whether the Coroner adopted an unnecessarily restrictive test under s 77 of the Coroners Act 2008 (‘the Act’) for an investigation to be re-opened.[3] He dismissed the appeal.[4] Mrs Mortimer now seeks to appeal from that decision.
[1]Determination Following Application to Set Aside Finding, 3 June 2014 (‘the First Determination’) and Determination Following Application to Set Aside Finding, 24 June 2016 (‘the Second Determination’).
[2]Mrs Mortimer also unsuccessfully appealed the first refusal; see [35]–[36] below.
[3]Section 77 of the Act is set out at [52] below.
[4]Mortimer v West (in his role as Deputy State Coroner) [2017] VSC 293 (‘Reasons’).
For the reasons below, we would grant leave to appeal and allow the appeal.
We accept Mrs Mortimer’s submission that the judge erred in finding that the Coroner properly applied the statutory test for the re-opening of an investigation. We consider that the Coroner applied an overly stringent test for an investigation to be re-opened. We consider that, in doing so, the Coroner applied a test that was not supported by the clear words of the legislation.
In our view, the primary judge also erred in finding that even if the Coroner had applied the correct test, it would not have led to a different outcome and so the decision of the Coroner did not ‘involve’ an error of law.
Mrs Mortimer also makes an application to adduce further evidence, pursuant to r 64.13 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), to rely on a medical report written by Associate Professor Richard King that was before the Coroner but not before the judge. The Coroner does not seek to oppose or contest this application.[5] We consider that this Court should receive the report of Professor King.
[5]Notice of Intention Not to Respond or Contest, 21 July 2017.
The Court received the assistance of submissions made on behalf of the Coroner who adopted a position consistent with the approach approved of in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[6] namely that ‘in cases involving tribunals, defence submissions should be limited to the powers and procedures of the tribunal’[7] and not extend to submissions on the merits.
[6](1980) 144 CLR 13, 35–6.
[7]Chiotelis v Judge Coate (2009) 53 MVR 47, 49 [14] (Robson J); see also Boyce v Munro [1998] 4 VR 773, 781 (Batt JA).
The Coroner’s findings about Ms Lloyd’s death
In summary, Mrs Mortimer’s application for leave to appeal[8] arises out of the death of Ms Lloyd, on 7 August 2009 while at Angliss Hospital, Upper Ferntree Gully (‘the Hospital’), following discharge from the Hospital a few days before, on 5 August 2009. On 24 June 2013, the Coroner found that Ms Lloyd died from enterococcus faecalis sepsis and acute renal failure.[9] He also made findings about the circumstances of her death and made comments about Ms Lloyd’s medical management and the standard of health care practice at the Hospital. In particular he made the comment that at the time of discharge on 5 August 2009 there was no indication that Ms Lloyd would re-present 40 hours later with debilitating symptoms:
On the evidence before me, I am satisfied that medical and nursing management was acceptable and within the parameters of reasonable health care practice. Following her discharge from the Angliss Hospital on 5 August, and with the knowledge of her past medical history, there was no indication that Ms Lloyd would re-present just 40 hours later with overwhelming sepsis and in renal failure.[10]
[8]For convenience in what follows we shall usually refer to this simply as ‘the appeal’ and the proposed grounds of appeal as ‘grounds of appeal’.
[9]Finding Into Death Without Inquest for Robena Lloyd, 24 June 2013 (‘Original Finding’).
[10]Ibid 7 (emphasis added).
This can be described as ‘the no indication comment’.
On 26 June 2013, the Coroner amended his Original Finding to include some annotations indicating disagreement by Mrs Mortimer on particular issues.[11]
[11]Finding Into Death Without Inquest for Robena Lloyd, 24 June 2013 (amended 26 June 2013), (‘Amended Finding’). See [11] and [16] below.
Ms Lloyd was 58 years old at the time of her death. She was intellectually disabled and required 24-hour care. She had been living with Mrs Mortimer in the years prior to her death. Ms Lloyd had been institutionalised from the age of seven and, in later years, had spent time residing in a Department of Human Services residential facility, before being removed from that facility by Mrs Mortimer in late 2003. She had a history of schizophrenia. She had an extensive history of medical, surgical and psychiatric involvement (including admissions to various institutions) from March 2009. Mrs Mortimer was Ms Lloyd’s primary carer, with assistance from night-time carers. Mrs Mortimer is an ex-registered nurse. The Coroner noted of Ms Lloyd:
In the period leading up to Ms Lloyd’s death, there had been a regression in her capacity to appropriately interact with her sister who described her behaviour as ‘more child like’ and stated that her memory for people, place and the alphabet had deteriorated.[12]
[12]Original Finding, Amended Finding [1] .
Between 9 and 16 July 2009 Ms Lloyd was admitted to the Hospital with abdominal pain and during her admission had a urinary tract infection. She was treated with antibiotics. The Coroner found that she was admitted ‘for a social admission as Mrs Mortimer needed respite from her sister’s increasing agitation and behaviour difficulties.’[13] After the findings were released, Mrs Mortimer disputed this statement. The Coroner amended the findings to insert the following note:
(This is disputed by Mrs Mortimer, who states her sister was admitted due to bowel obstruction, which impacted on her psychiatric health).[14]
[13]Ibid [2].
[14]Ibid.
Between 17 and 29 July 2009 Ms Lloyd was admitted to the Alfred Hospital and underwent surgery (elective stoma formation) for an atonic sigmoid colon from chronic constipation. She was discharged from the Alfred Hospital on 29 July into the care of Mrs Mortimer, but by 31 July she presented again to the emergency department of the Hospital with a dilated bladder and after not passing urine for two days. The Coroner found:
A bladder scan indicated approximately 700 mls of urine which was drained using a catheter and she was treated with antibiotics for urinary tract infection. Urinalysis had indicated nitrites, large blood and leucocytes +. It was felt that a urinary tract infection in the context of recent surgery, was probably the cause of the urinary retention. No trial voiding took place before she was discharged back into her sister’s care, for local doctor follow up.[15]
[15]Ibid [3].
On 5 August 2009, Ms Lloyd presented again to the emergency department of the Hospital after not passing urine for a significant time. It is the discharge from the Hospital on 5 August 2009 that is a primary subject of controversy for Mrs Mortimer. The Coroner described the investigations organised by the treating emergency department physician, Dr Pearson, who was aware of Ms Lloyd’s extensive medical history, and the advice he gave for ‘trial voiding’:
Investigations showed that Ms Lloyd was making urine, although there was limited voiding, and an abdominal X-Ray showed some distension of the large bowel, which was unchanged from previous admissions. Despite blood tests being suggestive of pending renal failure, Ms Lloyd was discharged back into her sister’s care, with advice to Mrs Mortimer to encourage oral fluids and to trial voiding at her premises, supervised by her carers. The plan was for review in the Emergency Department if any issues arose.[16]
[16]Ibid [4] (emphasis added).
Mrs Mortimer has contested whether the advice given included ‘trial voiding’.[17]
[17]This was raised by Mrs Mortimer in her second application to re-open the inquest. See [38] below.
A locum doctor reviewed Ms Lloyd at home late in the evening of 6 August 2009, before her night-time carers arrived. The Coroner noted that the doctor found her temperature, chest and abdomen to be normal and advised of the option of transfer to hospital or observation by the night-time carers:
Noting Ms Lloyd was recovering from recent surgery and urinary tract infection and finding no condition requiring urgent attention, he advised there were two options available:
a. An ambulance transfer to hospital for overnight observation, or
b.For the night duty carers to observe Ms Lloyd closely with respect to her fluid intake and if she was not able to manage oral fluids, carers to call an ambulance for transfer to hospital.
[The locum doctor] waited for the two night carers to arrive and discussed the management plans with them. The decision was made for Ms Lloyd to remain at home.[18]
[18]Original Finding, Amended Finding [5].
As a result of communications from Mrs Mortimer after the findings were released, the Coroner inserted the following note into his findings:
(Mrs Mortimer disputes the statement of [the locum doctor] as to advice being given regarding available options, the time he spent at the premises and who he spoke to.)[19]
[19]Ibid [5].
Ms Lloyd collapsed the following morning, 7 August 2009. She was taken to the Hospital and found to be septic and in renal failure. She did not respond to resuscitation measures and deteriorated very rapidly. The Coroner observed that Ms Lloyd died with ‘a diagnosis of septic shock secondary to urinary tract infection’.[20]
[20]Ibid [6].
A post mortem examination was conducted by Dr Melissa Baker, Forensic Pathologist with the Victorian Institute of Forensic Medicine, on 12 August 2009. The Coroner set out Dr Baker’s findings:
Examination of the colon and rectum found marked distension of the descending colon, but no evidence of obstruction. Dr Baker reported that in all the circumstances, a reasonable cause of death appeared to be enterococcus faecalis sepsis and acute renal failure. Dr Baker reported that enterococcus faecalis is a bacterium which is a common cause of urinary tract infections and was in this case, isolated in urine as well as from a swab from the right renal pelvis. Toxicological analysis of body fluid revealed the presence of diazepam, olanzapine, risperidone and carbamazepine at concentrations consistent with therapeutic use.[21]
[21]Ibid [7].
The Coroner found, as mentioned, that Ms Lloyd died from enterococcus faecalis sepsis and acute renal failure.[22]
[22]Ibid 1.
The Coroner recorded that as part of the investigation conducted by him into the circumstances surrounding Ms Lloyd’s death, investigative material was obtained, including statements from Ms Lloyd’s general practitioner, the locum doctor who attended on Ms Lloyd on 6 August, ‘numerous care providers, both medical and nursing, at [the Hospital]’,[23] medical records, and letters from Mrs Mortimer raising concerns about Ms Lloyd’s care and management. The investigative material was reviewed by the Coroners Court’s internal Health and Medical Investigation Team (‘the HMIT’), which is staffed by practising physicians and nurses who are independent of the health professionals or institutions involved in the case being investigated. The members of the HMIT ‘assist the Coroner’s investigation of deaths occurring in a healthcare setting, by evaluating the clinical management and care provided and identifying areas of improvement, such that similar deaths may be avoided in the future.’[24]
[23]Ibid [8].
[24]Ibid [9].
In relation to Ms Lloyd’s presentation to the Hospital on 31 July 2009, the Coroner recorded that the HMIT ‘believed that a further period of observation would have been reasonable, in order to assess urine output and her ability to pass urine.’[25]
[25]Ibid [10].
With respect to the presentation on 5 August 2009, the Coroner set out the reasons given by Dr Pearson as to why he discharged Ms Lloyd, in particular without further checking her urine for infection:
a. The chance of infection being present in the urine seemed highly unlikely because:
i. Ms Lloyd was already on an antibiotic to treat urinary infection;
ii. This antibiotic had been effectively used on Ms Lloyd previously and there was no reason to suspect it would be ineffective;
iii. The urine culture from 31 July had not grown any bacteria, therefore retesting of the urine to assess response to the prescribed antibiotic was not indicated;
iv. Absence of fever;
v. The white blood cell counts on full blood examination were normal.
b. It was reasonable to conduct the trial of voiding as an outpatient:
i. This had been done after the attendance on 31 July;
ii. The carers had demonstrated they knew what to watch for and were in agreement with this plan;
iii. Normal urea and creatinine on renal function testing;
iv. Drinking adequate volumes of fluid;
v. Ms Lloyd had a large bladder capacity and may have taken considerable time to pass urine;
vi. Ms Lloyd exhibited no signs of distress from retention;
vii. Agitation and difficulty in controlling Ms Lloyd as documented in the nursing notes, due to:
1. sedation wearing off;
2. confinement within the Emergency Department for over six hours with little activities to amuse Ms Lloyd;
3. it is well recognised that the elderly and confused deteriorate cognitively when in nois[y] unfamiliar surroundings.[26]
[26]Ibid (emphasis added).
Having reviewed these materials, the HMIT arrived at conclusions that the Coroner described as follows:
The HMIT believed that the doctor provided a reasonable explanation of events, confirming that the medical management on this occasion included a review of urine output, blood tests, urine results and the rationale for not treating with further antibiotics. They recommended that the case investigation be closed and concluded: ‘Overall the medical management was reasonable in a very difficult setting of chronic behavioural disturbance and chronic medical illnesses’.[27]
[27]Ibid (italics in original).
It is this conclusion, in effect adopted by the Coroner, which is the primary finding that Mrs Mortimer, through her application under s 77, seeks to set aside (‘the primary finding’).
The Coroner decided that it was appropriate to obtain an expert opinion and requested Professor King, Program Director-Medicine, Southern Health, to do so. The Coroner recorded Professor King’s conclusions as follows:
Dr King observed that the relatively unexplained bladder dilation could have been caused by urinary tract infection, or caused by one of Ms Lloyd’s medications, Cogentin, which in his opinion, she had been on chronically.[28]
[28]Original Finding, Amended Finding, [11].
Following communications from Mrs Mortimer after the finding was released, the Coroner amended the findings to insert the following comment at this point:
(Mrs Mortimer however, disagrees with the possibility of Cogentin being causally connected, as she states it was used only occasionally).[29]
[29]Ibid.
The Coroner then continued, in a passage that was the subject of criticism on the appeal as not accurately recording the opinion of Professor King:
Whilst Associate Professor King believed that Ms Lloyd should have been admitted and her biochemical and fluid status normalised, he noted the problems of hospitalising such a patient and checking her urine for infection. Nevertheless, it cannot be concluded that checking her urine for infection would have prevented her re-presenting in septic shock and the tragic outcome. Associate Professor King concluded with the following comment:
Overall, Ms Lloyd’s management was of high quality, apart from the reservation expressed regarding the treatment on 5 August 2009.[30]
[30]Ibid (emphasis (by underlining) added) (italics in original).
This passage also reflects a secondary finding of the Coroner that Mrs Mortimer challenges, namely, the finding that it cannot be concluded that checking Ms Lloyd’s urine for infection would have prevented her death; that is, that the failure to check the urine for infection on 5 August 2009 was immaterial or irrelevant to the tragic outcome (‘the secondary finding’).
Pursuant to s 67(3) of the Act,[31] which permits a coroner to ‘comment on any matter connected with the death’, the Coroner included comments in relation to Ms Lloyd’s death, including the no indication comment:
1.It is sad to read in correspondence received from Mrs Mortimer that she feels she failed her sister because she was unable to get her the help she needed. Mrs Mortimer states; ‘she was just an innocent child of three, who trusted me implicitly.’ She believes her sister was abused by a dysfunctional system and that the doctors at Angliss Hospital were inexperienced and had never learned to interpret signs and symptoms. In her opinion, ‘Eastern Health is an absolute disgrace’. As the guardian of Ms Lloyd, I have no doubt Mrs Mortimer always believed she was acting in her sister’s best interest. However, the investigation indicates that she did not always follow the medical plan of management, with at least on one occasion, a doctor threatening application to have an alternative guardian appointed, when Mrs Mortimer refused to give her sister a medication at the prescribed times. Mrs Mortimer had researched the medication and believed it was contra-indicated, given other medication her sister was then taking. It would appear this instance of her involvement in medical management and attempt to disempower her, was not the first. In correspondence to the Court, Mrs Mortimer states: ‘I have since 1996 fought constantly to keep my guardianship and the Guardianship Board have fought constantly to take it from me’.
2.Whilst I have no doubt Ms Mortimer was a loving and devoted sister to Ms Lloyd and that she had strong views as to her sister’s medical management, the evidence does not support her opinion of medical mismanagement. On the evidence before me, I am satisfied that medical and nursing management was acceptable and within the parameters of reasonable health care practice. Following her discharge from the Angliss Hospital on 5 August, and with the knowledge of her past medical history, there was no indication that Ms Lloyd would represent just 40 hours later with overwhelming sepsis and in renal failure.[32]
[31]See [51] below.
[32]Amended Finding, 6–7 ‘Comments’ (emphasis added).
The no indication comment was submitted by Mrs Mortimer to be a further exposition of the primary finding under challenge.[33]
[33]See [24] above.
The Coroner’s first refusal to re-open the investigation
Mrs Mortimer first sought to have the Coroner re-open the investigation by application dated 7 December 2013. By a determination dated 3 June 2014 the Coroner refused to do so.[34] The Coroner noted that Mrs Mortimer believed at that time that Ms Lloyd died from Neuroleptic Malignant Syndrome (‘NMS’) due to Serenace.
[34]The First Determination.
The Coroner referred to the two limbs of the statutory test for the Coroner’s Court to re-open an investigation under s 77(3) of the Act,[35] namely, if:
it is satisfied that —
(a) there are new facts and circumstances; and
(b) it is appropriate to re-open the investigation.
[35]See [52] below.
He held that the ‘new facts and circumstances’ had to satisfy the requirement that ‘a previously accepted fact ... is so altered that the relevant finding may be unsustainable’.[36] The alteration could be to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances. He refused to re-open the investigation on the basis that, applying the requirement he had identified, no new facts or circumstances were established:
I have considered the two questions that arise. First whether there are ‘new facts and circumstances’ and second whether it is ‘appropriate’ to reopen the investigation. The new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relevant finding may be unsustainable. In this instance, based on Mrs Mortimer’s concerns, the matter was again referred to HMIT for review. On 2 April 2014, HMIT concluded that Ms Lloyd’s cause of death remained enterococcus faecalis sepsis and acute renal failure and not NMS, thus no new facts and circumstances were established. I am satisfied that is the case here. The second limb therefore, does not require consideration.[37]
[36]The First Determination [6].
[37]Ibid (emphasis added) (underlining in original).
It is convenient to describe the test applied as ‘the unsustainability test’.
Mrs Mortimer appealed the Coroner’s first refusal to the Supreme Court.[38] An appeal from a coroner’s refusal to re-open an investigation is confined to a question of law.[39] It was dealt with by Randall AsJ who was required to dismiss the appeal if satisfied that there was no arguable case or that refusing leave would impose no substantial injustice.[40] He held that no point of law had been raised by Mrs Mortimer, despite his attempt to distil one from the materials filed by her as a self-represented litigant. He further concluded:
I determine that even if an appeal ground could be formulated by relying upon a failure to find facts as contended for by Mrs Mortimer, with the attendant failure to afford procedural fairness or natural justice or by virtue of the Deputy State Coroner failing to procure any necessary reports or tests, those failures do not constitute an arguable case on appeal, and to refuse leave would not impose any substantial injustice.[41]
[38]Pursuant to s 84 of the Act. See [53] below.
[39]Pursuant to s 87(1) of the Act. See [54] below.
[40]Pursuant to r 58.39(8) of the Rules.
[41]Mortimer v West (in his role as Deputy State Coroner) [2015] VSC 150 [74].
Mrs Mortimer appealed against the orders of Randall AsJ. Rush J reached the same conclusion as Randall AsJ, holding that Mrs Mortimer had failed to identify a point of law to support her appeal and that even if an appeal ground could be formulated by relying upon a failure to find facts, any such failure would not constitute an arguable case on appeal.[42]
[42]Mortimer v West (in his role as Deputy State Coroner) [2016] VSC 11 [52].
The second application to re-open the investigation – the new information
On 14 March 2016, Mrs Mortimer applied again to the Coroner for the investigation to be re-opened. In support of her second application Mrs Mortimer relied upon eight categories of documents:
(1) Medical opinion of Mr Patrick Dewan dated 5 February 2016;
(2) ‘Candice email’ – email to the Coroners Court dated 25 June 2013;
(3) Medical notes marked ‘E’ (5–6 August 2016);
(4) Letter from Sue Young dated 11 July 2013 marked ‘10’;
(5) Statutory declaration of Gary Leeworbitz dated 5 July 2013 marked ‘10A’;
(6) Eastern Health – Total Progress Notes dated 14–16 July 2009;
(7) ‘Final Report’ Urine dated 27 July 2009 marked with words ‘catheter specimen’ and Flow Chart Print Request, Lloyd, (dated 26, 27, 28 and 29 July 2009); and
(8) Emails from Mrs Mortimer to the Coroners Court of Victoria dated 12, 13, 15 and 22 March 2016.
The Candice email[43] is an email that was sent by Mrs Mortimer to the Coroner soon after he released his Original Finding raising issues in relation to her care of her sister and also asserting that the night-time carers, Sue Young and Gary Leeworbitz, denied being told to ‘trial void’ and denied understanding what that meant (as recorded in Sue Young’s letter dated 11 July 2013[44] and Gary Leeworbitz’s statutory declaration).[45]
[43]Referred to at [37(2)] above.
[44]Referred to at [37(4)] above.
[45]Referred to at [37(5)] above.
The application by Mrs Mortimer drew attention to these documents and identified what amounted to ‘new information’, including statements from the two night-time carers that they had not been instructed to ‘trial void’:
The New information is a medical opinion from Professor Patrick Dewan Urologist and Surgeon. Also Alfred Hospital records of an undiagnosed Urinary Tract Infection on the 27th July 2009, and blood pathology showing abnormalities consistent with a UTI. Statements from 2 carers stating they were not asked to trial void and that they did not know what this was. One carer stating that he requested twice that a urine test be done.[46]
[46]Application to Set Aside Finding, 14 March 2016.
Mrs Mortimer claimed in her second application that the new information demonstrated that her sister died of an untreated urinary tract infection and that there had been a failure to isolate the organism causing the infection and thus a problem with the diagnosis and selection of an appropriate antibiotic. She claimed that until the organism was isolated accurately it could not be discerned which antibiotic would be effective. She identified the deficiencies of treatment as including the failure to conduct sensitivities of the urine sample on 27 July at the Alfred Hospital; the prescription on 31 July at the emergency department of the Hospital of the antibiotic Triprim (which was said to be not a broad spectrum antibiotic but an antibiotic with limited effect); and the refusal to take a urine sample at the emergency department of the Hospital on 5 August. She said of the new information:
It shows that Robena had a UTI when she was discharged from the Alfred. It further shows that the organism was not isolated and no sensitivities were done. It appears the casualty doctor at the [Hospital] did not check the Alfred records or ring them to see what her problems were. My sister also had a UTI on the 16th July when she was discharged from the [Hospital] home for surgery at the Alfred the following day. The organism then was isolated as Strep Agalactiae.
These documents show a problem with diagnosis and treatment of common Urinary tract infections. In a setting of high white cell counts and red cell counts in the urine showing marked inflammatory changes. Abnormal blood pathology as well. Still the pathologists did not determine what the organism was when the sample demanded this. It is a disgrace in modern times for someone to die from an untreated urinary tract infection. ...
…
On the 17th July discharged from [the Hospital] with a diagnosed UTI sensitivities done. Changed to Triprim which was not adequate. So the 27th July Alfred, no sensitivities were done, no antibiotic, the 31st July no sensitivities were done and only Triprim prescribed, on the 5th August refused to do a urine test on the 7th August dead![47]
[47]This was set out in the Second Determination [12] (emphasis added).
In particular, she relied on the urine sample tests from the Alfred Hospital of 27 July 2009 as showing that there was ‘mixed growth’ in the organisms present. She noted that the sample had been taken with a catheter which she considered would suggest that the sample was especially pure.[48] Mrs Mortimer claimed that the presence of mixed growth in a sample taken by a catheter ought to have prompted further pathological investigation to determine which of the pathogens was the most dominant. With that information a suitable antibiotic could have been chosen to destroy the dominant pathogen. She said:
I point you also to the reports included from the Alfred Hospital. Robena was discharged with a UTI and no anti-biotics. The pathologist did not isolate the organism. To explain this Mixed growth is like a garden of flowers. One flower is dominant. You pick this flower and do sensitivities on it. That way you know you will kill the most dominant organism and usually all the other organisms.
If you don’t isolate any of them you don’t know what you are treating and you don’t know if the anti-biotic will work. Especially if you prescribe Triprim which has a limited effect because it is not a broad spectrum anti-biotic.[49]
[48]See [101] below.
[49]This was set out in the Second Determination [12] (emphasis added).
The ‘Final report’ from the Alfred Hospital, dated 27 July 2009, with the hand-written words ‘Catheter specimen’ said: ‘Heavy mixed growth suggests contamination. Please repeat if clinically indicated.’[50]
[50]Emphasis added.
Mr Dewan, in his medical opinion dated 5 February 2016, specifically doubted the primary and secondary findings and the no indication comment.[51] In Mr Dewan’s opinion ‘the medical and nursing management should have been different ... [i]n particular, with the blood chemistry on 5th August the patient should not have been discharged, and there was also a failure to appropriately manage the urinary tract sepsis’. He identified the following factors with respect to the assessment of the urinary tract pathology which were relevant to a need to review the treatment in more detail:
[51]See [24], [28], and [29] above.
1.Marked inflammatory changes with infected cysts in the bladder were identified by Dr Julian Metzner on cystoscopy on 3/3/1999, having had normal kidneys on an Intravenous Pyelogram on 16/2/1999.
2.The information from point 1 was not appropriately accessed in the management of Ms Lloyd’s final illness.
3.That a urine infection was found on admission on 9/7/2009 should have been given more weight – Strep Agalactiae (group b) – spec 11/7/2009.
4.That the above infection was mixed growth, and therefore possibly more than one pathogen, was not adequately considered.
5.Renal function was normal from May to July 9th 2009, indicating that the events in the few days before death were not related to renal compromise prior to that.
6. The blood results from the admission to the Alfred Hospital in July 2009 should have formed part of the assessment of the outcome.
7. Inadequate steps were taken in response to a CATHETER specimen of 31/7/2009 —White Cell count 150, with bacteria seen on microscopy and with mixed growth of organisms, indicating sepsis, given the presence of bacteria from a catheter specimen. At least, there should have been a further specimen collected. It was reasonably likely that the fatal infection was present in the urine at that stage.
8.On 5/8/2009, the blood results of Sodium 129, Potassium 5.3, bicarbonate 20, Creatinine 84, and eGFR 61, suggested a marked decline in renal function from results that would have been available for 11/7/2009.[52]
[52]Emphasis added.
Mr Dewan was critical of the autopsy report, saying:
The autopsy report has discrepancies that may have misled the previous expert medical opinion in that there was cloudy urine in the catheter bag, pus in the right pelvis, and the urothelium of the bladder was denuded. The latter two findings were inconsistent with ‘no evidence of pyelonephritis’, the raised serum white cell count, the culture of Enterococcus from both the bladder and the renal pelvis, and ‘no evidence of inflammation’ in the bladder. There is no sensitivity of the Enterococcus recorded in the autopsy report, which would have assisted the interpretation of the events.
Of note the preamble to the autopsy report contains commentary on Ms Lloyd’s sister rather than referral to the medical record.
The history of allergy to antipsychotic medication was mentioned in the records, and there had been recent administration of antipsychotics, yet no assessment appears to have been made of the possibility of an additional consideration of a further contribution to the demise; a CPK was not recorded as part of the evaluation of the deceased during the final illness. An expert opinion from a psychiatrist or pharmacologist should be [sought] on the questions related to the antipsychotic medication, including about the management and the testing related to the possible link to the death.
Mr Dewan expressed the conclusion that Ms Lloyd would not have died on 7 August 2009 had she been investigated and treated for urosepsis:
In conclusion, the death would reasonably be attributed to urosepsis, electrolyte imbalance and renal failure, but the death would not have occurred had Ms Lloyd not been discharged on 5/8/2009. If, instead, the patient had been managed for her electrolyte imbalance, investigated for urosepsis and treated with antibiotics she would not have died on 7/8/2009.[53]
[53]Emphasis added.
The Coroner’s second refusal to re-open the investigation
In response to Mrs Mortimer’s second application to re-open the investigation the Coroner recorded the documents relied upon by Mrs Mortimer as constituting ‘new’ information. He noted that ‘new facts and circumstances’ ‘encompasses facts and circumstances that are new and were not known to a coroner at the time of the original investigation’.[54] He held that although Mr Dewan’s opinion on the existing evidence was not a ‘new’ fact or circumstance within the meaning of the Act, he was prepared to assume that it was and referred it to the HMIT for review. He also doubted whether some of the other materials relied on by Mrs Mortimer in her second application amounted to ‘new’ facts or circumstances within the meaning of the Act[55] but ‘for completeness’ provided all of the documents to the HMIT.[56]
[54]Second Determination [16].
[55]The Coroner considered that the letter from Sue Young was available to him at the time of the original investigation. However, this does not mean (even if it was available) that it was known to him. See [107]–[108] below. He also says that he had regard to Gary Leeworbitz’s claim at the time of the original investigation although the statutory declaration (supporting the claim) post-dates the Original Finding. On the appeal, senior counsel for the Coroner sought to explain this by submitting that the Coroner should be read as saying that he had considered the voiding issue before making his Original Finding although he did not have the relevant documents at that time. The Candice email, which led the Coroner to make his Amended Finding, canvassed the dispute on the issue. However, we note that the amendments make no reference to the issue that there was a factual dispute as to the instructions given to the night-time carers with respect to trial voiding.
[56]Second Determination [29].
The Coroner set out relevant remarks that were made by the HMIT, having conducted its review of those documents, saying:
The HMIT noted that:
a) Based on the medical records and all other information provided, Mr Dewan concluded that the death was due to urosepsis, electrolyte imbalance and renal failure. This is not disputed.
b) With reference to point 3 in Mr Dewan’s opinion, he states that the infection found on 9 July 2009 should have been given more weight. The infection was detected and treated. This therefore appears to be adequate weight.
c) With reference to point 7 in Mr Dewan’s opinion, he states that there were inadequate steps taken in response to a catheter specimen of urine on 31 July 2009 which showed a mixed growth of organisms. In general this finding indicates a contaminated specimen with no significant pathogen identified and the actions taken appear appropriate.
d) That when examining the medical management of Ms Lloyd the key focus was whether the actions taken were reasonable. HMIT did identify some areas of concern at the time, such as discharge on 31 July 2009 without assessing whether any urine was made or passed following removal of the catheter, and discharge on 5 August 2009 when there were some blood test abnormalities. However, after examination of statements by treating doctors and, on consideration of the challenges keeping Ms Lloyd in hospital for prolonged periods of observation posed, the management was considered reasonable in the circumstances.
e) That there is no new information presented in the application that would alter prior conclusions regarding the medical management.
f) With reference to the ‘Final Report’ Urine dated 27 July 2009 marked with words ‘catheter specimen’, it was noted that the report indicates that a urine specimen showed faecal contamination and mixed growth suggesting contamination. This is a non-significant finding.
g) With reference to ‘Flow Chart Print request, Lloyd, Ms Robena (dated 26, 27, 28 and 29 July 2009)’, it was noted that the reports show renal and liver function and full blood examination. The results are largely normal with only insignificant variations from normal.
h) With reference to Mrs Mortimer’s email which states that the documents indicate Ms Lloyd had a urine infection when discharged from the Alfred Hospital and that the organism was not isolated and no sensitivities were performed. The urine culture results referred to in ... (f) indicate that there was mixed growth with no organism isolated. This indicates a contaminated specimen with no obvious significant pathogen. Sensitivities are not performed when no pathogen is isolated.[57]
[57]Ibid [30] (emphasis added).
The Coroner refused the second application to set aside his findings and to re-open the investigation, basing his refusal on a failure of the material to meet the unsustainability test; that is, the same test he had employed in refusing Mrs Mortimer’s first request to re-open the investigation.[58] He stated:
Having considered all the documents provided by Mrs Mortimer in her application, I am unable to conclude that there are any new facts or circumstances which would cause a previously accepted fact, material to findings regarding the identity of the Deceased, the cause of death and/or other pertinent circumstances surrounding Ms Lloyd’s death, to be so altered that a relevant finding may be unsustainable. That is, there is no basis to conclude that it is appropriate for the investigation to be re-opened.[59]
[58]See [33] above.
[59]Second Determination [31] (emphasis added).
Before describing the grounds of appeal, it is convenient to set out the relevant sections of the Act.
The statutory scheme
Part 2 of the Act sets out the objectives of the legislation. In particular, s 8 provides:
Factors to consider for the purposes of this Act
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following—
(a)that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b)that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c)that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e)that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;
(f)the desirability of promoting public health and safety and the administration of justice.
Section 67 provides:
Findings of coroner investigating a death
(1) A coroner investigating a death must find, if possible—
(a) the identity of the deceased; and
(b) the cause of death; and
(c)unless subsection (2) applies, the circumstances in which the death occurred; and
(d) any other prescribed particulars.
(2)Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if—
(a) an inquest into the death was not held; and
(b) the coroner finds that—
(i)the deceased was not, immediately before the person died, a person placed in custody or care; and
(ii)there is no public interest to be served in making a finding regarding those circumstances.
(3)A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
Section 77 of the Act relevantly provides:
Re-opening an investigation
(1)A person may apply to the Coroners Court for an order that some or all of the findings of a coroner after an investigation (whether or not an inquest has been held) should be set aside.
(2) Subject to subsection (3), the Coroners Court may order that—
(a) some or all of the findings be set aside; and
(b)if the Court considers it appropriate, that the investigation be re-opened.
(3)The Coroners Court may only make an order under subsection (2) if it is satisfied that—
(a) there are new facts and circumstances; and
(b) it is appropriate to re-open the investigation.
A person who seeks to have findings made by a coroner set aside under s 77 may appeal against a coroner’s determination refusing that application under s 84 of the Act within 28 days of the determination:
Appeal against refusal by coroner to re-open investigation
(1)If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court's determination to the Trial Division of the Supreme Court constituted by a single judge.
(2)Subject to section 86, an appeal under this section must be made within 28 days after the refusal by the Coroners Court.
Section 87(1) of the Act limits an appeal against a refusal to re-open an investigation to a question of law. However, s 87(1) is subject to s 87A which provides that an appeal other than on a question of law may be brought, relevantly, by the senior next of kin and may be allowed if the Supreme Court considers that it is in the interests of justice to do so.
Section 87(1) provides:
Appeal to Supreme Court
Subject to section 87A, an appeal to the Supreme Court under this Part is an appeal on a question of law.
Section 87A of the Act provides:
Appeal to Supreme Court in the interests of justice
(1)An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by—
(a) the senior next of kin of the deceased; or
(b) a person with sufficient interest.
(2)The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.
There are thus two avenues of appeal from a refusal by the Coroner to re-open an investigation; one, under s 84 and s 87(1), on a question of law, and the other, under s 84 and s 87A, in the interests of justice where the appeal is brought by the senior next of kin or a person with a sufficient interest.
Before the judge below, Mrs Mortimer relied on both avenues of appeal from the Coroner’s second refusal to re-open the investigation.[60]
[60]Reasons [7], [9].
Grounds of appeal
Mrs Mortimer seeks to appeal from the judge below on the following grounds:
1. The Trial Judge erred in finding that the Coroner properly applied section 77(3) of [the Act]. The Coroner read into the provisions of section 77(3)(b) of the Act a test which the legislature had not imposed.
1.1. Section 77(3) of the Act states that the Coroners Court may only make an order under subsection (2) if it is satisfied that:
(a) there are new facts and circumstances; and
(b) it is appropriate to re-open the investigation.
1.2. Rather than applying the question posed by the words of the Act, the Coroner applied a test which the Act did not impose. In considering whether it was appropriate to re-open the investigation, the Coroner considered whether he was able to conclude that there were any new facts and circumstances which would cause a previously accepted material fact to be so altered that a relevant finding may be unsustainable.
1.3. The Trial Judge erred in finding that the Coroner did not apply a test which was not imposed by the Act.
2. The Trial Judge erred in his consideration of whether the decision of the Coroner dated 24 June 2016 to refuse to re-open an investigation and set aside findings under section 77 of the Act (‘the Coroner’s Refusal decision) ‘involved’ an error of law. Had the Coroner applied the correct test set out in section 77(3), rather than applying a more strict test, the decision of the Coroner not to re-open the investigation might have been different.
2.1. Assuming that the Coroner did make an error of law in the way he construed and applied the test in section 77(3) of the Act, the Trial Judge then asked whether the Coroner’s error made, or might have made, a difference to the Coroner’s decision.
2.2. In considering whether the error of law was material to the Coroner’s decision, the Trial Judge limited his consideration to a ‘wider consideration of factors beyond whether the new facts would make [the Coroner’s] comment unsustainable’ and stated that it was ‘not easy to see any factor which would, as a matter of practical likelihood, reasonably cause the Coroner to come to a different view’.
2.3. In doing so, the Trial Judge did not give proper regard to whether, had the Coroner correctly applied the test as set out in section 77(3), rather than applying a more strict test, the decision of the Coroner not to reopen the investigation might have been different.
2.4. Had the Coroner applied the correct test imposed by section 77(3) of the Act, the Coroner might have come to a different decision relating to the application to set aside findings and re-open the investigation.
3. The Trial Judge erred in finding it was not necessary or desirable in the interests of justice to allow the appeal where new circumstances were sufficient to potentially impact the Coroners findings. The new circumstances shifted the weight of the evidence indicating there were concerns in relation to the medical treatment provided to Ms Lloyd such that the Trial Judge ought to have concluded that it was appropriate that the investigation be re-opened and the findings set aside and that it was necessary and desirable in the interests of justice that the appeal be allowed.
3.1. The new circumstances, in particular the opinion of Mr Dewan, had the effect of shifting the weight of the evidence indicating there were concerns in relation to the medical treatment provided to Ms Lloyd.
3.2. The issues raised by Mr Dewan were sufficient potentially to impact the Coroners findings.
3.3. It was therefore necessary and desirable in the interests of justice that the appeal be allowed to ensure that the Coroner’s findings were made on accurate and fully informed bases.
4. The Trial Judge erred in finding that the applicant’s complaint, that she was not given an opportunity to make submissions in respect of the Coroner’s findings before they were released, did not constitute available grounds of appeal against the Coroner’s refusal decision.
4.1. The applicant’s grounds of appeal before the Trial Judge included a complaint that there had been a breach of natural justice and that the Coroner did not give her an opportunity to see the findings before they were released.
4.2.The applicant’s desire to make submissions in respect of the Findings, and in particular in respect of the comments adverse to the applicant, constituted a new circumstance for the purpose of section 77(3).
4.3. The Coroner erred in failing to recognise that the applicant’s desire to make submissions in respect of the findings amounted to a new circumstance.
4.4. Further, the Trial Judge erred in finding that the applicant’s complaint that she was not given the opportunity to make submissions in respect of the Coroner’s Findings before they were released could not form part of an available ground of review in relation to the Coroner’s refusal to re-open the investigation.
5. The Trial Judge erred in finding that nothing that the applicant presented to the Coroner necessitated or made it desirable in the interests of justice to allow the appeal. The Coroner’s failure to give the applicant the opportunity to be heard before making his Findings constituted a denial of procedural fairness such that it was desirable and in the interests of justice that the appeal be allowed.
5.1. As senior next of kin of Ms Lloyd, the applicant had a common law right to be heard in opposition to any potential adverse finding in relation to herself and the interests she represented.
5.2. The Coroner failed to afford the applicant the right to be heard in relation to the findings made that were adverse to herself and the interests she represented.
5.3. The Coroner therefore ought to have considered that it was appropriate to set aside the findings and re-open the investigation to afford the applicant, as senior next of kin, a proper opportunity to address the issues of concern to her in relation to the Findings, and comments adverse to the applicant.
5.4. Additionally, in light of the denial of procedural fairness, the Trial Judge ought to have allowed the appeal.
At the heart of the appeal is the claim that the Coroner, in applying the unsustainability test, failed to apply the test imposed by the statute to determine if an investigation should be re-opened.
Ground 1 – Did the judge err in finding that the Coroner adopted the correct statutory test for re-opening an investigation?
Mrs Mortimer submits that the Coroner misconstrued the test imposed by s 77(3) by incorrectly restricting his power to set aside his findings and to re-open the investigation. As noted above, the Coroner refused the second application to set aside his findings and to re-open the investigation on the basis of the unsustainability test, that is, that there were no new facts or circumstances that ‘would cause a previously accepted fact ... material to the cause of death and/or the circumstances surrounding Ms Lloyd’s death to be so altered that a relevant finding may be unsustainable’.[61]
[61]Second Determination [31]. See [48] above.
This restrictive approach had previously been taken by the Coroner when refusing to re-open an investigation under s 77. It was found to be erroneous by J Forrest J in Hecht v Coroners Court of Victoria,[62] a decision which was delivered after the Coroner’s refusal, for a second time, to re-open the investigation here.
[62][2016] VSC 635 (‘Hecht’).
Hecht was principally concerned with the application of s 77(3)(a),[63] the requirement that the court be satisfied that there are new facts and circumstances. In that case, the parents of a woman who died in a transport accident in Delahey, Victoria, while she was riding her motorcycle to work appealed against the refusal by a coroner, Magistrate Parkinson, to set aside findings she had made. The two specific findings sought to be set aside were that: (1) the right hand indicator of the other motor vehicle was operating, and (2) that the deceased misjudged her overtaking manoeuvre as she turned right into the same intersection as the other vehicle.
[63]See [52] above.
The parents submitted that the new facts and circumstances were three-fold: (1) that submissions made by them had not been considered by Magistrate Parkinson (a new circumstance); (2) that an expert opinion on the potential operation of the indicator lights had been provided relating to the accident (a new fact); and (3) that the parents were now contesting a specific finding. They argued that the expression ‘new facts and circumstances’ ought to be given a broad, common-sense definition. This was rejected by Magistrate Parkinson who adopted the same restrictive test as that applied by the Coroner here. J Forrest J recorded the magistrate’s use of the unsustainability test as follows:
The new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relative finding may be unsustainable.[64]
[64]Hecht [2016] VSC 635 [42] (emphasis added by J Forrest J).
J Forrest J agreed with the parents that the unsustainability test was unnecessarily restrictive and did not reflect the test the legislature had imposed. He said:
I cannot agree that the test applied ... in determining this review under s 77(2) was appropriate.
There is no warrant for importing a condition referable to either sustainability or a material alteration of a previous understanding of the facts. The question, rather, is that posed by the words of the statute — whether there are new facts and circumstances and, if so, do they justify a reopening of the investigation. It is no more and no less that those two basic propositions.
Each case will, as Parliament noted, turn on its own facts and circumstances and it is not open to this Court or the Coroners Court to read into the provision of s 77(3) a test which the legislature has not imposed. This error, in my view, is enough to allow the appeal under s 87A.[65]
[65]Ibid [44]–[46].
He allowed the appeal on the basis that it was in the interests of justice to do so, under s 87A, while noting that it ‘would also have been open to allow this appeal under s 87’[66] (error on a question of law).
[66]Ibid n 5.
He accepted that, although the parents were not the ‘senior next of kin’,[67] their desire to put submissions and adduce further evidence in itself constituted a new circumstance:
Given that neither they [the parents] nor their son-in-law had been given the chance to do so previously, this was a ‘circumstance’ which justified such a course. The impugned findings related to the conduct of Mr and Mrs Hecht’s daughter in contributing to her own death and the Hechts were patently interested in placing material before the Coroner. Moreover, the evidence they wished to rely upon (from the expert witness as to the operation of the indicator) went directly to the issue in respect of which they had not [been] given an opportunity to be heard on.[68]
[67]The deceased’s husband, Mr Kisielis, was the ‘senior next of kin’ under the definition in the Act: s 3.
[68]Hecht [2016] VSC 635 [49].
He ordered that the determination not to set aside the findings or re-open the investigation into the death of the female motorcyclist ‘be set aside on the ground that it is desirable in the interests of justice to do so’.[69]
[69]Ibid [66(a)].
The judge below accepted that J Forrest J was correct in his criticism of the test applied by Magistrate Parkinson with respect to the first limb of s 77, namely, s 77(3)(a), the requirement for new facts or circumstances. However, he considered that the criticism was confined to s 77(3)(a) and did not extend to the second limb of s 77, s 77(3)(b), the requirement that a coroner be satisfied that it is appropriate to re-open an investigation. He considered that the impact of a new fact or circumstance upon an original finding, and in particular whether it could materially alter the original finding, was properly addressed under the second limb, the appropriateness limb, and that the error committed by Magistrate Parkinson in Hecht was to consider the impact of the new fact or circumstance at the wrong stage and, perhaps, in adopting too rigid an assessment for measuring the impact of the new fact or circumstance. He later elaborated on this rigid assessment and treated it as wrong.[70]
[70]See [73]–[74] below.
The judge said:
With respect, I agree with the opinion of J Forrest J in Hecht that there is no warrant to qualify the words appearing in s 77(3)(a) by reference to the capacity of the new facts and circumstances to change the original finding. Apart from that qualification being a significant gloss on otherwise plain words, the presence of the second limb of the test, in s 77(3)(b), suggests that the second limb is the intended mechanism by which the coroner may consider, among other things, the potential for the new facts and circumstances to impact upon the original finding.
The power to re-open in s 77(2), expressed or amplified in s 77(3), is unlikely to be intended to be exercised merely because a new fact or circumstance has arisen. For instance, it would be unusual if a new fact that entirely supported and reinforced the original finding could be a ground to set aside the finding and re-open the investigation. Additionally, even if a new fact had a potential to bear upon the original finding, the extent of that impact could be anywhere on the scale between negligible and overwhelming. So, it seems logical that the likely impact of a new fact and circumstance on the original finding should be a relevant consideration when assessing whether any investigation should be re-opened. The chief error in Hecht, it seems to me, was the stage at which the coroner considered the impact of the new fact and circumstance within the two-tiered test, that is, at the first tier. Additionally, the test for measuring the ‘impact’ of the new fact and circumstance may have been too rigid.
Assuming that a coroner is satisfied of the existence of a new fact and circumstance — in the sense of there being something not known to the coroner at the time of the investigation — the coroner must determine in the light of those new facts and circumstances whether it is ‘appropriate to re-open the investigation’. These words have been given little if any analysis in the cases.[71]
[71]Reasons [46]–[48] (emphasis added).
The judge noted that the word ‘appropriate’ means, in this context, ‘suitable or fitting for a particular purpose’, or ‘proper, fitting’.[72] He held that the test for whether it is ‘appropriate’ to re-open an investigation under the second limb of s 77(3) is ‘inherently broad and its application to the relevant issue has been deliberately left to the judgment of the decision maker’,[73] that is, to a coroner, bearing in mind the specialist knowledge and experience exercised by a person in that position in the context of a ‘specialist inquisitorial court’:
The legislature can be taken to expect the coroner to have specialist knowledge and experience and to have consciously entrusted him or her to make judgments as to what is required or desirable by way of investigation to achieve the purposes of the Act as applied to a particular death or event. Indeed, there are several other places in the Act where Parliament has also left it to the coroner’s judgment as to what is either appropriate or inappropriate in relation to particular decisions.[74]
[72]Ibid [49] (citations omitted).
[73]Ibid.
[74]Ibid. He referred to s 19(1) of the Act (investigating a reviewable death without referral to the Victorian Institute of Forensic Medicine); s 25(2)(b) (direction to perform an autopsy); s 56(a) (leave to appear at an inquest); and s 71(b) (decision not to make findings after deciding not to hold an inquest in particular circumstances).
He observed that, while the concept of what is ‘appropriate’ is broad, it ‘is to be understood against the nature and purposes of the coroner’s powers and functions as defined in the Act’, while acknowledging that ‘[d]ifferent considerations may pull in different directions’.[75] He observed that when ‘Parliament has entrusted such a judgment to a specialist court, an appellate court ... would be very slow to find that a judgment so made constitutes an error of law.’[76]
[75]Reasons [50].
[76]Ibid [51].
He examined the Coroner’s reasoning, especially the application of the unsustainability test,[77] and held that it would be an error for the Coroner, when considering a new fact or circumstance, to adopt the test that it would only be appropriate to re-open an investigation if that new fact or circumstance would cause a previously accepted material fact to be so altered that a relevant finding might be unsustainable. He held that to apply the unsustainability test to the second limb of s 77(3), to what is ‘appropriate’, would be wrong because the concept of what is appropriate is not so confined.
[77]See [48] above.
He said:
The Coroner appeared to reach [the decision not to re-open the investigation] because, as he stated, he was unable to conclude there were new facts or circumstances which would cause a previously accepted fact, material to the findings, to be so altered that a relevant finding may be unsustainable. I have already stated my view that the extent to which a new fact or circumstance might impact the original finding is a logical matter to weigh when considering whether it was appropriate to re-open an investigation. For that reason, there could be no error in the Coroner having regard to the potential impact of a new fact or circumstance when deciding if it was appropriate to re-open.
But, the way in which the Coroner expressed himself could imply that he construed and applied the test of appropriateness, generally, as solely invoking the question whether new material could cause him to alter any finding he had already made. Further, the language used could imply that he considered it would only be appropriate to re-open if new material would make a previous finding ‘unsustainable’. If that were so, it might be thought that the Coroner made a legal error because the concept of appropriateness is not so confined.[78]
[78]Reasons [53]–[54] (emphasis added).
It would appear that the judge thus not only accepted that J Forrest J was correct in finding that it would be unfaithful to the statutory language in s 77(3)(a) to apply the unsustainability test but also that it would be unfaithful to the statutory language in s 77(3)(b) to apply the unsustainability test.
We agree with his Honour.
In our view, it would be an error of law for the unsustainability test to be used in the application of either the first or second limb of s 77(3). For the reasons given by J Forrest J in Hecht the identification of ‘new facts and circumstances’ does not require that those facts and circumstances would cause a previously accepted fact to be so altered that a relevant finding may be unsustainable. Similarly, for the reasons given by the judge below, the assessment of whether it is ‘appropriate’ to re-open an investigation does not depend on a finding that a previously accepted fact would be so altered that a relevant finding may be unsustainable. The language of what is ‘appropriate’ is inherently broad and properly to be informed by a multitude of considerations, some of which may be competing. In our view, neither of the criteria under s 77(3) are restricted by their capacity to give rise to conclusions about the unsustainability of previously accepted facts, and it would be contrary to the statutory language to confine the criteria in this way.
This is not to deny (and it was not in dispute) that the impact of a new fact or circumstance on the original findings of a coroner may well be relevant in assessing the appropriateness of re-opening an investigation.
On the appeal, this Court was informed by senior counsel for the Coroner that the unsustainability test has developed over a period of time within the Coroners Court and has become ‘a prism through which one can assess what might be appropriate’, applied generally as an interpretation of the statutory test under s 77(3)(b). Nonetheless, it follows, from what has been said above, that the use of the unsustainability test, as a test that has to be satisfied before a coroner can conclude that it would be appropriate to re-open an investigation, is an error of law. The criterion of appropriateness is a broad concept which is not to be confined by artificial tests which have no foundation in the statutory language of s 77(3)(b). It has already been determined, by J Forrest J, in Hecht, in reasons with which we agree, that the use of the unsustainability test, as a test that has to be satisfied before a coroner can conclude that there are ‘new facts and circumstances’ under s 77(3)(a), is also an error of law.
Moreover, it also follows, on the judge’s own understanding of s 77(3), that if the Coroner did apply the unsustainability test as a general criterion for determining if it was appropriate to re-open the investigation, the Coroner erred. However, the judge held that the Coroner had not applied the erroneous restrictive test. Referring to the Coroner’s reasoning in his second refusal to re-open the investigation,[79] he said:
[I]n the particular circumstances of this case I am not persuaded that the Coroner’s use of that language to explain why he was not satisfied that it was appropriate to re-open the investigation denoted any error of law. I remain unpersuaded because of the particular background to the subject application, the specific way in which the application had been put to the Coroner and needed to be addressed and the nature of the finding to which Mrs Mortimer’s application was chiefly directed.[80]
[79]Second Determination [31]. See [48] above.
[80]Reasons [55].
The focus of ground 1 of the grounds of appeal is on whether the judge was correct in his conclusion that the Coroner did not apply the unsustainability test as a general criterion of appropriateness.
The judge based his conclusion that the Coroner had not erred by applying the unsustainability test on three bases: (1) the background circumstances of the second application to re-open; (2) the specific manner in which the second application was made; and (3) the primary source of complaint by Mrs Mortimer.
With respect to the background circumstances, the judge noted that as a result of the first application made by Mrs Mortimer and the subsequent two appeals, the Coroner, an associate judge and a judge had ‘raked over a range of arguments about alleged new matters that, so it was claimed, would have caused the Coroner to come to a different decision had they been taken into account’.[81]
[81]Ibid [56].
With respect to the manner in which the second application was made, the judge said that it took the form of Mrs Mortimer producing ‘a range of “new” medical facts and circumstances which, had the Coroner taken them into account at the time, would arguably have caused the Coroner to reach a different conclusion about the medical management of Ms Lloyd’.[82]
[82]Ibid.
On the third basis, the judge took the view that it was the Coroner’s ‘qualified comment’[83] which was the focus of Mrs Mortimer’s application, namely, the no indication comment.[84] He considered the comment to be a reflection of a considered view based on a body of medical evidence and of a type that coroners are empowered to make. He said:
I also bear in mind that the nature of the finding which is the real subject of this appeal is a ‘comment’ made by the Coroner ... apart from making findings as to the cause of death which a coroner must make if possible to do so, a coroner may choose to comment on a matter connected with the death, including in relation to matters of public health and safety. In the present case, the comment that Mrs Mortimer is particularly focused upon was, essentially, a qualified comment of this kind.
The Coroner chose not to make a comment critical of the medical management of Ms Lloyd by [the Hospital] but, rather, stated his view that the management was within the ‘parameters of reasonable health care practice’. Going further, the Coroner supported the view with the additional comment that there was ‘no indication’ that Ms Lloyd would soon return to hospital in renal failure. ... this was a considered view. It was a view reached in the face of a body of evidence that enabled argument to be put either way. It was also reached with the benefit of statements from and interviews with key medical staff, not simply the scientific results of pathology tests and other readings, together with the views of the HMIT and an independent medical specialist. Based on all of that evidence, the Coroner formed an opinion which is what his comment reflects.
It is the type of comment the Coroner is empowered to make in the exercise of his statutory jurisdiction aimed at furthering the objects of the Act. Mrs Mortimer does not agree with it. It appears that Mr Dewan does not agree with it either. But it appears that the opinions of other persons, also medically trained and experienced, supported it and those views provide a reasoned foundation for the Coroner’s conclusion and thus his comment.[85]
[83]Ibid [57].
[84]See [29] above.
[85]Reasons [57]–[59].
The judge ultimately concluded that the Coroner’s apparent use of the unsustainability test was justified because it was not intended to reflect a general interpretation of the meaning of ‘appropriate’ in the context of s 77(3)(b) but rather to give attention to the complaint by Mrs Mortimer that the Coroner’s findings were unjustified:
It is against those particular circumstances that I interpret the Coroner’s explanation for not being satisfied that it was appropriate to re-open the investigation. Having twice reconsidered arguments by Mrs Mortimer as to why the Coroner’s findings were allegedly unjustified and the investigation needed to be re-opened, and bearing in mind the inherently debatable, opinion nature of the comment in question, it was not an error for the Coroner to then concentrate his focus upon the propensity of the so-called new facts to make the relevant finding unsustainable. In other words, I am not persuaded that the words used were intended to reflect a general construction of the test of what is ‘appropriate’; rather, they explained why in the particular circumstances of this case the Coroner did not think the material put forward justified the investigation being re-opened.[86]
[86]Ibid [60] (emphasis in original).
Mrs Mortimer submits that the judge erroneously attributed to the Coroner a reasoning process that he did not undertake. She submits that the three bases identified by the judge as the foundation of the Coroner’s reasoning do not accurately reflect the approach the Coroner adopted. Moreover, she contends that it is clear from the repeated reference to the unsustainability test in the Coroner’s second refusal to re-open the investigation that the Coroner was not simply considering appropriateness in the light of the particular circumstances of this case, but rather incorrectly restricting his power to set aside his findings and to re-open the investigation.
In our view, Mrs Mortimer’s submissions should be accepted. We do not consider that the Coroner was confining himself to a consideration of the particular circumstances of the case when he formulated and applied the unsustainability test. The Coroner’s repeated and unequivocal statements of the unsustainability test reflected, and were designed to reflect, an understanding that the unsustainability test captured the statutory criterion of appropriateness under s 77(3)(b).
This is apparent from the Coroner’s application of the unsustainability test in his first refusal to re-open, pursuant to s 77(3)(a), the requirement for new facts and circumstances.[87] It is there clear that the Coroner considered that a failure to meet the unsustainability test meant that the criterion under s 77(3)(a) was not satisfied. When the focus changed to the second limb of s 77(3), namely, s 77(3)(b) and the consideration of whether it was appropriate to re-open the investigation, the Coroner again applied a test in exactly the same terms, and in a manner that indicated that he considered that a failure to meet the unsustainability test meant that the criterion under s 77(3)(b) was not satisfied.[88]
[87]See [33] above.
[88]See [48] above.
When embarking on the question of appropriateness he stated that s 77(3)(b) ‘requires’, in effect, that the unsustainability test be satisfied:
I now turn to consider the second limb of the requirement, that is, whether it is ‘appropriate’ to reopen the investigation.
Section 77(3)(b) requires that the new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relevant finding may be unsustainable.[89]
[89]Second Determination [26]–[27] (emphasis added).
The use of the word ‘requires’ indicates that the Coroner was speaking in general terms about what characteristics any new facts and circumstances must exhibit, as a matter of the logic of s 77(3)(b), before the criterion of appropriateness was met.
Furthermore, in the context of his second refusal to re-open the investigation, the Coroner remarked, when referring to the HMIT review of the further materials relied on by Mrs Mortimer, ‘[t]hat there is no new information presented in the application that would alter prior conclusions regarding the medical management.’[90] This also suggests that the Coroner was treating the capacity to alter prior conclusions as a requirement for concluding that the re-opening of an investigation would be appropriate.
[90]Second Determination [30(e)] (emphasis added).
Finally, the Coroner, when arriving at his conclusion to refuse the second application to re-open the investigation, after determining that the material relied on by Mrs Mortimer would not cause a previously accepted fact, material to the findings, to be so altered that a relevant finding may be unsustainable, stated that, ‘that is, there is no basis to conclude that it is appropriate for the investigation to be re-opened’.[91] In our view those words can only be properly explained as revealing that the foundation for the conclusion that it would not be appropriate to re-open the investigation lay in the Coroner’s assessment that the new material failed to satisfy the unsustainability test.
[91]Ibid [31] (emphasis added).
While the judge was correct to note that the Coroner was facing in effect a complaint that the findings and comments made in the particular circumstances of the case were unjustified and that the complaint was made against the background of the first refusal, which had itself been appealed, we consider that he erred in treating the Coroner’s remarks as limited only to the particular circumstances with which the Coroner was dealing. We consider that the Coroner’s remarks were intended to reflect a general construction of what is ‘appropriate’, within the meaning of a s 77(3)(b), and that, in adopting that general construction, the Coroner fell into legal error.
We would uphold ground 1.
Ground 2 – Did the judge err in finding that, even if the Coroner had adopted an unnecessarily restrictive test, it would not have made a difference to the decision to re-open — that is, the decision did not ‘involve’ an error of law?
The judge, having determined that the Coroner did not intend to express a general construction of what is ‘appropriate’ under s 77(3)(b), went on to consider whether, if he was wrong in that conclusion, it would have made any difference to the Coroner’s decision. He said:
If I am wrong in reaching [my] conclusion and the better view is that the Coroner did make an error of law in the way he construed and applied the test in s 77(3), I am not persuaded that his finding ‘involved’ an error of law. In Australian Broadcasting Corporation v Bond Mason CJ laid down the relevant principle as follows —
A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
I am not convinced that upon a wider consideration of factors beyond whether the new facts would make his comment unsustainable the Coroner might have reached a different decision. It is not easy to see any factor which would, as a matter of practical likelihood, reasonably cause the Coroner to come to a different view. On occasions, Mrs Mortimer stressed factors such as the Coroner’s duty to ‘protect the living’ and to correct what she saw as an unjustified absolution given to the Hospital. But plainly the Coroner was alive to these issues and arguments. There is no reason to suspect that he did not consider such factors or that giving further consideration to them might have brought a different result.
It follows that even if the Coroner was wrong in his construction and application of the legal test, the decision ultimately did not involve an error of law.[92]
[92]Reasons [61]–[62] (citations omitted).
Mrs Mortimer challenges the judge’s conclusion that, had the Coroner considered a wider range of factors, this would not have brought about a different result. She submits that, had the Coroner not misapplied the statutory test under s 77(3)(b), and had he been alive to more general considerations of appropriateness, he may have formed the view that it was appropriate to re-open the investigation to ensure that the findings were made on an accurate and fully informed basis.
Mrs Mortimer points to a number of interrelated factors which, if appreciated by the Coroner, may have led to a different decision.
Mrs Mortimer submits first that the manner in which the Coroner reported the opinion of Professor King is at odds with the way Professor King expressed his opinion and this may not have been apparent as significant except in the context of comparing it to Mr Dewan’s opinion. The Coroner stated that it was Professor King’s opinion that ‘it cannot be concluded that checking [Ms Lloyd’s] urine for infection would have prevented her re-presenting in septic shock and the tragic outcome’.[93] In fact Professor King expressed his opinion positively, rather than negatively, and said of Ms Lloyd’s treatment on 5 August 2009: ‘Checking her urine for infection may have prevented her re-presenting in septic shock.’[94]
[93]See [27] above.
[94]Emphasis added.
The judge did not have before him the expert medical opinion report of Professor King and that report is the subject of Mrs Mortimer’s application to adduce further evidence before this Court. We deal with this below.[95] The submission made by Mrs Mortimer is that the positive statement of Professor King is more aligned with the opinion of Professor Dewan to the effect that had Ms Lloyd not been discharged on 5 August 2009, but had been investigated for urosepsis and treated with antibiotics, she would not have died on 7 August 2009.[96] The new material, and in particular, the opinion of Mr Dewan, if properly considered, may have led the Coroner to decide to re-open the investigation and in particular to re-examine his Original Finding to determine if it was made on a properly informed and accurate basis, especially the finding with respect to the discharge of Ms Lloyd from the Hospital on 5 August 2009.
[95]See [129]–[134] below.
[96]See [45] above.
Second, Mrs Mortimer submits that the report of Mr Dewan that ‘mixed growth of organisms, indicat[es] sepsis, given the presence of bacteria from a catheter specimen’[97] may have led the Coroner, had he not applied the unsustainability test, to re-consider whether he should accept as accurate the report of the HMIT that, by contrast with the conclusion of Mr Dewan, the mixed growth merely indicated that the specimen was contaminated with no obvious significant pathogen.[98]
[97]See [43] above.
[98]See [47] above.
Mr Dewan confirmed his opinion before the judge.[99] His evidence, in response to a question about the presence of mixed growth detected in a urine sample taken by means of a catheter, was as follows:
It’s unfortunately a problem with urine cultures. Because they come out through, in a male the foreskin, in a female the labia, they can be contaminated.
That shouldn’t be the case if they come out through a catheter, and therefore it should have a different attitude towards it, if the urine has come out through a catheter. And therefore mixed growth definitely means something, if it’s come through a catheter. And therefore there is almost certainly a pathogen present in a catheter that’s been an in and out catheter. And therefore sensitivities should be directed.[100]
[99]See Reasons [77].
[100]Emphasis added.
Mrs Mortimer submits that the opinion of Mr Dewan that sensitivities should have been carried out may have led the Coroner to re-consider whether a further urine specimen should have been collected from Ms Lloyd on 5 August 2009 and further tests performed, and the judge erred in failing to conclude that this was so. This is especially so as the report of Professor King, upon which the Coroner relied, noted that on 31 July 2009 urine was drained with a catheter but Professor King did not specifically address the question whether the result of the urine tests was indicative of sepsis (Mr Dewan’s opinion) or contamination (the HMIT’s opinion).
Third, Mrs Mortimer submits that the primary and secondary findings, and the no indication comment are, in effect, at odds with the opinion of Mr Dewan, as mentioned above, that Ms Lloyd should not have been discharged on 5 August and that if she had not been discharged but instead been managed for her electrolyte imbalance, investigated for urosepsis and treated with antibiotics, she would not have died on 7 August 2009.[101] She submits that the opinion of Mr Dewan ought to have been put to Professor King for a response. As noted, Professor King had expressed a ‘reservation’ about Ms Lloyd’s treatment on 5 August and reading Mr Dewan’s report may have enabled him to form a more considered response. She submits that Professor King should have had the opportunity to consider Mr Dewan’s opinion that, given the indication of the presence of sepsis, ‘at least, there should have been a further specimen collected ... [and] [i]t was reasonably likely that the fatal infection was present in the urine at that stage’,[102] an opinion in conflict with that expressed by the HMIT that the treatment in this respect was appropriate.[103] She submits that if Professor King had the benefit of reflecting on Mr Dewan’s opinion, he may have expressed a stronger and clearer view with respect to the appropriateness of the treatment on 31 July and 5 August 2009.
[101]See [45] above.
[102]See [43] above.
[103]See [47] above.
The fourth submission made by Mrs Mortimer is that the new facts and circumstances she relied upon included the identification by Mr Dewan of a number of discrepancies in the autopsy report[104] which Mr Dewan considered may have misled Professor King.[105] The discrepancies were not addressed by the HMIT in considering the new material. The discrepancies have never been put to Professor King for his response.
[104]See [44] above.
[105]Ibid.
In our view, the judge erred in concluding that, even if the Coroner had misapplied the statutory test under s 77(3)(b), it could not be inferred that the decision refusing to re-open the investigation would have been, or might have been, different. Expressed positively, we consider that if the Coroner had asked himself the question would it be ‘appropriate’ to re-open the investigation on the basis of the new facts and circumstances relied on by Mrs Mortimer, without requiring that the impact of that material would cause a previously accepted fact to be so altered that a previous finding may be unsustainable, he would, or might, have arrived at a different decision.
Mr Dewan’s report was, in our view, a relevantly ‘new’ circumstance within the meaning of s 77. In Hecht J Forrest J accepted a broad definition of what amounts to ‘new facts and circumstances’ as something not known to the Coroner at the time of an initial investigation. He said:
Mr and Mrs Hecht argue that the expression ‘new facts and circumstances’ ought to be given a broad, common-sense definition, consistent with the Explanatory Memorandum for the Coroners Bill 2008:
The reference to new facts and circumstances encompasses facts and circumstances that are new to the investigation. These facts may have been known to people during the investigation, but they were not known to the coroner conducting the investigation.
This argument should be accepted.[106]
[106]Hecht [2016] VSC 635 [43]–[44] (citations omitted).
We adopt the broad understanding of ‘new facts and circumstances’ countenanced by J Forrest J. It is noteworthy that there is no requirement, for example, that the fact or circumstance not have been in existence at the time of the initial investigation or could not have been discovered with reasonable diligence. We acknowledge, however, that the identification of the ‘new facts and circumstances’ is occurring within the statutory context of the power to order that previous findings be set aside and an investigation be re-opened. This suggests that matters of no, or little, substance would be excluded from meeting the statutory test under s 77(3)(a) even if previously unknown to the coroner. It is otherwise sufficient that the fact or circumstance was not known to the coroner conducting the investigation.
Mr Dewan’s report, dated 5 February 2016, did not come into existence until well after the Coroner had arrived at his Original Finding on 24 June 2013. It clearly raised the issue of the adequacy of the assessment of the urine tests taken on 31 July 2009, the issue of whether further samples ought to have been collected, the issue of whether further testing of sensitivities ought to have been undertaken to isolate the relevant pathogen, and ultimately the question of whether Ms Lloyd ought to have been discharged from the Hospital on 5 August 2009 including whether her treatment at that time was appropriate. Mr Dewan’s report was not merely a competing medical opinion that simply recorded a disagreement on medical issues. Rather, as a matter of substance, it served to shift the weight of the evidence about the medical treatment of Ms Lloyd and the basis on which the primary and secondary findings had been made.[107] The re-opening of the investigation would have allowed the Coroner to test whether the primary and secondary findings were made on an accurate and fully informed basis.
[107]See [118] and [133] below.
Mrs Mortimer also relied on the denials of the night-time carers, Sue Young and Gary Leeworbitz, as constituting new facts and circumstances. She submits that the material is relevant to, and potentially impacts upon, the Coroner’s primary finding of the reasonableness of the medical management, based on the HMIT’s conclusions, in circumstances in which the HMIT clearly accepted the justifications given for Ms Lloyd’s discharge from the Hospital on 5 August including the advice that the night-time carers ‘demonstrated that they knew what to watch for and were in agreement with this plan’ for trial-voiding.[108] We accept that the denials relied upon by Mrs Mortimer may impact upon an assessment of the reasonableness of the medical management and thus, had the Coroner not applied the unsustainability test, those facts and circumstances may have supported the appropriateness of re-opening the investigation.
[108]See [13] and [22] above.
In our view, the failure by the Coroner to apply the statutory test ‘involved’ an error of law in that, had he not applied the overly restrictive test he did apply, he would, or at least might, have arrived at a different finding and re-opened the investigation into Ms Lloyd’s death. The error was vitiating in that ‘it was not possible to say that, if the error ... had not been made ... the same decision would have been reached’.[109]
[109]Risi Pty Ltd v Pin Oak Holdings Pty Ltd [2017] VSCA 317 [57].
We consider that had the Coroner not applied the unsustainability test, but applied instead a broad understanding of appropriateness, and had he taken account of the disagreement about what instructions were given for the care of Ms Lloyd upon her discharge from the Hospital on 5 August 2009, his decision to refuse to re-open the investigation might have been different.
We would uphold ground 2.
The success of grounds 1 and 2 means that the appeal should be allowed. In light of those conclusions, we address the remaining grounds of appeal more briefly.
Ground 3 – Did the judge err in failing to find that it was in the interests of justice for the investigation to be re-opened?
In his consideration of the second avenue of appeal by Mrs Mortimer, as Ms Lloyd’s senior next of kin, s 87A,[110] whether re-opening the investigation would be ‘in the interests of justice’, the judge said that s 87A empowers the Supreme Court ‘to overturn or vary a coroner’s decision based on factual findings if satisfied the interests of justice require it or make it desirable to do so’.[111] He acknowledged that this is a jurisdiction ‘to review the exercise of power by a specialist coroner after he or she makes a discretionary decision of a kind that calls for judgment which a coroner is peculiarly equipped to make on the basis of the material before them’[112] and so should be used ‘sparingly’.[113] He noted that ‘the interests of justice’:
are not the same as the interests of one party or even all the parties to the proceeding — they extend beyond the private interests concerned. In the context of the Act and the specific subject matter of investigations those interests would, amongst other things, take into account the desirability of finality in investigations, the extent to which an issue of public health and safety is engaged and ... the particular interests of next of kin being heard in relation to and understanding the findings of a coroner about the death of someone near to them.[114]
[110]See [55]–[56] above.
[111]Reasons [67].
[112]Ibid [70].
[113]Ibid.
[114]Ibid [72] (citations omitted).
The judge determined that there was
nothing in what Mrs Mortimer presented to the Coroner in her second application — nor in the further oral evidence of Mr Dewan — that either necessitates or makes it desirable in the interests of justice to allow the appeal against the Coroner’s refusal to re-open the investigation.[115]
[115]Ibid [80].
On that basis he rejected the s 87A appeal. He elaborated on this as follows:
I was not much assisted by the oral evidence of Mr Dewan. It simply served to underscore the fact that he agreed with the fundamental findings of cause of death as stated by the Coroner but disagreed with the views of the HMIT, Associate Professor King and the Coroner on the medical management by the Hospital and the presence of warning signs at the time of Ms Lloyd’s discharge.
That there were signs indicating pending renal failure was not new nor was it ignored by the Coroner. That there was reason for concern about the management of the patient was also addressed by the Coroner in his initial Finding. But notwithstanding those signs and concerns which were squarely raised and addressed, the Coroner had regard to the totality of the evidence — including the explanation of the emergency doctor, the views of the HMIT on review and the further views of Associate Professor King — and reached an independent conclusion on the medical management.[116]
[116]Ibid [78]–[79].
Mrs Mortimer submits that the factual findings of the Coroner were vitiated, in particular, because the Coroner misrepresented and/or misconstrued Professor King’s report[117] and it is in the interests of justice that the factual error be cured. This factual error is submitted to have led to the judge treating Mr Dewan’s report as merely signalling a disagreement about Ms Lloyd’s medical management whereas it had the effect of shifting the weight of the evidence about the medical treatment of Ms Lloyd in circumstances where the Coroner, in refusing Mrs Mortimer’s second application to re-open the investigation, relied on the views of the HMIT of the ‘reasonable’ and ‘appropriate’ nature of the treatment.[118] In particular, Mrs Mortimer relies on the acknowledgement in the Coroner’s Original Finding, and Amended Finding, that on 5 August 2009 blood tests revealed that there were signs of ‘pending renal failure’.[119] Mr Dewan’s report had the effect of explaining the significance of those blood tests and this shift in the weight of evidence was reinforced when added to the conclusion of Professor King, accurately expressed.[120]
[117]See [27] and [99] above.
[118]See [47] above.
[119]See [13] above.
[120]See [99] above.
A judge’s assessment of what is necessary or desirable in the interests of justice is essentially discretionary. To determine that the exercise of a discretion miscarried involves identifying an error of the type identified in House v The King.[121] In this context the judge concentrated on the Coroner’s treatment of Mr Dewan’s report but, not having the report of Professor King, did not take into account the relevant consideration of the need to cure the misconstruction and/or misrepresentation of Professor King’s conclusions. It follows that the judge committed a House v The King error and his discretion miscarried, albeit that the difficulty arose because the judge was not given all the relevant materials. It is to be remembered also that Mrs Mortimer appeared before the judge as a self-represented litigant whereas in this Court she is represented by counsel.
[121](1936) 55 CLR 499.
We would uphold ground 3.
Ground 4 – Was a denial of procedural fairness before the Original Finding an available ground of review about the refusal before the primary judge?
Ground 5 – Ought the Coroner have given Mrs Mortimer an opportunity to be heard before making findings adverse to her and her interests?
It is convenient to deal with grounds 4 and 5 together.
The core of grounds 4 and 5 is a complaint by Mrs Mortimer that she was never given the opportunity to comment on the Original Finding of the Coroner before it was released. She also complains that although ultimately the Coroner was prepared to adjust his Original Finding by referring to her concerns, this did not reflect the problems she sought to raise. She submits that her request to the Coroner to be heard amounted to a ‘new circumstance’ within the meaning of s 77.
The judge found that this complaint could not form part of an available ground of review in relation to the Coroner’s refusal to re-open the investigation because it was a challenge to the Original Finding not to the refusal to set aside the investigation.[122]
[122]Reasons [40]. In fairness to the judge, however, he sought to re-interpret Mrs Mortimer’s complaint that there was a breach of natural justice by analysing whether her grievance was not better encapsulated as a challenge to the Coroner’s construction of s 77(3) ‘although not specifically raised by Mrs Mortimer’: Reasons [42]. He then went on to deal with this issue in depth in the manner we have described above. Although we have rejected the conclusions the judge arrived at on the issue of construction, his approach reveals that he did not ignore, or put to one side, the challenge raised by Mrs Mortimer.
It is not in contest that, as the senior next of kin of Ms Lloyd, Mrs Mortimer had a common law right to be heard in opposition to any potential adverse finding in relation to herself and the interests she represented.[123] In this setting it was confirmed in Hecht that the failure to give Mr and Mrs Hecht, and their son-in-law, Mr Kisielis, an opportunity to put submissions and adduce further evidence before the coroner made relevant findings,[124] amounted to
a denial of procedural fairness at the initial stage in that the Coroner reached her findings without alerting (at a minimum), Mr Kisielis, as the senior next of kin, to the fact that there was a potential for an adverse finding and inviting submissions prior to delivering her ruling.[125]
As mentioned, the findings in issue related to whether the right-hand indicator of a vehicle was operating and the details of a right-turn manoeuvre.[126]
[123]Annetts v McCann (1990) 170 CLR 596, 598, 599.
[124]See [67] above.
[125]Hecht [2016] VSC 635 [51].
[126]See [63] above.
In Hecht J Forrest J went on to treat the fact that Mr and Mrs Hecht sought to make submissions, in respect of the critical findings, which had not been considered by the coroner, as a ‘new circumstance’.[127] He also treated the breach of procedural fairness at the initial stage as a basis for finding, under s 87A, that it was in the interests of justice to set aside findings of the coroner and set aside the refusal to re-open the inquest.[128]
[127]See [67] above. Hecht [2016] VSC 635 [49].
[128]Hecht [2016] VSC 635 [63].
Mrs Mortimer submits that similar considerations apply here as there were adverse observations made in relation to Ms Lloyd, namely that she caused a ‘behavioural disturbance’, and adverse findings made in relation to Mrs Mortimer, namely, that she did not always follow the medical plan of management for her sister.[129] Mrs Mortimer submits that once the Coroner was aware that he was likely to record matters that reflected badly on both Ms Lloyd and Mrs Mortimer he ought to have given Mrs Mortimer, as Ms Lloyd’s next of kin, an opportunity to make a submission in relation to them. His failure to do so amounted to a breach of natural justice or procedural fairness.
[129]See [29] above.
The difficulty facing Mrs Mortimer is that the adverse observations made by the Coroner appear to have been ‘comments’ made by the Coroner pursuant to s 67(3) of the Act. This stands in contrast to the circumstances in Hecht where the breach of procedural fairness related to the failure to provide an opportunity to make submissions before critical findings were made. Here, the adverse comments made by the Coroner in respect of Mrs Mortimer are not ‘findings’ made by the Coroner pursuant to s 67(1). Not being findings, they are not matters about which a person has a right to apply to the Coroners Court, under s 77(1) of the Act, for an order that they be set aside. The right to appeal to the Supreme Court under s 84 (either a s 87 appeal or a s 87A appeal) is restricted to an appeal from a refusal by the Coroner to re-open an investigation under s 77.
It follows that this Court has no jurisdiction under s 84 of the Act to entertain the complaint under grounds 4 and 5 and we reject those grounds. This is not to deny that there may have been an alternative avenue by which Mrs Mortimer could have sought relief in the Supreme Court by reason of the alleged denial of natural justice or breach of procedural fairness by the Coroner before the making of the adverse comments, namely, by means of an application for judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.
The application to adduce further evidence
Mrs Mortimer supports her application to adduce the expert medical opinion report of Professor King on the basis that, in effect, it should have been before the judge because it was relevant to his assessment of the potential impact of the new material. The judge recorded that he did not have all the material available to the Coroner when he said:
I did not have available to me all of the material that the Coroner had regard to when making his original Finding so as to appreciate the extent to which anything Mr Dewan said was new, significant or otherwise.[130]
[130]Reasons [77(b)].
In her affidavit in support of her application to adduce further evidence not before the judge below, Mrs Mortimer explains that she did not seek to rely on Professor King’s report before the judge because she was representing herself and understood that, before the judge, she could only refer to new information that had not been before the Coroner. Professor King’s report has been examined by the Coroner and so, Mrs Mortimer believed, she could not rely upon it in her submissions before the judge.
Order 64.13(1) of the Rules relevantly provides that unless the Court of Appeal otherwise orders, in an application for leave to appeal or an appeal, evidence which was not before the court whose decision is sought to be appealed shall not be relied upon.
As mentioned above, the Coroner does not oppose the application to adduce further evidence.[131]
[131]See [5] above.
We consider that the circumstances here are most unusual. The evidence sought to be relied upon in this Court was clearly before the initial decision-maker, the Coroner, but, due to her lack of legal representation, Mrs Mortimer failed to adduce it before the judge. The relevance of the evidence lies, in particular, in its ability to correct the representation made by the Coroner of Professor King’s conclusion about whether checking Ms Lloyd’s urine for infection on 5 August 2009 might have prevented Ms Lloyd re-presenting in septic shock[132] and in revealing the significance of Mr Dewan’s opinion as a new fact or circumstance that would render it appropriate to re-open the investigation, in particular to obtain a response by Professor King. It is principally relied on for the purpose of ensuring that this Court has an accurate record of what Professor King said.
[132]See [99] above.
In the unusual circumstances in which this application comes before this Court, we consider that it would be appropriate, for the purposes of accuracy, to order that the Court receive the evidence of Professor King’s report.
Conclusion on the application for leave to appeal
It follows, for the reasons we have given, that the application for leave to appeal should be granted.
Conclusion on the appeal and disposition
We would allow the appeal to this Court and set aside the order of the judge, dated 9 May 2017, dismissing the appeal from the Coroner.
With respect to the further disposition of this matter, s 87(4) permits this Court to make ‘any order it thinks appropriate’. The power is a broad one, as acknowledged by J Forrest J in Hecht. Relevantly it must include those powers which the Coroner could have exercised under s 77(2), including the power to order that some or all of the findings be set aside and, if considered appropriate, to order that the investigation be re-opened.
We consider that the refusal of the Coroner, made on 24 June 2016, to re-open the investigation should be set aside, pursuant to s 84 of the Act, on the ground that it involved an error on a question of law, under s 87, involving a misconstruction, and misapplication, of the statutory criterion under s 77(3)(b). We also consider that the refusal to re-open the investigation should be set aside, pursuant to s 87A of the Act, in that it is desirable, in the interests of justice, that the investigation be re-opened, in particular to resolve the factual dispute with respect to the circumstances of Ms Lloyd’s discharge from the Hospital and the regime to be followed at her home, including the clarity of the communications involved. It will also be necessary to gauge whether the ‘setting of chronic behavioural disturbance’[133] affected Ms Lloyd’s treatment, and, if so, to what extent it did so.
[133]See [23] above.
We consider that the matter ought be remitted to the Coroners Court with a direction that the investigation be re-opened. Given that Ms Lloyd died in 2009 together with the protracted nature of this proceeding to date (including the first refusal to re-investigate, the two subsequent appeals, and the second refusal to re-investigate), and given that it is recognised under s 8(b) of the Act that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death, in our view there should be a fresh investigation. Here the distress has been occasioned by the refusal to re-open, a refusal which we have concluded involved an error of law and which should be set aside in the interests of justice.
Moreover, the protracted nature of the proceeding thus far supports the view that this Court ought to provide a full and satisfactory disposition of the matter rather than remitting the matter to the Coroners Court only for the limited purpose of the Coroner applying the correct statutory test. The relief to be given in this appeal ought be effective relief. It should include a direction to re-open the investigation. For the investigation to be undertaken by someone with fresh eyes, and for justice to be seen to be done, the re-opened investigation ought be constituted by a different coroner from the coroner who undertook the original investigation.[134]
[134]There is no suggestion of any apprehended or actual bias by the Coroner.
For the purpose of re-opening the investigation, all the findings of the Coroner should be set aside, including the primary and secondary findings, so that the investigation is not pursued within a restricted framework. Many of the findings made by the Coroner are inter-mingled and, directly or indirectly, bear upon the issue of the reasonableness of the care given to Ms Lloyd, especially in relation to her discharge from the Hospital on 5 August 2009. This is not to say that any of the findings were wrong in that they were made against the weight of the evidence but rather to conclude that all of the findings should be set aside to allow an open fresh investigation to take place. It may be that after a comprehensive re-investigation some or all of the findings made by the Coroner to date are confirmed. In any event, the aim should be to ensure that whatever findings are made, upon the re-opening of the investigation, they are made on an accurate and fully informed basis.
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