Thorne v McGuire
[1999] WASC 137
•20 AUGUST 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: THORNE -v- McGUIRE & ORS [1999] WASC 137
CORAM: HEENAN J
HEARD: 26 JULY 1999
DELIVERED : 20 AUGUST 1999
FILE NO/S: CIV 1435 of 1999
MATTER :Application for writ of certiorari against MICHAEL JOSEPH McGUIRE, SM Perth Coroner
EX PARTEARNOLD THORNE
ApplicantAND
MICHAEL JOSEPH McGUIRE, SM PERTH CORONER
First RespondentMAXINE VALENTINE NINYETTE
Second RespondentPRISCILLA SHEREE KICKETT
Third Respondent
Catchwords:
Suitors fund - Order nisi for certiorari - Costs certificates - Proceeding "in the nature of an appeal" - Question of law - Award of costs "but for the provisions of some other Act or law" - Discretion to grant certificate - Right to burial of body of deceased relative - Ranking of family members - Decision of coroner said to have been based on misunderstanding as to status of claimant - Costs of family members
Legislation:
Suitors' Fund Act 1964 (WA)
Result:
Certificates not granted
Representation:
Counsel:
Applicant: Mr T G Downie
First Respondent : No appearance
Second Respondent : Ms K J Levy
Third Respondent : Ms K J Levy
Solicitors:
Applicant: Atkins & Co
First Respondent : No appearance
Second Respondent : Halperin Fleming Meertens as agent for Lane Buck and Higgins
Third Respondent : Halperin Fleming Meertens as agent for Lane Buck and Higgins
Case(s) referred to in judgment(s):
Basapa v Burton (1991) ASC 56,724
Re Boothman ex parte Trigg [1999] WASC 102
Richards v Faulls Pty Ltd [1971] WAR 129
Smith v Tamworth City Council & Ors, unreported; SCt of NSW (Young J); Library No 9604196; 14 May 1997
Case(s) also cited:
Acquilina v Dairy Farmers Co-operative Milk Co Ltd (1965) 82 WN (pt 1) (NSW) 531
Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corp Limited, unreported; FCt SCt of QLD; Appeal No 5499 of 1998; 18 December 1998
City of Subiaco v Minister for Planning & Heritage, unreported; FCt SCt of WA; Library No 970051; 19 February 1997
Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Fitzgerald v Pattiselanno [1994] NTSC 44
Greenco Pty Ltd v Wilden Pty Ltd, unreported; FCt SCt of WA; Library No 980120; 18 March 1998
Gurnett v Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106
Kawicki v Ralph & Anor, unreported; SCt of NSW; Library No 95014374; 13 February 1997
Lauchlan v Hartley [1980] Qd R 149
Palamore Pty Ltd v Shire of Broome, unreported; FCt SCt of WA; Library No 980408; 23 July 1998
Pickford v Incorporated Nominal Defendant (1981) VR 583
Queensland Building Services Authority v The Proprietors of "The View", unreported; FCt SCt of QLD; Appeal No 825 of 1998; 1 December 1998
Re Burton; Ex parte Potomac Marine Service Pty Ltd, unreported; SCt of WA (Walsh J); Library No 930274; 29 April 1993
Re Cooke, unreported; SCt of Qld; No MIS 688 of 1994; 17 July 1995
Venetian Nominees Pty Ltd and Ors v Conlan, unreported; FCt SCt of WA; Library No 980735; 18 December 1998
Zappula v Perkins (No 2) [1978] Qd R 401
HEENAN J: On 7 April 1999 Basil Geoffrey Thorne, a 31‑year‑old part Aboriginal man, died. During the following week three persons requested the Coroner to release his body for burial. Maxine Valentine Ninyette, the second respondent, was one of those persons. She is the eldest sister of the deceased. Another was Priscilla Sheree Kickett, the third respondent, whose request identified her as the de facto spouse of the deceased. The third person was Wayne Ninyette, a brother of the deceased. On 20 April the Coroner decided to issue a certificate for release of the body to the second respondent. On 14 May the applicant Arnold Thorne, who is the father of the deceased, brought an application before Parker J to make absolute an order nisi for a writ of certiorari to quash the decision. The Crown solicitor had informed the Court prior to the hearing that the Coroner, the first respondent, did not wish to be heard and would abide by the order of the Court. The applicant and the remaining two respondents were represented, counsel for the latter submitting that the decision should be confirmed.
From the papers before his Honour it seemed that the request of Wayne Ninyette, by letter dated 12 April, had been made on behalf of the applicant, the latter having been too ill at that time to make his own request. Also it appeared to his Honour that the Coroner had overlooked a further request which the applicant made on his own behalf on 15 April. Taking the view that the law ranks the claim of a father to bury his child ahead of that of a brother or sister, his Honour found that there was need for the Coroner to take into account the request of the applicant and to reconsider his decision. Further, because a surviving spouse or a de facto spouse will be preferred ahead of the others (see Smith v Tamworth City Council & Ors, unreported; SCt of NSW (Young J); Library No 9604196; 14 May 1997) there needed to be a decision, if one were not already made, as to whether or not the third respondent was in fact the de facto spouse of the deceased when he died. Having been persuaded that a fundamental error on the face of the record had been demonstrated, his Honour made absolute the order nisi, quashed the decision of the Coroner and remitted the question of the issue of another certificate for consideration by the Coroner in the light of his Honour's reasons. His Honour also reserved the question of costs and gave the parties liberty to apply. Now the applicant and the second and third respondents each seek a certificate pursuant to the provisions of the Suitors' Fund Act 1964.
The relevant provisions of the Act read as follows.
"10.(1) Where an appeal against the decision of a Court in any proceedings--
(a)to the Supreme Court
…
on a question of law succeeds, the Supreme Court may, upon application made to the Court in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal an indemnity certificate in respect of that appeal.
…..
11.(1) Subject to this Act, where a respondent to an appeal has been granted an indemnity certificate, the certificate entitles the respondent to be paid from the Fund--
(a)an amount equal to the appellant's costs--
(i)of the appeal in respect of which the indemnity certificate was granted;
…
(b)an amount equal to the respondent's costs--
(i)of the appeal in respect of which the certificate was granted;
…
as taxed or agreed upon by the Board and the respondent or the respondent's solicitor and not ordered to be paid by any other party; and
(c)where the costs referred to in paragraph (b) of this subsection are taxed at the instance of the respondent an amount equal to the costs incurred by the respondent in having the costs taxed.
….
(3)Notwithstanding the foregoing provisions of this section--
…
(b)the amount payable from the Fund to any one respondent pursuant to an indemnity certificate shall not in any case exceed the sum of one thousand dollars or such other amount as may from time to time be prescribed.
….
12A.….
(2)Where after the coming into operation of the Suitors' Fund Act Amendment Act, 1971, an appeal on a question of law succeeds and the Court that allowed the appeal would, but for the provisions of some other Act or law, have ordered costs of the appeal, fixed or to be taxed, or some proportion thereof, to be paid by the respondent--
(a)that Court shall make a finding to that effect and shall specify the amount of costs it would have fixed or state that it would have directed them to be taxed, or what proportion of the taxed costs it would have ordered to be paid, as the case requires; and
(b)the Supreme Court may, upon application made to it in that behalf, grant a costs certificate to the appellant and, if so, shall include in it the substance of the finding referred to in paragraph (a) of this subsection.
….
(4)Subject to this Act, where an appellant has been granted a costs certificate, the certificate shall entitle the appellant to be paid from the Fund--
….
(b)if the certificate was granted under subsection (2) of this section--
(i)the amount of costs of the appeal which the Court that allowed the appeal would have ordered to be paid by the respondent; or
(ii)the taxed costs of the appeal, or such proportion of the taxed costs as that Court would have ordered to be paid by the respondent, including the costs incurred by the appellant in having those costs taxed, or in lieu of the taxed costs or that proportion of them an amount agreed upon by the board and the appellant or the appellant's solicitor.
as the case requires.
(5)The amount payable from the Fund to any one appellant pursuant to a costs certificate shall not in any case exceed the sum of one thousand dollars or such other amount as may from time to time be prescribed."
Incidentally, by reg 14 published in the Government Gazette of 10 November 1970 the amount referred to in s 11(3)(b) was increased to $2,000.
Costs certificate
The applicant seeks a costs certificate under s 12A(2). So far as this case is concerned the certificate would entitle him to receive from the Fund an amount not exceeding $1000 in respect of costs which, "but for the provisions of some other Act or law" this Court would have ordered to be paid by "the respondent".
Clearly the applicant succeeded in the proceeding before Parker J. Thus, as Owen J commented when dealing with a similar matter in Re Boothman ex parte Trigg [1999] WASC 102, before exercising its discretion to grant such a certificate the Court must be persuaded, first, that the proceeding in question was an appeal, secondly that it was an appeal on a question of law and, finally that, but for the provision of some other Act or law preventing the Court from doing so, the Court in these particular circumstances would have ordered the costs or some proportion thereof to be paid by "the respondent".
By reason of s 3 of the Act an appeal "includes any proceeding by way of discharging or setting aside a judgment, a motion for a new trial, a case stated for the opinion of the Supreme Court on a question of law, an order to review granted under section 197 of the Justices Act, 1902, and any other proceeding in the nature of an appeal". In order to come within that definition the proceeding before Parker J would have to qualify as being "in the nature of an appeal".
In general terms, an appeal is "an application to a superior court or tribunal to reverse, vary or set aside the judgment, order, determination or decision or award of an inferior court or tribunal in the hierarchy of courts or tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected" (37 Halsbury's Laws of England 4th ed par 677). Applying that general description and bearing in mind that it was an application to a superior court to set aside the decision of a Coroner on the ground that the decision was wrongly made, and bearing in mind also that the Coroner's Court of Western Australia is a court of record (see Coroner's Act 1996 s 5), the proceeding before his Honour might well qualify as being "in the nature of an appeal". However, the decision of the Coroner was not made in respect of an inquest or after a formal hearing. It was an administrative decision rather than a judicial one. In Re Boothman ex parte Trigg (supra) Owen J expressed considerable doubt as to whether the return of an order nisi for a writ of certiorari is an "appeal" within the meaning of the Act. I have a similar doubt but, without deciding the point, I shall assume for present purposes that such a proceeding does constitute an "appeal".
In considering whether the applicant was successful before Parker J "on a question of law" it is necessary to keep in mind that the Suitors' Fund Act is not intended to give relief where a case turns only on the particular facts. It is not the purpose of the Act to promote litigation nor to provide legal aid in a broad sense out of the Fund. The Act is intended to relieve a litigant from the burden of the costs of the appeal when, owing to a doubt about the correct rule of law to be applied, the case might reasonably be resolved in different ways (see Richards v Faulls Pty Ltd [1971] WAR 129 at 138 per Hale, Burt and Lavan JJ). In this instance, as in that case, the decision did not turn upon the formulation of or upon the application to the facts of any general principle of substantive law, nor did it turn upon the proper construction to be placed upon any provision of the Coroner's Act or of any other statutory provision. It turned upon a question of law only in the sense in which the question whether a finding of fact is open on the evidence is said to be a question of law. In my opinion, the proceeding before his Honour was not an appeal "on a question of law" within the meaning of the Suitors' Fund Act.
The final issue to be resolved in respect of the certificate sought under s 12A(2) is whether this is a case in which, but for the provisions of some other Act or law, I would have ordered at least some proportion of the costs of the proceeding before Parker J to be paid by "the respondent". As the written submissions show, counsel for the applicant at first contended that the Coroner ought to be accepted as the proper respondent to the notice of motion for the writ of certiorari. However, although Parker J found that there had been jurisdictional error on the part of the Coroner, there is no suggestion of misconduct, serious incompetence or error of a nature calling for strong disapproval or censure of the Coroner by this Court (see Basapa v Burton (1991) ASC 56,724). Having appreciated that in the circumstances I should not normally exercise my discretion so as to order that costs be paid by the Coroner, counsel for the applicant went on to submit that either the second respondent or the third respondent, or both of them, should be "the respondent" against whom a costs order might otherwise have been made. However, there is nothing in the materials before the Court to suggest that either of those persons did anything which might have contributed to the error which Parker J found had been made by the Coroner. Although each was represented at the hearing before his Honour, in the circumstances of this case I believe that it would have been wrong to award costs against either of them. After all, the subject of the dispute was the right to bury the body of a relative or, at least, a close friend. No question of principle was involved and no public interest required that the dispute be litigated. Thus, even if I had a discretion to do so, I should decline to grant a costs certificate to the applicant.
Indemnity certificates
The second and third respondents seek indemnity certificates under s 11 of the Act. So far as this case is concerned, as I understand the provisions of s 11(3)(b) of the Act in the light of reg 14, the certificates, if granted, would entitle each of them to receive from the Fund an amount not exceeding $2000 in respect of costs awarded against them to the applicant, as well as their own costs of the proceeding. However, because in my opinion the proceeding before his Honour was not an appeal "on a question of law" and also because in any event it is not a case in which I should exercise my discretion to do so, I decline to grant an indemnity certificate to either of them.