Trinh v The Coroners Court of Victoria

[2019] VSC 133

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S ECI 2019 00785  

JESSICA TRINH

Appellant

v  

CORONERS COURT

and

First Respondent

SOPHIE AVERMAN

Second Respondent

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2019
DATE OF JUDGMENT:	28 February 2019
CASE MAY BE CITED AS:	Trinh v The Coroners Court of Victoria
MEDIUM NEUTRAL CITATION:	[2019] VSC 133

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CORONERS COURT – Appeal against Coroner’s determination to release body to the mother of the deceased rather than the alleged domestic partner – Appeal dismissed – Coroners Act 2008 s 85 and s 87 – Coroner’s Act 2008 s 3 definitions of domestic partner and senior next of kin.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Rivette	Victorian Bar Pro Bono Scheme
For the First Respondent	Mr R Gipp	Ms J Wilson (Principal In-House Solicitor)
For the Second Respondent	Ms J Greenham	Elberg Lawyers

HIS HONOUR:

1. The appellant is Ms Jessica Trinh.  The issue is whether a Coroner made an error of law in deciding to release the body of a deceased person, Irving Gary Fikhman (known as Gary), to Gary’s mother, Ms Sophie Averman, rather than to Ms Trinh. 

1. In short, for the reasons that follow, I am not persuaded that the Coroner made such an error of law and accordingly the appeal must be dismissed.

1. Ms Trinh and Gary had a daughter together, Rikki, now 2 ½ years old.  Ms Trinh claims to have been the ‘domestic partner’ of Gary immediately before the time of his death.  If so, under the Coroners Court Act 2008[1] (the Act) she was entitled to have Gary's body released to her.  If not, the effect of the Act meant that Gary's body should be released to his mother, Ms Averman.

   [1]Coroners Court Act 2008 (Vic).

1. Ms Trinh's Notice of Appeal only names the Coroner's Court as defendant (respondent).  I consider that Ms Averman ought to have been named as a respondent too, and will order that she be joined to the proceeding.

1. Both Ms Trinh and Ms Averman made applications to the Coroner to have Gary’s body released to them.  In those circumstances, the Coroner must release the body to the person who has ‘the better claim’: s 48(2). A hierarchy of entitlement to the better claim is set out in s 48(3) of the Act.  Absent an executor (as is the case here), the body is to be released to the ‘senior next of kin’, a term defined in s 3 of the Act. The defined term ‘senior next of kin’ itself contains an order of priority for the better claim: a spouse or domestic partner has highest priority, followed by an adult child, and then a parent.

1. So, Ms Trinh was entitled over Ms Averman to have Gary’s body released to her if she was, in fact, his ‘domestic partner’.

1. The Coroner, however, was not satisfied on the evidence before her that Ms Trinh was Gary’s domestic partner immediately before his death. Thus, she ordered the release of his body to his mother, Ms Averman. Ms Trinh has appealed within the time prescribed by s 85(2) of the Act (48hrs of the decision).

1. Being an appeal under Part 7 of the Act, it is confined to an appeal ‘on a question of law’: s 87(1). The Act further provides that such an appeal ‘includes an appeal on grounds that the finding the subject of the appeal is against the evidence and the weight of the evidence to such an extent that no reasonable Coroner could have made the finding’: s 87(1A).

1. The Coroners Court has, through its solicitor, provided an affidavit exhibiting documents from the Coroner’s file:

(a)        The Coroner’s decision of 21 February 2019 JEW-1

(b)        The ‘police report of death for Coroner’ JEW-2

(c)        Ms Averman’s application for release of the body JEW-3

(d)       Ms Trinh’s application for release of the body JEW-4

(e)        Email correspondence by Ms Trinh to the Coroner’s Court dated 17 February 2019  JEW-5 (in effect, a reply to the material from Ms Averman described in the next exhibit);

(f)         Email correspondence from Ms Averman's solicitors to the Coroner's Court dated 14 February JEW-6

(g)        Statement made by Ms Averman dated 18 February with attachments JEW-7

(h)        Copy Child Support Agency document 17 January 2019 supplied by Ms Averman JEW 8.

1. In a written outline of submission on behalf of the Coroners Court, Mr Gipp of Counsel outlined in a neutral fashion the relevant provisions of the Act and relevant authority on those provisions, but otherwise states the Coroners Court adopts the ‘Hardiman’ position.[2]

   [2]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

1. I have been assisted by the able submissions of all counsel on the relevant law. In substance, according to the way the appeal was argued, the question before me is whether it was manifestly unreasonable on the part of the Coroner, on the evidence before her, not to find that Ms Trinh was the ‘domestic partner’ of the deceased immediately before his death on 8 February 2019. 

1. Adopting what was said by Mason J in Minister forAboriginal Affairs v Peko-Wallsend Ltd[3] at pages 40-42, the notion of manifest unreasonableness is the preferred ground to properly describe an error which consists of failing to given adequate weight to a relevant factor of great importance, or giving excessive weight to a relevant factor of no great importance.[4] Sticking to the language of s 87(1A) of the Act, the ground is enlivened if a finding is made against the evidence and weight of the evidence to such an extent that no reasonable Coroner could have made that finding.

   [3][1986] 162 CLR 20.

   [4]Ibid 40-42 [15].

1. I accept Ms Greenham’s description of that test, as amounting to a ‘high hurdle’.

1. Time does not permit a thorough explanation of the facts. A brief description will suffice and I will only give it to the extent necessary to address the key arguments.

1. The Coroner had before her the material which I listed earlier. It is exhibited to the affidavit of Joanne Wilson affirmed 26 February 2019. Her Honour stated that she read and considered all of that material. Although she only adverted in her written reasons to some specific documents, I am not prepared to find that she overlooked or failed to consider documents she did not specifically mention, or particular aspects of them.

1. The Coroner made three particular findings of fact — and gave certain weight to them — which the appellant challenged as either being against the weight of the evidence, or having been given too much or too little weight to the extent that, in combination, they rendered the Coroner’s overall decision manifestly unreasonable.

1. Those facts were-

(a)        that Gary lived with his mother and not Ms Trinh in the period leading up to his death (paragraph 10);

(b)        that Ms Trinh was named as Gary’s “next of kin in (unspecified) documents” (paragraph 6); and

(c)        that Ms Trinh failed to refute or address some very specific allegations of fact put by Ms Averman (paragraph 7).

1. In relation to the residence fact, the appellant argued that the Coroner failed to take into account evidence as to the reason why Gary was not residing with Ms Trinh. On that issue, the Coroner had before her a statement in Ms Averman’s evidence as follows —

… the Department of Health and Human Services were involved and did not allow Gary to reside with or be at Jessica’s home. He was only permitted to see their child under my supervision.

1. A much fuller explanation of that fact was provided to me (but not to the Coroner) in material filed on this appeal. Since the question for me is whether the Coroner, on the evidence before her, made a decision which was manifestly unreasonable I do not take into account the new evidence.

1. Although it could be said that the brief statement of fact which was before the Coroner may have sparked some additional enquiry, in my view it is not an error of law that the Coroner did not pursue that matter further. On its own, the evidence was not of such a nature so as to explain the fact of Gary’s residence with his mother, rather than Ms Trinh, as only being consistent with the maintenance of a domestic partnership with Ms Trinh. In any event, the Coroner did not regard the residence fact as determinative, no doubt cognisant of the definition of ‘domestic partner’ which does not necessarily require that the partners live under the one roof.[5]  That is to say, she took the fact of residence into account amongst other facts.

   [5]Coroners Court Act 2008 (Vic) s 3.

1. In relation to the “next of kin” fact, the Coroner had before her a number of pieces of evidence bearing upon that matter. Ms Averman said in her statement “the current next of kin is recorded as the mother of my sons child Jessica Trinh” and later “I am unsure as to how Jessica came to be recorded as the next of kin.  I believe that I am his next of kin…”.

1. In the material filed by Ms Trinh she wrote “since Gary’s release from prison he has been placing my name under next of kin on formal forms…”. Included in the documents she gave the Coroner was a single page (page 2 of 5) of a LifeWorks document with handwritten information filled out on a printed form. Gary’s name appeared in handwriting at the top. Against the printed words “emergency contact name” was Ms Trinh’s name, and against “relationship to you” was the word “partner”, together with her mobile phone number.  Unfortunately this document was not placed in any context. I had the benefit of the full document with the preceding page, not shown to the Coroner.  It showed that the single page was part of a document completed by Gary himself on 31 January 2019 and signed by him.

1. In that context, the Coroner’s remark that Gary named Ms Trinh as his next of kin on (unspecified) documents does not misdescribe the state of the evidence that was before her, nor does it indicate that she failed to give adequate weight to evidence of an important character.  In any event, it is clear that the Coroner took into account such evidence as there was about Ms Trinh being named next of kin.

1. Finally, on the “failure to refute” point, the Coroner had before her a written statement by Ms Averman which contained a number of specific allegations that, if true, undermined Ms Trinh’s claim to continue to be Gary’s domestic partner. No doubt a good deal of that material would have been hurtful and offensive to Ms Trinh. But there were quite specific allegations. Ms Trinh replied to Ms Averman’s material. In it she said: “I’m in shock at the lies and coldness in the way she has presented a relationship … The information Sophie has provided is false and not true”.

1. On her behalf, counsel for Ms Trinh pointed to those statements to demonstrate that, contrary to the Coroner’s finding, Ms Trinh did in fact refute, explain or otherwise address the specific allegations or facts put by Ms Averman. I do not accept that characterisation of Ms Trinh’s reply.  Ms Trinh’s response was general only, and non-specific.

1. In my view, neither alone nor in combination do the various arguments put on behalf of Ms Trinh persuade me that the Coroner’s decision was manifestly unreasonable, nor made against the evidence and the weight of the evidence to such an extent that no reasonable Coroner could have made the finding. Accordingly, Ms Trinh has failed to demonstrate an error of law on the part of the Coroner.

1. The appeal must be dismissed.

1. [After hearing and ruling on a submission as to costs] The orders will be as follows:

(a)        Sophie Averman is added as second respondent to the appeal.

(b)        The appeal is dismissed.

(c)        The appellant is to pay the second respondent’s costs of the appeal.