Whittington v Solicitor-General - [2024] NZHC 1314

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-45

[2024] NZHC 1314

UNDER the Coroners Act 2006, the Judicial Review Procedure Act 2016, the Crimes Act 1961 and the High Court Rules 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

MARK ANTHONY WHITTINGTON

Applicant

AND

THE SOLICITOR-GENERAL

Respondent

Hearing: 19 February 2024

Appearances:

Applicant in person

I M G Clarke for the Respondent

Judgment:

23 May 2024

JUDGMENT OF PALMER J

Solicitors
Crown Law Office | Te Tari Ture o te Karauna, Wellington

WHITTINGTON v SOLICITOR-GENERAL [2024] NZHC 1314 [23 May 2024]

What happened?

[1] The medical records of Ms Carol Ann Whittington indicate that she was diagnosed with bladder cancer in December 2018. On 12 February 2019, her medical records noted that she was referred to palliative care. Her health deteriorated over the winter of 2019. On 10 September 2019 she was transferred to a rest home. On 16 September 2019, she died at the Princess Alexandra Retirement Village in Napier, aged 72. The Medical Certificate of Cause of Death recorded carcinoma of bladder as the underlying cause of death, chronic kidney disease as the antecedent cause of death and myocardial infarction as the disease or condition directly leading to death. The doctor who signed the Certificate recorded that he was satisfied Ms Whittington’s death did not need to be reported to the coroner and he did not request a post-mortem.

Law of coronial inquiries

[2] Section 3 of the Coroners Act 2006 (the Act) provides that its purpose is to help prevent deaths and to promote justice, including through “investigations, and the identification of the causes and circumstances, of sudden or unexplained deaths, or deaths in special circumstances”. Under s 57 of the Act, a coroner may open and conduct an inquiry (including any related inquest) for three purposes: to establish that a person has died, when and where they died, the causes and consequences of their death, and their identity; to make recommendations or comments; and to determine whether the public interest would be served by the death being investigated by other authorities. In deciding whether to open and conduct an inquiry, s 63 of the Act requires a coroner to have regard to specified matters, including:

(a)whether the causes of death appear to have been natural;

(b)the extent to which the death was due to the actions or inactions of any other person;

(c)the existence and extent of allegations, rumours, suspicions or public concern about the death;

(d)the extent to which drawing attention to the circumstances of the death may be likely to reduce similar deaths;

(e)the desire of any members of the immediate family of the deceased that an inquiry should be conducted; and

(f)any other matter the decision-maker thinks fit.

[3] Section 95 of the Act empowers the Solicitor-General or the High Court to order an inquiry be opened into a death by a Coroner “[i]f satisfied that an inquiry is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whittington v Solicitor-General

Details

AGLC: Whittington v Solicitor-General [2024] NZHC 1314
Case: [2024] NZHC 1314
Decision Date: 23 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Mark Anthony Whittington, the son of the deceased, Carol Ann Whittington, applied for judicial review of the Solicitor-General's decision not to order a coronial inquiry into his mother's death. Carol Whittington died in September 2019, and her cause of death was certified as carcinoma of the bladder. The applicant sought to challenge the decision on the basis that it was pre-determined and failed to properly investigate the evidence he provided. The court was required to decide whether the Solicitor-General's decisions to decline to order a coronial inquiry were reviewable errors and whether they breached any duty of investigation under the New Zealand Bill of Rights Act 1990.

The court found that the evidence did not support the applicant's claims of pre-determination or inadequate investigation. The Solicitor-General had considered all relevant material, including the applicant's complaint to the Health and Disability Commissioner and correspondence between the Crown Law Office and the Coronial Services Unit. The court also found that the duty of investigation under the New Zealand Bill of Rights Act 1990 was met by the doctor's investigation and the Solicitor-General's review of the available information. The court further held that the medical records did not support the applicant's belief that his mother's death was suspicious or that she was misdiagnosed. The court concluded that the decisions were reasonable, lawful, and valid, and therefore dismissed the application for judicial review.

The court declined to make any orders for costs as the Solicitor-General did not seek costs. The court's judgment was that the decisions of the Solicitor-General to decline to order a coronial inquiry were lawful and reasonable, and there was no reviewable error in the decisions.

Orders