Appellant v First Respondent

1 Ms Marion Carter died peacefully in bed on the evening of 9 October 2012. According to the second respondent, Mr Ronald Charles Hollyfield, Ms Carter appeared to be fine, had not complained during the day about chest pain (as she had on previous occasions) and he was not concerned about her wellbeing. At about 10.30pm, Mr Hollyfield found that Ms Carter appeared not to be breathing and was unresponsive. She was unable to be revived.

2 Ms Carter's death was reported to the Coroner under s 4 of the Coroners Act 2008, apparently on the basis that the death appeared to have been unexpected.[1] A death which occurs in Victoria and appears to have been unexpected is a reportable death under ss 4(1) and 4(2)(a) of the Coroners Act.

3 The Coroner must investigate the death of a person if it appears to the Coroner that the death is a reportable death.[2] In this case, the forensic pathologist who inspected Ms Carter's body and medical records was unable to advise the Coroner as to the cause of her death.[3] The Coroner ordered that an autopsy be performed. Mr Hollyfield consented to the autopsy.[4] The results of the autopsy were unknown at the time the Coroner made a determination as to the release of the body.[5]

4 Under the Coroners Act a person may apply for a body to be released to the applicant.[6] On 18 October 2012, Ms Iris Carter submitted an application for the release of the body of the deceased to her. Ms Iris Carter is the deceased's sister. On 19 October 2012, Mr Hollyfield submitted an application for the release of the body of the deceased to him. In his application, Mr Hollyfield described himself as the partner of the deceased.

5 The Coroner considered the competing written applications and sought further information.[7] On 22 October 2012, the Chief Executive Officer of the Dandenong & District Aborigines Co-Operative Ltd, Mr Andrew Gardiner, wrote to the Coroners Court and advised that the traditional country of the deceased is Gunai/Kurnai at Lake Tyers Reserve and that it would be culturally appropriate to return the body of the deceased to Lake Tyers Reserve for burial on her traditional country.[8] The Coroner considered this letter.

6 The Coroner also considered letters from Ms Carter's nieces, Rae Carter, Thelma Hayes and Marion Hayes to the effect that the deceased had said she did not want to be buried at Lake Tyers and wanted to be cremated.

7 The Coroner determined to release Ms Carter's body to Mr Hollyfield without imposing any terms or conditions and made an order to that effect and gave written reasons for her determination.

8 In the written reasons for determination, the Coroner stated:

[35] Therefore, for the purposes of the Coroners Act 2008, Ronald Hollyfield is Ms Carter's senior next of kin.

[36] Further, the hierarchy prescribed for determining the senior next of kin includes:

"(d) if a spouse, domestic partner, son, daughter or parent is not available - a sibling who is of or over the age of 18 years;"

[37] Therefore, Iris Carter is below Mr Hollyfield in the hierarchy established in the Coroners Act 2008 for Ms Carter's senior next of kin.

[38] Section 8 of the Coroners Act 2008 also requires me to have regard, as far as possible in the circumstances, to a number of factors including:

"that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected"

[39] However, it is not possible to accommodate the cultural issues expressed by Iris Carter within the hierarchy of relationships imposed by the Coroners Act 2008 in the definition of senior next of kin.

[40] Further, in determining her wishes, Ms Carter had expressly rejected the traditions of her Aboriginal culture. Therefore, I am unable to impose conditions on the release of Ms Carter's body that will take into account her genetic heritage as a Gunai Kurnai woman.[9]

9 By an appeal commenced by notice dated 26 October 2012, Ms Iris Carter appeals from the Coroner's determination. The grounds of appeal are that the Coroner:

(1) failed to accord procedural fairness to the appellant;

(2) released Ms Carter's body before the autopsy results were released;

(3) gave inadequate weight to s 8(c) of the Coroners Act having regard to indigenous cultural beliefs and practices; and

(4) failed to consider a letter from Mr King of Gippsland & East Gippsland Aboriginal Co-Operative Ltd dated 22 October 2012.

10 Mr Penno, with Ms Harris of counsel, appeared for the appellant. Ms Hinchey of counsel appeared for the first respondent to assist the Court at the hearing of the appeal. Mr Hollyfield, the second respondent, appeared in person.

11 Pursuant to s 85 of the Coroners Act, a person who applied to have a body released to him or her under s 48 may appeal against an order to release the body or the terms of that release to the Trial Division of the Supreme Court constituted by a single judge.[10] An appeal of this kind is an appeal on a question of law.[11]

The Coroners Act

12 It is convenient here to set out relevant sections of the Coroners Act. Section 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. [12]

Section 9 provides:

Fairness and efficiency of coronial system

The coronial system should operate in a fair and efficient manner. [13]

Section 47 provides:

Release of body

(1) The coroner may order that a body under the control of the coroner be released if -

(a) the coroner is satisfied that it is no longer necessary for the coroner to have control of the body in order to exercise his or her functions under this Act; or

(b) the coroner has determined that the death was not a reportable death or a reviewable death.

(2) An order made by the coroner under subsection (1) -

(a) must specify a person to whom the body is to be released; and

(b) may contain any terms or conditions that the coroner considers necessary. [14]

Section 48 provides:

Application to coroner for release of body

(1) A person (the applicant) may apply to a coroner for a body to be released to the applicant.

(2) If 2 or more applicants apply for release of the body, the coroner must determine the person to whom the body is to be released on the basis of who has the better claim.

(3) In determining who has the better claim, the coroner must have regard to the following principles -

(a) if the person named in the will as an executor is an applicant, the body of the deceased should be released to the executor;

(b) if a person specified under paragraph (a) is not an applicant, the body should be released to the senior next of kin;[15]

13 Counsel for the first respondent accepted that the rules of natural justice apply to the procedure contemplated under s 48(2) of the Act, namely where two or more applicants apply for release of a body. Reference was also made to s 9 of the Act which provides that the coronial system should operate in a fair and efficient manner.[16]

14 The gravamen of the complaint on the issue of procedural fairness is that the appellant was not given an opportunity to see or comment on Mr Hollyfield's Form 25 material.[17] Counsel for the appellant submitted that materials are usually required to be exchanged when there are matters in dispute. He drew attention to a statement in the appellant's application which suggested that Mr Hollyfield had previously made a statement that he was "not partnered", whereas in Mr Hollyfield's application Mr Hollyfield stated that he was a "partner for 13 years" with the deceased and that he and the deceased had lived together for nearly 13 years. In such circumstances it was submitted that the Form 25 statements should have been exchanged.

15 I accept the appellant's submission on this point.

16 Generally speaking, where the hearing rule applies to a body in respect of the making of a decision that will prejudice a person, the body must give notice to the person of any adverse matter that it proposes to take into account and offer the person a reasonable opportunity to respond to such matters before making a decision.[18]

17 Reflecting that principle, in my view, in a case of competing applications for the release of a body, at least where a material dispute is apparent, such material should be exchanged so that each applicant is given a reasonable opportunity to respond to the material if so advised before a decision is made. What is required to accord procedural fairness in any particular case will turn on the facts and the need to have regard to the principles in s 8 of the Act that recognise that distress may be exacerbated by unnecessarily lengthy or protracted coronial investigations; balance the protection of personal or health information against the public interest in legitimate use of that information; and the objective set out in s 9 of the Act which provides that the coronial system should operate in a fair and efficient manner.[19]

18 An exchange of material did not occur in this case and in the circumstances, I find there was a breach of the requirements of procedural fairness.

19 As Kirby J stated in Applicant NAFF of 2002 v Minister for Immigration:

Every person in respect of whom material decisions are made by a repository of public power conferred by the Parliament is ordinarily entitled to have such power exercised in accordance with law; relevantly in this case in accordance with the requirements of procedural fairness.[20]

20 Further, in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, Northrop, Miles and French JJ stated:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.[21]

21 In Ucar v Nylex Industrial Products Pty Ltd, the Court of Appeal considered the circumstances in which relief will be refused for the consequences of procedural error referring to the test applied in Stead v State Government Insurance Commission to deny relief for established procedural unfairness.[22] The test is whether the court could say that a properly conducted hearing could not possibly have produced a different result. This principle has been applied in many cases. Relief for procedural unfairness should only be refused if the court could say that had there been procedural fairness there could not have been a different result.[23]

22 Whilst I consider it highly unlikely that the Coroner would have arrived at a different result had the materials been exchanged, I cannot say categorically that the outcome would have been the same. As a consequence, the appeal must succeed and the decision of the Coroner must be set aside.

23 If an appeal of this kind is successful, the Supreme Court must determine to whom a body should be released and the terms and conditions (if any) of that release.[24]

24 Before embarking on that task I shall deal with the other grounds of appeal. In light of my finding on the issue of procedural fairness, I shall do so briefly.

Release of the body prior to the autopsy results

25 First, in relation to the issue whether the body of the deceased should have been released where an autopsy had been conducted and the results of the autopsy had not been made available. This decision was a matter of discretion. It was open to the Coroner to order the release of the body before the autopsy results had become known. The discretion was exercised consistently with the factors specified under s 8 of the Act which state that when exercising a function under the Act, a person should have regard to the fact that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death; it was also exercised consistently with one of the stated objectives in the Coroners Act that the coronial system should operate in a fair and efficient manner. The Coroner has a difficult task to discharge in difficult circumstances. The Coroner was satisfied that it was no longer necessary for the Coroner to have control of the body and ordered the release of the body under s 47(1) of the Act. That another person might take a different view is not indicative of an error of law unless it could be shown that the decision to release the body at that time was so unreasonable that no reasonable person could have come to that decision. There is no evidence to suggest that was the case here.[25]

Inadequate weight given to s 8(c) of the Coroners Act

26 Second, it was submitted that the Coroner gave inadequate weight to s 8(c) of the Coroners Act in view of indigenous culture, beliefs and practices surrounding death relevant in this case. In particular, counsel for the appellant submitted that the Coroner should have given a more expansive treatment of s 8(c) matters which were not, so it was submitted, adequately taken into account in the Coroner's determination. It is clear that the Coroner had regard to the evidence before her relating to the relevant culture, belief and practices of the deceased and her family. So much is clear from paragraphs 38, 39 and 40 of the Coroner's determination in the context of identifying the senior next of kin and considering whether any conditions on the release of the deceased's body were necessary. The treatment was brief but in my view, sufficient. There is no error of law disclosed by this ground.

27 For completeness I note that counsel for the appellant also made a submission based on instructions that a letter dated 22 October 2012 from Mr Jason King of Gippsland & East Gippsland Aboriginal Co-Operative Ltd was not brought to the attention of the Coroner. Nothing turns on this for present purposes as the letter is now before the Court and can be considered together with other materials in the course of my determination under s 88(1)(c).

Determination under s 88(1)(c)

1"> 28 The Act confers a wide discretion on the Court under s 88(1)(c). I propose to exercise the discretion having regard to the legislative regime of the Act and in conformity with the principles set out in the Act.

29 Under s 48(2) of the Act, if two or more applicants apply for release of a body the Coroner must determine the person to whom the body is to be released on the basis of who has the better claim. In determining that question the Coroner must have regard to the principles set out in s 48(3) of the Act. If a person named in the will as an executor is an applicant, the body of the deceased should be released to the executor.[26] In this case, neither applicant is an executor. Ms Carter was proposing to see a solicitor about making a will but had not yet done so and died intestate. Where an executor is not an applicant, s 48(3)(b) provides that the deceased's body should be released to the senior next of kin.

30 Under the Act, it is necessary to consider various categories of person to determine the senior next of kin. Senior next of kin in relation to a deceased person means:[27]

(a) if the person, immediately before death had a spouse or domestic partner - the spouse or domestic partner; or

(b) if the person immediately before death did not have a spouse or domestic partner or if the spouse or domestic partner is not available - a son or daughter of or over the age of 18 years; or

(c) if a spouse, domestic partner, son or daughter is not available - a parent; or

(d) if a spouse, domestic partner, son, daughter or parent is not available - a sibling who is of or over the age of 18 years; or

...

31 The first category is the spouse or domestic partner, and if that person is not available, the son or daughter of or over the age of 18 years and if those persons are not available, a parent, or if those persons are not available, a sibling who is of or over the age of 18 years. There are other categories not relevant here.

32 It can be seen that a domestic partner ranks ahead of a sibling who is of or over the age of 18 years. In this case, one applicant purports to be the domestic partner of the deceased. It is common ground that the other applicant is a sibling.

33 For present purposes I need to be satisfied that Mr Hollyfield was a domestic partner of the deceased person immediately before her death.

34 In determining whether Mr Hollyfield and the deceased person were domestic partners of each other, all the circumstances of their relationship are to be taken into account including any one or more of the matters referred to in s 35(2) of the Relationships Act 2008 as may be relevant in a particular case.[28]

35 Section 35(2) of the Relationships Act 2008 provides:

In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case -

(a) the degree of mutual commitment to a shared life;

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f) the ownership, use and acquisition of property;

(g) the care and support of children;

(h) the reputation and public aspects of the relationship.[29]

36 In this case, on the available evidence, I am satisfied that Mr Hollyfield was the domestic partner of the deceased person at the time of her death. Mr Hollyfield resided with Ms Carter for nearly 13 years; they had an 11 year old daughter; they shared money and their place of residence; they supported their daughter and had resided with the deceased's four nieces Marian, Rae, Thelma and Shannon for the last 3½ years. It is evident there was a substantial mutual commitment to a shared life, common residence, financial interdependence and the care and support of their own child and the nieces of the deceased person. As the domestic partner of the deceased, Mr Hollyfield is therefore the senior next of kin under the Act.

37 Section 8(c) provides that in exercising a function under the Act a person should have regard, as far as possible in the circumstances, to the fact that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected.[30]

38 I am mindful of the contents of the letter from Dandenong & District Aborigines Co-Operative Ltd dated 22 October 2012 which states that the deceased person was a Gunai/Kurnai woman and that the siblings and family of the deceased wish to return the deceased to Lake Tyers Reserve for burial on her traditional country.[31] I also note that the Gippsland & East Gippsland Co-Operative Ltd by letter dated 22 October 2012 asked the Coroners Court to acknowledge and respect that the deceased was born in Lake Tyers on Gunai/Kurnai land and to respect the aboriginal culture and heritage and return the deceased's body at her traditional home of Lake Tyers. Ms Iris Carter testified before me that this is also the view of the Gunai/Kurnai elders.

39 This evidence does not bear on the question of determining the identity of the senior next of kin under the Act in this case. Evidence of culture, belief and practices might have a bearing in another case if, for example, it were necessary to decide between two otherwise equally ranking siblings.[32] But that is not this case. However, in my view, the evidence does bear on the broader question, namely whether the body should be released to the senior next of kin, Mr Hollyfield, or Ms Iris Carter who, as a sibling, ranks lower than a domestic partner under the Act.

40 In determining the answer to this broader question, I take into account a handwritten note made by the deceased a few hours prior to her death. In Mr Hollyfield's application, Mr Hollyfield states that the handwritten note was made by the deceased to take to a solicitor who she was due to see on the Friday after she died, specifically to make out a will stating her wishes in the event of her death.

I wish to be cramaitve and don't want to be buried on Lake Tyers.[33]

42 In a letter to the Coroners Court, Marian Hayes, a niece of the deceased said, among other things, "She made it clear to all of us that she did not want to be buried on Lake Tyers". In a letter from Thelma Hayes, a niece of the deceased, Ms Hayes, states "I remember her always telling me that she didn't want to be buried on Lake Tyers and that she wanted to be cremated and be put near our foster parents at Bunurong Cemetery". In a letter from Rae Carter, also a niece of the deceased, Ms Carter, states that, "Aunty Marion's wish was to be cremated and placed near our foster parents at Bunurong Cemetery, she didn't want to be buried on Lake Tyers, she had made that very clear to all of us".

43 In Mr Hollyfield's application, Mr Hollyfield states that he "sincerely hopes that Marion's dying wishes are respected and she can rest in peace near her foster parents, who raised Marion from the age of six and were considered by Marion as her real parents".

44 It is necessary for me to weigh these competing considerations. If the body were to be released to Ms Iris Carter, the deceased will be returned to Lake Tyers for burial on the deceased's traditional country. This outcome would be directly contrary to the deceased's express wish not to be buried at Lake Tyers. In my view, in the circumstances of this case, the wishes of the deceased should be given primacy. I am satisfied that Mr Hollyfield will endeavour to carry out the wishes of the deceased which had been clearly and firmly stated by her. Accordingly, and with great respect to the extended family of the deceased, many of whom attended the hearing of the appeal, I have decided that the body of the deceased should be released to the senior next of kin, Mr Hollyfield, without imposing any terms or conditions.

1. The appeal be allowed.
2. The Coroner's determination as to release of body dated 24 October 2012 be set aside.
3. The body of the deceased is to be released to Mr Ronald Hollyfield forthwith.
4. There is no order as to costs.

[1] Coroners Act 2008 (Vic) s 4(2)(a); "Coroners Act".

[2] Coroners Act 2008 (Vic) s 15(b).

[3] Coroner's determination dated 24 October 2012[13].

[6] Coroners Act 2008 (Vic) s 48.

[7] Coroner's determination dated 24 October 2012 [26], [13].

[8] Letter from Dandenong & District Aborigines Co-Operative Ltd dated 22 October 2012.

[9] Coroner's determination dated 24 October 2012 [35]-[40].

[10] Coroners Act 2008 (Vic) s 85(1).

[11] Coroners Act 2008 (Vic) s 87(1).

[12] Coroners Act 2008 (Vic) s 8.

[13] Coroners Act 2008 (Vic) s 9.

[14] Coroners Act 2008 (Vic) s 47.

[15] Coroners Act 2008 (Vic) s 48.

[16] Coroners Act 2008 (Vic) s 9.

[17] Coroners Court Rules 2009 (Vic) r 48. The rules require that an application under s 48 be in the prescribed form, namely Form 25.

[18] Danne v The Coroner [2012] VSC 454 at [20] in the context of the Coroner conducting an inquest and the cases there cited. An oral hearing is not necessarily required. An opportunity to make written submissions will often suffice. Heatley v Tasmania Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 516; Robb v Chief Commissioner of Police [2005] VSC 310, 40-42 [78]-[80].

[19] Coroners Act 2008 (Vic) ss 8(b), 8(e) and 9.

[20] Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1, 26-27.

[21] [1994] FCA 1074; (1994) 127 ALR 699, 715.

[22] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 514 citing Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141.

[23] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 514-5 [62].

[24] Coroners Act 2008 (Vic) s 88 (1)(c).

[25] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41_._

[26] Coroners Act 2008 (Vic) s 48(3)(a).

[27] Coroners Act 2008 (Vic) s 3.

[28] Relationships Act 2008 (Vic) s 35(2). See _Coroners Act 2008 (_Vic) s 3(2).

[29] Relationships Act 2008 (Vic) s 35(2).

[30] Coroners Act 2008 (Vic) s 8(c).

[31] Letter from Dandenong & District Aborigines Co-Operative Ltd dated 22 October 2012.

[32] At common law, practicality not culture, has determined the claim between two equally ranking applicants. (See Smith v Tamworth City Council (1997) 41 NSWLR 680, 693-694; Keller v Keller [2007] VSC 118; (2007) 15 VR 667, 669-671 [9]-[15]; Meier v Bell (Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997)) The Coroners Act has included culture as another factor to which the Court should have regard but practicality remains a key consideration.

[33] Affidavit of Ms Sarah Gebert affirmed on 1 November 2012 and Exhibit "SEG-3" thereto.