Appellant v First Respondent

2 The appellant relied upon the following documents:

(a) amended notice of appeal dated 10 April 2015;

(b) affidavit of Sandra Bourke sworn 24 December 2014;

(c) affidavit of Sandra Bourke sworn 20 February 2014;

(d) affidavit of Sandra Bourke sworn 10 April 2015;

(e) affidavit of Sandra Bourke sworn 22 June 2015;

(f) affidavit of Sandra Bourke sworn 26 June 2015;

3 The first respondent relied upon the following documents:

4 The second respondent relied upon the following documents:

(a) affidavit of Dr Alastair Mah sworn 22 May 2015;

(b) affidavit of Jessica Bayly affirmed 23 February 2015;

(c) further affidavit of Jessica Bayly affirmed 15 April 2015;

5 Under s 15 of the Act, a Coroner must investigate the death of a person if it appears to the Coroner that the death, or the cause of death, occurred in Victoria and it is a reportable death.[1] A 'reportable death' is defined by s 4 of the Act.

6 Section 15 initiates an investigation by the coroner. Section 67 of the Act sets out the matters which a Coroner investigating a death must, if possible, find. Section 67 also outlines comments that a Coroner may make. Section 67 relevantly provides:

(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.

7 The Coroner has broad discretion as to whether an inquest should be held. Section 52(1) of the Act allows the Coroner to exercise their discretion and hold an inquest and s 52(2) outlines certain classes of death where an inquest is mandatory. Section 52(3) and (3A) set out circumstances where an inquest is not required, however s 52(4) provides that those subsections do not limit the Coroner's power to hold an inquest in those instances.

8 If a Coroner determines not to hold an inquest into a death, under s 82(1) the person who requested the Coroner to hold an inquest into the death may appeal against the Coroner's determination to the Trial Division of the Supreme Court constituted by a single judge. An appeal under s 82 must be made within three months after the day on which the determination of the Coroner is made, subject to s 86.

9 The deceased died in the Hospital on 13 September 2010. The death certificate lists cardiogenic shock following acute myocardial infarction as the cause of death. The deceased was 78 years old.

10 The report of Dr Hamer dated 8 October 2014[2] and statement to the Coroner of Dr Martin Jeremy Sebastian, a consultant cardiologist, dated 23 January 2013[3], set out a detailed chronology of events from the date of the deceased's admission to the Hospital on 6 September 2010 to his death on 13 September 2010. The following is a brief summary of the events that occurred during the deceased's admission to the Hospital prior to his death:

(a) the deceased was taken to the Hospital by ambulance on 6 September 2010 after earlier suffering from central chest pain, or tightness radiating to his left arm and associated shortness of breath;

(b) the deceased had a pre-existing myelodysplastic disorder affecting his bone marrow;

(c) on 7 September 2010 following discussions between the cardiologist and haematologist at the Hospital, including Dr Karen White the deceased's private treating haematologist, as to the risk/benefit analysis of cardiac intervention versus the risk of bleeding, the deceased underwent a coronary angiogram performed by Associate Professor Black, Director of Cardiology;

(d) during the procedure, the deceased's systolic blood pressure fell and he developed bradycardia with periods of 2:1 atriaventricular blocks;

(e) the coronary angiogram demonstrated pathology indicative of distal embolisation of thrombus resulting in microcirculatory dysfunction;

(f) the deceased was returned to the coronary care unit following which a Code Blue emergency was called;

(g) the deceased was intubated and transferred to the intensive care unit (ICU);

(h) shortly after admission to the ICU on 7 September 2010 the deceased had an initial complication of bleeding from the nose related to the nasopharyngeal intubation and in the ICU required a blood transfusion;

(i) on 8 September 2010 the deceased's heart rhythm stabilised and a temporary pacing wire was removed. Cardiorespiratory support continued mechanically ventilating the intra-aortic pump;

(j) on 9 September 2010 over the course of the day there was a gradual reduction in the inotrope and ventilatory requirements;

(k) on 10 September 2010 an echocardiogram was performed, demonstrating segmental left ventricular hypertrophy and dysfunction;

(l) an intra-aortic balloon pump inserted on 7 September 2010 was removed;

(m) on 11 September 2010 the deceased developed a fever and increased oxygen requirements. A chest x-ray showed an opacity in the left lower lobe suggesting infection and broad spectrum antibiotics commenced;

(n) On 11 September 2010 the deceased's cardiac rhythm changed from sinus rhythm to rapid atrial fibrillation;

(o) on 12 September 2010 a mild monocytosis was noted and toxic changes were reported on blood film. There was an increase in the deceased's troponin level indicating further myocardial necrosis;

(p) throughout 12 September, the deceased's respiratory function remained poor due to a combination of pulmonary oedema and pneumonia;

(q) on 13 September 2010, the deceased was seen by Dr David Green, an intensive care specialist at the Hospital. Following examination, Dr Green performed a bedside transthoracic echocardiogram which confirmed persistent cardiac dysfunction and large bilateral pleural effusions;

(r) Dr Green inserted a drainage catheter into the left pleural cavity with the aim of improving ventilatory function;

(s) following the drainage the deceased's blood pressure fell rapidly and his pulse became non-palpable despite CPR and intravenous adrenaline; and

(t) a Code Blue was called and CPR carried out for 25 minutes and then ceased.

11 The deceased's body was taken to the Victorian Institute of Forensic Medicine. An external examination and a post-mortem CT scan were performed dated 13 September 2010. An external examination conducted by Dr Parsons and a post-mortem CT scan were performed and based on these and a review of the medical disposition, medical records and letter of concern from the family, a medical report was prepared by Dr Parsons. The report recorded that a reasonable cause of death was acute myocardial infarction related to coronary artery disease.

12 The family, represented by the appellant, objected to a full autopsy being performed and as such the Coroner did not order an autopsy.[4]

13 Following the death on 13 September 2010, a Coronial investigation ensued. The Coroner's office received a series of letters which raised concerns regarding the care and medical management of the deceased by the Hospital. In particular, three letters to the Coroner's office dated 14 September 2010, 24 October 2010 and 13 November 2010. Prior to making a determination whether to hold an inquest into the deceased's death, the Coroner had before her the Coronial brief.[5] The Coronial brief included statements from:

• Dr Martin Sebastian, cardiologist;
• Dr David Green, intensive care medicine specialist;
• Associate Professor Black, cardiologist;
• Dr Ferdous Alam, Cardiology Registrar;
• Dr Claire Cattigan, intensive care specialist;
• Dr Om Narayan, Cardiology Registrar; and
• Dr Karen White, haematologist.

14 The Coroner also had before her Dr Parsons' reports, the medical record from the Hospital and the deceased's medical records from his treating medical practitioner.

15 As mentioned, the Coroner also had statements from the appellant and Greg Steenvoorden, the deceased's son, and the letters from the appellant.

16 On 3 January 2014 the Coroner's office received a formal request for an Inquest from the appellant. In the Determination dated 22 October 2014, the Coroner said:

On 3 January 2014, a formal request for inquest was filed on behalf of the deceased's daughter, Mrs Sandra Bourke. I did not consider, when all the statements had been obtained, that they disclosed any identifiable shortcomings in the deceased's treatment, either particular to his care or representative of broader systemic failings within the Hospital. Moreover, I did not consider that there was any residual uncertainty about the matters required to be determined by me pursuant to sub-section 67(1) of the Coroners Act 2008 (Vic), that is:

• the identity of the deceased;
• the cause of death; and
• the circumstances of death.

Nonetheless, in view of the family's unresolved concerns, and before making a final decision on whether to proceed to inquest, I directed that an opinion be sought from an independent expert. Cardiologist, Dr Angas Hamer, was engaged for this purpose. He was provided with the deceased's Geelong Hospital medical records and the statements of the various doctors involved in the deceased's care and asked to answer questions which reflected the general tenor of the family's concerns. These included questions about whether:

• in all the circumstances, and given the deceased's particular risk factors, the decision to undertake an angiogram was warranted;
• the consultation between the treating cardiology team and the haematology team was adequate and any advice received properly considered and heeded;
• the angiogram and/or the manner in which it was performed caused or contributed to the deceased's death;
• the Fentanyl dose administered to the deceased was appropriate in the circumstances;
• the drainage of the deceased's pleural effusion on 13 September 2010 was warranted and performed appropriately;
• the deceased's fluid balance was appropriately managed; and
• the approach adopted in managing this fluid balance may have contributed to his death.

...

I did not obtain Dr Hamer's report in lieu of conducting an inquest. My purpose was to assist me in determining whether there areas of contest or uncertainty relevant to the coronial investigation, which warranted further enquiry by way of inquest. Dr Hamer's report does not identify any such areas.[6]

17 Having considered the materials contained in the Coronial brief, and Dr Hamer's expert report, the Coroner refused the appellant's request for an inquest. The Coroner concluded the matter without formal inquest and will make a chamber finding in due course.

18 In the Determination the Coroner found that the deceased's death:

(a) was a reportable death as defined in s 4 of the Act;

(b) as such the Coroner was required to investigate and find if possible the matters set out in s 67(1) of the Act;

(c) that the death did not fall within the mandatory class of death in s 52(2) of the Act where an inquest must be held; and

(d) when considering the remainder of the classes under s 52(2) which are not mandatory, the Coroner has a broad discretion as to whether an inquest should be held.[7]

The Court does not have the resources, nor would it be in the public interest, for an inquest to be held, with witnesses summonsed and lawyers potentially engaged, in every coronial investigation. There must be a sound basis upon which the decision to proceed to inquest is taken, such as:

• uncertainty or conflict in the evidence as to pertinent facts which justifies the use of the judicial forensic process;
• the likelihood that an inquest will uncover important systemic defects or risks not previously known;
• the likelihood that an inquest will elicit relevant evidence that has not already been disclosed by a competent and thorough investigation; and
• the investigation has not identified and recorded the facts concerning the death, sufficient to meet community expectations and to enable the findings required by s 67(1) of the Coroners Act 2008 to be safely made without inquest.

I am not satisfied that any of these imperatives exist in this case. The request for inquest is therefore refused.[8]

20 As discussed, the salient provision in relation to this appeal is s 82 of the Act, which is the appeal provision with respect of the Coroner's refusal to hold an inquest into the death.

21 Importantly s 87 of the Act provides that an appeal to the Supreme Court is on a question of law. The existence of a question of law is not only a precondition of the right to appeal, it is the subject matter of the appeal itself. The need to identify a question of law serves as a criterion upon which several policy objectives are fulfilled through s 87 of the Act. It is essential that the question of law said to have been erroneously decided is identified exactly.[9] It is the means by which finality of the Coronial process is achieved as well as the trigger by which the statutory jurisdiction of this Court may be enlivened.

22 Justice Beach in Thales Australia Ltd v The Coroners Court of Victoria & Anor[10] ('Thales') said:

Further, it is to be remembered that a question of law is not involved in a decision simply because a tribunal or court makes one or more findings of fact that are not supported by evidence, nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound. Like the view taken by Phillips J in Nikolic v Schultz, the present proceedings seem to me to be a case where Thales has laboured to convert what was essentially a question of fact into a question of law. To use the words of Phillips J:

'Such attempts have not gone unnoticed by the courts which have tended to deprecate the practice of "attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by" some other body ...'.[11]

23 The discretion of a Coroner to decide whether or not to hold an inquest is wide. The Coroner should consider 'the relative costs of holding one and doing without one, duly weighing the benefits (if any) which the inquest might produce against the disadvantages (if any) which investigation (or further investigation) short of an inquest might entail'.[12]

24 It must be noted that a mere allegation of a failure to exercise discretion properly may or may not raise a question of law. In Bell Corp Victoria Pty Ltd v Stephenson,[13] Ashley J accepted that the Court could not allow an appeal on a question of law from a discretionary decision because it would have found facts differently. His Honour confirmed that an exercise of discretion by the Victorian Civil and Administrative Tribunal ('the VCAT') would involve an error of law if the Tribunal failed to take into account a matter that it was bound to take into account, if the Tribunal took into account an irrelevant consideration or if the Tribunal's exercise of discretion was 'manifestly unreasonable' in the sense that no reasonable decision maker could have exercised the discretion in that way.

25 Where the appellant seeks to impugn a tribunal or Court's exercise of discretion, the words of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[14] are apposite:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

26 In Bradto Pty Ltd v Victoria[15] the Court of Appeal observed, at paragraph 4, that the task of identifying an error of law in the VCAT's exercise of discretion to grant an interlocutory injunction was a 'formidable one indeed'.

The appellant's amended notice of appeal[16]

27 The appellant relies on an amended notice of appeal dated 10 April 2015. The appellant was subsequently given leave to file and serve further written submissions confined to the existing questions of law in the notice of appeal.

28 The appellant relies upon a further written submission dated 31 July 2015. The appellant raises three additional issues in the further written submissions in relation to the matters contained in the notice of appeal as follows:

"1 The evidence of Dr Sarah Parsons which has apparently been relied upon and not evidenced by an expert in the relevant area - Radiology. Dr Parsons has given an opinion and includes reference to the post-mortem CT scan of the deceased; Dr Parsons has given earlier advice that a post-mortem would be advisable (references omitted);

2 The deceased's family did not receive relevant information concerning the deceased's treatment at the Hospital and did not consent to having an autopsy. If they appeared to concede to a view that an autopsy was not necessary, which they do not accept, this was on the basis of incorrect and incomplete advice provided to them by the Hospital and its advisors as set out below; and

3 The witness, Dr Hamer, did not have all the necessary information and thus his report cannot be relied upon as set out below."

29 The appellant listed a number of particulars to each of the above issues.

Under the responsibility of the Coroners Act 2008, did the Coroner's investigation fail to gather and consider relevant evidence that was needed to establish the deceased's cause of death?

As per s 67 of the Coroners Act 2008 subsection (1)(a) a Coroner investigating death must find:

(b) the cause of death; and

(c) unless subsection (2) applies, the circumstances in which the death occurred.

30 In summary, the appellant asks can the Coroner find the cause of death without review of the entire medical history and consideration to the pre-operative health status, blood loss during and post-surgery, fluid balance, management and fentanyl administration?

31 The appellant contends that the Coroner did not take into account, for the purpose of the determination, relevant information or materials. The appellant submits the Coroner made the determination without reviewing the entire medical history and failed to consider the deceased's pre-operative health status, blood loss during and post-surgery, fluid balance management and fentanyl administration.

32 The starting point is to consider what the Coroner had before her prior to making the determination. I have set out the documents and materials the Coroner considered at paragraph 10. Importantly, the Coroner was aware of the appellant's and family's concerns and the six matters which are now raised in question of law 1 and the potential relationship to the cause of death.

33 The Coroner said in her determination she had reached a degree of satisfaction having considered the available materials and that there were no shortcomings in the deceased's treatment 'either particular to his care or representative of broad systemic failings within the Hospital'.[17] Nor did the Coroner consider that there was any residual uncertainty with the matters she was required to determine pursuant to s 67 of the Act.

34 The Coroner obtained a report from Dr Hamer in which he specifically addressed the six matters identified in question of law 1. Dr Hamer concluded, in relation to the deceased's pre-procedure health status,:

...there was a compelling case for performing cardiac catheterisation prior to the onset of the cardiogenic shock in the deceased, simply on the basis of the nature of the myocardial infarction (with ST elevation) and the evidence for recurrent injury to the myocardium that had occurred since admission.[18]

35 In the appellant's affidavit sworn 10 April 2015, she raises concerns about the deceased's pre-angiogram assessment and care during the angiogram. The appellant presents information and makes a series of conclusionary statements such as:

There was a high predictability of the likelihood for Johannes to deteriorate during the procedure.[19]

36 The appellant's affidavits are littered with conclusionary statements such as the latter. I will not go through the entirety of the affidavits but by way of example in the 10 April 2015 affidavit at page 11, the appellant has a heading 'Possible factors that may have contributed to death'. She then lists the following matters:

• haemorrhaging during or post a procedure could cause a cardiac arrest from death;
• fluid overload especially one as great as 1,200 ml in the positive could cause a cardiac arrest and death;
• Fentanyl overdose and toxicity could cause a cardiac arrest and death; and
• how is the Coroner so sure that none of these possibilities contributed to the death of Johannes?

All of these possibilities are widely supported by documentary evidence in a range of available medical and nursing literature.[20]

37 The appellant is a retired nurse and midwife, having ceased practicing in 2008.[21]

38 As Randall AsJ said in Mortimer v West (in his role as Deputy State Coroner),[22] referring to the evidence of the appellant in that case, who was a former registered nurse with extensive experience:

Notwithstanding her obvious competence as a former registered nurse, Mrs Mortimer is not an expert witness. Although the distinction between 'fact' and 'opinion' can sometimes be blurred, a finding as to cause of death is an opinion based upon a review and consideration of the attendant facts.

Mrs Mortimer is prevented from offering any opinion for two reasons. First, although I accept that Mrs Mortimer was a competent registered nurse, that of itself is insufficient to demonstrate that she has 'specialised knowledge based on the person's training, study or experience' so as to permit the giving of evidence of an opinion 'that is wholly or substantially based on that knowledge.' Secondly, expert evidence as to opinion must be objective and be available to assist the Court, not to constitute an argument or submission. Understandably, Mrs Mortimer, even if she had the appropriate expertise and the foundation was laid pursuant to Order 44 of the Supreme Court Rules, could hardly be expected to present opinions in an unbiased manner.

Even if Mrs Mortimer's opinion as to the cause of death were to be accepted, that opinion does not assist her. Acceptance of the soundness of the opinion does not bear on the issue of whether the refusal to reopen the finding led to an error of law. What is germane is that the Deputy State Coroner considered Mrs Mortimer's contention and referred the same to HMIT for further consideration. Mrs Mortimer does not demonstrate why it was not open for the Deputy State Coroner to rely upon the further consideration by HMIT or, even accepting her opinion, why it was not open to accept the reaffirmation of the Original Finding.[23]

39 The appellant in this case is prevented from offering any opinion for the same reasons as referred to by Randall AsJ at paragraph 32 in Mortimer v West.

40 Throughout the appellant's five affidavits and in her written and oral submissions she gave opinions and formed conclusions which I do not consider were open to her.

41 In any event, the concern about the deceased's pre-operative condition was raised by the Coroner and Dr Hamer. It is a matter for the Coroner as to how much weight is given to the facts and evidence before the Court. It cannot be said that the Coroner failed to take into account the deceased's pre-operative condition.

42 In relation to the allegations that the Coroner failed to take into account the deceased's 'blood loss', the appellant submits amongst other things: that the medical record had serious omissions following the angiogram procedure, including no documentation of post-operative care for 22 minutes; the fact that the electronic cardiology catheterisation laboratory record of the angiogram was only provided to the Coroner in February 2003; no documentation of the care provided to the femoral puncture site; that Associate Professor Black did not detail his involvement in the ensuing post-operative care; and that the standard of care according to the Hospital's Femoral Artery Sheath Management was not documented.[24]

43 In addition, the appellant submits mismanagement of the deceased's blood loss by; failing to provide inotropic support once the deceased was in ICU; that he was moved to the ICU when he was unstable; it was not known if he was bleeding from the groin site; and that he did not receive minimum observations for a patient that underwent an angiogram. It is alleged that Dr Hamer was not provided with all the relevant information.[25]

44 The appellant's concerns were considered by the Coroner. Dr Hamer had the relevant documentation and noted the nasal bleed post-operatively but did not conclude that there was a groin bleed. I note that matters such as compliance with various standards were not matters the Coroner was required to take into account for the purpose of s 67(1) of the Act.

45 I accept Ms Ellis' (counsel for the Hospital) submission that under the Act the Coroner is not obliged to address each concern raised by a family member or interested party. In any event, it cannot be said in this case that the Coroner did not have regard to the family's concerns.

46 In relation to the fluid balance management, the appellant submits that the Coroner failed to take into account factors such as the deceased's weight increase from the date of admission at 62 kg on 6 September 2010 to 73 kg as recorded by Dr Parsons at his death.

47 The appellant submits that the Coroner did not review the full set of individual daily fluid balance charts from the Hospital's records.

48 Again, the appellant's submissions in the large part are an attempt to proffer a medical opinion. The appellant argues for example that it is:

'widely supported by healthcare providers that patients that have experienced a cardiac event are well known to be at risk of fluid volume overload. Fluid volume overload and pulmonary oedema should be anticipated and treated in a timely manner with diuretic to support the kidney function. According to the documentary evidence in the medical history this typical treatment was not provided in a timely manner and only provided to Johannes when the family observed the obvious fluid retention all over his body and asked if he was receiving a frusemide diuretic. The exhibits as provided in Affidavit 1 will be considered when assessing the weight on admission and before and six days later on his death.'[26]

49 For reasons discussed it is not appropriate for the appellant to proffer an opinion which is an attempt to give an expert opinion, nor is it a requirement that the Coroner have regard to such assertions. Importantly, the deceased's fluid management was directly addressed by Dr Hamer. Dr Hamer concluded at paragraph 6, page 8, of his report:

It is inconceivable in an intensive care unit that given the deceased's problems with heart failure, poor pump function and low blood pressure and the threat of renal failure that inappropriate management of the deceased's fluid balance could or would have occurred given the continuous monitoring of the situation. Finally, the mode of the deceased's death was directly as a result of his myocardial damage and its effects on his circulation without any need to imply that his fluid balance could have been inappropriately managed.[27]

50 In relation to the administration of fentanyl, the appellant submits that the deceased was administered doses of fentanyl for the purpose of affecting palliative care. The appellant made reference to the administration of 'large' doses of fentanyl just before the deceased's death and that Dr Green made no explanation of this in his progress notes.

51 The appellant submits that the Coroner put 'heavy weight' on the medical statements and made 'little or no reference to the importance of the medical history'.[28]

52 The appellant's oral submission expanded to allege that a homicide may have occurred[29] and that the administration of fentanyl may have in part been responsible. As such, the appellant submits that Dr Green's failure to explain the administration of drugs in his progress notes is a matter that the Coroner did not take into account when making her determination.

53 The appellant went a step further questioning the validity of Dr Green's 'retrospective note'[30] and that the chest drainage procedure documented in the retrospective note may not have occurred.[31]

54 There is no evidence to support the serious assertions and allegations made by the appellant about the death and it being a possible homicide. I consider it was open to the Coroner to determine that the deceased's death did not fall into the mandatory class of cases set out in s 52(2) of the Act.

55 Dr Hamer concluded that the bolus doses of intravenous fentanyl on 13 September 2010 would not have had any significant effect on the occurrence of the cardiac arrest immediately following the aspiration of plural fluid.[32]

56 In addition, the Coroner had before her Dr Sebastian's statement dated 23 January 2013, which addressed the use of fentanyl.

57 The Coroner had regard to all relevant material before her, including the medical records. The issue of the weight the Coroner may have placed on the statements does not amount to an error of law.

58 In relation to medical records, the appellant made a number of submissions. It was submitted that the version of the medical record before the Coroner was organised in such a way that it would have been difficult for the Coroner to consider the record.[33] This is in contrast to the version of the Hospital record obtained more recently by the appellant under the Freedom of Information Act 1982[34] ('the FOI Act'). It is alleged that the medical record obtained under the FOI Act appears to have been altered, in that there is more information in the FOI copy and some documentation has been altered. The appellant submitted that the altered documentation has serious implications as to whether the deceased's death was hastened by the care given and the altered documents undermine the Coroner's ability to make an informed decision as to whether to hold an inquest. The appellant submits that the quality of the Hospital record in the Coronial Brief was such that it would have been difficult for the Coroner to make a full assessment as to whether the death was a result of a homicide.[35]

59 The appellant also alleges that 'a large degree of Johannes' full medical history from his GP, which the family provided directly to the Geelong Coroner in March 2011[36] was not included in the Coroner's Brief'.[37]

60 In the appellant's written submission she states:

As the police omitted a large degree of Johannes' full medical history from his GP, the family provided this directly to the Geelong Coroner in March 2011 (Exhibit CC). This information was not included in the Coroner's Brief and did not meet the Coroner's directions which order for the collection of all medical records and documents (see Exhibit KK). The implication of this omission is a false representation of Johannes Steenvoorden's health, who had lived independently at home as carer for his disabled wife with no hospital admissions in over five years. Johannes Steenvoorden's GP Mary Johnston has confirmed that all records were provided to the police at the time, in their entirety.[38]

61 In relation to the altered medical records, the appellant points to a number of matters including:

• the electronic angiogram records said to be withheld from the Coroner;[39]
• the limited fluid balance charts kept in the Hospital records; and
• the ECG record performed on 6 September 2010, which contained another patient's details on it and, compared to the copy of the same ECG report in the FOI copy of the Hospital record, has the sticker with the other patient's name removed.

62 The appellant submits that given the inconsistencies in the medical records, the absence of electronic records in the Coronial Brief, and the altered documents, the Coroner did not make her decision not to hold an inquest on all the relevant documents. Further, the Coroner could not have had the requisite degree of satisfaction in the documents she relied upon in the Coronial Brief or the various statements produced by the treating doctors.

63 The Coroner made a request from the Hospital for the provision of records on 10 January 2011.[40] The Coroner also requested a copy of the deceased's GP's records from the Eastbrooke Family Clinic. The records were provided to the Coroner on 17 January 2011. The records contained a copy of the electronic angiogram log.[41]

64 Ms Ellis, listed the test results not in the Coroner's Brief which were not identified by the appellant. They were:

• mobile chest x-rays taken on 7 September 2010;
• a troponin 1 and a creatine kinase total on 7 September 2010;
• some aspects of a liver function test taken and noted in the ICU records; and
• 'drug sensitivities charts' from May 2001 to July 2005 (the latter pre-dating the relevant admission to the Hospital).[42]

65 Ms Ellis identified the fluid balance chart summaries contained in the Hospital records from 7 September 2010 to 13 September 2010.[43] The Hospital record notes that 'ICU fluid balance charts are now stored electronically'. In addition the Hospital relies upon the affidavit of Dr Alastair Mah, the Chief Medical Officer, who explained the recording of information, including fluid balance, being done electronically and why they have been produced in the way they are in the medical records.

66 The Coroner made a determination pursuant to s 52(6) but no findings as yet pursuant to s 67. Ms Ellis submitted that it would be outside the object and purpose of the Act for the Coroner to hold an inquest in this matter merely to make comment or recommendations about the medical record keeping.

67 The Coroner had regard to the medical records, the expert opinion of Dr Hamer, the pathology examination report undertaken by Dr Parsons, the statements from the treating medical doctors and the letters from the family, including the appellant, raising their concerns. In addition, the Coroner also had a copy of the medical record obtained under FOI as well as that in the Coronial Brief.

68 The Coroner concluded that there were no shortcomings in the deceased's treatment at the Hospital or residual uncertainties about the matters required to be determined by her pursuant to s 67(1) of the Act, that is:

• the identity of the deceased;
• the cause of death; and
• the circumstances of the death.

69 The Coroner reached a different view to the appellant. The Coroner did not fall into error by her assessment and analysis of the documents and reports which gave rise to different conclusions which were not so unreasonable that no reasonable Coroner could have made the same.[44]

Section 67(2)(b)(ii) does not apply to the circumstances listed in the scope of the appeal which demonstrates why there is public interest to be served in making a finding regarding those circumstances.

70 The appellant argues that a review of the deceased's pre-operative health status, blood loss during and post-surgery, fluid balance management and opiate use would serve the public interest as they all disclose identifiable shortcomings in a gross deviation from an accepted standard of care that could have contributed to the deceased's cause of death.

71 As noted the decision of the Coroner, the subject of appeal, is a decision pursuant to s 52(6) of the Act. The Coroner has not made a determination pursuant to s 67(2)(b)(ii) that there is no public interest to be served in making a finding regarding the circumstances in which the death occurred.

Thales makes complaint that the Coroner intends to call further evidence 'solely for the purpose of making comment'. It may be accepted that a Coroner is not permitted to inquire for the sole or dominant reason of making comment or recommendation. The power to comment arises as a consequence of the obligation of the Coroner to make findings (if possible) as to the identity of the deceased, the cause of death and the circumstances in which the death occurred.

73 I consider the Coroner considered the relevant matters she was required to address pursuant to Act. The Coroner had regard to the deceased's medical management, the rationale behind the treatment and care decisions, the statements obtained, the medical record and the opinions of Dr Hamer and Dr Parsons. In relation to Dr Parsons, the appellant submits that Dr Parsons did not refer to any factual data contained in the medical history and only provides a summary of the electronic deposition provided by the Hospital.[46]

74 In a letter dated 24 November 2010 from Dr Parsons, addressing the family's concerns[47], states that she had regard to several sources of information other than the electronic deposition provided by the Hospital, including the medical record. As discussed the family's questions that Dr Parsons was unable to answer were, according to her, because a full autopsy had not been performed, even though she had recommended it be done.

Coroners Act 2008 s 52, subsection (2)(a), (2)(d) and subsection (3)(a).

Subsections (2)(a), (d) and (3)(a) do not apply, therefore a Coroner must hold an inquest into a death if the death or cause of death occurred in Victoria and (a) the Coroner suspects the death was the result of homicide, (b) the death occurred in prescribed circumstances.

75 The appellant asks if the Court deems that the Coroner had gathered and reviewed sufficient evidence to rule out the possibility that the deceased was a homicide death or in the prescribed circumstances in the care of the hospital?

76 The appellant submits that the deceased's death falls within the class of death set out in s 52(2)(a) and (d) of the Act. That is:

(2) ...

(a) the coroner suspects the death was the result of homicide; or

...

(d) the death occurred in prescribed circumstances.

77 The appellant submits that the Coroner has not had regard to all the relevant information to rule out that the deceased's death was the result of a homicide.

78 The Coroner was satisfied the deceased's death was a reportable death as defined in s 4 of the Act and accordingly investigated the death and will in due course make findings if possible pursuant to s 67(1) of the Act. The decision whether to hold an inquest, where the Coroner has jurisdiction, is not mandatory and is a matter of discretion for the Coroner conducting the investigation.[48]

79 There is no evidence before the Court upon which the Coroner could have formed a view that the deceased's death was a homicide. Dr Hamer's report clearly sets out the circumstances of the deceased's presentation, the serious nature of the deceased's myocardial infarction, that it was unamenable to treatment and led to cardiogenic shock from which, according to Dr Hamer, the deceased never recovered. There is no evidence to support the assertion that the deceased's case was consistent with or consequent to palliative care or worse still, homicide. The use of fentanyl is not criticised by Dr Hamer. Dr Maher in his affidavit sworn 22 May 2015 at paragraph 23, addresses the issues of active versus palliative care. Dr Green also states that the use of fentanyl was for combined analgesic and sedative qualities.[49] I also note Dr Cattigan's comments that the fentanyl was given for analgesic and sedative qualities not to facilitate death.[50]

80 In relation to the prescribed circumstances it is not clear how the appellant puts this ground as a question of law. As noted in the Hospital's written submissions, the prescribed circumstances referred to in s 52(2)(d) of the Act refer to the definitions found in s 3 of the Act. Section 3 defines 'prescribed' as prescribed by the Regulations unless otherwise provided. The Coroner's Regulations 2009 do not define 'prescribed' or 'prescribed circumstances'.

81 Accordingly, I do not consider that there is any error of law as submitted in question of law 3.

Coroners Act 2008 s 69(2) does not apply to prevent the inclusion of a comment of a statement relating to a notification to the Director of Public Prosecutions under section 49(1). The Principal Registrar must notify the Director of Public Prosecutions if the Coroner investigating the death or fire an indictable offence may have been committed in connection with the death or fire. Police affidavit Exhibit F suggests that medical evidence has been falsified.

82 The appellant submits that the Hospital staff may have committed an indictable offence pursuant to s 83A of the Crimes Act 1958. It is alleged that the medical history outlining events on 12 September 2010 was duplicated on the 10 September 2010 electronic records. The appellant alleges that the events recorded actually occurred on 12 September 2010 and not 10 September 2010 and therefore the 12 September 2010 document[51] 'has been falsified at a later date'.[52]

83 The appellant's statement as to falsification are no more than assertions and conclusionary statements. I accept Ms Ellis' submission that the partial duplication of information in the computer generated clinical records for 10 and 12 September 2010 do not satisfy the elements of s 83A of the Crimes Act 1958.

84 As discussed, the Coroner has not made findings pursuant to s 67 of the Act and therefore the fact that no comment has been made about the Hospital's record keeping pursuant to s 69(2) of the Act cannot be construed as an error of law.

85 The appellant submits that the Coroner has made an error of law by failing to refer the matter to the Director of Public Prosecutions pursuant to s 49(1) of the Act. The submission misapprehends the requirement of s 83A of the Crimes Act 1958 and, importantly, misapprehends the purpose of the Act, set out in the preamble and in s 1, that states that the purpose of the Act is to contribute to the reduction of the number of preventable deaths through the findings of the investigation of death and the making of recommendations. Furthermore, it was open on the evidence to the Coroner to find that the Hospital, through its staff, had not falsified records.

Appellant's further submissions dated 31 July 2015

The qualifications and expertise of Dr Sarah Parsons

86 Dr Parsons is a specialist forensic pathologist. Dr Parsons identified that she conducted an external examination of the body, had regard to the medical depositions from the Hospital and the post-mortem CT scan. In Dr Parsons' second report to the Coroner dated 24 November 2010[53] she again stresses that the inspection and report process requires a review of the information available to her at the time of completing the report which included the Victoria Police report of death form 83, medical deposition, medical records from Barwon Health, post-mortem CT scan and letter of concern from the family. In addition Dr Parsons identifies that at the time of preparing the inspection and report Dr Parsons had available to her written reports from a number of sources, all of whom provided a written summary of their opinions to the Coroner. In relation to the medical deposition, Dr Parsons notes that it is a clinical summary from the clinician. In this particular case the paperwork was completed by Dr Gauden, ICU resident. Dr Parsons notes that not all information on the deposition is included in her report as the medical deposition is a written report for the Coroner which is available to the Coroner when considering a case.

87 On the basis of all the information before Dr Parsons and her own examination, she reached her conclusions about the cause of death. Dr Parsons' report is not provided as a specialist radiologist. The appellant's assertions in relation to Dr Parsons' expertise and the need and the requirement of a radiological expert are misconceived. Dr Parsons does not provide an expert radiology report. There is no evidence to support the appellant's assertion that Dr Parsons did not have the relevant expertise to provide a forensic pathologist's report or that Dr Parsons does not hold the appropriate qualifications or expertise to opine on the CT scan of the deceased.[54] It was not incumbent upon the Coroner to obtain an independent radiology report. The Coroner, although not required to, did however obtain a report from Dr Hamer.

88 The allegation that Dr Parsons is not an expert in radiology, is not relevant to the matters before the Court, being an appeal against a determination not to hold an inquest and as such, does not raise an error of law. The appellant asserts that the Coroner has erred in that she took into account an irrelevant consideration by taking into account the opinion of a forensic pathologist. The first respondent submits that the Act and the Coroners Court Rules 2009, sanction a Coroner obtaining an autopsy from a medical investigation and the Act states, 'the purpose of the autopsy is to assist a coroner to perform his or her functions in respect of a death'.[55]

89 The Act makes it clear that the opinion of a forensic pathologist is relevant. Even though an autopsy was not performed, Dr Parsons' opinion was still relevant and it was open to the Coroner to rely upon it.

90 The second point raised by the appellant in the further submissions is the issue of the need for an autopsy. Dr Parsons, in her letter dated 24 November 2010, states that she reviewed the family's letter of concern dated 14 September 2010 prior to performing the preliminary examination and offering an opinion to the Coroner which was that a full autopsy was recommended in this case given that the number of issues raised in this letter could not be adequately dealt with without a full post-mortem examination. Dr Parsons notes that Coroner White made a direction that the case should proceed as an inspection report given the family's express desire that a full autopsy not be performed. Dr Parsons concluded that a reasonable cause of death was available but in her opinion the deceased required a full autopsy to answer the concerns raised by the family.

91 The appellant seeks to conduct an investigation into the process surrounding the family's decision not to consent to the autopsy. This is beyond the scope of the questions of law in the Amended Notice of Appeal. In any event, there is no proper question of law raised in point 2 of the further written submissions dated 31 July 2015.

Dr Hamer did not have all the necessary information and accordingly, his report cannot be relied upon

92 In the 31 July 2015 submissions, the appellant also raises concerns about the competency of Dr Hamer's report and asserts that he did not have all the necessary information and accordingly the Coroner cannot rely upon his report.

93 I will not repeat what I have said, but it is clear that Dr Hamer was provided with a comprehensive range of relevant documentation. There is no expert opinion to support the appellant's assertions about the adequacy of the documents provided to Dr Hamer or Dr Parsons and their ability to provide competent, independent reports for the Coroner's consideration. Any challenge to the weight the Coroner gave to Dr Hamer's evidence is a challenge on the merits and not a question of law.

94 Further, for the reasons set out above, I do not consider that there is evidence before the Court that the Coroner failed to take into account relevant matters pertaining to the medical records or the care and treatment of the deceased. I do not consider there has been any error of law.

The appellant's appeal under s 87A of the Coroners Act 2008

(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.

96 Section 87A of the Act was inserted into the Act by section 71 of the Courts Legislation Miscellaneous Amendments Act 2014 (Vic) and came into force on 1 January 2015.

97 The parties refer to the predecessor of s 87A of the Act, which was s 18(3) of the Coroners Act 1985 ('the 1985 Act'). Section 18(3) was removed when the current form of the Act was introduced in 2008.

The Supreme Court may make an order than an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice.

99 The appellant filed a notice of appeal against the decision of the first respondent on 24 December 2014, before s 87A of the Act had come into operation. The notice of appeal did not raise s 87A as a ground of appeal. The Coroner's determination not to hold an inquest was made on 22 October 2014. Pursuant to s 82(2) of the Act, the appellant had until 23 January 2015 to file a notice of appeal.

100 The appellant was subsequently granted leave by Associate Justice Daly on 24 February 2015 to file an amended notice of appeal. The appellant filed this on 10 April 2015, and now seeks to rely on s 87A of the Act.

101 The appellant argues that it is in the interests of justice for an appeal to be allowed under s 87A as it is in the public interest to ensure that there is a hospital system that complies with standards and documentation requirements so as to ensure there are safe outcomes for patients.

102 The respondents both contend that an appeal under s 87A of the Act cannot be made in the present matter on the basis that the provision does not apply retrospectively.

103 There is no indication, in either s 87A or in the purposes and objectives of the Act that provide for s 87A to apply retrospectively and affect the appellant's rights as they stood prior to the commencement of that section.[56]

104 The second respondent relies on s 14(2) of the Interpretation of Legislation Act 1984 (Vic) ('the ILA'), which provides that where an act is amended, the amendment does not affect any right accrued under the previous provision, unless there is an express intention to the contrary. Section 14(2) of the ILA codifies the common law presumption against the retrospective operation of legislation.

105 The second respondent submits that there is no clear intention under s 71 of the Courts Legislation Miscellaneous Amendments Act 2014 (Vic), which introduced s 87A to the Act, that the s 14(2) presumption against retrospective application does not apply. That is, there is no manifest injustice to the appellant which necessitates the presumption against rebuttal.

106 The second respondent relies on case authorities to argue that it would not be in the interests of justice to allow an appeal under s 87A. The case authorities examine the question of whether an appeal is 'in the interests of justice' in relation to appeals under s 18(3) of the 1985 Act. The essence of the submissions were that the jurisdiction of the Court to order an inquest should only be exercised sparingly and in rare circumstances, and where compelling evidence has been provided by the appellant,[57] in accordance with the general principle of House v R[58].

107 The first respondent relies on the same authorities in submitting that a very high bar must be satisfied in order for the Court to exercise its jurisdiction to interfere with a decision of the Coroners Court on the basis that it is in the interests of justice.[59]

108 In circumstances where the Coroner has undertaken such an extensive investigation in determining not to hold an inquest, which included the obtaining of further statements and an expert opinion, the first respondent submits that it is not in the interests of justice to allow an appeal under s 87A of the Act. [60]

109 As s 87A of the Act only commenced on 1 January 2015, there is no case authority on the section. However, case law in relation to s 18(3) of the 1985 Act was considered.

110 In the decision of Chiotelis v Her Honour Judge Coate ('Chiotelis'),[61] which involved an application under s 18(3) of the 1985 Act, Robson J observed that that no test had been laid down in relation to what was required to satisfy the Court that an order under s 18(3) is necessary or desirable in the interests of justice. Rather, Robson J referred to a line of authorities which have laid down general principles a court may take into consideration in determining such a question.[62]

111 The principles relevant to the present matter, which the respondents referred to in their submissions, are that:

(a) The Coroner is granted a wide discretion under s 17(2) of the 1985 Act (now s 52 of the Act) to determine whether or not to hold an inquest.[63]

(b) The jurisdiction of the Court to order that an inquest be held, where it is in the interests of justice, is a jurisdiction only to be exercised sparingly and in rare circumstances.[64]

(c) The circumstances relied upon in support of an application made under s 18(3) of the 1985 Act must be subject to severe scrutiny.[65]

(d) Compelling evidence must be provided by an appellant to warrant the intervention by the Court in the interests of justice. It will be insufficient where the circumstances relied upon are highly speculative or constitute no more than a suspicion.[66]

112 The case of Chiotelis involved an application by the plaintiff against the State Coroner of Victoria under s 18 of the 1985 Act contesting the Coroner's decision not to hold an inquest into the death of the plaintiff's daughter following a motor vehicle collision. A key part of that case was the contention of the plaintiff that the Coroner did not have the all the relevant facts before her.[67]

113 In Rouf v Graeme Douglas Johnstone ('Rouf')[68] an application by the plaintiff, who was the deceased's brother, under s 18 of the 1985 Act was rejected on the basis that there was no compelling evidence to warrant an intervention by the Court. The application partly arose from the plaintiff's suspicion that the deceased's wife and the deceased's treating doctor, who was a friend of the wife, had conspired to kill the deceased. In rejecting the application, Warren J observed that no evidence had been provided to substantiate the plaintiff's claim. Rather, the circumstances relied upon in support of the application were highly speculative and involved issues of hearsay and mere suspicion.[69]

114 Section 14(2) of the ILA codifies the common law presumption that Parliament intends statutes to operate prospectively. Statutes will not operate retrospectively unless there is an express intention to the contrary.[70]

115 Neither s 87A, nor the purposes and objectives of the Act, demonstrate an intention by Parliament for s 87A to apply retrospectively. During the second reading speech of the Bill, no comments were made in relation to a retrospective application of s 87A of the Act.

116 The question therefore arose before the Court as to whether the appellant can rely on s 87A of the Act on the basis that she was granted leave to file an amended notice of appeal, which was filed after s 87A came into operation.

117 Associate Justice Daly granted an order on 24 February 2015 for the appellant to file and serve an amended notice of appeal. Unfortunately no information was available to the Court as to the submissions that were made, if any, at the application of 24 February 2015, where leave was granted. It is therefore unclear to the Court as to the extent of any submissions by any of the parties on the question of an appeal by the appellant under s 87A of the Act.

118 Part 7 of O 58 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') governs the procedure for an appeal made under the Act, including under s 87A. Although the Court may give leave to amend the grounds of appeal under O 58, no reference is made as to whether a notice of appeal can be amended to incorporate a new ground of appeal that has only arisen after the commencement of the appeal.

119 In previous cases, amendments to court documents such as pleadings have traditionally been held to take effect from the date of the original document which was being amended, rather than from the date of the amendment.[71] This has been referred to as a common sense characterisation of what is being sought and done, that is, the alteration of an existing document rather than the creation and substitution of a new one.[72]

120 In the present matter, that would mean that the amended notice of appeal took effect from 24 December 2014. The appellant could not rely on s 87A of the Act as that section had not yet commenced, and s 14(2) of the ILA prevents the retrospective application of legislation where there is no express intention to the contrary.

121 For the reasons outlined above, the appellant has no right to make an appeal under s 87A of the Act.

122 Even if the appellant had been able to appeal under s 87A, I do not consider she would have satisfied the hurdle requirement that it was necessary or desirable in the interests of justice for an appeal on a question other than a question of law to be allowed.

123 Based on the aforementioned principles, in the present matter, the appellant has not produced compelling evidence to demonstrate why it would be in the interests of justice to order an inquest. As in Rouf, the circumstances relied upon by the appellant in support of the application are highly speculative and amount to no more than suspicion and conjecture.

124 Unlike in Chiotelis, the appellant has not shown that there was critical evidence not before the Coroner. Further, the appellant relies on the point that hospitals need to be placed under scrutiny in relation to their records and document management. With respect, such an argument does not readily fall within an identified principle to consider when exercising the jurisdiction to allow an appeal in the interests of justice.

125 Therefore in the scenario that the appellant had been able to make an appeal under s 87A of the Act, I would refuse the appeal on the basis that I was not satisfied that it was necessary or desirable in the interests of justice.

126 In summary, I do not consider that there has been any error of law as identified by the questions of law in the amended Notice of Appeal dated 10 April 2015.

127 In accordance with ss 4 and 15 of the Act, the Coroner investigated the deceased's death. The steps in investigation included: having regard to the Hospital medical record; numerous statements by treating medical practitioners; the reports of Dr Parsons; and the family's concerns and independent expert report of Dr Hamer, which in large part addressed the family's concerns.

128 In the circumstances of this case and in accordance with the Coroner's determination, none of the preconditions for a mandatory inquest pursuant to s 52(2) of the Act were met.

129 At present, where the determination not to hold an inquest is being appealed, no chamber finding has been delivered. Having regard to s 1 and Part 2 of the Act, the purposes and objectives of the Act do not require the Coroner answer any or all questions raised by the deceased's family members.

130 Section 8 of the Act sets out factors to consider for the purpose of the Act which include:

...

(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;

...

(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;

...

(f) the desirability of promoting public health and safety and the administration of justice.

131 They are factors which the Coroner has the discretion to consider. In this case, the family was kept informed of the particulars and progress of the investigation. In exercising her discretion not to hold an inquest, the Coroner obtained further medical statements from the Hospital staff and from Dr Parsons. Before making a final decision not to proceed to inquest, the Coroner obtained Dr Hamer's report. As discussed, this report addressed the family's general concerns.

132 Throughout the appellant's affidavits and submissions it was asserted that not only did the Coroner not take into account relevant documents and information but that reports provided by Dr Parsons and Dr Hamer were based on incorrect factual assumptions. Dr Parsons was unable to answer a number of questions due to the family deciding not to consent to an autopsy. Dr Parsons cogently addressed the concerns raised by the appellant in her second report dated 24 November 2010.[73]

133 The appellant's challenges to Dr Parsons' and Dr Hamer's reports are no more than disagreement with the facts and conclusions formed. The Coroner was entitled to take into consideration the reports and give them the weight she considered appropriate. Dr Hamer's report, in particular, addressed the questions and concerns raised by the appellant and the family. The fact that the appellant disagrees with the conclusions does not mean Dr Hamer did not have regard to the matters or that they were not considered. In this appeal, the appellant has tried to 'inflate' questions of fact into questions of law. There are no identifiable errors of law.

[1] Section 15 (a) and (b), the Coroners Act 2008 ('the Act').

[2] Exhibit J to the affidavit of Sandra Bourke sworn 24 December 2014.

[3] Exhibit AA to the affidavit of Sandra Bourke sworn 22 June 2015, 6-12.

[4] Exhibit A to the affidavit of Sandra Bourke sworn 24 December 2014, 2.

[5] Exhibit AA to the affidavit of Sandra Bourke sworn 22 June 2015.

[6] Exhibit A to the affidavit of Sandra Bourke sworn 24 December 2014, 2 and 3.

[7] Exhibit A to the affidavit of Sandra Bourke sworn 24 December 2014, 4.

[9] Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320, 330. Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 provides for an appeal from VCAT on a question of law.

[10] [2011] VSC 133.

[12] Clancy v West [1995] VICSC 207; [1996] 2 VR 647, 655-6 (Tadgell JA).

[13] [2003] VSC 255.

[14] [1986] HCA 40; (1986) 162 CLR 24, 40-1.

[15] [2006] VSCA 89; (2006) 15 VR 65.

[16] Amended notice of appeal dated 10 April 2015 (Notice of Appeal).

[17] Exhibit A to the affidavit of Sandra Bourke sworn 24 December 2014, 2.

[18] Exhibit J to the affidavit of Sandra Bourke sworn 24 December 2014, 6.

[19] Affidavit of Sandra Bourke sworn 10 April 2015, 3.

[20] Affidavit of Sandra Bourke sworn 10 April 2015, 11.

[21] Affidavit of Sandra Bourke sworn 24 December 2014, 1.

[22] [2015] VSC 150.

[23] [2015] VSC 150, [31]-[33].

[24] Affidavit of Sandra Bourke 24 December 2014, 2.

[25] Appellant's written submissions dated 26 June 2015, 3-4.

[26] Appellant's written submissions dated 26 June 2015, 5.

[27] Exhibit J to the affidavit of Sandra Bourke sworn 24 December 2014, 8.

[32] Exhibit J to the affidavit of Sandra Bourke sworn 24 December 2014, 7.

[33] Exhibit AA (Coronial Brief) to the affidavit of Sandra Bourke sworn 22 June 2015.

[34] Exhibit BB (Hospital History) to the affidavit of Sandra Bourke 22 June 2015; T 14, LL 18-31 and T 15, LL 1-7.

[36] Exhibit CC (GP Medical Record) to the affidavit of Sandra Bourke sworn 22 June 2015.

[37] Affidavit of Sandra Bourke sworn 22 June 2015, 5.

[38] Appellant's written submissions dated 26 June 2015, 11 [13].

[40] Exhibit KK to the affidavit Sandra Bourke sworn 26 June 2015.

[41] Exhibit JJ to the affidavit Sandra Bourke sworn 26 June 2015.

[44] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 533; 24 ALJR 426.

[45] [2011] VSC 133 [67] (citations omitted).

[46] Appellant's written submissions dated 26 June 2015, 8 [1].

[47] Exhibit GG (Letter from Dr Parsons to Coroner Carlin dated 24 November 2010) to the affidavit of Sandra Bourke sworn 22 June 2015.

[49] Dr Green's statement to Coroner dated 18 November 2010, 2 (Court Book, Volume 3, p 81).

[50] Exhibit HH to the affidavit of Sandra Bourke sworn 22 June 2015.

[51] Exhibit F to the affidavit of Sandra Bourke sworn 24 December 2014.

[52] Affidavit of Sandra Bourke sworn 24 December 2014, 5.

[53] Exhibit GG to the affidavit of Sandra Bourke sworn 22 June 2015.

[54] Further submissions on behalf of the first respondent dated 10 August 2015.

[55] Sections 25(1) of the Act, s 34 of the Coroners Court Rules 2009.

[57] T 70 LL 28-31, T 71 LL 1-31, T 72 LL 1-11.

[58] House v R [1936] HCA 40; (1936) 55 CLR 499; T 72 LL 11-17.

[60] First respondent's submissions [35]; T 82 LL 1-22.

[61] [2009] VSC 256.

[63] Clancy v West [1995] VICSC 207; [1996] 2 VR 647, 653; Chiotelis v Her Honour Judge Coate [2009] VSC 256 [26], [39].

[64] Ibid 653-4; Rouf v Graeme Douglas Johnstone [1999] VSC 396 [29]; Domaszewicz v The State Coroner [2004] VSC 528; (2004) 11 VR 237, 250 [56]; Chiotelis v Her Honour Judge Coate [2009] VSC 256 [20].

[65] Rouf v Graeme Douglas Johnstone [1999] VSC 396 [31]; Chiotelis v Her Honour Judge Coate [2009] VSC 256 [23], [26].

[66] Rouf v Graeme Douglas Johnstone [1999] VSC 396 [34], [36]; Chiotelis v Her Honour Judge Coate [2009] VSC 256 [23], [26].

[67] [2009] VSC 256.

[68] [1999] VSC 396.

[70] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194; Kennedy v Medical Practitioners Board of Victoria [2008] VSC 507; (2008) 21 VR 292, [36]-[38].

[71] Baldry v Jackson [1976] 2 NSWLR 415, 419; Anglo Irish Beef Processors International v Federated Stevedores Geelong (a firm) [1997] 2 VR 676, 680; Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield [2003] VSCA 6; (2003) 7 VR 63, 85 [38]-[39]; PSL Industries Ltd v Simplot Australia Pty Ltd [2003] VSCA 7; (2003) 7 VR 106, 113 [16]; McGrath v HNSW Pty Ltd (2014) 308 ALR 542, 550 [34].

[72] Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield [2003] VSCA 6; (2003) 7 VR 63, 85-86 [38]-[40].

[73] Exhibit GG to the affidavit of Sandra Bourke sworn 22 June 2015.