Appellant v Respondent

B.1 Circumstances of medical intervention and the death of Mr Keys

1. Mr Keys was admitted to Maroondah Hospital for an elective subtotal colectomy.[6] Mr Hii performed that surgery on 22 December 2005. The surgery itself was without complication. However, following this surgery Mr Keys developed symptoms. On 27 December 2005, a medical registrar ordered a resonium enema be given to Mr Keys. Mr Hii performed further surgery on 28 December 2005 (second surgery). That surgery confirmed the presence of an anastomotic leak. In treating the anastomotic breakdown during this further surgery Mr Hii formed an ileostomy.[7]
2. Thereafter Mr Keys remained hospitalised at Maroondah hospital during what has been described as a 'long and complicated hospital admission'.[8] By November 2006, Mr Hii was no longer involved in Mr Keys' medical care. Mr Keys developed bleeding from the ileostomy site in December 2006. Investigation into the cause of the bleeding was undertaken and on 17 December 2006 Mr Keys was transferred to Box Hill Hospital for further investigation. The same day he went on to have an emergency laparotomy and resection of the bleeding ileostomy ( third surgery). That surgery also addressed the problem of enteric fistula. Mr Keys subsequently deteriorated and treatment was withdrawn.
3. Dr Harrison, a registrar at Box Hill Hospital, made the report of death to the coroner. The clinical summary of Dr Harrison stated:

77 year old male with extensive history over 1 year continuous hospitalisation following on initial subtotal colectomy for dysplastic polyps. Over following year, multiple complications including sepsis, pneumonia, AMI's, arrhythmias, renal failure. Transferred from Maroondah Hospital to Box Hill Hospital 17/12/06 after bleeding from ileostomy site for mesenteric angiogram & embolisation of vessel. No reason for bleeding found so transferred to ICU. Further bleeding. Returned to angiogram, again no cause found. Taken to theatre for laparotomy. Found to be bleeding from ileostomy, segment resected & transferred to ICU.[9]

1. An autopsy was conducted. The autopsy report identified the cause of death as 'extensive complications of wound breakdown following subtotal colectomy'.[10] Contributing factors were ischaemic heart disease, chronic obstructive pulmonary disease. The autopsy comments included the following:

On 21 December 2005, Mr Keys was admitted to Maroondah Hospital for a subtotal colectomy for multiple dysplastic colonic polyps. Mr Keys remained a patient at Maroondah Hospital for nearly a year. He remained alert and oriented for much of this time. His primary consultant surgeon was Professor A Hadj. His operating surgeon was Mr Doh Ong Hii.

On 23 January 2006, Mr Keys developed faecal peritonitis secondary to an anastomotic leak associated with the surgical site. This led to a sustained non-ST elevated myocardial infarct and renal failure. He also developed pneumonia, multiple episodes of atrial fibrillation, foci of faeculent wound drainage, ongoing renal impairment, pressure areas and high output from his enterocutaneous fistula and ileostomy. His mobility decline and, with it, Mr Keys' motivation. He was administered intravenous antibiotics and underwent skin grafts in an attempt to maintain his ileostomy site. Enteral feeding became compromised and, on 11 October, nasogastric feeds were introduced. Further, Mr Keys developed more generalised sepsis with an unidentified source. By October 2006, an atypical right renal cystic mass detected in January 2006 was growing and considered like to be renal carcinoma.

On 17 December 2006, Mr Keys was transferred to Box Hill Hospital after bleeding increased from his ileostomy site. He underwent an emergency laparotomy but the source of bleeding was not found. Mr Keys required inotropic support and a large volume of blood products to counteract the effects of his blood loss. Mr Keys was intubated and admitted to the Intensive Care unit.

At 11:40pm on 18 December 2006, Mr Keys became hypotensive when the venous catheter was inserted to allow haemofiltration. This procedure was required because of his renal failure and the large volume of fluids he had received. Although resuscitation efforts were effective in restoring his cardiac output after eight minutes, Mr Keys was considered unlikely to recover. After a family meeting, treatment was withdrawn.

At 1:53am on 18 December 2006, Richard Keys died...[11]

1. As a reportable death the coroner investigated without holding an inquest.[12] The autopsy was performed by Dr Iles on 20 December 2006. The autopsy report summarises the circumstances of medical treatment as follows:

I have examined the police form 83 report of death and a portion of the medical record pertaining to Richard Keys aged 77 years (Box Hill UR No. 596838 and Maroondah Hospital UR No. 307026). According to the information contained in the medical deposition, Mr Keys was initially admitted to Maroondah Hospital on the 21st December 2005 for a subtotal colectomy for multiple dysplastic colonic polyps. His course was complicated by faecal peritonitis secondary to an anastomotic leak, during the course of which he sustained a non-ST elevation myocardial infarct and developed acute renal failure. During his admission, he developed pneumonia, multiple episodes of atrial fibrillation, foci of faeculent wound drainage, ongoing renal impairment and high output from his enterocutaneous fistula and ileostomy. He also experienced considerable pain during his admission on changing ileostomy bags. During his admission, an atypical right renal cystic mass was identified on imaging. He was transferred to Box Hill Hospital from Maroondah Hospital on the 17th December, 2006 after bleeding from his ileostomy site. At that stage no source of bleeding was found. A further subsequent angiogramme failed to identify a source of bleeding. He went on to have an emergency laparotomy on the 17th December, 2006 which was resected. He required high inotropic support and large amounts of blood products. On the commencement of vascath insertion for haemofiltration for renal failure he became hypotensive. Consideration was then given to take Mr. Keys to theatre when he suffered a cardiac arrest. He was resuscitated on maximal inotropic support however the decision was made to withdraw treatment.[13]

1. Coroner Hendtlass concluded on 21 February 2008, consistent with Dr Iles report, that Mr Keys died from extensive complications of wound breakdown following subtotal colectomy.[14]
2. Mr Hii had not been involved in the investigation that led to the Hendtlass finding. He made an application in April 2019 to set aside that finding and reopen the investigation. This application was granted by DSC English who re-opened the investigation to consider whether the cause of the wound breakdown after the colectomy was the administration of a resonium enema - a matter not considered by coroner Hendtlass.[15]
3. Apart from two factual errors in the Hendtlass finding that required correction, DSC English's investigation considered whether of the anastomotic breakdown and peritonitis which led to the second surgery was caused by the enema.[16] The reasons of DCS English disclose that advice was obtained from the Coroners Court Health and Medical Investigation Team (HMIT) and two medical experts.[17] A formal statement was obtained from Mr Hii by the Police Coronial Support Unit.[18] Further evidence was also provided by Mr Hii for the Coroner's consideration.[19]
4. A mention hearing occurred on 24 April 2020 at which time Mr Hii, then legally represented, made submissions.[20] In summary those submissions were: the subtotal colectomy was performed well and there was no evidence of leak from the anastomosis, the resonium enema was contraindicated and not authorised by him, Mr Keys became unwell after administration of the resonium enema and the complications were attributable to it rather than the surgery.[21]
5. DSC English concluded that the anastomotic leak occurred sometime between 23 and 27 December 2005 and so she was not satisfied that the resonium enema was the cause of the anastomotic breakdown. Her finding, dated 29 April 2021, as to the cause of death remained the same as the Hendtlass finding.
6. The Deputy State Coroner concluded as follows:
   1. Mr Keys died almost one year after the initial surgery performed by Mr Hii. The intervening period was fraught with multiple complications. I understand that Mr Hii believes that blame for the ensuing complications has been attributed to him given Coroner Hendtlass found the cause of death was due to wound breakdown following subtotal colectomy - a surgery that Mr Hii performed. But this is not the case. The purpose of a coronial investigation is to establish the facts, not to cast blame or determine criminal or civil liability. There is nothing in Coroner Hendtlass' finding that apportions blame to Mr Hii. Her Honour did not find that treatment was lacking, nor that Mr Keys' death was preventable.

...

1. I am therefore satisfied that Mr Keys suffered from an anastomotic leak following subtotal colectomy and ileocolic anastomosis, which Mr Hii performed. However, I accept Professor Jones' opinion that the anastomotic dehiscence and leak is a recognised complication of this type of surgery and there is nothing to suggest that the dehiscence was due to substandard surgical practice on Mr Hii's part.

2. I am further satisfied that the anastomotic breakdown and subsequent leak occurred sometime between 23 and 27 December 2005.

...

1. I do not accept Mr Hii's submission that the resonium enema led to peritonitis and breakdown of the anastomosis. While it was likely an inappropriate procedure, I cannot be satisfied that it was the cause for the anastomotic breakdown. I accept that the symptoms of anastomotic breakdown had already established by the time the enema was administered.
2. Mr Hii submitted that the forensic pathologist, Dr Iles, should have considered the contribution of the resonium to the peritonitis and attributed the death to resonium peritonitis.
3. However, as Mr Keys' lengthy and complicated post-operative recovery was related to anastomotic dehiscence, which ultimately led to his death, I am satisfied that the cause of death as formulated by Dr Iles remains an accurate description of the causes of Mr Keys' death. As Mr Keys died one year after his surgery, Dr Iles could not have commented upon the contribution of the resonium to the peritonitis that occurred a year prior to death. Mr Hii's submission that the resonium enema caused wound breakdown has not been made out.
4. The cause of death as formulated by Dr Iles does not refer to the factors contributing to the anastomotic leak/wound breakdown or peritonitis that occurred one year prior to death, but rather to the complications of wound breakdown that were the terminal event and there is nothing raised by Mr Hii that suggests that the cause of death should be revised.[22]

1. Mr Hii appealed the English finding to the Supreme Court pursuant to s 83 of the Act. Justice Gorton dismissed the appeal on 13 October 2022 ( the Gorton appeal).[23]
2. In that appeal three questions of law were distilled by his Honour from the appeal material. The questions were:

Question 1: Whether a reasonable coroner, on the evidence before her, could have found that the anastomic leak or rupture was caused by wound breakdown rather than from the administration of the enema;

Question 2: Whether a reasonable coroner, on the evidence before her, could have found that the cause of Mr Key's death was wound breakdown, rather than the treatment given to him at the Box Hill Hospital in December 2006; and

Question 3: Whether the Deputy State Coroner failed in her statutory duty to investigate Mr Keys' death by failing to consider whether it was caused by the treatment given to him at Box Hill Hospital.

1. His Honour, having set out the evidence before the Coroner and the submissions, in light of those matters said:

As is apparent from the above, there was, then, no dispute that by 28 December 2005 Mr Keys had developed a leak of faecal matter into his abdomen and associated infections from which he never, in substance, recovered, and accordingly that he had died from complications of wound breakdown following subtotal colectomy. But Mr Hii contended that the wound breakdown had occurred as a result of the administration of the resonium enema, and so it was the administration of the resonium enema, rather than a wound breakdown, that should have been recorded as the cause of death.[24]

1. Gorton J recorded that before DSC English, Mr Hii did not dispute the cause of death and concluded that it was open to DSC English to accept the opinion of Mr Jones that anastomotic dehiscence was established before the enema was administered, and therefore the cause of death remained unchanged.[25] Gorton J also dealt with the issue of whether the causal connection between events following the first surgery in December 2005 and Mr Keys' death in December 2006 was broken by events at Box Hill Hospital on 17 December 2006. His Honour said:

... Mr Hii accepted that there was no material before the Deputy State Coroner, or me, that established that the administration of anticoagulant medication caused the bleeding at the ileostomy site. He did not seek to have the appeal adjourned so that he could obtain some. There was, similarly, no evidence before the Deputy State Coroner, or me, that established that the decision to operate on Mr Keys made at the Box Hill Hospital, which was directed at treating the bleeding from the ileostomy site, was inappropriate or in some other way broke the causal connection between the complications revealed as the 28 December 2005 operation and Mr Keys' death in December 2006.[26]

1. Against this procedural background, on 17 January 2023 Mr Hii made his present application under s 77 of the Act to set aside the English finding and reopen the investigation. The four matters he relied on were, as identified by the State Coroner:[27]

(a) The Box Hill Hospital records (BHH records) constitute new evidence as their contents were not fully examined previously;

(b) The description of the surgery performed on 17 December 2006 was factually incorrect[28] because there were two small bowel resections, not one;

(c) The medical treatment by those involved in the six weeks prior to death failed in their duty of care to medically manage Mr Keys; and

(d) The colectomy performed by Mr Hii was unrelated to Mr Keys' death, rather he died from excessive bleeding subsequent to the concurrent surgeries at Box Hill Hospital.

1. The Coroner addressed each of these concerns and did not accept that any of them constituted new facts and circumstances. He concluded that while the BHH records may have been newly available to Mr Hii, they were not new to the coronial investigations as they were available to both coroners and were considered by Dr Iles and medical persons advising the coroners.[29]
2. Second with assistance from HMIT, the State Coroner reviewed the BHH records. He noted that from the operation report and the pathology specimen it was difficult to be certain whether there had been one or two bowel resections during the third surgery. He accepted medical opinion that if there had been two resections rather than one, it would not have made a significant difference to surgery or affected the outcome.
3. The third and fourth matters were described as 'assertions' or 'hypotheses' drawn from Mr Hii's own review of the BHH records but not based upon any evidence that was previously unknown to the investigating coroner. Neither the medical management in November and December 2006 nor the different cause of death raised by the third and fourth grounds were accompanied by any new fact or circumstance.
4. Having concluded that this was sufficient to refuse the application, the Coroner nevertheless went on to consider whether it would be appropriate to grant the application, if any of the matters did constitute new facts and circumstances, contrary to his conclusions. He formed the view that it would not be appropriate to do so in respect of any matters. The considerations included the length of time since the death (during which time the finding had already been re-opened once and appealed) and that the English finding was not subject to any legal error. Consideration was also given to the purposes and objects of the Act. He referred to the limited public importance in any findings now as to the standard of care provided, given the passage of time and balanced the distress that Mr Keys' family have expressed at the length of time that matters have remained on foot. He also considered the reputational impact on Mr Hii which largely motivated the application to reopen the investigation.
5. On review of the material available and considering the English finding, the State Coroner formed the view that he would agree with the cause of death previously found. He observed that wound breakdown was a recognised complication of the first surgery and not attributable to substandard surgical practice by Mr Hii.
6. In particular the Coroner noted the comments in the Gorton appeal as to the basis for a finding as to cause of death[30] and observed that the application to re-open the investigation appeared to caval with his Honour's statement about the concept of causation. This was a further reasons for refusing the application. Gorton J had said:

The factor that impressed the Deputy State Coroner as being a sufficiently significant event in the chain of circumstances that resulted in Mr Keys' death was the breakdown of his wound. That complication of his operation, although not uncommon, was the deviation from the expected course without which Mr Keys would not have died when he did. The approach taken was open to the Deputy State Coroner. The ileostomy site was the source of Mr Keys' bleeding. The facts that Mr Keys died following the administration of anticoagulant medication and following operations in December 2006 directed at addressing the bleeding do not make unreasonable the conclusion that the wound breakdown was the cause of death.[31]

D Legislative framework and legal principles

1. The submissions prepared by the Coroners Court helpfully set out the legal principles and relevant case law. Mr Hii does not dispute those matters.
2. Mr Hii's application to re-open the investigation was made under s 77 of the Act. Section 77(2) states:

1. The Coroners Court, if satisfied that there are new facts and circumstances that make it appropriate to do so, may order that ―

(a) some or all of the findings be set aside without re-opening the investigation; or > > (b) some or all of the findings be set aside and the investigation be re-opened.

3. Section 77 has been considered in its earlier form. Previously s 77 set out a two stage test with new facts and circumstances being required by s 77(2)(a) and separately, by s 77(2)(b) that the Coroners Court considers it appropriate to reopen the investigation. In its present form the two steps have become a single consideration in s 77(2). In Mortimer v West,[32] the Court of Appeal confirmed the position that 'new facts and circumstances' was not qualified and each case will turn on its own facts applying a broad common-sense approach. The question of what might be 'appropriate' was also inherently broad and left to the judgment of the coronial decision maker.[33] That decision maker is one whom:

The legislature can be taken to expect the coroner to have specialist knowledge and experience and to have consciously entrusted him or her to make judgments as to what is required or desirable by way of investigation to achieve the purposes of the Act as applied to a particular death or event.[34]

1. The statutory change in s 77 from a two limb test to an integrated decision by a coroner does not change the broad nature of the judgment to be made.
2. This appeal is brought under section 84 of the Act. The appeal has two limbs. The first is under section 84 which provides:

Appeal against refusal by Coroners Court to re-open investigation

(1) If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court's determination to the Trial Division of the Supreme Court constituted by a single judge.

(2) Subject to section 86, an appeal under this section must be made within 90 days after the refusal by the Coroners Court.

1. This limb is confined to an appeal on a question of law.[35] Questions of law raised by Mr Hii's grounds include, by s 87(1A):

...an appeal on the grounds that the finding which is appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.[36]

1. Limiting appeals under s 84 to questions of law preserves the finality of the Coronial process while also protecting the lawfulness of that decision making. On an appeal, it is the legal question or legal error and not the merit of the decision itself that is both the pre-condition of a right to appeal and is the subject matter of the appeal.[37] An appeal is not concerned with reviewing the correctness of the finding of fact, in this case as to cause of death. It is concerned with whether the finding is one that is legally open and was arrived at by a proper process.
2. It is incumbent upon an appellant to allege and identify with precision legal error by the Coroner. Where an appellant is not legally represented the Court must consider whether the material provided by an appellant does raise a question of law, even if not clearly articulated.[38]
3. The second limb of this appeal is not based upon a question of law. It relies on s 87A which provides for an appeal 'in the interests of justice'. The provision states:

(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 to 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.

1. Mr Hii, having requested the investigation be re-opened, is a person with sufficient interest under s 87A(1)(b) to appeal on the basis that re-opening the investigation is necessary or desirable in the interests of justice.
2. A number of decisions considered predecessor legislation that provided for an appeal if the Court was satisfied 'that it is necessary or desirable in the interests of justice'.[39] The earlier provision was limited to appeals against a refusal to hold an inquest. The line of cases concluded that the provision granted a wide discretion but was a jurisdiction to be exercised sparingly and in rare circumstances. Close scrutiny of compelling evidence was expected to warrant intervention by the Court in the interests of justice. Examples of applications that were refused include Clancy v West,[40] Bourke v The Coroners Court of Victoria,[41] and Chiotelis v Coate.[42]
3. In Mortimer v West[43] the Court of Appeal allowed an appeal from a trial judge's refusal to re-open an investigation under s 87A of the Act. The appeal was conducted in light of this statutory history and the case law remains applicable concerning the sparing use of the power and the discretionary nature of a decision by a 'specialist coroner'.[44] In Werner and Cecile Hecht v The Coroners Court of Victoria[45] an appeal under s 87A was conducted on the joint application of the parties that it was in the interests of justice to re-open the investigation.[46] The death of a motorcyclist overtaking a vehicle was sought to be re-opened because the appellants had specific new facts as to the working of the car's indicator and because they had been denied an opportunity to be heard as to the adverse potential finding against the deceased motorcyclist as to the cause of the collision that caused her death.
4. This appeal against the decision of 16 November 2023 was filed on 14 May 2024, outside the 90 day time limit prescribed by s 84(2). Section 86 provides the Court with power to grant an extension of time. It says:

The Supreme Court may grant leave to appeal out of time under section 78, 80, 81(3), 82, 83 or 84 if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the specified period was due to exceptional circumstances; and

(b) is satisfied that granting leave is desirable in the interests of justice.

1. An appellant seeking to appeal out of time must show that the failure to institute the appeal within the relevant time was due to exceptional circumstances. Exceptional circumstances are those said to rarely occur and to be outside reasonable anticipation or expectation.[47] As used in s 86, exceptional circumstances are concerned with the matters disclosing the reasons for the late commencement of proceeding.[48] Where exceptional circumstances are demonstrated the court must also be satisfied that granting leave to appeal out of time is desirable in the interests of justice. This includes consideration of matters specific to the appellant, such as the prospect of the appeal succeeding, as well as broader considerations including furtherance of the purpose and objectives of the Act.[49]

1. The time limit for the appeal expired 3 months prior to it being filed. The reason for the late filing is described as due to:

Personal mental stress and appellant's poor understanding of the Court's process and in this case, have made many efforts in lodging this appeal and the first in time filing was erroneously replaced.[50]

1. The appellant's notice of appeal identifies eight questions of law and seven grounds of appeal. The questions of law, in brief, ask why the State Coroner did not:

(a) Consider the new facts and evidence;

(b) Carry out an independent investigation;

(c) Assist the families of the deceased person to understand what happened;

(d) Examine the question of any shortcomings, gaps or failures in an organisations systems that contributed to the death;

(e) Conduct a concise, non-repetitive investigation in accordance with s 67 of the Act;

(f) Consider why past investigations did not find a cause and circumstances in which the death occurred;

(g) Why the Hendtlass finding contained a 'statement of guilt'; and

(h) Meet its obligations in administering justice.[51]

1. The appellant's lengthy and detailed submissions can be summarised as addressing the following areas of concern:

(a) that the findings as to the cause of death are wrong (the Hendtlass finding, the English finding,) because the cause of death was the third surgery at Box Hill Hospital with the complication of excessive bleeding;[52]

(b) that the competency of the surgery performed by Mr Hii is implicated in the findings as to cause of death made to date and Mr Hii has suffered and continues to suffer reputational damage as a result[53] including because the Hendtlass finding included a finding of 'guilt'.[54]

(c) The BHH records are new to the coroners court as they have not been fully considered in previous coronial investigations.[55]

(d) The appellant was disadvantaged by lack of access to the BHH records and so limited in his ability to raise issues before DSC English.[56]

(e) The BHH records demonstrate that the cause of the bleeding that led to the third surgery was from a melaena rather than, as provisionally diagnosed, from the site of the ileostomy. The decision to operate was made upon this wrong diagnosis, and was compounded by a decision to include elective surgery for the enteric fistula.

(f) The conclusion of the autopsy report of Dr Iles was wrong and the report of the death made by Dr Harrison was provisional and uncertain.

(g) The fact finding of DCS English was flawed, submitting that:

(i) The finding confused the surgeries in December 2005 and the surgery in December 2006.

(ii) The fact of two bowel resections during the third surgery was a significant fact that was mis-stated by DSC English.[57]

(h) Mr Hii criticised the refusal of the Coroner to re-open the investigation because he failed to mention the enema usage which was a significant medical event investigated by DCS English.[58] He also submitted that the Coroner found a 'vastly distinct set of circumstances for Mr Key's death'[59] which did not concur with the finding of DCS English, and which meant that English finding should have been set aside.

1. Apart from the Notice of Appeal, the appellant's written material did not address the extension of time. In oral submissions Mr Hii indicated that he did attempt to lodge his appeal well before the 90 days but that his appeal document was not accepted for filing. He submitted that 'eventually they did accept' and that the 'Redcrest people' informed him he had to put in [reasons] for an extension of time'.[60] He also said he was aware of the time limit, although it was not clear whether this came from the Gorton appeal pursued by him previously under s 83 of the Act or came from advice he was given when he first attempted to lodge this appeal.[61] There was no evidence presented to support the explanation that mental stress prevented lodgement within the 90 days. Indeed, Mr Hii did attempt to do so but his document was rejected.
2. Mr Hii was aware of the limit. He was provided with some information about what matters should be written in the notice of appeal. There is no description of key events between January 2024 at the latest, which seems to be when the Notice of Appeal was initially prepared, and 14 May 2024 when it was eventually accepted for filing. While it is appropriate to consider the circumstances and difficulties faced by a self-represented litigant in meeting time limits, there is nothing in this case that demonstrates that Mr Hii's circumstances are exceptional or to explain why the 90 day time limit was not met.
3. To the extent that the appellant is also required to satisfy the Court that an extension is in the interests of justice, those matters overlap with the consideration of the appeal under s 87A. For the reasons set out below on that issue, I would not be persuaded that, even were exceptional circumstances shown to explain commencing the appeal out of time, it would be in the interests of justice to extend time.
4. I will nevertheless consider the substance of the proposed appeal, in the event that I am wrong in my refusal to extend time.

F.2 Questions of law: ss 84(1) and 87(1A)

1. Many of the questions of law articulated address the previous coronial findings of coroners Hendtlass and English directly. Those findings are beyond the scope of this appeal which is concerned with the State Coroner's refusal to re-open the past investigation. It is the refusal to re-open that is the decision that must be shown to have been affected by legal error or set aside in the interests of justice. To the extent that the questions of law seek to canvas the entire past coronial process they are misconceived questions.
2. The Coroner was not satisfied that there were new facts or circumstances raised by Mr Hii's application. He did not conduct a further inquiry into the circumstances nor did he make a further finding as to cause of death, although appropriately, he did conduct a review of the material that was before DSC English and consider whether it was not in the interests of justice to let that finding stand. It was both open to him and reasonable for him to refuse the application to re-open the investigation.
3. First, the BHH records were demonstrably considered by DSC English in reaching her findings. Her reasons made reference to various possibilities that precipitated the multiorgan failure that occurred at Box Hill Hospital. The circumstances of death described attempts to identify the source of the bleeding from the ileostomy site at both hospitals. The summary way in which those matters were described recognised that the issue with which the re-opened investigation was concerned was the impact of the resonium enema on 27 December 2005 in causing the wound breakdown.
4. Before DSC English, Mr Hii did not contest the fact of the wound breakdown - only its cause. He submitted that the initial investigation, which led to the Hendtlass finding, did not analyse medical care in the year following Mr Hii's surgical interventions, including during which time Mr Hii was not involved. At a mention hearing before DSC English, it was noted that Mr Hii agreed that the cause of death was 'from extensive complications of wound breakdown, but disagree[d] that it was from the subtotal colectomy'.[62]
5. Mr Hii submits that these concessions were made without the benefit of the BHH records which were only made available to him in the course of the Gorton appeal. Accepting this is so, Mr Hii nevertheless contended in the Gorton appeal that the medical care at Box Hill Hospital was the cause of death. His Honour noted that this argument had not been raised before DSC English where Mr Hii had conceded acceptance of the cause of death, but not the cause of wound breakdown.[63] Despite this, his Honour specifically considered whether the Deputy State Coroner, on the evidence before her, was entitled to make the finding that she did. Gorton J observed that there was no evidence before DSC English, nor him, that demonstrated other causes of bleeding from the ileostomy site in December 2006, nor that the decision to operate at Box Hill Hospital was inappropriate. Evidence of these matters would be relevant to whether or not the causal connection between complications first revealed in December 2005 and the death in December 2006, had been broken by the later events.
6. Mr Hii accepted that he had not presented any evidence to DSC English or to Justice Gorton as to events at Box Hill Hospital. Nor did he present further evidence to the State Coroner. The Coroners Court wrote to Mr Hii upon receipt of his application to re-open seeking clarification to 'understand what you say are the new facts and circumstances'.[64] In reply, Mr Hii set out his views that the BHH records were not properly examined and that Mr Keys had a bleeding tendency or disorder prior to the third surgery which 'could account for' pre-operative bleeding from the ileostomy, as the related angiogram did not identify the bleeding source'. He submitted that a simpler or alternate approach by Box Hill Hospital 'may well avoid and prevent his death'.[65]
7. Mr Hii's contentions about the events at Box Hill Hospital are submissions. They were not accompanied by any new evidence that supported his submission as to the alternate cause of death. His opinions, as a surgeon involved in Mr Keys care in 2005, may be informed by his own surgical knowledge. However, his opinions themselves do not compel a conclusion that the State Coroner's refusal to re-open the investigation is erroneous as a matter of law. The submissions about the relevance of medical care in the six weeks prior to death and the decision to operate at Box Hill Hospital were submissions also made in the Gorton appeal. His Honour concluded that the records had been considered and that there was no legal error in reaching the conclusion expressed in the English finding.
8. The Coroner was asked to re-open the investigation upon the same issues as had been articulated before Justice Gorton. Mr Hii described his application to re-open the investigation as an 'election' on his part in lieu of appealing Gorton's decision. The provision in the Act to re-open an investigation based upon new facts or circumstances is not a substitute for an appeal.
9. There is no legal error in the State Coroner's conclusion that the material put forward by Mr Hii did not amount to new facts or circumstances. This conclusion is sufficient to dispose of the appeal on a question of law.

F.3 Is a further investigation desirable or necessary in the interests of justice: s 87A

1. In this limb of his appeal, Mr Hii submits first that there has been a systematic inadequacy in the coronial process that has been undertaken to date making it necessary or desirable that the Coroners Court look again at the reportable death. Second he submits that the finding gives rise to reputational damage to him while it remains. These matters mean that, despite there being no error of law involved in the English finding or in the refusal to set it aside, the flaws in the process and the reputational damage makes it at least desirable to re-open the investigation.
2. To some extent the Coroner's reasons as to why it was not 'appropriate' under s 77(2) to set aside the finding and re-open the investigation, bear upon the interests of justice ground. The Coroner noted that the initial investigation was published on 5 August 2008 and a copy provided to Mr Hii in September 2008. A further investigation, re-opened at Mr Hii's request in 2019, reached the same conclusion as to cause of death. That finding was not set aside by the available appeal process. The present application to the Coroners Court is the second application and raises different arguments to those previously relied on.
3. Mr Hii's submission articulates a disagreement with the outcome of the investigation rather than a flaw in the investigation process. Much like the argument that the medical records have been inadequately considered because they have been wrongly interpreted, Mr Hii argues the DSC English's decision is wrong because she was given wrong medical advice. The Coroner did not only rely on medical advice from HMIT, but also sought independent medical opinion and received evidence from medical practitioners engaged by Mr Hii. The variation in medical opinion on the issues being investigated by the coroners clearly demonstrated that reasonable minds might differ as to the conclusions to be drawn from the factual matters in the medical record.
4. Mr Hii has failed to demonstrate that a third investigation into the circumstances and cause of death is necessary or desirable therefore I will not allow his appeal under s 87A.
5. The length of time since the death, the opposition by the family to the matter being further investigated, the lack of identification of a systemic health issue that would be relevant today, and the prior history of two coronial investigations all point away from a conclusion that it is desirable to re-open the investigation again in the interests of justice. It follows that I have not accepted that the past investigations have been inadequate or misguided in the ways alleged by Mr Hii.
6. No coroner has made a finding adverse to Mr Hii. Nor was there a statement of 'guilt' in the Hendtlass finding. The submission that the cause of death as found is 'wrong' misunderstands, or does not accept, Gorton J's comments on causation. As his Honour's reasons have set out, there may be a number of factors in a medical chain of events that lead to death. That chain of events, and the Coroner's identification of the factor or factors that deviate from the expected course, is not an exercise in identifying legal fault for a death. Mr Hii now has the benefit of three clear judicial statements clarifying the distinction between a finding as to cause of death and a finding of legal fault for a death. No further judicial statement on the issue is necessary or desirable.
7. In deciding whether it is in the interests of justice to re-open an investigation into a reportable death the principle of finality of judicial determination is relevant. A power to re-open a matter already decided does qualify the principle of finality, itself a principle important to the administration of justice. The judicial process decides a controversy, subject to the availability of rights of appeal or, as here, a statutory right to apply to re-open a matter. Mr Hii has exercised his right to appeal the English finding and though unhappy with that decision did not further appeal it. To a large extent his further application disputes the matters set out in Gorton J's reasons without presenting any new evidence that might call into question the causal chain of circumstances embodied in the English finding. Those arguments have been addressed on the available evidence and further evidence not previously relied on has not been obtained. Mr Hii has not brought himself within the ambit of s 77(2). There is nothing further that demonstrates it would be in the interests of justice to revisit the DSC English finding which on appeal has been held to be open to the coroner and not attended by any legal error.

1. I will order the proceeding be dismissed. I will hear the parties on the appropriate orders as to costs.

[2] S 84 of the Act.

[3] S 86 of the Act.

[4] S 87 of the Act.

[5] [1980] HCA 13; (1980) 144 CLR 13.

[6] The subtotal colectomy involved removal of a section of colon. Anastomosis refers to the join that is made when restoring bowel continuity. The join was between the terminal ileum and upper rectum/lower sigmoid and described as an ileo-rectal anastomosis.

[7] Deputy Coroner Caitlin English, Finding Into Death Without Inquest (29 April 2021) ('English Finding') [21]. See also respondent's Courtbook, 'Court Book Index' dated 25 February 2025 and filed by email to the Court on 31 March 2025 ('CB') at 77.

[9] Dr Elise Harrison, Death Report to Coroner, Medical Practitioner's Deposition (18 December 2006), per CB 254.

[10] Coroner Jane Hendtlass, Record of Investigation into Death (21 February 2008) ('The Hendtlass Finding), per CB 287-287.

[12] In 2006 under the previous Coroners Act 1958 (Vic).

[13] Linda Elizabeth Iles, Autopsy Report (20 December 2006) 13-14, per CB 269-270. This summary is stated by the pathologist to have been drawn from Dr Harrison's report of the death and 'a portion of the medical records' of Maroondah Hospital and Box Hill Hospital.

[15] Now Her Honour Judge English of the County Court. Decision to re-open dated 5 August 2019.

[16] English Findings [15], per CB 69.

[18] English Findings [50], [51], per CB 78-79.

[19] Per English Findings [49], [50] referencing the pathology reports of Dr Chris Mow and Dr Patrick Hosking, as well as paediatric urologist/surgeon Dr Paddy Dewan, retired medical practitioner and general surgeon Dr Russell Broadbent, and former head of surgery department, former general surgeon and current medical practitioner Professor Avni Sali, per CB 718-719.

[20] Ibid [15], [16], see also transcript from that proceeding at CB 546.

[23] Hii v Coroners Court of Victoria [2022] VSC 611.

[27] State Coroner Judge John Cain, Determination Following Application to Set Aside Finding (16 November 2023) ('State Coroner Determination'), per CB 871.

[28] As recorded in [44] of the English Finding, per CB 77.

[29] State Coroner Determination [31], per CB 879.

[30] At [56], [57] of State Coroner Determination, per CB 886.

[32] [2018] VSCA 188.

[33] Ibid [64-72] approving Hecht v Coroners Court [2016] VSC 635.

[34] Mortimer v West [2017] VSC 293 [49] cited with approval in Mortimer v West [2018] VSCA 188 at [71].

[36] Appellant, 'Affidavit Doh Ong Hill' sworn 18 July 2024, [9], per CB 25.

[37] Bourke v Coroners Court of Vicotria [2015] VSC 418, [21].

[38] Gorton appeal [3], citing Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, 805.

[39] S 18(3) of The Coroners Act 1985 (Vic).

[40] [1996] VicRp 92; [1996] 2 VR 647: where an application to hold an inquest was made by the son-in-law of the deceased who had also acted as his mother-in-law's general practitioner, wishing to challenge the cause of death on the death certificate and challenge the appropriateness of medical care during the hospital admission during which the deceased died.

[41] [2015] VSC 418: no error of law in the identified conclusions which the appellant disagreed with because no compelling evidence had been produced to demonstrate why it would be in the interests of justice.

[42] [2009] VSC 256: in which the spouse of a man who died in a motor vehicle collision requested an inquest because of discrepancies in the evidence surrounding the death and because the information provided to the coroner was incomplete.

[43] [2017] VSC 293.

[45] [2016] VSC 635.

[47] Keogh J in Childs v Coroners Court of Victoria [2020] VSC 755, citing Coulston v Coroners Court of Victoria [2018] VSC 103, [31], [34] and [35].

[48] Coulston v Coroners Court of Victoria [2018] VSC 103, [30].

[50] Appellant, 'Notice of Appeal' filed 14 May 2024, per CB 1.

[52] Appellant, 'Applicant's Submission' filed 23 October 2024 ('Appellant's submissions'), [3], [24]-[28], [30], [40].

[60] Transcript of Proceedings, Doh Ong Hill v Coroners Court of Victoria (Supreme Court of Victoria, S ECI 2024 02696, Justice Forbes, 3 April 2025) ('T') 15.2-15.4.

[62] Transcript of Proceedings, Mention before Ms C. English (Coroner's Court, COR 2006 4798, 24 April 2020) 327.27-327.30, per CB 552.

[64] Letter from Coroner's Registrar to Doh Ong Hii, 3 February 2023, per CB 800.

[65] Letter from Doh Ong Hii to Coroners Court, 7 February 2023, per CB 801.