Appellant v Respondents

2 The first respondent and the intervener do not seek any costs orders, so the question is, in effect: what is the appropriate costs order between the appellant and the second respondent?

3 The second respondent, by submissions dated 17 February 2023, seeks an order that her costs of the appeal be paid by the appellant on a standard basis, in effect an order that costs follow the event. The appellant, by submissions dated 27 February 2023, seeks that there be no order as to costs - a departure from the usual order - because of public interest considerations.

4 The legal question raised by the appellant's application for release of the body was whether she was 'the executor under the will' within the meaning of s 48(3)(a) of the Act. As the executor, hers would be the 'better claim' than that of any senior next of kin contemplated by the remaining subsections of s 48. The document that was relied on was a letter written by the deceased to the appellant, which enclosed some pages of instructions. The appellant characterised this as an informal will. The appeal raised a clear question of law as to the approach that a coroner should take in determining whether informal documents amount to a will for the purpose of s 48 of the Act. The question was not subject to any direct authority and had not previously been considered by this Court. Previous cases dealing with s 48 dealt with various claims by family members as to who had the 'better claim'.

5 Behind the legal question sat a difficult factual situation. The deceased was estranged from the family into which she was born and expressed her clear wish that they have nothing to do with her death. She described her close friends, including the appellant, as 'her chosen family' and her 'chosen next of kin'. She left instructions for the appellant including her wishes for funeral and cremation arrangements and for disposal of her belongings. The appellant was acting in accordance with her friend's wishes and the steps she took were designed to give effect to those wishes. She did not have any financial interest in the litigation.

6 The application to the Coroner by the deceased's parents also recognised the estrangement from family but expressed their hope that it would have been reconciled in time. It revealed the complexity of the family circumstances and the different perspectives amongst family members.

7 The appellant submits that the following matters are relevant public interest considerations:

(a) there was significant public interest in the proper construction of s 48 of the Act and the engagement of human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), in particular for those sections of the community who are more likely to be estranged from family and for whom the assumptions underlying the ranking of 'senior next of kin' would not reflect their close relationships.

(b) the appeal was not motivated by any self-interest and the appellant sought only to carry out the deceased's wishes. She had neither financial nor other proprietary interest in the outcome.

(c) the appeal was brought in the absence of clear authority. The decision in Smith v Coroners Court of Victoria[1] provided guidance on the mandatory hierarchy of s 48(3) of the Act but did not deal with the question of an informal will naming an executor under subparagraph (a).

(d) the proceeding had the characteristics of a test case clarifying that the only way to ensure release of a body in accordance with one's wishes is to prepare a will appointing an executor - a decision that is helpful not only to the parties but to members of the public in future.

(e) the decision clarified the law relating to human rights especially as to the disposal of mortal remains.

8 The second respondent submitted that, as in Trinh v Coroners Court of Victoria ('Trinh'),[2] costs ought follow the event. Trinh concerned applications by a domestic partner and a parent for release of the body by the Coroner where both claimed to have the 'better claim'. In the absence of any legal error by the Coroner, costs of the appeal in that instance followed the outcome. The second respondent also relied on an argument that the appeal grounds were not strong as a factor against consideration of the case as a test case.

9 As described in the judgment, of seven grounds of appeal in total, five addressed the way the Coroner approached the documents said to be the informal will. The remaining two grounds addressed a broader issue of the proper construction of s 48(3) of the Act - contending that s 48(3) permitted an exercise of discretion in determining the 'better claim', and that the statutory hierarchy of senior next of kin is inconsistent with specific rights protected by the Charter.

10 The Court can have regard to matters of public interest in exercising its discretion as to costs, and such matters may warrant a departure from the usual order.[3] Description of a particular case as 'public interest litigation' is not a particularly useful designation.[4] The nature of the parties to the litigation will on occasion inform the public interest considerations; where a party is a government entity or a statutory authority the issues to be determined might be more clearly identified as being in the public interest. The motivation of a party in bringing or defending litigation also may be relevant and the absence of any personal stake in the outcome of the litigation might more readily permit a characterisation of the proceeding as raising matters of public interest.[5] Often however, matters of public interest raise different arguments of significance from different perspectives. As was said by the Court of Appeal in the context of litigation concerning environmental law which clearly had public interest considerations:

It is not for the Court to seek to balance these interests to the extent they compete.[6]

11 Much litigation concerns matters in which the public has considerable interest. As Gorton J said recently:

Moreover, determining whether litigation is in the 'public interest' is not always straightforward. In one sense any litigation that results in clarification of legal principle benefits the public. The more 'public' the application of legal principle, the more the public interest is involved. The proper interpretation of a far reaching statutory is an obvious example. But it is the nature of the issues that fall for determination in the litigation that must govern whether the litigation is in the public interest, rather than the policy objectives pursued by a particular claimant.[7]

12 Where a case raises significant questions of general application, and is conducted in the public interest, it is more likely to constitute a test case.[8] DPP v Nguyen[9] was such a case where the DPP sought clarification of the operative date for the purpose of time limits imposed under the Confiscation Act 1997 (Vic) for the forfeiture of property. The Court described the obvious need for certainty as to the point from which time runs for the purpose of the legislation. There was a significant level of uncertainty that arose from the statutory use of 'conviction' to describe the relevant date as the starting point. The question of law raised by the DPP's appeal was a significant question of general application, and so the Court of Appeal did not make any orders as to costs even though the DPP succeeded in the appeal. By contrast, in DPP v Ali & Anor (No 2),[10] the Court of Appeal declined to characterise the matter as a test case even though it required construction of a provision of the same legislation. In Ali, Maxwell P described the situation in DPP v Nguyen:

...the respondents could rightly be characterised as having been parties to a proceeding which the DPP had conducted in the public interest.[11]

and contrasted it with the present situation in which the majority did make costs orders reflecting the outcome of the appeal:

Almost every case under the Confiscation Act requires interpretation of a provision of the Act. That cannot be sufficient for this purpose. The point at issue must be capable of being viewed as of wide general importance before it can be regarded as a test case.[12]

13 I have concluded that the public interest considerations raised by the issues for determination in this case are not sufficient to displace the ordinary rule that costs should follow the event.

14 First, the costs dispute is between two private litigants and the primary issue between them was one of priority under statute. The particular nature of the litigation is such that neither party stood to gain anything other than the right to dispose of the mortal remains of someone they knew and cared for, as each of them saw fit. The appellant's motivation to give effect to the deceased's express wishes remains a fundamentally personal motivation and does not lead to a characterisation of the litigation as being in the public interest.

15 Second, although this case was novel in that it dealt with an application by a person as an executor under an informal document, it was, like other cases that determine priority where more than one claim has been made, based upon a factual determination of the nature of the relationship between the deceased and each applicant. Section 48 of the Act is then applied to the particular factual findings. In this sense, as with Trinh, there is no real point of general application or principle. The public interest is no greater than that resulting from clarification of legal principle generally.

16 Third, the decision may provide some guidance to others, including coroners, in circumstances where a person's wishes as to disposal of their body are contained in informal documents. However, the way in which those circumstances might be addressed by a coroner will in all cases depend on the particular facts. The Coroner's conclusion, which was not attended by error, addressed the particular circumstances of the specific document prepared by the deceased and relied on as a will. In that sense, the appeal and the question of statutory construction did not raise any issue of general application.

17 Prioritising next of kin and identifying the person with responsibility for making decisions in the context of a person's death is a question about which many differing views are likely to exist among the community. There is much to be said for the 'need to dispose of a body without unreasonable delay' and in that context, for the public expectation that courts will resolve disputes that arise from differing beliefs, values, culture and the quality of relationships, a practical way.[13] It may surprise many members of the public not versed in the legal principles of wills and probate to learn that a person has no right to dictate what is to happen to their body after death,[14] and that even when wishes are expressed as instruction to an executor, they are not strictly speaking binding.[15] There is no doubt that some, perhaps even many, in the community for a variety of personal reasons would not wish possession of their mortal remains to be determined by application of the ranking of claims by 'senior next of kin' as prescribed by s 48(3) of the Act. This case was one illustration of such circumstances.

18 The final two grounds of appeal addressed issues wider than the individual factual circumstances before the Coroner. They raised the question of whether s 48(3) of the Act permitted a coroner any discretion in determining the 'better claim' and whether the definition of 'senior next of kin' and its application to the process of determining release of a body by a coroner was contrary to the Charter.

19 The intervention by the Attorney General, as of right in accordance with s 34 of the Charter, might suggest a level of public interest in the question of statutory construction before the Court and its impact upon human rights protected by the Charter. I accept that there is generally a level of public interest in the protection of human rights and that this case impacted upon protected human rights of the deceased. This is invariably so in all cases raising Charter issues. In my view this case did not have the necessary hallmarks of being conducted as a test case on Charter issues or otherwise.

20 The real question is whether, in this case, the public interest is of such significance as to displace the usual costs rule as between two private litigants. An award of costs is not made to punish an unsuccessful party but to recognise the reality that parties incur costs in bringing and defending litigation. Neither the Coroners Court nor the Attorney General seek their costs of the appeal from the appellant. The public will meet this expense. Both private litigants have incurred costs in this appeal. In my view it is not appropriate in this case that a private litigant, as respondent to an appeal and who has succeeded, be deprived of the benefit of a costs order in her favour because of public interest considerations. She is in no way a public body charged with some decision-making power or other role that impacts on the public, such that it be appropriate that she not recover the legal cost to her of being a party to the appeal. In my view, as between the private litigants, the costs order should reflect the outcome.

21 I will order that the appellant pay the second respondent's costs on a standard basis to be assessed in default of agreement by the costs court.

[1] [2018] VSC 307.

[2] [2019] VSC 133.

[3] Oshlack v Richmond River Council (1998) CLR 72.

[4] Cumming v Minister for Planning [No 2] [2020] VSCA 231, [9] ('Cumming').

[5] Environment Victoria Inc v AGL Loy Yang Pty Ltd & Ors [2023] VSC 86, [10] ('Environment Victoria Inc').

[7] Environment Victoria Inc (n 6) [12].

[8] DPP v Ali & Anor (No 2) (2009) 25 VR 656, Maxwell P [17]-[18], Weinberg and Kyrou JJ agreeing at [44], all referring to DPP v Nguyen [2009] VSCA 147; (2009) 23 VR 66 and its costs ruling, which was delivered orally and not published.

[9] [2009] VSCA 147; (2009) 23 VR 66.

[10] (2009) 25 VR 656.

[13] Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446.

[14] Smith v Tamworth City Council & Ors [1997] NSWSC 197; (1997) 41 NSWLR 680.

[15] Leeburn v Derndorfer [2004] VSC 172, [16].