First Appellant Second Appellant v First Respondent

Sarah Gebert, Principal In-House Solicitor, Coroners Court of Victoria

1 Robert Lilley died on 16 May 2018 in a single vehicle accident, in which he was the only driver. His death was sudden and, I imagine, shocking for his family. Unfortunately they are not united in their grief. This appeal concerns a dispute about whether the Coroner should release Mr Lilley's body to his wife, Amanda Lilley, or to his mother and step-father, Joanne and Daryl Smith. For the reasons that follow I find that there was no error in the Coroner's determination to release the body to Ms Lilley.

2 Mr Lilley's death was a reportable death under the Coroners Act 2008 (Coroners Act) and the Coroner arranged for an autopsy to be performed, as part of the coronial investigation into Mr Lilley's death. The autopsy has been completed and it is no longer necessary for the Coroner to have control of his body.

3 On 29 May 2018 the Coroner determined, under s 48 of the Coroners Act, that Mr Lilley's body should be released to Ms Lilley, as his wife. Ms Lilley had applied to the Coroner under s 48(1) of the Coroners Act for the body to be released to her.

4 That determination has been appealed to this Court by Mr Lilley's mother, Joanne Smith, and his step-father, Daryl Smith. They had also applied to the Coroner for Mr Lilley's body to be released to them.

5 The appeal was lodged on 31 May 2018, within 48 hours of the Coroner's determination.[1] I heard the appeal in the Practice Court on 6 June 2018.

6 Mrs and Mr Smith were represented by Ms Symons of counsel, who provided the court with written submissions in advance of the hearing. They relied on an affidavit of Kim Packer, solicitor with J+K Law, sworn on 31 May 2018.

7 Ms Lilley was represented, pro bono, by Ms Schilling of counsel. At her request I ordered that Ms Lilley be added as a respondent to the appeal. Ms Schilling handed up an outline of submissions for Ms Lilley.

8 Ms Ellyard of counsel appeared for the Coroners Court, which had also provided a written submission and affidavit of Sarah Gebert, a solicitor at the Court, affirmed on 1 June 2018. Appropriately, the Coroners Court maintained a neutral stance in the appeal - consistent with the observations of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman.[2] Its participation was confined to assisting this Court in relation to the practices and procedures of the Coroners Court and the relevant common law principles.

9 On 29 May 2018 Coroner Spanos made an order releasing Mr Lilley's body to Ms Lilley. She provided written reasons that explained why she had determined to release Mr Lilley's body to Ms Lilley rather than to Mrs and Mr Smith.

10 At [5] and [6] of her determination the Coroner set out the claims of the parties about their respective relationships with Mr Lilley. It will benefit no-one to repeat their competing claims in any detail here. It is enough to note that:

(a) Mr Lilley and Ms Lilley apparently separated at some time in 2017, with an intervention order in place against Mr Lilley from September 2017; and

(b) the parties have very different understandings of Mr Lilley's wishes about his funeral arrangements.

11 At [7]-[8] of her determination the Coroner referred to s 48 of the Coroners Act and the hierarchy set out there for determining who has the better claim to release of the body of the deceased. Mr Lilley died without a will and so there is no executor to whom his body could be released under s 48(3)(a). The Coroner therefore determined that the next best claimant was his senior next of kin, as defined in s 3 of the Coroners Act.

12 The critical part of the Coroner's reasoning is at [10]:

My jurisdiction is limited to determining which of the applicants has the better claim according to law, for the body of the deceased to be released to them. As the law currently stands, the better claim is that of Ms Lilley as senior next of kin under the Act, for despite her separation, she was still the spouse of the deceased as at the date of his death.

13 Mr and Mrs Smith have appealed against the Coroner's order to release the body to Ms Lilley, under s 85 of the Coroners Act. By operation of s 87(1), the appeal is on a question of law only. If the appeal is successful, s 88(1)(c) requires me to determine to whom the body should be released and the terms or conditions of that release.

14 Section 48(2) of the Coroners Act provides:

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

15 Section 48(3) provides:

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

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

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

(c) if there appear to be 2 or more applicants who are the senior next of kin of the deceased, the coroner should determine to whom the body is to be released having regard to any principles of common law relating to the release and disposal of a body of a deceased person;

(d) if no person referred to in paragraph (a) or (b) is an applicant, the coroner should determine to whom the body is to be released having regard to the principles of common law relating to the release and disposal of a body of a deceased person.

16 The term "senior next of kin" is defined in s 3(1) of the Coroners Act to mean, in relation to a deceased person:

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

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

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

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

(e) if a spouse, domestic partner, son, daughter, parent or sibling is not available - a person named in the will as an executor; or

(f) if a spouse, domestic partner, son, daughter, parent, sibling or executor is not available - a person who, immediately before the death, was a personal representative of the deceased;

(g) if a spouse, domestic partner, son, daughter, parent, sibling, executor or personal representative is not available - a person determined to be the senior next of kin under subsection (3);

17 Section 3(3) provides:

For the purposes of paragraph (g) of the definition of senior next of kin, a person is the senior next of kin if the coroner determines that the person should be taken to be the senior next of kin because of the closeness of the person's relationship with the deceased person immediately before his or her death.

18 The "senior next of kin" of a deceased is significant not only as the person to whom the body can be released in the absence of an executor. That person also has rights to object to an autopsy (s 26), to make suggestions in relation to a proposed exhumation (s 45), to appeal against a direction of a coroner that there be an autopsy (s 79), to appeal against a decision to authorise an exhumation (s 81), and to request access to reports of a medical examination (s 115). There are short time frames for the exercise of some of these rights.[3]

19 It is clear (and was accepted by all parties) that Ms Lilley is Mr Lilley's spouse and his senior next of kin. Although they had been separated since about March 2017, they were still married at the time of his death. The Coroner treated that as determinative of the question of who had the better claim.

20 The appellants submit that the Coroner's decision was based on the legal misapprehension that she had no discretion as to the release of Mr Lilley's body and was bound by law to release it to Ms Lilley as senior next of kin. They submit that the Coroner conflated the concepts of who has the "better claim" with who is the "senior next of kin". They say that the Coroner was bound to consider, on the material before her, which of the applicants did in fact have the best claim to the release of Mr Lilley's body - ie that the principles in s 48(3) are mandatory considerations that provide guidance without being determinative. They say that the use of the word "should" in the various paragraphs in s 48(3) indicate that the Coroner has a discretion as to whether the body should be released to that person.

21 For Ms Lilley it was submitted that s 48 is expressed in mandatory terms, and that s 48(3) is a mandatory hierarchy for determining who has the better claim. They say that the word "should" where it appears in s 48(3) gives rise to an obligation not a discretion. Ms Schilling referred me to ss 7(b), 8(b) and 9 of the Coroners Act as indicative of the legislature's intention that the Act provide for a coronial system that operates in a fair and efficient manner, and that investigations be completed expeditiously and without delays that may exacerbate the distress of family and others affected by a death. She also referred me to some extrinsic materials for the Coroners Act, being relevant passages in the Explanatory Memorandum and the Parliamentary Law Reform Committee's report on the Coroners Act 1985.

22 Ms Ellyard informed me that the Coroners Court regards s 48(3) as setting out a strict hierarchy for determining who has the better claim, and leaves no room for discretionary considerations of the kind urged by the appellants.

23 If the Coroner has the residual discretion contended by the appellants this should be apparent from the text of s 48, read in its context in the Coroners Act, including the legislative purpose expressed in the Act and any relevant extrinsic materials.[4]

24 Looking first at the text of s 48, ss 48(2) and (3) use the word "must", which is clearly mandatory - the Coroner must determine who has the better claim and must have regard to the principles set out in s 48(3)(a) to (d). The separate paragraphs 48(3)(a) to (d) all use the word "should", which the appellants contrast with the earlier use of the word "must". They submit that the use of the word "should" rather than "must" indicates that the Coroners Court has a discretion as to whether to apply the principle in each paragraph and accept that the person identified has the better claim to have the body released to them.

25 I cannot accept this submission. The word "should" is the past tense of "shall", and is to be given a corresponding meaning unless a contrary intention appears.[5]

26 Section 45(2) of the Interpretation of Legislation Act 1984 (Interpretation Act) provides for the construction of "may" and "shall". Section 45(2) provides:

Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word "shall" is used in conferring a power, that word shall be construed as meaning that the power so conferred must be exercised.

27 The text of s 48(3) therefore indicates that, where the conditions in paragraph (a) are met, the Coroners Court must release the body to the executor. It is only if there is no executor that paragraph (b) falls to be considered. If there is a senior next of kin then the Coroners Court must release the body to that person. It is only if there are two or more senior next of kin that paragraph (c) directs the application of the common law principles as to law relating to the release and disposal of a body of a deceased person.

28 The combined effect of ss 39 and 45(2) of the Interpretation Act is that "should" is to be interpreted as "must" where it appears in s 48(3) - unless the contrary intention appears. No contrary intention is apparent from the text of s 48 or its surrounding context.

29 Part of that context is the role of the senior next of kin in a range of steps in the coronial process, some of which must be taken quickly in the immediate aftermath of a death. I have already referred to the role of the senior next of kin in relation to autopsies, exhumations and access to records, in ss 26, 45, 79, 81 and 115 of the Coroners Act. The fact that the senior next of kin holds important rights under the Act supports the interpretation that enables that person to be identified quickly and with certainty.

30 Another significant aspect of the legislative context is the objectives set out in Part 2 of the Coroners Act. Section 35(a) of the Interpretation Act directs that an interpretation that would promote the purpose or object underlying the Coroners Act is to be preferred to a construction that would not do so. Section 6 of the Coroners Act provides that the objectives set out in Part 2 are intended to give guidance in the interpretation of the Act. The objectives that are relevant here are:

(a) section 8(b), which requires a person exercising a function under the Act to have regard to the fact that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death; and

(b) section 9, the objective that the coronial system should operate in a fair and efficient manner.

31 These objectives support an interpretation of s 48 that enables the Coroner to identify quickly and with certainty the person to whom a body is to be released. It does not support the appellants' interpretation of s 48, which would require the Coroner to have regard to discretionary considerations not specified in the Act and could produce delay and uncertainty. For the Coroners Court to have to determine the kinds of factual disputes present in this case has an obvious potential to exacerbate the distress of grieving family members. The consequences of the appellants' interpretation would be contrary to the express objectives of the legislation and, in my view, cannot have been intended by Parliament.

32 Additional contextual support for the view that s 48(3) provides a strict hierarchy for determining who has the better claim is drawn from other provisions in the Coroners Act that confer discretions that are to be exercised in the interests of justice. These include s 57(4)[6] and s 87A.[7] The breadth of the discretions conferred by these provisions, and the range of considerations that may be taken into account in their exercise, contrasts starkly with the structured and prescriptive principles set out in s 48(3).

33 The extrinsic materials also support the interpretation of s 48(3) applied by the Coroner:

(a) The Explanatory Memorandum in relation to cl 48 states:

Clause 48 provides that a person may apply to the Court requesting that the body be released to them.

Subclauses (2) and (3) establish principles that will guide the coroner in determining who has the better claim for having the body released to them.

This indicates that the principles set out in s 48(3) govern the Coroner's determination of who has the better claim, and that no room is left for discretionary considerations of the kind urged here.

(b) The Parliament of Victoria Law Reform Committee's 2006 report into the Coroners Act 1985 is particularly informative.[8] The Committee considered and rejected giving the Coroner a discretion to depart from the definition of senior next of kin where that is necessary in the interests of justice in order to accommodate the reality of family dynamics in a particular case. The Committee considered that the Act needed to retain as far as possible the guidance provided to Coroners by clear definitions, given the potential for disputes to arise between family members. It reached this view despite having heard from the Coroner's Office that the senior next of kin was often not the most appropriate person to be making decisions about the body of the deceased.[9] This provides further and compelling support for the way in which the Coroner has interpreted and applied s 48(3) in this case.

34 The appellants relied on a passage from Almond J's judgment in Carter v Coroners Court of Victoria,[10] where His Honour said that evidence of culture, belief and practices bore on the broader question of whether the body of the deceased in that case should be released to the senior next of kin or to the appellant family member. In that case His Honour was considering how to exercise the Supreme Court's discretion under s 88(1)(c), and not the proper construction of s 48 or the scope of the Coroner's power under that provision. I therefore do not consider that the passage supports interpreting s 48(3) as anything other than a mandatory hierarchy to be applied by the Coroners Court to determine who has the better claim.

35 In my view, the text of s 48(3), its context and the legislative purpose all support the Coroner's approach to determining to whom to release Mr Lilley's body. There was no error of law in the Coroner's determination or the order that the body be released to Ms Lilley.

36 I will make an order dismissing the appeal, and will hear the parties as to costs.

[1] Coroners Act s 85(2).

[2] [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[3] See, eg, Coroners Act ss 26(2), 79(4) and 81(2).

[4] As to the principles of statutory construction see Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328, [47]-[55] (Warren CJ, Whelan JA and Riordan AJA) and Riordan J's summary of those principles in Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSC 14, [51]-[60].

[5] Applying s 39 of the Interpretation of Legislation Act 1984.

[6] Section 57(4) enables the Coroner to require a witness to give self-incriminating evidence where the Coroner is satisfied that the interests of justice require that the witness give the evidence.

[7] Section 87A provides that the Supreme Court may allow appeals under s 82(1) or 84(1) if it is satisfied that it is in the interests of justice to do so.

[8] Law Reform Committee, Parliament of Victoria, Coroners Act 1985 (September 2006) 445.

[9] Ibid 439. One example given was "where the person who died had been separated from his or her spouse for a long time but has not divorced, the senior next of kin under the current definition remains the spouse, even when there are adult children or a new partner who have a closer relationship with the person who died".

[10] [2012] VSC 561 [39].