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[2026] VSC 11
General information, not legal advice.
Supreme Court of Victoria
2026-01-28
Craig J
Original judgment source is linked above.
CORONER'S COURT - Appeal against coroner's refusal to undertake autopsy - Appeal to single judge, pursuant to Coroners Act 2008 s 79 - Whether Coroner erred in determining that it was not necessary or appropriate that a direction be given that an autopsy be performed - Whether Coroner erred in failing to consider how and/or whether an autopsy would assist in establishing the circumstances in which the death occurred - The Coroner erred in failing to consider how the results of an autopsy could bear upon the wider investigation - Appeal allowed - Coroners Act 2008 ss 25, 67, , .
Principal In-House Solicitor, Coroners Court of Victoria
1 Harold James Shilton was born on 25 August 1946. He died on 10 October 2025 whilst in care at Susan Barton House.
2 Mr Shilton's daughter, Peta Gabriel, brings an appeal pursuant to s 79(3) of the Coroners Act 2008 (Vic) (the Act) against the decision of the Coroner to refuse to conduct an autopsy on Mr Shilton's body.
3 For the reasons which follow, the appeal must be allowed and an autopsy ordered.
4 Before embarking on an analysis of the relevant facts and grounds of appeal, I wish to note that the Respondent adopted a position in this appeal which it submitted was consistent with the principles set out in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman.[1] The Respondent submitted that its role was limited to assisting this Court in relation to the applicable law, questions of jurisdiction and power, and practices and procedures of the Coroners Court.
5 In my view, this approach represents an unduly cautious and potentially unhelpful application of Hardiman in the present context. Specifically, there is no prospect of the question of whether an autopsy of Mr Shilton's body ought to be conducted returning to the Coroner. That is because s 88 of the Act precludes such a course in the event that the appeal is successful. It is instructive to recall that Hardiman was a case involving an application for the writs of mandamus and prohibition and that the caution of the High Court was expressed as follows:[2]
If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.
6 In the context of an appeal refusing an autopsy, the statutory regime means that no cognate concern can arise. This point was made by Digby J in Traynor v Spooner,[3] where his Honour stated:
However, by adopting the Hardiman position the Coroner may well have deprived the Court of helpful material which may have assisted the Court, particularly in the exercise of its discretion under s 88 of the Act. In Magdziarz v Heffey McDonald J made similar observations in relation to proceeding under the Coroners Act 1985. In Hardiman the High Court noted, in relation to the Australian Broadcasting Tribunal, which was a party to that proceeding, that in the circumstances of that matter, such a tribunal should not normally present a substantive argument, but rather limit itself to submissions going to its powers and procedures. The position of a tribunal such as the Australian Broadcasting Tribunal in the Hardiman proceeding is not in my view analogous to the position of the coroner in respect of s 79 and s 88 of the Act. In appeals to this Court invoking those sections of the Act it will on occasion be entirely appropriate and desirable for the coroner to assist the Court by presenting material and argument defending the impugned decision.
7 Having regard to the specialist expertise involved and the institutional knowledge that would inevitably develop as to the administration of the Act, I consider that there will be occasions on which it is appropriate for the Coroner to take a more proactive role when there is no prospect of the issue currently being litigated returning to the Coroner for determination.
8 The 'progress notes' produced by Susan Barton House to the Coroner record that on 5 October 2025, Mr Shilton had an unwitnessed fall and that 'nil new injuries [were] found'. The notes also record that Mr Shilton had been sleeping on his bed without hip protector pants.
9 A treatment note of an attending physiotherapist on 6 October 2025 also appears to confirm an assessment that no injury had resulted from Mr Shilton's fall on 5 October 2025.
10 As I have already noted, Mr Shilton passed away on 10 October 2025. Following Mr Shilton's death, at 1am on 11 October 2025 a member of Victoria Police telephoned the Coronial Admissions and Enquiries Office of the Victorian Institute of Forensic Medicine (the CAE). The file note of that conversation records as follows:
The deceased...had a fall 5 days ago with no injury and was transitioned to palliative care.
11 At 3.57am on 11 October 2025 a registered nurse at Susan Barton House recorded the following by way of progress note:[4]
Progress Note - Police and Coroner Involvement Post-Death At approximately 0024 hrs, police arrived on-site following the resident's death. A brief handover was provided, including a summary of care, the resident's comfort care status, and relevant clinical information. A police officer spoke with the Next of Kin (NOK) and subsequently contacted the coroner, as per protocol. Police reviewed the resident's progress notes, which detailed the comfort care plan and the rationale for not transferring the resident to hospital. The coroner officer then spoke to the on-site staff after speaking with police. Staff informed the coroner that the NOK had expressed concerns, including that the resident had not received medication for 48 hours and that the family was unaware of the fall due to the resident's communication limitations. The coroner officer responded that this did not meet the criteria for a coroner's case, as there were no injuries sustained from the fall, and the death appeared to be due to the underlying condition. The notes therefore recorded that no injury was caused by the fall on 5 October 2025 and that the cause of death was Mr Shilton's underlying condition. Accordingly, the medical cause of Mr Shilton's death was initially recorded as being dementia.
12 On the morning of 13 October 2025, the Appellant, Mr Shilton's daughter, telephoned the CAE to request that an autopsy be performed on Mr Shilton's body. On the same day, the Appellant submitted a formal request for an inquest into Mr Shilton's death. The application included the following reasons:[5]
My father fell in his nursing home on the 5/10/2025. He was previoucly [sic] very active but was never able to move from the bed again after the fall as far as we know and we don't think he could move other than his arms. He was left with no treatment or pain relief and we, the family, were not told of his condition.
...
We were never really told what had happened to my dad, details emerged slowly from various people. The nurse that was with him on 5th said at some point that he was very, very, agitated during her shift but not in pain. Due to the fact my dad was nonverbal there was no way for her to know this and given he had a fall it was obvious he would be in pain. Whether it was pain or agitation the family should have been informed at that point but were never informed. We were later told that a doctor had seen him on the 6th and declared he was agitated but not in pain. Again there was no way for them to determine this and they did not contact us. Several carers told us that he had been in serious pain and they had told the nurses but nothing was done and the family was not contacted. We were unaware of any of this. Had we been told of any problems we would have come in immediately. If the staff refused to help him we would have called an ambulance. To leave a person in such a state is clearly neglect and they breached their duty of care to both my dad and to us , his family. We are requesting an autopsy to clarify what injuries may have occurred from the fall and how that may have led to what we believe was a painful and premature death. We sincerley [sic] want to prevent such a situation from happening to anyone else.
13 Following review of the Appellant's request for investigation, a medical liaison nurse from CAE telephoned the Appellant on 14 October 2025. The file note of the telephone call records as follows:[6]
T/C to Peta GABRIEL (daughter) in response to her submissions for R4I. Peta states that the deceased had a fall on 5/10 at the nursing home. The deceased was healthy apart of his diagnosis of dementia. The family were not informed about the fall or whether the deceased had any injuries sustained in the fall. The deceased's injuries were not investigated by the nursing home. The deceased was found to be in bed when the family was in attendance and that the deceased was in a lot of pain. The deceased was not given any pain medications. The deceased has died on 10/10 and the cause of death is Alzheimer's dementia. The deceased's daughter said the CoD is untrue because she believes he has passed away from the fall. Peta (daughter) states that the nursing home was acting like nothing happened and they did not give them any information. Peta (daughter) states that the deceased death was not reported to the Coroner and her understanding that all falls should be reported to the Coroner. The police were in attendance. The deceased's next of kin, Paula SHILTON (wife) is aware that Peta (daughter) has submitted a R4I. Peta (daughter) informed that the process of R4I takes up to 3 months in order for records to be reviewed and the Coroner to make a determination. Peta (daughter) asks when the autopsy will take place. Peta (daughter) states she wants to know the injuries sustained and how he died. Peta (daughter) advised that the Coroner will need to make the determine [sic] post review of the nursing home records. Peta (daughter) states that the nursing home records will lie and say that the deceased is not in pain. Peta (daughter) advised that the writer will make note that the deceased appeared to be in pain. Peta (daughter) states how can she have a funeral. Peta (daughter) advised that since there is a submission of the request of investigation that is how long the procedure may take. Peta (daughter) states the deceased is at Simplicity Funerals in Melton. MCCD has been issued.
14 On 3 December 2025, the duty pathologist (Dr Michael Burke) presented the case to Coroner McCarthy in terms similar to the following note:[7]
Circumstances: .. 79M had a fall on 5/10 at mecwacare Susan Barton House and the deceased was not able to move from bed post the fall. The deceased was previously active prior to the fall according to family. .. 10/10 Died at nursing home .. MCDD: 1(a) Advance dementia .. CoC and R4I: .. The deceased was in "terrible pain" and he was not given adequate pain relief. .. Family not made aware of the deceased's pain and fall. Family state that they would have called an ambulance if they had known about the pain the deceased was experiencing. .. Family are requesting for an autopsy to clarify what injuries have occurred during the fall and how this has led to the deceased's "premature death". .. .. Medical records received from Mecwacare Susan Barton House. Page 131/248
15 On the afternoon of 3 December 2025, CAE staff notified the Appellant of Coroner McCarthy's direction that Mr Shilton's body be transferred to the mortuary to facilitate preliminary examination by a medical investigator and to inform the Coroner's determination of the reportability of the death under the Act.
16 Shortly after Mr Shilton's body was admitted to the mortuary, a full-body post-mortem computerised tomography scan (CT Scan) was performed. On 8 December 2025, Dr Burke's findings and recommendations were communicated to Coroner McCarthy. The attached preliminary examination form records that:
(a) Mr Shilton's medical history records that he was found on the floor next to his bed at 9.12pm on 5 October 2025 and that no injuries were seen although Mr Shilton appeared to staff to be agitated and distressed;
(b) The death had initially been certified as being caused by dementia;
(c) The CT scan revealed a 'fractured left neck of femur and bilateral posterior tenth rib fractures [and] increased lung markings';
(d) The medical cause of death was 'complications of fractured left neck of femur'.
17 In an email from Dr Burke which was forwarded to Coroner McCarthy, Dr Burke expressed the view that he thought the case could be 'managed as an inspection'.
18 The evidence discloses that by 10 December 2025 at the latest, the Coroner had verbally communicated that Mr Shilton's death was a reportable death under s 4 of the Act. A consequence of that conclusion was that the Coroner was mandated by s 15 of the Act to investigate Mr Shilton's death.
19 On 31 December 2025, the CAE's Manager, Dr Leditschke telephoned the Appellant to inform her of the findings of the CT scan of Mr Shilton's body. The file note of the call records that Dr Leditschke asked the Appellant her views on whether an autopsy should be conducted or whether she would be satisfied with an inspection following the recommendation of the forensic pathologist. The file note records the Appellant communicating that she would discuss the matter with her family and call back in the following week.
20 On Wednesday 7 January 2026, the Appellant telephoned the CAE and was advised that a medical liaison nurse would call her back. On the following day, Dr Leditschke called the Appellant and Mr Shilton's senior next of kin, his widow, Paula Shilton. The file note of the telephone call records the Appellant and Ms Shilton as being 'adamant they want an autopsy'. The file note also records that Dr Leditschke explained that that the cause of death was complications arising from the fractured neck of femur and that the Coroner and forensic pathologist had noted 'there is little value in an autopsy and it is unlikely the [cause of death] will change'. I observe at this juncture that the focus of the Coroner and forensic pathologist, at least according to the notes, appears to have been on the role of the autopsy in determining the cause of death rather than, the extent if at all, it may assist in relation to an evaluation of the circumstances of Mr Shilton's death.
21 Coroner McCarthy was informed of the request for autopsy at 4.21pm on Thursday 8 January 2026.
22 At 5.38pm on Friday 9 January 2026, Dr Leditschke left a voice message for the Appellant to the effect that Coroner McCarthy had refused the request for an autopsy.
23 At 5.59pm on Friday 9 January 2026, the Appellant was provided with a document purporting to be a Form 11 Notice of Decision to Refuse Request for Autopsy.
24 Section 79(4) of the Act provides that an appeal against a refusal to conduct an autopsy must be made 'within 48 hours after the person receives notice of the refusal to perform an autopsy under section 27(2)'. It is evident that the communication of the refusal of the autopsy after business hours on a Friday evening, in the context of a 48 hour appeal window, caused a degree of distress for the Appellant.
25 The Appellant's notice of appeal was filed on 13 January 2026. Unlike other appeals made under the Act, there is no scope to grant leave to appeal out of time in respect of an appeal made under s 79(3) of the Act.[8] By operation of s 44(3) of the Interpretation of Legislation Act 1984 (Vic), if proper notice had been provided of the Coroner's decision to refuse the autopsy on Friday 9 January 2026, any appeal by the Appellant would have had to have been filed by Monday 12 January 2026 and the Appellant's failure to do so would have deprived the Appellant of the statutory and therefore juridical basis for the appeal.[9]
26 Having identified that the Form 11 provided to the Appellant omitted the name and role of the decision-maker, and at Coroner McCarthy's request, a CAE staff member telephoned the Appellant on 10 January 2026 to inform her that an amended Form 11 would be provided. Fortuitously for the Appellant, the Coroner conceded that proper notice was not provided on Friday 9 January 2026. That is so because rule 39 of the Coroners Court Rules 2019 (Vic) (the Rules) requires that the notice provided pursuant to s 79(4) of the Act must be in accordance with Form 11 and Form 11 of the Rules stipulates that the name and role of the decision maker must be identified. The notice provided on 9 January 2026 did not include the name and role of the Coroner refusing the autopsy.
27 On 12 January 2026, this error was remedied and an amended version of the Form 11 (the Notice) was emailed to the Appellant which identified Coroner McCarthy as the relevant decision maker.
28 The Notice issued by the Coroner is 17 paragraphs long. The reasons are set out in paragraphs 9 to 17, under the heading 'Background'. I make no specific criticism of the brevity of the reasons. Section 27(2) of the Act obliges the Coroner to provide written reasons for the refusal 'without delay'.
29 It is convenient to set out paragraphs 9 to 17 of the Notice in full:
(a) the autopsy is not necessary for the investigation of the death;
(b) it is not appropriate to give the direction;
(c) it is my opinion, based on Dr Burke's advice, that a reasonable medical cause of death can be established as being:
1(a) Complications of fractured left neck of femur
30 An appeal to the Supreme Court pursuant to s 79(4) of the Act is an appeal on a question of law.[10]
31 The following questions of law were identified by the Appellant in her Notice of Appeal:
32 Three grounds of appeal were then articulated, namely:
33 The purpose of an autopsy is to assist a coroner to perform his or her functions in respect of a death.[11] One of the functions of the Coroner is the investigation of a death. As the Coroner was conducting an investigation into Mr Shilton's death and Mr Shilton was in care immediately prior to his death, s 67(1) of the Act mandated the Coroner to find, if possible:
(a) the identity of the deceased;
(b) the cause of death; and
(c) the circumstances in which the death occurred.
34 Section 25(2) of the Act is in the following terms:
A coroner must direct a medical investigator to perform an autopsy on a body under the control of the coroner if the coroner believes that - (a) the autopsy is necessary for the investigation of the death; and (b) it is appropriate to give the direction.
35 An autopsy can therefore be refused if is either not necessary for the investigation of a death or if it is otherwise not 'appropriate'.
36 At the heart of the appeal is the claim that the Coroner failed to apply the test imposed by the statute to determine if an autopsy should be conducted.
37 Focussing first on the criterion of necessity in s 25(2), the structure and text of the Act requires a Coroner to determine whether an autopsy is 'necessary for investigation of the death' by reference to the findings which are required to be made pursuant to s 67(1) of the Act. Thus, in addition to determining whether an autopsy is necessary for the purposes of ascertaining the identity of the deceased and the cause of death, the faithful application of s 67(1) of the Act required the Coroner to determine whether or not an autopsy was necessary to find the circumstances in which the death occurred.
38 The text of the reasons reveals that the Coroner appears to have applied an unduly narrow test of necessity by focussing on the fact that 'the CT scan has fully documented the extent of Mr Shilton's injuries and identified the cause of death'. The reasons of the Coroner do not expose an application of the entirety of the statutory test and in particular whether an autopsy was necessary to find the circumstances in which the death occurred. In this regard, it must be remembered that the progress notes made at Susan Barton House and the initial reporting by Victoria Police following his death record that no injuries were sustained following Mr Shilton's fall on 5 October 2025. The reasons do not explain why an autopsy is not necessary for the purpose of finding the circumstances in which the death occurred. The Appellant identified by way of example that an autopsy may be able to determine whether the injuries which are recorded as having caused Mr Shilton's death were in fact sustained in the days leading up to his death. The Coroner's reasons appear to proceed on the assumption that the injuries identified by Dr Burke were caused by the fall on 5 October 2025 without the benefit of an autopsy to validate that assumption. Alternatively, the reasons do not provide any explanation as to why an autopsy will not assist the Coroner in determining whether the injuries were sustained shortly prior to Mr Shilton's death.
39 The final sentence of paragraph 16 of the Notice does not militate against the conclusion that an unduly narrow test of necessity has been applied by the Coroner. That is so for two reasons: first, it does not reveal that Dr Burke himself is actually applying the statutory enquiry when providing his advice; and second, it is an overstatement of the underlying evidence - on the available evidence Dr Burke did no more than recommend that the case could be 'managed as an inspection'. One cannot conclude that Dr Burke, and therefore the Coroner, applied the requisite statutory enquiry in evaluating the necessity of an autopsy.
40 Turning then to the question of whether an autopsy was not 'appropriate', it is useful to commence with the following analysis of Digby J in Traynor v Spooner:[12]
The provisions of s 25 require that the Coroner form a belief that not only is it "necessary" to direct an autopsy in the circumstances, it is also "appropriate" to do so. By such provision the legislature has clearly reflected its intent that although the Coroner believes an autopsy is necessary there must in each case also be consideration, resulting in the requisite belief, that an autopsy is appropriate. This added requirement calls into consideration a broad range of potentially relevant matters, including likely distress to the deceased next of kin and family, and likely distress and which may arise as a result of cultural, religious and spiritual beliefs, laws and practices, if an autopsy is carried out.
41 Consistently with the approach taken to the meaning of the word in s 77(3) of the Act, I consider that 'appropriate' means in this context, 'suitable or fitting for a particular purpose', or 'proper, fitting'.[13]
42 As the Court of Appeal observed in Mortimer, '[t]he language of what is appropriate' is inherently broad and properly to be informed by a multitude of considerations, some of which may be competing.[14] The difficulty in the present case is that the Coroner did not clearly identify a specific or identifiable separate reason as to why the autopsy was not appropriate. Taken at their highest, the reasons appear to disclose a conclusion that the autopsy was not appropriate as it was not required for the purposes of identifying the cause of Mr Shilton's death. The question of whether or not the autopsy was 'appropriate' was therefore evaluated by reference to the same limited criteria used to evaluate whether or not the autopsy was 'necessary'. In those circumstances, once the application of the test of necessity miscarried by failing to have regard to all of the findings to be investigated pursuant to s 67(1) of the Act it necessarily followed that the Coroner erred, on the basis of the reasons advanced, in determining that it was not appropriate to issue the direction.
43 Having identified error on the part of the Coroner in the application of the statutory test for determining whether or not to conduct an autopsy, it is necessary to evaluate whether the error was material to the decision so as to give rise to an 'error of law'. In Australian Broadcasting Tribunal v Bond[15] Mason CJ described the relevant principle as follows:
A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
44 In my view, the failure by the Coroner to apply the statutory test involved an error of law in that, had she not applied the narrow test of necessity, she might have arrived at a different conclusion and determined that an autopsy was necessary to assist in making findings as to the circumstances of Mr Shilton's death and that absent any identified countervailing reason, it was suitable, fitting and proper for her to do so.
45 For the foregoing reasons, I uphold grounds 1 and 2 of the Notice of Appeal and order that the appeal be allowed.[16]
46 As the appeal pursuant to s 79(3) of the Act has succeeded, s 88 of the Act is engaged. Section 88 of the Act provides as follows:
88 Determinations of Supreme Court
(1) If an appeal under section 79(1), 79(3), 81(1), 81(3) or 85(1) is successful, the Supreme Court must not remit the matter to the Coroners Court and must, as appropriate -
(a) determine whether an autopsy should be performed, and if an autopsy is required -
(i) specify the conditions (if any) applying to that autopsy; and
(ii) direct a medical investigator to perform the autopsy; or
(b) determine whether a body should be exhumed and if the exhumation is required, the conditions (if any) of that exhumation; or
(c) determine to whom a body should be released and the terms or conditions (if any) of that release.
(2) The Supreme Court may make any other orders that the Court sees fit in respect of the matters specified in subsection (1).
47 By the terms of that section, I am precluded from remitting the matter to the Coroner's Court and must determine whether an autopsy is 'appropriate'.
48 Applying the same meaning of the word as in the context of s 25 of the Act, it is suitable, fitting and proper for an autopsy to be conducted, having regard to:
(a) the fact that Susan Barton House recorded that Mr Shilton did not sustain injuries as a result of his fall on 5 October 2025;
(b) the divergence between the initial recorded cause of death and the cause of death identified following the CT scan;
(c) the support of the Appellant and the senior next of kin, Mrs Shilton, for the conduct of an autopsy;
(d) the desirability of ensuring that there is a complete investigation of the extent to which Mr Shilton's death may have been hastened or contributed to by failures in his care;
(e) the absence of any identified reason as to why an autopsy would be 'inappropriate'; and,
(f) the factors in ss 8 and 9 of the Act.
(a) counsel for the parties are directed to confer and provide any agreed orders giving effect to these reasons to my chambers by 1pm on 29 January 2026; and,
(b) in the event that the parties are unable to agree on a form of order giving effect to these reasons, they are required to file and serve their proposed orders and a submission of no more than two A4 pages by 10am on 30 January 2026.
[1] (1980) 144 CLR 13 at 35-36 (Hardiman).
[3] [2012] VSC 651 at [38] (Traynor v Spooner) (citations omitted).
[9] See, for example, O'Bryan v Lindholm [2024] VSCA 130, [48].
[12] Traynor v Spooner, [61] (citations omitted).
[13] Hecht [2016] VSC 635 [49]. See also: Mortimer v West (2018) 56 VR 608, [71]-[76] (Mortimer).
[15] [1990] HCA 33; (1990) 170 CLR 321, 353.
[16] In the circumstances, it is unnecessary to decide ground 3.
Gabriel
Coroners Court of Victoria [2026] VSC 11
(1980) 144 CLR 13
(2018) 56 VR 608
(1990) 170 CLR 321