McDONALD J The proceedings presently before me which have been instituted by way of originating motion are proceedings wherein George Marion Magdziarz is the plaintiff and Jacinta Mary Heffey is the defendant.

2. The plaintiff is the father of George Joseph Magdziarz, who was born on 5th January 1970 and died on 30th September 1995. The defendant is a State coroner and these proceedings are brought against her in that capacity.

3. The deceased was not married and had no children.

4. From the material placed before the court it appears that on 30th September 1995, at approximately 8.40 p.m., the deceased was seen to apparently slip while being on part of a structure of equipment known as the "Music Ride". At the time this equipment was at the Royal Melbourne Show. The deceased was observed to fall and to be struck by a mechanical arm of the equipment. I have been informed by counsel appearing for the plaintiff that the arm is an arm of some 50 tonnes in weight and travels at some 120 kilometres per hour while operating. After being struck by this mechanical arm, it was observed that the deceased was forced under the equipment and crushed. Endeavours were made to revive the deceased but these endeavours were unsuccessful. He was later declared to be dead.

5. The plaintiff and his wife advised the Coroner's Office that they objected to an autopsy examination being carried out on their son. In their letter addressed to the coroner it was stated that they wished to object "strongly on the autopsy of our son. This was because it was no other than a terrible accident and see (sic) no reason for further visual pain to us his family which will cause further distress. Visual signs could tell the cause of death."

6. The death of the deceased had been reported to the coroner. Pursuant to s.3 of the Coroners Act a "reportable death" is defined to include -

"a death -

(b) that occurred in Victoria being a death

(e) that appears to have been unexpected, unnatural or violent or

to have resulted directly or indirectly from an accident or

injury."

On the facts put before this court as described, it is apparent that the death of the deceased was a "reportable death". Under s.7(c) of the Coroners Act it is provided:

"The functions of the State Coroner are as follows:

(c) to ensure that all reportable deaths reported to a coroner

are investigated."

Again, under s.15(1) of the Coroners Act it is provided:

"A coroner has jurisdiction to investigate a death if it appears

to the coroner that the death is or may be a reportable death."

Accordingly, in the circumstances of the death of the deceased, it is clear that his death was a "reportable death" and it was necessary for the coroner to investigate the death.

7. Under s.19(1) of the Act it is further provided:

"(1) A coroner investigating a death must find if possible -

(b) how the death occurred; and

(c) the cause of death."

8. After the plaintiff and his wife had objected to an autopsy examination being carried out on the deceased, the plaintiff received a written notice from and under the signature of the defendant stating that she considered it necessary for an autopsy to be conducted.

9. Pursuant to s.29(1), (3) and (4) of the Coroners Act it is provided:

"(1) If the senior next-of-kin of the deceased asks a coroner not

to direct an autopsy but the coroner decides that an autopsy is

necessary, the coroner must immediately give notice in writing

of the decision to the senior next-of-kin.

(3) Within 48 hours after receiving notice of the decision the

senior next-of-kin may apply to the Supreme Court for an order

that no autopsy be performed.

(4) The Supreme Court may make an order that no autopsy be

performed if it is satisfied that it is desirable in the

circumstances."

It is pursuant to sub-s.(3) of that section that the plaintiff now applies to the court seeking an order of the court that no autopsy examination be performed on his son, the deceased.

10. I am satisfied that the plaintiff has the standing to bring this application, for he is by definition, on the facts put before me, a "senior next-of-kin", being a parent, where the deceased left no spouse, son or daughter. Accordingly, it is for me to determine whether, in the exercise of the court's discretion, under s.29(4), that it should be ordered that no autopsy be held on the deceased.

11. It is appropriate also to have regard to s.27(1) of the Act, which provides:

"If a coroner reasonably believes that it is necessary for an

investigation of a death, the coroner may direct the Institute, a

pathologist or doctor under the direct supervision of a

pathologist to perform an autopsy on the body."

12. In the notice required to be given by the coroner to the plaintiff, to which I have previously referred, the coroner set out her reasons for the decision. Before turning to those reasons it is to be observed that that notice is dated 2nd October 1995, and accordingly these proceedings are brought by the plaintiff within the time provided by the provisions of the Coroners Act.

13. In the notice given by the defendant, the coroner stated the facts shortly, that the deceased was operating a ride at the Melbourne Show when he fell under it, having apparently slipped on wet metal grating. Further she stated as follows:

"George Joseph Magdziarz has been externally examined in mortuary

and a forensic pathologist has been consulted. The deceased has

been x-rayed. On externally examining the deceased and examining

the x-rays, the pathologist could find no evidence on which to

conclude the cause of death, accordingly, I am unable to

ascertain the cause of death without an autopsy being

performed."

She has said further, under the heading "Conclusion":

"I have consulted a forensic pathologist from the Victorian

Institute of Forensic Pathology and I have been advised that the

cause of death in this case cannot be ascertained without an

autopsy examination."

14. Accordingly, it is to be seen from the statement of the coroner that, whereas the deceased's mother and father have stated in their letter "visual signs could tell the cause of death", the pathologist who has physically examined the deceased and consulted the x-rays is unable to reach a conclusion as to the cause of death. As I have said, on investigating a death a coroner is under an obligation to find, if possible, the cause of death.

15. Mr Hill, who represented the plaintiff in these proceedings, submitted that clearly under s.29(4) of the Act the court has a wide discretion in determining whether or not to make an order preventing an autopsy from being performed, for it is to be determined by the court on the basis whether it is satisfied that it is "desirable in the circumstances" that no such autopsy should be performed.

16. In addressing the matter as to whether it was desirable that no autopsy should be performed, Mr Hill has submitted that in these circumstances the facts establish that it is desirable that no autopsy should be held. He has submitted that on the evidence before the court there are no suspicious circumstances known which preceded the death of the deceased; there is apparently no third party involved in the death; there is in the circumstances of this case no wide issue of public health; nor does a question of the administration of justice arise. He has submitted that it should be concluded that the clear cause of death in this case was the crushing of the deceased when he fell and was struck by the moving arm of the piece of equipment.

17. He has also submitted, and I agree with his submission, that it is clear that in making this application to the court the plaintiff is genuine and he makes it for the very best of motives. In his affidavit in support of the application the plaintiff has sworn: "If an autopsy would serve to save another life, both myself and my wife would have no objection, but this is not the case because the circumstances of the accident and my son's death are known to the authorities."

18. The plaintiff has further sworn: "Both myself and my wife are devout Catholics and we believe that an autopsy will simply serve to desecrate our son's body." In the submissions made by Mr Hill on behalf of the plaintiff, it was put as to that latter matter that, although it was not being advanced that there was a religious reason in particular against the autopsy in this case, nevertheless the court should take into account the religious views of the parents of the deceased.

19. The matters put before me I do take into account and have regard to in considering how I should exercise the court's discretion in this matter. I have concluded, after considering this matter, that I should not make the order now sought by the plaintiff, or, put another way, that I should not make an order that no autopsy be held in the circumstances.

20. The coroner has an obligation when investigating a death such as this to find, if possible, the cause of death. One might have thought when an accident occurs such as the present that there would be external physical signs or x-ray signs from which the cause of death could be determined. However, on the material before me, it is apparent that, notwithstanding those examinations having been carried out, the pathologist is unable to conclude as to the cause of death.

21. In the circumstances of this case I am of the view that the coroner should be permitted to direct and have carried out an autopsy so as, if possible, to find the cause of the death of the deceased. For those reasons I propose to dismiss the application.

22. However, before leaving this matter, there is one further matter I wish to refer to. In the notice given by the defendant, the coroner, to the plaintiff, she said: "If you make an application to the Supreme Court it is requested that the State Coroner be informed of the date, place and time of hearing to enable his representation and the placing of appropriate material before the judge."

23. When the matter came on before me initially today, the defendant was not represented. Having regard to matters raised by me, the solicitor for the plaintiff then made enquiries and drew attention of the appropriate authorities to this application being made. I adjourned the application to enable that to be done. On the resumed hearing, Mr O'Brien from the office of the Victorian Government Solicitor appeared before the court and informed the court that he had been instructed that the coroner would abide the decision of the court and did not wish to make any submissions.

24. In the circumstances I find it unhelpful that a coroner, having stated on the notice given to the next-of-kin that he or she desires the opportunity to be represented and to be able to put material before the court on such an application as this, does not come before the court and provide it with material or make submissions which would assist it in its exercise of its discretion under s.29(4). In the circumstances of this case the absence of such representation or any assistance of the coroner has not been significant; nevertheless it seems to me that, when such procedure referred to is laid down by the Act and the court has a wide discretion on such an application as this, it is desirable that the coroner at least be represented or that someone appear before the court to formally represent the coroner and to put any material or matter before it as would be of assistance to the court in the exercise of its discretion.

25. For the reasons previously expressed, I order that the proceedings be dismissed.