Gilliott v Woodlands [2006] VSCA 46

"to make a claim for the body of the deceased who was his daughter".

It was submitted in the letter that it was appropriate that the remains be released to the father for burial in Sydney.

3 On the same day, a solicitor acting for Kim Gilliott, the mother of the deceased, and Sam Johnson, the de facto partner of the deceased, wrote to the Coroner, responding to what the solicitor understood to be "a request by the father for the remains of the deceased to be transported to New South Wales and the funeral to be held there." The letter objected to that request and conveyed a counter-request on behalf of Ms Gilliott and Mr Johnson, to the effect that orders be made by the Coroner for the immediate release of the remains of the deceased to a particular funeral director on their behalf.

4 When the Coroner was informed of the competing requests, he instructed his clerk to contact the father and the mother and advise them to make submissions in support of their applications and to do so promptly. Submissions were subsequently filed by legal practitioners acting on behalf of the father and the mother respectively. Having received and considered the submissions, the Coroner directed his clerk to forward a copy of each party's submissions to the other, and invited their responses by 12 noon on 7 February. Responses were subsequently received.

The Coroner's decision

5 We now set out the relevant paragraphs from the Coroner's reasons:

"7. From reading the submissions and the responses I can say that certain facts are either: agreed, not contradicted or self evident. These facts are:

a. the deceased lived with her father, in New South Wales, for at least 10 years;

b. the deceased left her father in March 2001, when she was 16, and came to Victoria to reside with her mother in Hepburn Springs;

c. the deceased has lived, worked and studied in the Hepburn Springs area for the past 5 years;

d. the deceased, whilst residing in the Hepburn Springs area formed a relationship with Sam Johnson and eventually lived with him. There is some doubt as to the state of the relationship at the time of Ms Woodland's[sic] death;

e. a will has not been found. Nor did the deceased leave any notes.

f. obviously both the father and mother are traumatised by their daughter's death.

8. Both the father and mother have made submissions as to the treatment of Ms Woodlands[sic] by the other, her feelings and attitude towards themselves and her feelings and attitudes to the other parent. They are contradictory and impossible to resolve, if they are capable of being resolved at all, within present time limits which dictate that Ms Woodland's[sic] burial take place within a timely period. The same comment applies to the contradictory material as to Ms Woodland's[sic] intentions as to where she would like to be buried.

9. Ms Woodward[sic] had, coming into her adult years, made the decision to move to the Hepburn Springs area. There she lived, worked, studied and found a partner. It had become her home. I am unable to find, on the balance of probabilities, that Ms Woodland[sic] ever expressed a wish to be buried in any particular place. That being so the inference is that she would want to be buried near her home.

10. There is no executor. The father and mother each ask to be regarded as the next-of-kin. Possibly Mr Johnson's wishes have relevance. Mr Johnson supports the mother. As Ms Woodland left her father in New South Wales to reside with her mother in Hepburn Springs the inference is that she would, on 4 February, have regarded her mother as her next-of-kin.

11. It is ordered that the body of Lainie Kim Woodlands be released to her mother Kim Gilliott for burial."

The proceeding in the Supreme Court

6 The Coroner having made that order, the father then sought time to appeal and was given until 9 February to do so. On 9 February, the father contacted the Coroner to seek an extension and was given until 14 February to appeal. On 14 February, the father wrote directly to the Prothonotary of the Supreme Court.

7 On 16 February, the matter came on before the learned Judge in the Practice Court. The only originating process was the father's letter but, given the urgency of the matter and the obvious distress being suffered by all parties, his Honour - quite understandably - did not insist on more formal documentation. As he said:

"In presenting their submissions, counsel concentrated on the matters of substance rather than form. Hence, whether the proceeding was properly brought by notice of appeal or should have been brought by originating motion under Order 54 of the Rules, or in some other manner of proceeding, is a matter I do not have to decide. I would, in any event, have made whatever order was necessary to regularise the proceeding."

8 The learned Judge concluded that the appropriate order was that the body be released to the mother for cremation, and the ashes be shared between mother and father. It was from that order that the mother appealed. Because of the urgency of the matter, the appeal was brought on at very short notice. Pursuant to a determination made by the President under s.11(1A) of the Supreme Court Act, the appeal was heard by two Justices of Appeal.

9 At the conclusion of argument on 21 February 2006, we announced that the appeal would be allowed and the decision of the Coroner affirmed. These are the reasons for that decision.

The decision of the primary Judge

10 As we have seen, the choice which the Coroner was called on to make was the choice of venue for burial and, necessarily, the choice as to which of the parents should be authorised to receive the body and arrange for the burial. In this Court, counsel for the father conceded that this was a decision which the Coroner had power under the Coroners Act to make. The source of that power will be examined in due course. What the father sought to do by bringing the matter before the Practice Court was not to revisit those issues but instead to raise, for the first time, the question of the mode of disposal of the body. Although he had argued before the Coroner that the body should be buried (in New South Wales), he now wished to argue that the body should be cremated.

11 As the Judge in the Practice Court said in his reasons, the matter came before him -

"for determination in circumstances of great urgency and considerable personal stress to those involved."

12 It is clear from his Honour's reasons that he gave very careful and anxious consideration to the issues which were raised. Moreover, he delivered judgment very promptly which was of great assistance to the parties. Unfortunately, one of the consequences of the urgency with which the matter had to be dealt with was that there was no debate before his Honour as to either the source of the Coroner's power to make the orders which he had made or the nature of the proceeding which the father sought to institute in the Supreme Court. It was only in the course of argument before this Court that counsel for the father clarified the position, in submissions to which we will later refer.

13 When the matter came on before the learned Judge, the parties announced that they had agreed that the funeral be held in Daylesford. The Judge was told, however, that the parties were in dispute as to whether there should be burial or cremation. The father sought an order that the body be cremated and the ashes be shared between the mother and himself.

14 As recorded in his Honour's reasons, counsel for the mother identified the relevant question as being who was the most appropriate person to have the body and decide upon the manner of its disposition. As to this, his Honour concluded as follows:

"In all it is difficult to conclude that one is more appropriate than the other. They are both, I would conclude, loving, deeply grieving parents... However, regarding all the circumstances, I differ from the Coroner in that in my view the [father] is the appropriate person. In that respect I consider the very long time in which he had responsibility for [the deceased] and her ties of family and friendship to the place of her upbringing."

15 As Charles JA pointed out in the course of argument, this was not in fact a question which his Honour had to decide. As we have noted, the father did not challenge the decision that the body be released to the mother or that the funeral, and disposal of the body, take place in Daylesford. All that was in issue was the mode of disposal.

16 As to that - which his Honour described as "the narrow issue argued" - the learned Judge concluded that the appropriate order was that -

"while the body of [the deceased] be released to her mother (which aspect the [father] did not dispute) it be for cremation and that, as the [father] seeks, her ashes be shared between the [father] and the [mother]...".

His Honour gave no specific reasons for having concluded that this mode of disposal was to be preferred to burial, but it is clear that he saw advantage in cremation because it enabled a sharing of the ashes between the bereaved parents.

The source of the Coroner's power

17 Under s.15(1) of the Act, a coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death. Under s.19(1) of the Act, a coroner investigating a death must establish if possible -

(d) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1996.

18 While the investigation is on foot, the body of the deceased is under the control of the Coroner. As to this, s.24 of the Act provides as follows:

"If a reportable or reviewable death occurs and the body is in Victoria, the body is under the control of the coroner investigating the death, subject to any directions the State Coroner may give to a coroner, until the coroner has issued a certificate, in the prescribed form, permitting burial, cremation, disposal at sea or other disposal."

19 The issue of a certificate is governed by s.23(1), which provides as follows:

"A coroner investigating a death must issue as soon as reasonably possible a certificate in the prescribed form permitting burial, cremation, disposal at sea or other disposal."

The prescribed form of certificate is contained in Form 2 in the Schedule to the Coroners Regulations 1996. The form enables, and requires, the Coroner to specify one of four types of burial, namely, burial, cremation, disposal at sea or "other disposal" as specified by the Coroner.

20 There is nothing in s.23(1) which authorises the Coroner to decide - where there is a contest - to whom the body is to be released or where the disposal of the body is to take place, issues which - as the present case demonstrates - are often intertwined. Nevertheless, we are in no doubt that the Coroner does have the power to decide those questions if and when they arise. The duty to issue "as soon as reasonably possible" a certificate permitting one or other form of disposal of the body carries with it, by necessary implication, the power to decide questions as to where and by whom the disposal will be carried out.[1] The existence of the implied power is essential to the effective discharge of the Coroner's functions. Moreover, to deny the coroner this implied power and require the issue to be litigated elsewhere would only prolong and exacerbate the distress which inevitably attends any such dispute.

21 A similar issue arose in the Supreme Court of Western Australia in Re Boothman, Kalgoorlie Coroner; ex parte Trigg.[2] Under s.29 of the Coroners Act 1996 (WA), the coroner was required to issue a certificate permitting burial, cremation or other disposal of a dead body. As under the Victorian Act, there was no provision in the WA Act identifying the party to whom the body was to be released or empowering the coroner to deal with competing claims to possession. It appears to have been assumed, without hesitation, that the coroner had the power to deal with such questions. The question which arose in that case was to identify the principles - to be found in the common law - by reference to which the coroner should decide between the competing claims. No such question arises here.

The nature of the proceeding in the Supreme Court

22 It follows that the decision made by the Coroner - that the body be released to the mother for burial - was a decision made under the Act, dealing with two distinct matters. The first matter was the mode of disposal of the body. As we have noted, it was not in issue before the Coroner but that the body would be buried. The second issue was the contested one, namely, to whom the body should be released for burial. The first issue was decided by the Coroner in discharge of his statutory duty to permit disposal of the body in one or other of the possible forms. The second matter was decided in the exercise of the implied power to which we have referred.

23 There is no provision in the Act for administrative review of decisions of the Coroner under s.23(1) of the Act. Had Parliament contemplated such review, then the Act would presumably have conferred jurisdiction on the Victorian Civil and Administrative Tribunal. The absence of any such review provision is quite understandable, given the urgency of such decisions being made by the Coroner and acted upon, an urgency which s.23(1) itself recognises.

24 Accordingly, the only recourse open to a person aggrieved by a decision of the Coroner under s.23(1) would be by way of an application for judicial review under Order 56 of the Rules of Civil Procedure. The procedure under Order 56 replaces the procedure by way of prerogative writ, and enables relief in the nature of certiorari and mandamus to be obtained in a proceeding commenced by originating motion.

25 As was pointed out by Ms Orr, counsel for the State Coroner, who appeared as amicus curiae, s.59(1) of the Act makes specific provision for an application to the Supreme Court in a case where an inquest has been held. Under s.59(2), the Court is given power to declare that some or all of the findings of the inquest are void and to order the State Coroner to hold a new inquest, or reopen the inquest, or direct any other coroner to hold a new inquest. We agree with Ms Orr's submission that there is nothing in the provisions of s.59 to suggest that Parliament thereby intended to exclude the supervisory jurisdiction of the Supreme Court in relation to other decisions of the Coroner made in the performance of statutory duties or the exercise of statutory powers. Any such curtailment of the Court's jurisdiction would of course have had to comply with the provisions of s.85 of the Constitution Act 1975.

26 It follows that the only course open to the father was to seek judicial review of the decision which the Coroner had made. Axiomatically, such review would have been confined to errors of law. As appears from the passages set out earlier, however, that is not how the matter proceeded before the learned Judge in the Practice Court. His Honour was asked to decide whether cremation (and division of the ashes) was to be preferred to burial. The argument from both sides proceeded on the assumption that his Honour had power to decide that question. In deciding to substitute his own view - that cremation was to be preferred - his Honour made what amounted to a decision on the merits on a question which the Coroner had already decided.

27 For the reasons we have given, his Honour had no jurisdiction to do so. The Supreme Court had no power to intervene in the Coroner's decision unless error of law was shown. Even had error been shown, the proper course would then have been to set aside the Coroner's decision and remit the matter to the Coroner for determination in accordance with law.

28 Following our ruling to this effect, we granted counsel for the father a short adjournment to enable him to give consideration to making submissions directed at showing error of law in the Coroner's decision. Mr McKenzie subsequently made two submissions of that kind. The first was that the Coroner had erred in law in failing to make clear to the father that the decision which the Coroner had been invited to make, and had proceeded to make, was determinative of the issues relating to disposal of the body - that is, determinative not only of the mode of disposal of the body but of where and by whom the disposal would be effected. Secondly, counsel submitted that his client harboured a belief that the Coroner had received some additional submission on behalf of the mother to which he, the father, had had no opportunity to respond.

29 In our view, there was no substance in either submission. The very issue which both the mother and the father asked the Coroner to decide involved determining the mode of disposal of the body. The father could have made his submission in favour of cremation at that time but he did not. The Coroner gave clear, succinct reasons for his decision. He was under no legal obligation to provide any explanation to the parties of the legal effect of his decision or of such rights of review or appeal as might exist. If it mattered, the father was apparently already receiving legal advice and it was a matter for his legal advisers to inform him of the implications of the decision. As to the natural justice point, we are satisfied that the father was given an adequate opportunity to respond to all of the material which the mother placed before the Coroner.

Costs

30 Although, following his success before the learned Judge, the father made no application for costs, we concluded that the orders to be made in substitution for the orders of the learned Judge should include an order that the husband pay the mother's costs of the proceeding in the Practice Court.

31 This was essentially because, for the reasons we have given, the application to the Practice Court was wholly misconceived. The application was based on the erroneous notion that the Court had jurisdiction to deal on the merits with the issue of cremation. The provisions of the Act made clear, however, that the question of burial or cremation had already been decided by the Coroner in performance of his duty under s.23(1) and, secondly, that there was no provision for any review on the merits of decisions of the Coroner. Moreover, as we have pointed out, the father did not challenge the Coroner's decision to release the body to the mother.

32 The only remedy being judicial review, an application of that kind was foredoomed to fail. There was nothing on the face of the reasons to suggest error of law. On the contrary, the Coroner's reasoning was clear and logical, and reflected conclusions which were clearly open to him on the undisputed facts. That being so, we concluded that the ordinary order for costs on a failed application for judicial review should apply. The fact that the father had not himself sought costs was, in our view, nothing to the point.

33 It is well-established that the Court has original jurisdiction to decide between competing claims made on behalf of different persons wishing to be given possession and control of a body for disposal. In this Court, such questions were addressed by Ashley J in Meier v Bell.[3] The Full Court of the Supreme Court of South Australia dealt with similar issues in Jones v Dodd.[4]

34 In the present case, the issue of possession and control of the body was the very issue which the Coroner was called on to decide, and did decide - in favour of the mother. The matter having been within the Coroner's statutory jurisdiction, it must be doubted whether the original jurisdiction of the Supreme Court was exercisable at all. But even if it was, it seems inconceivable that the Court in its discretion would have allowed its original jurisdiction to be invoked to re-litigate the very question which the Coroner had already decided.

35 In any case, as we have seen, the father did not seek to revisit the question of possession and control of the body. He was concerned only with the mode of disposal. The authorities are clear that, even where the proceeding is otherwise within jurisdiction, the Court should ordinarily not determine questions concerning the mode of disposal of a body.[5]

[1] See, for example, Re Sterling [1980] FCA 61; (1980) 30 ALR 77 at 83.

[2] Unreported, Owen J, 27 January 1999, CIV 1060 of 1999.

[3] Unreported, Ashley J, 3 March 1997, 4518 of 1997.

[4] [1999] SASC 125; (1999) 73 SASR 328.

[5] Brown v Tullock (1992) 7 BPR 15,101 at 15,102 per Waddell CJ in Eq.; Privet v Vovk [2003] NSWSC 1038 per Bryson J at [13] and [32]; Leeburn v Derndorfer [2004] VSC 172 per Byrne J at [11].