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[1999] HCA 39
procedural. Application for interim injunctions pending an application for special leave to appeal dismissed. The Court concluded that the applicant had shown no reasonable prospect of special leave being...
Haydon, who had been charged with murder, wanted the bodies of three deceased persons preserved so that independent post-mortem examinations could be conducted for his case. He sought urgent interim orders while pursuing special leave to appeal. Gaudron J accepted that the High Court had power to make such orders in an appropriate case, but said they required a substantial prospect of special leave. The judgment distinguished the fairness obligations applying during an inquest from a separate decision to authorise disposal of a body. Haydon had not identified a right, interest or legitimate expectation supporting a hearing on that decision, and had not shown that the further examinations or preservation were necessary for a fair trial. The interim application was dismissed.
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2,195 words · generated 05/10/2026
2 cited instruments linked from this judgment.
In Haydon v Chivell [1999] HCA 39, Gaudron J considered an application for interim injunctions pending an application for special leave to appeal. The reasons followed an order made on 12 August 1999, dismissing the interim application; they were published on 20 August 1999. The judgment concerns the requested interim protection, not the ultimate determination of special leave or the merits of the criminal charges.
Haydon had been charged with murdering several people whose bodies had been found in suspicious circumstances. The State Coroner took possession or control of the bodies and directed post-mortem examinations, apparently under s 13(1) of the Coroners Act 1975 (SA) [4]. No inquest had been held. Section 26(1) provided that a coroner must not proceed with an inquest where a person had been charged with causing the event under inquiry, unless the Attorney-General directed otherwise [5].
The Coroner authorised disposal of all but one of the bodies under s 30. That section permitted authorisation where the Coroner considered the body was no longer required for an inquest [6]. Haydon's earlier proceedings sought to quash the disposal authorisations on procedural-fairness grounds, including an asserted denial of an opportunity to request consent for further post-mortem examinations [7]. Lander J dismissed that application, and the Full Court dismissed Haydon's appeal [2].
In the High Court, Haydon sought orders requiring the Coroner to retain the body of Ray Allan Peter Davies and restraining two funeral directors from disposing of the bodies of Frederick Robert Brooks and Suzanne Phyllis Allen [3]. The funeral directors were not parties, but Gaudron J treated that point as one that could be put aside because the deceased persons' next of kin had intervened and could have been subject to appropriate orders if the applicant were otherwise entitled to relief [3].
The central practical question was whether the remains needed to be preserved for an independent forensic examination relevant to Haydon's fair trial. Gaudron J accepted that the High Court had power to make interim orders of this kind in an appropriate case. The application nevertheless failed because Haydon had not identified circumstances showing that the proposed examinations or preservation were necessary for a fair trial, rather than potentially advantageous [8], [12].
Gaudron J began with the High Court's power to grant interim relief pending special leave. The power exists where an order is needed to preserve the subject matter of a prospective appeal or, in equivalent terms, to prevent appellate proceedings from being rendered futile [8]. The judgment cited earlier authorities concerning preservation of the position pending appellate proceedings. But the existence of power did not itself justify an order. An applicant also needed a substantial prospect of obtaining special leave [8].
That threshold made the merits of Haydon's proposed appeal relevant to the interim application. His argument was that the Coroner had denied him procedural fairness by authorising disposal without allowing him an opportunity to seek further post-mortem examinations [7], [10]. Gaudron J addressed the basis for such a hearing right rather than assuming that fairness requirements governing an inquest automatically applied.
The judgment distinguished two types of coronial decision. An inquest is one process, and a decision under s 30 to authorise disposal is another. The disposal power could be exercised even if no inquest was ever held. Therefore, the fact that procedural fairness applies to an inquest did not determine whether it applied to a disposal authorisation [9]. The relevant question was whether the person asserting a right to be heard had a right, interest or legitimate expectation affected by the decision [9].
Haydon did not rely on a legitimate expectation created by anything the Coroner had said or done. Nor did he claim that he was entitled to possession of the bodies, or that he was a person authorised under Pt IV of the Transplantation and Anatomy Act 1983 (SA) to arrange a post-mortem examination [10]. Instead, he put his claim on the basis of his right to a fair trial and the courts' powers to preserve evidence relevant to that trial [10].
Gaudron J accepted, without undertaking a detailed analysis, that an accused person's fair-trial right might require a trial judge to take steps beyond those ordinarily required by law, including a stay of proceedings, if needed to prevent a perceptible risk of a miscarriage of justice [11]. But the judgment did not decide the full extent of that right or the courts' powers to protect it. Those broader questions were unnecessary because Haydon had not pointed to circumstances showing necessity in this case.
The distinction between necessity and possible advantage was decisive. Gaudron J found no identified feature of the case suggesting that further post-mortem examinations were necessary for a fair trial, as opposed to offering some possible advantage. Nor had Haydon shown why the remains needed to be preserved pending trial [12]. That left no identified error of principle in the Full Court's decision that would warrant special leave, and no reasonable prospect that special leave would be granted [12]. Without that prospect, the basis for the requested interim orders was absent.
The judgment's account of the law begins from existing principles rather than announcing a new statutory rule. On interim relief, it records an established power to preserve the subject matter of a prospective appeal or prevent an appeal from becoming futile. It also states a limitation: interim orders pending special leave are made only where the applicant has a substantial prospect of obtaining special leave [8]. The authorities in footnotes 2 and 3 are cited in support of those propositions.
On coronial procedural fairness, the judgment states that fairness applies to the conduct of an inquest, citing Annetts v McCann [9]. It then cautions against extending that proposition automatically to a separate statutory decision about disposal of remains. Whether fairness applies to that decision depends on an affected right, interest or legitimate expectation [9]. The judgment's statutory context was the South Australian provisions it quoted: ss 13(1), 26(1) and 30 of the Coroners Act 1975 (SA), and Pt IV of the Transplantation and Anatomy Act 1983 (SA) [4]–[6], [10].
The decision did not establish that an accused person could never seek preservation of remains, or that forensic examinations could not be necessary to a fair trial. Rather, it decided the interim application on the absence of circumstances demonstrating that necessity. Gaudron J expressly left open the broader question about the nature of the fair-trial right and the extent of a court's powers to ensure a fair trial [11].
Accordingly, the “after” position discernible from this judgment is limited. It gives a fact-sensitive application of the substantial-prospect threshold and distinguishes inquest fairness from disposal authorisations. The supplied judgment does not establish whether later legislation amended the cited South Australian Acts, and does not provide a later doctrinal development beyond its own reasons.
At [8], Gaudron J states that interim orders are available if they are needed to preserve an appeal's subject matter or prevent the appeal process from becoming futile. Plain English: the Court can protect a position temporarily, but the power is not automatic. The applicant also needs a substantial prospect of special leave.
At [9], the judgment explains that fairness during an inquest does not necessarily mean fairness is required before a coroner authorises disposal of a body. The disposal power may be exercised even if no inquest will occur. Plain English: the procedural rules for one coronial process do not automatically carry over to a different statutory decision.
At [9], Gaudron J identifies the connection needed for procedural fairness in relation to disposal: the person must have a right, interest or legitimate expectation affected by the decision. Plain English: a person does not obtain a hearing merely because they are concerned about the decision; the relevant kind of personal connection must be established.
At [10], the judgment records what Haydon did not claim: a legitimate expectation based on the Coroner's conduct, a right to possess the bodies, or authority under the transplantation and anatomy legislation to authorise an examination. Plain English: his asserted basis was instead the effect of disposal on his defence and fair-trial interests.
At [11], Gaudron J accepts that fair-trial concerns may sometimes call for steps beyond ordinary legal requirements, including a stay where necessary to prevent a perceptible risk of miscarriage of justice. She then expressly avoids deciding the broader scope of that power. Plain English: the Court acknowledged the possible importance of fair-trial protections but did not resolve their outer limits in this application.
At [12], the judgment draws the key distinction: further examinations had not been shown to be necessary for a fair trial, as opposed to offering “some possible advantage”. Plain English: a claimed forensic benefit, without a demonstrated need connected to trial fairness, did not establish the required prospect of special leave on the material identified.
The decision is most directly relevant to an application for interim orders pending special leave where the orders are sought to preserve physical evidence or another subject matter that may otherwise be lost before appellate proceedings can be determined. The applicant must address both the Court's power to preserve the position and the separate threshold that there be a substantial prospect of special leave [8].
It is also relevant where a person argues that procedural fairness required a coroner to hear them before authorising disposal of human remains. The judgment requires attention to the nature of the decision being challenged. A decision to authorise disposal under a statutory power is not necessarily treated like the conduct of an inquest, particularly where an inquest has not proceeded [9].
A fact pattern involving a claimed right to examine or preserve a body for a criminal trial also calls for a careful distinction between potential usefulness and demonstrated necessity. In Haydon, the applicant's charge, asserted fair-trial interest, and desire for further examinations were not, without more, enough to show that preservation was necessary [10]–[12]. The judgment does not state that any one form of forensic evidence will always be unnecessary. It turns on the absence of case-specific circumstances identified to Gaudron J.
The decision should not be read as resolving questions the Court expressly left open. It did not determine what evidence would suffice in another case, whether a different applicant might have a relevant right or interest, or the full extent of a court's power to protect trial fairness by preserving evidence [11]–[12].
The supplied judgment contains no later decisions applying, distinguishing, following or reconsidering Haydon v Chivell. Its footnotes cite authorities that pre-date the decision, and its reasons do not discuss subsequent treatment. It is therefore not possible, from this source alone, to describe how later courts have treated the judgment.
The references within Haydon show the authorities Gaudron J relied on for the propositions she stated. For interim relief and the special-leave threshold, footnotes 2 and 3 cite cases including Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1], Narain v Director of Public Prosecutions and Elliott v Seymour [8]. For procedural fairness at an inquest, footnote 4 cites Annetts v McCann [9]. For fair-trial powers and possible steps to prevent a miscarriage of justice, footnote 5 cites Dietrich v The Queen, Barton v The Queen and Jago v District Court (NSW) [11].
Those references establish the authorities identified in this judgment, but do not establish how later courts have interpreted Haydon itself. Any account of later treatment would require sources beyond the judgment supplied here.
The judgment leaves several questions unresolved. First, Gaudron J expressly declined to analyse the full nature of the fair-trial right or the extent of a court's powers to ensure a fair trial where evidence may be lost [11]. The decision therefore does not define the circumstances in which a court might order preservation of remains or other evidence for that purpose.
Second, it does not specify what factual showing would establish that a further post-mortem examination is necessary, rather than merely advantageous. It identifies what Haydon had not shown, but does not set out a general evidentiary test for future cases [12].
Third, the judgment does not decide whether a person charged with causing a death could, on different facts, establish a right, interest or legitimate expectation affected by a coroner's disposal decision. It records the bases Haydon did not advance and identifies his fair-trial interest, but does not exhaustively list the interests that might qualify [9]–[10].
Fourth, the reasons do not determine whether the Coroner's authorisations were substantively or procedurally valid in all respects. The issue before Gaudron J was the request for interim orders pending special leave, and the application failed at the threshold because no reasonable prospect of special leave had been shown [1], [12]. The judgment should therefore be read within that procedural limit.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAUDRON J
MARK RAY HAYDON APPLICANT
AND
WAYNE CHIVELL RESPONDENT
Haydon v Chivell [1999] HCA 39
Date of Order: 12 August 1999
Date of Publication of Reasons: 20 August 1999
A20/1999
ORDER
Application for interim injunctions pending an application for special leave to appeal from the orders of the Full Court of the Supreme Court of South Australia dated 10 August 1999 dismissed.
On appeal from the Supreme Court of South Australia
Representation:
M E Shaw QC with C S L Abbott for the applicant (instructed by Lempriere Abbott McLeod)
M D Walter, Crown Solicitor for the State of South Australia for the respondent and intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor's Office for the State of South Australia)
P J L Rofe QC, Director of Public Prosecutions (South Australia) intervening (instructed by the Office of the Director of Public Prosecutions (South Australia))
D F Stratford intervening on behalf of certain family members of the deceased (instructed by Rowell Forrest)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GAUDRON J. On 12 August 1999, in Adelaide, I dismissed an application by Mark Ray Haydon ("the applicant") seeking interim injunctions pending the hearing and determination of an application for special leave to appeal from a decision and orders of the Full Court of the Supreme Court of South Australia. The following are my reasons.
The applicant is seeking special leave to appeal from a decision of the Full Court dismissing an appeal from a decision of Lander J. His Honour dismissed an application for orders which, in general terms, would have prevented the burial or cremation of certain deceased persons. The applicant has been charged with their murder. In this Court, as before Lander J and the Full Court, the applicant asserted a right to have independent post-mortem examinations of the bodies conducted on his behalf.
The interim orders which the applicant sought in this Court were:
An order directing the respondent, who is the State Coroner for South Australia ("the Coroner"), to retain possession, custody and control of the body of Ray Allan Peter Davies;
An order restraining Blackwell Funeral Directors from disposing of the body of Frederick Robert Brooks; and
An order restraining Northwest Funerals from disposing of the body of Suzanne Phyllis Allen.
It should be noted that neither Blackwell Funeral Directors nor Northwest Funerals was joined as a party to the proceedings in this Court. However, that is a matter which can be put to one side. The next of kin of the deceased persons intervened in the proceedings and, if the applicant had otherwise been entitled to the relief claimed, appropriate orders could have been directed to them.
The application had its genesis in the finding of a number of bodies in suspicious circumstances. The Coroner took possession or control of those bodies and directed post-mortem examinations. Presumably, that direction was given pursuant to s 13(1) of the Coroners Act 1975 (SA) ("the Act"). That subsection confers various powers, including a power to direct a post-mortem examination, which may be exercised where "the coroner believes on reasonable grounds that it is necessary [to exercise the powers in question] for the purposes of an inquest or the determination of whether or not an inquest is necessary or desirable".
No inquest has yet been held by reason that, before it was begun, the applicant was charged with the murder of the various persons concerned. In this regard, s 26(1) of the Act provides:
" A coroner must not proceed with an inquest where a person has been charged in criminal proceedings with causing the event that is, or is to be, the subject of an inquest, unless the Attorney-General directs the coroner to do so."
" The coroner may issue an authorisation for the disposal of human remains where the coroner considers the body of a dead person is not further required for the purposes of an inquest into the death of that person."
The proceedings before Lander J were directed to quashing the Coroner's authorisation under s 30 of the Act, it being contended that such authorisation was given in circumstances in which the applicant was denied procedural fairness. In particular, it was contended that the applicant was denied an opportunity to request the Coroner's consent to his having further post-mortem examinations conducted on his behalf.
It is well settled that this Court has power to make interim orders pending the grant of special leave to appeal if that is necessary to preserve the subjectmatter of an appeal1 or, which is the same thing, to prevent appellate proceedings from being rendered futile. Given the nature of the applicant's claim, this Court clearly has power to make the orders sought. However, interim orders are only made if the applicant has a substantial prospect of obtaining the grant of special leave to appeal2. And that issue necessitates a consideration of the applicant's asserted right to be heard by the Coroner before authorising the disposal of the bodies in question.
It may be accepted that, were an inquest being conducted, the Coroner is bound to observe the rules of procedural fairness3. However, that is not to say that the same is true of a decision to authorise the disposal of bodies in the possession or under the control of the Coroner. The power to authorise that course is independent of the coronial power to hold an inquest for it is a power that may fall for exercise without an inquest ever being held. That being so, the consideration that the rules of procedural fairness apply to the conduct of an inquest does not dictate the consequence that those rules also apply to a Coroner's decision to authorise the disposal of a body. Rather, as the Full Court held, a person is only entitled to procedural fairness in relation to a decision of that kind if he or she has some right, interest or legitimate expectation which is affected by the decision.
It was not claimed that anything said or done by the Coroner gave rise to any legitimate expectation on the part of the applicant. Nor was it claimed that the applicant was entitled to possession of any of the bodies in question or that he was a person who might authorise a post-mortem examination pursuant to Pt IV of the Transplantation and Anatomy Act 1983 (SA). Rather, his claimed right, interest or expectation was said to be an aspect of his right to a fair trial. And in this regard it was contended that the Full Court erred in failing to exercise either its inherent or supervisory jurisdiction "to make such orders as were necessary to preserve evidence relevant to the fair trial of the Applicant".
See Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 at 683 per Brennan J. See also Tait v The Queen (1962) 108 CLR 620 at 623-624 (execution of prisoner stayed pending disposal of application for special leave to appeal); Re Marks and Federated Ironworkers' Association of Australia; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation (1981) 55 ALJR 395 at 396 per Mason J; 34 ALR 208 at 211; Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 518 per Brennan J; Narain v Director of Public Prosecutions (1987) 61 ALJR 317 at 318 per Brennan J; 71 ALR 248 at 248; Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177 at 178 per Gaudron J; Elliott v Seymour (1993) 68 ALJR 173 at 175-176 per Gaudron J; 119 ALR 1 at 4; Re Duke Group Ltd (In Liq) and Corporations Law of South Australia; Gerah Imports Pty Ltd v The Duke Group Ltd (In Liq) (1994) 68 ALJR 196 at 197 per Dawson J; 119 ALR 401 at 403; Olex Focas Pty Ltd v Skodaexport Co Ltd (1996) 70 ALJR 983 at 983 per Dawson J; Pelechowski v Registrar, Court of Appeal (NSW) (1998) 72 ALJR 711 at 712 per Gummow J (bail granted to prevent substantial completion of sentence pending disposal of application for special leave to appeal). ↩
See Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 at 685 per Brennan J. See also Narain v Director of Public Prosecutions (1987) 61 ALJR 317 at 318 per Brennan J; 71 ALR 248 at 249; Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177 at 178 per Gaudron J; Elliott v Seymour (1993) 68 ALJR 173 at 176 per Gaudron J; 119 ALR 1 at 4-5 ("substantial prospect" or "not insubstantial prospect" both mean "a probability of ultimate success"); Re Duke Group Ltd (In Liq) and Corporations Law of South Australia; Gerah Imports Pty Ltd v The Duke Group Ltd (In Liq) (1994) 68 ALJR 196 at 197 per Dawson J; 119 ALR 401 at 403; Olex Focas Pty Ltd v Skodaexport Co Ltd (1996) 70 ALJR 983 at 983 per Dawson J. ↩
See Annetts v McCann (1990) 170 CLR 596 at 598-603 per Mason CJ, Deane and McHugh JJ, 608-610 per Brennan J, 617 per Toohey J. ↩
Haydon
Chivell [1999] HCA 39;
(1999) 165 ALR 1
(1999) 73 ALJR 1311
(1986) 161 CLR 681
(1962) 108 CLR 620
(1981) 55 ALJR 395
(1987) 61 ALJR 317
(1992) 67 ALJR 177
(1993) 68 ALJR 173
(1994) 68 ALJR 196
(1996) 70 ALJR 983
(1998) 72 ALJR 711
(1990) 170 CLR 596
(1992) 177 CLR 292
(1980) 147 CLR 75
(1989) 168 CLR 23
Application for interim injunctions pending an application for special leave to appeal dismissed. The Court concluded that the applicant had shown no reasonable prospect of special leave being granted ([12]).
It may be accepted that an accused person's right to a fair trial may require a trial judge to take steps in addition to those ordinarily required by law, including to stay proceedings, if those steps are necessary to prevent the perceptible risk of a miscarriage of justice4. However, this case does not call for any detailed analysis of the right to a fair trial. Nor does it require a consideration of a court's powers to ensure a fair trial even though it may be doubted that a court's powers in that regard extend to the point contemplated by the argument for the applicant.
The reason why it is unnecessary to consider the nature of an accused person's right to a fair trial or the extent of a court's powers in that regard is because the applicant has pointed to no circumstance or feature of the case which would suggest that further post-mortem examinations are necessary for a fair trial, as distinct from entailing some possible advantage to him. Nor has he pointed to anything which would suggest it is necessary to preserve the remains of the deceased persons pending his trial. In these circumstances, there is, in my view, no error of principle to be ascertained in the decision of the Full Court which would warrant the grant of special leave to appeal and no reasonable prospect that special leave will be granted. For that reason the application was dismissed.
See Dietrich v The Queen (1992) 177 CLR 292 at 298 per Mason CJ and McHugh J, 327 per Deane J, 356-358 per Toohey J, 362-363 per Gaudron J. See also Barton v The Queen (1980) 147 CLR 75 at 96 per Gibbs ACJ and Mason J (with whom Aickin J concurred at 109), 103 per Stephen J, 107 per Murphy J; Jago v District Court (NSW) (1989) 168 CLR 23 at 31 per Mason CJ, 58 per Deane J, 71-72 per Toohey J, 77-78 per Gaudron J. ↩