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[2026] ACTCA 15
procedural. The application in proceeding filed on 18 May 2026 was dismissed. The proceedings were listed in the appeals index list before the Registrar on 27 May 2026 at 2:30 pm. The Court noted that the...
The father asked the Court of Appeal to preserve his daughter’s body and require further examinations while his appeal proceeded. The Court refused. The Coroner had already released the body, and it was held by a funeral home that was not a party. Because the requested orders were directed only to the Coroner, they could not effectively control the body. The Court also considered that the statutory provisions cited did not require the particular examinations sought and that most of the appeal grounds did not justify interim relief. The Court did not decide whether leave to appeal was required.
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2,434 words · generated 07/10/2026
ND was the father of a deceased child. The child died on 15 March 2026. The judgment records that emergency resuscitation efforts were unsuccessful and that the body was collected by a government-contracted funeral service provider. A post-mortem examination was later conducted. On 18 March 2026, the Coroner authorised release of the body under s 15(3) of the Coroners Act 1997 (ACT), after being satisfied there was no reason the body should not be buried or cremated ([4], [23]).
6 cited instruments linked from this judgment.
ND requested that the planned cremation be delayed and that a further, independent examination be conducted. He sought, among other things, an internal examination of the neck, examination of stomach contents and examination of the lungs. The Coroner declined to order a further post-mortem, giving reasons that included the existing examination, photographs, samples taken for toxicological testing and the pathologist’s assessment ([26], [31]–[33]).
ND commenced judicial review proceedings on 14 April 2026. Kelly AJ dismissed both the interlocutory application and the application for final relief on 8 May 2026. ND then appealed and sought interlocutory orders: a stay of the primary judge’s orders, preservation of the body, restraints on cremation or disposal, and requirements for storage and an independent post-mortem ([2], [6]–[7]).
Mossop J dismissed the interlocutory application. The central practical difficulty was that the body was no longer in the Coroner’s custody. It was held by a funeral home engaged by the deceased’s mother. Neither the mother nor the funeral home was a party, and no orders were sought against them ([23]–[27]). The Court also assessed the appeal grounds for the limited purpose of deciding whether interim relief was warranted. It considered that most had poor prospects at that stage, while recognising that some grounds might be arguable ([40]–[46]).
The first reason was practical effectiveness. The application sought a stay of the primary judge’s orders, but those orders dismissed the proceedings. Mossop J reasoned that a stay of a dismissal would have no relevant effect on preserving the body ([3]). More importantly, the Coroner had released the body weeks before judicial review proceedings began. The body was in the hands of people who were not parties to the proceedings, and the litigation had been brought against the Coroner alone ([23]–[27]).
That distinction mattered to the nature of the proceeding. The judicial review claim challenged decisions by the Coroner and sought to require future conduct by the Coroner. It did not invoke the Supreme Court’s inherent jurisdiction in relation to disputes about control of a deceased person’s body for burial or cremation, and it did not bring proceedings against the mother or funeral home ([24]–[25]). The Court therefore concluded that orders directed only to the Coroner would not secure the requested outcome ([46]).
The second reason concerned the statutory provisions relied on. ND emphasised s 20(1), which allows a coroner to dispense with a post-mortem examination in specified circumstances. Mossop J held that the provision had no application because a post-mortem examination had in fact occurred. The Act’s Dictionary defined a post-mortem examination as an inspection to determine cause of death, which “may, but need not, include dissection”. On that definition, the absence of an internal examination did not mean that the Coroner had dispensed with the examination altogether ([36]).
The Court then considered s 23. It described the Coroner’s authority under s 23(1)(e) to authorise a further examination as involving a broad evaluative judgment. Under s 23(2), refusal could be based on the Coroner’s belief that the requested step would not be in the public interest or the interests of justice. Mossop J emphasised that these were expansive concepts and that the statutory test turned on the Coroner’s belief. A court could not treat a different view about the balance of interests as sufficient, by itself, to establish reviewable error ([35], [37]).
Section 13 did not require the specific investigative steps ND wanted. The section required an inquest into the manner and cause of death in the stated circumstances, but Mossop J said it did not compel the Coroner to take every step preferred by an interested person. The Coroner was conducting an inquest, and the provision left the Coroner with discretion about what to do while the body remained under the Coroner’s control ([38]).
Section 93 was premature. The provision applied after an inquest into the cause of death had been held. The inquest in this matter remained at an early stage, and the Coroner had not decided whether to conduct a hearing under ss 34 and 34A ([39]).
Finally, the Court considered the appeal grounds. Many raised disputed factual matters, such as the asserted significance of missing medication, the alleged inadequacy of examinations, the domestic context, the alleged chain-of-custody issues and the asserted false statement about provision of the Police Coronial Report. Mossop J did not determine those factual disputes. He considered that the grounds, as presented, were not clearly indicative of likely legal error for the purpose of the interlocutory application ([40]–[41]). The report of Professor Iles was relevant to the current application, but it had not been shown to have been before Kelly AJ, so it did not demonstrate that the primary judgment was erroneous ([42]).
Ground 2, challenging the primary judge’s characterisation of the judicial review case as incompetent, was described as arguable. But even if successful, it would address only one of the two bases for the primary judge’s decision. The prospects of obtaining the final mandatory orders sought remained remote ([45]). Overall, the requested interim relief was not appropriate ([46]).
This judgment did not announce a general change to coronial or judicial review law. Its reasoning applied provisions of the Coroners Act to the particular procedural posture and facts described in the judgment. The decision was about whether interim orders should be made pending appeal, not a final determination of all appeal grounds or a ruling on the ultimate merits of the coronial decisions.
The statutory position described by Mossop J was that s 20(1) concerns dispensing with a post-mortem examination when its statutory condition is met. The Act’s definition allows an examination that does not include dissection. Accordingly, in this case, a post-mortem examination without the internal procedures requested did not amount to dispensing with an examination for s 20(1) purposes ([36]).
The judgment also explains that s 23 gives the Coroner an evaluative role in deciding whether a further post-mortem examination should be authorised. Its reasoning cautions against treating a disagreement about the preferred investigative course as, without more, reviewable legal error. The Court connected that conclusion to the wording of s 23(2), particularly the Coroner’s belief about the public interest or interests of justice ([35], [37]).
For s 13, the judgment distinguishes the obligation to hold an inquest from an asserted obligation to conduct every examination or investigative step a person seeks. The Court found that the statutory requirement to hold an inquest did not dictate the particular post-mortem steps in this case ([38]). For s 93, the judgment identifies a temporal limit: the provision had not become applicable because the inquest had not yet reached the stage specified in the section ([39]).
The decision’s most immediate procedural point is about the fit between the requested relief and the parties before the court. Where the body had been released and was held by a funeral home not joined to the proceeding, relief directed only to the Coroner could not accomplish the practical objective sought ([23]–[27], [46]). The judgment does not determine what relief might be available in a differently constituted proceeding, or whether the Court could exercise a different jurisdiction on different facts.
At [3], Mossop J said that a stay of the primary judge’s orders “would amount to a stay of a dismissal”. In plain English, suspending an order that simply dismissed the claim would not itself preserve the body or reverse the practical position. The requested stay did not address who currently had custody.
At [23], the Court stated: “The body was not, and is not, in the custody of the Coroner.” This is the factual hinge of the decision. The Coroner had authorised release on 18 March, and the body was held by a funeral home engaged by the mother. The Court was therefore considering orders against an official who did not control the thing the orders were meant to protect.
At [27], Mossop J said that “[n]o act or power of the Coroner is currently preventing the investigations sought”. The judgment’s point was not that the requested investigations were impossible or necessarily unjustified. Rather, it identified that any impediment lay outside the Coroner’s present control. That made the requested injunction against the Coroner an ineffective means of obtaining the result sought.
At [36], the Court explained that the statutory definition of a post-mortem examination “may, but need not, include dissection”. In plain English, the Act did not require every post-mortem to involve internal examination. Since an examination had been conducted, the absence of dissection did not engage s 20(1) as though the Coroner had dispensed with a post-mortem entirely.
At [37], the Court described “the public interest” and “the interests of justice” as expansive terms and said the Coroner’s belief was subjective. This means that the statutory question was not simply whether a judge, or ND, would have chosen the same investigative course. The Court’s reasoning focused on the statutory language and the limits of review based only on disagreement with the Coroner’s evaluation.
At [46], the Court concluded that the interim orders, “being directed only to the Coroner[,] would be ineffective”. This summarises the practical basis for refusing relief, alongside the assessment of the appeal grounds and the remoteness of the final orders sought.
The decision is most relevant where an applicant seeks urgent interlocutory relief affecting a deceased person’s body, but the proceedings are directed only at a coroner who no longer has custody or control of that body. The significant features here were the release of the body before proceedings began, the funeral home’s custody, the absence of the mother and funeral home as parties, and the fact that no relief was sought against them ([23]–[27]).
It is also relevant where a party argues that a coroner’s failure to conduct a particular internal examination amounts to dispensing with a post-mortem under s 20(1). The Court’s reasoning depends on the statutory definition in the ACT Act, which permits a post-mortem examination without dissection ([36]). The decision should not be read as establishing that internal examinations are never required. It held that the statutory provision and facts before it did not support the appellant’s particular argument.
The judgment may also be relevant when a party seeks to convert a disagreement about the scope of coronial investigation into judicial review grounds. The Court recognised that factual matters can give rise to legal error, but considered that the appellant’s grounds were not clearly indicative of likely legal error for the purposes of interim relief ([40]–[41]). That assessment was provisional and tied to the interlocutory application, not a final adjudication of each allegation.
The decision is less directly informative where the body remains in the Coroner’s custody, where the relevant custodian is a party, where a different statutory regime applies, or where the court is asked to determine the substantive appeal rather than interim relief. The judgment does not decide those situations.
The judgment itself contains no information about later judicial treatment of ND v Coroner’s Court of the ACT. It was delivered on 22 May 2026, and the text provided does not cite any later decisions applying, distinguishing or questioning it. Later treatment therefore cannot be established from this source.
The judgment does discuss earlier authorities about whether leave to appeal was required. Mossop J referred to Stubberfield v Webster [1995] QCA 520 and Kheir v Robertson [2019] VSCA 229. He explained that leave had been required in those cases because of statutory provisions in Queensland and Victoria, rather than because the judgments had analysed whether the relevant orders were final or interlocutory ([21]). He did not determine the leave question in ND because it was unnecessary for the interlocutory application ([22]).
Marschall v Elson [2023] SASCA 1 and Brown v Weidig [2023] NSWSC 281 were mentioned in connection with the inherent jurisdiction concerning control of a deceased person’s body. Mossop J stated that it was unnecessary to consider them because that jurisdiction had not been invoked and the proceedings were directed only against the Coroner ([24]). The decision therefore does not apply or explain those authorities’ substantive principles.
Several matters were expressly left unresolved. First, Mossop J did not determine whether the primary judge’s order dismissing the judicial review application was final or interlocutory, or whether leave to appeal and an extension of time were required. Those matters were left for possible consideration at the Registrar’s listing on 27 May 2026 ([21]–[22], [47]).
Second, the judgment did not decide whether the Coroner could revoke the certificate authorising release of the body under s 46 of the Legislation Act 2001 (ACT), or whether revocation would re-enliven control under s 15(2) of the Coroners Act. Mossop J said it was unnecessary to determine whether that course was legally available ([30]).
Third, the Court did not finally determine the appeal grounds. It described Ground 2 as arguable and noted that some other grounds required detailed factual and legal examination. Its assessment was directed to whether the grounds justified interlocutory relief, not to the ultimate outcome of the appeal ([43], [45]–[46]).
Fourth, the effect of the Professor Iles report remained limited in this decision. The Court considered the report relevant to the interlocutory application, but observed that it had not been shown to have been before Kelly AJ. It therefore did not demonstrate an error in the primary judgment ([42]). The judgment does not decide what weight the report might receive in later proceedings.
Finally, the judgment does not decide what procedural or substantive remedies might be available in proceedings involving the person or entity holding the body, or in a proceeding invoking the Supreme Court’s inherent jurisdiction. It says only that no such proceeding had been brought in this case and that the present claims were directed at the Coroner ([24]–[27]).
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: ND v Coroner’s Court of the ACT Citation: [2026] ACTCA 15 Hearing Date: 19 May 2026 Decision Date: 22 May 2026 Before: Mossop J Decision: (1) The application in proceeding filed on 18 May 2026 is dismissed. (2) The proceedings are listed in the appeals index list before the Registrar on Wednesday, 27 May 2026 at 2:30pm. (3) Note that issues of the parties to the appeal and whether leave to appeal is required may be the subject of orders on 27 May 2026. Catchwords: APPEAL – PRACTICE AND PROCEDURE – Stay application – where primary judge dismissed application for judicial review of Coroner’s decisions – where appellant seeks interlocutory orders preserving the body of deceased child pending an appeal – where body has been, at all relevant times, in the custody of persons not the subject of the proceedings – held stay of primary judge’s orders would not have any relevant effect – held interlocutory orders directed only to the Coroner would be ineffective – held grounds of appeal lack sufficient merit to warrant interlocutory relief – application dismissed Legislation Cited: Coroners Act 1997 (ACT), ss 13, 15(2), 15(3), 17, 17A, 20, 23, 24, 34, 34A, 51, 93 Court Procedures Act 2004 (ACT), s 27 Court Procedures Rules 2006 (ACT), rr 3566, 5404 Judicial Review Act 1991 (Qld), ss 12, 15(4), Div 3 Legislation Act 2001 (ACT), s 46 Supreme Court Act 1986 (Vic), s 14A Cases Cited: Brown v Weidig [2023] NSWSC 281 Kheir v Robertson [2019] VSCA 229 Marschall v Elson [2023] SASCA 1 ND v Coroner’s Court of the Australian Capital Territory [2026] ACTSC 134 Stubberfield v Webster [1995] QCA 520 Parties: ND (Appellant) Coroner’s Court of the Australian Capital Territory (Respondent) Attorney-General of the Australian Capital Territory (Amicus Curiae) Representation: Counsel Self-represented (Appellant) No appearance (Respondent) K Musgrove (Amicus Curiae) Solicitors Self-represented (Appellant) No appearance (Respondent) ACT Government Solicitor (Amicus Curiae) File Number: ACTCA 23 of 2026 Decision Under Appeal: Court: ACT Supreme Court Before: Kelly AJ Date of Decision: 8 May 2026 Case Title: ND v Coroner’s Court of the Australian Capital Territory Citation: [2026] ACTSC 134 Court File Number: SC 144 of 2026 MOSSOP J: Introduction
This is an application for interlocutory relief relating to the preservation of the body of a deceased child pending an appeal to the Court of Appeal. The appellant is the child’s father. At the time of her death, the deceased was living with her mother. The appeal is brought from a decision of Kelly AJ (the primary judge) dismissing a claim for interlocutory relief and dismissing the appellant’s judicial review application: ND v Coroner’s Court of the Australian Capital Territory [2026] ACTSC 134.
The interlocutory orders sought are, in summary: (a) a stay of the orders made by the primary judge; (b) an order “preserving the body of the deceased”; and (c) an injunction restraining any cremation, burial, disposal, or alteration of the body of the deceased and requiring the body to be stored at the ACT Government Forensic Medicine Centre and to be subject to an independent post-mortem.
For the reasons that I will explain in more detail shortly, the application will be dismissed because: (a) a stay of the orders of the primary judge would not have any relevant effect as it would amount to a stay of a dismissal; (b) the body of the deceased has, at all relevant times, been in the custody of persons or entities who are not subject of the proceedings and against whom no relief has been sought; and (c) in any event, the appeal lacks sufficient merit to warrant the grant of interlocutory relief pending the appeal notwithstanding that the subject matter of the appeal may, as a result, be destroyed.
Background and chronology
The following background is set out in the judgment of the primary judge: 13. The applicant is the father of two daughters. There appear to have been protracted family law proceedings regarding the children. The full extent of the current family court orders are not before this court, although the applicant has indicated that both children were living with their mother at the relevant time. 14. In the early hours of 15 March 2026, the daughter was found hanging by a rope around her neck in the stairwell at the apartment complex where she resided with her mother and sister. The daughter was cut down and resuscitation attempts were commenced by civilians who initially located her. 000 was called and ACT Ambulance Service and ACT Fire and Rescue attended, and resuscitation attempts continued. At approximately 2:53am, police attended and observed resuscitation attempts. At 2:56am, resuscitation attempts ceased as the daughter could not be revived. All of this information is taken from the Police Coronial Report. 15. At approximately 3:55am, a Forensics Medical Officer attended the scene with AFP Forensics and Investigators. The daughter’s body was collected by the ACT Government-contracted funeral service provider. 16. A post-mortem examination was carried out on the daughter. On 18 March 2026, pursuant to s 15(3) of the Coroners Act, the Coroner authorised the release of the daughter’s body as he was then satisfied that there was no reason why the body should not be buried or cremated. The daughter’s body was collected by the funeral home and prepared for viewing. 17. On 31 March and 1 April 2026, the applicant wrote to the Coroner’s Court requesting a stay of cremation and second post-mortem examination. 18. On 1 April 2026, the Coroner wrote to the applicant setting out his determination, which effectively stated that a further post-mortem was not in the public interest or interests of justice as a thorough post-mortem examination had taken place and further examination was unlikely to yield further evidence. The Coroner’s letter set out the various considerations of the Coroner and the reasons for the decision, as the Coroner was required to do by s 23(2) of the Coroners Act, and informed the applicant he might apply to the Chief Coroner requesting a reconsideration of the decision. 19. On 1 April 2026, the applicant wrote to the Acting Chief Coroner and requested a review of the Coroner’s decision in accordance with s 24 of the Coroners Act. 20. The Acting Chief Coroner determined that the applicant, as father of the daughter, had sufficient interest in the inquiry into the daughter’s death and as such, requested the Coroner reconsider his decision. 21. On 2 April 2026, the applicant provided a ‘Statement of Systemic Institutional Failures’ to the Coroner. The daughter’s cremation, which had been scheduled for 2 April 2026, was halted at the insistence of the applicant. 22. By letter to the Acting Chief Coroner on 7 April 2026, the Coroner confirmed his decision not to order a further post-mortem examination and explained his reasons for that decision. The Coroner noted he had been provided with and considered the emails and affidavit of the applicant dated 2 April 2026. The Coroner also noted the matters raised by the applicant, and that those matters, along with any other evidence the applicant wishes to provide, can be considered by the Coroner in making the findings required under s 52 of the Coroners Act. 23. On 8 April 2026, the Acting Chief Coroner wrote to the applicant, informing him of the process undertaken and the reconsideration decision made by the Coroner, as well as annexing the Coroner’s letter dated 7 April 2026. The applicant was separately provided with a redacted copy of the Police Coronial Report on 10 April 2026. 24. At the present time, it is understood that the Coronial inquest process is ongoing and the Coroner has made no decision as to whether a hearing will be conducted under s 34 of the Coroners Act. 25. On 14 April 2026, the applicant filed the application for judicial review and other orders.
The judgment below
The primary judge outlined the procedural history. She identified that, when the proceedings were before her on 17 April 2026, the Attorney-General, who had intervened in the proceedings pursuant to s 27 of the Court Procedures Act 2004 (ACT), sought to have the proceedings dismissed. The proceedings were adjourned until 1 May 2026, but they came back before her Honour as a result of the appellant seeking an interlocutory injunction to preserve the body of the deceased and physical evidence associated with the death of the deceased.
When the matter came back before the court on 1 May 2026, the appellant sought a range of orders which included a mix of interlocutory and final orders. He also sought an order that, in the event his application was dismissed, there be an interlocutory order pending an application for special leave to appeal to the High Court of Australia.
Her Honour outlined the background to the application in the terms set out at paragraph [4] above.
Her Honour identified that, as many of the orders sought were for orders in the nature of certiorari, mandamus and declarations, it was necessary for the appellant to establish jurisdictional error, error on the face of the record or that he had not been afforded procedural fairness in respect of the decisions made by the Coroner in relation to which he had legal rights: ND at [27].
Rather than address the numerous specific grounds identified by the appellant, her Honour addressed them by reference to categories of claim. (a) The complaints as to the Coroner’s decision to refuse to order a further post-mortem examination were all based upon a misconception as to the requirements of ss 23-24 together with ss 17, 17A and 20 of the Coroners Act 1997 (ACT): ND at [29]-[37]. (b) In relation to the appellant’s assertion that an internal neck examination was mandated in every case following a known or suspected hanging, that submission appears to have been based upon guidance to pathologists in the United Kingdom, and there was no evidence that the guidelines have any relevance to post-mortems conducted in the ACT: ND at [35]. (c) In relation to complaints about the failure to comply with ss 23 and 24 of the Coroners Act, those sections involve an exercise of discretion available to the Coroner under s 23: ND at [37]. There was no lack of procedural fairness in the making of that decision. (d) In relation to complaints made by the appellant that s 51 of the Coroners Act grants him the right to access documents the Coroner intends to consider, there is no mandatory requirement to provide that material, particularly where the inquest is at a very early stage and where no findings have been made: ND at [38]-[42]. (e) In relation to the “many further complaints” made by the appellant, the primary judge accepted the intervenor’s submissions that those complaints were “either premature or misconceived”. Her Honour gave, as an example, the order seeking that the Coroner consider the specific evidence and the appellant’s affidavit of 2 April 2026. Her Honour found that it was plain that the Coroner did consider that material: ND at [43]-[44]. (f) There was no legislative basis for a requirement that the Coroner reassign the inquiry to an independent Coroner: ND at [44]. (g) In the absence of proof of bias or malpractice, there was no proper basis for a direction that the investigation by police be done by an officer other than the constable previously involved: ND at [44].
The notice of appeal
The appellant identifies 22 proposed grounds of appeal.
The notice of appeal contains the following 22 grounds: 1. Kelly AJ denied the Appellant the opportunity to file a Rejoinder submission in response to the Attorney-General’s competency argument, thereby denying procedural fairness and the right to be heard on a decisive procedural question that ultimately determined the outcome. 2. Kelly AJ mischaracterised the Appellant’s application as a merits review when it was in truth an application for judicial review based on jurisdictional error, error of law on the face of the record, and insufficiency of inquiry. 3. Kelly AJ failed to address the logical contradiction on the face of the record: the Coroner claimed the post-mortem was “thorough” while simultaneously admitting the neck was not examined internally. An examination omitting the determinative anatomical structure is not thorough by definition. This is error of law on the face of the record. 4. Kelly AJ failed to engage with the mandatory duty imposed by section 13(1) of the Act to hold an inquest into a violent and unnatural death. The duty is absolute and non-discretionary. The Coroner cannot lawfully refuse steps that are necessary to discharge that mandatory duty. 5. Kelly AJ failed to address the Appellant’s evidence that multiple homicide scenarios remain forensically unresolved in the absence of the Three Critical Examinations, thereby conflating “suspected suicide” with “confirmed suicide” and foreclosing inquiry into alternative manners of death. 6. Kelly AJ failed to apply the correct legal test under section 20(1) of the Act. Section 20(1) imposes a condition precedent: the Coroner may dispense with further post-mortem only “if satisfied that the manner and cause of death are sufficiently disclosed.” The condition precedent is not met when the Three Critical Examinations have not been conducted, when approximately 60 prescribed sleeping tablets are unaccounted for, when no stomach or lung examination was conducted, and when the death is classified by police as “suspected” (not confirmed) suicide. 7. Kelly AJ failed to address multiple procedural fairness breaches: the Coroner made his refusal decision on 1 April 2026 before the Appellant’s sworn affidavit was filed; the Coroner’s letter of 7 April 2026 falsely stated the Police Coronial Report had been provided to the Appellant when it had not; the objection to internal examination was recorded without the Appellant's knowledge or consent; and the Appellant’s clothing was authorised for destruction without his consent. 8. Kelly AJ failed to consider the remedy of quashing provided by section 93 of the Act on the grounds of “insufficiency of inquiry” and “discovery of new facts or evidence” (the Iles Report), and failed to consider whether a fresh inquest before an independent Coroner should be ordered. 9. Kelly AJ failed to consider that the Coroner conducted no investigation into the documented domestic crisis context in which [the deceased] died: the unsafe household had been identified to and recognised by the Canberra Hospital whereby CYPS was referred to; the Appellant had explicitly warned Canberra Hospital not to discharge [the deceased’s sister] to the Mother’s household; the Appellant had warned CYPS on 3 November 2025 that a long-term placement of 6 months would “explode”; and [the deceased] died within 5 months of that warning, on the predicted timeline. 10. Error of law - Kelly AJ concluded the body was ‘unlikely to provide further information’ which was contrary to the Expert Report of Prof Linda Iles (8 May 2026) which establishes that the Three Critical Examinations are still feasible and could yield useful forensic information. Failure to consider expert evidence is error of law. 11. Decision made on incorrect factual premise “Body disposal contingent on parental deadlock. Kelly AJ’s decision assumed body would be disposed of. This factual premise is incorrect—Appellant refuses consent pending appeal. Decision on incorrect factual premise is error of law.” 12. Procedural fairness breach — Kioa v West “Objection to internal examination recorded without Appellant’s knowledge or consent. Appellant is interested person. Where procedural decision affects interested person’s rights, must give notice and opportunity to respond. Exclusion breaches procedural fairness: Kioa v West (1985) 159 CLR 550.” 13. Investigation insufficient — examinations omitted, results withheld “Critical examinations omitted or findings not disclosed. Investigation is insufficient because determinative examinations not conducted. Kelly AJ did not address insufficiency of inquiry. Failure to address insufficiency is error of law.” 14. Ultra vires — Wingfoot “Coroner prohibited internal examination. Section 20(1) permits dispensing only if manner/cause sufficiently disclosed. Prohibition of determinative examination contradicts statutory power and is ultra vires: Wingfoot Australia Partners v Kocak (2013) 252 CLR 480.” 15. Investigation incomplete — ordered analysis not completed “Writing style divergence raises authorship question. Kelly AJ ordered forensic linguistic analysis (para 152). Analysis never completed. Failure to complete ordered analysis leaves fundamental question unresolved. Investigation insufficient. Error of law.” 16. Chain of custody breach — undermines evidentiary reliability “Message timing not forensically established. Chain of custody for phone breached—no disclosure of handling, sealing, integrity. Without complete chain of custody, evidentiary reliability undermined. Investigation insufficient. Error of law.” 17. Insufficiency of inquiry — Doogan; evidence contaminated and interested person obstructed “Body released before critical examinations completed. Evidence contaminated by viewing preparation. Appellant obstructed from evidence collection. Contamination and obstruction constitute insufficiency of inquiry: R v Doogan [2005] ACTSC 74. Error of law.” 18. Decision based on false statement — Lam “Coroner falsely stated Police Report provided (7 April). Report not provided until 10 April. Decision based on false statement of fact is vitiated by error of law: Lam (2003) 214 CLR 1.” 19. Decision made on incorrect factual premise “Kelly AJ assumed body would be disposed of. Factual premise incorrect—body disposal requires both parents’ consent; Appellant refuses consent pending appeal. Body remains available. Decision on incorrect factual premise is error of law.” 20. Error of Law - Approximately 60 doxylamine tablets are missing and unaccounted for. Missing medication is relevant evidence to manner determination. The investigation failed to examine stomach contents-to determine the tablets’ disposition. Kelly AJ did not address missing tablets as relevant evidence. Failure to consider relevant evidence to manner determination is error of law. 21. Error of Law - Bank records (Annexure J, 29 April 2026 affidavit) show [the deceased]’s normal spending patterns. Evidence of normal mental state. Kelly AJ dismissed as ‘irrelevant’ without examining. Failure to consider relevant evidence is error of law. 22. Error of Law - Body photographs (Annexure H, 29 April 2026 affidavit) are objective forensic evidence bearing on whether the examination was thorough (Ground 3) and whether manner is sufficiently disclosed (Ground 6). The judgment does not address or explain why the photographic evidence is immaterial to these grounds. Failure to address material evidence relevant to the grounds is error of law. The position of the Attorney-General
Leave to appeal
Counsel for the Attorney-General referred to two cases with respect to whether an order dismissing a judicial review application under r 3566 of the Court Procedures Rules is interlocutory such that leave to appeal is required: Stubberfield v Webster [1995] QCA 520 and Kheir v Robertson [2019] VSCA 229. In each case, leave to appeal from an order dismissing a judicial review application was required. However, the reason that leave was required appears to have been peculiar to the statutory context in the relevant jurisdiction, without discussion of whether the order being appealed from was final or interlocutory. In particular: (a) In Stubberfield, leave to appeal was necessary because the primary judge had dismissed the application for judicial review pursuant to s 12 in Div 3 of the Judicial Review Act 1991 (Qld), and s 15(4) of that Act provided that appeals from orders under Div 3 could only be brought with the leave of the court. (b) In Kheir, there was no reference to why leave to appeal was required, but I infer that it was a result of s 14A of the Supreme Court Act 1986 (Vic), which provided that any civil appeal to the Court of Appeal (with some exceptions not relevant to the case) required leave to appeal.
In the event that the decisions were interlocutory, leave to appeal would be required and an extension of time for the filing of the appeal would also be required. However, it is unnecessary to resolve the issue as to the nature of the judgment appealed from for the purposes of determining the present application. Limitation on the proceedings and the appeal
An important aspect of the proceedings in the Supreme Court is that they were in the nature of judicial review proceedings directed to orders made by the Coroner in relation to the body of the deceased. However, as the primary judge found, on 18 March 2026, the Coroner authorised the release of the body pursuant to s 15(3) of the Coroners Act. The body was not, and is not, in the custody of the Coroner. Rather, it is in the custody of the funeral home engaged by the deceased’s mother.
At no stage has the inherent jurisdiction of the Supreme Court in relation to disputes as to the control of the body of a deceased person for the purposes of burial or cremation been invoked. Most significantly, no proceedings have been brought against the mother of the deceased or the funeral home. The case has proceeded purely as one against the Coroner, targeting the decisions made by the Coroner and seeking orders directed to future conduct by the Coroner. It is not a case in which authorities such as Marschall v Elson [2023] SASCA 1 or Brown v Weidig [2023] NSWSC 281 need to be considered.
The claim against the Coroner
So far as is relevant to the interim orders that are sought, the judicial review proceedings against the Coroner challenged certain decisions of the Coroner and sought to put the body of the deceased back into the custody of the Coroner and compel the Coroner to take further steps to address the issues raised by the appellant.
The underlying complaint of the appellant is that he wished to have additional investigations made as part of the post-mortem examination of the deceased beyond those which were carried out. In particular, he wished to have an internal examination of the structures of the neck of the deceased, an examination of the contents of her stomach and an examination of her lungs for aspiration, incapacitation or the presence of drugs. The Coroner determined that only an external examination was required.
It must be observed that the body was released by the Coroner on 18 March 2026, well prior to the commencement of proceedings on 14 April 2026. No act or power of the Coroner is currently preventing the investigations sought by the appellant. Any impediment to those investigations lies elsewhere. This is a fundamental problem for the granting of interlocutory relief against the Coroner.
The concerns of the appellant were reflected in the appellant’s request to the Coroner on 31 March 2026 seeking that the Coroner “delay the cremation scheduled for Thursday, 2 April 2026”. That request identified a series of circumstances which the appellant submitted were suggestive that the deceased had not hung herself. It is not necessary to set them out in detail. It is sufficient to say that they arose from the appellant’s own observations of the body of the deceased and particular asserted facts relating to the deceased’s conduct in the lead up to her death. The request of the appellant at that stage, which summarises the issues that he was raising, were set out in his email as follows: 7.1 In light of the suspicious physical markings and the volatile domestic history, I respectfully request: i. That the cremation scheduled for Thursday, 2 April 2026 be stayed immediately. ii. That a comprehensive forensic post-mortem examination (if not already completed) specifically address the dual ligature-style markings. iii. That all evidence be preserved until the Coroner can definitively rule out third-party involvement. iv. That, if the Coroner’s finding is suicide, a second independent forensic opinion be obtained before the cremation proceeds.
In the Coroner’s letter of 1 April 2026, that request was treated as a request under s 23(1)(e) and “a request to me to revoke the certificate I have issued under section 15(3) of the Act authorising the release of [the deceased’s] body [so] that she can be buried or cremated”.
Although not stated to be the case in the Coroner’s letter, the statement about revocation of the certificate appears to be based on s 46 of the Legislation Act 2001 (ACT) (the power to revoke a statutory instrument). It appears that the contemplated effect of doing so would be to re-enliven the powers in s 15(2) of the Coroners Act which give control of the body of the deceased to the Coroner. (It is not necessary for present purposes to determine whether this was in fact an available course for the Coroner to take.)
The statutory claims
The appellant has put his challenge to the Coroner’s decision on the basis of a number of different statutory provisions. For the reasons that follow, so far as the appeal is based upon the operation of identified provisions of the Coroners Act, the grounds do not disclose an appeal of sufficient merit to warrant the making of interlocutory orders.
The fundamental difficulty for the appellant’s claim is that it is not essential that every post-mortem examination of the body of a deceased person include the internal examinations which the appellant would have liked to have been undertaken. Where those internal investigations have not been undertaken, the statute gives a broad evaluative judgment to the Coroner as to whether or not, under s 23(1)(e), to authorise a further post-mortem examination of the body. In those circumstances, it will be difficult for a person in the position of the appellant to establish grounds for prerogative relief in relation to such decisions. Further, given post-mortem examinations need not include internal examinations and the broad evaluative judgment reposed in the Coroner, any relief directed to compelling the Coroner to undertake such steps would involve an impermissible entry by the court upon the merits of the case. These general propositions reflect the operation of the statutory provisions in the Coroners Act relied upon by the appellant as described below.
Section 20(1)
Section 23
So far as s 23 is concerned, the reasons for refusal of a request made under s 23(1) appear to be confined by the terms of s 23(2). Section 23(2) permits refusal “on the ground that the coroner believes that it would not be in the public interest or the interests of justice” to take the requested step. Two points about this provision must be noted. First, “the public interest” and “the interests of justice” are both expansive terms which may take into account a variety of competing considerations. Second, the power to refuse is conditioned upon what the Coroner “believes” about those matters. Because the belief of the Coroner is a subjective one, it is not a matter reviewable simply on the basis that a court (or the appellant) may come to a different conclusion about where the public interest or the interests of justice lie. Section 13
So far as the appellant relies upon s 13 of the Coroners Act (the subject of appeal ground 4), which provides that a coroner “must” hold an inquest into the manner and cause of death of a person who “dies violently, or unnaturally, in unknown circumstances”, this provision does not assist the appellant. The Coroner is conducting an inquest. The terms of s 13 do not compel the Coroner to take all of the steps that the appellant would have wished him to take. The Coroner retains a discretion as to what to do while the body of the deceased remains under the control of the Coroner under s 15(2). There is no obligation to undertake, during the course of a post-mortem examination, all of the investigations that a person in the position of the appellant would like to be undertaken.
Section 93
Claims of factual errors
A number of the grounds of appeal related to particular factual circumstances asserted by the appellant which were said to amount to errors of law or give rise to errors of law. It is not necessary to address them individually. Generally speaking, they assert factual errors and seek to characterise them as legal errors or failures by the primary judge to take matters into account. The relevant grounds relate to the following matters: (a) appeal ground 3: failure to address an asserted “logical contradiction” in the Coroner’s letter; (b) appeal ground 5: failure to address the existence of “multiple homicide scenarios” that remain forensically unresolved; (c) appeal ground 9: failure to consider the lack of investigation into “the documented domestic crisis context” in which the deceased died; (d) appeal ground 13: failure to address the insufficiency of the police investigation; (e) appeal ground 15: failure to conduct a forensic linguistic analysis; (f) appeal ground 16: failure to establish a chain of custody of the alleged suicide message; (g) appeal ground 17: the release of the body, its contamination by preparation for cremation and obstruction of the appellant from collecting evidence; (h) appeal ground 18: an alleged false statement in the Coroner’s report to the Chief Coroner that the police report was provided to the appellant; (i) appeal ground 20: failure to address allegedly missing doxylamine tablets; (j) appeal ground 21: failure to consider spending patterns of the deceased; and (k) appeal ground 22: failure to address photographic evidence for the purposes of grounds 3 and 6.
All of these grounds may be assessed as having poor prospects of success, as they seek to characterise factual matters as involving errors of law. While it must be accepted that factual matters can give rise to errors of law, the particular grounds in this case are not clearly indicative that this is a case in which that is likely to occur.
The challenge to the conclusion of the primary judge that the body was “unlikely to provide further information” (ND at [52]) (appeal ground 10) is based upon the evidence of Professor Iles, which was not shown to have been put into evidence before her Honour. Adjunct Associate Professor Linda Iles is a forensic pathologist who, amongst other roles, has an appointment with the Victorian Institute of Forensic Medicine. Her report indicates that if the deceased’s body has been in cold storage, neck structures should still be informative and further cold storage would not affect that examination or interfere with an autopsy involving internal examination. That report is plainly relevant to the interlocutory order currently sought but does not demonstrate an error in the judgment of the primary judge.
Other claims
Various other grounds of appeal assert a denial of procedural fairness either by the Coroner or the primary judge. (a) Appeal ground 1 relates to an alleged refusal by the primary judge to permit further written submissions to be made. That ground, along with another ground asserting a failure by the primary judge to consider a range of denials of procedural fairness by the Coroner (appeal ground 7), will depend upon a detailed examination of the facts. It is not apparent at this stage that these grounds have merit. (b) Appeal ground 12 asserts that the failure to consult with the appellant about the mother’s objection to a post-mortem involved a denial of procedural fairness. This appears to recast an argument put on a different basis to the primary judge concerning rights of the “senior next of kin”. The assessment of the claim of a denial of procedural fairness will involve questions of both fact and law. The prospects of obtaining any of the orders sought in the notice of appeal on the basis of the success on such a ground would appear, at this stage, to be remote.
Appeal grounds 11 and 19 assert that the decision was made upon an incorrect factual premise said to amount to an error of law. The error is said to involve reasoning that “further examination would be futile because the body will be disposed of” when that was not in fact the case because the appellant would continue to object to its cremation. It is not at all clear that the primary judge reasoned in this way. Rather her reasoning is that set out in ND at [52], based upon the proposition that there was no evidence before her as to the state of decomposition.
Appeal ground 2 challenges the dismissal of the proceedings on the basis that they were incompetent. This, in my view, is a ground which is arguable, depending as it does upon the meaning of “incompetent” in r 3566 and whether, for the purposes of assessing competence, it is appropriate to address the form or substance of the grounds of challenge in judicial review proceedings. Even if successful, it would address only one of the two bases upon which the application was dismissed identified at [48] of the primary judge’s reasons. Even if this ground was successful the prospects of obtaining relief of the type set out in the notice of appeal would appear to be remote.
Conclusion
The present position is that there is nothing in the Coroners Act or the conduct of the Coroner which is impeding the appellant from undertaking the investigations he wishes to have undertaken. While amongst the numerous grounds of appeal there are some which are or may be arguable, most are not. The prospects of achieving final orders following a successful appeal directed to the Coroner in the terms that are sought in the notice of appeal are remote, as they involve a series of mandatory orders which would significantly intrude upon the statutory authority of the Coroner. The interlocutory orders sought being directed only to the Coroner would be ineffective. In the circumstances it is not appropriate to grant the interlocutory relief sought. Nor is it appropriate to grant any further interim relief in order to facilitate any further applications by the appellant. Orders
The orders of the Court are: (1) The application in proceeding filed on 18 May 2026 is dismissed. (2) The proceedings are listed in the appeals index list before the Registrar on Wednesday, 27 May 2026 at 2:30pm. (3) Note that issues of the parties to the appeal and whether leave to appeal is required may be the subject of orders on 27 May 2026. [The appellant made an oral application for a stay of the orders of the court. That oral application was refused.]
I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
ND
Coroner’s Court of the ACT
[2019] VSCA 229
[2026] ACTSC 134
(1985) 159 CLR 550
(2013) 252 CLR 480
(2003) 214 CLR 1
The application in proceeding filed on 18 May 2026 was dismissed. The proceedings were listed in the appeals index list before the Registrar on 27 May 2026 at 2:30 pm. The Court noted that the parties to the appeal and whether leave to appeal was required might be the subject of orders at that listing. An oral application to stay the Court’s orders was refused.
The proceedings came before the primary judge on 17 and 21 April 2026 and 1 May 2026.
On 8 May 2026, the primary judge made orders dismissing both the interlocutory application and the application for final relief and gave reasons for those decisions.
On 18 May 2026, the notice of appeal and application for interlocutory orders was filed in the Court of Appeal.
The primary judge then turned to consider the intervenor’s submissions that the court should dismiss the application pursuant to r 3566 of the Court Procedures Rules 2006 (ACT). Her Honour adopted, by reference, the legal principles applicable to judicial review and injunctive relief summarised in the intervenor’s submissions. Those submissions contended: (a) the effect of the application was to seek merits review of the decision of the Coroner, and as there was no appeal provision permitting such review, the application was misconceived and incompetent; (b) there was no jurisdictional error that would provide a foundation for an order in the nature of a writ of certiorari, and no error on the face of the record, being the letters from the Acting Chief Coroner on 7 April 2026 and 8 April 2026 and no entitlement to relief in circumstances where the appellant’s legal rights were not affected; (c) there was no basis for an order of mandamus, because the Coroner had not wrongly refused to perform a public duty, with the submissions then addressing the various mandatory orders sought; (d) there was no basis for a declaration because there was no denial of procedural fairness as the inquest had not concluded, some of the conduct complained of was not that of the Coroner and there was no legal right to access all investigation material as was asserted; and (e) there was no basis for prohibition, as there was no actual or perceived bias and no legislative basis for requiring a referral of the proceedings to an independent investigative body as the appellant had sought.
The primary judge concluded that there was “no reasonable basis for the application for judicial review and, as the respondent correctly submitted, the application is incompetent”: ND at [48]. She concluded, contrary to the submissions made by the appellant, that he was in fact seeking merits review.
As a result of that conclusion, her Honour found that there was no serious question to be tried, and that the balance of convenience did not favour the granting of any relief.
The primary judge noted that the conclusion was reinforced by the fact that the deceased’s body had already been released to a funeral home and the other interested parties, namely the mother and the sister of the deceased, had not been served with notice of the application for injunctive relief: ND at [51]. Further, there was no evidence before her Honour as to the current state of decomposition, and whether the body would be likely to provide further information relevant to an investigation: ND at [52].
For those reasons, her Honour made the orders dismissing the proceedings and the interlocutory application.
The Attorney-General intervened in the proceedings before the primary judge. The Attorney-General was not named as a respondent to the appeal. The Attorney-General was only served with the stay application and notice of appeal the day prior to the application being heard. Counsel for the Attorney-General appeared and did not have instructions to seek to be joined to the proceedings pursuant to r 5404 of the Court Procedures Rules. However, she made submissions as amicus curiae so as to assist the court in relation to the application for interlocutory relief.
The Coroner, in his letter of 1 April 2026 and in his report on reconsideration given to the Chief Coroner on 7 April 2026, explained why he “believe[d] that it would not be in the public interest or the interests of justice to” order a further post-mortem examination of the body.
The points made by the Coroner in the letter of 1 April 2026 were: (a) For the purpose of the inquest, he would consider all information provided to him. (b) He had the benefit of a report from a forensic medical officer who attended the scene where the deceased’s body was located. (c) The post-mortem examination was conducted by an eminent forensic pathologist who would provide independent advice to the Coroner and an interim report was already available. (d) The post-mortem examination included photography to document the injury to the neck and an examination of the body for additional injury as well as the taking of samples for toxicological testing. (e) The pathologist did not find that there were suspicious circumstances. The marks on the body of the deceased were consistent with hanging. (f) The Coroner considered that “all reasonable steps were taken at postmortem to allow me to consider manner and cause of death. Any potential forensic evidence that could be gained from the examination of [the deceased’s] body has already been gathered and thoroughly documented”. (g) “Further forensic examination in these circumstances would be very unlikely to not provide any further information relevant to my investigation”. The inclusion of the “not” was clearly a typographical error.
In the report to the Chief Coroner, there was further discussion of the ligature marks on the neck of the deceased. The Coroner indicated that the pathologist had reviewed the appellant’s comments and they did not cause him to change his opinion. Further, the letter noted that the pathologist did not see evidence that the voice box was crushed or reconstructed and that there were other aspects of the presentation of the deceased that indicated that death was caused by hanging and not inflicted strangulation.