Plaintiff v Defendant

2 An inquest into Ms James's death was held under the Coroners Act 1958 ('1958 Act') before the defendant, who then held the office of coroner ('the Coroner'). By an inquisition dated 25 November 1982, the Coroner recorded his finding that Ms James had been murdered by an 'unknown person'.

3 On 1 June 1986, the Coroners Act 1985 ('1985 Act') came into force.[1] It repealed the 1958 Act and provided for some saving and transitional provisions in respect of deaths reported prior to its commencement.[2]

4 On 1 November 2009, the Coroners Act 2008 ('2008 Act') came into force. It repealed the 1985 Act and provided for some saving and transitional provisions.[3]

5 On 5 February 2018, the plaintiff, who is Ms James's son, applied to this Court for a declaration that the State Coroner has jurisdiction under the 2008 Act to set aside findings made under the 1958 Act. In the alternative, the plaintiff sought orders that the findings of the inquest into Ms James's death are void and that 'the State Coroner re-open the inquest'. The application for that alternative relief was said to be made pursuant to s 59 of the 1985 Act, which authorised an application to this Court to review the findings of a coroner.

6 The plaintiff contends that, notwithstanding the repeal of the 1985 Act, s 59 survived the repeal because it conferred a right that is preserved by s 14 of the Interpretation of Legislation Act 1984 ('ILA').

7 That contention is the subject of a separate question that Ginnane J ordered to be tried before the trial of the proceeding.[4] The separate question was framed by his Honour in the following terms:

Whether the Supreme Court of Victoria has jurisdiction to hear and determine the Plaintiff's application under s 59 of the Coroners Act 1985 (Vic) (now repealed)?

8 This matter was heard on the same day as, and immediately following, the matter of Spear v Hallenstein ('Spear').[5] The same issue was raised in Spear and these reasons for judgment should be read with the reasons in that matter.

9 For substantially the same reasons that I gave in my decision in Spear, I would answer the separate question in the negative.

10 It is appropriate to commence by considering the legislative regimes set up by the 1958 Act, the 1985 Act and the 2008 Act.

11 For reasons that will become apparent, it is unnecessary to consider in detail the regime set up by the 1958 Act. It is sufficient to note the following relevant provisions of the Act.

12 Section 4 of the 1958 Act provided for the appointment of coroners and deputy coroners. Section 6 dealt with the jurisdiction of coroners, and relevantly provided that coroners had jurisdiction to hold an inquest concerning the manner of death of any person who had been 'slain'.[6]

13 By s 9(2) of the 1958 Act, a coroner was required to give his decision or finding and certify it by an inquisition in writing that set out, so far as had been proved:

(b) how, when and where the deceased came by his or her death; and

(c) if the deceased came by his or her death by murder or manslaughter, the persons (if any) found to have been guilty of such murder or manslaughter or of being accessories before the fact to such murder.

(1) Where the Supreme Court or a judge upon application made by or under the authority of a law officer is satisfied either -

(a) that a coroner refuses or neglects to hold an inquest which ought to be held; or

(b) where an inquest has been held by a coroner that by reason of fraud rejection of evidence irregularity of proceedings insufficiency of inquiry or for any reason it is necessary or desirable in the interests of justice that another inquest should be held -

the Court or judge -

(i) may order an inquest to be held;

(ii) may if the Court or judge thinks fit order the said coroner to pay such costs of and incidental to the application as seem just; and

(iii) where an inquest has already been held, may quash the inquisition on that inquest.

(2) The Court or judge may order that such inquest shall be held either by the said coroner or by any other coroner; and the coroner ordered to hold the inquest shall for that purpose have the same powers and jurisdiction as and be deemed to be the said coroner.

(3) Upon any such inquest if the case is one of death it shall not be necessary unless the Court or judge otherwise orders to view the body; but save as aforesaid the inquest shall be held in like manner in all respects as any other inquest under this Act.

(4) Such application may be made by motion or summons in the matter of the inquest.

(5) The Supreme Court pursuant to the Supreme Court Act 1958 may make any rules or orders which such Court may consider necessary for carrying the purposes of this section into effect and for regulating the times form and mode of procedure and generally the practice to be observed in the matters to which this section relates.

15 The 1985 Act repealed the 1958 Act and replaced it with a new regime.

16 However, s 5 of the 1985 Act (as enacted) provided that the 1958 Act continued to apply to 'deaths and fires reported to a coroner before the commencement of this section'.

5 Application of Act

(1) The Coroners Act 1958 as in force immediately before the commencement of this section continues to apply to deaths and fires reported to a coroner before the commencement of this section.

(2) Despite sub-section (1), if an inquest has been held or completed by a coroner under the Coroners Act 1958, an application cannot be made under section 10 of that Act for an order quashing the inquisition on that inquest but a person may apply under section 59 of this Act for an order that some or all of the findings of the inquest are void.

(3) Despite sub-section (1), the Supreme Court has jurisdiction under section 59 of this Act in respect of an inquest -

(a) concerning the manner of the death of any person; or

(b) into the cause and origin of any fire -

held under the Coroners Act 1958 and, if the Supreme Court makes an order under section 59(2) of this Act, this Act applies to -

(c) a new inquest; or

(d) the re-opened inquest -

into the death or fire.

18 Other aspects of the regime erected by the 1985 Act, and the replacement of the 1985 Act by the 2008 Act, are described in the reasons in Spear and need not be repeated here.

19 At the outset, I note that the defendant elected not to participate in this proceeding, in accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[7] I took the view that it was unnecessary to seek the assistance of a contradictor given that this matter was heard immediately after Spear, where I had the benefit of submissions from both the plaintiff and the defendants. Senior counsel for Mr James was present in the hearing of the Spear matter and largely adopted the submissions made by the plaintiff in Spear.

20 The plaintiff here submitted that, until 1999, he was entitled to make an application to this Court under s 10 of the 1958 Act by operation of the transitional provision in s 5 of the 1985 Act. The amendment to s 5 in 1999 meant that the plaintiff could no longer bring an application under s 10 of the 1958 Act and was required instead to bring his application under s 59 of the 1985 Act. The question to be determined was whether the plaintiff may bring an application under s 59, notwithstanding the repeal of that provision.

21 The plaintiff relied on s 14 of the ILA in support of his contention that he may bring an application under s 59. Section 14(2)(e) of the ILA provides that where an Act or provision is repealed, the repeal shall not, unless the contrary intention expressly appears, 'affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision.'

22 The plaintiff submitted that, at the time of the repeal of the 1985 Act, he had an accrued right to bring an application under s 59 in respect of the findings made by the Coroner. In this regard, the plaintiff adopted submissions made by the plaintiff in Spear to the effect that:

(a) Section 59 was, in essence, a statutory right of appeal against coronial findings which was substantive rather than procedural in nature.

(b) Section 59 was also an integrity mechanism in furtherance of the coroner's public function. The conditions in which the Court may make an order (as set out in s 59(3)) were each directed to the accuracy, probity or reliability of the coroner's findings. Section 59 thus conferred a substantive right that ensured the proper discharge of the important statutory functions of the coroner.

23 The plaintiff also adopted submissions made by the plaintiff in Spear in relation to the common law principle of construction that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer, impose, or otherwise affect rights or liabilities which the law had defined by reference to past events.[8]

24 Having identified an accrued right within the scope of s 14 of the ILA, the plaintiff submitted that there was no express contrary intention that would displace the prima facie operation of s 14. The plaintiff said that the transitional provisions in the 2008 Act do not deal expressly with the situation where a person could have, but had not, commenced a proceeding under s 59 prior to its repeal.

25 In determining whether there was an express contrary intention, the plaintiff submitted that it is relevant to have regard to the fact that there would be no mechanism available to him to re-open the inquest into Ms James's death if this Court were to conclude that he is unable to bring an application under s 59 of the 1985 Act or s 77 of the 2008 Act.

26 It will be recalled that the plaintiff applied to this Court for a declaration that the State Coroner has jurisdiction under the 2008 Act to set aside the findings or, in the alternative, for orders under s 59 of the 1985 Act. It is this latter, alternative relief that is the subject of the separate question. The question of whether the State Coroner has jurisdiction to consider an application made under s 77 of the 2008 Act is to be determined at a later time.

27 I am unable to distinguish this case from that considered in Spear. Although the inquest was undertaken under the 1958 Act, by reason of the transitional provisions in the 1985 Act, the plaintiff is, for the purposes of the present argument, in materially the same position as the plaintiff in Spear. No submission was advanced to the contrary.

28 For the reasons that I gave in Spear, the making of the findings by the Coroner in relation to the death of Ms James did not create or give rise to an accrued right in favour of the plaintiff which was protected by s 14 of the ILA or by common law principles of construction. The plaintiff, in common with every other person who could have invoked the jurisdiction of the Court, had a right to take advantage of s 59 for so long as the provision remained in force. The plaintiff, again in common with every other person, indubitably lost that ability when pt 7 of the 1985 Act was repealed.

29 If the plaintiff had established a right falling within the protective scope of s 14 of the ILA, it would have been necessary to determine whether the prima facie position had been displaced by a clear contrary intention.

30 Again for the reasons given in Spear, s 59 of the 1985 Act was expressly repealed by s 123(2) of the 2008 Act. The search for contrary intention over and above s 123(2) is unnecessary because the putative accrued right corresponds completely with the scope of s 59. The repeal of s 59 necessarily removed that right.

31 Further, the correct construction of the transitional provisions in the 2008 Act leads irresistibly to the conclusion that s 59 had no continued operation in relation to persons who had not commenced a proceeding under s 59 before the date of repeal.

32 For these reasons, the plaintiff did not have an accrued right or interest that would be preserved by s 14 of the ILA as at the commencement day of the 2008 Act. If I am wrong in that conclusion, any such right was clearly displaced by the contrary intention expressed in the 2008 Act.

33 As in Spear, I would amend the separate question into an interrogative form so as to read: 'Does the Supreme Court of Victoria have jurisdiction to hear and determine the Plaintiff's application under s 59 of the Coroners Act 1985 (now repealed)?' I would answer the question as reformulated in the negative.

34 I will hear the plaintiff on any consequential orders that he seeks in the light of the answer to the separate question.

[1] I note that certain provisions in the Act, namely ss 1-3 and pt 9 (ss 64-74), commenced earlier, on 12 February 1986.

[2] Coroners Act 1985 ss 5, 75.

[3] Coroners Act 2008 s 123, sch 1.

[4] Pursuant to r 47.04(a) of the Supreme Court (General Civil Procedure) Rules 2015.

[5] [2018] VSC 169.

[6] Coroners Act 1958 s 6(1)(a).

[7] [1980] HCA 13; (1980) 144 CLR 13, 35-6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

[8] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).