Plaintiffs v Defendant

Video taped statement recorded by Joseph Korp on Saturday 6 August 2005. In the statement the deceased refers to his intention to commit suicide. Received from Gust Korp on 15 August 2005 under Coroner's Authority.

Diary handwritten by Joseph Korp in which he refers to his intention to commit suicide. Received from Gust Korp on 15 August 2005 under Coroner's Authority.

Diary written on computer by Joseph Korp in which he refers to his intention to commit suicide. Received from Gust Korp on 15 August 2005 under Coroner's Authority."

"24. Access to records

(1) Before the completion of -

(a) an investigation or inquest into a death; or

(b) an investigation or inquest into a fire -

a Coroner's file or any part of it must be made available to such people or class of people as the Coroner directs.

the Coroner's record and file is to be open to public access unless the Coroner orders otherwise."

11 The second plaintiff gave evidence on the application. In an affidavit sworn by her in the present proceeding, she stated that she gave evidence as follows:

"That I was the sister of Joseph Korp and the aunt of Damien Korp. I advised the Court that the reason the police came into possession of the diary which was Item No. 16 of the exhibit list in the Coroner's Brief for Joseph Korp was because I had been given it by Joseph Korp, before he died and after Joseph died I became worried about it and gave the diary to my brother Gust. Gust gave the diary to the police when they came around. I said I had purchased the diary for my brother Joe when he had asked for one. He told me when he gave it to me that it was to be kept for his son Damien if anything happened to him, being Joe. I have only seen a small portion of the diary. I do know that it contains personal matters however written by Joe to Damien. I said that I and the whole family were concerned about the release of the three mentioned exhibits to the press because of the upsets and problems that such documents could cause to us but most particularly to Damien. The diary item 16 specifically ought to be solely for Damien because that was Joe's instruction. I said that I had also seen the video, exhibit 15. I was aware that on the video were very personal messages sent to family members. I was very concerned that personal matters should be released into the community that really had nothing to do with them and was solely related to us personally. I advised the Court that Damien had suffered particularly because of the press that had been received relating to the death of his parents."

12 She went on to state in her affidavit that she was asked about the effect that the proceedings had had on Damien and she stated that "all proceedings had had an enormous effect on Damien. I further advised him (the Coroner) that I was very concerned on the psychological effect on him if the diary that was prepared just for him by his father was released into the public domain."

13 The deponent then went on to state that she was asked whether the video had been offered to the public and she stated that enquiries had been made about its sale, however, "it was now the family's very strong view that it would not be made public." She also stated that she gave evidence, when questioned, that the video contained personal messages to a number of family members, in particular Damien, and that in the video Joe had stated that he was going to commit suicide. She stated that she was asked whether the diary contained personal messages to Damien and she said that although she had flicked through it, and it did contain such messages, she did not know whether the diary stated that Mr Korp was going to commit suicide.

14 At the end of argument, the Coroner then announced his decision. He gave the following reasons:

"Coroner: These applications are always difficult for the Bench. As refusing the application can cause hurt having material publicly aired and I am sympathetic to the family in that respect. However the application that the three items be closed to public access on the grounds of family sensitivity must be weighed against the competing public interest and the proper administration of justice. In balancing those competing interests I am not satisfied that it is appropriate to make the order sought. Accordingly the application to restrict access to Exhibits 15, 16 and 17 of the inquest brief is refused. Having read the material, and there is a significant amount of material in relation to this investigation, I am left in no doubt at all that Joseph Korp's family are caring and certainly decent people and in terms of Damien's future I have no doubt that they will do all they can to endeavour to shield him from the publicity that is going to flow from this inquest finding.

Accordingly the inquest into the death of Joseph William Korp is now closed."

Present Proceeding

15 The present proceeding seeks to review the decision made by the Deputy State Coroner refusing to order, pursuant to Rule 24.1(b) of the Coroners Regulations 1996, that items 15, 16 and 17 of the Exhibit List forming part of his record and file not be available for public access. A solicitor acting for some sections of the media, Renee Lee Enbom, of the firm Corrs Chambers Westgarth, filed an affidavit in which she disagreed with the version given in the affidavit of the second plaintiff sworn 30 June 2006. The sections of the media represented by Corrs Chambers Westgarth and the said solicitor had no right to file the affidavit in the proceeding. I ignore the contents of the affidavit. As things turned out, later events have overtaken the affidavit. After granting leave to the media to intervene, I permitted the filing of another affidavit of Ms Enbom, sworn 11 July 2006, to which were attached as exhibits a transcript of the evidence and argument on the application to suppress access to the three exhibits.

Judicial Review of Coroner's decision

16 The Coroners Act 1985 repealed the Coroners Act 1958. The purpose of the new Act was to establish the Office of State Coroner and to set out the procedures for investigations and inquests by coroners into deaths and fires. Strictly, there is no such body known as the Coroners' Court. The jurisdiction is that of the State Coroner and the Deputy State Coroner. Section 8 empowers the Governor-in-Council to appoint certain persons as coroners. Section 10A authorises the State Coroner to delegate to a coroner any power or duty of the State Coroner.

17 The first question is whether the ancient common law jurisdiction of judicial review that this Court has, extends to judicial review of a coroner's decision made in the course of exercising his or her jurisdiction to investigate a death. Although one refers to the place where the coroner investigates a death as "the Coroners' Court", the fact is that the Act did not establish a Coroners' Court.

18 In Harmsworth v State Coroner,[1] a submission was put on behalf of the State Coroner that he was not amenable to the judicial review jurisdiction of this Court. Nathan J held[2] that in his view, the Coroner was amenable to judicial review. He then observed that it was not relevant that former coroners were also subject to the prerogative jurisdiction of this Court because, as he put it, s.4 removed the application of common law rules. In my respectful opinion, s.4 does not apply to the jurisdiction of this Court. Section 4 states:

"A rule of the common law that, immediately before the commencement of this section, conferred a power or imposed a duty on a coroner or a coroner's court ceases to have effect."

19 The exclusion of the common law rules did not, in my view, affect the common law jurisdiction of this Court to grant a prerogative-type writ. The office of coroner goes back in English law for hundreds of years. And from time to time, the place where a coroner carried out an inquest was described as the Coroners' Court. The purposes of the Coroners Act 1985 are set out in s.1. Section 4 lends support for an argument that the new Act is a code. However, in my view, it does not mean that common law rules relating to coroners may not have some effect. What is excluded is a rule of the common law that confers a power or imposes a duty on a coroner. They are to cease to have effect. In The Herald & Weekly Times Limited v The Attorney-General and Ors,[3] Fullagar J held that s.4 did not prevent the application of some common law rules. He referred to s.4 at p.96 and then went on to observe:

"But, in my opinion, that does not mean that the new Code is prevented from creating, by the application of common law rules of construction of the Code, an obligation upon the coroner to observe one or more rules of natural justice."

20 In R v Registrar-General Ex parte Lange,[4] Fullagar J considered the question of whether the common law jurisdiction to review a decision of an inferior body was available to quash an inquisition after a coroner's inquest. His Honour held that the common law jurisdiction applied to a coroner's inquest and that findings made could be quashed. However, in the end result, his Honour, in the exercise of his discretion, refused to quash a finding made by a coroner many years prior to the application to this Court. He did so because in his view, a new enquiry would be impracticable and the applicant for certiorari had nothing to gain by the quashing of the inquisition. His decision was reversed on appeal, after the Full Court admitted evidence which showed that a new inquiry was practicable. See Lange v Registrar-General of the State of Victoria. [5] Fullagar J, after an exhaustive consideration of the cases concerning coroners in this State and elsewhere, stated:[6]

"But I am of the opinion that the essential nature of 'an' inquisition' is such as to make or leave certiorari an available remedy alike in the case of a coroner's inquest and in the case of a 'magisterial inquiry'. It may be conceded that in neither case is judicial power in the strict sense exercised. But, while the legal significance of an inquest has become less, the scope of certiorari - and of prohibition too - has been greatly enlarged. See per Jordan CJ in Ex parte Mullen; re Hood [1935] 35 SR (NSW) 290 at pp.294 et seq and per Dixon J in R v Commissioners of Patents; ex parte Weiss [1939] HCA 7; [1939] 61 CLR 240 at 258-9. Dixon J observed:

'No distinction appears to have been drawn between the kind of tribunal to which certiorari will go and that to which prohibition lies'."

"Alike in the case of a coroner's inquest in the case of a magisterial inquiry what is produced is, in form and in substance, a finding, a decision. The finding or decision is the result of a process of inquiry, which involves the taking of evidence on oath, and which must, one would think, be conducted with due regard to certain essential requirements of justice. The finding or decision, though it may carry no immediate legal consequences, may directly and profoundly affect the interest of persons. Where these conditions exist, I think that certiorari is available remedy wherever there has been a failure to observe or perform what the common law requires to be observed or performed."

(Emphasis added.)

22 The Full Court, after noting that Fullagar J was of the opinion that the finding made by the Coroner failed to distinguish between a felonious and an innocent suicide, and was a ground for quashing the finding, then said:[7]

"We agree. In our opinion the uncertainty and ambiguity of a finding in this case are clearly a good ground for certiorari to issue for the quashing of the finding, and indeed no attempt was made before us to contest this - see, in addition to the authorities cited by his Honour, In Re Harley (1892) 13 ALT 160 and R v Nat Bell Liquors Ltd [1922] 2 AC 128."

23 Section 59 of the Act deals with applications to this Court for an order that some or all of the findings of an inquest are void, but in my view, this section does not exclude the common law jurisdiction of this Court to review a decision made. In Annetts v McCann,[8] the High Court considered whether the principles of natural justice applied to a coronial inquest. The Court was dealing with a coronial inquest held pursuant to the Coroners Act 1920 of Western Australia. Section 24 provided for the attendance at an inquest of persons interested in the subject or the result of the inquest. It has a degree of similarity with s.45 of the Victorian Act. It was held that the principles of natural justice applied to a coronial inquest. Once it is accepted that the principles of natural justice apply to a coronial inquest, then it follows that findings made are subject to the common law jurisdiction of this Court. There is nothing in s.4 that excludes that jurisdiction. In my opinion, it is clear on the authorities that the common law jurisdiction of this Court to review decisions made by inferior statutory bodies extends to coronial inquests. In the present application, nobody argued to the contrary.

24 The decision under review is the decision made by the Deputy State Coroner in determining an application made to him pursuant to Regulation 24 of the Coroner's Regulations 1996.

25 The application made by counsel on behalf of the plaintiffs to the Deputy State Coroner, was that he should order that items 15, 16 and 17 in his record and file be not available to public access. Regulation 24(2)(a) prescribes the rule that is to be applied after the completion of the inquest. The rule is that the Coroner's record and file are to be open to public access. However, a discretion is given to the Coroner to order otherwise. Application was made to the Coroner to exercise his discretion and he determined that he would not exercise his discretion in favour of the application.

Judicial Review - Principles

26 The common law jurisdiction of this Court to review decisions and orders of a coroner is subject to the procedures set out in Order 56 of the Rules of Court. The jurisdiction of the Court to review decisions and orders of inferior courts, tribunals and persons such as a coroner, is limited.

27 The principles that this Court applies in a judicial review are well established and I have discussed them in a number of cases. I refer to the case of Mr and Mrs X v The Secretary to the Department of Human Services and Anor,[9] where the principles are discussed in relation to a judicial review of a County Court order. It is unnecessary for me to repeat the principles. However, there are a number of matters that must be emphasised.

28 In my opinion, there is no doubt that the common law jurisdiction of this Court enables it to review decisions of a statutory body, such as the jurisdiction exercised by the Deputy State Coroner pursuant to the Coroners Act 1985. However, the jurisdiction is limited. It is supervisory and does not entitle this Court to canvass matters that it would on an appeal. The jurisdiction is different to an appeal. An appeal is the creature of statute. See Fox v Percy.[10] On the other hand, the judicial review jurisdiction is a creature of the common law.

29 The present application is concerned with jurisdiction and the legality of what was done by the Deputy State Coroner, and is not concerned with the merits of the decision under review. In particular, it is not concerned with whether the decision was fair or correct.

30 Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of this Court to make prerogative writ-type orders. Those rules do not affect the common law jurisdiction of this Court. Further, this Court does have jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

31 The scope of the jurisdiction was discussed by the High Court in Craig v South Australia.[11] The High Court[12] identified the most important and well-established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud, and error of law on the face of the record. When exercising this limited jurisdiction, this Court is not entitled to examine whether in fact the Coroner made the right decision, or whether it is fair or reasonable, but is concerned instead with ensuring that he acted within jurisdiction and that in performing his decision making process, he complied with the law.

32 The Deputy State Coroner, when exercising his jurisdiction, is not exercising his jurisdiction as a judicial officer in a court of law. He is exercising a jurisdiction which is given to him by the Act. As such, the Deputy State Coroner was exercising jurisdiction as a statutory tribunal in accordance with the jurisdiction given him by the Coroners Act 1985. In Craig's case, the High Court drew a distinction between the grounds of judicial review of a statutory tribunal's decision, and review of an inferior court's decision.

33 The High Court pointed out that as a general proposition, an administrative tribunal lacked authority to "authoritatively determine questions of law or to make an order or a decision otherwise than in accordance with the law". However, the Legislature may confer powers upon an administrative body to decide questions of law as well as questions of fact. Reference was made to what Lord Diplock said in In re Racal Communications Ltd.[13] Having stated that, the Court then went on to identify examples of error on the part of an administration body. The Court said:

"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

(Emphasis added).

34 It is noted that proof of one of the matters referred to by the High Court on its own is not sufficient, and that it must be established that if the tribunal did, or omitted to do, one of the matters identified, it was necessary to go on to establish that the tribunal's exercise or purported exercise was thereby affected. Hence, it is necessary to prove one of the matters identified and secondly, that the exercise or purported exercise of power was affected as a result. The Court held that in those circumstances, such an error of law was a jurisdictional error.[14]

35 There is little doubt that under the Coroners Act, the Deputy State Coroner does have power to make findings of fact and of administrative policy.

36 Sometimes, there is controversy about what constitutes a record, in cases where certiorari is sought to quash an order on the ground of error on the face of the record. As a general proposition, what constitutes a record of an inferior court is the initiating document, pleadings if any, and the record of the Court evidencing the outcome. So far as an administrative tribunal is concerned, normally there are no pleadings, although there may be an initiating document for the purposes of the exercise of the power or jurisdiction, and there may be a record evidencing the outcome of an administrative inquiry.

37 By reason of s.10 of the Administrative Law Act 1974, in certain circumstances the reasons for a decision form part of a record. See Thompson v Judge Byrne[15] and RSL v Liquor Licensing Commission.[16] In addition, a record may be expanded to include the transcript of a proceeding, if in fact it is incorporated into the record by reference in the decision.[17] There is no suggestion in the present matter that the transcript has been incorporated into the decision of the Deputy Coroner.

38 Further, the parties can by agreement expand the record. See R v Northumberland Compensation Appeal Tribunal Ex parte Shaw per Denning LJ.[18] However, that did not occur in this proceeding.

39 Mr Gilbertson of counsel, who appeared on behalf of the media, submitted that the record for the purpose of the present review does not include the Coroner's reasons for his decision. He submitted that the Coroner was not a "court" or "tribunal" so as to attract the operation of s.10 of the Administrative Law Act 1978. He referred to the doubts expressed by Fullagar J in The Herald & Weekly Times Ltd v Attorney-General.[19] In my view, what his Honour said does not foreclose argument as to whether s.10 applies to a decision made by a coroner.

40 Section 10 provides:

"10. Reasons to be part of record

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under s.8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record."

41 Are the reasons given by the Deputy State Coroner part of the record by reason of s.10? Three issues arise for consideration and determination. First, what is the effect of s.10, if interpreted on the basis of the definitions of "tribunal" and "decision" in s.2 of the Act? Secondly, is s.10 a stand-alone provision so that it is not confined by the definition of "decision" in s.2? Thirdly, does s.10 result in the reasons given by the Deputy State Coroner being part of the record?

42 Section 2 of the said Act is the definition section and it provides, inter alia:

"In this Act unless the context or subject-matter otherwise requires -

'decision' means a decision operating in law to determine a question affecting the rights of any person ... ;

' tribunal' means a person or a body of persons (not being a court of law or a tribunal constituted or presided over by a judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice."

43 Fullagar J held in The Herald & Weekly Times Ltd case that the Administrative Law Act did not apply to a suppression order made by a coroner, because it was not "a decision operating in law to determine a question affecting the rights of a person" within the meaning of the definition of decision in s.2 of the Act.

44 In my opinion, a coroner is obliged to act in a judicial manner and, in my view, is bound to observe both rules of natural justice. Fullagar J expressed the same views in The Herald & Weekly Times Ltd case.[20] The Coroner is bound to give an opportunity to those who may be affected by his decision and, further, the Coroner must be impartial in performing his jurisdiction. The reasoning of Fullagar J, in my view, is supported by the High Court decision of Annetts v McCann, supra.

45 Turning to the definition of "decision", if the definition is applied to s.10 but more particularly the definition of "tribunal" in s.2, then it is arguable that the decision made did not operate in law to determine a question affecting the rights of any person. That was the view expressed by Fullagar J in The Herald & Weekly Times Ltd case in relation to a suppression order. On the other hand, it would be arguable that the decision made operated in law and determined a question affecting rights, namely, the rights of the relatives to privacy and confidentiality. Hence, in my opinion, it is arguable that strictly applying the definitions in s.2 to s.10, the latter operated to make the decisions of the Deputy State Coroner part of his record.

46 The second issue concerns whether s.10 is a stand-alone provision. In my opinion, it is. I say that because it covers statements made by a body wider than the definition of tribunal. "Tribunal" is not a court of law, yet s.10 refers to "any statement by ... inferior court". The Administrative Law Act 1978 is concerned with a tribunal decision being reviewed, and not a decision of a court. In my opinion, there is evidence of a legislative intent that s.10 covers something more than a statement by a tribunal restricted by the definition of "decision" in s.2. Accordingly, s.2, which makes the definitions subject to "the context or subject matter", permits effect being given to the legislative intention expressed in s.10. In my opinion, s.10 is not confined to "a decision" as defined by s.2, but covers any decision.

47 I answer the third issue that because of s.10, the Coroner's reasons do form part of the record for the purposes of the review in this Court.

48 If an order is sought in a judicial review proceeding on the basis that there is an error on the face of the record, then the Court is obliged to confine itself to the record. On the other hand, if the judicial review seeks to attack the decision on the ground of want of jurisdiction, then the Court may consider all the evidence before it, in order to determine whether or not there has been jurisdictional error.

49 The advantage of a ground that there is an error on the face of the record is that the plaintiff does not have to prove jurisdictional error. The point is made by Professor Wade in Administrative Law,[21] where the learned author said:

"A decision which is erroneous on its face, perhaps because it reveals some misinterpretation of the law, can be quashed even on the assumption that it is within jurisdiction and therefore involves no excess of power."

50 The error must be an error of law which is apparent on the face of the record. In addition, it must be fundamental to the decision. But as Lord Denning has said, the Court will decline to intervene in the absence of "a real error of law", meaning something more than a borderline question.[22]

51 As the law progresses and recognises more grounds for interfering with a tribunal's decision, the benefit of seeking judicial review for an error of law on the face of the record diminishes. But its benefit, as I have stated, is that the inquiry is not confined to proving a jurisdictional error. The error can be any error of law.

Grounds of Review

52 Rule 56.01(4) of the Rules of Court requires that the grounds upon which relief is sought must be specified in the originating motion, and that where any mistake is made in any order or other proceeding, the ground shall specify the mistake. The originating motion sets out 11 grounds upon which the relief was sought. The plaintiffs sought an order that the decision by the Deputy State Coroner concerning exhibit items numbered 15, 16 and 17 be quashed. The plaintiffs are in effect seeking an order that the Deputy State Coroner exercise his discretion in their favour under the regulation, and preclude public access to items 15, 16 and 17. The plaintiffs also seek an order that the said items not be published. Reference to the grounds shows that the plaintiffs seek to rely upon s.58 of the Coroners Act 1985. Reference to the transcript of the application and the evidence given by the second plaintiff, and also the reasons given by the Coroner for refusing to exercise his discretion in favour of the plaintiffs' application, shows that at no stage was application made pursuant to s.58 of the Act. Section 58 of the Act is dealing with a matter entirely different to the application made in respect of the regulations. Section 58 is concerned with suppressing publication of a matter. Regulation 24 is concerned with the Coroner's record and file being open to public access.

53 Section 58(1) provides -

"58. Restriction on publication of reports

(1) A coroner must order that no report of an inquest or of any report of the proceedings or of any evidence given at an inquest be published if the coroner believes that it would -

(a) be likely to prejudice the fair trial of a person; or

(b) be contrary to the public interest."

54 I have set out the terms of Regulation 24 above - see paragraph 10. It is apparent that each statutory provision is dealing with a separate matter.

55 Mr Marshall of counsel, who appeared for the plaintiffs, was unable to point to anything in the material which indicated that he had applied to the Deputy State Coroner for an order under s.58 of the Act. In my opinion, it is not open on this judicial review to seek an order under s.58 of the Act. The jurisdiction on a judicial review is limited. It is concerned with a decision or an omission to make a decision. The question is whether the Deputy State Coroner exercised his jurisdiction and, if he did, whether he exercised his jurisdiction in accordance with the law or whether there was an error on the face of the record. It is not an appeal. It is not open to a party on a judicial review to make a different application or to call further evidence. This Court is concerned with the decision-making process of the Deputy State Coroner. The decision was made on application by counsel for the relatives to exercise his discretion under Regulation 24(1)(a). He refused to do so. That is the decision the subject of the review.

56 Mr Marshall submitted that, nevertheless, grounds 3, 4(a) and (b), 6, 7, 8 and 9 raised the issues which were relevant to the review.

57 Before turning to the specific grounds relied upon, it is necessary to state the purpose of Regulation 24(2)(a). It states the general rule. That is, that after the completion of an investigation or inquest into a death, the Coroner's record and file are to be open to the public. The raison d'être for the rule is no doubt the general rule that applies to courts of justice, namely, that justice must be administered in public and subject to public scrutiny. The rule is, of course, subject to any statutory exception. For an example, see ss.47 and 58 of the Act. A number of authorities were placed before the Court as to the general statement concerning open justice and access to it. It is unnecessary for the Court to refer to those principles. The fact is that the regulations provide the prima facie rule, and that is that the Coroner's record and file are to be open to the public. The Coroner is given a power to order otherwise.

58 The next question is to consider whether or not there is any error disclosed on the face of the record? There is nothing on the face of the reasons given by the Coroner to establish that there was any error on the face of the record. Mr Marshall sought to argue that it is apparent from what the Coroner said that he failed to take into account all matters, but in my view, there is nothing to suggest that on the face of the record he did not carefully weigh all relevant matters.

59 That is not to say, however, that he did in fact take into account all relevant matters or that he did not take into account any irrelevant matters which may have affected his exercise of jurisdiction. Accordingly, it is open to the plaintiffs to refer to the whole of the evidence before this Court to demonstrate that there was a jurisdictional error.

60 The evidence before the Court shows that evidence was given by the second plaintiff at the inquest, and that has been referred to. Further, the submissions of counsel raising matters that the Coroner should take into account and submitting that in so doing, he should conclude that public access should not be available to items 15, 16 and 17, were before the Court, as were the reasons.

61 I now turn to ground 3, which states:

"3. There was no reasonable basis for concluding that some general concept of public interest and/or proper administration of justice overrode the public interest in the protection of privacy, including:

(a) the rights of individuals to privacy;

(b) the protection of individuals from the publication of material which would not otherwise have entered the public domain;

(c) the rights of third parties to privacy."

62 In my opinion, this ground is misconceived. There is no doubt that the general rule was that the Coroner's record and file were to be open to public access. It is incumbent upon any person seeking an order to the contrary, to place material before the Deputy State Coroner and persuade him that in the exercise of his discretion he ought not to open to public access the items in question. The question of privacy was a matter for consideration. It was raised by counsel for the relatives. In my view, it is clear that the Coroner took that matter into account. It was a question for him to balance the competing interests, which he did. He made the decision. There was a basis for his decision. This Court is not concerned with whether the decision was reasonable. There is no evidence of jurisdictional error.

63 Grounds 4(a) and (b) assert that the Coroner failed to give reasons, or adequate reasons, specifying what, if any, public interest was served by the publication and, secondly, what, if any, element of the proper administration of justice was served by the publication of the evidence. In my view, his reasons were adequate. Reasons have to be considered in context. It is clear, when reference is made to the evidence called and the submissions made, that the Deputy State Coroner did identify what was in the public interest. That is found in the prima facie rule established by the regulations. Further, these grounds seem to proceed on the basis that there would be publication of the evidence. The regulation allows the record and file to be open to public access. Publication is another matter. That is dealt with by s.58. Accordingly, these grounds fail.

64 Ground 6 complains that the Coroner authorised the release of the entire coronial record and file "without distinguishing the irrelevant, remote, personal and private matters or parts which would be contrary to the public interest to release or publish." Again, this ground seems to be misconceived. The prima facie rule required under the regulation is that the Coroner's record and file are to be open to public access. It was not a question of considering each item. The prima facie rule applies unless the Coroner orders otherwise. Application was made that he should exclude public access to items 15, 16 and 17. He carefully considered the competing interests. This ground also fails.

65 Ground 7 also, in my opinion, misconceives the Coroner's position. It was stated that the Coroner in "adopting a rule of open justice inherited from common law courts, described by him as the competing public interest and the proper administration of justice, applied a rule imposing a duty upon himself which had ceased by virtue of s.4 of the Act." Section 4 excludes a rule of the common law that confers a power and imposes a duty on a coroner. But the Coroner was dealing with the application of Regulation 24(2)(a) and was not exercising any power or duty excluded by s.4. The reason for the prima facie rule is obvious. That is, to enable the public to have access to the file in order to see that the Deputy State Coroner has properly carried out his jurisdiction under the Act, and to enable the public to fully understand the exercise of that jurisdiction. This ground also fails.

66 Ground 8 asserts that the Coroner gave no reasons, or no proper reasons, for his failure to reasonably believe that withholding publication would be contrary to the public interest. If one analyses what the Coroner said, again in the context of the evidence given and the submissions made, he first of all pointed out that the applications are difficult for the Bench and he appreciated that refusing the application could cause hurt in having material publicly aired. He also stated that he is sympathetic to the family in that respect. He, in my view, properly considered the competing arguments, namely, the question of what he said was "family sensitivity", which would embrace questions of privacy and confidentiality and possible hurt to family members, as against the clear object of the sub-regulation. It was a balancing exercise. In my view, it is clear from what he said in context that he carefully considered the competing interests. His reasons were adequate when considered in context. It cannot be overlooked that the Deputy State Coroner is a very experienced coroner in this State.

67 In ground 9 it is asserted that "if there is a public interest in open justice at a coronial inquest that does not necessarily extend to", and then reference is made to all evidence, parts of all evidence, irrelevant evidence, personal matters and the like. It is said that the Coroner failed to direct his attention adequately at all to those matters and those parts of the record and file containing them. This ground is far too wide and is misconceived. What the Deputy State Coroner was dealing with was the application to exclude from public access items 15, 16 and 17. Evidence was given in relation to those items. Submissions were made in relation to those items. It is not a question of considering all evidence or parts thereof. He was obliged to consider the terms of the sub-regulation, the fact that the sub-regulation provided the prima facie rule, and he then had to consider whether there were grounds excluding the application of the prima facie rule. In my opinion, it was not a question of him directing his attention to all evidence or parts of evidence, or to what was irrelevant or what was not irrelevant, or to particular personal matters. What he was obliged to do was to balance the interests of the public, as recognised in the regulation itself, and the evidence and the competing submissions as to why that rule should not apply. This ground also fails.

68 Finally, the real thrust of Mr Marshall's submission was that when one looks at the reasons given, one could not conclude that the Deputy State Coroner took into account all relevant matters. Mr Marshall submitted that he did not refer to all the matters that had been raised in the course of the evidence and submissions. However, in my opinion, when the Coroner described the grounds of opposition as being "on the grounds of family sensitivity", he was, in my view, in a shorthand way summarising the matters that had already been raised before him in the submissions which preceded his decision. It cannot be said that he did not take into account all relevant matters that were placed before him. In my opinion, there is no basis for saying that he erred in the exercise of his jurisdiction. His decision followed immediately after hearing the evidence and submissions. All matters would have been present in his mind when balancing the interests of the public and the relatives.

69 No jurisdictional error has been established. It follows that the originating motion must be dismissed.

70 Subject to submissions by counsel, I propose to make the following order:

[1] [1989] VicRp 87; [1989] VR 989.

[2] At p.994.

[3] [1991] VicRp 9; [1991] 1 VR 95.

[4] [1950] VicLawRp 12; [1950] VLR 45.

[5] [1950} VLR 407.

[6] At p.51.

[7] At p.308.

[8] [1990] HCA 57; (1990) 170 CLR 596.

[9] [2003] VSC 140.

[10] [2003] HCA 22; (2003) 214 CLR 118.

[11] [1995] HCA 58; (1994) 184 CLR 163.

[12] At p.176.

[13] [1980] UKHL 5; [1981] AC 374 at 383.

[14] See RSL v Liquor Licensing Commission [1999] VSCA 37; [1999] 2 VR 203 at 210.

[15] [1998] 2 VR 274 at 280.

[16] [1999] VSCA 37; [1999] 2 VR 203 at 209.

[17] See Craig's case, supra at pp.181-2.

[18] [1951] EWCA Civ 1; [1952] 1 KB 338 at 352-3.

[19] [1991] VR95 at 99.

[20] See, supra at pp.96-7.

[21] 6th ed. at p.45.

[22] See R v Industrial Injuries Commissioner Ex parte, Amalgamated Engineering Union (No. 2) [1966] 2 QB 31.