Rouf v Johnstone [1999] VSCA 226

Court of Appeal (Vic)|1999-12-14|Before: WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

Coroners - Application to Supreme Court for order that an inquest be held - Circumstances in which such an application can be made and entertained following amendments made to s.18 Coroners Act 1985 by Coroners (Amendment) Act 1999.

Both the application to her Honour and the appeal to this Court have been characterised by urgency apparently dictated by the appellant's desire to make arrangements for an exhumation of the body of the deceased which is now interred in Bangladesh. It is conceded that there is no power in the Coroner to order such an exhumation.

The urgency which governed the bringing of the appeal has led the respondent to submit, without filing a notice of contention, that the appellant had no right to make the application which he did to the Supreme Court and that there was no power in her Honour to entertain it. The Court has, accordingly, entertained the submission made by counsel, and Mr Finkelstein, who appears for the appellant, concedes that it is appropriate for it to do so.

The submission made by the respondent is based on amendments which have recently been made to s.18 of the Coroners Act and which have been affected by the Coroners (Amendment) Act 1999, which came into force on 1 July 1999 and which governed the application to the Court.

It is, to say the least, surprising that these amendments and their purport and effect were not brought to her Honour's attention upon the hearing before her. I note that counsel who appeared for the Coroner below was not counsel who appeared before us.

The effect of the amendments to sub-s.(2) of s.18 is to substantially limit applications on motion to the Supreme Court in respect of all relevant deaths occurring after 1 July 1999. The death with which her Honour was concerned was such a death. Section 18(1) invests the Coroner with a discretion to hold or refuse to hold an inquest into a death upon the request of interested persons. Before the amendments to which I have referred, the Coroner was bound, if he refused the request, to give written reasons for that refusal within seven days. In those circumstances the interested person had a further seven days to apply to the Supreme Court for an order that an inquest be held. By dint of the amendments which took effect in July, the Coroner is no longer bound to give reasons for refusal within seven days after that refusal but can do so "within a reasonable time". And, perhaps more significantly, the power of the person interested to approach the court is only exercisable if, after the expiry of three months from the date of the request to hold an inquest, the Coroner has neither agreed to the request nor refused it and given reasons for the refusal: see s.18(2).

This means, as I see it, that if, in respect of a death which has occurred after 1 July of this year, a person has asked the Coroner to hold an inquest and the Coroner has refused the request and given reasons within the period, the person interested has no longer the right to approach the Supreme Court pursuant to s.18(2). Whatever right exists in those circumstances must be exercised, if it can be, independently of s.18, presumably by way of review. That these amendments were designed to curtail the right of persons interested in the Coroner's refusal to hold an inquest is to some extent made clear by the relevant Minister's remarks in introducing the Bill containing the amendments: see Hansard, 5 May 1999, at p.444. On any view, however, it is now clear from the section itself that there is no longer any right to ask the Court to review a Coroner's refusal made expeditiously. Her Honour was asked to exercise her power under s.18(3) on the assumption that the Coroner had refused the request for an inquest made by the appellant. If that assumption was correct - and there is some doubt about it - there was no right in the appellant to approach the Court under the amended s.18(2) because the refusal and the reasons for it had been made and given within the period of three months after the request. If it was correct to assume that an inquest had in fact been requested - and there is some doubt, too, about that - and there had been no grant or refusal of it, there was still no right to approach her Honour because, at the time when the application was made, three months had not elapsed since the date of the request. In either circumstance the approach to her Honour was misconceived and, on any view, and through no fault of hers, she was asked to exercise a power which the legislation did not give to the Court.

The submission made by the respondent must therefore be upheld and the appeal to this Court must be accordingly dismissed.

I say only this, that if hereafter any approach is made to the Court pursuant to any fresh request made to a Coroner to hold an inquest, or if it is believed that a request has been made and an approach to the Court is made, on the ground that no grant or refusal of it has been made or given within three months, the application to the Court should be made on notice to those persons who are most affected by it. Those persons appear to me to be the persons who effectively have been accused by the appellant of being implicated in the death of the deceased.

Gentlemen, it seems to us that this matter should have been brought to the attention of her Honour by those representing the Coroner. Mr Langmead, it would be wrong in those circumstances, I think, for any order for costs to be made unless you can persuade us otherwise.

No, Your Honour, I cannot gainsay that proposition that it should have been brought at an earlier stage. I was certainly instructed to make an application for costs, but in light of that indication and the reasons for it, no such application is made.

The appeal will be dismissed without any order for costs.

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