Trotta v The Coroners Court of Victoria & Anor [2022] VSC 70

1 On 12 January 2021, the Appellant filed a Notice of Appeal in this Court pursuant to ss 82 and 87A of the Coroners Act 2008 (Vic) ('Coroners Act') seeking to appeal a decision of the Coroners Court of Victoria ('Coroners Court') not to hold an inquest into the death of his father ('Appeal').

2 This decision concerns an application by summons filed by the Second Respondent to this proceeding, Northern Health, on 25 October 2021 ('Application') to summarily dismiss the Appeal pursuant to r 58.39(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules').[1]

3 In support of the Application, the Second Respondent relies upon the affidavit of Richard Laufer affirmed 12 November 2021 ('Laufer Affidavit') and the exhibits thereto, and its written submissions of the same date. The First Respondent, who has adopted a position in this proceeding consistent with the principles set out in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman,[2] has filed the affidavit of Ingrid Giles affirmed 13 August 2021 ('Giles Affidavit') and the exhibits thereto, as well as its written submissions dated 10 December 2021.

4 In opposition to the Application, the Appellant relies upon the sworn affidavits of Joseph Trotta dated 13 January 2021 and 2 December 2021, the unsworn affidavit of Joseph Trotta dated 27 May 2021 and the exhibits to those affidavits. The Appellant also relies on his written submissions filed 6 December 2021.

5 I have had regard to all of the material filed by the parties in this proceeding. I note here also that the First Respondent has limited its submissions to matters concerning the practice and procedure of the Coroners Court and the scheme of the Coroners Act and - in a manner consistent with the Hardiman position it has adopted - has not made any submissions relating to the merits of the Appeal or the Application.

6 Throughout the course of this proceeding the Appellant has displayed a tendency to send lengthy and tendentious correspondence and other material to my Chambers, without having leave to do so. A multiplicity of persons have at times been copied into the correspondence, many of whom are unconnected to this proceeding. This has occurred despite the Appellant previously receiving assistance from the Court's Self‑Represented Litigant Coordinator for filing material in this proceeding and clearly being aware of the Court's processes for the proper filing of material.[3] I am mindful of the principles applying where parties are self-represented, as recently summarised by Derham AsJ in Daher v Bell,[4] and I have followed those principles here. I do not think that these principles require me to take into account the Appellant's material that has not been properly filed in the proceeding. Further, this method of corresponding with the Court is not to be encouraged. In any event, from a cursory perusal of it, such material would not have made a difference to the outcome here. Naturally, I have taken the Appellant's affidavits (and exhibits) and his submissions into account, along with those filed by the First and Second Respondents.

7 Pursuant to the parties' request, on 28 October 2021 Judicial Registrar Keith ordered that the Application be determined on the papers subsequent to the filing of any written material. Those materials having been filed in accordance with the orders, the matters raised by the Application now fall for determination.

8 For the reasons which follow, the Second Respondent's application for summary dismissal is allowed. It follows that this proceeding must be dismissed.

9 On 25 October 2019, Mr Elino Trotta ('Deceased') was admitted to Northern Hospital with community acquired pneumonia. The Deceased's illness occurred in the context of an unwitnessed fall at his home, where he lived with the Appellant. The Deceased later presented at Northern Health as short of breath and hypoxic.[5]

10 At the time of the Deceased's admission to Northern Health, he was 99 years of age and had a number of substantial co-morbidities, including chronic kidney disease, peripheral vascular disease, scoliosis, osteoporosis, prostatic hypertrophy, hypertension and ischaemic heart disease.[6]

11 On 27 October 2019, during his admission, the Deceased entered cardiorespiratory arrest and subsequently died.

12 On the same day, a death certificate was caused to be issued by Dr Duong, an employee of the Second Respondent, on the basis that the Deceased's death was deemed not to be reportable.[7]

14 Two days later, on 29 October 2019, the Appellant sent an email to the First Respondent requesting that his father's death be investigated. This request was predicated on, inter alia, the non-performance of cardiopulmonary resuscitation ('CPR') on his father on 27 October 2019 in circumstances where there was an Advanced Care Directive indicating a wish for all resuscitative efforts to be deployed.[8] In accordance with the Appellant's request, the Deceased's body was transported to the Coroners Court to ascertain whether or not the death was reportable. An autopsy was performed on the Deceased's body, and the cause of death was determined to be 'bronchopneumonia and ischaemic heart disease in a man with lung carcinoma'.[9]

15 On 25 December 2019, the Appellant sent the first of a series of complaints to the Human Rights Commission ('Commission') about the conduct of the Second Respondent and its staff.[10]

16 On 30 January 2020, the Appellant filed a request under s 52(5) of the Coroners Act that the Coroners Court conduct an inquest into the death of his father ('Request'). The Request made the following allegations in relation to the Second Respondent and its staff:

I suspect homicide and no one has been charged in relation to the death. Witnesses need to give evidence of the circumstances of the death. Unlawful involuntary Euthanasia was secretly perpetrated by Dr Vera, Dr Cindy, Dr Victor Duong, Dr Sian Brooker, and boxer Dr Rusheesh. Not natural death. Doctors refused to comply 'Advanced Care Plan and OVIC decision. Circumstances around death are unclear with threats to kill made by Dr Vera & Dr Cindy and protests against the elderly. Ageism. Issues of Public safety for elderly. There is no public confidence in Northern Health.[11]

17 On 16 October 2020, Coroner Leveasque Peterson ('Coroner') decided not to hold an inquest in respect of the Deceased's death ('Decision') and provided a written record (including reasons) for her Decision ('Reasons'). The Coroner referred to having sought the advice of the Coroners Prevention Unit's Health and Medical Investigation Team ('CPU'), which found that the Deceased was admitted, investigated, treated and managed in a timely and appropriate manner, the Coroner concluded that 'the medical care and management [of the Deceased] was appropriate in the circumstances' and that 'there is no evidence of criminal conduct on the part of the treating personnel that had responsibility for the care and management of [the Deceased]'.[12]

18 In her Reasons the Coroner individually addressed each of the allegations and found that they were unsupported by the evidence. The Coroner concluded that there existed no 'circumstances surrounding the death of [the Deceased] that are unclear to me or which require further examination in an inquest'.[13]

19 On 7 December 2020, the President of the Commission, by her delegate, made a decision to terminate the Appellant's complaints made to the Commission on 25 December 2019.[14]

20 As I mentioned above, on 12 January 2021 the Appellant brought this Application seeking to appeal the Coroner's Decision pursuant to ss 82 and 87A of the Coroners Act.

21 On 9 February 2021, the Appellant commenced proceedings in the Federal Court of Australia seeking leave to commence proceedings pursuant to s 46PO(3A)(a) of the Australian Human Rights Commissions Act 1986 (Cth) in connection with the complaints made by the Appellant to the Commission ('Federal Court Proceeding').[15]

22 On 24 June 2021, Kerr J declined to grant leave to the Appellant and, in turn, dismissed the Federal Court Proceeding.

23 On 30 July 2021, the Second Respondent was joined to this proceeding.

24 As best as I can ascertain, the principles applicable to this Application are not in contest.

25 As I mentioned earlier, the application before me is the Second Respondent's application for summary dismissal, which has been made pursuant to r 58.39 of the Rules. Given the nature of the Appeal itself, the decision which the Appeal is seeking to challenge, and the grounds on which the Second Respondent is relying in its Application, I consider it necessary at the outset to set out the relevant provisions of the Coroners Act.

26 First and foremost, the purpose of the Coroners Act, as set out in s 1, includes requiring the reporting of certain deaths; providing for coroners to investigate deaths and fires in specified circumstances; and contributing to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners.

27 Parliament provided guidance for the administration and interpretation of the Coroners Act by stipulating a number of objects in Part 2. More specifically, when exercising a function under the Coroners Act, it is necessary for a person to have regard, as far as possible in the circumstances, to a number of matters, including:

(b) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;

...

(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;

...

(e) that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;

(f) the desirability of promoting public health and safety and the administration of justice.[16]

28 Section 9 of the Coroners Act provides that the coronial system should act in a fair and efficient manner.

29 An 'inquest' is defined in s 3 of the Coroners Act as 'a public inquiry that is held by the Coroners Court in respect of a death or fire'. The term 'reportable deaths' is defined in s 4, which definition includes:

(2) For the purposes of subsection (1), the deaths are -

(a) a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury; or

(b) a death that occurs -

(i) during a medical procedure; or

(ii) following a medical procedure where the death is or may be causally related to the medical procedure -

and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death; or ...

30 The question of whether an inquest is held into a death is governed by s 52 of the Coroners Act. That provision provides that a coroner may decide to hold an inquest into any death that the coroner is investigating,[17] and sets out the circumstances in which a coroner must hold an inquest. These mandatory circumstances are where the death or cause of death occurred in Victoria and the coroner suspects the death was the result of homicide; the deceased was, immediately before death, a person placed in custody or care; the identity of the deceased is unknown; or the death occurred in prescribed circumstances.[18] The mandatory circumstances contemplated by s 52(2) do not apply to this proceeding.

31 According to s 52(5) of the Coroners Act, a person may request a coroner to hold an inquest into any death that the coroner is investigating. Upon receiving a request, s 52(6) requires the coroner to advise the person, in writing, who has made the request whether or not the coroner has decided to hold an inquest, or if a decision is yet to be made.

32 Section 67 of the Coroners Act deals with the findings of a coroner investigating a death. Relevantly, s 67 provides:

(1) A coroner investigating a death must find, if possible -

(a) the identity of the deceased; and

(b) the cause of death; and

(c) unless subsection (2) applies, the circumstances in which the death occurred; and

(d) any other prescribed particulars.

(2) Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if -

(a) an inquest into the death was not held; and

(b) the coroner finds that -

(i) the deceased was not, immediately before the person died, a person placed in custody or care; and

(ii) there is no public interest to be served in making a finding regarding those circumstances.

(3) A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.

33 Turning to the provisions pursuant to which the Appeal was brought, s 82 of the Coroners Act contemplates that where a coroner determines not to hold an inquest into a death or fire, the person who requested that the coroner hold an inquest may appeal against the coroner's determination to this Court. Any such appeal must be made within three months after the day on which the coroner's determination is made. Importantly, the Coroners Act provides that, subject to s 87A, an appeal to this Court pursuant to s 82 is an appeal on a question of law.[19]

34 Section 87A of the Coroners Act provides an exception to the requirement in s 87 that appeals made under s 82 be on a question of law. In this regard, s 87A states:

(1) An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by -

(a) the senior next of kin of the deceased; or

(b) a person with sufficient interest.

(2) The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.

35 Although much has been written on the distinction between questions of law and questions of fact, the issue remains a difficult one, particularly at the margins.[20] The principles applicable to ascertaining whether a question of law has been raised for the purposes of challenging a decision on the facts were summarised by J D Phillips JA in S v Crimes Compensation Tribunal.[21] In that case, his Honour proffered three categories which are said to give rise to a question of law. First, his Honour considered that where the meaning of the relevant statutory description is unclear, a determination of the proper meaning, as a matter of construction, and whether the words are used otherwise than with their ordinary and natural meaning, is a question of law. Second, his Honour stated that once the task of construction is complete, the question as to whether the claimant's particular circumstances fall within the relevant statutory description is a question of fact. Finally, J D Phillips JA observed that if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the original decision-maker arrives at a decision which was simply not open to it, that will constitute an error of law, and the question as to whether it arrived at a conclusion which was not open to it is a question of law. In this regard, his Honour stated that it:

... cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.[22]

36 In Psychology Board of Australia v Mair,[23] Osborn J, when considering the aforementioned principles identified by J D Phillips JA, stated that 'an error of the type identified in the third category of cases to which J D Phillips JA refers will not vitiate a decision unless it is a relevant finding of fact critical to the decision'.[24]

37 Further, it is well established that the weight accorded to relevant factors in reaching an evidentiary conclusion is not a question of law, nor is the question of the relative weight to be given to relevant factors bearing on the exercise of a discretion (unless, that is, the conclusion reached was not reasonably open to the decision-maker).[25]

38 The distinction between questions of law and questions of fact was also recently considered by the Court of Appeal in Chopra v Department of Education and Training,[26] where it was observed:

What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law. Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law. However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.[27]

39 Furthermore, it is important to note that a question of law identified in an appeal is the subject matter of the appeal, and the appeal itself should be confined to the question of law.[28] In this regard, the question(s) of law in a notice of appeal filed in this Court must be clearly articulated, and not merely ascertained by reference to the grounds of appeal.[29]

40 In the context of s 87 of the Coroners Act, in Bourke v Coroners Court,[30] Zammit J (as her Honour then was) emphasised the policy objectives of the Coroners Act and the limitations on the Court's jurisdiction to hear appeals from the Coroners Court:

Importantly, s 87 of the Act provides that an appeal to the Supreme Court is on a question of law. The existence of a question of law is not only a precondition of the right to appeal, it is the subject matter of the appeal itself. The need to identify a question of law serves as a criterion upon which several policy objectives are fulfilled through s 87 of the Act. It is essential that the question of law said to have been erroneously decided is identified exactly. It is the means by which finality of the Coronial process is achieved as well as the trigger by which the statutory jurisdiction of this court may be enlivened.[31]

41 Justice Keogh considered s 87A in Childs v Coroners Court of Victoria.[32] In Childs, which involved an appeal of a decision of the coroner not to hold an inquest into the death of the appellants' son, Keogh J considered the competing interpretations of the discretion afforded to the Court by s 87A in Chol v White[33] and Mortimer v West (in his role as Deputy State Coroner) (Refusal to re-open investigation).[34] On the one hand, in Chol J Forrest J formed the view that s 87A granted the Court a 'wide discretion'.[35] On the other hand, in Mortimer Macaulay J observed that, given the exercise of power by the coroner calls for a judgment which the coroner is peculiarly equipped to make:

... the Supreme Court should exercise the appellate power in s 87A sparingly, acknowledging the particular advantages a coroner has over a non‑specialist court in determining when it is "appropriate" to re-open an investigation.[36]

42 Having regard to these competing views as to the scope of s 87A, Keogh J, whose reasoning I adopt, made the following remarks in respect of the breadth of the discretion conferred by s 87A:

A broad discretion such as is conferred by s 87A of the Act will be confined mainly by the subject matter, scope and purpose of the legislation. For the reasons stated by Macaulay J in Mortimer, the discretion should be used sparingly. Matters relied on in support of the request for an inquest must be scrutinised to ensure they amount to more than speculation or suspicion. The interests of justice may require consideration of the desirability of finality in investigations, the nature of and extent to which an issue of public health and safety is engaged, and the interests of the next of kin being heard in relation to and understanding the findings of a coroner.[37]

43 In terms of the present application for summary dismissal, appeals under ss 82 and 87A are regulated by Part 7 of Order 58 of the Rules. Rule 58.39(9) provides the bases on which the Court may dismiss an appeal:

(9) The Court may dismiss the appeal if satisfied that -

(a) where applicable, the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

The Request for an inquest and Reasons for the Decision

44 Despite having already set out the Appellant's Request, it is useful here to restate the complaint made in respect of the conduct of the Second Respondent and its staff:

I suspect homicide and no one has been charged in relation to the death. Witnesses need to give evidence of the circumstances of the death. Unlawful involuntary Euthanasia was secretly perpetrated by Dr. Vera, Dr. Cindy, Dr. Victor Duong, Dr. Sian Brooker, and boxer Dr. Rusheesh. Not natural death. Doctors refused to comply 'Advanced Care Plan and OVIC decision. Circumstances around death are unclear with threats to kill made by Dr. Vera & Dr. Cindy and protests against the elderly. Ageism. Issues of Public safety for elderly. There is no public confidence in Northern Health.[38]

45 Turning to the Coroner's Decision, in summary the Coroner notes that during the Deceased's stay in hospital he suffered another fall, striking his temple, in addition to the unwitnessed fall he experienced at home. In response, the Second Respondent's staff conducted a CT scan, with the Coroner observing that '[t]he CT scan showed no acute intracranial pathology'.[39]

46 The Coroner then proceeded to set out the circumstances surrounding the Deceased's death on 27 October 2019:

Tests conducted at Northern Hospital showed that [the Deceased] had developed pneumonia for which he was initially treated with antibiotics. [The Deceased] was also in fluid overload, and he had begun to show increasing confusion. [The Deceased's] family was told at that time that [the Deceased] was very unwell and it was possible he would not survive. The family requested that [the Deceased] receive CPR should it be required, however the treating doctor explained that given the progression of [the Deceased's] condition, CPR would be ineffective for him and traumatic. Hospital staff explained that [the Deceased] was receiving all possible treatment for his pneumonia. This record of the conversation with the family has formed a critical part of my decision making in this matter.

On 27 October 2019 at approximately 5.30pm the Medical Emergency Team (MET) received a call to [the Deceased] on the ward where he was admitted. When the MET arrived, the [Appellant] was found to be performing CPR on [the Deceased]. Dr Warrior attended to [the Deceased,] assessed his condition and confirmed his passing. Dr Warrior explained the situation to the [Appellant] and called for assistance for the [Appellant] to help him deal with his significant grief.[40]

47 The Coroner then observed that a Medical Certificate of Cause of Death ('MCCD') was completed by the Second Respondent's staff, with the Deceased's cause of death listed as pneumonia. In those circumstances, the Coroner found that '[the Deceased's] death was not reportable to this court'.[41]

48 The Coroner explains that, after the Deceased was ordered to be brought to the Victorian Institute for Forensic Medicine for investigation, the Deceased's cause of death was found to be '[b]ronchopneumonia and ischaemic heart disease in a man with lung carcinoma'.[42]

49 After listing the various allegations made by the Appellant in his Request and having regard to the legislative framework and applicable principles,[43] the Coroner observed:

The Coroners Act 2008 (Vic), (Coroners Act) defines an inquest to mean a public inquiry that is held by the Coroners Court in respect of a death or fire." [sic] Less than one percent of reportable deaths are the subject of a coronialinquiry. This figure includes those deaths where it is mandatory1 [sic] under the Coroners Act to hold an inquest. I am satisfied the circumstances of [the Deceased's] death do not meet the requirements of a mandatory inquest.[44]

50 The Coroner proceeded to outline the circumstances in which the Deceased's death occurred and the steps that were undertaken once the investigation into the Deceased's death was set in train. In doing so, the Coroner had regard to the review conducted by the CPU, and summarised the CPU's finding that it considered that the Deceased was admitted, investigated, treated and managed by the Second Respondent in a timely and appropriate manner, and that '[f]ull care was provided. Oxygen, antibiotics and steroids were administered for [the Deceased's] respiratory condition. No necessary medical treatment was withheld'.[45]

51 The Coroner then set about addressing the Appellant's allegations concerning the non-performance of CPR on the Deceased, the distinction between goals of care documents and advance care planning documents, the regime that was in effect at the time of the Deceased's death, and the applicable legislative and regulatory regime. In circumstances where a number of these paragraphs have sought to be impugned in the Appellant's Notice of Appeal, it is appropriate to set out the following section of the Reasons:

Victorian law regarding overriding of medical decision makers

The Medical Treatment Planning and Directions Act 2016 (Vic), Part 1 Section 8 states that a health practitioner cannot be compelled to give a person treatment they consider to be futile or non-beneficial. This is the case even if specific treatment is requested by a person in their Advance Care Directive, or by a medical treatment decision-maker. Although there is no obligation for a health practitioner to obtain consent to the withholding or withdrawing of futile or non-beneficial treatment, as a matter of practice they may wish to do so.[46]

Clinicians decide whether or not treatment is futile on a case-by-case basis. Factors that will be considered include the person's diagnosis and prognosis, the person's treatment goals and whether these can be achieved, treatment alternatives, and risks and benefits of these alternatives." [sic]

With respect to the non-performance of CPR, there is an advance directive dated 2015, signed by [the Deceased], that indicated he wished for all resuscitative efforts. There are several more recent documents regarding Goals of Care, the most relevant of which is dated 16 September 2019 signed by Dr Holbeach, Consultant Geriatrician. The document includes that the goals of care were for all medical treatments but not for CPR or intubation. Dr Holbeach explained his rationale behind the document. Dr Holbeach's diagnosis of advanced age and frailty indicated he considered that, independent of the cause of a cardiorespiratory arrest, [the Deceased's] underlying conditions would not respond to CPR.

As indicated above, the role of CPR is to maintain circulation until the cause of the arrest can be reversed. Cardio-respiratory arrest from infection such as pneumonia and the other conditions from which [the Deceased] suffered, is not reversible, and CPR would be futile.

Conclusion

[The Deceased's] treating team decided to not undertake CPR when the MET call was made and [the Deceased] was assessed. The treating doctors were aware of the [Appellant's] wishes, the Advanced Care Directive and other relevant documents and information. I am satisfied that CPR was withheld on the basis of a careful consideration of [the Deceased's] current and past conditions and prognosis and that in all of the circumstances this decision was appropriate.

I find that the medical care provided to [the Deceased] for the management of his medical conditions was timely and appropriate and the decision not to perform CPR was a reasonable clinical decision, albeit understandably distressing for the [Appellant].[47]

52 The Coroner proceeded to provide her reasons for refusing to hold an inquest contrary to the Appellant's Request. The Coroner considered the various factors which she is required to consider when exercising her discretion under the Coroners Act, and referred to the material she considered in arriving at the Decision, being the statements, correspondence, medical records and reports and information provided as part of the initial investigation into the matter.[48]

53 The Coroner then individually addressed each allegation raised in the Appellant's Request. Again, it is convenient here to set out this paragraph of the Reasons in full:

In relation to the following issues raised by the [Appellant]:

There is no evidence of criminal conduct on the part of the treating personnel that had responsibility for the care and management of [the Deceased].

1. Witnesses are needed to give evidence into the circumstances of [the Deceased] death;

I consider that the information I have reviewed is sufficient in the circumstances to enable me to discharge my statutory obligations pursuant to s 67 of the Coroners Act.

1. Euthanasia had been secretly perpetrated by several doctors at Northern Hospital;

There is no evidence of criminal conduct on the part of the treating personnel that had responsibility for the care and management of [the Deceased].

iv. Doctors refused to comply with [the Deceased's] Advanced Care Plan'

I note that the Advanced Care Plan signed by [the Deceased] was in conflict with the Goals of Treatment document signed by Dr Holbeach and this was acknowledged by the Northern Hospital, however for the reasons enumerated in this decision I consider it was reasonable for the personnel at Northern Hospital to not follow the Advanced Care Plan by not commencing CPR in the circumstances.

v. The circumstances around [the Deceased] death are unclear;

I do not consider there are any circumstances surrounding the death of [the Deceased] that are unclear to me or which require further examination in an inquest.

The medical records, supporting statements and further investigation conducted by me provided me with a clear understanding of the ·circumstances that led to [the Deceased's] death.

vi. Treating doctors made threats to kill [the Deceased];

I have considered the statement of the Coroner's Investigator and the medical records and I do not accept that any of the treating doctors made threats to kill [the Deceased].

vii. There were issues of public safety for the elderly;

I am satisfied no issues of public safety have arisen from the circumstances of [the Deceased's] death.

viii. There was no public confidence in Northern Health;

Based on my thorough investigation I do not accept that there is a lack of public confidence in the Northern Hospital. I consider the medical care and management was appropriate in the circumstances.[49]

54 The Coroner concluded that, based on the evidence, she was satisfied that she could make findings as to the Deceased's identity, the Deceased's cause of death and the circumstances surrounding the Deceased's death in accordance with her statutory obligations.[50] In light of the documentary evidence, the Coroner concluded that it was not in the public interest for her to further explore the Appellant's allegations, nor was it in the interests of justice to hold an inquest into the Deceased's death.[51]

55 At this juncture it is appropriate to canvass, by way of background, the Second Respondent's application to be joined as a party to this proceeding, which came before me on 30 July 2021.

56 Prior to filing its application, on 15 April 2021 the Second Respondent's Chief Legal Officer, Richard Laufer, wrote to the Court's Registry to foreshadow the Second Respondent's intention to partake in this proceeding and alert it to the Second Respondent's previous decision, made under the Freedom of Information Act 1982 (Vic) ('FOI Act'), to not release the Deceased's full, unredacted medical record to the Appellant. Mr Laufer further noted that the Second Respondent's decision was upheld by the Office of the Victorian Information Commissioner ('OVIC') following an appeal of the Second Respondent's decision by the Appellant. A copy of this correspondence was placed on the Court file by the Registry and is available to the Appellant.

57 Having regard to this material and the history of this proceeding, I made orders with the consent of the parties at the hearing on 30 July 2021 ('July 2021 Orders'). These orders joined the Second Respondent to the proceeding and permitted the First Respondent to file and serve its material with the names, telephone numbers, or identifying information of any person named or identified in the medical record of the Deceased redacted.

58 The July 2021 Orders were made when the Appellant was represented by Counsel, who at that time acted for the Appellant in a pro bono capacity and who expressly consented to them. The July 2021 Orders also provided for the Appellant's Counsel to be provided with an unredacted copy of this material upon an undertaking by the Appellant's Counsel not to show or otherwise disclose to the Appellant the content of the unredacted documents.

59 Despite the Appellant consenting to the filing and serving of the Deceased's medical record in redacted form, on 6 August 2021 the Appellant emailed the solicitors for the First Respondent, copying my Chambers, to request unredacted copies of documents otherwise subject to the July 2021 Orders. This was the first of numerous emails demanding the production of unredacted copies of the Deceased's medical file, many of which dispute that the Appellant consented to the making of the July 2021 Orders, assert that the Appellant had not waived his 'rights' to unredacted copies of the Deceased's medical file, and echo the Appellant's claims made in this proceeding that he has been denied natural justice.

60 Some time thereafter, the Appellant ceased using the services of his pro bono Counsel.

61 Irrespective of the Appellant's change of heart and protestations by email, I consider that the July 2021 Orders are, and remain, appropriate. This is particularly so given the history of this proceeding, the nature of the correspondence to which my Chambers has hitherto been privy, and the fact that the Appellant consented to the making of the 30 July 2021 Orders in the first place. Further, Mr Laufer deposes to the ongoing need for protection of the identity and private details of the Second Respondent's staff. In any event, I do not consider that the Appellant is prejudiced in any way in the conduct of the Application or this proceeding more generally by not having unredacted copies of this material.

62 As I mentioned earlier, the Application before me seeks the summary dismissal of the Appeal pursuant to r 58.39(9) of the Rules. I will first address whether the Appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

63 The Second Respondent contends that this proceeding constitutes an abuse of process for two independent reasons. First, the Second Respondent submits that the Appeal is premised on arguments that the Appellant has since disavowed by his own sworn evidence in the Federal Court Proceeding. Second, the Second Respondent submits that the Appeal hinges on factual findings inconsistent with those reached by Kerr J in the Federal Court Proceeding.

64 With respect to the first ground, the Second Respondent says that despite advancing essentially the same arguments raised by him in the Coroners Court before the Commission, the Appellant disowned the most serious complaint that he made, being that the Second Respondent murdered his father. The Second Respondent relies on the following passage of Kerr J's decision in the Federal Court Decision:

However the difficulty Mr Trotta now faces in persuading the Court to grant him leave to pursue the allegations he made to the Commission on his father's behalf is that in his own affidavit in support he disowns the premise of the most serious of the complaints he had earlier made. Mr Trotta has deposed to the effect that he no longer seeks to contend that the Respondents murdered his father - rather he now believes the truth to be that the Respondents only pretended to murder his father in order to cause him maximum psychological and emotional trauma.

In the affidavit Mr Trotta has filed in support of his being granted leave to pursue his application dated 17 May 2021 he deposes that:

10. I do NOT believe that my father was "murdered" in Northern Hospital, but that Dr Bach, Dr Duong and Dr Rusheesh aka Dr Warrior; pretended to '"murder"' him to cause me maximum psychological and emotional trauma. - Amounting to unlawful Disability Discrimination, outraging public decency. (And "Involuntary Euthanasia" needs to be considered, in the context of Age and Disability Discrimination.)[52]

65 The Second Respondent submits that, on this basis, Kerr J found no basis for the Appellant's claim.

66 The real question here is whether the Appellant's change of evidence regarding his allegations of murder, such change of position coming after his Request and the Coroner's Decision, means that his reliance on those allegations (if he does continue to rely on them) in this proceeding constitutes an abuse of process. The Second Respondent's first reason for its abuse of process submission rests on the submission that the Appeal is premised on the Appellant's allegations of murder. There are no references to this in the Appellant's affidavits (as opposed to exhibits) or his submissions. The references to it, in terms of this proceeding, are in the Notice of Appeal where the phrase 'involuntary euthanasia death' is used several times. However, it is clear that the Notice of Appeal concerns more matters than that, and although the Appellant has not sought to amend the Notice of Appeal to remove those references or allegations in light of his subsequent evidence to the Federal Court, I do not consider that the Second Respondent has established that the Appeal is an abuse of process on its first reason for so contending.

67 As for the second reason, the Second Respondent submits that Kerr J addressed the contention that CPR should not have been withheld from the Deceased in response to the cardiorespiratory arrest he suffered, an argument that has also been raised by the Appellant in this proceeding. The Second Respondent relies on the following paragraphs of the Federal Court Decision:

In my view, notwithstanding the decision was distressing to[the Appellant], there is no sound basis to allow a hearing of a complaint based on age discrimination by reason of the non-provision of CPR in circumstances where that decision was based on a clinical assessment that to do so would be futile, and after the Coroner has accepted that CPR was withheld on the basis of a careful consideration of [the Deceased's] current and past conditions and prognosis and that in all of the circumstances the decision had been appropriate.

...

I conclude, although I accept it is unlikely to be of little comfort to [the Appellant] that I accept that he and his father had communicated to the hospital their shared deeply held desire that even if clinically reasonable judgments had been made to the effect that it would be futile to provide his father with further treatment the hospital and its staff were obliged to provide it - at least until no possible signs of life remained. That however was not their obligation and there can be no benefit in permitting this proceeding to be further maintained on that premise.[53]

68 In the Federal Court Decision, Kerr J stated that the Coroner accepted that CPR was withheld on the basis of a clinical assessment performed by the Second Respondent's staff and that it was appropriate. For reasons which I will set out below, I do not consider that the Coroner's Reasons in this regard raise a question of law, as the conclusion was reasonably open to her on the evidence, or that it raises any arguable ground of appeal. The question before Kerr J in the Federal Court Proceeding was different to the one before me. There, the question was whether to grant leave to appeal the decision made by the Commission to terminate the Appellant's complaint on his father's behalf as to age discrimination and on his own behalf as to disability discrimination. His Honour relied on the Coroner's Decision in declining leave to appeal. His Honour was not dealing with an appeal of the Coroner's Decision and therefore the question before him was different to that before me. Therefore, I do not accept that this proceeding is an abuse of process as a result of the Federal Court Decision.

69 Separately, I do not accept the Second Respondent's ancillary argument that the appeal is an abuse of process because this proceeding is being used to further and unreasonably harass medical practitioners employed, or previously employed, by the Second Respondent. While I accept that the nature of certain evidence filed by the Appellant, the myriad emails copying the Second Respondent and other persons wholly unconnected to this proceeding, and the Appellant's insistence that the personal information of the Second Respondent's staff be provided in unredacted form are demonstrative of the Appellant's harassing behaviour, I do not consider that the Appellant commenced or has continued the proceeding for the purpose of sustaining a campaign of harassment against the Second Respondent or its staff.

The Notice of Appeal: Questions of law and grounds of appeal

70 I turn now to consider whether the Appellant's Notice of Appeal identifies sufficiently or at all a question of law on which the Appeal may be grounded. If the Appellant has succeeded in identifying a question of law, I will then go on to determine whether that question of law, and thus the Appellant's Appeal, is reasonably arguable.

71 The Appellant's Notice of Appeal contains numerous grounds upon which it is said the Coroner erred in refusing the Request. Under the heading 'Question(s) of Law', the Notice of Appeal contains at least 12 purported errors of law made by the Coroner, in addition to a further 22 grounds of appeal which sit under the heading 'Grounds of Appeal'. There is much overlap between the matters raised in the two sections of the Notice of Appeal, each of which the Appellant says constitute a basis for overturning the Decision.

Procedural fairness and natural justice ground of appeal

72 The Appellant contends that he has been denied procedural fairness and natural justice. The Appellant claims in the Notice of Appeal:

Questions of Law under s82, and in the interests of Justice under s87A

There is a lack of procedural fairness and denial of natural justice by Coroner Peterson, and a refusal by Coroner and Northern Health (NH) to give me a copy of my father's NH File, even under FOI Act. Important evidence has been redacted and blacked out. There remains extreme secrecy and anonymity with total lack of transparency and accountability, in the Coroners [sic] decision.

73 The Second Respondent submits that this complaint is without substance given the Appellant has had access to the Deceased's clinical record at all material times, save for the redactions made to the names of certain clinicians, which were made in order to protect the safety of those individuals.

74 I accept the Second Respondent's submissions in this respect. That the Appellant has been denied access to the names of these individuals has not in any way impeded his ability to prosecute the Appeal, nor have the redactions had any bearing or impinged on the Coroner's Decision in any way. Furthermore, I am of the view that the redactions, which have been upheld by a series of decisions by the OVIC under the FOI Act, are appropriate in light of Mr Laufer's evidence regarding the seriousness and constancy of the Appellant's harassing behaviour towards the Second Respondent's staff.[54] For example, Mr Laufer deposes that since early 2016, he has seen, reviewed or been advised of 'literally hundreds of complaints' made by the Appellant, which have often been expressed in 'threatening and vitriolic terms' about the Second Respondent and members of its staff.[55]

75 There is no basis to conclude that the Appellant has been denied procedural fairness. Even if I were to conclude that the Appellant has raised a valid question of law, which I do not consider to be the case, it cannot be said that this ground is reasonably arguable for the reasons that I have already outlined. As such, this ground of appeal is rejected.

Questions of law concerning paragraphs 5 and 6 of the Reasons

76 The Appellant's Notice of Appeal also contends that paragraphs 5 and 6 of the Reasons are affected by errors of law. These grounds of the Notice of Appeal state:

Paragraph 5 of Coroner Peterson decision is wrong:

The Coroner wrongly claims that "[the Deceased's] family" was told that [the Deceased] was unwell. This is false, there was never any communication with me, and I had no idea that [the Deceased] might not survive. No doctor or nurse communicated with me at any time. I am still waiting for a copy of relevant documents from my father's Medical Records. There was no communication from any "treating doctor". I still [sic] not sure who was the treating doctor, and who was the Supervisor/Consultant on the weekend of my father's death? Why are relevant doctors made anonymous? There was no conversation, and I have never been given a copy of any alleged conversation, not even under the Freedom of Information Act. If my father was unwell why did they put him into an empty hospital room, Ward 3 Room 4, without access to Medical Treatment?

Paragraph 6 of Coroner Peterson decision is false:

On Sunday afternoon 27 October 2019 my father unexpectedly stopped breathing during my visit. My father and I were totally unprepared for this, as no one discussed this possibility with us. He had only been in hospital room, Ward 3 Room 4, for one day. I called for CPR resuscitation, but three security guards stood at the doorway with a group of hospital staff, who refused assistance. I forgot how to perform CPR but started in the hope that staff would take over, no one did.

After I had been shouted at and pushed by Dr Victor Duong, someone called Dr Rusheesh from ICU attended, who behaved unprofessionally and disrespectfully towards me and my dying father. The Coroner now says her name is Dr Warrior.

According to AHPRA there is no Medical Practitioner named Warrior practising in VIC. So, we cannot believe the Coroners [sic] decision.

77 The Second Respondent submits that these paragraphs of the Reasons are findings of fact, such that the matters relied upon by the Appellant do not raise a question of law.

78 At the outset I note that the Notice of Appeal in respect of these paragraphs does not explicitly identify a question of law. Rather, one would have to read a great deal into the Notice of Appeal to consider that it had done so. But if the Appellant intended to argue that the Coroner arrived at findings of fact in paragraphs 5 and 6 that were simply not open to her, and in doing so made an error (or errors) of law, then this ground of appeal is rejected. The same is true for the other paragraphs of the Reasons in which the Appellant seeks to impugn the factual findings made by the Coroner, namely paragraphs 42 and 43 of the Reasons. I will return to the grounds raised in the Notice of Appeal in respect of these paragraphs later. As I discussed above, however, a determination of fact has the potential to give rise to an error of law where it is shown that the original decision-maker arrived at a finding that was simply not open to it.[56] While I do not agree that the Coroner made factual findings that were not reasonably open to her, even if she did make errors of fact it cannot be said that the Coroner made an error of the type necessary to give rise to an error of law.

79 In any event, I accept the Second Respondent's submission. I consider that the Coroner's findings in these paragraphs are consistent with the available contemporaneous clinical records. The Coroner's Reasons sufficiently addressed both the Second Respondent's staff's decision not to perform CPR on the Deceased and the allegations raised by the Appellant's Request. I also consider it relevant, as Keogh J did in Childs, that the Coroner has particular expertise and was equipped to call upon the CPU to assist her in determining whether an inquest ought to be held.[57]

80 As for the Appellant's allegation concerning the Second Respondent's staff's alleged failure to inform him of the Deceased's ill health, the documents corroborate the Coroner's finding that the Appellant's family was informed that '[the Deceased] was very unwell and it was possible he would not survive'.[58] For example, a memorandum prepared by the CPU refers to a family meeting that took place on 27 October 2019 between the Second Respondent's staff and the Deceased's family for the purpose of explaining to the family the Deceased's poor health. The memorandum also states that, immediately following the death of the Deceased, Dr Warrior 'explained the situation to [the Appellant]', for whom social work was also contacted as a means of offering support.[59] Further, the Appellant's contention that Dr Warrior is not a real person does not withstand scrutiny.

81 The grounds raised by the Appellant are findings of fact, and even so are in conflict with the evidence.

82 While the grounds of appeal do not raise questions of law on which the appeal of the Decision may be brought, in the event I were to consider that the Appellant has raised valid questions of law in these sections of the Notice of Appeal I do not consider these grounds to be reasonably arguable. For reasons already mentioned, the Coroner's finding and the documentary evidence do not support the allegations made by the Appellant and it is abundantly clear that the findings of fact were reasonably open to the Coroner.

83 These grounds in the Notice of Appeal do not raise a question of law, and even if they do they are not reasonably arguable. Therefore, they are to be rejected.

Questions of law concerning paragraphs 7 and 17 of the Reasons

84 The Appellant further contends that paragraphs 7 and 17 of the Reasons give rise to questions of law. The relevant grounds of appeal in the Appellant's Notice of Appeal state:

Paragraph 7 of the Coroners [sic] decision is wrong:

My father's death is a reportable death because he was catapulted out of a new, faulty 'Topform Chair', suffering a major fall and lump on his head.

He suffered a second major fall in hospital, which has not been explained.

Paragraph 17 of the Coroners [sic] decision:

The circumstances of [the Deceased's] death do meet the requirements of a mandatory inquest. The Coroner ignored two major falls which contributed to my father's Involuntary Euthanasia death in Northern Hospital.

85 The Second Respondent submits that the evidence before the Coroner established that the death was not the result of the falls; and moreover, even in the case of a reportable death from accident, an inquest is not mandatory.

86 I accept the Second Respondent's submissions made in respect of these grounds of appeal. I consider that the Appellant's complaint as to paragraph 7 of the Reasons is at odds with the documentary record, and that his complaint regarding paragraph 17 is predicated on a misconstruction of the Coroners Act. Putting to the side the fact that the Coroner did not ignore the two falls sustained by the Deceased, the circumstances of the Deceased's death do not fall within the ambit of s 52(2) of the Coroners Act.

87 Even if the Appellant had succeeded in raising questions of law for the purposes of the Appeal, which he has not, I consider that the grounds raised in respect of paragraphs 7 and 17 of the Reasons are not reasonably arguable. It is unclear to me how the first fall suffered by the Deceased at his residence prior to arriving at Northern Health can result in the attribution of blame to the Second Respondent's staff, let alone form the basis of an appeal of the Decision. With regard to the second fall sustained by the Deceased, the Coroner noted that a CT scan confirmed that the Deceased suffered 'no acute intracranial pathology'.[60] As such, the Appellant's purported questions of law contradict the underlying documentary material and are unsupported by evidence. Again, the Coroner's findings were reasonably open to her.

88 The grounds raised by the Appellant with respect to paragraphs 7 and 17 of the Reasons do not raise a question of law and, in any event, are not reasonably arguable. These grounds of appeal are rejected.

Questions of law concerning paragraph 18, 19, 23 and 24 of the Reasons

89 The questions of law raised in the Notice of Appeal regarding paragraphs 18, 19, 23 and 24 of the Reasons are:

Paragraph 18 of the Coroners [sic] decision:

The Coroner failed to conduct an independent and thorough coronial investigation. There has been a total cover-up at the behest of the Northern Hospital leadership. The Coroner failed to get any witness Statements from staff, on the Euthanasia weekend of 25, 26, 27 October 2019.

Paragraph 19 of the Coroners [sic] decision:

The Coroner failed to exercise discretion as required by the preamble and purposes of the Coroners Act. The Coroners [sic] decision to not hold inquest does not comply with the purpose of a coronial investigation as it relates to:

'(iii) to promote public health and safety and the administration of justice'.

Paragraph 23 of the Coroners [sic] decision:

The Coroner did not comply with section 9 of the Coroners Act which requires that the Coronial system should operate in a fair and efficient manner. [emphasis in original]

Paragraph 24 of the Coroners [sic] decision:

The Coroner failed to investigate the surrounding circumstances of my father's death, including events which are sufficiently proximate and causally related to the death. The Coroner Peterson failed to establish the facts, and indeed covered-up facts and the relevant names of doctors and nurses who worked during my father's Euthanasia death weekend 25, 26, 27 October 2019. (All doctors and nurses involved there have been made anonymous.)

The Coroner has perpetuated the Northern Hospital's aggressive culture of secrecy and anonymity, demonstrating a total lack of transparency and accountability.

90 The Second Respondent contends that these grounds contain serious allegations, are unsupported by evidence, and are demonstrably inconsistent with the Reasons provided by the Coroner and the analysis supporting her Decision.

91 I accept the Second Respondent's submissions. These grounds make a number of scandalous allegations concerning the thoroughness of the Coroner's investigation, the performance of her duties under the legislation, and the integrity of the Second Respondent, which the Appellant accuses of partaking in an alleged cover-up. There is not a skerrick of evidence suggesting that the Coroner's investigation was anything other than impartial, nor was the Coroner under an obligation to obtain witness statements from the Second Respondent's staff, as is asserted by the Appellant.

92 The Appellant's contention that the Coroner failed to comply with s 9 of the Coroners Act is erroneous, and fails to give rise to a question of law.

93 For completeness, I consider that the grounds raised by the Appellant with respect to paragraphs 18, 19, 23 and 24 of the Reasons are not reasonably arguable. The Coroner had regard to, and gave due weight to, each of the allegations raised by the Appellant in a fair and impartial manner. The Coroner found no evidence to support any of the allegations made by the Appellant in the Request, and she applied the correct legal test when deciding against the holding of an inquest. Further, during the course of the investigation the Coroner correctly and appropriately considered the relevant documentary material, including medical records belonging to the Second Respondent, a statement from the forensic pathologist who examined the Deceased, and an independent review conducted by the CPU.

94 The grounds raised by the Appellant with regard to paragraphs 18, 19, 23 and 24 of the Reasons amount to little more than slanderous conjecture. These grounds fail to identify a question of law and are not reasonably arguable. It follows that they are to be rejected.

Questions of law concerning paragraphs 42, 43 and 46 of the Reasons

95 The Appellant's questions of law regarding paragraphs 42 and 43 of the Reasons criticise the Second Respondent and its staff for modifying the Deceased's goals of care document. These grounds are stated in the Notice of Appeal as follows:

Paragraph 42 of the Coroners [sic] decision:

This is the most shocking paragraph of the whole unlawful decision, where we find out for the first time, that an unknown person "Dr Holbeach" has covertly and fraudulently changed a "Goals of Care document" without any communication with me or my father. We have never met this person "Dr Holbeach". It appears this fraud was allegedly perpetrated on 16 September 2019.

Paragraph 43 of the Coroners [sic] decision:

This Goals of Care document dated 11 October 2019 is a fraud, and does not exist. There is no Dr Tang, Registrar, Level C, who wrote this.

96 The Second Respondent submits that these grounds constitute an unfair attack on Dr Holbeach, and relies on the Coroner's finding that Dr Holbeach appropriately decided that given the Deceased's age and frailty, 'the outcome in the event of cardiorespiratory arrest ... would be very poor and hence CPR/DCR/intubation would be futile'.[61]

97 The Second Respondent also relies the Coroner's finding that notwithstanding the Advanced Care Plan was in conflict with the goals of care document signed by Dr Holbeach, 'it was reasonable for the personnel at Northern Hospital to not follow the Advanced Care Plan by not commencing CPR in the circumstances'.[62]

98 The Second Respondent further relies on the Coroner's finding at paragraph 50 of the Reasons, extracted earlier, that '[t]he treating doctors were aware of the Applicant's wishes, the Advanced Care Directive and other relevant documents and information', and the Coroner's finding that 'CPR was withheld on the basis of a careful consideration of [the Deceased's] current and past conditions and prognosis and that in all of the circumstances this decision was appropriate'.[63]

99 I accept the Second Respondent's submissions. There is no evidence to suggest that the Deceased's goals of care document was amended in circumstances that amount to fraud. Further, there is no basis to suggest that Dr Holbeach and Dr Tong are not real people who were not employed by the Second Respondent at the time of the Deceased's death.

100 It follows from the foregoing that these grounds of appeal in the Notice of Appeal fail to identify a question of law. These grounds are rejected.

101 The Appellant further claims in relation to paragraph 46 of the Reasons that the Coroner has made an error of law by misconstruing s 8 of the Medical Treatment Planning and Decisions Act 2016 (Vic). This ground of the Notice of Appeal states:

Paragraph 46 of the Coroners [sic] decision:

The Coroner purports to rely on Section 8 of The Medical Treatment Planning Decisions Act 2016 (Vic) on behalf of the anonymous treating doctors at Northern Hospital. We do not know, we are not told who is the decision maker?, [sic] or who is the Supervisor/Consultant?, [sic] (if any), during my father's 'Involuntary Euthanasia death' weekend on 25, 26, 27 October 2019., but there was no communication at all from any Northern Hospital staff.

Before considering section 8, the anonymous doctors at Northern Hospital were required to communicate with me and to comply with Section 7 principles which they failed to do: ...

102 The Second Respondent submits that the Coroner correctly summarised the effect of s 8, which submission I accept. I note also that the Appellant's ground is based on a misconstruction of that Act, as the principles contained in s 7 are not a precondition to the operation of s 8, which, as the Coroner rightly noted, provides that a health practitioner cannot be compelled to administer a futile or non-beneficial medical treatment or medical research procedure to a person. This ground fails to identify a question of law.

103 However, even if I were to suppose that the Appellant has identified a question of law, I do not consider these grounds to be reasonably arguable. The findings made by the Coroner at paragraphs 42, 43 and 46 of the Reasons are conclusions that she is peculiarly equipped to make and were reasonably open to her. Further, the Appellant's contentions in this regard are at odds with both the contemporaneous documents and a proper interpretation of the legislative regime.

104 Accordingly, the Appellant's grounds of appeal in respect of paragraphs 42, 43 and 46 of the Reasons do not raise questions of law and are not reasonably arguable. These grounds are to be rejected.

Remaining grounds raised in the Appellant's Notice of Appeal

105 As I mentioned earlier, the Notice of Appeal also contained twenty-two 'Grounds of Appeal', which are separate to, but overlap with, the 'Question(s) of Law' raised in the Appellant's Notice of Appeal.

106 I do not consider it necessary to address each of these grounds in any level of detail, save to say that certain grounds make generic claims regarding the Coroner's Decision, such as that in arriving at the Decision the Coroner took 'an irrelevant consideration into account in the exercise of the power'. These grounds are unsupported by any evidence or reasoning.

107 It follows from the above that the Notice of Appeal fails to identify any reasonably arguable question of law or ground of appeal, and even if I were to find that a valid question of law was raised, no such question of law is reasonably arguable.

Is the Appeal necessary or desirable in the interests of justice?

108 Even though my findings are that the Notice of Appeal does not identify a question of law on which the Appeal may be brought, and that even if it did the Appellant does not have an arguable case, I must also address the question of whether, if the Appeal was to proceed, it is likely that the Court would allow the Appeal on the basis that it is necessary or desirable in the interests of justice to do so. This is because r 58.39(9)(b) permits the Court to dismiss the Appeal if satisfied that to refuse leave would impose no substantial injustice. Clearly, if it were likely that the Court would uphold the Appeal by virtue of s 87A, then it would impose a substantial injustice to summarily dismiss the Appeal under r 58.39(9).

109 The Second Respondent submits that the power under s 87A should be used 'sparingly' and requires more than 'suspicion or speculation' on the part of the Appellant. In a similar vein, the First Respondent contended, in a manner consistent with the Hardiman position it has adopted throughout the course of this proceeding, that while s 87A provides that a person can bring an appeal from the Coroners Court in circumstances where a question of law has not been identified, the provision does not provide a general avenue for any appeal from the Coroners Court on the merits. In this sense, it is said that s 87A ought to be construed in the context of s 87, in a fashion consistent with the objectives which undergird s 87.

110 I accept the submissions made by the First and Second Respondents with respect to s 87A. On considering the grounds upon which the Court may dismiss an appeal under Part 7 of the Coroners Act pursuant to r 58.39(9) and the statutory regime more broadly, it becomes clear that the role of the Court in hearing appeals from the Coroners Court is supervisory and narrow in scope. The discretion conferred by s 87A of the Coroners Act must be confined mainly by the subject matter, scope and purpose of the Coroners Act, and the authorities make it clear that s 87A is to be construed in a manner that does not render the limit imposed by s 87 otiose, particularly when regard is had to the policy objectives which are sought to be achieved by the question of law requirement. As Macaulay J observed in Mortimer, the interests of justice are not tantamount to the interests of any one party and extend beyond any private interests concerned, such that they require a consideration of the desirability of finality in investigations, the nature of and extent to which an issue of public health and safety is engaged, and the interests of the next of kin being heard in relation to and understanding the findings of a coroner.[64]

111 For reasons already canvassed, the case advanced by the Appellant falls short of the standard required to enliven the Court's jurisdiction under s 87A. The Appellant's grounds of appeal consist of mere conjecture, are inconsistent with the evidence and remain overwhelmingly unsupported by the evidence. The Appellant is mourning the loss of his father, and evidently feels aggrieved by the decision of the Coroner. However, the Appellant's personal dissatisfaction with the outcome of the Coroner's investigation alone is insufficient to mount an appeal to this Court, and fails to bring the Appeal within the purview of s 87A. For the reasons I have identified, the Appellant has not established that it is necessary or desirable in the interests of justice to hold an inquest into the death of the Deceased.

112 For these reasons, the Second Respondent's application is granted. Consequently, I have this day made orders that the Notice of Appeal and this proceeding will be dismissed.

113 While the ordinary position is that costs follow the event, the Second Respondent does not seek an order as to costs. As such, I will make no orders as to costs.

[1] By order made on 14 February 2022 on the Court's own motion, the Application has been referred to me for determination.

[2] [1980] HCA 13; (1980) 144 CLR 13.

[3] I infer this from the fact that the Appellant has, on multiple occasions, filed affidavits and submissions in this proceeding in a manner according to the Court's Rules.

[4] [2020] VSC 346, [8]-[9]. His Honour's decision was subsequently upheld by the Court of Appeal in Daher v Bell [2021] VSCA 192 (Kyrou, Kaye and Kennedy JJA).

[5] Exhibit IPMG-33 to Giles Affidavit, [1], [3].

[6] Exhibit IPMG-26 to Giles Affidavit; Exhibit IPMG-33 to Giles Affidavit, [2].

[8] Giles Affidavit, [13(b)]; Exhibit IPMG-2.

[9] Exhibit IPMG-33 to Giles Affidavit, [60]; Exhibit IPMG-26 to Giles Affidavit.

[10] Trotta v Northern Health [2021] FCA 668 ('Federal Court Decision'), [3]; Laufer Affidavit, [9]-[10].

[11] Exhibit IPMG-24 to Giles Affidavit.

[12] Exhibit IPMG-33 to Giles Affidavit, [58].

[16] Coroners Act, s 8.

[17] Ibid, s 52(1).

[18] Ibid, s 52(2).

[19] Ibid, s 87(1).

[20] Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, [167] ('Cosmopolitan Hotel').

[21] [1998] 1 VR 83.

[22] Ibid, 88-90. The factors to be considered when distinguishing between questions of law and questions of fact were also discussed by Dowsett and Gordon JJ in Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 at 415, which was approved by the Court of Appeal Cosmopolitan Hotel at [167] (Whelan J), [206] (Santamaria J agreeing).

[23] [2010] VSC 628 ('Mair').

[26] (2019) 60 VR 505 ('Chopra').

[27] Ibid, [88] (Tate, Whelan and Kyrou JJA).

[28] Glascott v Coroners Court of Victoria [2017] VSC 328, [19].

[29] Fraser v Sperling [2017] VSCA 53, [55] (Maxwell P, Santamaria and McLeish JJA), citing Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320, 333, [21] (French CJ, Gummow and Bell JJ).

[30] [2015] VSC 418 ('Bourke').

[32] [2020] VSC 755 ('Childs').

[33] [2016] VSC 561 ('Chol').

[34] [2017] VSC 293 ('Mortimer').

[36] Mortimer, [70]. Although the decision of Mortimer was overturned on appeal, the Court of Appeal did not disapprove of Macaulay J's reasoning in respect of s 87A: see Mortimer v West [2018] VSCA 188, [115]-[117].

[37] Childs, [65] (citations omitted).

[38] Exhibit IPMG-24 to Giles Affidavit.

[39] Exhibit IPMG-33 to Giles Affidavit, [1]-[4].

[52] Federal Court Decision, [48]-[49].

[54] Laufer Affidavit, [9], [11] and [14].

[56] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-90.

[58] Exhibit IPMG-33 to Giles Affidavit, [5].

[59] Exhibit IPMG-31 to Giles Affidavit.

[60] Exhibit IPMG-33 to Giles Affidavit, [4].

[64] Mortimer, [27]; Childs, [65].