Smith v State Coroner of NSW [1999] NSWSC 779 (29 July 1999)

Last Updated: 5 August 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Smith v State Coroner of NSW [1999] NSWSC 779

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11801/99

HEARING DATE{S): 29 July 1999

JUDGMENT DATE: 29/07/1999

PARTIES:

Olga Yvonne Smith v State Coroner of New South Wales

JUDGMENT OF: Michael Grove J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

J. Darvall (Plaintiff)

P.I. Lakatos (Defendant)

SOLICITORS:

Uther Webster & Evans (Plaintiff)

I.V. Knight (Crown Solicitor)

CATCHWORDS:

Coroners - The Court does not have a general power to direct a coroner or a pathologist performing a post-mortem examination pursuant to the Coroners Act to permit an agent of the family of the deceased to view and photograph the conduct of the autopsy

ACTS CITED:

Coroners Act

DECISION:

Summons dismissed

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

MICHAEL GROVE J

Thursday, 29 July 1999

11801/99 - OLGA YVONNE SMITH v STATE CORONER OF NSW

JUDGMENT

1 HIS HONOUR: These proceedings are before the court pursuant to a summons in which Olga Yvonne Smith is the plaintiff and the State Coroner of New South Wales is the defendant. The orders significantly sought by the summons are that, in effect, a Mr Carl Hughes be permitted to attend and take photographs at the post-mortem examination of the late Bernard Edmund Smith who died last Saturday and whose widow the plaintiff is.

2 It is convenient to sketch some matters. On Tuesday last application was made to me as Duty Judge for leave to file a summons and for the usual collateral orders as to abridgment of time seeking similar orders to today in which proposed proceedings Mr Carl Hughes was to be the plaintiff. As I have indicated a summons was issued in which Mrs Smith is the plaintiff. It was foreshadowed at the hearing two days ago that there may be an application to substitute her as plaintiff and no point arises out of this but I recount it merely as a matter of history.

3 On that occasion I indicated to counsel, who is not counsel appearing today, that the nature of the orders sought raised a question of my jurisdiction or the source of my jurisdiction to make them. Upon the summons being called on for hearing today the plaintiff has read the affidavit of Carl Ferguson Hughes sworn 28 July 1999. Mr Hughes' affidavit has been read without objection. It was indicated that should the matter proceed counsel for the defendant wished to cross-examine him but that it was desired to raise a preliminary question as to whether the matter should, in any event, proceed further.

4 As I understand it the totality of the evidence relied upon by the plaintiff is contained in the affidavit of Mr Hughes. He states that he is a graduate holding degrees of Bachelor of Medicine, Bachelor of Surgery and Bachelor of Medical Science. He does not claim to be a duly registered medical practitioner. He indicates that for the past ten years he worked as a forensic consultant and as such has attended many post mortems. He was approached by relatives of the deceased Bernard Edmund Smith and asked whether he would attend the post-mortem as an independent observer and take photographs. An authority signed by the plaintiff is exhibited to his affidavit. The family concern would appear to arise from circumstances related to Mr Hughes by a son of the deceased that his father was aged sixty three years and in apparent good health, coupled with the circumstance that the family doctor had declined to sign a death certificate. The death was apparently very sudden.

5 The first thing that needs to be observed is that there is no express statutory source of power for me to make the orders sought. In response to motion for dismissal by counsel for the defendant, counsel for the plaintiff adverted to the administrative law powers of the court and submitted that, in effect, what was being challenged was the failure of the deputy coroner to discharge what was asserted to be her duty to give a direction in relation to the application made by Mr Hughes to attend and observe the post-mortem.

6 There is evidence in his affidavit that he spoke to Miss Jan Stevenson, a deputy state coroner, who amongst other things said to him:

"It is up to the pathologist carrying out the post-mortem to decide whether you can be present. You will have to speak to the pathologist about that".

7 Contact with the pathologist who is to perform the post-mortem examination, Dr Neil Langlois, reveals that he did not assent to the presence of Mr Hughes. For completeness I should add that Miss Stevenson is also alleged to have said to Mr Hughes that only a forensic pathologist can be present as an observer. That statement would appear to exclude the presence of registered general medical practitioners or, indeed, medical practitioners of any speciality with the exception of that mentioned. It is asserted by Mr Hughes that there are few forensic pathologists in practice in this state outside of those in government service.

8 Against that background I turn to the motion by the defendant. The first proposition is that nomination of the State Coroner of New South Wales does not bring before this court the correct defendant. If anybody is amenable to jurisdiction it was submitted that it is the deputy state coroner, Miss Stevenson, in her personal capacity. Reference was made to her direction that the post-mortem take place pursuant to s 48 of the Coroners Act and that pursuant to s 24 of that statute the possession and control of the body of the deceased lay in her. In addition it was asserted, although there is presently no evidence of this before the court, that Dr Langlois who is to perform the post-mortem examination is the employee of the Western Sydney Area Health Service and neither is that service a defendant.

9 I am unpersuaded that the matter should turn upon the specific nomination of the State Coroner as defendant. If there is substance in the matters adverted to by counsel for the plaintiff the circumstances are such that it would appear to me an appropriate case for consideration of necessary substitution. I do not regard it as necessary to explore the matter of parties further.

10 The second argument of the defendant however adverts to the absence of any specific power for this court to make the orders sought. There is one reference in the Coroners Act to an entitlement to be present at post-mortem and that is in the case where there is potential for allegation against a medical practitioner and there is specific provision for that medical practitioner to be present to observe the post-mortem. The powers of the court specified in the Act are set out in s48A. In effect, the court can order that no post-mortem examination at all take place or that a partial post-mortem examination take place.

11 It was suggested that perhaps as an adjunct power to ordering a partial post-mortem examination it may be conceivable that the court could order the presence of particular persons in order to see and ensure that the precise terms of such an order were carried out. The present case is not one in which partial post-mortem examination is being ordered by the court. As I indicated in passing the basis upon which the plaintiff essentially seeks to attract the jurisdiction of this court is found in its administrative review power.

12 Reference was made to Abernethy v Deitz 39NSWLR 701. That was a case which concerned direction by this court in connection with a coroner's discretionary power to order the carrying out of a post-mortem. The decision in that case was followed by specific legislation now being s48A of the Act to which I have made reference. The extent of potential administrative review is conveniently set out in some remarks of Mahoney P in Abernethy. His Honour said this:

"Steps taken in the ordinary course of the conduct of a department or other purely ministerial steps not amounting to an act in the law performed in the exercise of a specific legal power may perhaps provide instances of this kind (the kind being those not subject to administrative review). But a direction given pursuant to s48 (of the Coroners Act) is not of this kind. It is a direct exercise of a statutory authority and is subject to review accordingly.

Such a review is, of its nature, not a review of the merits of the exercise of the power. Judicial review of this kind is limited essentially to the validity of the act done.

The grounds upon which the court will, on such a review, set aside such an act are well recognised. They include, inter alia, cases in which the power has been exercised for a purpose not within the scope of the power; where, in exercising the power, regard has been had to considerations which are not within the scope of the power or there has been a failure to have regard to considerations which are within the scope of the power; and where the exercise of the power is, within the Wednesbury principle, so unreasonable as not to be an exercise of the power. "

13 It was submitted on behalf of the plaintiff that the failure of Miss Stevenson to make a decision herself as to whether Mr Hughes could attend and take photographs of the post-mortem but rather her apparent delegation of decision to the forensic pathologist conducting the post-mortem examination was a failure which was reviewable in accordance with the principles to which I have made reference. I do not accept that submission.

14 The statutory authority of Miss Stevenson was to direct that the post-mortem examination take place. The administrative details as to the conduct of it are things which are not the direct exercise of statutory power but in my view administrative procedures relating to the carrying out of the particular task.

15 It was vigorously submitted that the refusal of relief would leave the relatives of deceased persons who were interested in having independent supervision of post-mortem examinations without any recourse against the exercise of discretion by the particular forensic pathologists. If it was thought desirable that some authority outside of the coroner should have such a discretionary power or merit review power then that is a matter in my view for the Parliament.

16 Reference was made to s 25 of the Coroners Act but it seems to me that that section in its terms is the vesting of a power in a coroner to enable entry into places for the purposes of discharge of the coroner's duty and is entirely removed from the circumstances now under consideration.

17 Finally, I should note that it was submitted that the failure to make a decision by Miss Stevenson could be categorised as unreasonable within the Wednesbury principle. It suffices to record that I reject that submission.

18 It should be noted again that the proceedings have reached the stage only of having the evidence on behalf of the plaintiff read and no cross-examination has yet taken place. It was foreshadowed that in the event that the current ore tenus motion failed the defendant would desire to place some evidence before the court. It should be observed that counsel for the plaintiff indicated that he had not seen in draft or otherwise any such evidence and therefore was not in a position to know what explanation, if any, was being offered for the decisions made or not made, as the case may be. I refer to this merely to place it upon the record.

19 I am of the opinion that, leaving to one side the issue of the correct specification of the defendant the relief sought should not be made available even if the material in Mr Hughes affidavit is given full weight. It should also be mentioned that the funeral arrangements for the late Mr Smith are such that it is anticipated that the burial or cremation, as the case may be, will take place tomorrow.

20 Necessarily a matter such as this must be dealt with as a matter of urgency. For that reason I would in general not regard technical matters as of any great weight as an obstacle to the granting of relief but the conclusion that I have reached is that the further hearing of this matter would be futile. I add to the foregoing that nothing was put forward to suggest that in performance of the post-mortem, Dr Langlois might do anything or form any opinion contrary to the interests of the Smith family and the description "independent" sought to be attached to Mr Hughes should not be thought to convey any implication that Dr Langlois would discharge his duty other than professionally and objectively. Accordingly, I order that the summons be dismissed and the plaintiff to pay the defendant's costs.

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LAST UPDATED: 04/08/1999