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Supreme Court of Victoria |
Last Updated: 1 April 2015
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CORONERS COURT – Appeal by Senior Next of Kin against Coroner’s Determination to release body to domestic partner – Appeal dismissed – Coroners Act 2008 s 85 and s 87 – Coroner’s Act 2008 s 3 definitions of domestic partner and senior next of kin.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr R Kelly
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Cahills Solicitors
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For the Respondent
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Mr J Ribbands
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Ms J Burns (Acting Principal In-House Solicitor)
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1 The Court has before it an appeal under s 85 of the Coroners Act 2008 (the Act) brought by Stephen Lawrence pursuant to a Notice of Appeal dated 9 April 2013. The Appellant, Stephen Lawrence, appeals against the Coroner's Determination dated 5 April 2013 to release the body of his son, David Lawrence, to one Megan Jones who claims to be the domestic partner of the deceased.
2 Both the Appellant and the Respondent have submitted that this appeal warrants urgent determination because the earliest resolution possible by the Court is likely to minimise the ongoing distress the subject dispute is causing the deceased’s family and friends and also because of the practical urgencies associated with the need to bury the deceased.
3 In determining to release the body of David Lawrence to Megan Jones the Coroner decided that Ms Jones was the domestic partner of David Lawrence and therefore the relevant senior next of kin as opposed to the Appellant, Stephen Lawrence.
4 The Coroner’s Determination that Megan Jones was the deceased’s domestic partner and thereby the deceased’s relevant senior next of kin was the focus of the said Notice of Appeal, which I will come to, and also the focus of argument in Court.
5 Section 85 of the Act provides for an appeal against an order of the Coroner to release a body. Section 87 of the Act provides that appeals of this nature are appeals to the Supreme Court on a question of law.
6 The materials before the Court, in addition to the Notice of Appeal, include the affidavit of Stephen Lawrence sworn 10 April 2013 and the affidavit of Jodie Marie Burns sworn 18 April 2013. There were also affidavits proffered from Judith Anne Turner sworn 18 April 2013, Colin Gerard Janssen sworn 16 April 2013, Kayla Lee Habel sworn 16 April 2013 and from Debra Jane Rokeski sworn 18 April 2013.
7 Those affidavits, which I latterly mentioned, namely the affidavits of Turner, Janssen, Habel and Rokeski have been objected to by the Respondent and their admission into evidence in this appeal was ultimately not pressed by the Appellant.
8 The Notice of Appeal specifies in the Grounds of Appeal that the appeal is based upon the Coroner making an error of law in finding that Megan Jones was the domestic partner of David Lawrence immediately before his death, as defined in s 3(1) of the Act.
9 The second Ground of Appeal is that the Coroner's decision to appoint Megan Jones as the senior next of kin to David Lawrence was made in error because it was based on an earlier error of law, namely that referred to in the first Ground of Appeal.
10 The third Ground of Appeal is that the Coroner's decision to release the body of David Lawrence into the custody of Megan Jones was made in error because it was based upon the error of law identified in the first Ground of Appeal as well as being based on the error of law identified in the second Ground of Appeal.
11 I observe that the substantive Ground of Appeal is the first ground, namely that the Coroner fell into error of law in finding that Megan Jones was the domestic partner of David Lawrence immediately before his death, under s 3(1) of the Act, and I observe that Grounds of Appeal 2 and 3 are ancillary to that primary ground.
12 The Act provides in s 47 that the Coroner may order that a body under the control of the Coroner be released if the Coroner is satisfied as to a certain matter, or if the Coroner makes the specified determination, both as defined in that section.
13 Section 48 of the Act provides that a person may apply to a Coroner for a body to be released to the applicant. If two or more applicants apply for the release of the body, the Coroner must determine the person to whom the body is to be released on the basis of who has the better claim.
14 In determining who has the better claim, it is provided in s 48(3) of the Act, that the Coroner must have regard to the following principles:
(i) The first principle relates to the appointment of an executor which is not relevant in this matter.
(ii) The second principle relates to the identification of a person who is the senior next of kin as defined by the Act.
15 Section 3 of the Act defines senior next of kin by way of a cascading hierarchy of defined persons, most materially to this matter providing that senior next of kin means, if the person immediately before death had a spouse or domestic partner – the spouse or domestic partner.
16 If there is no spouse or a domestic partner, a son or daughter over the age of 18 years.
17 If there is no spouse or domestic partner or relevant son or daughter, then - a parent.
18 Section 3 of the Act also defines the term “domestic partner”. In summary s 3 says:
(a) Domestic partner of a person means a person who is in a registered relationship with the person. (This is not argued as relevant in this appeal).(b) Alternatively, an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person for fee or reward or on behalf of another person or organisation.
19 It is the definition of domestic partner together with the other provisions I have mentioned that are at the heart of the appeal before this Court.
20 The Court notes that the definition of domestic partner in the Act is broad and includes a person who provides personal or financial commitment and support of a domestic nature for the material benefit of the other, whether or not they are living under the same roof.
21 Section 3(2) of the Act also provides that the Relationships Act 2008 is relevant to the matters in issue. Section 3(2) of the Act provides, in summary, that:
(a) For the purposes of the definition of domestic partner a registered relationship has the same meaning as in the Relationships Act 2008. (This is not argued as relevant to this appeal).(b) In determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account including any one or more of the matters referred to in s 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
22 I note that the Coroner in his Determination of 5 April 2013 expressly had regard to the matters specified as relevant in the Relationships Act 2008.
23 In this appeal, the Appellant principally argued that the Coroner had failed to appreciate that it was necessary to establish that the relationship of domestic partner, as defined in s 3 of the Act, existed immediately prior to the death of David Lawrence. The Appellant also argued that the Coroner failed to take into account the material before the Coroner which had been provided by persons supporting the Appellant's contentions before the Coroner; put another way that the Coroner had failed to take account the material which contradicted Megan Jones’ evidence of her relationship with David Lawrence.
24 In the affidavit of Jodie Marie Burns sworn 18 April 2013, the deponent provides, as exhibits to that affidavit, all the material which was before the Coroner for the purpose of the Coroner making the subject Determination.
25 Those materials include the materials cited specifically by Mr Kelly for the Appellant in argument as putting forward statements and summaries including as to what those supporting the Appellant’s position said as to a breakdown in the relationship between the deceased, David Lawrence and Megan Jones, at a point in time about some 9 days before David’s death.
26 However, Mr Kelly also correctly conceded in argument that it appeared that the Coroner had received and read the extensive material which had been provided by a large number of persons, including Megan Jones and Stephen Lawrence, in relation to the true state of the relationship between the deceased and Megan Jones.
27 Accordingly, the Appellant’s submission and criticism of the Coroner was, in essence, that the Coroner had not ascribed the appropriate weight to the evidence before him and that the Coroner had erred in not rejecting Megan Jones’ version of the relevant relationship.
28 Mr Kelly also appropriately conceded that the descriptions by various persons of the breakdown of the relationship between David Lawrence and Megan Jones was a matter which had been both specifically noted and addressed in the Coroner's reasons for his Determination of 5 April 2013.
29 In that regard, the Coroner’s Determination of 5 April 2013, after summarising the materials placed before the Coroner relating to the relationship in question, states as follows on the last page of that Determination:
In regard to the break from the 13th March, on all of the evidence I am also satisfied that this was intended by both parties, at the time reached and until David Lawrence's passing, as a temporary arrangement only and one to be revisited in due course. I am further satisfied that it was a change permitted by two young persons who felt, rightly or wrongly, that it could occur between them without endangering the underlying commitment (which remained in place) and that at all relevant times they continued as domestic partners.
30 It is clear that the Coroner so concluded after evaluating the evidence in competing statements asserting the true position in relation to the break referred to in the above passage of the Determination. The Determination itself summarised the learned Coroner’s overall evaluation of all the evidence concerning the state of the relationship between David Lawrence and Megan Jones immediately prior to David Lawrence's death. The Coroner came to the conclusion that the couple’s relationship was a continuing one, having considered all the diverse evidence put before him in relation to both those suggesting David and Megan’s relationship had broken down and the opposing material put forward to establish that the subject relationship continued as a domestic partnership, as defined by s 3 of the Act, up until the date of David Lawrence’s death.
31 The identification of a relevant error of law, as postulated by the Appellant’s Notice of Appeal, in effect requires me to decide that the decisionmaker, namely the Coroner, arrived at a conclusion which was simply not open on the material before the Coroner.
32 However, by reference to the Coroner's reasons for the decision that Megan Jones was the relevant senior next of kin, because Megan Jones and David Lawrence were in a continuing relationship as domestic partners at the relevant time, the Coroner has demonstrated a careful consideration of a very extensive body of evidence and has also expressed a reasoned set of conclusions leading to the ultimate decision under challenge.
33 In any event, this Court’s task on an appeal such as this is not to, as it were, secondguess the Coroner's evaluation of the evidence, but to intervene only if the Court concludes that the decisionmaker, here the Coroner, has arrived at his decision in circumstances in which such a decision was simply not open to him on the evidence.
34 Mr Ribbands, on behalf of the Respondent, has cited case law which encapsulates the applicable principle as noted in Azzopardi v Tasman UEB Industries Ltd[1] in which Kirby P said the following in relation to the identification of an error of law, as analogously required by s 48 of the Coroners Act. In Azzopardi Kirby P (as he then was) said:
The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function.
35 I observe, with respect, that the above passage nicely encapsulates the same considerations as are relevant in this appeal in connection with the identification, or non-identification, of a relevant error of law under s 48 of the Act.
36 It is clear in this case, in my view, that the materials before the Coroner put forward competing versions of facts, competing bases for inferences to be drawn, competing characterisations of the quality, the nature and the duration of the relevant relationship between David Lawrence and Megan Jones. Given the extensive competing evidence presented to the Coroner, I consider that it was perfectly open to the Coroner to conclude as he did in relation to the relationship between David Lawrence and Megan Jones at the time of David Lawrence’s death.
37 Further, in respect of the evidence of Megan Jones, it is clear that the Coroner found that between 2008 and the death of David Lawrence on 22 March 2013, David Lawrence and Megan Jones relied on each other for personal support through good times and bad times, went on all holidays together, celebrated all special occasions together, spoke almost every day and had discussed and come to a mutual agreement as to a temporary break which, in probability, was extant at the time of David Lawrence's death.
38 However, the Coroner was also satisfied that at the time of David Lawrence’s death his domestic partnership with Megan Jones existed and was continuing.
39 The Coroner clearly accepted that Megan Jones’ evidence as to the existence, nature and continuation of the relevant relationship was the best evidence available.
40 Although it is not this Court's role to evaluate the evidence in an appeal of this nature, I observe that there does not seem to be a sound basis for the Appellant to argue that it was not open to the Coroner to make such findings and come to such conclusions as he did in his determination dated 5 April 2013. Further, I observe that there is good reason to think, as the Coroner appears to have, that Megan Jones' evidence was the preferable evidence on these issues. Megan Jones was one of the two people in the relevant relationship and there are obvious reasons why the Coroner may have given little or no weight to the evidence of others who were not in the relevant relationship and who put forward only snippets of communication with David Lawrence or, alternatively, snippets of communication by Megan Jones, and appear to have done so from a very narrow perspective.
41 I repeat, it is not for this Court to review in an extensive or qualitative way the evidence before the Coroner per se. Suffice to say, it is for this Court to consider whether or not the Coroner could have come to the decision which he did, in the circumstances, or put another way, to decide whether or not it was not open for the Coroner to come to the conclusion he did on the materials before him. For the reasons I have summarised, I have come to the view that the Appellant has not established any error of law on the part of the Coroner. This is because the Determination of 5 April 2013 was clearly open to the Coroner to make on the evidence before him.
42 In conclusion, I am not satisfied that the Coroner’s Determination dated 5 April 2013 was one which was not open on the material before the Coroner. Accordingly, for the reasons that I have mentioned, I dismiss this appeal.
43 The Court will extend to 5.00 pm on Friday 19 April 2013 the time fixed by the Coroner for Megan Jones to acknowledge to the Coroner in writing, her willingness to take responsibility for the remains of David Lawrence.
[1] (1985) 4 NSWLR 139 at 151
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