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Jones v State Coroner & Anor

Unreported Citation: [2019] QSC 175

This fascinating case engages in an interesting discussion of issues arising from the interrelationships between the 1958 and 2003 Coroners Acts. Of particular note is Wilson J’s discussion of whether the application for judicial review was lodged within a “reasonable time”, even though it was lodged some seven years after the relevant decisions were taken. Further, with respect to coronial practice, her Honour answered the question of when an inquest would involve a “pre-commencement death” such that the transitional provisions of the 2003 Act would dictate that a reopened inquest would be governed by the 1958 Act. Her Honour also examined which Act should apply to the reopening itself.

Wilson J

24 July 2019

The applicant’s brother, Anthony Jones, disappeared on or about 3 November 1982. [1]. Fifteen years after he was reported missing, the Queensland Police reported to the coroner that he was a person missing for more than 12 months. [10]. The first inquest was held between 1998 and 2002 under the Coroners Act 1958 (“the 1958 Act”). [1]. The coroner found that Anthony Jones “is deceased, and that he died on or around 3 November 1982 at the hands of a person or persons unknown”. [13]. After a request by another of the applicant’s brothers, the Queensland Attorney-General (the second respondent), on 17 September 2010, directed the State Coroner (the first respondent) to reopen the inquest pursuant to s 47(1) of the 1958 Act. [15]. The State Coroner duly decided to re-open the inquest. [17]. The reopened inquest commenced on 29 August 2016. [19]. The inquest presently stands adjourned pending the result of the instant proceedings. [23].

Wilson J decided three central issues in these proceedings. First, whether the application was made within a reasonable time. Secondly, whether Anthony Jones’ disappearances constituted a “pre-commencement death” for the purposes of s 100(1) Coroners Act 2003 (“the 2003 Act”). Thirdly, which Act a validly reopened inquest should be heard under. [28]. The significance of whether the inquest should be heard under the 1958 Act or the 2003 Act is that the latter would give the Jones family the right to make submissions as to the coroner’s findings, and to receive comments as to matters of public health or safety and the administration of justice, from the coroner. [89].

Reasonable time

The question before the Court was whether the application was commenced within a “reasonable time” from when the decision was made, pursuant to s 26(3) Judicial Review Act 1991. [30]–[34]. Wilson J found that the applicant first became aware of the decisions in 2011. [46]. The instant proceedings were commenced on 3 April 2018. [24]. Although the applicant submitted that he only became aware of the impact of the decisions in 2018, her Honour stressed that the relevant time was when an applicant became aware of the decision, not of its consequences. [51]–[52]. Her Honour noted that a delay of nearly seven years was “unprecedented”, a finding which weighed strongly in favour of the Court refusing to consider the application. [69]. The applicant’s explanation for the delay, meanwhile, was that he did not receive legal advice on the impact of the decisions until March 2018. [70].

While the second respondent accepted that she would not suffer any material prejudice by the application being heard, she did submit that there would be significant prejudice to other, associated, parties involved in the inquest, including the first respondent. [77]–[78]. In her submission, this considerably outweighed “any public interest in the determination of a question of statutory construction” or in the inquest being conducted under the correct legislation. [79]. Wilson J noted that the Coroner would not be bound by the rules of evidence, and so would be able to take the evidence from the re-opened inquest into account in any newly re-opened inquest under the 2003 Act. [80]. Conversely, were the applicant to succeed, there is no guarantee that the inquest would be re-opened again, potentially putting the Jones family in a worse position. [86]. Ultimately, Wilson J found that the time between the decision being made and the application being lodged “is excessive and overwhelms any of the other considerations”. [99]. Accordingly, her Honour refused to consider the application. [100].

Pre-commencement death

Wilson J formed the view that the application would have failed in any event, and provided reasons to give the Jones family finality. [102]. Under s 100 of the 2003 Act, the 1958 Act continued to apply to a “pre-commencement death”, being, inter alia, one in relation to which an inquest was held before commencement, but which was reopened after it. [117]. The applicant submitted that the 1958 Act ought not to have been applied, as the first inquest was into a disappearance, not a death. [104]–[105].

Wilson J disagreed. Her Honour noted that s 100(4)(b) defines a “pre-commencement death” as one “in relation to which an inquest was held”. [130]. Thus, Parliament explicitly eschewed defining the phrase as an inquest into a death under s 7B of the 1958 Act, instead favouring the wider “in relation to”. [136]. In this context, “in relation to” includes not only inquests into deaths under s 7B, but also inquests which “resulted in a finding that a person was deceased”. [137]. Were this not the case, s 100(4)(b) would simply refer to the same class of cases as s 100(4)(a) and therefore be redundant. [140]–[141]. It follows that, given the first inquest resulted in a finding of death, the re-opened inquest was into a pre-commencement death. [138].

Which Act applies to the reopening

Wilson J also considered it prudent to clarify the ambiguity regarding which Act applied to a re-opened inquest, particularly as the “reopening provisions are materially different” in the two Acts. [151]. Crucial among these differences is that the 2003 Act “only allows a reopening to re-examine the finding”, whereas the 1958 Act “provides for the reopening, without qualification of the inquest”. [154]. Section 100(1)(a) of the 2003 Act, which provides that the 1958 Act continues to apply to “a pre-commencement death”, of which this is one, “could be rendered obsolete” if the 2003 Act were to apply to the re-opening of the inquest. [160]. Thus, a “reopened inquest under the 2003 Act could fetter the application of the 1958 Act”. [164]. Because of this, and because Parliament did not take up the option of expressly requiring that an inquest be reopened under the 2003 Act, any re-opening of the inquest into a “pre-commencement” death remained under the terms of the 1958 Act. [165]–[166].

Even if this were not the case, her Honour found that even if the inquest had to be re-opened under the 2003 Act, the decisions would not have been invalid. [168]–[171]. Indeed, in her Honour’s view, this point is ultimately futile: whichever Act governed the re-opening of the inquest, s 100(1)(a) still dictated that the inquest itself, once re-opened, would be governed by the 1958 Act. [174].

In the event, the application for judicial review was dismissed. [177].

M Paterson