During an investigation, parties may wish to make various applications to the coroner’s court. The general rules are that an application should be written and should:
- be made as soon as possible after any relevant event
- explain the relationship between the person making the application and the subject investigation
- specify clearly the reasons why the application is being made
- specify clearly the orders that are sought.
A General Application Form is available in the Forms section of the Magistrates Court website, and at all coroners’ offices, for use where there is no set form. You are not required to use this form but it is preferred. There are no ‘filing fees’ on applications made in the coroner’s court.
Applications in the coroner’s court
The most common applications made in the coroner’s court are set out below. For practical reasons, less common applications are simply listed, together with the relevant legislation.
Application to access documents (Rule 26)
Any person with a sufficient interest in a particular document can apply for access to that document. The ‘Application to Access Coronial Records ’ form is available in the Forms section of the Magistrates Court website, and at all coroners’ offices.
For more information, refer to Key Elements in the Process: How to access documents.
Application for leave to appear as an interested person (Act s 52)
Any person can apply to a coroner to appear as an interested person. There is no set form.
You may make this application on behalf of your client at any stage of the proceedings, however the earlier the application is made, the greater the party’s potential impact upon the investigation. You may make your application verbally, but an application in writing is preferred.
Your client must have a ‘sufficient interest’ in the proceedings generally to activate the rights of an interested person (close family members, close friends or persons whose interests may be affected by the findings will usually qualify). For a statement on the meaning of ‘sufficient interest’, refer to Barci v Heffey  VSC 13. If your application is refused, you may apply to the Chief Magistrate to have the decision reviewed.
Applications under s 58: to reopen an investigation and re-examine the findings
Any person with a sufficient interest in the findings of an investigation can apply to reopen a coronial investigation and have some or all of the findings re-examined. The ‘Application to reopen an investigation and re-examine some or all of the findings ’ form is available on the Magistrates Court web site under Forms, and at all coroners’ offices.
If the application is successful, the Chief Magistrate or the Supreme Court reopens the coronial investigation and examines the findings (Act Part 7A). The Chief Magistrate also has the jurisdiction to reopen an investigation on their own motion. The Chief Magistrate may direct a coroner to reopen the investigation and re-examine the findings.
An investigation can be reopened if the Chief Magistrate is satisfied that (s 58(1)(a-e)):
- the investigation was or may have been tainted by fraud; or
- the investigation was not sufficiently thorough or was compromised by evidentiary or procedural irregularity; or
- there are mistakes in the record of the findings; or
- new facts or evidence affecting the findings have come to light; or
- the findings were not supported by the evidence; or
- there is another compelling reason to reopen the investigation.
A coroner who is reopening an investigation or re-examining findings under this section has the power to affirm the findings, vary the findings or quash the findings (s 58(5)). If a person makes an application to the Chief Magistrate to reopen an investigation and that application is refused, the person may appeal to the Supreme Court (s58(7)). The Supreme Court also has the power, upon application, to declare that any or all of the findings of an inquest are void (s 58A). If this occurs, the inquest may be reopened, or even started again from the beginning by a different coroner.
One of the important principles of a democratic judicial system is that people can test the results in a higher court. The ability to have another judicial officer examine the coronial process adds to public confidence in the coroner’s court and ensures that proceedings are conducted with the highest level of accountability and transparency.
Application for care and control of articles (Act s 60 / Rules r 24)
Any person with a legal or equitable right to an article, substance or thing that is in the custody of the coroner may apply for care or control of that article. There is no set form.
A coroner can take legal custody of any article, substance or thing for the purpose of an investigation. If you wish to apply for care or control of such an article, you will be required to prove your client’s legal / equitable right to the article as part of the application process.
The coroner has power to make orders (and to hear applications) at any time the articles are in their custody. Any application must be in writing and specify the reasons why the order is sought. The Director of Public Prosecutions and any person to whom this section applies are entitled to be heard on any such application; therefore, they must be served with any application. In this context, ‘any person to whom this section applies’ means any other person who may have a legal or equitable right to the article, substance or thing.
If the coroner makes an order granting your client care and control of an article, it is important to note that the coroner retains legal custody of the article until the findings are handed down. As such, these articles cannot be altered or disposed of until the investigation is at an end. Alteration includes deleting electronic files.
If you make an application to a coroner under this section and it is refused, you may apply to the Chief Magistrate to have the decision reviewed.
Application for an inquest into a death (Act s 27(1) and Rules r 5)
Any person with a sufficient interest in a death may request that a coroner hold an inquest into that death. There is no set form.
This application must be made as soon as practicable after the relevant death. The request is to specify the reasons why the application is being made and, if it is not made in writing, it must be confirmed in writing within 24 hours.
If the application is refused, the coroner must send a notice to the person who made the request informing them of the refusal. Within 14 days of receiving the notice, that person can go to the Supreme Court and apply for an order that an inquest be held (Act s 26(2) and Act s 27(3)).
Application that an autopsy not be performed (Act s 38(1) and Rules r 6)
For information on the procedures which form an autopsy and how to object to an autopsy, refer to Key Elements in the Process: Investigation of deaths – Post mortem examinations, Autopsy.
Less common legislative applications that can be made in the coroner’s court include application:
- for an investigation into a fire or explosion (Act s 42 and Rules r 14)
- to access a fire or explosion area (Act s 49)
- to access the place where death occurred (Act s 34)
- that an inquest not be held into a workplace death (Act s 26A(2))
- that the publication of a report be restricted (Act s 57)
- for custody of articles (Act s 61)
- to vary or revoke an order as to custody of articles (Act s 62)
- that an inquest be held into a fire or explosion (Act s 42(1) & s 44(1))
- may apply to Supreme Court if application refused (Act s 44(2))
- that an autopsy be performed (Act s 37(1) and Rules r 5)
- may apply to Supreme Court if application refused (Act s 37(3))
- that a body not be exhumed (Act s 39(3)) – Note: it is recommended to apply to the Supreme Court and to the Chief Magistrate within the same time frame.
Application to have a fee waived or reduced
If your client is unable to pay a court fee, you may apply to the coroner to “waive” some or all of the fee so that they do not have to pay, or they pay less. To request that a fee be waived, write to the coroner’s court and provide all relevant information on the application, your client’s financial situation and their ability to pay.
Application to appear in a matter by telephone or via a video link
Please use the current forms, which are available in the Forms section of the Magistrates Court website.
Application to give evidence from a protected witness room
In certain circumstances, an especially vulnerable witness (such as a child) may be permitted to give their evidence from another room. The witness sits in front of a television screen where they are able to view the courtroom and those in the courtroom can see them. If you wish to discuss your client’s use of the ‘protected witness room’ to give evidence, please contact the coroner’s court.
Application to be declared senior next of kin
Any person can apply to be recognised as the senior next of kin. There is no set form.
If you wish to assert that your client is the correct senior next of kin under the legislation, you can make an application to the coroner. It is important to note that the question of who is senior next of kin is only relevant when the opportunity arises to exercise a right that is exclusive to that role.
The only rights that are exclusive to the senior next of kin are the rights to:
- object to an autopsy (s 38)
- object to exhumation (s 39)
- be notified of the coroner’s decision not to hold an inquest (s 26(1)(c))
- request the coroner not hold an inquest into a workplace death (s 26A(2)).
Each time one of these matters arises, the coroner is required to give the senior next of kin the opportunity to exercise their right/s. It is before these points that any application should be made. To make an application, you must provide the coroners’ office with any information, along with any submissions, which tend to prove that your client is the correct senior next of kin. The method of providing this information will depend on which right the senior next of kin is to exercise. In the case of objection to autopsy, time is of the essence and so applications should be made orally by telephoning the coroners’ associates immediately (after hours, please call 131 444 and speak with police).
In each case where there is a dispute as to the identity of the senior next of kin, any other parties asserting the same status will be invited to provide information to aid the coroner’s decision. Once again, the nature of the right to be exercised will determine whether this is done orally or if there is time for letters to be sent explaining the process and submissions to be made in writing.
There is no right under the Act to challenge the coroner’s decision as to who is the senior next of kin. Appeal under administrative avenues may be possible.
Application to request that someone else be declared the senior next of kin
The senior next of kin can apply to delegate their responsibilities to another person. There is no set form.
If your client is unable to exercise the rights of the senior next of kin due to medical or other reasons, the designation of senior next of kin may pass to the next most qualified person under the definition in section 3A. In this case, please contact a coroners’ associate to discuss the matter.
If your client has been designated senior next of kin but does not want to take on the role, they can delegate the role by asking another person to take on the role. You should prepare a statutory declaration or affidavit to this effect, signed both by your client and by the person they choose and forward it to the coroners’ office. Please explain the role of senior next of kin to the delegate before they sign, to ensure that they fully understand this role.
Applications to the Supreme Court
In some cases, a party that does not agree with a finding or decision made by a coroner can apply to the Supreme Court to have that finding or decision overturned. The coroner’s court advises any person making an application to the Supreme Court to seek legal advice first.
The legislation contains provision to apply in the Supreme Court for an order:
- that an autopsy not be performed (Act s 38(3))
- that an autopsy be performed (Act s 37(3))
- that an inquest be held into a death (Act s 26(2) and Act s 27(3))
- that an inquest be held into a fire or an explosion (Act s 44(2))
- that a body not be exhumed (Act s 39(4) and Rules r 10)
- that any or all of the findings of an inquest are void (Act s 58A(1))
- that an investigation be reopened (Act s 58(7))
- to review orders as to custody of articles (Act s 63).
Please note: there are many potential applications to the Supreme Court that are not specified in the legislation.
In most legislative matters, you will be required to apply to the coroner’s court in the first instance, and only if that application is refused do you then apply to the Supreme Court.
To apply for, vary or revoke an order of the coroner’s court in the Supreme Court (including ‘appeals’ and ‘reviews’), please file a ‘Form 3: Originating application intending to be served’ from the Supreme Court Forms List in the Supreme Court Civil Registry closest to you. If you file a Form 3, you will also need to serve the application and serve a ‘Form 6: Notice to be given to persons ordered to be served with notice of application’ on the coroner’s court, directed to the coroner who made the decision you wish to challenge.
Any applications made in the Supreme Court are to be made in accordance with Rules of Court in force under the Supreme Court Civil Procedure Act 1932 (Act s 68). There will also be fees associated with any application to the Supreme Court.
For further information, refer to the Fees Schedule of the Supreme Court of Tasmania.
Judicial and administrative review
In addition to rights of review conferred by the Act and set out in the previous section, prerogative relief is available in circumstances where a coroner has made a decision that is in excess or want of jurisdiction. As to the Supreme Court’s power to grant prerogative relief (or judicial review) in respect of coronial matters, refer to R v Matterson; ex parte Moles (1994) 4 Tas R 87.
No application for review is able to be made pursuant to the Judicial Review Act 2000 (see section 4 (2) and schedule 1 of that act).
An application for prerogative relief may be made by a person with a sufficient interest (or standing). The question of sufficiency of interest was dealt with by the High Court in Annetts and Anor v McCann and Ors. (1990) 170 CLR 596.
The most common prerogative writs issued by superior courts to lower courts (including coronial courts) are writs of certiorari and mandamus, which are in effect orders holding a purported exercise of power to be invalid and orders requiring the exercise of a power in accordance with the law. The Supreme Court Rules 2000 now specify the relief granted is ‘similar to’ certiorari and mandamus.
The authorities make it clear that superior courts exercise a high degree of restraint against interfering with coronial decisions.
It should be emphasised that judicial review is only available where an error of law is alleged.
For more information, please contact the Supreme Court of Tasmania.