Tasmanian Coronial Practice Handbook

Tasmanian Coronial Practice Handbook

The Tasmanian Coronial Practice Handbook (‘the Handbook’) provides information to legal practitioners on all major aspects of the coroner’s court. The Handbook focusses on investigations involving sudden deaths rather than investigations into the causes and origins of fires and explosions.

In a state with a low population such as Tasmania, it is rare for legal practitioners to be afforded the opportunity to specialise in coronial practice. The Handbook provides guidance for those unfamiliar with the coroner’s court, or with inquisitorial courts in general.

The Handbook is written to convey suitable legal information to practitioners and to be helpful to the educated layperson. There are also small sections for non-legal professionals who assist with the work of the coronial jurisdiction: medical practitioners, religious and cultural groups, funeral directors, insurance companies and the media.

The value of the Handbook lies in legal and community education. Providing information in a clear and practical manner enhances people’s capacity to understand the operations and functions of the coroner’s court. If the functions of the court are better understood, then practitioners and members of the public will benefit and be more satisfied with their interactions with the court, and access to justice is enhanced.

Content warning

Some material contained in the Tasmanian Coronial Practice Handbook (‘the Handbook’) may be distressing to families and friends who have lost a loved one. It includes information about death and mental health that may be upsetting for some people. If you would like guidance on which sections of the Handbook would help you the most, or if you do not want to risk reading content that may upset you, please contact coroner’s court staff.

Disclaimer

This Handbook contains information only; do not use it as a substitute for legal advice. The Coronial Division of the Magistrates Court accepts no liability for any loss, damage or injury suffered as a result of reliance on this document. Every effort has been made to ensure that the information contained in the Handbook is correct, noting that legal authority and practice will change with the passage of time. Please direct all legal enquiries to a qualified legal practitioner.

Enquiries

If you have any general questions about the coroner’s court or the Handbook, or wish to provide feedback, please Contact us.

Representing an Interested Person

Legal practitioners at inquests may represent any interested person (or organisation) (s 52(4)). This provision allows a legal practitioner to be present in court to represent the interests of the families and friends of the deceased person, or any person whose interests may be affected by the coroner’s findings, amongst others. Often government bodies and professionals such as doctors choose to have legal representation in court. Outside the courtroom, any person may engage a legal practitioner to assist them in their dealings with the coroner’s court.

As a legal practitioner representing your client in the coronial jurisdiction, you may perform a variety of duties, both in and out of court.

Out of court duties include:

• writing correspondence
• conducting legal research
• keeping your client informed of the progress of the investigation
• sourcing any document or evidence relevant to the investigation and providing it to the coroner
• liaising with the coroner’s court to aid the smooth flow of information
• seeking access to and reviewing any document or evidence which is relevant to the interests of your client
• making applications and written submissions on behalf of your client
• speaking on behalf of your client in relation to any preliminary matters
• ensuring that any matter relevant to your client’s interests is considered by the coroner.

In court duties include:

• calling witnesses
• questioning witnesses
• examining the evidence
• defending your client’s position
• making submissions
• tendering evidence
• aiding the court with potential findings and recommendations

How to access documents

The following information is designed to assist legal practitioners.

Electronic copies of some findings (including all findings that relate to inquests) are published on the coroner’s court section of the Magistrates Court web site, under Findings. The list of published findings is fully searchable. Most often, a coroner will choose to publish findings from an investigation without inquest if they feel that the information would enhance public health and safety, or if there has been significant public concern about the matter.

For other documentation, you are required to apply to the coroner’s court in order to view the document or receive a copy. Access to coronial documents is only granted to people with a sufficient personal or professional interest in the particular document, so it may be necessary to prove to the coroner that your client has a ‘sufficient interest’ first.

There is no legislative definition of sufficient interest, but the coroner will take into account factors such as the level of professional / personal interest in the investigation and whether giving the person the access or the copy is likely to unfairly prejudice the interests or reputation of another person (rule 26(4)). Being granted access to a particular document does not automatically mean that your client is an ‘interested person’ under the Act. Some parties will have a sufficient interest in one particular document, but not in the investigation as a whole.

For a statement on the meaning of ‘sufficient interest’ in the context of interested persons, refer to Barci v Heffey [1995] VSC 13.

Whether your client is granted access to a particular document will depend on their personal or professional interest in the document, but it may also depend on the current stage of the investigation. Some documents contain information that must be kept confidential until the coroner has made their findings. Other documents may be explained but not given to parties to read. Coroners receive a large amount of documentation with each case, some of these documents are relied upon heavily, other are not considered relevant. Often the coroner will not know how much weight they will give a particular document until they have had the opportunity to consider all of the evidence. If you are granted access to parts of the coronial record, it is important to realise that those documents are not the ‘full story’. The coroner critically scrutinises all information received in light of the evidence in its totality.

The coroner’s court has originals (or copies) of documents connected with current and historical investigations. Often families and friends involved in a coronial matter will not be emotionally prepared to look at this documentation until some years have passed. They are always able to make an application to access coronial documents no matter how many years ago the investigation occurred. Which documents are still available will depend on the nature of the investigation, and how long ago the death, fire or explosion occurred.

Once an investigation is complete, the file is stored in Hobart. If the investigation occurred more than 25 years ago, the records are held at the Archives Office of Tasmania. If you are seeking access to these records, you will still need to apply through the coroner’s court. The rules for access to documents are set out in Rule 26. Once a record is 75 years old, it is publically available and there is no requirement that the coroner approve access (Archives Act 1983 (Tas) s 15). Accordingly, for files older than 75 years, enquiries should be made with the Archives Office directly.

How do I make an application to access documents (Rule 26)?

To gain access to any of the documents on the coronial file, please use the online or paper form provided by the coroner’s court. The online form ‘Application to Access Coronial Records ’ can be found on the Magistrates Court web site, under Forms. Paper copies are available at the coroner’s court).

• Any person can make an application to view, access, or receive a copy of a coronial record.
• A coronial record includes any document on the court file, any oral evidence or recordings of the inquest if there has been one and any physical evidence seized for the investigation.
• The type of documents you are permitted to access will depend on whether you or your client has a ‘sufficient interest’ in that document and on what stage the investigation is in.
• Often the coroner does not grant access to documents during an active investigation.
• If your client requires the assistance of an interpreter (or translator) to understand the content of a document, please include that information in the application. If access is granted and the coroner authorises it, an interpreter or translation will be provided at the court’s expense.
• The coroner will be given information about the application and decide whether to grant access. An application can be refused or access prohibited if necessary.

Copies of documents

• The senior next of kin will receive a copy of the coroner’s findings at no cost and they are not required to apply.
• As a general rule copies are only provided to legal representatives, whereas other parties may be allowed to view the file.
• If you are requesting a copy of a document, there will be a fee payable upon receipt.

Viewing the file

• If you are given permission to view the file, a time and date will be arranged for you to come in to the appropriate coroners’ office and look at the file.
• Please keep in mind that some of the material may be distressing and even detached professionals may not wish to look at all of it.
• If you are unsure about whether to advise your client to look at the file, please discuss the matter with court staff and / or direct them to a grief counsellor (please refer to Who can help)
• Photographs of a distressing or graphic nature and post mortem reports will be removed from the file before viewing. If you specifically wish to view these documents, please let the staff at the coroners’ office know, as special procedures apply.
• A view can enable you to assess the evidence before the coroner and establish which documents, if any, you would like to request a copy of.

Do I have to pay for documents?

The coroners’ office does not charge a fee for access to, and viewing of, coronial records. Where a copy of document is requested, a fee will be payable. The senior next of kin will automatically receive a copy of the coronial findings without charge.

Fees

If your application for a copy of a coronial record is granted, you will be required to pay a fee. The fee is charged per page and it may not be possible for staff to give an exact amount until the documents are prepared. The fee pays for the copy itself and for the staff time taken to generate the document and provide it to you. For a copy of the fees schedule for the coroner’s court, please refer to Forms and fees.

Waiver

If you wish to receive a copy of a document but your client cannot afford to pay the fee, then you may apply to the coroner to “waive” the fee. This means that you will receive the documents at a reduced price or at no cost. You must prove that your client is suffering severe financial hardship (as well as proving that they have a sufficient interest in the document / proceedings to be granted access).

To request that a fee be waived, write to the coroner’s court and provide all relevant information on the application, including full details of your client’s financial situation and their ability to pay.

The role of counsel assisting throughout the coronial process

Ideally, counsel assisting is appointed at an early stage.  Although exceptions occur, coroners are keen to commence working with counsel assisting when investigations on the coroner’s file are completed but the inquest date has not yet been set.

A typical inquest will involve the following stages:

Stage 1 - Appointment

The clerk of the Coronial Division will formally notify counsel that they have been appointed as counsel assisting, and they will be contacted by the coroner or coroners’ associate regarding arranging an initial meeting and allocating tasks.  The clerk of the Division may provide counsel with contact emails and details.

In the event of a delay in being contacted, it is appropriate for counsel to contact the coroner or coroners’ associate to enquire as to the progress of the investigation, whether a copy of the file is available, and the current tasks required of counsel.

Once counsel assisting has their first contact with the coroner the tasks they may be required to undertake will include, but are not limited to:

• reviewing the existing evidence
• meeting with the coroner and coroners’ associate for preliminary discussions regarding:
  • the issues arising, the scope of the inquest and “live” issues of the evidence
  • whether any further investigation is necessary
  • identifying the interested persons /organisations
  • establishing the preferred methods of communication between counsel assisting, the coroner and coroners’ associate, and also clarifying how the coroner wishes to be addressed in informal and formal settings
  • allocating the general division of tasks between counsel and other staff within the coroners’ office
• preparing and obtaining a ‘to-do’ list, which may include the matters listed above.

Given the relationship between counsel assisting and the coroner is a unique one, differing from the usual “arm’s length” relationship between the judiciary and counsel, it can be a large adjustment for counsel assisting to feel comfortable communicating directly with the coroner and working closely together.  Counsel assisting should not be afraid to contact the coroner directly, or to contact them for guidance between arranged meetings.

Whilst counsel assist the coroner, they do not act for the coroner.  They are independent, and bring their own legal mind to bear on the proceedings.

Stage 2 - Preparation

At this stage, the role of counsel assisting will involve:

• a second meeting with coroner
• preparation of a list of issues in relation to the scope of the inquest, which is prepared in consultation with the coroner
• identifying which witnesses should be called
• preparing a draft timetable and estimated hearing time
• preparing the exhibit list (to the extent possible) and ensuring that exhibits are in order
• determining whether any further affidavit or documentary evidence is required
• ensuring that interested parties have been formally notified in writing of the general nature of the issues to be addressed at inquest (and identifying the nature of evidence that may be subject to adverse comment), and invited to provide email addresses for the delivery of materials and correspondence
• ensuring that documentary evidence has been disclosed to interested parties by staff within the coroners’ office
• arranging a case management conference (ideally this will take place within four weeks from the time the interested parties are notified)
• giving notice of the case management conference to interested parties - this notice may be given orally or in writing (rule 22)
• conducting a scene visit with the coroner if appropriate.

Stage 3 - Case Management Conference

Case management conferences can be informal, but in practice they are often held in a traditional court environment as they are an important part of the integrity of the inquest process.

The role of counsel assisting at this stage of the inquest includes the following:

• ensuring that administrative staff or coroners’ associates have arranged a court room and facilities for the date of the conference and that a court clerk is available
• appearing at the case management conference and outlining the issues to be canvassed at inquest as well as the witnesses to be called and estimated hearing time
• ensuring that all parties have relevant documents.

At the end of the conference or conferences (depending on how many are required), there should be agreement as to the scope of the inquest, witnesses to be called, suitable dates for the inquest or the ability to list on a date known to be available, and an estimate of hearing time.

Stage 4 - Pre Inquest

Prior to the inquest, counsel assisting should finalise the witness list and prepare an inquest plan. The coroners’ associate will issue summonses for the witnesses, however counsel assisting should confirm that this has occurred.  Where possible, witnesses should be advised of a realistic time to appear to avoid waiting or delays.

Other tasks of counsel assisting prior to inquest include:

• considering whether a second or subsequent case management conference is required
• preparing an opening address:
  • the purpose of the address is to outline the scope of the inquest and the evidence to be adduced
  • the address should be as detailed and clear as possible, and be focussed on the issues, without making conclusions
  • counsel assisting can seek review or input from the coroner if appropriate
• ensuring the exhibit list is in order:
  • the exhibits need not be tendered in the same order as the material appears in the investigation file, however generally the first exhibits are always the same in each inquest, being the Report of Death, affidavit of identification, affidavit of life extinct, affidavit of the forensic pathologist, post mortem report, affidavit of the toxicologist and toxicology report
• ensuring that all questions and requests from other parties are resolved and dealt with, and that all parties have relevant documents.

Stage 5 - Inquest

During the inquest, counsel assisting perform the following tasks:

• make an opening address
• call and question witnesses. The manner in which witnesses are questioned can vary, and can be quite different to examination-in-chief in adversarial litigation.  A technique that is often employed by counsel assisting it is to have the witness read their affidavit or statement into evidence, rather than just be asked questions.  The rationale for this is to ensure that the content of the statement is publicly ventilated and that the witness’ memory is refreshed and the witness has the opportunity to change any evidence
• in matters where a witness’ statement is an electronically recorded interview (that could be of some extended duration), it may be appropriate, with the consent of all parties and the coroner, for the witness to either:
  • have the interview played back to them, and for them to agree that it was an accurate recording, or
  • to agree that they were interviewed and answered all questions truthfully. This second course is often the most efficient
• where a party is not represented and there is evidence that is likely to lead to an adverse finding against that party, the rules of natural justice require that counsel assisting should ensure that when leading evidence they explore and test the evidence
• speak with the deceased person’s family members.   Often the family members are not represented, in which case counsel assisting should enquire whether there are any questions they have for each witness, and ask the questions for them if they are not comfortable asking questions themselves
• at the conclusion of the evidence, counsel assisting should enquire whether the coroner requires written or oral submissions.  If written submissions are required, counsel assisting should ask the coroner to set a timetable for when they need to be filed and a date for the parties to appear and speak to their submissions.

In relation to the submissions, again it is appropriate that counsel assisting confer with the family members of the deceased (if they are unrepresented) to confirm whether there is anything that they wish to say in the submissions.

Counsel assisting should ensure that any submissions regarding recomendations urged are clear and sensible.

Whilst the scope of the inquest and the issues to be canvassed are set well in advance of the inquest, counsel assisting should be prepared for other evidence to come out during the course of the inquest, such as new witnesses coming forward or witnesses changing their accounts.  A flexible approach is necessary.

Stage 6 - Findings

Prior to delivery of the findings, counsel assisting may be required to assist the coroner by providing summaries of evidence or conducting research.

Applications

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 and fees 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

Legislative applications

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 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 [1995] 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)):

1. the investigation was or may have been tainted by fraud; or
2. the investigation was not sufficiently thorough or was compromised by evidentiary or procedural irregularity; or
3. there are mistakes in the record of the findings; or
4. new facts or evidence affecting the findings have come to light; or
5. the findings were not supported by the evidence; or
6. 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 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.

Administrative applications

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 and fees 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 us

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 at Contact us 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.