In December 2016, the Victorian Government announced that it had requested the Coronial Council of Victoria to undertake a review of the appeals and reopening processes for coronial investigations under the Coroners Act 2008 (Vic) (the Act).
The request was made to ensure that the laws are working appropriately, having regard to the interests of families, the history of the existing provisions and the operation of coronial legislation in other Australia states.
Cover for coronial investigations is available under many forms of insurance including general liability, PI, management liability and D&O. The potential changes are therefore likely to impact on local and overseas insurers who underwrite risks in Victoria.
The reopening provisions
The Victorian media has recently publicised community disquiet expressed in some high profile coronial investigations where it was thought by families of persons whose death were being investigated that the grounds of appeal under section 87(1) of the Act were too narrow, and the one month time period in which to appeal was too short.
Section 77 of the Act provides that an investigation may be reopened if the court considers there are new facts and circumstances and that it is appropriate to reopen the investigation. Factors to be taken into account include: the passage of time, the distress caused to interested parties and whether a reopening is desirable in the interests of justice.
The Law Institute of Victoria (LIV) has recommended that the reopening provisions in the Act should remain.
The appeal process
The more contentious issue relates to the grounds for appeal under section 87(1). The Supreme Court may allow an appeal if it is satisfied that it is necessary and desirable in the interests of justice to do so, but pursuant to section 87(2) an appeal can only be made on a question of law. This provision was intended to narrow the grounds for appeal to avoid unmeritorious appeals and unnecessary stress for the families of a deceased.
However, in other states, particularly in NSW and the ACT, the grounds for appeal are broader: they include an appeal in the interests of justice because of fraud, rejection of evidence, the irregularity of proceedings, insufficiency of an enquiry and the discovery of new evidence or facts.
An LIV submission noted that there had only been one appeal against a Coroner’s finding to the Victorian Supreme Court since the 2008 amendments. The LIV noted that, while it is important to achieve finality in any coronial investigation, and appeals as of right may undermine the community’s sense of reliability in those findings, this must be balanced against the needs of families of deceaseds and the interests of natural justice.
As for the time period in which to make an application for the reopening of an investigation of 28 days, there has been public concern that the time period was too short for parties to seek legal advice. The LIV recommended that this period be extended to three months.
The Act stipulates a period of six months from a Coroner’s determination for a party to appeal. As this is inconsistent with the other provisions in the Act, the LIV recommended that the time in which to appeal be reduced to three months from the date of the determination.
In our view, the LIV recommendations strike an appropriate balance between the rights of interested parties and the efficient determination and resolution of coronial investigations. Appeals or reviews of coronial findings are relatively rare in the court system, so it is unlikely these proposed changes will bring about applications for reopening or appeal that would be a burden to the court system.
Implications for insurance
For liability insurers and self-insureds who may fund the representation of their insureds at coronial investigations in anticipation of a subsequent liability claim, the proposed broadening of the appeal grounds may be welcomed. They provide additional and broader grounds to challenge an adverse finding made by the court. Conversely, if introduced, these expanded opening and appeal rights may expose a party to the cost of further review and investigation by the court at the instigation of a disgruntled interested person involved in the coronial investigation process.