Devine & Devine v Coroner, State of Queensland & Johnson & Johnson Pacific Ltd [1997] QSC 197

{ State Reporting q1-} Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. Issued subject to correction upon revision. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J Application No 17 of 1997 MR P K DEVINE & MRS S L DEVINE Applicants and MR G M CASEY CORONER Fi~st Respondent and STATE OF QUEENSLAND Second Respondent and JOHNSON & JOHNSON PACIFIC PTY LTD Third Respondent CAIRNS .. DATE 18/09/97 .. JUDGMENT c II q \ \ . \ 1 -- 1 of 7 -- 180997 D.1 T28-29/DDD M/T CNS572/97 (Byrne J) HIS HONOUR: This is an application for judicial review of the determination of a Corner to decline to order that tissue blocks and microscopic slides derived from the autopsy of the daughter of the applicants be delivered up to them. The matter has been the subject of correspondence during which reasons were sought for the Coroner's unwillingness to order pursuant to Section 49(3) of the Coroners Act 1958 the delivery to the applicants of the tissue blocks and microscopic slides. The Coroner gave a response. At an early stage of this hearing, a question was raised concerning its sufficiency. Eventually, the applicants decided not to press for a further statement of reasons. 2 JUDGMENT -- 2 of 7 -- 180997 D.2 T26-27/JFG M/T CNS572/97 (Byrne J) The relief now sought is restricted to orders which would have the effect of requiring the Coroner to direct that the tissue blocks and slides be given to the applicants. The applicants are deeply concerned to obtain the return of the tissues. Their daughter died some years ago. The circumstances surrounding her death have been the subject of three Coronial inquiries. The most recent response from the Coroner concerning their attempt to obtain the slides and blocks (or the tissues in them) is his letter dated 9 September 1997, in which he wrote: "As these items represent irreplaceable archival histological records, it is imperative that they be preserved in an appropriate environment to minimise the opportunity of damage. II His letter contained-a proposal to afford the applicants access under certain conditions. The applicants are not content with that idea. They want tissues. Section 49(3) of the Coroners Act was the only suggested source of a power in the Coroner to order the delivery to the applicants of the tissue blocks and slides or the tissues they contain. There is a doubt whether that subsection empowers a Coroner to order delivery up of tissues taken at an autopsy which have been subjected to scientific analysis, except to the State. 3 JUDGMENT -- 3 of 7 -- 180997 D.2 T26-27/JFG MIT. CNS572/97 (Byrne J) The tissues may be "property" within section 49(3): Doodeward v Spence (1908) 6 CLR 406, especially at page 414. If so, nonetheless it is a question whether the property is vested in the State of Queensland. If that is so, it is difficult to see that the subsection permits a Coroner to order that the property be given to the applicants. It is, however, unnecessary in the view I take to consider that question further. Nor is it necessary to decide whether The Libraries and Archives Act 1988 prohibited the Coroner from ordering that the tissues be surrendered to the applicants. I will therefore deal with the application on the footing that the decisive question is whether the applicants show an adequate basis for intervention in terms of the Judicial Review Act 1991. Judicial review is not the occas'ion to reconsider the merits of a reviewable decision. In these proceedings the essential question is not whether the Coroner's decision was appropriate. Rather it is whether it was contrary to law. To succeed, the applicants must make out one or more of the grounds specified in section 20 of the Act. The third inquest into the death of the applicants' daughter ceased in May. Since then there has been correspondence concerned with body parts of the applicants' daughter. Some remains have been given to them. This application relates to slides and blocks derived from the autopsy which are held by the John Tonge Centre for Forensic Sciences, a sub-department of the Department of Health. 4 JUDGMENT -- 4 of 7 -- 180997 D.2 T26-27/JFG MIT CNS572/97 .(Byrne J) Associate Professor Naylor, a specialist pathologist is the Centre's Deputy Director. His affidavit discloses that there are 31 tissue blocks and 55 microscopic slides. The blocks are small pieces of chemically preserved and processed tissue obtained from the autopsy. The tissue is embedded in solidified paraffin wax and is attached to a colour-coded and numbered plastic cassettes. Each tissue block is used to prepare a thin section suitable for microscopy. Each section is mounted on a glass microscope slide, stained and covered with mounting reagent and a thin glass cover slip. \ 5 JUDGMENT -- 5 of 7 -- 180997 D.1 T28-29/DDD MIT CNS572/97 (Byrne J) Although one block usually results in one section, many sections can be and sometimes are produced from a single block. Dr Naylor deposes that, because each section has a finite thickness and therefore consumes part of the parent tissue block, all the sections from a particular block, although similar to one another, are unique. And so if the microscopic abnormalities under consideration are particularly small and localised, only one section from a given block may contain the abnormality. He deposes that the first set of slides cut upon which a diagnosis was made is "unique and irreplaceable". Generally speaking, second and subsequent slides cut from the blocks may also contain material of similar importance. Dr Naylor is concerned that the delivery up of the slides and blocks to the applicants would affect the capacity of the Centre to carry out its responsibilities. It also appears from Dr Naylor's affidavit that the slides and blocks from this autopsy were influential in the interpretation and resolution of the case. This matters particularly to the prospect that there might be a further inquest or inquiry into the death. If the material were not suitably preserved, that could jeopardise the adequacy of such an investigation. Preservation of the slides and blocks would enable the case to be reviewed in future. 6 JUDGMENT -- 6 of 7 -- 180997 D.1 T28-29/DDD MIT CNS572/97 (Byrne J) There are additional grounds upon which the Coroner was entitled to conclude that the blocks and slides should be preserved in an appropriate environment. The. slides and blocks are, in Dr Naylor/s view, "a vital resource for future medical and associated researchers who might for example wish to investigate a hypothesis concerning the possible role of a newly discovered viral infection in causing sudden death". Dr Naylor speaks of an accepted international practice in pathology laboratories concerning retention of such slides and blocks. Such preservation of "original medical evidence" facilitates research which may carry implications for medical treatment or public health. He is also troubled about the "professional credibility" of the Centre. This perhaps could be impaired by surrendering these blocks and slides within the 14 year minimum period anticipated by the National Pathology Accreditation Advisory Council for the retention of such material in pathology laboratories. No doubt the Coroner understood the depth of the applicants/ concerns to have the tissues. But there were countervailing considerations bearing upon the interests of the public. The -- Coroner/s determination that the items represent material which ought to be preserved in the Centre cannot be characterised as so unreasonable that no reasonable person could have made it. Nor am I persuaded that the applicants have made out any of the grounds specified in section 20 of the Act. The application will therefore be refused. 7 JUDGMENT -- 7 of 7 --