Estate of JOHN LANG ALFRED UGLE late of 16 George Street Kensington and 7 Reen Street St James in the State of Western Australia, Public Servant (Dec)

Administration - Possession of a body for burial - Determination by Coroner

Burrows v Cramley [2002] WASC 47

Gilliott v Woodlands [2006] VSCA 46

Re Boothman SM; Ex parte Trigg, unreported; SCt of WA; (Owen J); Library No 990031; 27 January 1999

1 It is in the nature of these applications that there is often only a short time for parties to prepare their case and materials and to respond to the other side's case. This may lead to some possibility of injustice. Justice is relative not absolute and there has to be a balance between the need for prompt expedition of a matter that involves grief and loss to many people, together with the need to secure the burial of a person reasonably promptly, and the need for a full exploration of disputed matters. In this case, given much time, many issues could be ventilated and explored, but time is one thing that is simply not available. Pressures of time, stress and pain add to an already emotional situation where there are no winners and losers, only deeply held and legitimate feelings that are exacerbated by uncertainty. This is why I am sitting into the evening to deliver judgment after a hearing that commenced this morning, was adjourned until the afternoon, and continued after normal Court hours.

2 This is an application on originating summons by a son, supported by many members of an extended family, to bury his father on Yamatji land in Geraldton in the tradition of the Yamatji people. It is necessary for him to bring the application. Messrs Bowra & O'Dea are the first defendants (substituted by my order as Mr Oorschat, the originally named first defendant, is simply their employee). Unless restrained Bowra & O'Dea will proceed on Monday, 19 March 2007, with a burial service in Perth or Fremantle on instructions from Ms McGlade, the second defendant, who was living with the deceased when he suffered an unexpected heart attack and died on 27 February 2007, just as he picked her up from work.

3 The application was filed only two days ago, shortly after the Deputy Coroner had made a decision releasing the body to the second defendant. The parties have been able to support their case with extensive affidavit evidence that I have now read and absorbed. I understand that each of them would have wished for the opportunity for more time to respond and to call more evidence. Each has made application to cross-examine. I have refused leave to cross-examine, partly for the reasons I earlier expressed in relation to balancing the needs of justice.

4 It is clear that there are fundamental differences on many points. Some cannot be resolved. On other points, cross-examination may have helped to clarify the issues. However, it is the usual practice in applications such as these that they are decided on affidavit. Time does not permit a more leisurely examination of the evidence such as may be achieved by a trial.

5 Chiefly, however, I do not consider that cross-examination would significantly add to the state of knowledge on relevant matters that I have gleaned from the affidavits and to which I will shortly refer.

6 The principles are conveniently set out by Pullin J in Burrows v Cramley [2002] WASC 47 at [3] and particularly at [15] - [27]. They largely encompass the principles of law that I will apply, including the need to take into account cultural and other values.

7 Although there is dispute by the second defendant, supported in part by the affidavit of Rita Ugle at par 11, in relation to whether the plaintiff is the first or second son of the deceased, I proceed on the basis that each party would have a right to apply for letters of administration, the deceased dying intestate. I also find that each party is ready, willing, and able to promptly proceed with the burial. Necessarily, there would have to be some delay beyond Monday for the plaintiff but the issue of that delay is not really decisive or important.

8 I find that the deceased and the second defendant were in a de facto relationship. She has sworn to it. I am conscious that I refused cross-examination on this point but various deponents on behalf of the plaintiff have acknowledged a relationship between the two. I refer to Violet Ashwin at par 2, Brenda Brittain at par 8, Raelene Paddon at par 2(f), Justine Ugle at par 4, Peter Ugle at par 4 and Rita Ugle at par 14.

9 The quality of the relationship is in dispute, as is its length. Much of the evidence adduced by the plaintiff, however, as to the quality of the relationship is hearsay and based on assertions said to have been made by the deceased. The evidence of Brenda Brittain is direct evidence at par 10, but somewhat dated, not current. On the other hand, the second defendant's evidence is supported by Benedict Taylor and to a degree by annexures KM1 and KM2 to the affidavit of the second defendant.

10 The quality of the relationship is not determinative of this case. Cultural values are all important, or highly important at the least. The plaintiff, and other deponents, all testify to the link of the Yamatji people to the land and I accept that the deceased was a Yamatji person. The plaintiff believes it is extremely important that when Yamatji people die they be buried in Yamatji country, or their spirit will be lost, it will wander and not settle.

11 Geraldton has been selected as the possible place of burial because, among other reasons set out by the plaintiff in his affidavit at par 5 (and I take account of all the reasons), the deceased spent 30 years of his life there and the family has decided en masse to bury him in Geraldton. It does appear that he was born in Carnarvon. The evidence is that both Carnarvon and Geraldton are in Yamatji country.

12 Both Andrew Lapthorne and Benedict Taylor, who have sworn affidavits on behalf of the second defendant, dispute the need for Yamatji people to be buried on Yamatji land necessarily in circumstances such as these, and point to the decision of the woman who was living with him as important. Neither men, I note, are Yamatji, but each deposes to a long association with those people and their ways.

13 The plaintiff has annexed a report by Rory O'Connor, a consultant anthropologist. I discount the report. In large measure it is a hearsay repetition of matters about which I have direct evidence. Paragraph 4 contains matters of fact that require sworn evidence having regard to the matters in dispute in this case.

14 There is a dispute as to the degree of connection or involvement of the deceased in Yamatji life and customs, but it is not necessary for me to resolve that finally because I accept that the deceased told his family that he wished to be buried in Yamatji country and gave reasons.

15 I also accept that the deceased told the second defendant that he wanted to be buried in Perth for the reasons he gave, set out at par 31 of her affidavit, and confirmed to a degree in the affidavit of Albert Winder which, although an annexure, is nevertheless, I note, made on oath.

16 I do not find it surprising that in different settings and at different times a person may express apparently contradictory views on such a subject. The views of the deceased, though not decisive, should nevertheless be accorded considerable weight. In this case, however, I am unable to make a positive finding as to the deceased's actual preference. I do not know the final state of his mind on the subject.

17 Each party would have difficulty in visiting the deceased's grave, for the reasons each expresses in their affidavits, if the burial were to take place in Fremantle or Geraldton respectively. This difficulty, of course, extends to other members of the deceased's family for cultural reasons. I note that geographically a number of them do presently live in the Perth metropolitan area but geography is only one of the issues for access to either Geraldton or Fremantle and I am fully conscious of that.

18 I now turn to the Coroner's actions. On 13 March 2007 the Deputy State Coroner made the following direction:

"I ... direct the body of John Lang Alfred Ugle be released to the funeral directors, Bowra and O'Dea acting on behalf of Kathy McGlade and Shannon Ugle.

I make the above direction on the basis that the Coroner's file on the deceased, 171/07, the provisions of the Coroner's Act 1996 and the advice, to be confirmed in writing, the mediation process place with AADRS (Ms Karen Stacker) has irrevocably broken down."

19 This was a clearly considered decision made on the material before her. The Coroner's power to do so was examined in Gilliott v Woodlands [2006] VSCA 46. The Court of Appeal considered an identical provision to that found in the West Australian State Coroners Act 1996 (WA). Where there is no relevant Western Australian decision, I consider that, as a matter of precedent, I should follow the Victorian Court of Appeal unless convinced it is plainly wrong. I am not so convinced.

20 The issues in Gilliott were not exactly the same as the present case. The Court held at [20], relying on a decision of this Court in Re Boothman SM; Ex parte Trigg, unreported; SCt of WA; (Owen J); Library No 990031; 27 January 1999, as follows:

"... Nevertheless, we are in no doubt that the Coroner does have the power to decide those questions if and when they arise. The duty to issue 'as soon as reasonably possible' a certificate permitting one or other form of disposal of the body carries with it, by necessary implication, the power to decide questions as to where and by whom the disposal will be carried out. The existence of the implied power is essential to the effective discharge of the Coroner's functions. Moreover, to deny the coroner this implied power and require the issue to be litigated elsewhere would only prolong and exacerbate the distress which inevitably attends any such dispute."

21 To the extent relevant, I adopt the reasoning of the Victorian Court of Appeal. It is a matter of considerable weight that the Deputy Coroner made a decision on the matter and decided that the body should be released to the second defendant's agent, effectively to the second defendant.

22 These proceedings are brought under the Administration Act 1903 (WA) and in the inherent jurisdiction of the Court. The Coroner's decision does not in my view oust this jurisdiction. Obiter dicta in Gilliott doubts whether the court retains jurisdiction, but I proceed on the basis that it does. However, on grounds of public policy the Coroner is the officer principally entrusted with such decisions and a decision made by a coroner should not be lightly set aside.

23 The other factors that I have considered are relatively evenly balanced (and I say that giving full effect to the cultural and emotional issues asserted on behalf of the plaintiff) but the coronial direction tips the scales in favour of the second defendant in the present case on the grounds of public policy.

25 The order I make is that this application be dismissed with no order as to costs between the plaintiff and the second defendant. I reserve the issue of the first defendant's costs for further submissions.