/

/

Calma v Sesar [1992] NTSC 17 | Case summary | Zoe

NTNTSC

Calma v Sesar [1992] NTSC 17; 2 NTLR 37; 106 FLR 446

[1992] NTSC 17

Supreme Court of the NT|1992-03-27|Before: Martin J

View original source

At a glance

Source facts

Court

Supreme Court of the NT

Decision date

1992-03-27

Before

Martin J

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

Calma v Sesar [1992] NTSC 17; 2 NTLR 37; 106 FLR 446 (27 March 1992)

[2]

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MARTIN J CWDS Executors and Administrators - Rights, powers and duties -No property in a dead body but Executor has right to possession of corpse for purpose of lawful disposal - Right to possession of a corpse may be enforced through the courts. Williams v Williams (1882) 20 Ch D 659 at 665, applied. R v Fox [1841] EngR 1003; (1841) 2 QB 246, applied.. Robertson v Pinegrove Memorial Park Limited (1986) ACLD 496, applied.. R v Scott (1842) 2 QB 248, applied.. Beard v Baulkham Hill Shire Council (1986) 7 NSWLR 273, applied.. Doodeward v Spence , considered. Executors and Administrators - Rights, powers and duties -Right to possession of dead body runs with duty to dispose of it - Where deceased intestate - Dispute between mother and father over right to bury adult son - Father's possession of body conveys no legal right - Dispute to be resolved in practical way - Regard to be had to proper respect and decency, unreasonable delay to be avoided. Williams v Williams at 665, applied. R v Fox ; , applied. R v Scott (1842) 2 QB 248, applied. Robertson v Pinegrove Memorial Park Ltd , applied Injunction - Consideration upon which court exercises discretion - Injunction restraining infringement of right to possession of corpse for purpose of burial - Regard to be had to expediency, proper respect and decency

The deceased was born in Port Hedland on 22 September 1970 and his parents, who were then living in a de facto relationship, separated about 10 years ago. The circumstances of his death are not clear, but it seems that on or about 13 February he suffered head injuries and was admitted to the Royal Darwin Hospital where he succumbed to those injuries on the morning of the 15th. There is a Coroner's certificate, which appears to have been issued pursuant to s. 32 of the Coroners Act, certifying that the death of the deceased was reported on 17 February and that there had been a medical examination of the body. The Deputy Coroner, on 18 February, certified "I have authorised burial, and I am satisfied that no circumstance exists that can render necessary any further examination of the remains, any analysis of any part of the body or the making of any toxicological examination and that there is no reason why the body should not be cremated or taken out of the Territory for burial or cremation".
The plaintiff was in Alice Springs, where she had been living for some years, when she heard that her son was in hospital in Darwin. She flew here and was with him when he died. After his death a brother-in-law, Mr Munnings, provided information for registration of the death and the plaintiff deposes that her brother was to handle the funeral arrangements. It seems that the deceased had gone to Alice Springs to live in about October or November 1990 and had come to Darwin just a few weeks prior to his death. There is some evidence that shortly after the death each of the parents was aware of what the other proposed regarding burial. Each proceeded with a view to carrying out their respective plans without further reference to the other.
The plaintiff's evidence as to the precise order of events concerning the burial of the deceased from her point of view was not entirely clear, but that is understandable. Doing the best on the information available, it seems that shortly after the death members of the family, who were at the hospital at the time of his passing, spoke to a priest from the Roman Catholic Church. The plaintiff understood there was to be an autopsy the following Monday, 17 February. On the 19 February, the Wednesday, she went, in company with other members of the family, to Darwin Funeral Services to arrange for the funeral. The date for the funeral was fixed for the following Monday, 24 February in Darwin, the body to be interred at the Thorak Regional Cemetery after a Roman Catholic Church service. It was after making those arrangements, but on the same day, that enquiries as to the whereabouts of the remains disclosed that the first defendant had made arrangements for them to be placed in the hands of the second defendants, another firm of Undertakers of Darwin, who understood that the father was making arrangements for the remains to be flown to Western Australia for the purposes of burial at Port Hedland. The next day the plaintiff consulted her solicitor. That general history is supported by the evidence of Connie Kalma, a maternal aunt of the deceased with whom he had been living for some weeks before he died, though he had left about a fortnight before that date.
At the time of his son's death the first defendant was at Mildura and he departed from there immediately by road with a view to travelling to Darwin. On arrival in Alice Springs he commenced making arrangements for his son's remains to be taken to Port Hedland. He did that by contacting the second defendants and the Coroner's Office in Darwin by telephone and facsimile transmissions. On the morning of 19 February, the same day that the plaintiff was endeavouring to make arrangements for the remains to be buried in Darwin, he sent a fax to the second defendants: "I, Gilbert Sesar, being next of kin, to (the deceased), authorise Simplicity Funerals, to proceed with the transfer of his remains for burial at Port Hedland". Just how the remains came to be in the possession of the second defendants is not clear, but it is not suggested that they acted in any way unlawfully and it is reasonable to infer that being in possession of the father's authority to make the arrangements referred to they were able to take possession of the body from the hospital with a view to carrying those arrangements into effect. The solicitor retained by the plaintiff acted promptly, speaking to the second defendants and obtaining an undertaking that they would not take any action in respect of the remains prior to contacting her.
The next day there was consultation between the solicitors for each of the parties which was not able to progress very far as the first defendant was then travelling by car between Alice Springs and Katherine. The weekend intervened. On the following Monday and Tuesday, 24 and 25 February, the solicitors for the plaintiff endeavoured to speak to those representing the first defendant. Having heard from the plaintiff that she and the first defendant had failed to reach agreement, the solicitor for the plaintiff took instructions and informed the solicitors for the first defendant that it was intended to publish a notice of intention to apply for letters of administration in the local newspaper. That notice was published on 26 February. During the course of discussions between the respective solicitors, it was suggested to those representing the first defendant that a caveat might be filed forbidding the grant of administration, it apparently being thought that having the question of the grant of administration resolved might assist in determining the outcome regarding the disposal of the remains. On 5 March the solicitors for the plaintiff became aware that the first defendant had engaged other solicitors and on 6 March, during the course of discussions with those new solicitors, it was disclosed that it had been arranged for the remains to be flown to Port Hedland later that day. An application for letters of administration of the intestate estate of the deceased could not be made until 14 days after the publication of the required notice. A caveat having been filed in respect of the proposed grant by the first defendant, it was plain there could be no certainty as to when it might be that the application might be dealt with, but in any event nothing could be done in that regard until at least 12 March. There is no evidence that the first defendant had made or intended to make an application for letters of administration. That was the state of affairs when the matter first came before the Court on 6 March. The first defendant was represented. It was then ordered, on an interim basis, that the first defendant be restrained from removing the body from the premises of the second defendants until further order. The usual undertaking as to damages was given by the plaintiff. Directions were also given with a view to the exchange of affidavits and a final hearing at the earliest possible date. That occurred on 11 March when it was ordered that the previous order continue and that the defendants deliver up the remains of the deceased to the plaintiff for burial in accordance with the arrangements made by her. These are my reasons for the orders then made.
Amongst the material filed on behalf of the contending parties was much going to the care and attention given by each of them to the deceased whilst he was alive, and allegations as to the lack of it on the part of the other. It seemed that the Court was being invited to embark upon a case having to do with the custody of a living infant rather than the disposal of the remains of a deceased adult, and I expressed the view that the Court would not be assisted by an examination of matters such as that. After some time the parties instructed their respective legal representatives that they did not wish to pursue the question of the childhood care of the deceased, but that they were agreed that there was evidence that both parents had had a significant role in his upbringing. It is common ground that the parents separated when the deceased was about 12 years old and he remained living with his mother, who moved with him to Darwin for several years during which time the first defendant had access at weekends and various other times. At times the deceased lived in Port Hedland with his father and a few years back the plaintiff returned to Port Hedland to live and the deceased went to stay with her. Unfortunately he fell into trouble with the law and went before the Courts on a few occasions. It seems that he spent most of his teenage years living in the north west of Western Australia. He arrived in Alice Springs about two years ago and went to work at Mutijula, near Yulara, where he obtained work as a ranger. The plaintiff, first defendant and the deceased are all of Aboriginal descent. According to his mother, it was only recently that the deceased started to learn anything about Aboriginal custom. He had many relatives both in Darwin and Port Hedland. It seems that such property as he had, comprising personal belongings, was in the Northern Territory. Although she lives in Alice Springs, it was the plaintiff's wish that her son be buried in Darwin where his body lay and there are many relatives. There is evidence of some disagreement between the deceased's siblings. A brother, who lives in Darwin, said he would like him to be buried here so that he could visit his grave, but a sister, who also lives here, did not wish him to be buried here as the city now has very bad memories for her and she would not wish to visit a grave site in the place where he had been killed.
The first defendant's family come from the Port Hedland area and his parents cared for the deceased for a time. The paternal grandfather is still alive and has what was described as a family plot at a cemetery at South Hedland. There was evidence of large family gatherings at funerals of members of that family. The father says that the deceased was baptised in the Catholic Church at Port Hedland and that he believed that it would be appropriate for him to be buried in the same parish, along side his grandmother, in the family plot. He also asserts that it is his culture that the dead should be buried in their homeland, and that that homeland for the deceased was at South Hedland near to Port Hedland. He deposed to the importance of visiting the grave site on the anniversary of death and of birthdays and for commemorative church services to be conducted. The first defendant's father said that he was a member of the Bardi Aboriginal tribe and it was his wish that the deceased be buried in the family plot at South Hedland cemetery. He did not wish the deceased to be buried in Darwin either as he believed it to be disrespectful to him to bury him in the same vicinity as the presence of his "alleged killer". There are deep divisions between the father and the mother and various members of their respective families as to where would be the most appropriate place to inter the deceased's remains.
I have described the dispute in this matter as being unprecedented so far as the Courts are concerned, and so it appears to be. Admittedly the time available for research between the time this matter first came before the Court and when it was resolved was not long, but even since then further research has failed to turn up any guidance as to how a dispute between persons who apparently have equal rights to possession of a dead body for the purpose of burial is to be resolved. It is clear that there is no property in a human corpse held for the purposes of burial. What the law recognises as incident to the duty to dispose of the body is the right to the possession of the body until it is disposed of. There is the power and duty of a rightful executor or administrator to bury the deceased in a manner suitable to the estate which is left behind. (2Bl. Com. 508). See also Kay J in Williams v Williams (1882) 20 Ch. D. 659 at 665 "..... after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried". The authorities establish that a person entitled to possession of a dead body may enforce that right through the Courts. For example, in R v Fox [1841] EngR 1003; (1841) 2 Q.B. 246 the Court issued a mandamus commanding that a body be delivered up to the executors by a jailer who refused to do so unless the executors would satisfy his claims. Similarly, R v Scott (1842) 2 Q.B. 248. In more modern times in Robertson v Pinegrove Memorial Park Limited (1986) ACLD 496 Waddell J held that the rule of the general law that a executor has a right to possession of the corpse of the deceased for the purpose of its lawful disposal by burial or otherwise extends to the ultimate disposal of the remains. "An executor has a right to possession of the ashes of a deceased who has been cremated to direct how they shall finally be disposed of and that right will be supported by a Court, particularly where the executor intends to act in accordance with the wishes of the deceased." In Beard v Baulkham Hill Shire Council (1986) 7 NSWLR 273 at 280 Young J said that the "Court has on quite a number of occasions had to deal with problems as to who should be responsible for a funeral and where the burial or cremation should take place .... ". Clearly the rights of possession to a dead body are matters justiciable in the Courts. Since they are rights which might be infringed and as damages would not be an adequate recompense to the person seeking to exercise such a right, an injunction to restrain the wrong may be sought and granted. (For a bizarre case involving rights to retain possession of a corpse for purposes other than burial see Doodeward v Spence On the subject generally see the article "Dead Bodies" by S G Hume in (1956 - 1958) Sydney Law Review Vol. 2 at p. 109).
The deceased had made no will. The plaintiff had taken steps to obtain a grant of administration of his intestate estate, but her efforts in that regard may have been frustrated, at least for some time, by the caveat. Both the plaintiff and the first defendant were entitled to apply for a grant of letters of administration. The first defendant had not done so. The likely outcome of those proceedings was not argued. There is no modern authority which shows whether the mother or the father, or both parents, of an illegitimate adult child has a duty to dispose of the child's remains. There is no reason why they ought not to be treated on an equal footing. There is nothing in the statute law of the Northern Territory which is of any assistance. The only express statutory power for next of kin to interfere with the disposal of remains appears to be in s. 18 of the Cemeteries Act whereby such a person may object to a cremation. There is power under the Public Health Act to make regulations regarding the disposal of corpses, but there has been none made. The powers of the Public Trustee extend to the estate of a person, but not to the remains. Reference has already been made to s. 32 of the Registration of Births, Deaths and Marriages Act and the certificate apparently issued pursuant to that Act in this case. It is not directed to any particular person. Section 50 of the Coroners Act provides that a person shall not remove remains from the Territory without the written authority of a Coroner and provides a penalty of $500. The form prescribed provides for the authority to be addressed to a nominated person and reads "I hereby authorise you to remove the remains of ........................ now lying at ................ to ................ a place outside the Territory and in the State of ................. ". It seems that although the Coroner might certify in general terms that there is no reason why the body of a dead person should not be taken out of the Territory, a person might commit an offence under s. 50 if he or she does so without the specific authority there provided.
It was rightly not pressed that this Court should be guided by the doctrines relating to rights of burial of parishioners and strangers in church yards.
That the father's agents had first obtained possession of the body in fact does not alter the position at law and could not be a weighty consideration. The mother had worked towards making arrangements for burial in Darwin and it was in the course of trying to obtain the body for that purpose that she found it was with the second defendants and destined for Port Hedland. The mother took a step in the right direction by applying for a grant of letters of administration. The father did not apply, but sought to restrain any grant to her.
The right to possession of a dead body runs with the duty to dispose of it. Each parent in this case had that duty, or at least accepted it, and attempted to carry it into effect, thus claiming that right. Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased's extended family as well. Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except in so far as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.
The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.
The body of the deceased was in Darwin and proper arrangements had been made for burial here. There was no good reason in law why that should not be done and no good reason in law why the removal of the body from the Territory and burial in Western Australia was to be preferred.