JB -v- PRN [2024] WASC 219 (14 June 2024)

1. It is not in dispute that this court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA) (Act), and its inherent jurisdiction to determine who should have carriage of a funeral, where, and how, a body should be disposed of by way of burial or cremation.[1]
2. It is an established principle at common law that there is no property in a deceased person's body, but that the executors of a person's will are entitled to custody and possession of the body so that they can make funeral arrangements.[2] Where a person dies without leaving a will, the position is significantly more complex.
3. The principles of law that apply in this State as to how this court is to determine who should have possession and control of the deceased's body have been the subject of a number of single judge decisions of this court, and were considered by the Court of Appeal in Britt v Office of the State Coroner.[3] In that case, Mitchell JA (with whom Murphy and Beech JJA agreed in this respect) reviewed the single judge decisions and set out the principles that guide the scope of this court's discretion to make orders both in circumstances where there is a will with an executor appointed, and where there is no will.
4. These principles can be summarised as follows:

(a) if there is no will, the court will ordinarily order that the body be released to the person who appears, on the state of the evidence before the court, to be the person who is most likely to receive a grant of administration of the intestate estate (who will ordinarily be the person with the greatest interest in the estate), determined by reference to the table in s 14 of the Act;[4]

(b) this is the common or usual approach, but it is not an approach which must be rigidly applied.[5] The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of each case;[6]

(d) other factors (to the extent they are known to the court) which may be relevant to the determination include:[7]

(i) cultural considerations;[8]

(ii) the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased;[9]

(iii) the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties with the competing proposals;[10] and

(e) in determining who a deceased's body should be released to, the court is not required to make any final determination of who might be entitled to the intestate estate or administration of the estate. In many cases the court will simply not be in a position to fairly and properly make a final determination. Disputes about the release of deceased's body should be resolved as soon as possible after death as it is an affront to the dignity of the deceased and the emotional well‑being of those close to them for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved.[11]

1. In summarising the principles that apply to these applications, Mitchell JA cited with approval the decision of Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd[12] where his Honour stated that:[13]

I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.

1. In Jones v Dodd, the court considered the position in respect of an Aboriginal man who died intestate without any significant assets and where there was unlikely ever to be an application for administration. In this case, Perry J described the proper approach to be taken by the court in the following terms:[14]

Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality.

In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.

1. In deciding this case, I have had regard to eight affidavits that have been filed in support of the originating summons, being:

(a) two affidavits of the plaintiff filed 1 May 2024 and 5 June 2024;

(b) two affidavits of RJB, the father of the Deceased, filed 21 May 2024 and 6 June 2024;

(c) an affidavit of FRGG, the Deceased's cousin, filed 21 May 2024;

(d) an affidavit of RLB, the Deceased's aunt, filed 22 May 2024;

(e) an affidavit of RB, the plaintiff's sister and great-aunt of the Deceased, filed 18 May 2024; and

(f) two affidavits of service.

1. I have also had the benefit of written submissions that have been filed on behalf of the plaintiff, as well as oral submissions on behalf of the plaintiff, and oral submissions that were made to me by MN.
2. As I am required to make a decision quickly, it is not possible to me to refer in detail to all of the evidence that has been filed. It is sufficient for me to note for the record that I have carefully read all of the material that has been filed and considered the submissions that have been made to me.
3. In making my decision, I accept that all of the Deceased's immediate and extended family have suffered a significant loss, particularly given the tragic circumstances of the Deceased's death only one day after he turned 18. This includes both his maternal and paternal family and, in particular, his siblings, one of whom attended the hearing today.

1. The only issue before me is who should have right to arrange the funeral of the Deceased.

1. Both parties propose that the Deceased be buried at Guildford Cemetery.
2. The plaintiff proposes that Towards the Dreaming Funeral Services be engaged to organise the funeral, and that all members of the Deceased's family (including the second defendant's family) be invited to attend.
3. There is only limited evidence before the court as to what is proposed by the second defendant. It is clear that Seasons Funerals have been retained by or on her behalf. In a Facebook post, the second defendant has stated that the only people she wants to attend the funeral are herself and the Deceased's siblings.
4. An explanation was given in court as to why this was the case, although I note this is not the subject of any formal evidence.

1. The Deceased was born in March 2006 in Perth and was 18 at the time of this death. He has four siblings.
2. His parents, the second defendant and RJB, separated approximately 10 years ago. Soon after they separated, their five children, including the Deceased, were placed into the care of the State.
3. RJB has stayed in touch with his children, including the Deceased, over the years. The evidence before me is that the Deceased maintained a relationship with his paternal family over the years, including visiting them in Kalgoorlie, as well as his maternal family.
4. On 6 March 2024, the Deceased was fatally injured in a motorcycle accident. He was identified by his aunt, RB, as at the time, neither of his parents were available.
5. On [redacted], which was the Deceased's eighteenth birthday, both his father and mother visited him in intensive care before he died the following day.
6. On 23 March 2024, the Deceased's family followed through with a plan to celebrate his birthday at Hillarys beach. The event was organised by his aunt, RB. Prior to his death, the Deceased had requested that she organise an eighteenth birthday party for him. The second defendant, her mother and aunt attended that event, along with other members of the Deceased's family and friends.
7. His father, RJB, was unable to attend this event because he was admitted to Joondalup Hospital on 23 March 2024 and remained there until his release on 27 March 2024.
8. On 27 March 2024, the Coroner's Court of Western Australia issued a certificate releasing the Deceased's body to Bowra & O'Dea funeral directors, at the request of the second defendant.
9. Following his release from hospital, RJB attempted to negotiate and agree the funeral arrangements with the second defendant. The evidence before me is that they both met with Bowra & O'Dea on 5 April 2024 and subsequently, with Seasons Funerals on 21 April 2024.
10. The evidence before the court is that it is an important part of Wongi culture to attend funerals of family members and that it is customary, after grieving time and sorry time has been held, for both sides of the family to come together to plan the funeral. The cultural importance of Wongi People attending family funerals is reinforced by a threat of punishment for non-attendance (without reasonable explanation). The punishment can be physical or spiritual and can extend to the person being disowned within the community. The reason that it is important for close family and relatives to attend the funeral is because the Wongi People believe that the spirit of the deceased cannot rest if they do not attend the funeral.
11. This evidence is consistent with the observation in the Aboriginal Benchbook for Western Australian Courts that states that '[w]ithout proper ceremonies, the deceased's spirit cannot take its place in the afterlife but will be caught between death and future life'.[15]

1. The plaintiff says that given the age of the Deceased and the fact that he was in the care of the State until [redacted], the court should infer that it is unlikely that any application for a grant of administration will ever be made. For this reason, counsel for the plaintiff submitted that it was artificial to determine who should have control of the funeral based on the likely administrative approach.
2. The plaintiff says that a number of cultural and practical matters support the exercise of the discretion in her favour.

1. It is common ground that the Deceased died intestate, and letters of administration have not been granted. I accept that on the evidence before me, it is unlikely that an application will ever be made and that there is a degree of artificiality in basing a decision on this approach. On this basis, I accept that the approach to be taken is as summarised by Perry J in Jones v Dodd. That is the court should consider the practical circumstances, having regard to the feelings of the Deceased's relatives and relevant cultural matters.
2. In any event, even if letters of administration were to be granted, the second defendant and RJB would rank equally. While the plaintiff would not be entitled to seek administration, the Deceased's father would. His evidence is that he supports the application by the plaintiff.

1. On the evidence before the court, I accept that the Deceased maintained a relationship with his both his paternal family and maternal family. However, there is no evidence as to what the Deceased wanted, which is unsurprising given the young age at which he died.

1. On the evidence before me, the costs of the plaintiff's proposal is slightly less than that originally proposed by the second defendant.
2. The plaintiff proposes that the funeral should be an open funeral with anyone able to attend, including the second defendant and her family, together with friends of the Deceased. She proposes that notice of the funeral be given by social media, as well as by notices at the school that he attended and at the football club he played for. The plaintiff believes the cost of the funeral will be able to be paid for by the family or through a grant.
3. The only evidence I have that is before the court as to what is proposed by the second defendant is that she proposes a private funeral that is attended only by her and the children of her and RJB.

Practicality of disposal of the Deceased's body without delay

1. There has already been a significant delay in enabling the burial of the Deceased with the proper respect and decency that he deserves.
2. The evidence before the court, and the submissions made by both parties, is that all parties want the funeral to occur as soon as possible so that they can continue their grieving process. The evidence before the court is that the plaintiff is ready and able to attend to the organisation of the funeral without delay on the court making orders.
3. While there is no evidence to suggest that the second defendant is not similarly able to attend to these arrangements, this position is somewhat unclear given her failure to participate in the proceedings or to attend today's hearing.

1. In this case, as in many of the cases that come before this court, the court is asked to make an almost impossible choice as to who, amongst loved family members, should have the right within the family to have the carriage of the funeral. I accept that whatever decision I make will inevitably cause significant distress to one side of the family.
2. Having considered all of the evidence that has been filed, as well as the submissions made by counsel for the plaintiff and the submissions made on behalf of the second defendant, it is my view that the plaintiff's application should be granted for two main reasons.
3. First, the plaintiff proposes to arrange a funeral that will allow the attendance of all family members and not exclude one side of the family. Second, I accept that the cultural matters deposed to by the plaintiff, RJB, and their family members, that it is important to their culture that they be entitled to attend the funeral, is a relevant factor to take into account.
4. I accept on the evidence before me that the plaintiff proposes a funeral that will include the second defendant and her family, in contrast to the position expressed by the second defendant. In addition to these matters, I accept that the plaintiff's proposal is less expensive than that originally proposed by the second defendant, and that arrangements can be made without delay to ensure that the Deceased is buried with the proper respect and decency that he deserves.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).

[2] Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659; Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; Burrows v Cramley [15] - [16] (Pullin J).

[3] Britt v Office of the State Coroner [2022] WASCA 75 [52] ‑ [66].

[4] Britt v Office of the State Coroner [54], [59], [65]; Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680, 691; Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [45] ‑ [46].

[5] Britt v Office of the State Coroner [55], citing Jones v Dodd [46].

[6] Britt v Office of the State Coroner [18] (Murphy & Beech JJA), [59] (Mitchell JA).

[7] Including in cases where there is estate and where there is no likelihood of any application for a grant of administration ever being made, or there are claims by persons with equally-ranking rights to apply for administration: Britt v Office of the State Coroner [56] ‑ [57].

[8] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [2020] WASC 486 [53].

[9] Britt v Office of the State Coroner [58]; Dann v Office of the State Coroner [48].

[10] Britt v Office of the State Coroner [58].

[11] Britt v Office of the State Coroner [16] (Murphy & Beech JJA) [60] ‑ [61], [64] (Mitchell JA).

[15] Fryer-Smith S, Aboriginal Benchbook for Western Australia Courts (2nd ed, 2008) 2:23.