Solicitors:
Lisa De Luca & Company (Plaintiffs)
File Number(s): 2019/291486
[2]
Ex tempore Judgment
This matter concerns the burial of John Parnell, who was born in 1980 and died intestate on 1 September 2019.
The matter first came before me on 18 September 2019 when I was sitting as the Common Law duty judge. The application on that day was for short service of a summons on behalf of the plaintiffs seeking orders substantially by way of declaration as of right that the first and second named plaintiffs are entitled, as against the first to third defendants, to have the body of the deceased, Mr Parnell, delivered to them for the purpose of making burial arrangements.
The further declaration was sought to the effect that it was part of their entitlements that they had the right to bury the body of Mr Parnell at Darwin in the Northern Territory. The first and second plaintiffs, the first to third defendants and the deceased are all Australians of indigenous heritage. The fourth defendant is a funeral director, to whom the body of Mr Parnell had been released by the Coroner.
The family arrangements are that the first plaintiff is the former longstanding partner of Mr Parnell and the second plaintiff is his eldest child. The first and second defendants are siblings of Mr Parnell and the third defendant is said to be his new de facto partner following the breakdown of his relationship with the first plaintiff. There is no doubt on the evidence which I have read that that relationship between the first plaintiff and the deceased had broken down. However, there is an issue about the nature of the relationship between the third defendant and the deceased. Let me say that the third defendant asserts very strongly that she had formed a relationship on a permanent and bona fide basis with Mr Parnell and that they were, and have been, engaged to be married since about December 2018. The third defendant says they remained affianced as at the date of his death. The plaintiffs join issue on that matter.
The summons, which I allowed to be served at short notice, was returned before me on 19 September 2019 and, at that time, the first to third defendants appeared self-represented and the fourth defendant, the funeral director appeared self-represented, although I gave leave to one of its officers, a Ms Fisher, to appear on its behalf on that day. After a long period of negotiation the parties entered into consent orders.
I acknowledge that, in arriving at those consent orders, as occurs, each party gave very significant ground in relation to their preferred position. Doubtless, no one was completely happy with the outcome but I proceeded on the basis that everyone was prepared to live with the outcome. Significant progress had been made toward the compromise on both sides of the record. Initially, the plaintiffs were seeking to delay a planned funeral service for Mr Parnell for 20 September. The defendants were resisting the idea that he should be buried rather than cremated, and that his body should be taken to Darwin for burial rather than being buried here close to his immediate connections. All of that had moved forward in the consent orders that I was asked to make and did make on that day.
For instance, as a matter of substance, everyone was able to agree that it was appropriate that Mr Parnell be buried in Darwin. The defendants still adhered to what they believed was Mr Parnell's last stated preference for cremation over burial but were prepared to accept burial if the planned funeral/memorial service could go ahead on 22 September 2019 and the arrangements for a funeral in Darwin could be dealt with in a timely manner. In that regard, their agreement was that the arrangements for transfer and burial in Darwin were to be made by today.
I reserved liberty to apply and when I received a letter from the first defendant, Mr Parnell's sister, on Wednesday, I took it as an exercise of the liberty to apply and listed the matter today before me for directions.
The parties have been represented today by Ms Lane and Mr Cobb-Clark for the plaintiffs and Ms Goodchild appears for the first to third defendants. I am grateful to counsel for their assistance. I acknowledge, as I did during the hearing, that Ms Lane and Mr Cobb-Clark are appearing pro bono. And I would like say, if I may, that Ms Goodchild has accepted a reference under the Uniform Civil Procedure Rules 2005 (NSW) to provide legal assistance as counsel at very short notice when contacted by Ms Heather Sare of the Bar Association Legal Assistance Referral Scheme on behalf of the Prothonotary on Wednesday afternoon. As I say, the Court is very grateful for their involvement.
I should say that the need for the urgent appointment of willing counsel on behalf of the defendants was that, as Ms Pitt explained in her letter, she, her brother and the third defendant, Ms Brennan, had attempted to obtain legal assistance through Legal Aid and other avenues unsuccessfully. Her letter, which is undated but was received by mail on Wednesday will be marked for identification 1 and placed with the papers.
Now it is clear that there are still differences between the parties. However, I must say, from the legal point of view, the important aspect is that consent orders were made on 19 September 2019, which bind the parties. I propose to read those orders out. The orders were in the following terms:
1. The Court notes that the memorial service of John Parnell (the Deceased) will take place on 20 September 2019 with the coffin present.
2. Upon the plaintiffs giving the usual undertaking as to damages, the Court:
(a) orders that the Fourth Defendant be restrained from taking any steps to dispose of the body of the Deceased; and
(b) orders that the Fourth Defendant retain the body of the Deceased in its care until it is released consistent with Order 3 below.
3. The Court orders that by 4 October 2019, the plaintiffs make arrangements at the plaintiffs' own expense for:
(a) the release of the body of the Deceased from Medcalf Funeral Services into the care of a licensed funeral director;
(b) the transportation of the Deceased from Sydney to Darwin; and
(c) the burial of the Deceased in Thorak Regional Cemetery, Darwin NT.
4. The Court notes the First to Third Defendants' undertaking to not stymie attempts by the plaintiffs to raise funds to apply to the matters referred to in Order 3 above.
5. The Court orders the fourth defendant to provide the plaintiffs (together with Lyall Munro and Jenny Munro, and if appropriate to the plaintiffs, the Deceased's other children, with a private viewing of the Deceased's body at a time after the memorial referred to in Order 1 above which is convenient to the fourth defendant and the plaintiffs. The Court notes that, if possible, the fourth defendant will arrange for a staff member other than Ms Fisher to be present during the viewing.
6. Liberty to apply on short notice to the judge's associate, such application to be made before 3 October 2019.-
As I have already said, liberty was exercised in accordance with MFI 1 because the defendants were apprehensive that the plaintiffs would be unable to comply with order 3 and were concerned, appropriately so may I say, that Mr Parnell's remains would not then be laid to rest in a timely way.
When the matter came before me today, it was clear that there were still aspects of significant dispute. Understandably, from a human point of view, Ms Brennan still asserted that she was the person who was entitled to make these decisions as Mr Parnell's de facto partner when he died. The plaintiffs still contested that. Ms Brennan, I think, still contended that cremation was the preferred option rather than burial. But all were in agreement that the final resting place of Mr Parnell's remains should be the Thorak Regional Cemetery in Darwin where his mother and other significant relative are buried.
The real question was whether order 3 had been complied with. In that regard, Ms Goodchild informed me from the Bar table that she had spoken to the managing director of Medcalf Funeral Directors, the fourth defendant, who acknowledged he had had a conversation with other funeral directors about them taking custody of Mr Parnell's body to give effect to order 3 but that no arrangements had been made.
There was also an issue about whether the plaintiffs had the financial wherewithal to fund that transfer, and the burial of Mr Parnell's body in Darwin. Ms Goodchild pointed out that the evidence read to me on 18 September indicated that the cost would in the order of $15,000. She submitted that may not cover the full cost. She pointed out that I had been informed this morning that only $8,000 had been raised, although I think Ms Lane also said further funds were still expected. It was now thought that $9,000 would be sufficient as opposed to the original $15,058.28. Ms Goodchild argued that it would be a most unfortunate outcome if, because of insufficient funds on the part of the plaintiff, the laying Mr Parnell's body to rest was further delayed.
Ms Lane tendered a letter, which I marked Exhibit A, from Paul Lahoud Funeral Services dated today. On the account given to me by Ms Goodchild, Mr Lahoud was the funeral director who spoke with Mr Hambly of Medcalf's on Wednesday. This letter, which is directed not to the Court but to the plaintiff's mother, is in the following terms:
"I am writing this letter confirming that I have made arrangements with Joseph Medcalf Funerals to take the late John Gregory Charles Parnell into my care upon permission from the Supreme Court of NSW being granted.
I have also made arrangements for John's remains to be transported to Darwin, where Territory Funderals will take delivery of the coffin and have him buried in Thorak Cemetry.
If there is anything further required, contact me at any time."
I accept that this is not overwhelming evidence but it seems to me to be satisfactory evidence given the urgency of the application that arrangements have been made. It seems to me that the consent orders do not require me to look behind the evidence tendered today that arrangements have been made, although, had there been more time, doubtless, the evidence from Mr Lahoud could have been more fulsome.
Given the comparative urgency of the case, I am satisfied that evidence is sufficient to justify me being satisfied that the orders I made on 19 September 2019, by and with the consent of the parties, have been complied with sufficiently and, that being so, there is no occasion for me to go behind them. However, that is not the end of the matter.
In Dodd v Jones [1999] SA SC 458 Doyle CJ indicated that it was consistent with common law principles that the party, whom the Court had adjudged entitled to the privilege of disposing of a person's remains, should recognise and respect the views held by other members of the deceased's family and other persons connected to him. In that case, Doyle CJ directed the de facto spouse, to whom the body was to be released, to inform the other members of the family - and in this case that includes Ms Brennan - of the funeral arrangements made and to permit them to attend the funeral if they wish to do so. It seems to me that similar arrangements should be made in this case, and I propose to make an order that that be done so that other members of the family, the other persons who have been in this litigation because they have a real interest in seeing that the right thing is done by Mr Parnell, should have the opportunity to be involved in him finally being laid to rest.
I appreciate that at times like this in the life of a family feelings run high, even though it would be far preferable that they did not. These significant events in the life of families, in our community, are truly a time for bringing people together, for putting aside old scores and for the healing of old wounds. It is unrealistic perhaps to accept that that will always occur.
I am concerned, of course, only with matters of law. I propose to make the following additional orders:
1. Declare that, on the evidence before me, I am satisfied that order 3, pronounced by and with the consent of the parties on 19 September 2019, has been complied with.
2. Enjoin the first and second plaintiffs to inform the first to third defendants, and keep them informed, of all arrangements for the transfer of Mr Parnell's body from Sydney to Darwin, any funeral, burial or memorial service to take place in Darwin and to permit them to attend such service should they wish to do so.
I also propose to make this recommendation, if the first to third defendants, or one of them, are or is able to provide reliable information that Mr Parnell's body can be laid to rest in the same plot as his mother, then the plaintiffs should cooperate in permitting that to occur.
[3]
Amendments
11 October 2019 - Representation: Amendment Counsel for the plaintiffs
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Decision last updated: 11 October 2019