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ND appealed. The appeal was accompanied by an application seeking orders intended to preserve the body pending the appeal. Mossop J dismissed that application on 22 May 2026 in ND v Coroner’s Court of the ACT [2026] ACTCA 15 ([3]). As McCallum CJ summarised the reasons, a stay of the dismissal would have no relevant effect; the body was in the custody of persons or entities who were not parties to the proceedings and against whom no relief had been sought; and the appeal lacked sufficient merit to warrant interlocutory relief ([3]).

The Court recognised the consequence of refusing preservation orders: the subject matter of the appeal might be destroyed if the body were cremated ([4]). That consequence did not, however, displace the reasons for refusing the earlier application.

ND later sought to file another application. It requested orders transferring the body to the ACT Forensic Medicine Centre for frozen storage, requiring Tender Funerals Canberra not to impede the transfer, and preventing disposal until the appeal and any further appeal were finally determined ([5]). Although the wording differed slightly from the earlier application, McCallum CJ considered that the relief sought was, in effect, the same ([5]).

The Registrar referred the matter to McCallum CJ under r 6142 of the Court Procedures Rules 2006 (ACT), seeking directions about whether the application should be accepted for filing ([6]). The Chief Justice heard ND on that question. ND relied principally on notice from the deceased’s mother’s solicitors that she proposed to commence proceedings seeking a judicial determination about disposal of the remains ([7]).

McCallum CJ concluded that the proposed proceedings did not change the considerations that had determined the earlier refusal. The Chief Justice directed the Registrar not to accept the further application for filing ([8]–[10]). This decision was therefore about the handling of a renewed application, not the final determination of ND’s appeal or the underlying judicial review dispute.

Why the court decided this way

The central question was whether ND had identified a relevant change in circumstances that could justify filing a renewed application seeking substantially the same relief. The Court’s answer depended on comparing the new circumstance with the actual reasons for the earlier refusal.

The earlier refusal did not turn on whether anyone had started, or proposed to start, separate proceedings about disposal of the body. McCallum CJ said that the earlier reasons “did not touch on the absence of any judicial determination or proceeding” about disposal ([8]). The proposed proceedings by the deceased’s mother therefore did not address those reasons.

Two matters remained important. First, the body was still held by persons or entities who were not subject to the proceedings, and ND had not sought relief against them ([8]). That was not a finding about the merits of any separate dispute concerning the remains. It was a practical and procedural point about the orders being sought in this application: the earlier decision had found that the requested relief would not operate effectively against the relevant custodians ([3]).

Second, the proposed proceedings did not alter the earlier conclusion that the appeal lacked sufficient merit to justify interlocutory relief pending its determination ([8]). The judgment does not set out the underlying merits analysis in detail. It reports the earlier conclusion and explains why the new circumstance did not provide a reason to go behind it. It would therefore be unsafe to infer from this decision what the appeal’s substantive merits were, beyond the summary provided.

ND also relied on the fact that the earlier stay application had been determined by a single judge, whereas the Court of Appeal would ordinarily be constituted by three judges ([9]). McCallum CJ answered that point by referring to s 37J of the Supreme Court Act 1933 (ACT), which expressly contemplates a single judge hearing and deciding a stay application ([9]). On the Court’s reasoning, the single-judge constitution did not provide a basis for treating the earlier decision as an unresolved matter that justified the renewed application.

The decision’s reasoning is narrow. It does not establish that a later application can never be filed after an earlier application has been refused. Instead, it shows that the asserted new circumstance must be relevant to the grounds that actually determined the first application. Here, the proposed proceedings did not answer those grounds.

Before and after state of the law

Before this decision, the earlier application had been dismissed by Mossop J. As McCallum CJ summarised that decision, the requested relief was ineffective in the circumstances because the relevant custodians were not subject to the proceedings, and the appeal did not have sufficient merit to warrant interlocutory relief ([3]). The earlier reasons also took account of the risk that the body might be cremated ([4]).

This judgment did not purport to alter the substantive law governing judicial review, coronial decisions, disposal of human remains, or the merits threshold for interlocutory relief. Nor did it restate a general test for every renewed application. Its task was to decide whether to accept a particular further application for filing under the procedural process described in r 6142 ([6]).

The practical clarification is that a proposed change in circumstances must be assessed against the reasons for the previous refusal. The fact that another person proposes to seek a judicial determination about disposal did not answer the grounds identified by Mossop J ([8]). In this case, the custody issue and the earlier assessment of the appeal’s merit remained determinative.

The judgment also records the statutory position on the constitution of the Court of Appeal for stay applications. Section 37J of the Supreme Court Act 1933 (ACT) expressly contemplates that a single judge may hear and decide such an application ([9]). The judgment does not describe the full scope of s 37J or address other types of appellate applications, so its statement should be confined to the point made in the text.

The immediate procedural result was that the Registrar was directed not to accept the renewed application for filing ([10]). The decision does not say that the appeal itself was dismissed, nor that the proposed proceedings by the deceased’s mother were resolved.

Key passages with plain-English translation

At [5], McCallum CJ said that although the wording of the new application differed slightly, “the relief sought is, in effect, the same.” In plain English, the Court looked at what ND wanted the orders to achieve, rather than treating small wording changes as making the request substantively new.

At [8], the Chief Justice explained that the new circumstance was “not relevant to the relief dismissed by Mossop J and now sought again”. The reason was that the earlier decision did not depend on whether a separate proceeding about disposal existed. The proposed proceeding therefore did not answer the earlier decision’s reasoning.

Also at [8], the Court stated that the body remained “in the custody of persons or entities not subject of the proceedings, and against whom no relief has been sought.” This describes the gap between the requested orders and the parties or persons capable of carrying them out, as identified in the earlier decision.

At [8], McCallum CJ also said that the prospect of further proceedings provided “no reason to go behind” the earlier conclusion that the appeal lacked sufficient merit for interlocutory relief. Put simply, the proposed proceedings did not change the Court’s view of that separate reason for refusing interim orders.

At [9], McCallum CJ stated that s 37J “expressly contemplates” that the Court of Appeal may be constituted by a single judge for a stay application. The point was not that every Court of Appeal matter may be decided by one judge. The stated point concerned the statutory authority for a single judge to decide this kind of application.

Finally, [10] records the operative direction: the Registrar was not to accept the application in proceeding for filing. That is the formal result of this decision.

What fact patterns trigger this precedent

The decision is most relevant to a procedural situation with these features:

1. A party has already sought interlocutory relief and that request has been refused.
2. The party presents a later application that seeks, in substance, the same relief, even if its wording differs.
3. The party relies on a claimed change in circumstances.
4. The claimed change does not address the reasons that determined the earlier refusal.

In ND’s case, the renewed orders again sought preservation of the deceased’s body pending the appeal. The alleged new circumstance was notice of proposed proceedings by the deceased’s mother. The Court found that this did not alter the earlier findings about who held the body or the assessment of the appeal’s merit ([5], [7]–[8]).

The case also bears on a related procedural point where a party challenges an earlier stay decision because it was made by a single judge. McCallum CJ referred to s 37J as expressly contemplating a single judge deciding a stay application ([9]).

The judgment does not determine how a different new fact would be treated. In particular, it does not decide what would happen if a change directly addressed the earlier reasons, if the relevant custodians became parties, or if the basis for the earlier assessment of merit materially changed. Those possibilities are not resolved by the text.

How later courts have treated it

The judgment provides no information about how later courts have treated ND v Coroner’s Court of the ACT [2026] ACTCA 18. It was decided on 24 June 2026, and the supplied reasons contain no subsequent judicial references to it. Any account of later treatment would therefore require sources beyond this judgment.

The two cases mentioned in the judgment are earlier decisions in ND’s own proceedings, not later treatment of this decision. ND v Coroner’s Court of the Australian Capital Territory [2026] ACTSC 134 is identified as Kelly AJ’s decision on the judicial review proceedings ([1]). ND v Coroner’s Court of the ACT [2026] ACTCA 15 is the earlier decision refusing the first application for preservation relief ([3]). McCallum CJ summarised and relied on the reasons of the latter decision when assessing the renewed application ([8]).

Accordingly, the judgment supports describing ACTCA 15 as the prior decision whose reasoning remained determinative in the renewed filing question. It does not support claims about how other courts have followed, distinguished, or applied ACTCA 18 since it was delivered.

Still-open questions

The judgment does not explain the full operation or criteria of r 6142 of the Court Procedures Rules 2006 (ACT). It says the Registrar referred the application for directions, and records the resulting direction, but does not set out a general framework for all such referrals ([6], [10]).

It also does not decide the substantive merits of ND’s appeal. The earlier finding that the appeal lacked sufficient merit to warrant interlocutory relief is reported by McCallum CJ as part of the reasons given by Mossop J ([3]). This decision does not reproduce the underlying merits analysis or independently determine the appeal.

The judgment does not resolve any question about who should ultimately decide how the deceased’s remains would be disposed of. It records ND’s submission that the mother proposed proceedings for a judicial determination, but concludes only that this did not affect the renewed preservation application ([7]–[8]).

Nor does it determine the outcome or legal effect of the mother’s proposed proceedings. The reasons identify them as proposed proceedings, rather than as a proceeding already filed or a judicial determination already made ([7]).

Finally, the judgment does not address the Attorney-General’s foreshadowed argument that the appeal itself was incompetent because leave was required. McCallum CJ expressly said that nothing turned on that issue in the decision ([2]). That question remained outside the disposition given here.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.