Novakovic v Joseph Medcalf Funeral Services

EX TEMPORE Judgment - revised

1. This matter came before me in circumstances of urgency on Friday, 26 February 2021. It concerns the right to bury the earthly remains of the late Anica Kanacki who died on 22 February 2021. The plaintiff is the executor named in what is said to be Mrs Kanacki's last will and testament executed on the 22 September 2020.
2. The need for an urgent application in relation to the matter arose because the person named as the second defendant, Dilbar (also known as Maria) Zasentseva procured the release of Mrs Kanacki's body from Fairfield Hospital into the hands of Joseph Medcalf Funeral Services, funeral directors selected by her who were named as the first defendant in the original summons filed in court on Friday. Mrs Zasentseva's claimed "right" to possession and disposal of the earthly remains of Mrs Kanacki is based upon a will appointing her executrix and making substantial bequests to her apparently executed on 28 August 2019.
3. As the form of orders I have pronounced make clear after service of the summons and my interim order made on Friday, the funeral directors returned Mrs Kanacki's body to Fairfield Hospital and Ms Zasentseva instructed solicitors to advise the plaintiff that she made no claim to be entitled to dispose of Mrs Kanacki's earthly remains and had no objection to the plaintiff undertaking those obligations, subject to being provided with notice of the funeral arrangements so she may attend if she wishes.
4. The somewhat sparse evidence I received on Friday has been substantially amplified by evidence received today. I have had regard to the affidavit of Mrs Kanacki's nephew, Sasa Demic, in which he outlines his involvement in his care of his aunt over recent years notwithstanding his normal residence in the Kingdom of Norway. The evidence he provides is quite fulsome as to his involvement and he states that he has attended Australia on a frequent basis to look after his aunt's interests, obviously up until the intervention of travel restrictions associated with the present pandemic. He was involved over the internet in the conferences with doctors caring for his aunt during her terminal illness and his views and wishes were consulted in relation to her treatment and accommodation.