Roma v Ketchup [2009] QSC 442

[1] MARGARET WILSON J: Cyril Michael Roma Snr died on 23 November 2009. He had not made a Will. On Tuesday, 8 December 2009, his sister, Vivienne Roma, and his eldest son, Lindsay Barrett, appeared before me without the benefit of legal representation seeking an order restraining the release of his body by the Coroner.

[2] It was ascertained that the Coroner had made an order on 3 December 2009 that the body be released for burial and it had in fact already been released to funeral directors in Townsville, Morleys Funerals Pty Ltd. The application was adjourned until today, 10 December, to enable the applicants to obtain legal advice if possible.

[3] When the matter came on today, they had had the benefit of advice in the preparation of amended documents and further affidavits and the preparation of submissions. Mr Nicholas Roma, the son of the applicant Vivienne Roma, represented them in Court. He did so ably, although I record that he is not a legal practitioner.

[4] By the amended originating application now brought against Valmay Ketchup, a former de facto partner of the deceased, and Cyril Michael Roma Jnr, a son of the deceased and Ms Ketchup, as first respondents and Morleys Funerals Pty Ltd as second respondent, the applicants sought an injunction (both interlocutory and final) restraining the respondents from burying the deceased, an order that his body be released to the applicants and an order that they be appointed as administrators of his estate.

[5] By an interlocutory application they sought an order that the deceased's remains not be removed from the custody of the Coroner and an injunction pending further order restraining the respondents from burying the body.

[6] The material establishes that arrangements have been made for a funeral on Saturday, 12 December 2009.

[7] As I have said, the first respondent is a former de facto partner of the deceased. On the material before me that relationship had ceased more than two years before his death. Accordingly, she does not come within the definition of "spouse" in the Uniform Civil Procedure Rules. She is the mother of six children by the deceased, the eldest of whom, Cyril Michael Roma Jnr, is presently aged 17.

[8] The applicant, Mr Barrett, who is also a son of the deceased, is an adult.

[9] The first respondent proposes to have the deceased buried on Palm Island. On the material before me, Mr Barrett, as the eldest son, should, for cultural reasons, arrange the funeral. Further, for cultural reasons, the deceased should be buried at Cherbourg where he grew up and where his father, grandfather and great grandfather were buried.

[10] The usual rule is that the person entitled to letters of administration on an intestacy is responsible for burial of the body of the deceased. Under Rule 610 of the Uniform Civil Procedure Rules the descending order of priority of persons to whom the Court may grant letters of administration on intestacy begins with the deceased's surviving spouse followed by his children. As I have said, Ms Ketchup does not meet the definition of spouse on the material before me and of the children only Mr Barrett is an adult.

[11] For all of the reasons above I consider that on the material before me Mr Barrett is the appropriate person to arrange the funeral. Of course, once this material is served on the respondents, evidence to the contrary may be put before the Court and then a final determination of the issue will have to be made. But on the material before me, there is sufficient to satisfy me to the standard appropriate for an interim injunction that Mr Barrett is the appropriate person. Accordingly, I am prepared to grant an interim injunction and to make it returnable on Thursday, 17 December 2009. There is no point in my making an order that the remains not be removed from the custody of the Coroner because that has already occurred.

1. that until 5 p.m. on Thursday, 17 December 2009 or earlier order, the respondents, Valmay Ketchup and Cyril Michael Roma Jnr (First Respondent) and Morleys Funerals Pty Ltd (Second Respondent) be restrained from burying the body of Cyril Michael Roma;

2. that the applicants serve the following documents upon the first respondent by facsimile addressed to them at the facsimile number of the Palm Island Post Office and upon the second respondent at the facsimile number of its business in Townsville: the amended originating application filed by leave today; the interlocutory application filed by leave today; the affidavit of Vivienne Carol Roma sworn 8 December 2009; the affidavit of Lindsay Jack Barrett sworn 8 December 2009; the affidavit of Lindsay Jack Barrett sworn 9 December 2009; the affidavit of Nicholas Wade Roma sworn 9 December 2009; the affidavit of Vivienne Roma sworn 10 December 2009; a copy of the Coroner's order of 3 December 2009; a copy of the applicant's outline of submissions 10 December 2009 and this order;

3. that the application be adjourned to Thursday, 17 December 2009 at 10 a.m;

[13] On 17 December 2009, her Honour made the following orders:

1. that the first respondents, Valmay Ketchup and Cyril Michael Roma Jnr, and the second respondent, Morleys Funerals Pty Ltd be permanently restrained from burying the body of Cyril Michael Roma Snr;

2. that the first respondents and the second respondent release the body of Cyril Michael Roma Snr to Lindsay Jack Barrett forthwith;

3. subject to any formal requirements of the Registrar, letters of administration on intestacy be granted to Lindsay Jack Barrett, the grant of administration being limited to the collection and preservation of the assets of the estate, with power to expend moneys from the estate on reasonable funeral expenses.