The plaintiffs have brought these proceedings to compel the Council to transfer to them the title of the plot in which David is buried, a declaration that they are exclusively entitled to control that plot, or, if other applications fail, they wish to obtain an order that the second defendants permit them to erect a headstone on the plot of their own choosing. The Council filed a submitting appearance. Mr & Mrs Konz, on the other hand, strongly contested the plaintiffs' claims.

The coroner took possession of David's body. Shortly after David's death, Mrs Konz retained an undertaker, Ann Gaites, to make arrangements for David's funeral and to bury his body. The body was released to Ms Gaites by the coroner. Ms Gaites approached the Tamworth City Council for permission to bury the body. That approach must have been made on behalf of Mrs Konz who was the only person who had retained Ms Gaites. That permission was duly given, at least orally, and a plot was assigned for David's burial. The funeral, which was superintended by Ms Gaites, took place on 11 March 1996 at 10.30 am. At least the plaintiffs and the second defendants and Rachel were present. David was buried in Plot 70, Row L1 in the Lawn Cemetery.

Mr and Mrs Konz, after consultation with Leanne, erected a headstone on the grave which reads -

"In Loving Memory of David Allen Konz 22.1.1974-6.3.1996

Ms Gaites' company sent a bill for their services. Although I only have a photostat, it would appear that the bill was originally addressed to Mr and Mrs Konz, who had instructed Ms Gaites to manage the funeral. However, there is no doubt at all that the bill was paid by the plaintiffs and the photostat in evidence appears to have the original addressees of the bill whited out, and the words "Don & Maree Smith" and their address written in in hand. The bill included a charge for the "casket selected" and for "grave site purchase", the latter being a charge of $750. The plaintiffs paid this account on about 30 March 1996.

There is certainly no suggestion at all that the body was not buried on 11 March with the consent and acquiescence of the Tamworth City Council. However, the paperwork in the Council's files is not what one might expect. The formal application, Exhibit PX07, bears a Council "Received" stamp of 3 June 1996. However, there is at the top of the document the brand "067-654601 R F Gaites Funerals 571 P01 MAR 08 '96 14:50". This can only mean that the form was originally sent by facsimile transmission to the Council on 8 March 1996 by Ms Gaites. Why the Council only formally marked it as received on 3 June is a mystery, especially as the handwriting on the form shows that the fee was paid on 11 July 1996.

The Council issued a document headed "The Tamworth City Council Lawn Cemetery Right of Burial No 1863". This is in the form of schedule A to Ordinance No 68 under the Local Government Act 1919. The document issued in favour of "Mrs Linda Konz" and was dated 3 June 1996. The Permit to Bury which was in schedule D to the Ordinance was granted to R F Gaites Funerals, but also bears date 3 June 1996. However, by letter dated 30 May 1996, the Council wrote to Mrs Konz, which letter commenced "Please find enclosed the Right of Burial No 1863 for Allotment 70, Row L1 in the Lawn Cemetery.

"This document is official notification from Council that the Plot has been paid for and is sent to you, as being nominated by the Funeral Director as the Next of Kin of the Late David Allen Conz [sic]". Presumably this letter was dictated before 3 June and then held back until after the Right of Burial certificate issued, but there was no-one from the Council to actually explain what happened.

Before dealing with the respective submissions, it is necessary to consider what congeries of rights are covered by a "Right of Burial" and from whence they derive. This is because the rights of the holder must depend, at least to some extent, on the grant from the proprietor of the fee simple and the capacity of the holder in fee simple to grant the right.

The Local Government Act 1919, s 446, imposed powers on councils to provide, control and manage cemeteries within its area. Ordinance 68 was passed to regulate those cemeteries though some provisions of Ordinance 68 deal with other cemeteries. However, the Local Government Act 1919 was repealed, at least so far as s 446 and following were concerned, by the Local Government Act 1993 which took effect as at 1 July 1993. The 1993 Act does not contain any provision at all about cemeteries. It was put that the land constituting the cemetery must be "community land" within the meaning of s 26 of the Local Government Act 1993. There are some problems about that submission because there is nothing to suggest that there has been any plan of management under

s 36 or how the land can be categorized under s 36(4). If there is in fact a plan of management, then it would seem that under s 46 and s 47 of the Local Government Act 1993, leases and licences can be granted and such leases and licences may be to a private individual rather than to the community generally, see Friends of Pryor Park Inc v Ryde CC (1996) 91 LGERA 302, 314. However, under s 47, unless particular procedure is followed, licences cannot be for more than five years. Unless a body is liable to decompose completely in soil in five years (the English decided cases tend to suggest that a greater period is usually required), a licence to use a burial plot would not come within s 47.

Counsel suggested that the graveyard might come within the Crown Lands Act and the Ordinance governing Crown Reserves. I really cannot see how this is so, as the land would appear to be vested in the Council rather than in the Crown. There is a very real difference in this distinction; see Hornsby Council v Roads and Traffic Authority - NSW Court of Appeal, 19 March 1997, unreported.

In the present case, the Court is not assisted by the fact that the Council has merely submitted to any order the Court might make. The Council's attitude is understandable in that there is really no benefit to its ratepayers in incurring legal costs in a dispute between Mr and Mrs Konz and Mr and Mrs Smith, but it does make the Court's job more difficult and without the benefit of submissions from counsel for the Council, the possibility of error is greater.

What appears to have happened is that everyone has just assumed that what happened under the 1919 Act can continue to occur without any further documentation. Thus, even though Ordinance 68 has been repealed, the Council intended to confer on the holder of the Right to Burial that which would have been conferred on her had the 1919 Act not been repealed. As between the Council and the holder of the Right to Burial, various estoppels would operate, there being no statutory provision which would prevent such estoppels. Accordingly, I will deal with the case as if the right was subject to Ordinance 68.

Clause 19(1) of Ordinance 68 made it clear that the grant of a right of burial in accordance with the form specified in Schedule A, conferred "The exclusive right of burial in one or more specified allotments of the cemetery". Clause 19(2) provided that the right might be transferred or transmitted and that the Council would record any such transfer or transmission. Clause 27 reserves to the Council the right to approve monuments, tombs, tablets, gravestones etc and provided that "the wording of any inscription shall also be subject to the prior approval of the council". Clause 30 made it an offence, inter alia, to "Wantonly damage or disturb any flowers or other tokens placed upon any grave".

Clause 29, upon which counsel for the plaintiffs relied heavily, is as follows:-

I now turn to the questions raised by the plaintiffs. Essentially these are whether the Right of Burial is held by Mrs Konz on trust for the plaintiffs and what are the rights and obligations of the holder of the Right of Burial?

I must first examine the nature of a Right of Burial. The law in this area is complicated by a number of factors which I will consider shortly. It is probably not unexpected that there is little academic writing on this aspect of the law. The most useful exposition of the law of burial is by Percival E Jackson in his The Law of Cadavers (Prentice-Hall Inc New York 1937) to which I will refer as "Jackson". Apart from this book, there are three main articles. The first in time is by S G Hume entitled "Dead Bodies" [1956] SydLawRw 8; (1956) 2 Sydney Law Review 109 to which I will refer as "Hume", the second is one I wrote many years ago "The Exclusive Right to Burial" (1965) 39 ALJ 50. Recently G Pawlowski examined the matter in his article, "Dead Bodies as Property" (1996) 146 NLJ 1828.

The first complicating factor is that, in England, the common law had nothing to do with burial of bodies and left the matter to the ecclesiastical courts. It was quite adequately dealt with there because there were rights given to each parishioner to be buried in the parish churchyard. However, in Australia where one does not have this system, there is a dearth of authority, and what cases there are tend to have been decided as a matter of great haste prior to the burial of the body. I will review some of these shortly. The present case is one where there is no great haste because the burial has already taken place, so that I am given the luxury of being allowed to spend a little more time considering the law.

Although Martin, J in Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446, 451, commented, "It was rightly not pressed that this Court should be guided by the doctrines relating to rights of burial of parishioners and strangers in church yards", that comment must not be taken to mean that such learning is irrelevant.

Probably the best exposition of how a country without church courts deals with the learning generated in church courts was given by Chancellor Kent in New York in Wightman v Wightman (1820) 4 Johnson's Chancery Reports 343, 347. He said (I have altered the references to the pagination of books current in Australia), "Are the principles of natural law and of Christian duty to be left unheeded and inoperative because we have no ecclesiastical courts recognised by law as specially charged with the cognizance of such matters? All matrimonial and other causes of ecclesiastical cognizance belonged originally to the temporal courts (see the case of Legitimation and Bastardy (1612) Davis 51; 80 ER 537 and his the argument in the case of Praemunire ibid at 96 (580)); and when the spiritual courts ceased, the cognizance of such causes would seem as of course to revert back to the lay tribunals."

Jackson says at p 29, "The repudiation of the ecclesiastical law and of ecclesiastical courts by the American colonies left the temporal courts the sole protector of the dead and of the living in their dead." These words are supposed to have come from Kent, Ch in Wightman's case, but having read the report several times I cannot find where the learned Chancellor actually said this. It certainly is a useful summary of what he held, but Wightman's case was actually one involving nullity of a marriage on the ground of insanity.

Next, it should be noted that in the few reported Australian cases on the subject, English ecclesiastical law is cited without adverse comment. See for example, Donaghy v Carrol [1910] NSWStRp 80; (1910) 11 SR (NSW) 9 where the decision of the London Consistory Court in Re Dixon [1892] P 386 was relied on by counsel.

When considering what is the current legal position in Australia, one needs to consider (a) the American cases (as, like the United States, Australia does not have ecclesiastical courts); (b) the position in England both under the Common Law and the Ecclesiastical Law; and (c) the decided cases in Australia. Of course, it must also be remembered that in New South Wales, not only is there the power that must be in the court on analogous reasoning from the American cases, but also the Charter of Justice invests the jurisdiction of the English ecclesiastical courts in this Court. Furthermore, s 23 of the Supreme Court Act gives this Court all the power that it needs to administer justice in New South Wales.

The American law is well summarised by Jackson at p 39 where he says that there are various duties with respect to a body which must be distinguished one from another. He says, "The duty of conveying the corpse, decently covered, from the place of death to the place of interment was and is a primary, a positive, and an active one. It springs from and is created by the right of the dead to burial and the right of the survivors, the next of kin and strangers, constituting the community, to enforce the right of burial in the public interest. It is likewise distinct from the privilege of care, custody, and disposition of the corpse. It is distinct from the obligation to defray or repay the cost thereof. Its enforcement rests upon the necessity of affording expeditious burial, originating in a time when embalming was not common practice, in the interests of the dead and by reason of solicitude for the health and feelings of the next of kin and of the community." Indeed, in O'Donnell v Slack 55 P 906, 907-8 (1899) (California Supreme Court), it was held that "The proper expenses of such disposition may well be a charge against the estate, but the duty and right of burial are quite different things from the duty and right of auditing and paying the expenses of such burial." It has been said that the duty of burying the body in the first instance falls upon the householder in whose home or premises the person dies.

If such a person arranges with a funeral director to bury the body pursuant to the obligation on the householder, the law implies a promise by the person who is granted the probate or letters of administration to repay, provided of course, that that person acts reasonably. As Folger, J, giving the judgment of the Full Supreme Court of New York said in Patterson v Patterson 59 NY 574; 17 American Reports 384 (1875) at Am R 392, "The law implies a promise to him who, in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial, and incurs and pays such expense thereof as is reasonable." Although the court discussed some local statutes before enunciating that proposition, it is in accordance with English authority; see Tugwell v Heyman [1812] EngR 586; (1812) 3 Camp 298; 170 ER 1389; Rogers v Price [1829] EngR 190; (1829) 3 Y & J 28; 148 ER 1080 though see Brice v Wilson [1834] EngR 495; (1834) 3 Nev & M 512; 112 ER 870 and Green v Salmon [1838] EngR 659; (1838) 8 B & Ad 348; 112 ER 869.

I should note at this stage that the consequence of the estate being liable to pay for the burial after administration has been granted is that the burial right is often held to be the property of the estate rather than the person who made the contract with the cemetery authority. There are no local or English cases on the point, but the trend of decisions in the Untied States is in this direction. The exact holdings in those cases may have to be adjusted because of differences in local law.

Thus in Re Waldron 58 A 453, 454 (RI) (1904), Stiness, CJ said, "The right of custody of the remains and the right of property in the burial lot should go together, where it is possible... a burial lot does not pass under a general residuary devise, but it descends to the heirs as intestate property." See also Jackson at p 368.

In Re Brick Presbyterian Church (1838) 3 Ed Ch 155, 168, McCoun, VC quoted from Gilbert v Buzzard (1820) 3 Phill 335; 161 ER 1342, also reported [1821] EngR 315; (1820) 2 Hagg Con 333; 161 ER 761. This latter case is often referred to as "The Iron Coffin case", because it concerned the alleged right to bury along with the body an iron coffin with a patent lock to foil grave robbers. However, in the course of it, Scott, J, later Lord Stowell, examined the right to bury generally. McCoun, VC then said, "A faculty or grant from the bishop will authorize the erection of tombs and monuments. The person who sets them up has a right of action for injuring or defacing them during his life; and the heir of the deceased has a like right of action. The heir has a right of property in the monuments and escutcheons of his ancestors, and may bring an action against those who take or deface them." He cites as authority Coke on Littleton 18b; Gibson's Codex, 544 and Frances v Ley (1615) Cro Jac 367; 79 ER 314, a decision of the Court of Star Chamber.

In England, apart from ecclesiastical law cases, the common law courts made various pronouncements of burial rights.

In R v Stewart [1840] EngR 1003; (1840) 12 Ad & E 773; 113 ER 1007, at 778 (1009), Denman, CJ, giving the judgment of the court said, "Every person dying in this country ... has a right to Christian burial; and that implies the right to be carried from the place where his body lies to the parish cemetery." The learned Chief Justice then referred, with approval, to words of Lord Stowell in **The Iron Coffin case "**that bodies should be carried in a state of naked exposure to the grave, would be a real offence to the living, as well as an apparent indignity to the dead." Denman, CJ continued, "We have no doubt, therefore, that the common law casts on some one the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. The feelings and the interests of the living require this, and create the duty ...".

In R v Fox [1841] EngR 1003; (1841) 2 QB 246; 114 ER 95, the full Queens Bench ordered mandamus against a gaoler who declined to deliver up the body of an ex-prisoner to the executors until the prisoner's bills had been paid.

Williams v Williams (1882) 20 Ch D 659 was a case where the testator directed his friend Eliza Williams to have him cremated. Before she could do so, the widow obtained the body and had it buried in Brompton Cemetery. Eliza Williams had it disinterred with the licence of the Home Secretary, cremated and the ashes buried in consecrated ground in Montgomeryshire. She then sued the executors for the expense. Kay, J held that the will did not give any authority to dispose of the body. He said at 665 following **R v Fox, "**The law in this country is clear, that after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried." It could be argued that part of this decision may not be appropriate to Australian law where executors do not obtain their rights immediately on the death of the deceased but only after grant of probate. However, the decision has been the basis of Waddell, J's decision in Robertson v Pine Grove Memorial Park Ltd - 5 June 1986 and Martin, J's decision in the Calma case.

The other English case to which I need refer is R v Gwynedd County Council; ex parte B [1992] 3 All ER 317. That was a case where the plaintiffs were the foster parents of a child, C, who died whilst in their care. She died because of a heart defect at 14. The defendant council held that the rights of fostering ceased when the child died and that accordingly the natural parents were the people who were entitled to choose her burial site. The plaintiffs sought prerogative relief, but failed on the basis that the natural parents' rights were only taken away to a certain extent and their rights to bury their child were not within the rights which were removed from them.

I will now consider the recent local authorities in chronological order.

In Robertson v Pine Grove Memorial Park Ltd (supra), the plaintiff widow was the executor and the second defendant the deceased's son. The son arranged the funeral and arranged with the cemetery, the first defendant, that half the deceased's ashes were to be placed in a rose garden in the cemetery with a plaque, and half were to be placed in an urn to be taken to England. The widow wanted to take the whole of the ashes to England. The executor then commenced proceedings in equity to obtain possession of the whole of the ashes. Waddell, J held that the executor had the right to possession of the ashes of the deceased and to direct how they shall be finally disposed of. This conclusion may be out of kilter with some of the legal principles I have been considering. However, the Judge remarked at the end of his judgment that the son had made arrangements without prior approval of the widow or other members of the family and he did so at his own risk that what he was doing would be contrary to everyone else's wishes.

Later in 1986 I decided Beard v Baulkham Hills SC (1986) 7 NSWLR 273. That was a situation where a son had buried his mother in a grave which his aunt claimed to be hers. I held that once a body had been buried, it was not to be disturbed. The relevance of the case for the present proceedings is that I followed what I wrote in my article in (1965) 39 ALJ 50 and held that (p 278) "Once an interment took place in a grave site with the permission of the cemetery authority then there was an irrevocable licence, so far as that body was concerned, for it to remain, at least until the natural process of dissolution."

The next case is Calma v Sesar (supra). Martin, J in the Supreme Court of the Northern Territory had to consider a dispute between the plaintiff mother and the defendant father of an adult son. The deceased died in a Darwin hospital. The mother was living in Alice Springs and the father in Port Hedland, Western Australia. It could be seen that each of the claimants had equal rights as next of kin. Martin, J said at 452 that "The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.

"The body of the deceased was in Darwin and proper arrangements had been made for burial here. There was no good reason in law why that should not be done and no good reason in law why the removal of the body from the Territory and burial in Western Australia was to be preferred."

The next decision is that of Waddell, CJ in Eq in Brown v Tullock - 18 October 1992, unreported, but noted in 68 ALJ 67. That was a dispute between a de facto wife and a brother of the deceased. The coroner indicated that he intended to release the body to the de facto wife. She intended to bury the body at Little Hartley. The brother wished to inter the body at Lithgow with the rest of his family. The site at Lithgow had actually been purchased by the deceased for his own interment. The de facto wife said that before his death the deceased told her he wanted to be buried at Little Hartley. The Judge found that as the de facto wife was likely to be the sole beneficiary and must be granted administration, she had the right to choose. On the analysis of the principles which I have considered above, that was the correct decision, but, with respect, not completely for the right reason. The mere fact that the plaintiff might become administrator appears to be irrelevant. However, as the de facto wife she would be given priority over the deceased's brother.

The next case is Burnes v Richards - Cohen, J, 6 October 1993, unreported, but noted in 68 ALJ 67. In that case the plaintiffs were the daughter and sister of the deceased, the first defendant was the person who claimed to have been the deceased's de facto husband for the last 17 years. His claim was disputed. The plaintiffs wanted to bury the body in Griffith in the family grave, the defendant wished to have the funeral in a village near Condobolin. The hospital intended to hand the body to the Aboriginal Funeral Service on behalf of the plaintiffs, but, by mistake, handed it to a funeral director retained by the defendant.

There was a contest as to fact as to whether the de facto relationship had ended. Had this not been the case, the Judge may well have followed Tullock's case and found that the de facto husband had the better right. Because there was such a doubt and because there was no time to resolve the doubt, the Judge thought that the close relations of the deceased, the plaintiffs, were the people who had the duty to see to her burial.

Finally, there is the decision of Brownie, J in Warner v Levitt - 23 August 1994, unreported. This was a contest between the foster parents who were the plaintiffs and the natural mother and natural father. His Honour said that the old cases dealing with the rights of parents referred to blood parents rather than foster parents. As the foster parents were not executors, they were not entitled to the privilege of burying the body. The decision does seem to adopt two propositions which are questionable, (a) that the right of possession of a dead body runs with the duty to dispose of it; and (b) that if an executor has to pay for the burial, he or she has the right to choose the burial place. Nonetheless, the decision is in accordance with the principles I have abstracted earlier.

It is often said that there is no property in a dead body. This statement was recently reiterated by the English Court of Appeal in Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1996] 4 All ER 474, a case where relatives sued a hospital for failing to retain the deceased's brain after his death for forensic purposes. For Australia, the leading case is Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

However, the proposition is only true sub limine. It will not, for instance, apply if the body has been processed through some human skill, Dobson's case at p 478. The authorities are set out in the judgment of Higgins, J in Doodeward v Spence at pp 419 et seq. At p 421, his Honour referred with approval to the decision of Potter, J, sitting in the Rhode Island Supreme Court in Equity, in Pierce v Proprietors of Swan Point Cemetery 10 RI 227; 14 Am Rep 667, 677 (1872).

Pierce's case was a demurrer in equity, it being alleged that a Court of Equity had no jurisdiction to deal with a suit complaining that a person had been removed from one lot in a cemetery and reburied in another place in the same cemetery. One of the arguments was that there was no property in a body and another was that equity had no jurisdiction unless there were rights of property involved. Potter, J overruled the demurrer. At p 675 of the American Reports, his Honour cites the Roman Law that the charge of burial was first upon the person to whom it was delegated by the deceased, secondly upon the beneficiaries of his property, and thirdly, on the heirs or relations. After citing some of the English cases I have dealt with above, his Honour said at 676, "That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation; it may, therefore, be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case."

At p 680, his Honour quotes Lord Cottenham's golden rule in Walworth v Holt (1841) 4 My & Cr 619, 635; 41 ER 238, 244 (a rule which I recently discussed in Baird v BCE Holdings Pty Ltd (1996) 40 NSWLR 374, 386) and held that as there was no common law action, only equity could give a full and complete remedy and its jurisdiction was fully adequate to do so

(p 681). Further at 681 he said, "Although ... the body is not property in the usually recognised sense of the word, yet we may consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform toward it, arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it, and we think that a court of equity may well regulate it as such, and change the custody if improperly managed."

There are other passages in the authorities to similar effect. I will quote only one more from the judgment of a Missouri court in Polhemus v Daly 296 SW 442, 444 (1927) based on Corpus Juris, "while there is no right of private property in a dead body in the ordinary sense of the word, it is regarded as property so far as to entitle the next of kin to legal protection from unnecessary disturbance and violation or invasion of its place of burial." This states the law in New South Wales. Although the common law would not give a remedy, see Bone v Clancy (1881) 2 LR (NSW) (L) 176, equity would grant an injunction to protect the irrevocable licence involved in burying a body.

It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, Re Slattery [1909] NSWStRp 76; (1909) 9 SR (NSW) 577, the person with the largest interest will normally be the person who is the one expected to bury the body.

Where the deceased does not leave any estate, then it would seem that the duty is still on the person under whose roof the deceased dies to arrange the burial, though if it can be said that there is a legal duty on another person to bury the body, then that other person will be subject to a restitutionary action at the suit of the householder who arranges the burial. The first part of the proposition I have just enunciated is supported by the decision of the Full Court of the King's Bench in R v Stewart (supra).

Where a person has a husband or wife or parents or children, then there is some authority for the view that they have a duty to bury and they will impliedly promise to reimburse the person who acts in accordance with what was said in Patterson's case. Hume analyses some of these cases at

p 111 of his article. The cases which impose the liability on a husband to pay for his wife's funeral were initially decided at a time when wives were not allowed to have any assets at law. Thus, in Rees v Hughes [1946] KB 517, the English Court of Appeal held that where the wife herself has sufficient assets, then the wife's estate is liable for the funeral. The court doubted whether the common law rule that a husband was liable if the wife left no or insufficient estate still applied. The authorities in Hume and Jackson would suggest that it does.

Cases supporting the duty of the husband to bury include Ambrose v Kerrison (1851) 10 CB 777, 779; [1851] EngR 327; 138 ER 307, 308 and Bradshaw v Beard [1862] EngR 615; (1862) 12 CB (NS) 344, 348; [1862] EngR 615; 142 ER 1175, 1177. These authorities were applied in New Zealand in Govey v Moore [1935] NZLR 739, 742-3. The English authorities show that provided that a person has means, he is bound to bury his infant child, though he is not bound to go into debt to do so: R v Vann (1851) 2 Den 325; 169 ER 523; Clark v London General Omnibus Co Ltd [1906] 2 KB 648, 659.

In Chapple v Cooper [1844] EngR 747; (1844) 13 M & W 252; 153 ER 105, an infant widow was held liable for a contract to bury her husband who had died without assets, the contract being held to be one for necessities. The Judges said at ER 108 that "It will not follow ... that an infant child, or more distant relation, would be responsible upon a contract for the burial of his parent or relative."

However, as Jackson points out, the questions as to who is liable to be indicted for not burying a body and who has the obligation to pay for the burial and the question as to who has the custody of the body are all distinct from the question as to who has the privilege of deciding where the body is to be buried.

The Supreme Court of California said in O'Donnell's case at 907, "... there is a right, well defined and universally recognized, that in disposing of the body of deceased the last sad offices belong of right to the next of kin, within which phrase, as here employed, is included the surviving husband or wife. This right had its origin in sentiment, in affection for the dead, in religious belief in some form of future life. It therefore early became a subject of cognizance by the ecclesiastical courts. But, while thus having its origin in affection and religious sentiment, it soon came to be recognized as a strictly legal right; and the next of kin, while not, in the full proprietary sense, `owning' the body of the deceased, have property rights in the body which will be protected, and for a violation of which they are entitled to indemnification. ... Therefore ... neither the court in probate nor the personal representative has any right to the body of the deceased, nor any right to control the manner of disposing of the remains, nor to dictate the place of interment. The proper expenses of such disposition may well be a charge against the estate, but the duty and right of burial are quite different things from the duty and right of auditing and paying the expenses of such burial."

Jackson says at p 57, quoting authority, though it is not clear to me what authority, "As between the wife and other relatives, the great weight of authority is that the care and custody of the body and the right to provide a place of burial rests in the first place with the surviving spouse. The right of a surviving husband or wife, or, if there be none, of the next of kin, to have the custody of the body and decide upon the place of its burial is supported by the better reasoning and by the almost universal voice of the authorities." He then says at 59, "If there is no surviving husband or wife, the right is in the next of kin in order of their relationship to the deceased, as children of proper age, parents, brothers and sisters, or more distant kin, modified it may be by circumstances of special intimacy or association with the decedent." He continued at p 60, "And as a child has the right to bury the body of a parent, so the converse right exists in the father and mother jointly."

The main authority is Renihan v Wright 25 NE 822 (Indiana) (1890). That was an action in negligence against undertakers for not keeping the body of the plaintiff's deceased child safe until they were ready to bury it. Coffey, J said at 823 that burial rights commenced with Cuthbert, Archbishop of Canterbury in the year 750. However (824) "As we have no division of power between the church and the state in this country, it follows that much of the power exercised by ecclesiastical tribunals in England is vested, of necessity, in the secular courts here charged with the general administration of the law. The necessity for the existence and exercise of such power must be apparent to all. Without it, the right to take the exclusive control of a corpse, and care for and bury it, could not be enforced." The passage highlighted in Jackson is dealt with at p 825.

In the instant case, the coroner had possession of the body soon after death for the purposes of conducting an inquest. At common law, the coroner had a right to retain possession of the body until the conclusion of the inquest or until the coroner decided that the body was no longer needed for the purposes of the inquest: R v Bristol Coroner; ex parte Kerr [1974] QB 652, 659. The coroner's right now appears as s 24 of the Coroners Act 1980. The practice is that when the coroner has no further need for the body it is released in accordance with s 49 of the Coroners Act authorising a burial. The form is set out on p 165 of Waller's Coronial Law and Practice in NSW (Butterworths Sydney, 3rd ed 1994). It would seem that the coroner usually issues this notice to the next of kin. Mr Waller says at 187-188 that in a contentious case the coroner could decide to retain possession of the body until there was an order of the Supreme Court deciding the issue. However, otherwise it would appear that the coroner takes into account the persons entitled on intestacy under s 61B of the Wills Probate and Administration Act 1898.

Having reviewed these authorities, what is the current legal position with respect to the right of burial in New South Wales?

It is useful to state the propositions that follow from the above analysis and from the analysis subsequently appearing in these reasons before dealing with the facts and submissions in the present case.

1. If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so.

2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.

3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.

4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.

5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.

6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

7. If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.

9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.

10. A Right of Burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.

11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.

12. Subject to such by-laws, the holder of the Right of Burial has the power to decide on the appearance of the grave and headstone.

13. The reasonable cost of a reasonable headstone is recoverable from the deceased's estate.

14. The holder of the Right of Burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.

15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the Right of Burial.

I now pass to the facts and submissions in this case. The first issue is whether the Right of Burial is held for the plaintiffs.

It must be remembered that there has been no grant of administration in David's estate. The contest is between the adopting parents and the biological parents. There is no doubt at all under s 35 of the Adoption of Children Act 1965, that once a child has been adopted, for the purposes of the law in New South Wales, the adopted child becomes the child of the adopting parents as if he had been born to them in lawful wedlock and ceases to be the child of any other person. Accordingly, there is no doubt at all, that as between these disputants, Mr and Mrs Konz had the privilege of deciding on the burial. It would seem that the only other claimants, Leanne, who may have been a de facto wife and the infant daughter Teliah were quite content to leave matters to Mr and Mrs Konz.

Accordingly, Mr and Mrs Konz were the people who had the right to determine the burial. Indeed, they were the people who made the arrangement with the funeral director and the funeral director buried the body in accordance with their wishes. The right that was obtained was an irrevocable licence to have David's body remain in the plot together with ancillary rights to have the body remain undisturbed and the right to care for the grave.

Have these rights been lost by Mr and Mrs Konz. Do they hold them on trust for Mr and Mrs Smith or have they been transferred to the Smiths?

The plaintiffs rely strongly on a conversation between Ms Gaites and Mrs Konz. According to Ms Gaites' affidavit, she telephoned Mrs Konz and said, "I have received a cheque from the Smiths. I just wanted to give you the option of paying the account for if the Smiths pay the account that gives them the right to do with David's grave the way they wish." Mrs Konz allegedly replied, "I don't want any more hassles. That is all right let them." After holding the cheque for eight days to see if Mrs Konz would react, Ms Gaites banked the cheque and receipted it to the Smiths. She also sent the Smiths the death certificate. Mrs Konz denies that she said to Ms Gaites, "I don't want any more hassles. That is all right let them." She says that she replied, "You're joking. I'll have to speak to Brian and I'll ring you back." (Brian is her husband). She telephoned Ms Gaites shortly thereafter and said "Let them pay it then".

I cannot see how this conversation can alter the rights at all. First of all, Ms Gaites was not making any offer. She was stating what she considered the law to be. She had no authority from Mr and Mrs Konz, whose agent she was, to agree to assign the rights that Mr and Mrs Konz had in the grave. There is no suggestion that Mr or Mrs Smith thought that she had any such authority. Moreover, as David had been buried on 11 March, by this stage there was an irrevocable licence from the Council to Mr and Mrs Konz to have the body buried in the relevant lot in the cemetery.

Mr Bellamy for the plaintiffs, put that this was strong evidence that there had been an agreement by Mrs Konz to transfer the rights. I do not consider I should infer that from the conversation between Mrs Konz and Ms Gaites. Ms Gaites was not acting as the agent of the Smiths and it does not seem to me that the conversations of a mother who has recently lost her son with a funeral director over the telephone is sufficient to transfer all the rights in her son's grave.

The next point is whether the payment of the funeral director's account can change the legal rights of the parties. It will be remembered that the account included a fee of $750 for the purchase of the grave site. The above analysis I believe makes it clear that the obligation to pay for the burial and the right or privilege of burial are two distinct matters. The mere fact that someone other than the holder of the Right of Burial paid the bill would appear to be of no moment at all.

There is a nice question as to whether any assignment of the Right of Burial would be an assignment of an interest in land. I rather think it would be because the irrevocable licence brought about by the interment of David in the ground makes the licence more than a contractual licence, it is really a licence coupled with a grant. As I said in 39 ALJ 50 at 52, although there is no profit a rendre, the licence is not a naked one and may be protected as a right of property. The American cases all class the right as an interest in real property, see eg The Brick Presbyterian Church case (supra) and Jackson at p 368. As an interest in the land is involved, there would need to be some writing to deal with the assignment for it to be recognized pursuant to s 23C of the Conveyancing Act.

The actions of Mr and Mrs Konz show that they never intended to transfer the grave. Those actions included the erection of a headstone and their attitude since as attested by their conduct of the current litigation.

Accordingly, Mrs Konz had the Right of Burial, and she did not hold it on behalf of the Smiths. Thus this part of the plaintiffs' proceedings fail.

I should note that Mr and Mrs Konz recognize that there may be a lien over the grave in favour of the plaintiffs to secure the money they paid out for the funeral and that Mr and Mrs Konz are willing to refund this sum to the Smiths. However, to date, for obvious reasons, this offer has not been accepted.

The next question to consider is what rights Mrs Konz has over the grave. Does she have the exclusive right to dictate the words of the headstone and to veto anyone else putting flowers etc on the grave?

Mr Bellamy puts that the Ordinance gives to the person who paid for the Right of Burial the right to do something in and about the grave. He says that as the Smiths paid for the grave because it was their $750 that was forwarded by Ms Gaites to the Council, they have rights. However, even assuming that Ordinance 68 was still in force, the words "person who paid for" do not necessarily mean the persons whose cheque was used to pay the funeral account. It not infrequently happens that one of the relatives, or indeed, a bank, pays the money for the funeral. As Mr D J Russell, who appeared for Mr and Mrs Konz, pointed out, often the RSL will in fact be the entity that pays for the funeral. Indeed, it is not at all uncommon in practice for a cheque payable to the deceased received by the person named as executor will be cleared by special arrangement with the deceased's bank and the proceeds used to pay the funeral account. The mere fact that a person is the source of the moneys which pay the funeral account cannot constitute that person as "the person who paid for" the grave site. The person who actually was billed by the Council and who actually paid the account to the Council was, of course, the funeral director. I would conclude that the funeral director paid on behalf of the person who had been granted the licence on 11 March when the body was interred. This conclusion is not affected by the fact that the source of the funds was Mr and Mrs Smith. Furthermore, the mere fact that the paperwork was done in June does not seem to me to make any difference. Indeed, the Council itself recognized this by issuing the formal Right of Burial certificate to Mrs Konz, who would appear to be the person who instructed Ms Gaites to apply for it.

Mr Bellamy further submits that on this aspect of the case, the plaintiffs are entitled to equitable relief. He says that, where there is no legal personal representative, relatives are entitled to equitable relief vis a vis the erection of headstones and monuments. He relies on Grunden v Nissen [1911] VLR 105 and Chesterman v Mitchell [1923] NSWStRp 68; (1923) 24 SR (NSW) 108. However, when one looks at the cases, they do not support the proposition. Grunden's case was a situation where the testator had allegedly told the executors that he wanted a Swedish marble tombstone for which they paid [sterling]60.0.0. and sought to charge the estate but the court only allowed [sterling]25.0.0. on the basis that it was customary to allow a small amount for a headstone and nothing more; see Bridge v Brown [1843] EngR 371; (1843) 2 Y & CCC 181; 63 ER 79. However, A'Beckett, J said at 105, "Where there are no relatives to put up a stone, I believe it to be usual for executors to do so without express authority in the will, or coming to the Court for its sanction. I am not sure that this is so, but I am sure that it would be unfortunate if it were otherwise." These words were adopted by Harvey, J in the Chesterman case at p 111 and his Honour went on to say at 112, "Where there is no express provision in the will and where none of the relatives insist on carrying out this duty themselves, as they may very well do in some cases, executors may out of the testator's estate spend a reasonable sum of money ... in erecting a headstone or in some other way marking the testator's grave." However, this recognition of what happens in practice with relatives does not provide authority for the proposition that when there is a dispute between relatives, each group of relatives is entitled to have a say in the headstone. Nor do I know of any authority which so provides.

Mr Bellamy then goes on to say, "In the absence of authority, the plaintiffs refer to the distress and concern caused to them and the monetary contribution willingly made by them and ask that equity look on that as done which ought to be done, and that the feelings and interests of the living should be observed where possible and appropriate." He refers to Stewart's case.

Although equity has, as I have indicated, a wide jurisdiction, it just cannot make up new rights as it goes along because it thinks it is fair to do so. Equity acts as a court of conscience and the conscience is what is right in the eyes of the community for the time being. If one were to ask would the community as a whole consider that a biological mother should have the right to have her name endorsed on a tombstone of a child who had been the adopted child of someone else for over 20 years when that other person did not consent to the biological mother's wishes, I could not see that the community would endorse the biological mother's claim. If it is not against the conscience as judged by modern community standards, then it is not a situation in which this court should give relief.

It should be noted that in my consideration of this aspect of the case, I do not intend to deal with the rights of Mrs Konz vis a vis the Council. All sides recognize that the Council's reasonable by-laws with respect to the cemetery need to be observed.

The authorities do deal though in rather a vague way with the "right" of people to pay respect to the dead by adorning their graves and on the limitation of the cemetery authorities and the graver holder to interfere.

In Chariton Cemetery Co v Chariton Granite Works 197 NW 457 (Iowa Supreme Court) (1924) also reported (1924) 32 Am LR 1402, the contest was on as to what by-laws a cemetery might reasonably make. To answer that question the court needed to analyse the rights of burial lot holders. It said at Am LR 1404, "With the right to use the lot as a burial place there went also the privilege of visiting, keeping, and attending the graves of those interred there, under such reasonable rules as to the character of the work and the manner in which it should be done as might be prescribed. That the lot owner could not reasonably be deprived of the right to do personally what he might desire, so long as he conformed in the character of the work and the manner of doing it with such rules, cannot be doubted." The court approved of what an Illinois court said in Graves v Bloomington 67 Ill App 493, "When lots are sold for burial purposes, the purchaser [sic] certainly acquire the right to visit the same and to improve to [sic] care for them. This may be done in person or by agent."

In Thompson v Deeds 61 NW 842 (Iowa Supreme Court) (1895), a daughter owned a burial lot and permitted her father to be buried in it. There was a contest as to whether the widow (the plaintiff's stepmother) could remove the body and inter it in her own site because the plaintiff daughter refused to allow the widow to erect a monument. Kinne, J said at 843, "When [the] plaintiff consented to the burial of her father in her lot, she knew, or ought to have known, that that consent involved the right on the part of his widow to manifest her appreciation of and affection for the deceased in the usual way, followed from time immemorial by those who respect and revere their dead."

In Hoskins-Abrihall v Paignton UDC [1929] 1 Ch 375, 389, Sankey, LJ made it quite clear that the rights of a person who holds an exclusive right of burial, does not prevent the public from placing flowers on a grave. His Lordship said, "I should not like to say anything against those time-honoured customs which are observed on any day in any churchyard or in any cemetery...". The context shows that this was not meant to refer to any bizarre way of showing respect. Nor does the statement affect the ultimate authority of the cemetery authority and the grave holder to make reasonable decisions on what is appropriate.

In Strathcona Cemetery Co v Taylor [1924] 3 DLR 625, the Appellate Division of the Alberta Supreme Court had to deal with a by-law of a cemetery authority restricting the rights of persons other than the holders of rights of burial from doing work in the cemetery. The defendant appears to have been a person who was a contractor doing work in the cemetery before the by-law was passed. The court granted an injunction against him continuing to do so, (629) "Unless accompanied by or sent by the lot-owner or some person so related to the `lot-owner' as to have an interest therein of a proprietary nature or as a member of the family of the deceased or of those presently entitled to use the plot and his services are rendered without remuneration." This seems to suggest that the court thought that a member of the family was entitled to tend the grave notwithstanding that he or she might not be the proprietor of the exclusive right to bury. A similar case in the Chancery Division of the Superior Court of New Jersey is Luttenberger v Restland Memorial Park Association 144 A (2d) 12 (1958). See also Abell v Proprietors of Green Mount Cemetery 56 A (2d) 24 (Maryland Court of Appeal) (1947), also reported 174 Am LR 971 together with annotations.

Jackson says at p 375 , "The lot owner, subject to the reasonable regulation of the exercise of his rights, may enclose the plot or section of ground in which he possesses the burial rights, he may improve and embellish it and may exclude other persons therefrom.

"The lot owner's `right to bury carries with it the right to do so by the usual custom in the neighbourhood and undoubtedly includes the right of making mounds over and erecting stones and monuments at the graves' (Mitchell v Thorne 32 NE 10 (New York Court of Appeals) (1892)) subject to the reasonable rules and regulations of the cemetery." However, he says at pp 381-2, "It would be unthinkable to exclude one from visiting the grave of a close relative simply because of lack of title in the plot or lack of relationship to the owner thereof." Again, he cites Mitchell v Thorne.

The cases dealing with lot owners' rights to prevent interference by strangers usually go to interference with the grave by the cemetery authority or the clergy. Thus in Polhemus v Daly (supra) lot owners in a church cemetery enjoined the priests from desecrating graves by removing what is called "tiff" therefrom. "Tiff" is described in the report as "baryta" which I find of little assistance, but presumably denotes the heavy metal pieces that formerly adorned coffins which had disintegrated. A local case in the same line is provided by Donaghy v Carrol (supra).

Thus the authorities show that the right to erect the headstone is the right of the person who owns the burial plot. The plaintiffs say that there is at least an equitable right for close blood relatives of the deceased to have themselves mentioned on the headstone or at least an additional headstone erected by them. The authorities show no such right. Subject to the rules and regulations of the cemetery, it is for the person with the burial right to choose the words of the headstone.

Apart from the American cases that I have discussed, there is actually little local or English law on the wording of headstones. What there is is over-influenced by the ecclesiastical law of England. Thus in the infamous case of Keate v Smith (1875) 1 PD 73, an attempt by a Methodist minister to inscribe on his daughter's headstone "Daughter of the Reverend Henry Keate" only succeeded over the objection of the Reverend George Smith, the Anglican vicar, by a decision of the Privy Council.

Accordingly, whilst the plaintiffs may get some relief should the second defendants ever completely deny them access to the grave or unreasonably remove flowers that they may have placed on it, the plaintiffs have no right to enter onto the grave and erect a substitute headstone including their own names and the names of members of their family in addition to the names on the existing plaque.

Thus, the proceedings must be dismissed with costs.