Warner v Hungerford [2026] QSC 29

[1] The deceased, who I will not name out of respect, died on 28 December 2025, aged 54. He appears to have left no will, and was a man of limited means, such that it is unlikely there will be any need for a grant of letters of administration on intestacy. In some respects, the deceased led a difficult life. But what is apparent from the evidence in this case is that he was a much loved man, who maintained his traditional Aboriginal culture in tangible ways through song and dance, who was important to all members of his family and well regarded in the communities who came to know him.

[2] The deceased was in a relationship with the first applicant, Ms Cassandra Warner, from about 1999. The relationship was unfortunately marred by alcohol abuse and domestic violence. There is a dispute on the evidence about whether the deceased was still in that relationship at the time of his death, and therefore whether Ms Warner was his "spouse" at that time, within the meaning of rule 596 of the Uniform Civil Procedure Rules 1999, for the purposes of rule 610, which sets out the order of priority of persons to whom the court may grant letters of administration on intestacy (that is, where a person dies without leaving a will). It has not been necessary to try to resolve this dispute.

[3] The deceased and Ms Warner had one child, who is the second applicant, Ms Miriyan Sandy, who is a young adult, aged 22.

[4] The deceased also has older children, from previous relationships. The oldest of his children is Ms Marliza Hungerford, the respondent. The other children are Yarum, Talah, sadly deceased, and Wyuna. All the deceased's children are adults.

[5] The deceased's father is still alive, Mr Michael Sandy, as well as a number of his siblings.

[6] Regrettably, a dispute has arisen in relation to where the deceased should be buried. Ms Warner and Ms Sandy wish for him to be buried in Hervey Bay, where they live. Ms Hungerford and other members of the deceased's family wish for him to be buried at Mount Gravatt, at the place where the deceased's mother is buried.

[7] An application has been made to this Court to resolve the dispute. Although section 6 of the Succession Act 1991 has been relied upon, that provision does not confer the requisite power on the Court. Its relevance is limited to the conferral of power to grant letters of administration, a matter which has some relevance in a case such as this. However, it is well-established that the Supreme Court has the power to make a declaration resolving a burial dispute as an incident of its inherent power to grant declaratory relief.

[8] I have heard the application this morning, and have prioritised giving a decision quickly this afternoon, recognising that both the dignity of the deceased and the conscience of the community require that a dispute of this kind be decided without delay, and with all proper respect and decency.

[9] There is no controversy between the parties as to the relevant principles that apply.

[10] I begin by acknowledging section 28 of the Human Rights Act 2019 (Qld), which includes amongst the civil and political rights recognised and protected by that Act, the cultural rights of Aboriginal people, including "their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings" (see section 28(2)(a)). As Justice Henry acknowledged in Accoom v Pickering [2020] QSC 388 at p 4, it was uncontroversial in Queensland even before the enactment of the Human Rights Act that Aboriginal custom, including culture and spiritual beliefs, are a relevant consideration in a case such as the present (referring to the decision of Justice North in Johnson v George).

[12] At common law, the "usual rule" or "common starting point" is that the person entitled to administration of the estate of a deceased person is usually the person responsible for arranging the funeral and burial of the deceased.[1] Where there is a will, and an executor has been named, that person has the "primary privilege of burying the deceased's body".[2]

[13] Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person responsible - and in identifying who that is, "one looks to see the person who is most likely to get the grant of administration".[3] But it is emphasised in the cases, notably the decision of the Full Court of the South Australian Supreme Court in Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328, that this "usual rule" is no more than a convenient method of approach to some cases, rather than a "hard and fast rule" or principle of law to be applied rigidly.[4] In fact, Justice Perry, who gave the primary reasons in that decision with whom Justices Millhouse and Nyland agreed, went on to say that that approach is "irrelevant where there is no estate and no likelihood of a grant ever being applied for" (see paragraph [67]).

[14] Where the person has died intestate, without any significant assets, such that there is unlikely to ever be an application for administration, it has been observed that this approach "takes on an air of unreality" and the generally accepted approach is, quoting from Jones v Dodd:

"... to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question."[5]

[15] In Britt v Office of the State Coroner [2022] WASCA 75 at paragraphs [57] to [58], Justice Mitchell observed that "practical considerations may also be significant in a case where persons with equally-ranking rights to apply for administration are in dispute about funeral arrangements" and that other "relevant matters [that] have been recognised include, to the extent they are known to the court, cultural considerations, the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased", as well as "the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals". Those considerations were also highlighted by Justice Nicholson in South Australia v Smith, which is referred to by Justice North in Johnson v George at paragraph [12].

[16] Each of these considerations features in the present case.

[17] Having regard to the dispute, on the evidence, about whether Ms Cassandra Warner was the deceased's spouse at the time of his death, Ms Warner does not press the application on that basis. This means I do not need to decide whether Ms Warner was the deceased's spouse at the relevant time. The application is pressed by Ms Miriyan Sandy, the youngest child of the deceased, who seeks an order the effect of which would enable her to arrange for the deceased to be buried in Hervey Bay.

[18] The application is opposed by another of the deceased's children, Ms Marliza Hungerford, who seeks an order the effect of which would enable her to arrange for the deceased to be buried at Mount Gravatt. Ms Hungerford's position is supported by the deceased's father, his eldest brother, a number of his siblings and other close and extended family members.

[19] If regard is had to rule 610 of the UCPR, even as a starting point, this means there are "equally ranking" persons to whom the court may grant letters of administration: relevantly, under rule 610(1), in the absence of a surviving spouse, the next in priority are the deceased's children.

[20] However, on the evidence, it is unlikely that there will be any need for a grant of letters of administration. The evidence is that the deceased's assets were limited to a small amount in a bank account (into which his disability support pension was paid), part of which was used to pay for his funeral, and a superannuation balance of $1,500. So, on the basis of the authorities just referred to, this factor is neither determinative, nor of much assistance in resolving the dispute.

[21] The deceased was an Aboriginal man who, on the evidence, actively practised elements of his traditional law and culture, in particular, through song and dance, throughout his life. There are, therefore, important cultural considerations.

[22] There is evidence of the views and wishes of the deceased expressed to various people during his life, about where he wished to be buried. There is also evidence as to the views and wishes of his family members, including the deceased's elderly father, about where they would like to see him buried.

[23] And, there are practical considerations. The deceased's body remains at the funeral home, in Brisbane, where his funeral was held on 23 January 2026. The funeral was organised by members of his family, other than the applicants. It was paid for, in part, by money raised by family members, through a GoFundMe page, partly by a donation from an Aboriginal corporation involved in a native title claim for the Yugambeh (which takes in Munanjali) people, and with a small amount of money from the deceased's bank account. The commencement of this proceeding has prevented his burial from taking place. However, because the funeral had been arranged and paid for, and many family members had travelled to Brisbane for it, the funeral itself went ahead. The inability to bury the deceased on that day has caused significant distress to his family. There is, understandably, some urgency to the burial taking place without further delay. There are, I accept, practical considerations surrounding these arrangements, including financial considerations if the order sought by Ms Miriyan Sandy is made, because this will involve a further cost of just under $13,000. The funeral and burial in Brisbane have been fully paid for, save for a plaque to be placed on the headstone.

[24] It is clear on the evidence that the deceased had a very close relationship with his youngest daughter, Ms Miriyan Sandy. No one disputes that. She is his youngest child, and lived with the deceased and her mother, Ms Warner, for most of her life, in Hervey Bay. Ms Sandy describes a relationship of mutual reliance and support with the deceased, as well as an important cultural relationship, as the deceased passed on important knowledge to her from a young age. Ms Sandy wants her father, the deceased, to be buried in Hervey Bay, where she lives. Her evidence is that it was the deceased's wish to be buried in Hervey Bay. She says in her evidence, "I am certain of dad's wishes about his burial, because dad, mum and I often discussed it after we had visited my dad's mother's grave in 2022. After this, dad would say, he has found his comfort in Hervey Bay, Hervey Bay is his home and that he wanted to be close to his 'two ladies', so that we could caretake". Ms Sandy also says, "burial location is important in our culture and if dad was not buried in Hervey Bay, my heart would not be settled. If dad is buried in Hervey Bay my heart will be settled because I know that is what he wanted, I will be able to visit dad's grave and caretake his grave. My pop (my mum's Uncle, Kevin Gala) is buried at Polson Cemetery where I want dad to be buried. I visited my pop every day that I could and I want to be able to do that for my dad."

[25] Ms Sandy's mother, Ms Cassandra Warner, says that the deceased "had been very clear in discussions" with her after they went to visit the deceased's mother's grave in about 2022. She says the deceased was concerned that his mother's grave was not being cared for and was overgrown. She says the deceased said to her that he wanted her to look after him "after he was gone". Ms Warner says "he also spoke of wanting to be buried in Hervey Bay where he was recognised as a Butchulla elder". Ms Sandy also says that the deceased told her he wanted to be buried in Hervey Bay, because he knew that Ms Warner and Ms Sandy would look after his grave.

[26] Other members of the deceased's family say that he expressed a wish to be buried with his mother when he died. The deceased's mother, who died unexpectedly in 2021, is buried in a cemetery at Mount Gravatt. His daughter, Ms Marliza Hungerford, says in her affidavit that the deceased said this to her when they spoke on many occasions following the death of the deceased's mother, and that he also said it in a conversation "over 12 months before he passed". Ms Hungerford wishes to have the deceased buried in the same plot as his mother at the Mount Gravatt cemetery, and, indeed, arrangements have already been made to do this.

[27] There is also evidence from the deceased's older brother, Mr Jason Sandy, who says that the deceased told him, in 2021, that he wanted to be buried with their mother. The deceased's grandmother, and two other aunties, are also buried at the same cemetery at Mount Gravatt. Mr Jason Sandy clearly had a close relationship with the deceased. The deceased asked for him to be his only next of kin on the hospital file when he was in hospital in Hervey Bay, shortly before he was transferred to Brisbane, where he passed away.

[28] The evidence includes an unsworn statement from the deceased's son, Yarum Sandy, annexed to an affidavit of the solicitor for the respondent. He also wishes to see his father buried in Brisbane.

[29] One of the deceased's half-brothers, Mr Feleti Leone, gives evidence to the same effect, that the deceased expressed a wish to him to be buried with their mother.

[30] In relation to this evidence Ms Warner said she had spoken to the deceased about this, and she expresses the view that what the deceased meant is that he wanted to be with his mother "up Sky Country", not buried with her. Ms Warner also says that she would find it difficult to travel to Brisbane to visit the deceased if he was buried here.

[31] According to the evidence of the deceased's father, Mr Michael Sandy, who describes himself as a senior Munanjali Yugambeh elder, the deceased was a strong cultural leader for Munanjali and started the first Munanjali Yugambeh dance troupe. The deceased also had cultural connections to Hervey Bay, which is Butchulla country, because this was his grandmother's country. Mr Michael Sandy says in his affidavit: "It is our cultural protocol for family to decide where our children and family members are buried. The elders decide where the children are buried. Then the parents, the eldest sibling and eldest child are the decision makers and have final say. We do this because it helps with decisions, especially if family can't agree. This is our cultural governance and what my elders, great-grandparents, grandparents and parents passed down to me". "It was discussed years ago with my children that they would be buried with their mother at Mount Gravatt. If [the deceased] was to be buried at Hervey Bay, I would not be able to visit him, as I am 74 years old and have mobility issues and several other health disorders, including heart failure. If I could not visit my son this would be quite distressing for me as I was very close to my son". "None of [the deceased's] immediate family are buried in Hervey Bay. Although this is his grandmother's country, he identified as a Munanjali man and not Butchulla. He taught Butchulla song and dance, but always identified with his father's line, which is our Aboriginal cultural protocol. He was a strong cultural leader for Munanjali and started the very first Munanjali Yugambeh dance troupe. I am personally and culturally against my son being buried in Hervey Bay and also that [Ms] Warner is his legal next of kin. This is an insult to him and his family."

[32] One of the deceased's younger sisters, Ms Faylene Sandy, also says it would not be "cultural protocol and not appropriate [for the deceased to be buried in Hervey Bay], as we follow our Munanjali line." She says that although the deceased was living in Hervey Bay for about 20 years, he never identified himself as a Butchulla man or elder; he only identified himself as a Munanjali man.

[33] The approach to decision making outlined by Mr Sandy Senior is also referred to in the affidavit of Ms Sono Weatherall, one of the deceased's younger sisters, who says that in "our cultural family decision making process, this will always lie with our eldest in the family line or eldest living immediate family member." She says, "this cultural governance system is always the process to follow as it allows the governance framework to [take] precedent when there are any differences or disagreements." The approach is also confirmed by Mr Leone, who describes responsibility for decisions falling to the parents first, but if they are deceased, then to the eldest sibling and then the eldest child.

[34] There is evidence of family meetings being held to try to resolve this dispute. Ms Warner and Ms Sandy were present at the first one, but not at the next two. They were invited but could not attend. For the applicants, it was submitted that the evidence of cultural decision making protocol as between the various witnesses who have sworn affidavits supporting the respondent's argument is inconsistent, and also inconsistent with a family meeting taking place at which people are said to have "voted". Having read all the affidavits, I accept the submission by the respondent's counsel that the family meeting was an attempt to be inclusive. I do not regard this as being inconsistent with what Mr Michael Sandy describes. I place significant weight on what Mr Michael Sandy says about the traditional custom that applies to decisions of this kind, which becomes particularly important when, as here, there is a dispute.

[35] Ms Warner says she never heard the deceased talk about family governance in the way described by Mr Michael Sandy. On the basis of this, counsel for the applicants submitted the court should infer the deceased did not recognise or observe such a cultural protocol. I do not accept that submission. I am not prepared to draw such an inference on the basis of the evidence of Ms Warner alone in this regard.

[36] For the applicants, it is also emphasised that, although born in Brisbane, the deceased had lived for most of the time, since about 1996, in and around Hervey Bay. It was submitted that he has had a close connection to Hervey Bay for the last 30 years, being the place he has lived for the most part, and a lack of close connection to anywhere else, and that this is the factor that weighs most heavily in favour of the place of burial being Hervey Bay. In addition to this, the closeness of the deceased's relationship to his youngest daughter, Miriyan Sandy, is emphasised. It is submitted the court should accept that Ms Sandy is most likely to be able to honour the deceased's wishes, and since she believes it is appropriate that he be buried in Hervey Bay, that is what the court should order.

[37] I observe that, in the context of an Aboriginal person's connection to country, geographical location is not determinative. The evidence of the deceased's father, of his siblings and of his eldest daughter all supports the conclusion that despite living away from his father's country, the deceased maintained his strong connection to that country and his identity as a Munanjali man first and foremost.

[38] Further, without in any way detracting from the close relationship the deceased clearly enjoyed with his youngest daughter, the evidence also showed that he maintained his relationship with his older children, including the respondent, Marliza Hungerford, and with his siblings.

[39] Having regard to all the evidence, I do not accept that the length of time the deceased lived in Hervey Bay, nor his youngest daughter's close relationship with him, weigh the balance in favour of Hervey Bay as his final resting place.

[40] Returning to the principles which apply. The question of who might be entitled to obtain letters of administration is not a helpful factor in this case, because there are two people of equal priority, the deceased's eldest and youngest child, each contending for a different outcome. In my respectful view, the cultural matters and concerns raised in the evidence, particularly of Mr Michael Sandy are a weighty consideration, which weigh heavily in favour of the deceased being buried in the Mount Gravatt cemetery. The desire on the part of the applicants for him to be buried at Hervey Bay is less clearly based on cultural considerations. Burial at Mount Gravatt also reflects the wishes of the deceased expressed to many members of his family. I acknowledge the evidence that he expressed a different view to Ms Warner and Ms Sandy, which tends to render this factor a more neutral one, if looked at alone. But when taken with the other factors, it supports the outcome I have arrived at. I have endeavoured to weigh the wishes and sensitivities of all the family members who have placed their views through the evidence before the Court. I have placed weight on the evidence of Mr Michael Sandy, concerning a cultural decision making protocol, in weighing that balance in favour of the views of the deceased's father, his oldest brother and his eldest child, supported by many family members, over those of his youngest child.

[41] For those reasons, I will make an order to the effect that the body of the deceased be released to the respondent, Marliza Otila Hungerford, for the purpose of his burial at the Mount Gravatt Cemetery. Although counsel for the applicant submitted it was preferable for a limited grant of letters of administration to be made, I am unpersuaded that is required.

[42] [After hearing from the parties' legal representatives as to the form of order to be made] The order is that the body of the deceased be released to the respondent, Marliza Otila Hungerford, for the purpose of arranging his burial at the Mount Gravatt Cemetery and the terms of and installation of any headstone or plaque. The Court further orders that there be no order as to costs.

[43] The Court thanks counsel and their instructors for their helpful submissions and the cooperative manner in which this matter has been dealt with, particularly where that assistance has been provided pro bono.

[1] Accoom v Pickering [2020] QSC 388; (2020) 6 QR 640 at 643, [5], and the cases there referred to.

[2] Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 at 691 per Young J, adopted in Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at [45] (Perry J, Millhouse and Nyland JJ agreeing).

[3] Ibid. See r 610 of the Uniform Civil Procedure Rules 1999 (Qld), for the order of priority of persons to whom the court may grant letters of administration on intestacy.

[4] Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at 336; see also Accoom v Pickering [2020] QSC 388; (2020) 6 QR 640 at 644.

[5] Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at 336 [50]- [51]. See also South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247 at 260-263 and Johnson v George [2018] QSC 140; [2019] 1 Qd R 333 at 338-339.