Accoom v Pickering - [2020] QSC 388

SUPREME COURT OF QUEENSLAND

CITATION:

Accoom v Pickering [2020] QSC 388

PARTIES:

JENIFER ACCOOM

(applicant)

v

NERISSA PICKERING

(respondent)

CHIEF EXECUTIVE, QUEENSLAND HEALTH

(interested party)

FILE NO/S:

SC No 597 of 2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland

DELIVERED EX TEMPORE ON:
7 December 2020

DELIVERED AT:

Cairns

HEARING DATE:

4 December 2020

JUDGE:

Henry J

ORDERS:

1. Pursuant to section 6 of the Succession Act 1981 (Qld) that the body of [the deceased], also known as [the deceased], be released to the applicant or the applicant’s nominated funeral service for the purpose of funeral and subsequent burial at Mareeba, Queensland.

2. The funeral expenses be paid by the applicant.

3. No order as to costs.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased, an Indigenous man, died age 28 – where the deceased’s mother and aunt disagree about whether the deceased should be buried at Mareeba or at Croydon – where the deceased’s mother contends for a burial at Mareeba – where the deceased’s aunt contends for a burial at Croydon –where there is a mix of custom related considerations producing no single clear result – where the deceased was born in Mareeba – where the deceased spent a considerable part of his adolescence and his adult life in Croydon – where the deceased’s mother would have priority to a grant of letters of administration – where Mareeba would be a more logistically convenient location for the deceased’s relatives who are not from Mareeba or Croydon to travel to – where the deceased’s mother has been personally targeted and assaulted for seeking the deceased’s burial at Mareeba – whether the body of the deceased should be released into the custody of the deceased’s mother or aunt for burial at Mareeba or Croydon

Human Rights Act 2019 (Qld), s 28, s 48
Succession Act 1981 (Qld), s 6(1)
Uniform Civil Procedure Rules 1999 (Qld), r 610

Doodeward v Spence (1908) 6 CLR 406, cited
Frith v Schubert [2010] QSC 444, cited
Johnson v George [2019] 1 Qd R 333; [2018] QSC 140, cited
Jones v Dodd (1999) 73 SASR 328, considered
Roma v Ketchup [2009] QSC 442, cited

COUNSEL:
M Walker for the applicant
A Wrenn for the respondent
S Gallagher for the interested party

C Baker appeared on his own behalf

SOLICITORS:
Townsville Community Law for the applicant
No appearance for the respondent
Queensland Health for the interested party

C Baker appeared on his own behalf

HIS HONOUR: The family of a deceased Indigenous man disagree about where he should be buried. His mother wants him buried in Mareeba. His aunt wants him buried in Croydon. The disagreement aroused high emotions and could not be resolved by mediation. The making of a decision ordinarily made promptly in respectful privacy, sadly falls to now be made in the public and adversarial arena of a courtroom over two months after the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Accoom v Pickering

Details

AGLC: Accoom v Pickering [2020] QSC 388
Case: [2020] QSC 388
Decision Date: 7 December 2020

CaseChat Overview and Summary

Accoom v Pickering involved a dispute between the deceased’s mother and aunt over the location of the deceased’s burial. The deceased, an Indigenous man, passed away at the age of 28, leaving behind his mother and aunt, who disagreed about whether he should be buried at Mareeba or Croydon. The mother argued for a burial at Mareeba, while the aunt preferred Croydon. The case was heard by the Queensland Supreme Court.

The court was required to determine which of the two women should be granted custody of the deceased’s body for the purpose of burial, considering the mix of customary considerations that produced no single clear result. The deceased was born in Mareeba but spent a considerable part of his adolescence and adult life in Croydon. The mother would have priority to a grant of letters of administration, and Mareeba would be more logistically convenient for the deceased’s relatives who are not from Mareeba or Croydon to travel to. Additionally, the mother had been personally targeted and assaulted for seeking the deceased’s burial at Mareeba.

The court concluded that the deceased’s mother should be granted custody of the body for the purpose of burial at Mareeba, taking into account the deceased’s birthplace and the logistical convenience for the deceased’s relatives. The funeral expenses were to be paid by the mother. No order was made as to costs.

Orders

Orders of the court

1. Pursuant to section 6 of the Succession Act 1981 (Qld) that the body of [the deceased], also known as [the deceased], be released to the applicant or the applicant’s nominated funeral service for the purpose of funeral and subsequent burial at Mareeba, Queensland.

2. The funeral expenses be paid by the applicant.

3. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Accoom v Pickering [2020] QSC 388
PARTIES:	JENIFER ACCOOM (applicant) v NERISSA PICKERING (respondent) CHIEF EXECUTIVE, QUEENSLAND HEALTH (interested party)
FILE NO/S:	SC No 597 of 2020
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED EX TEMPORE ON:	7 December 2020
DELIVERED AT:	Cairns
HEARING DATE:	4 December 2020
JUDGE:	Henry J
ORDERS:	1. Pursuant to section 6 of the *Succession Act 1981* (Qld) that the body of [the deceased], also known as [the deceased], be released to the applicant or the applicant’s nominated funeral service for the purpose of funeral and subsequent burial at Mareeba, Queensland. 2. The funeral expenses be paid by the applicant. 3. No order as to costs.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased, an Indigenous man, died age 28 – where the deceased’s mother and aunt disagree about whether the deceased should be buried at Mareeba or at Croydon – where the deceased’s mother contends for a burial at Mareeba – where the deceased’s aunt contends for a burial at Croydon –where there is a mix of custom related considerations producing no single clear result – where the deceased was born in Mareeba – where the deceased spent a considerable part of his adolescence and his adult life in Croydon – where the deceased’s mother would have priority to a grant of letters of administration – where Mareeba would be a more logistically convenient location for the deceased’s relatives who are not from Mareeba or Croydon to travel to – where the deceased’s mother has been personally targeted and assaulted for seeking the deceased’s burial at Mareeba – whether the body of the deceased should be released into the custody of the deceased’s mother or aunt for burial at Mareeba or Croydon Human Rights Act 2019 (Qld), s 28, s 48 Succession Act 1981 (Qld), s 6(1) Uniform Civil Procedure Rules 1999 (Qld), r 610 Doodeward v Spence (1908) 6 CLR 406, cited Frith v Schubert [2010] QSC 444, cited Johnson v George [2019] 1 Qd R 333; [2018] QSC 140, cited Jones v Dodd (1999) 73 SASR 328, considered Roma v Ketchup [2009] QSC 442, cited
COUNSEL:	M Walker for the applicant A Wrenn for the respondent S Gallagher for the interested party C Baker appeared on his own behalf
SOLICITORS:	Townsville Community Law for the applicant No appearance for the respondent Queensland Health for the interested party C Baker appeared on his own behalf