Attwood v Office of the State Coroner
[2020] WASC 198
•28 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ATTWOOD -v- OFFICE OF THE STATE CORONER [2020] WASC 198
CORAM: ARCHER J
HEARD: 28 MAY 2020
DELIVERED : 28 MAY 2020
FILE NO/S: CIV 1615 of 2020
BETWEEN: MARY MAGDALIN ATTWOOD
First Plaintiff
HELEN PIANTA
Second Plaintiff
JODY DHU
Third Plaintiff
RICHARD ALOYSIUS HAYTER
Fourth Plaintiff
AND
OFFICE OF THE STATE CORONER
First Defendant
EUGENIA SMITH
Second Defendant
PATRICIA MASON
Third Defendant
GEORGE DANN
Fourth Defendant
SHIRLEY LOCKYER
Fifth Defendant
Catchwords:
Originating summons for orders that plaintiffs have carriage of funeral - Right to arrange funeral - Dispute as to proper location of burial and the proper type of coffin
Legislation:
Nil
Result:
Originating summons dismissed
The third defendant is to have carriage of the funeral
Category: B
Representation:
Counsel:
| First Plaintiff | : | S Boni & D G Powell |
| Second Plaintiff | : | S Boni & D G Powell |
| Third Plaintiff | : | S Boni & D G Powell |
| Fourth Plaintiff | : | S Boni & D G Powell |
| First Defendant | : | No appearance |
| Second Defendant | : | In person |
| Third Defendant | : | In person |
| Fourth Defendant | : | In person |
| Fifth Defendant | : | In person |
Solicitors:
| First Plaintiff | : | Western Legal |
| Second Plaintiff | : | Western Legal |
| Third Plaintiff | : | Western Legal |
| Fourth Plaintiff | : | Western Legal |
| First Defendant | : | No appearance |
| Second Defendant | : | In person |
| Third Defendant | : | In person |
| Fourth Defendant | : | In person |
| Fifth Defendant | : | In person |
Case(s) referred to in decision(s):
Bertani v Bertani [2017] WASC 78
Burrows v Cramley [2002] WASC 47
Garlett v Jones [2008] WASC 292
Joseph v Dunn [2007] WASC 238
Mourish v Wynne [2009] WASC 85
Re Boothman SM; Ex parte Trigg (Unreported, WASC, Library No 990031, 27 January 1999)
Reece v Little [2009] WASC 30
Spratt v Hayden [2010] WASC 340
ARCHER J:
(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add full citations.)
Introduction
The mother of three of the plaintiffs and four of the defendants has passed away. They seek orders that the defendants be restrained from burying their mother and that they be given the right to bury her. I will refer to their mother as the 'mother', as that is how the participants prefer her to be addressed, rather than using 'the deceased' or, worse still, her name.
The mother unexpectedly died this year.
On 14 May 2020, the Coroner issued a certificate under s 29(1) of the Coroners Act 1996 (WA) for the body of the mother to be released to her daughter Patricia Mason, the third defendant in these proceedings.
On 21 May 2020, the plaintiffs filed an application for judicial review, claiming that the Coroner's decision involved jurisdictional error. The plaintiffs did not seek to have their application dealt with urgently, and did not apply for an interim injunction to restrain the defendants from burying the mother.
After some inquiries from the court, and some input from the State Solicitor's Office, which acted for the Coroner, on Tuesday 26 May 2020, the plaintiffs foreshadowed filing an originating summons and an application for an injunction later that day, and then did so.
The matter was listed for 4.00 pm that day. In that hearing, I indicated that it was not obvious from the grounds of review what the jurisdictional error was alleged to have been. After some exchanges, the plaintiffs elected to seek leave to discontinue the judicial review application, and agreed to pay the costs of the first respondent in those proceedings, Coroner Michelle Ridley.
The Coroner was also named as the first defendant in the originating summons proceedings. However, as no relief was sought against the Coroner, her counsel Ms Thatcher SC, with leave, took no further part in the proceedings. I will therefore refer to the other defendants in the originating summons proceedings, being the second to fifth defendants, as the 'defendants'.
I listed the hearing of the originating summons for 28 May 2020.
Jurisdiction
This court has jurisdiction to determine who should have the carriage of a funeral and where the mother should be buried. Jurisdiction is conferred by s 4 of the Administration Act 1903 (WA).[1]
[1] Mourish v Wynne [2009] WASC 85 [21].
Legal principles
The relevant legal principles have been described as follows:[2]
(a)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.
(b)A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders, but is not legally bound to do so.
(c)Where no executor is named the person with the highest rank to take out administration will have the same position as the executor in proposition (a).
(d)The right of the surviving spouse or de facto will be preferred to the right of children.
(e)Where two or more persons have equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
[2] Re Boothman SM; Ex parte Trigg (Unreported, WASC, Library No 990031, 27 January 1999), 7.
The propositions in (a) and (c) are to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. It would have to be a rare case to depart from this common or usual approach.[3]
[3] Spratt v Hayden [2010] WASC 340 [5].
Where those claiming the privilege of burial have equally ranking rights for administration, the question turns largely to matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency.[4]
[4] Joseph v Dunn [2007] WASC 238 [21]; see also Burrows v Cramley [2002] WASC 47; Bertani v Bertani [2017] WASC 78; Garlett v Jones [2008] WASC 292; Reece v Little [2009] WASC 30; Mourish and Spratt.
This case is such a case. The contest is, in effect, between two daughters. There is no evidence that the mother appointed an executor.
The evidence
The plaintiffs' solicitors filed two affidavits, both from Ms Attwood. The second affidavit contained a great deal of impermissible material, which I have ignored. However, I observe that, even if I had taken it into account, it would not have altered my conclusion.
The defendants, who were unrepresented, filed affidavits from the following children of the mother:
(a)Eugenia Smith, second defendant (daughter);
(b)Patricia Mason, third defendant (daughter);
(c)George Dann, fourth defendant (son);
(d)Shirley Lockyer, fifth defendant (daughter);
(e)Robert James Dann (son);
(f)Henry Charles Webb (son and 'tribal lore man'); and
(g)Jocelyn Turner (daughter).
The defendants also filed an affidavit from Deborah Ball, a daughter‑in‑law of the mother.
The defendants also filed affidavits from the following grandchildren and a great granddaughter:
(a)Stephen Mason (grandson, son of Patricia Mason);
(b)Margaret Melissa Mason (granddaughter, daughter of Patricia Mason);
(c)Gerard Anthony Haji-Ali (grandson-in-law);
(d)Lee-Anna Dann (granddaughter);
(e)Fiona Lynette Dann (granddaughter, daughter of Robert Dann);
(f)Andrea Evelyn Peta Dann (granddaughter);
(g)Reannen Noelle Faith O'Connor (granddaughter); and
(h)Brittany Evelyn Lee Dann (great granddaughter).
Finally, the defendants filed an affidavit from Frederick O'Connor, who is a 'Lore and Culture Man' and a Nyamal member.
There has been a lot of material to get across in a short period of time. The first affidavit of Ms Attwood was filed on 26 May 2020. The second was filed the next morning, yesterday. The defendants' affidavits were filed, in accordance with my orders, between 3.00 pm and 4.00 pm yesterday.
Due to the need to make a decision quickly, I will not refer to all of the details in the evidence. However, and despite the volume of material and short period of time, I have carefully read all of the evidence. I understand that all of the parties are suffering a great loss. I am conscious of, and very respectful of, their concerns and desires for the proper and dignified treatment of the mother. It is obvious that the mother was highly respected and much loved by many people. It is very important that her burial occur without unreasonable delay, but with all proper respect and decency.
I must make a decision, however. It is inevitable that one side will be distressed by my decision.
The issues
Initially, there appeared to be two points of contention: first, the location of the burial and second, the type of coffin. The plaintiffs contended that the mother should be buried in Port Hedland in a wooden coffin. The defendants contended that she should be buried in Tambourah, and in the coffin they had purchased, which was not made of wood.
At the commencement of today's hearing, counsel for the plaintiffs, Mr Boni, advised that, while their preference was for the mother to be buried in Port Hedland, 'they would abide by a decision of the court to have her buried in Tambourah'.[5] When the meaning of this was explored, counsel advised that the plaintiffs conceded that the weight of the evidence supported Tambourah as the more appropriate location for the burial. Counsel said that he was nevertheless instructed to draw my attention to two paragraphs of Ms Attwood's supplementary affidavit that set out concerns in relation to the location.[6] However, when asked what the plaintiffs' plan for the burial was, if the plaintiffs should succeed in their application, counsel advised that the plaintiffs now planned to bury the mother in Tambourah.[7]
[5] ts 5.
[6] ts 6 ‑ 8.
[7] ts 15.
I will still, however, mention some of the evidence in relation to the location as it sheds light on the defendants' thoughtful and respectful approach as to how their mother should be buried.
The plaintiffs' case
The mother had 10 children.
The first, second and third plaintiffs are children of the mother, being the second, ninth and seventh eldest respectively.
The fourth plaintiff is a grandson.
The plaintiffs' case was carried by the first plaintiff, Mary Attwood.
I have referred to the plaintiffs' initial position that the mother should be buried in Port Hedland. Ms Attwood says in her affidavit that the mother's family and ancestors are there. Ms Attwood also says that she would not feel safe attending the funeral if it is held in Tambourah. She also says it will prevent those living in Port and South Hedland to visit the grave. During the hearing, her counsel conceded it would not prevent anyone from visiting the grave. It would just mean it would take longer to do so. It would apparently involve a trip of two and a half hours to three hours to reach Tambourah from Port Hedland. In any event, as mentioned earlier, if the plaintiffs succeed, it is now their intention to bury the mother in Tambourah. Accordingly, Ms Attwood's concerns do not weigh in the balance of determining who should have the decision‑making power.
The plaintiffs want the mother to be buried in a wooden casket.
Ms Attwood says that it is culturally wrong to put the mother in an alloy coffin. She said that a wooden coffin was necessary to allow the person to return to the earth and join their ancestors. She says that the mother demonstrated, by participation, how a burial was to be done. Ms Attwood says that the mother ensured her brothers were buried in wooden caskets. She says all of the mother's brothers, sister, and her late de facto husband of 35 years were buried in wooden coffins. From the flavour of Ms Attwood's evidence, I would infer that Ms Attwood's primary concern is what her mother's beliefs were, as distinct from Ms Attwood's own. That is, her primary concern appears to be that her mother would not have wanted to be buried in an alloy coffin.
The defendants' case
Each of the defendants is a child of the mother, being the eldest, sixth, third and fifth eldest respectively. The second defendant is the eldest daughter and eldest child. The fourth defendant is the oldest son.
Ms Mason had been the full‑time registered carer of the mother for the last 13 years of her life. Her mother had also appointed Ms Mason and Robert Dann as her attorneys.
The defendants want the mother to be buried at Tambourah next to her brother. There is evidence that the burial site is around 800 m from the Hillside Marble Bar Road which is a gazetted gravel road maintained by the East Pilbara Shire.[8]
[8] Affidavit of Eugenia Smith sworn 27 May 2020. See also the affidavit of George Dann sworn 27 May 2020.
The defendants have already purchased the coffin. The defendants' evidence included several photos of the coffin. While photos can be deceiving, it appears to be an elaborate, high quality coffin. The interior of the coffin is fully lined with plush, diamond‑tufted fabric. It has several framed inlays on the exterior, two on the lid and one on the side visible in the photos. During the hearing, I asked what the photos showed. I was told that one photo was of the mother, and the other photos were of locations that were significant to the mother. Ms Mason explained to me what each of the locations were and why they were significant family locations. While this was not said on affidavit, it is consistent with what might have been surmised from the photos themselves.
Looking at the photos, I have no doubt the coffin was very expensive and cost far more than a wooden coffin. I have no doubt it was chosen with great care.
The defendants' evidence is that the mother's beliefs were not that a body needs to be free from unnatural obstruction (such as being buried in a metal coffin) to allow the mother to return to the earth and join her ancestors. Ms Mason said that that was not the belief of the Minjinburru Muimajimi Yinbung people. The mother was one of the Minjinburru Muimajimi Yinbung people. Those people believe that their spirits leave their body as soon as they pass away.
Consistently with this evidence, one of the mother's sons Robert Dann said that his mother told him that she wanted to be buried in gold because it weathered slowly.
Ms Mason made submissions about the importance of her mother being buried in something substantial that would stand the test of time, for the benefit of all those that would follow.
Relevant factors
A number of factors have been identified as relevant in these types of cases. The following are relevant in this case.
Wishes of mother
The wishes of the person who has passed may be relevant in these types of cases.[9]
Location - wishes of the mother
[9] Spratt [16].
The location of the burial is no longer in issue. Nevertheless, many people took the time to produce affidavits setting out what they knew on behalf of the defendants. It was not until this morning that we were told it was no longer an issue. So I will mention some of those witnesses here.
The overwhelming weight of the evidence is that the mother wanted to be buried in her 'country', in which Tambourah is located. Evidence of this was in the affidavits of, for example, Jocelyn Turner, Henry Webb, Deborah Ball, Frederick O'Connor, Margaret Mason, and Andrea Dann.
Other witnesses also talked about the mother's connection to Tambourah. I refer here, for example, to the evidence of Brittany Dann, Lee‑Ann Dann, and Gerard Haj‑Ali.
Another witness, Reannen O'Connor, supported the decision that the mother be buried there.
There is also evidence that the mother told many of her family members specifically that she wanted to be buried next to her brother who was buried in Tambourah. I refer here to the evidence of Eugenia Smith, George Dann, Jocelyn Turner, Henry Webb, Frederick O'Connor, and Fiona Dann.
In addition, Ms Mason's own affidavit covered most of these issues.
Material of coffin - wishes of the mother
With one exception, there is no evidence that the mother ever said she wanted her coffin to be of a particular material or that she did not want her coffin to be of a particular material.
The exception is the evidence of one of the mother's sons, Robert Dann. Mr Dann said that his mother told him that she wanted to be buried in gold because it weathered slowly. That is not, of course, a realistic option. Nevertheless, it is inconsistent with the plaintiffs' proposition that the mother would not have wanted to be buried in a coffin that was not made of wood. It also tends to support an inference that the mother would have preferred to be buried in a coffin made of a hardier material than wood.
Ms Attwood says that the mother demonstrated, by participation, how a burial was to be done. Ms Attwood says that the mother ensured her brothers were buried in wooden caskets. She says all of the mother's brothers, sister and her de facto husband were buried in wooden coffins.
The fact that the mother did not object to any of these people being buried in a wooden coffin does not cause me to conclude she believed this was the only appropriate material for a coffin.
First, Ms Mason submitted that the mother did not have the right to have a say in the funerals of those people. There was no evidence that she did.
Second, counsel for the plaintiffs did not seek to persuade me that the use of wooden coffins was anything other than what was habitually done. He expressly disavowed an assertion that wooden coffins were chosen for a cultural reason.[10]
[10] ts 13 ‑ 14.
Ms Mason submitted that wooden coffins were often chosen due to their much lower cost, and submitted that her mother did not have a lot of money at various times. While this submission was not the subject of evidence, I have no doubt that a wooden coffin would be much less expensive. It is reasonable to infer, as a matter of common sense, that the cost would influence the choice. However, given the disavowal by the plaintiffs' counsel, it is unnecessary to consider this further.
Third, I consider that the defendants are in a better position to assess the mother's wishes compared to the plaintiffs. There is a lot of evidence from a variety of witnesses to the effect that the defendants had a far greater involvement with the mother than the plaintiffs did. I refer in particular to the affidavits of Patricia Mason, Eugene Smith and Jocelyn Turner.
I have already noted that Ms Mason had been the full‑time registered carer of the mother for the last 13 years of her life. Her mother had also appointed Ms Mason as her attorney.
There was evidence from a large number of family members about the family going 'back to country' on three occasions involving the mother. On these occasions, a number of the mother's children and grandchildren would be present. The evidence was that none of the plaintiffs ever went 'back to country' with the mother. I refer in particular to the affidavits of Eugene Smith, George Dann, Shirley Lockyer, and Stephen Mason.
Having considered all of the evidence, I consider that it does not support the plaintiffs' proposition that the mother would have objected to an aluminium coffin. That said, it only marginally supports the proposition that she would prefer an aluminium coffin to a wooden one.
However, from the evidence as a whole, I would infer that the mother would have preferred to be in a coffin of some material that was of more substance than wood.
Accordingly, this factor weighs against the plaintiffs.
Cultural values of the surviving family
The cultural values of the mother and the mother's surviving family members should be given weight, where possible.[11]
[11] Jones v Dodd [60].
I have already dealt with the mother's values, in considering her wishes.
I earlier referred to Ms Attwood's evidence that it was culturally wrong to put the mother in an alloy coffin. She said that a wooden coffin was necessary to allow the person to return to the earth and join their ancestors.
I earlier referred to Ms Mason's evidence that that was not the belief of the Minjinburru Muimajimi Yinbung people. The mother was one of the Minjinburru Muimajimi Yinbung people. Those people believe that their spirits leave their body as soon as they pass away.
It is not possible in such a short time frame to assess the differences in the evidence as to cultural values. However, I am inclined to prefer the evidence of Ms Mason. This is because of the extent of the evidence produced on behalf of the defendants.
I should say that I accept that Ms Attwood has that belief. However, it is equally clear that it is important to the defendants that the mother be buried in something more substantial because of their beliefs.
Accordingly, this factor does not support the plaintiffs.
Decision of the Coroner
The decision made by the Coroner may be relevant.[12]
[12] Joseph [27].
The Coroner chose to release the body to Ms Mason for three reasons:[13]
a.[Patricia Mason] was the full‑time carer of her mother for 13 years prior to her death;
b.she held Power of Attorney for her mother at the time of her death and was, therefore, entrusted with making decisions for and on behalf of her mother; and
c.funeral arrangements are well advanced and, though they remain in dispute, no alternative arrangements have been made to ensure burial without unreasonable delay.
[13] Affidavit of Mary Magdalin Attwood sworn 24 May 2020, page 11.
This factor supports the defendants.
Conclusion
The only point of difference is the material of the coffin.
I accept that Ms Attwood and the other plaintiffs loved their mother deeply and have suffered a huge loss. I accept that they want to ensure she is treated with respect and dignity.
However, having carefully weighed up all of the factors, I consider Ms Mason should have carriage of the funeral.
I do not accept that the mother would object to an aluminium coffin. I do not accept that an aluminium coffin would be inconsistent with the mother's cultural beliefs, or the beliefs of those most close to her and most connected to her.
The mother told one of her sons she wanted to be buried in gold because it weathered slowly. Ms Mason made submissions about the importance of her mother being buried in something substantial that would stand the test of time. The defendants have bought a very elaborate and expensive coffin, in which several very personal and meaningful photographs have been inlaid.
Accordingly, I dismiss the plaintiffs' originating summons.
Post-script
After delivering these reasons orally, I noted that the defendants had not formally sought any orders, but asked counsel for the plaintiffs, now Mr Powell, whether the plaintiffs would have any objection to me inviting the defendants to make an oral application for orders that Ms Mason have carriage of the funeral. Mr Powell helpfully and properly advised that the plaintiffs did not object to this. Mr Powell also advised that the plaintiffs would not object to an order that they pay any disbursements incurred by the defendants.
Accordingly, I made orders that Ms Mason have the carriage of the funeral and that the plaintiffs were to pay the costs (being any disbursements) of the defendants to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer9 JUNE 2020
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