Beeson v Metropolitan Cemeteries Board - [2022] WASC 438

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BEESON -v- METROPOLITAN CEMETERIES BOARD [2022] WASC 438
CORAM:   STRK J
HEARD:   2 DECEMBER 2022
DELIVERED          :   2 DECEMBER 2022
PUBLISHED           :   14 DECEMBER 2022
FILE NO/S:   CIV 2278 of 2022
BETWEEN:   ANTHONY RICHDALE BEESON
First Plaintiff
ROBYN MARY TEEDE
Second Plaintiff
AND
METROPOLITAN CEMETERIES BOARD
First Defendant
ALYSSA PAULINA ESTHER ANGWIN
Second Defendant

Catchwords:

Equity - Urgent ex parte application for interlocutory injunction - Whether the plaintiffs established a serious question to be tried - Whether the balance of convenience favoured injunctive relief - Grant of interim interlocutory relief - Turns on own facts

Legislation:

Cemeteries Act 1986 (WA)
Coroners Act 1996 (WA)
Cremation Act 1929 (WA)

Result:

Interim interlocutory injunction granted

Category: B

Representation:

Counsel:

First Plaintiff	:	LS Clemens
Second Plaintiff	:	LS Clemens
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
First Defendant	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision:

Action Cycles Pty Ltd v Ross [2011] VSCA 411
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435
Heavener v Loomes [1924] HCA 10; (1924) 34 CLR 306
Leese v Shire of Harvey [2021] WASC 478
McCarty v The Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210
Milenkovic v McConnell [2013] WASC 421
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 136
Price v Metropolitan Cemeteries Board [2015] WASC 501
R v MacFarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518
Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Smith v Tamworth City Council (1997) 41 NSWLR 680
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59

Table of Contents

Overview

Factual basis for the application

Evidence of first plaintiff

Evidence of Ms Martin

The principles in relation to the grant of interlocutory injunctions

The plaintiffs' submissions

Disposition

Schedule A - Indorsement of claim

STRK J:

(This judgment was delivered extemporaneously on 2 December 2022 and has been edited from the transcript).

Overview

On 2 December 2022, the plaintiffs, Anthony Richdale Beeson and Robyn Mary Teede, brought an application by chamber summons seeking urgent ex parte interlocutory relief restraining the first defendant, the Metropolitan Cemeteries Board (the Board), from releasing the ashes of Stephen Craig Beeson (the deceased) to the second defendant, Alyssa Paulina Esther Angwin, or her agent or any other third party directed by her.
The application was made in circumstances where the second defendant had resided with the deceased as at the date of his death. A certificate pursuant to s 29(1) of the Coroners Act 1996 (WA), permitting burial, cremation or other disposal of the deceased's remains had issued. The second defendant had also sought and had been issued with a permit to have the deceased's body cremated, that permit having been issued under s 8 of the Cremation Act 1929 (WA). As was noted by Pritchard J in Price v Metropolitan Cemeteries Board [2015] WASC 501 at [2], because that permit was issued to the second defendant, the Cremation Act provides that it is lawful for the Board to release the ashes to the second defendant.[1]
[1] See Cremation Act s 7(1).
At the time the application was brought, the ashes of the deceased were being held in a secure facility at the Pinnaroo Valley Memorial Park located at Whitfords Avenue, Padbury, in the custody of the Board. By their application, the plaintiffs also sought an order that the ashes of the deceased remain at the Board's Pinnaroo Memorial Park office until further order.
The plaintiffs by the chamber summons further sought a declaration that the permit granted by the Board to the second defendant pursuant to s 7 of the Cemeteries Act1986 (WA) authorising the second defendant to be permitted to collect the ashes be declared unlawful and or void. (The reference to the Cemeteries Act in the chamber summons would appear to have been made in error, and ought to have been a reference to s 7 of the Cremation Act).
The certificate of urgency filed by the solicitors for the plaintiffs stated that 'Pinnaroo Cemetery' had advised that the ashes of the deceased would be released to the second defendant should she attend upon their premises and request release because she had obtained the permit issued in respect of the deceased's remains.
It was the plaintiffs' position that it was necessary for their application by chamber summons to be heard on an ex parte basis because they feared that if given prior notice, the second defendant may take steps to deal with the deceased's ashes in a way which was irreversible and not in accordance with the deceased's stated wishes.
The application was made in circumstances where a writ of summons with indorsement of claim had been filed on behalf of the plaintiffs on 2 December 2022, which named the Board and Ms Angwin as first and second defendants, respectively. The indorsement of claim is reproduced in Sch A to these reasons.
After hearing the application on an urgent ex parte basis on 2 December 2022, I granted interim interlocutory relief in favour of the plaintiffs. I further ordered that the deceased's ashes remain in the custody of the Board, and made orders for service upon the Board and the second defendant. Set out below are my reasons for decision.

Factual basis for the application

The plaintiffs' application was supported by three affidavits, being two affidavits affirmed by the first plaintiff on 5 July 2022 and on 29 November 2022, and one affidavit sworn by the plaintiffs' solicitor, Alyce Jocelyn Martin of HHG Legal Group, on 30 November 2022.

Evidence of first plaintiff

The first plaintiff deposed that the deceased died on 31 May 2022 and a funeral service was held on 1 July 2022.[2] The deceased's funeral was arranged by the plaintiffs and the second defendant.[3]
[2] First Beeson affidavit par 4; second Beeson affidavit par 5.
[3] First Beeson affidavit par 9; second Beeson affidavit par 6.
The first plaintiff deposed that the second defendant was the deceased's girlfriend, and that the second defendant and the deceased had been in a relationship from April 2021.[4] To the best of the first plaintiff's knowledge, the deceased and the second defendant lived together for the period of seven months, did not hold any property together, did not have any children together, did not share any bank accounts, and were not financially co-dependent.[5]
[4] First Beeson affidavit par 9; second Beeson affidavit par 6.
[5] First Beeson affidavit par 8; second Beeson affidavit par 9.
The first plaintiff deposed to his belief that the second defendant lodged an application to the Board supported by a statutory declaration for a permit to cremate the deceased's body in which she asserted that she was the deceased's de facto partner;[6] and the second defendant completed an application for the cremation of the deceased's remains and instruction for the deceased's ashes to be collected by her.[7]
[6] First Beeson affidavit par 7, ARB1; second Beeson affidavit par 10.
[7] First Beeson affidavit par 10, ARB2.
The deceased's remains were cremated, and the ashes remain in the custody of the Board.[8] The first plainitff deposed that since then, there had been negotiations as between the plaintiffs and the defendants in relation to the remains of the deceased.
[8] First Beeson affidavit par 4; second Beeson affidavit pars 12 - 13, AB2.
On 5 July 2022, the plaintiffs' representatives sent a letter to the Board requesting that the Board not release the deceased's ashes to the second defendant, and foreshadowed the making of this application should the Board intend to so act.[9] The Board responded to the letter, informing the plaintiffs that:[10]
(a)the Board was able to hold the deceased's ashes for 24 hours; and
(b)the Board was obliged to deliver the ashes to the permit holder (being the second defendant) unless advised otherwise in writing by a court of proper jurisdiction.
[9] First Beeson affidavit par 5, ARB4.
[10] First Beeson affidavit par 16, ARB5.
Also on 5 July 2022, the plaintiffs' legal representatives (HHG Legal Group) and the second defendant's legal representatives (then Gibson Lyons Lawyers), exchanged letters.[11] In the course of that exchange, the plaintiffs' representatives were provided with a copy of a letter that had been issued by Gibson Lyons Lawyers on behalf of the second defendant to the Board, which included the following statement of position:[12]
On my client's behalf, and so as to avoid unnecessary legal action, I can confirm the following:
(1)My client will not currently rely on the permit to collect the ashes of the Deceased pending the grant by the Supreme Court of Letters of Administration in relation to the Deceased's estate; and
(2)My client requests that the Deceased's ashes be retained by the Board until the grant of Letters of Administration and that the ashes be released to the appointed administrators in due course.
[11] Second Beeson affidavit par 15, AB4.
[12] Second Beeson affidavit par 15, AB4.
According to the first plaintiff, the deceased died leaving no will, and the plaintiffs have now been granted administration of the deceased's estate.[13]
[13] Second Beeson affidavit par 16, AB5.
The first plaintiff deposed that until recently it had been his understanding that in circumstances where the plaintiffs had obtained a grant of letters of administration in respect of the deceased's estate, they could produce the written undertakings of the second defendant to the Board (set out in the 5 July 2022 letter) and rely upon the undertakings as authority to collect the deceased's ashes. Despite the written undertakings given by the second defendant to the Board, the first plaintiff deposed that the Board has refused to allow the plaintiffs to collect the deceased's ashes without a court order.[14]
[14] Second Beeson affidavit pars 18 - 19.
The first plaintiff deposed to having completed his own application on 21 November 2022 for a permit in respect to the deceased's ashes. He further deposed that the Board had informed him that his permit could not be granted as the permit granted to the second defendant could not be revoked.[15]
[15] Second Beeson affidavit par 11, AB1.
The first plaintiff also deposed that he was informed by his legal representatives (HHG Legal Group) that the Board had verbally advised that should the second defendant attend the Board's Pinnaroo Memorial Park office and seek to collect the deceased's ashes, the Board would be entitled to rely upon the permit issued to her. The first plaintiff deposed to his belief that the permit had been obtained unlawfully by the second defendant, in circumstances where she had made a declaration that she was the deceased's de facto partner at the time of his death when she was not.[16]
[16] Second Beeson affidavit par 21.
The first plaintiff deposed to his understanding that the six-month period in which the first defendant will hold the deceased's ashes will expire on 1 January 2023, at which time the Board would be required to write to the second defendant as the authorised permit holder, and would request the second defendant collect the deceased's ashes or make payment of a fee which would allow the ashes to continue to be stored by the Board on a monthly basis.[17]
[17] Second Beeson affidavit par 39.
The first plaintiff further deposed to his belief as to the second defendant's plans for the deceased's ashes;[18] to the plaintiffs' relationship with the second defendant and the conduct of the second defendant following the deceased's death;[19] and to the plaintiffs' concerns and wishes in relation to the handling of the deceased's ashes.[20]

Evidence of Ms Martin

[18] First Beeson affidavit par 18; second Beeson affidavit par 31.

[19] Second Beeson affidavit pars 35 - 38.

[20] Second Beeson affidavit pars 30, 32 - 34, 40.

In her affidavit, Ms Martin deposed to communication as between HHG Legal Group and the Senior Client Services Coordinator of the Board concerning the release of the deceased's ashes.[21] Ms Martin deposed that she understood the position of the Board to be that unless a court order to the contrary was issued by a court of competent jurisdiction, the second defendant's written undertaking as provided to the Board on 5 July 2022 was insufficient authority for the Board to deliver the deceased's ashes to the plaintiffs.[22]
[21] Martin affidavit par 2.
[22] Martin affidavit pars 3 - 4.

The principles in relation to the grant of interlocutory injunctions

The principles governing the grant of interlocutory injunctive relief are well established, and were summarised by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [13], Newnes JA (with whom McLure P and Corboy J agreed) in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87], and the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36 [130] ‑ [131].
In short, it is necessary for the applicant for relief to show that there exists a serious question to be tried, or a prima facie case, and that the balance of convenience favours the grant of an injunction.
By reference to those authorities it is well established that:
(1)Where equity's jurisdiction is invoked in an application for an interlocutory injunction, it is necessary to identify the legal or equitable rights which are said to be determined at trial and in respect of which final relief is sought.
(2)The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction.
(3)The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks.
(4)The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted.[23] Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions.[24]
(5)In an interlocutory injunction application in equity's exclusive jurisdiction, the question of whether damages or other remedies at law are adequate does not arise.[25]
(6)In equity's auxiliary jurisdiction (that is, where an injunction is granted for the effectual protection of the plaintiff's enjoyment of a legal right), the question of whether the plaintiff will suffer irreparable injury for which damages will not be adequate compensation involves no more than a consideration of whether the injury cannot properly be compensated in damages, or by an order for accounts or some other interim remedy. The question of whether the injury cannot properly be compensated in damages involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages.[26]
(7)In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; whether those interests tend to favour the grant or refusal of an injunction in any given case depends upon the circumstances of the case; and hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive.[27]
[23] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.
[24] Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 [70].
[25] Heavener v Loomes [1924] HCA 10; (1924) 34 CLR 306, 326. See also Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21-345].
[26] R v MacFarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518, 550 ‑ 551; McCarty v The Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210, 214 ‑ 215; Action Cycles Pty Ltd v Ross [2011] VSCA 411 [30]; Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21‑345]; Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 [69].
[27] Samsung Electronics Company Ltd v Apple Inc [69].
On the subject of the adequacy of damages, the balance of authorities of this court suggest that consideration as to the adequacy of damages is an aspect of the balance of convenience, rather than a separate requirement.[28] In determining the application before me, I proceed on the same basis.
[28] See, for example, Leese v Shire of Harvey [2021] WASC 478 [15]; Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 136 [43]; Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 [450].

The plaintiffs' submissions

At the hearing of the application, counsel for the plaintiffs acknowledged that the declaration sought by the chamber summons, that the permit granted by the Board to the second defendant be declared null and void, was relief that went further than was necessary at an urgent ex parte hearing.
Counsel stated that those parts of the application that were most urgent were the grant of an interim injunction to restrain the Board from releasing the deceased's ashes to the second defendant; an order requiring the ashes remain in the custody of the Board at the Board's Pinnaroo Memorial Park office; and the orders concerning substituted service upon the defendants.[29]
[29] ts 2 - 3 (2 December 2022).
The urgency of the application was emphasised by reference to the Board's stated position. As to the position of the Board and the performance of its statutory functions, counsel submitted that while the Board may lack statutory authority to act in a manner inconsistent with s 7 of the Cremation Act, the court had the power to make a decision in respect to the ashes and who ought deal with them.[30]
[30] ts 8 (2 December 2022).
Counsel also made submissions as to the application of the facts to the principles applicable to the grant of an interlocutory injunction. As to delay, counsel submitted there had been ongoing correspondence between the plaintiffs' representatives, the Board and the Coroner in attempt to resolve the issues giving rise to the application. Counsel conceded that not all correspondence had been annexed to the affidavits filed in support of the application.[31] In this regard, counsel drew the court's attention to a letter received from the Office of the Coroner dated 29 November 2022, by which the plaintiffs were informed that the Coroner was satisfied that the second defendant was appropriately appointed as senior next of kin; had determined that there were no grounds to remove the second defendant as senior next of kin; and had refused the plaintiffs' request that she be so removed.[32]
[31] ts 13 (2 December 2022).
[32] ts 12 - 13 (2 December 2022).

Counsel made submissions in relation to the actions of the second defendant in obtaining the permit issued to her under s 8 of the Cremation Act. I understood counsel to contend as follows:[33]
(a)the second defendant had asserted in various forums and forms as to her status as the deceased's de facto;
(b)the second defendant may have committed a statutory offence (particularly, an offence contrary to the provisions of the Cremation Act) in providing false evidence in the form of a statutory declaration as to her status as the deceased's de facto; and
(c)the second defendant was not the de facto partner of the deceased at law, as provided in s 15 of the Administration Act 1903 (WA) or otherwise, which is why letters of administration were granted on 1 September 2022 to both of the plaintiffs jointly and not to the second defendant.
[33] ts 14 (2 December 2022).

Disposition

The application is made in circumstances where the plaintiffs dispute that the second defendant was the deceased's de facto partner as at the date of the deceased's death or at all, having regard to the factors provided in s 13A of the Interpretation Act 1984 (WA), and s 15 of the Administration Act. The plaintiffs also contend that the second defendant did not meet the requirements of s 37(5) of the Coroners Act to be appointed as senior next of kin.
While this was the asserted position of the plaintiffs, I have before me a copy of a letter dated 29 November 2022 signed by the Principal Registrar of the Coroner's Court of Western Australia, stating that the Coroner had determined that there were not sufficient grounds to remove the second defendant as senior next of kin. I had regard to the same in the grant of injunctive relief.
As to the question of whether there was a serious question to be tried, I noted that the plaintiffs may face difficulties in due course as the second defendant was granted and presently holds the permit which, prima facie, permits the Board to release the deceased's ashes to her, whether pursuant to the Cremation Act or pursuant to a contract between the second defendant and the Board. I understood the plaintiffs to say that it may be arguable, having regard to the lack of familial relationship between the second defendant and the deceased, that the permit should not have been issued to the second defendant and there is an issue as to the validity of the permit as a result. This contention may be made more difficult to establish in light of the correspondence now received from the Coroner's Court.
Despite the fact that:
(a)the second defendant holds a permit issued pursuant to s 8 of the Cremation Act (which permits the Board to release the deceased's ashes to her); and
(b)it is the Board's position that it has no power to revoke a permit once issued, nor to grant a permit in substitution for another issued under the Cremation Act,
the potential for an argument about the validity of the permit issued satisfies me, for present purposes, that the plaintiffs have made out at least a prima facie case. It was not possible to say anything more as to the strength of the case on the information available.
In so finding, I considered the decisions of Pritchard J in Price v Metropolitan Cemeteries Board [2015] WASC 501, together with the principles outlined in Milenkovic v McConnell [2013] WASC 421, and Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 ‑ 694, to which her Honour also had regard.
Turning to the balance of convenience, I am satisfied that the circumstances clearly weigh in favour of the grant of an injunction on an interim basis. As part of the balance of convenience, it is ordinarily necessary to consider whether damages would be an adequate remedy. The case before me is one where damages would not be adequate.
Accordingly, I will grant an interlocutory injunction on an urgent and interim basis in favour of the plaintiffs. The Board will be restrained from releasing the ashes of the deceased to any person until 31 January 2023, or further order. I select 31 January 2023 as I understand that the plaintiffs are not presently aware of the second defendant's address for service and understand that she may no longer reside in the State. I will list the matter before me for an inter parties hearing of the application after service on the defendants has occurred.

Schedule A - Indorsement of claim

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
14 DECEMBER 2022