Bell v Bell

[2023] WASC 471

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BELL -v- BELL [2023] WASC 471

CORAM:   LUNDBERG J

HEARD:   8 DECEMBER 2023

DELIVERED          :   20 DECEMBER 2023

FILE NO/S:   CIV 2408 of 2023

MATTER: In the matter of the estate of KODY DREW BELL deceased intestate and s 45 of the Administration Act 1903 (WA)

GABRIELLE PATRICIA BELL

Applicant

AND

EX PARTE

ANDREW BELL

BELINDA GIBSON

Respondents

Catchwords:

Urgent interim relief to preserve deceased's ashes - Deceased died intestate - Jurisdiction to grant orders to preserve subject matter of the proceedings - Integrity of the court's processes - Competing interests of parties to be balanced - Orders made to restrain the defendants from destroying, damaging or disposing of the ashes - Orders made to preserve ashes pending final determination of the issues and claims by the court

Legislation:

Administration Act 1903 (WA), s 4, s 14, s 25 and s 45
Rules of the Supreme Court 1971 (WA), O 51 r 1, O 51 r 2

Result:

Interim relief granted to restrain respondents and to preserve the deceased's ashes

Category:    B

Representation:

Counsel:

Applicant	:	C A Gregson
Respondents	:	No appearance

Solicitors:

Applicant	:	Gregson & Associates
Respondents	:	No appearance

Case(s) referred to in decision(s):

Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162

Attwood v Office of the State Coroner [2020] WASC 198

Beeson v Metropolitan Cemeteries Board [2022] WASC 438

Britt v Office of the State Coroner [2022] WASCA 75

Burrows v Cramley [2002] WASC 47

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380

Chaplin v Barnett (1912) 28 TLR 256

Doherty v Doherty [2006] QSC 257; [2006] 2 Qd. R 259

Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546

Milenkovic v McConnell [2013] WASC 421

Mourish v Wynne [2009] WASC 85

Pizzey Properties Pty Ltd v Edelstein [1977] VR 161

Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097

Simsek v MacPhee [1982] HCA 7; (1982) 148 CLR 636

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76

Smith v Peters (1875) LR 20 Eq 511

Smith v Smith [2021] WASC 15

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

Table of Contents

A.     Introduction and summary

B.      Interim relief sought

C.     Evidence

D.     The court's jurisdiction

E.      Should the jurisdiction be exercised?

Serious question to be tried

Balance of convenience

F.      Conclusion and orders

LUNDBERG J:

A.     Introduction and summary

1. Tragically, on 27 September 2023, Kody Drew Bell (the deceased) was involved in a serious traffic accident as a result of which he lost his life.  His brother died in the same accident.  The accident was widely publicised in the mainstream media.  The deceased was only 24 years of age at the time.

2. The deceased left behind his wife of two years,[1] who is the plaintiff to this proceeding, and their two children, aged 3 and 1.  The deceased and his brother also left behind their father and mother, who are the defendants to this proceeding.[2]  The pain and anguish felt by the surviving family members as a result of this very recent tragedy is difficult to imagine.[3] 

   [1] They were married on 7 September 2021.

   [2] The parties are styled as applicant and respondent in the originating summons, but referred to generally as the plaintiff and defendants in these reasons.

   [3] For convenience, and with no disrespect to the persons involved, I will generally refer to the persons involved in this proceeding by their relationships to the deceased. 

3. These reasons concern the urgent application filed by the plaintiff, brought on at extremely short notice on Friday, 8 December 2023, in conjunction with the filing of substantive proceedings against the defendants.  The application was listed on an ex parte basis.  Many weeks before the proceedings were filed, the deceased's funeral had taken place and he had been cremated.  His ashes were being held by his parents.

4. The nature of the dispute between the parties was evident from the originating summons as filed by the plaintiff.  However, the ultimate relief sought by the plaintiff was less than clear (as a result of which I ordered that an amended originating summons be filed).  The originating summons included the following statement: 

   The Deceased … died intestate on 27 September 2023.  As at the date of the Deceased's death, the Deceased's wife … was universally entitled to his estate and the only person entitled to be appointed as his administrator.  On 8 December 2023 the First Named First Defendant [the father of the deceased] expressed that he would dispose of the ashes of the Deceased contrary to the instructions of the Plaintiff.

5. In essence, the affidavit evidence and the submissions of counsel for the plaintiff (both in writing and during his oral address) confirmed that the urgent application was filed by the plaintiff as a result of her concern that her father‑in‑law might dispose of the ashes of her late husband, in a manner inconsistent with her intentions.  The proceedings were thus initiated by the plaintiff to resolve the dispute between her and the defendants as to their rights to possession of the deceased's ashes, and to the disposal thereof. 

6. The deceased died intestate.  At the time these proceedings were commenced, no application had yet been made for the grant of letters of administration in respect of the deceased's estate.

7. The proceedings were accordingly listed late on Friday afternoon to hear the plaintiff's application for interim ex parte relief to preserve the ashes, pending the final determination of the parties' rights.  The plaintiff also sought orders for a grant of letters of administration in her favour in respect of the deceased's estate. 

8. At the conclusion of the hearing, I formed the opinion that orders should be made to preserve the deceased's ashes pending the determination of the underlying issues in this proceeding, and to restrain the defendants from taking steps to destroy, damage or dispose of the ashes.  I considered it was premature to make orders, on an ex parte application, to grant letters of administration in favour of the plaintiff.  The orders I made are set out at [51] of these reasons.  I indicated I would provide brief reasons to explain why I was satisfied these orders should be made.  I should emphasise, as I have noted within these reasons, that these reasons record no final findings of fact in respect of the matters raised by the plaintiff, and the deceased's parents have not yet had an opportunity to address the court on those matters.  The orders which I have made are solely intended to preserve the status quo, to enable the dispute as to the entitlement to the deceased's ashes to be heard in due course.

B.     Interim relief sought

1. The interim relief initially sought by the plaintiff was in the nature of a search order pursuant to O 52B of the Rules of the Supreme Court 1971 (WA) (RSC).  That is to say, an Anton Piller order.[4]  The orders also proposed that the court authorise members of the Western Australian police force to attend, and enter, the defendants' residential premises in order to seize the ashes.

   [4] Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162.

2. Counsel for the plaintiff readily acknowledged at the outset of the hearing that such orders were inapposite and that orders to preserve the subject matter of the litigation pursuant to O 52 r 2 RSC, together with injunctive relief, were more appropriate in the circumstances.

3. I should note, in this regard, there is a close connection between the Anton Piller order, on the one hand, and orders to preserve the subject matter of litigation, on the other.  In Furesh v Schor,[5] the Court of Appeal observed as follows:

   In Australia, the Anton Piller order has been described as a facet of the inherent power of the court to ensure that justice may be done between the parties to the litigation in the context of preserving the subject matter of the proceedings: Simsek v MacPhee [1982] HCA 7; (1982) 148 CLR 636.

   [5] Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546 [84].

4. The hearing on 8 December 2023 proceeded somewhat organically, given the limited time the plaintiff's solicitors had had to prepare the papers and to consider the applicable legal principles.  As the hearing developed, it became apparent that the plaintiff was seeking orders to achieve the following:

   (a)orders to preserve the subject matter of the proceedings, namely the deceased's ashes;

   (b)orders to restrain the defendants from damaging or disposing of the ashes; and

   (c)orders to require that the defendants deliver the ashes to the plaintiff's solicitors for the ashes to be stored by those solicitors pending the determination of this proceeding and further orders of the court.

5. The injunctive and associated relief sought by the plaintiff at the urgent hearing of this matter was intended to preserve the subject matter of these proceedings, namely the ashes themselves.  Put another way, the preservation of the ashes constituted interim relief necessary to ensure the ultimate issue to be determined by the court in this matter was not rendered nugatory or inutile.

C.     Evidence

1. I will return in due course to the jurisdiction of the court to make the orders sought by the plaintiff.  First, it is helpful to detail the reasons for the urgency of the application and some background to the proceedings, as they appeared from the brief affidavit evidence filed in support of the proceedings. 

2. First, following the deceased's funeral and cremation, his parents had taken possession of his ashes and had retained them since that time.

3. Second, the deceased died intestate and left no express statement as to the manner in which his ashes were to be dealt with.  In those circumstances, the question of entitlement to his ashes and the manner in which they would be dealt with fell to be determined in accordance with the provisions of the Administration Act 1903 (WA) (Administration Act). 

4. Third, requests had been made by both the plaintiff and her solicitor to the deceased's father to require that he provide the ashes to them, pursuant to the plaintiff's asserted entitlement under the Administration Act. Despite those requests, the deceased's father had declined to release the ashes to them. To be clear, the affidavit evidence disclosed that the plaintiff's solicitor had directly communicated by telephone with the deceased's father and expressly requested the return of the ashes for the benefit of the plaintiff and her two children.

5. Fourth, there is evidence before me that the deceased's father had been quite agitated while speaking with the plaintiff's solicitor and had indicated to him that under no circumstances would he provide the ashes to the plaintiff.  The evidence included a statement made by the deceased's father that he would proceed to scatter the ashes during the afternoon of 8 December.[6]

   [6] Affidavit of Craig Alan Gregson sworn 8 December 2023 [14].

6. Fifth, a proposal had been put to the deceased's father by the plaintiff's solicitor as to the splitting of the ashes so that the plaintiff and her children could have a component of them, and that the deceased's father could retain the other component.  The deceased's father indicated in response that under no circumstances was he prepared to split the ashes.  The deceased's father had also indicated, however, that he was prepared to hold onto the ashes for the benefit of his late son's two infant children, and that he would hold the ashes until they had reached the ages of around 10 to 12 years.

7. This last statement is somewhat at odds with the statement attributed to the deceased's father that he would proceed to scatter the ashes.  Indeed, the statements are prima facie inconsistent.  That may be explicable on the basis the evidence was assembled at short notice, or simply because, given the emotion attached to this issue, the deceased's father had expressed a number of comments about how he would deal with the ashes and his intentions were somewhat fluid.  

8. Sixth, the deceased's birthday is Tuesday, 12 December.  It was suggested by the plaintiff that this date marked a possible date on which the deceased's father might disperse the ashes.

9. The affidavit evidence adduced on the application was rather sparse in nature and had obviously been assembled at very short notice.  It is worthy of mention that the defendants were not served with the proceedings and so were not present at the hearing on 8 December.  Thus, the affidavit evidence presented by the plaintiff was not tested under cross‑examination at the hearing.  Indeed, the defendants have not yet had any opportunity to present arguments to the court in relation to this matter.  They will have that opportunity in due course.

D.     The court's jurisdiction

1. I was comfortably satisfied at the conclusion of the hearing that the orders I proposed to make, to preserve the subject matter of these proceedings and to restrain the defendants, were properly supported by the jurisdiction of the court. The court had the necessary jurisdiction to grant the orders in its inherent jurisdiction, and pursuant to O 52 r 1 RSC and O 52 r 2(1) RSC.

2. Further, the court has an inherent jurisdiction and also jurisdiction vested by s 4 and s 45 of the Administration Act, to not only determine who should have carriage of a funeral but where and how a body should be disposed of,[7] which jurisdiction includes the manner in which the ashes of a person should be dealt with.

   [7] Smith v Smith [2021] WASC 15 [65], referring to Burrows v Cramley [2002] WASC 47 [3] and Mourish v Wynne [2009] WASC 85 [121]; and Britt v Office of the State Coroner [2022] WASCA 75 [52].

3. Further still, the power of a superior court to preserve the subject matter of litigation is not a contestable point.  The Court of Appeal addressed and confirmed the issue in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2].  The court held:

   There is an inherent power of all superior courts to preserve the subject matter of litigation before them:  Tait v R; Simsek v MacPhee. Further, s 167(1)(oa) of the Supreme Court Act 1935 (WA) contains an express power to make rules in respect of the preservation of property - as to which see O 52 r 2 of the Rules of the Supreme Court 1971 (WA).[8]

   [8] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [149].

4. I have earlier referred to the observations of the Court of Appeal in Furesh v Schor.  The court in both Furesh v Schor and in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] referred to and relied upon the conclusions of Stephen J in Simsek v MacPhee.[9]  In that decision, Stephen J held as follows:

   There is no doubt that our courts have wide inherent powers to ensure that justice is not denied to those who litigate before them: Dixon CJ observed in argument in Tait v The Queen that he had never had any doubt 'that the incidental power of the Court can preserve any subject matter, human or not, pending a decision'.  My unreported decision in Australian Building Construction Employees' and Builders' Labourers' Federation v Victoria and Winneke and the further cases there cited as well as the case of Beck v Value Capital Ltd all provide recent instances of other facets of the inherent power of courts to ensure that justice may be done between parties, as does the making of what have come to be called 'Anton Piller' orders - see Anton Piller KG v Manufacturing Processes Ltd.  However such inherent power is not to be exercised as of course - see especially per Ormrod LJ in Anton Piller.[10]

   [9] Simsek v MacPhee [1982] HCA 7; (1982) 148 CLR 636.

   [10] Simsek v MacPhee (640 - 641).

5. Orders of this nature form part of the power of the court to protect the integrity of the court's processes.[11]  The court must, of course, remain vigilant to ensure the orders made do not go beyond what is necessary in the circumstances.  The Court of Appeal explored this aspect in Furesh v Schor, noting that:

   [86]The distinction between an order requiring a person to permit inspection of their premises under pain of contempt of court if they refuse, and an order which directly orders entry, might seem a fine distinction.  In Celanese Canada Inc v Murray Demolition Corp [2006] 2 SCR 189, the Supreme Court of Canada said of Anton Piller orders:

   'Unlike a search warrant they do not authorize forcible entry, but expose the target to contempt proceedings unless permission to enter is given.  To the ordinary citizen faced on his or her own doorstep with an Anton Piller order this may be seen as a distinction without a meaningful difference [28].'

   [87]Nevertheless, its permissive element is vital to the integrity of such an order.  In Manor Electronics Ltd v Dickson [1988] RPC 618, Scott J discharged an order purportedly providing that the plaintiff 'be entitled to enter' the defendant's premises. Echoing the words of Ormrod LJ in Anton Piller, such an order has been described as being 'at the very limit of the in personam jurisdiction' by Scott J in Columbia Picture Industries Inc v Robinson [1987] Ch 38, 73.

   [11] Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [25] - [26], [41] - [44] and [116].

6. The express power to preserve the subject matter of proceedings is found in O 52 r 2 RSC. The provision states as follows:

   2.Detention etc. of property; securing funds in dispute

   (1)The Court may, on the application of any party to a cause or matter, make an order for the detention, custody, preservation or inspection of any property which is the subject-matter of a cause or matter, or as to which any question may arise therein.

   (2)For the purpose of enabling an order under subrule (1) to be carried out the Court may by order authorise a person to enter upon or into any land or building in the possession of any party to the cause or matter.

   (3)Where the right of any party to a fund is in dispute in a cause or matter, the Court may order that the fund be paid into court or otherwise secured.

   (4)An order under this rule shall be subject to such terms, if any, as the Court thinks just.

7. The foregoing rule is expressed in broad terms, as is confirmed by the authorities referred to in the commentary in Civil Procedure:  Western Australia.[12]  The following summary is drawn from that commentary. 

   [12] Gething M, Curwood M and Joseph R, Civil Procedure: Western Australia [52.2.2].

8. The court has wide power to do what is reasonable and necessary for the administration of justice.[13]  Accordingly, it has been said that this rule extends to every case in which the court sees that as between the plaintiff and defendant there is something which ought to be done for the security of property.[14]  The rule is designed to maintain the identity and integrity of property in specie and not choses in action.[15] 

E.     Should the jurisdiction be exercised?

[13] Smith v Peters (1875) LR 20 Eq 511, 513.

[14] Chaplin v Barnett (1912) 28 TLR 256, 257.

[15] Pizzey Properties Pty Ltd v Edelstein [1977] VR 161, 162.

1. I approached the question whether the jurisdiction should be exercised in favour of the plaintiff by reference to the matters typically required to be satisfied before granting interlocutory injunctive relief.  That is, to assess whether there was a serious question or questions to be tried as to the relief sought by the plaintiff, and to assess whether the balance of convenience favoured the grant of the restraints and other orders which were sought.[16]

Serious question to be tried

[16] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [10].

1. Where the court is concerned with competing claims by relatives as to who should have carriage of a funeral, and the person has died intestate, it is typical for the court to order that the body be released to the person with the highest ranking entitlement to apply for letters of administration.[17]  This issue was the subject of detailed analysis by the Court of Appeal in Brit v Office of the State Coroner.[18]  However, as Mitchell JA further explained in that matter, this usual approach is not to be rigidly applied and additional considerations may well be relevant in particular cases.[19]  Indeed, where time, cost and logistical issues arise with respect to the funeral arrangements, it may simply not be practical for the court to determine, in short order, who has the better claim to be administrator.[20]  A range of considerations, including those of a cultural nature, as well as the wishes of the deceased and the wishes and sensitivities of the close relatives of the deceased, may need to be taken into account, depending on the circumstances.

   [17] Attwood v Office of the State Coroner [2020] WASC 198 [10].

   [18] Brit v Office of the State Coroner [54] (Mitchell JA, with Murphy and Beech JJA agreeing).

   [19] Brit v Office of the State Coroner [57] - [58] (Mitchell JA, with Murphy and Beech JJA agreeing).

   [20] Brit v Office of the State Coroner [59] - [61] (Mitchell JA with Murphy and Beech JJA agreeing).

1. The foregoing matters are equally applicable to the resolution of disputes between relatives of a deceased person to entitlement to possession and disposal of his or her ashes.  

2. The plaintiff has, thus far, focused her arguments in support of her ultimate entitlement to take possession of the deceased's ashes, on the strength of her entitlement to be granted letters of administration of the deceased's estate.  The plaintiff maintains she is the person with the highest priority to obtain such a grant, and is the only person entitled in distribution to the estate.  

3. In the circumstances of this case, I focused my analysis as to whether there was a serious question to be tried by reference to the competing entitlements to distribution of the estate, and the competing positions of the parties to apply for letters of administration. That does not mean that, in due course, additional considerations might not be identified by the parties as relevant to the ultimate relief sought by the plaintiff. However, for the purposes of the interlocutory application before the court, and the interim relief being sought, the parties' entitlements under the Administration Act provided an important starting point to assess whether there was a serious question to be tried.

4. On the face of the Administration Act, as the surviving wife of the deceased, I recognise that the plaintiff's claim to be entitled to a grant of letters of administration is relatively strong. I refer to both s 14 and s 25(1) of the Administration Act in this regard. I will need to hear from the defendants on this issue. Similarly, the plaintiff’s entitlement in distribution to the estate is relatively strong. As the deceased's estate was quite modest,[21] falling under the threshold amount in the legislation, it appears that s 14(1) may well operate such that his surviving wife is entitled to the whole of the intestate property.[22]  I have not yet heard from the defendants in this regard, so it is premature to express a concluded view on the issue. 

   [21] Affidavit of the plaintiff sworn 8 December 2023, [7].

   [22] Administration Act, s 14(1), item 2(a).

5. I was nonetheless satisfied at the hearing of this matter that there was a serious question to be tried that the plaintiff had claims to the deceased's estate, including a claim to take possession of the ashes which is recognised at law,[23] and a strong claim to the grant of letters of administration in respect of the deceased's estate.[24] 

   [23] Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097 [26] ‑ [27]; Milenkovic v McConnell [2013] WASC 421 [35].

   [24] Doherty v Doherty [2006] QSC 257; [2006] 2 Qd. R 259 [29] ‑ [31].

6. Naturally, I recognised the defendants may in due course assert competing claims, both as to seeking the grant of letters of administration and as to the right to dispose of the deceased's ashes.  However, as matters stood on 8 December, I was satisfied the plaintiff had claims which had a sufficient likelihood of success to justify the preservation of the status quo ahead of trial, on the basis that the originating summons would be amended by the plaintiff to properly reflect the claims sketched out by counsel for the plaintiff. 

Balance of convenience

1. In the circumstances, the balance of convenience weighed heavily in favour of the grant of such relief as was necessary to preserve the subject matter of the dispute, that is, the deceased's ashes, to ensure the proceedings were not rendered nugatory. 

2. I formed the view that there was an appreciable risk that the ashes may be disposed of in a manner which would defeat the legal claims the plaintiff was seeking to pursue through these proceedings.  I refer in particular to the statement by the deceased's father that he would disperse the ashes at the beach.  The disposal of the ashes in this way would render nugatory the plaintiff's claim for relief (if granted by the court) to take possession of the ashes and to allow her to dispose of them.

3. I have earlier noted that the deceased's father's statement in this regard may not have represented his final and definitive statement as to his intentions in relation to the ashes.  It must be recognised that the issues in this matter are highly personal and emotional for all concerned.  I certainly make no final finding as to the deceased's father's intentions, but rather approached the matter on the basis that, in light of the demands which had been made by the plaintiff and her solicitor for the return of the ashes, and the refusal to comply with that request, the magnitude of the risk and the consequences if the risk eventuated were such that the court should proceed cautiously to ensure the status quo was maintained.  That is, to order a regime which preserves the subject matter and restrains the defendants from taking peremptory steps to defeat the plaintiff's claims.

4. In assessing the magnitude of this risk, I was not at all disposed to grant relief in the form originally proposed by the plaintiff, namely to authorise members of the Western Australian police force to enter the residential premises (and vehicles) of the defendants to seize the ashes and to hold them until further order.  As I indicated during the hearing, orders of that nature were far too extreme in the circumstances, quite apart from any question as to the court's power to make such orders in respect of officers of the police force and without the consent of the State having been obtained, much less any notice having been given to the State in this regard.

5. So, while I accepted there was a risk of disposal of the ashes, I was not satisfied on the evidence as presented that the circumstance was so extreme as to authorise the members of the police force to forcibly enter upon the defendants' premises in order to secure the ashes. 

6. I had regard to the possibility of safety issues arising as a result of the service of the orders on the defendants and through the process of securing the return of the ashes.  Counsel for the plaintiff made submissions directed to this issue.  I had regard to the possibility that safety and wellbeing issues might emerge, particularly given the agitated state of the deceased's father in at least one of the conversations with the plaintiff's solicitor.  However, conversely, there was also a risk that the use of members of the police force might escalate the present situation. 

7. The appropriate balance to be struck, on my assessment, was to fashion a regime which provided for a sufficiently urgent process by which the plaintiff's solicitor would inform the defendants of the orders which had been made, by way of telephone call or through a text message, using a prescribed form of words for the text message. 

8. The regime would require the defendants to deliver up the ashes to the plaintiff's solicitor for the purpose of him maintaining custody of the ashes until further order of this court.  The orders also provided some limited time for the defendants to make arrangements for the delivery up of the ashes, which I fixed at 24 hours from the time at which notice had been given of the orders.  In my view, it was important the defendants had a degree of certainty as to the steps they would need to take in order to comply with the order.

9. The orders further required that the plaintiff's solicitor take immediate steps to preserve the ashes in a safe and secure location to be held subject to, and in accordance with, further directions to be made by this court. 

10. The orders of the court authorised the plaintiff's solicitor to attend at the premises of the defendants in order to serve the orders if necessary and to take receipt of the ashes, but importantly the orders did not authorise him, nor any agent of his, to enter inside any dwelling house situated at the property or to enter any vehicle located at that property. 

11. Further, I made an order that required the plaintiff's solicitor to promptly file an affidavit deposing to the circumstances in which the order had been served, or as to the attempts to serve the order, and to the extent applicable, as to the manner and circumstances in which he is holding the ashes.

12. In formulating the relief, I drew upon the analysis of, and the orders made by, Strk J in Beeson v Metropolitan Cemeteries Board.[25]  That was a case in which urgent ex parte injunctive relief was granted to ensure the preservation of the deceased's ashes pending a final determination of the respective parties' competing rights in respect of those ashes.  In that case, the ashes were, at the time of the application to the court, held by the Metropolitan Cemeteries Board.  In those circumstances, there was less immediate concern as to the possibility of damage or destruction of the ashes given the party who was holding them.

F.     Conclusion and orders

[25] Beeson v Metropolitan Cemeteries Board [2022] WASC 438.

1. For the foregoing reasons, I made the following orders at the conclusion of the hearing on 8 December 2023, which were expressly subject to the usual undertaking as to damages given by the plaintiff (which was filed together with the proceedings) and subject to an additional undertaking given by the plaintiff's solicitor (which was given orally during the hearing and noted by the court):

   UPON THE URGENT EX PARTE APPLICATION of the plaintiff made by originating summons filed on 8 December 2023, AND UPON HEARING Mr C A Gregson on behalf of the plaintiff

   AND UPON THE PROVISION of an undertaking as to damages by the plaintiff to the court that she will pay to any party restrained or affected by the restraints imposed by this order such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct

   AND UPON THE PROVISION of an undertaking from the plaintiff's solicitors that he will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the defendants

   IT IS ORDERED THAT:

   Abridgment of time

   1.That time be abridged to permit the ex‑parte urgent hearing of the plaintiff's Originating Summons dated 8 December 2023 and the hearing of the plaintiff's minute of proposed orders dated 8 December 2023 seeking urgent relief, as orally developed by the plaintiff's counsel, to be heard by the court at 4.30 pm on Friday 8 December 2023.

   Interim preservation of Ashes

   2.Pursuant to Order 52 rule 2(1) of the Rules of the Supreme Court 1971 (WA), and the inherent jurisdiction of the Court, the court authorises and orders the interim preservation of the ashes of [the deceased] late of [redacted] deceased, intestate (the Deceased), together with any container in which those ashes are placed (together the Ashes), in accordance with the following orders and subject to further directions of this court.

   3.Until further order or direction of this court, … (the named defendants to these proceedings) are hereby prohibited by interim injunction and an interim injunction is hereby granted restraining the defendants from:

   (a)destroying or in any way damaging the Ashes; and

   (b)disposing of the Ashes in any way other than for the purpose of providing the Ashes to Mr Craig Alan Gregson in accordance with these orders.  

   4.The plaintiff shall promptly give notice to … (the named defendants to these proceedings) of these orders by means of telephone communication and/or by text message to the known telephone contact number of either [the deceased's father or the deceased's mother], including by sending photographs of each page of these orders to [the deceased's father and mother] by way of text message.

   5.The text message to be sent on behalf of the plaintiff in order 4 shall state as follows:

   “Your urgent attention is required.  A proceeding has been commenced by [the plaintiff] in the Supreme Court of Western Australia in CIV 2408 of 2023.  [The deceased's father and mother] are named as the defendants to the proceedings.  The following orders have been made by the court on 8 December 2023 by Justice Lundberg at a hearing without notice to you.”

   6.Upon notice of these orders being given to either … (the named defendants to these proceedings) in accordance with the foregoing orders, the person who is given such notice (being either [the deceased's father or mother] shall:

   (a)deliver the Ashes to Mr Craig Alan Gregson, in his capacity as the solicitor for the plaintiff, for the purpose of Mr Gregson maintaining custody of the Ashes until further order of this court; and

   (b)ensure the delivery of the Ashes to Mr Gregson is completed by the defendants within 24 hours of notice having been given.

   7.The plaintiff shall promptly serve on … (the named defendants to these proceedings) copies of the following documents:

   (a)these orders including the Penal Notice attached hereto;

   (b)[redacted] …

   8.Upon delivery of the Ashes to him, Mr Craig Alan Gregson shall take immediate steps to preserve the Ashes in a safe and secure location, to be held subject to and in accordance with any further directions to be made by this court in relation thereto.

   9.Upon the delivery of the Ashes to Mr Gregson, Mr Gregson shall provide the defendants with a written receipt confirming the item or items so delivered, with such receipt to be provided to the defendants within 24 hours thereof.

   10.For the avoidance of doubt, nothing in these orders authorises Mr Craig Alan Gregson to enter inside any dwelling house situated at [redacted], in the State of Western Australia, or to enter any vehicle located at that property.

   11.Mr Craig Alan Gregson shall promptly file an affidavit deposing to the circumstances in which this order has been served, or as to the attempts to serve the order, and (to the extent applicable) as to the manner and circumstances in which he is holding the Ashes.

   Amended originating summons

   12.By no later than 4.00 pm on Monday, 11 December 2023, the plaintiff shall file and serve an amended originating summons setting out the interim, interlocutory, and final relief which is sought by the plaintiff.

   Liberty to apply

   13.The plaintiff has liberty to apply in respect of these orders generally and on short notice.

   Directions hearing

   14.The matter be otherwise adjourned to a directions hearing in the week of Monday, 11 December 2023 on a date to be fixed.

   Costs

   15.The costs of today's hearing be reserved.

1. As a postscript to these reasons, I should record that, following the hearing of the matter, the court was informed by the plaintiff's solicitors that the deceased's mother had delivered the ashes to those solicitors during the afternoon of Monday, 11 December 2023.  The plaintiff filed affidavit evidence on 15 December to verify compliance with the orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SAO

Associate to the Honourable Justice Lundberg

20 DECEMBER 2023