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
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
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.
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.…
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- AGLC
- Bell v Bell [2023] WASC 471
- Case
- [2023] WASC 471
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the appropriate legal framework for resolving the dispute over the ashes, assessing the jurisdiction to grant orders preserving the ashes pending final determination of the claims, and balancing the competing interests of the parties involved. The court had to consider the provisions of the Administration Act 1903 (WA) and whether the court had the authority to restrain the defendants from disposing of the ashes before the substantive issues were finally resolved. Additionally, the court needed to weigh the urgency of the application against the potential prejudice to the defendants if interim orders were made.
The court found that the deceased had died intestate and thus the question of the entitlement to his ashes fell to be determined under the Administration Act. The court considered the evidence presented, which showed that the deceased's father had refused to release the ashes despite requests from the plaintiff and her solicitor. The court was also presented with evidence indicating that the deceased's father might scatter the ashes on 8 December, the day of the hearing, which heightened the urgency of the situation. After balancing the competing interests, the court decided that it had the jurisdiction to make orders preserving the ashes pending the final determination of the substantive claims. Consequently, the court issued orders restraining the defendants from destroying, damaging, or disposing of the ashes and directed that they be held pending the final resolution of the case.
The court's final orders included restraining the defendants from destroying, damaging, or disposing of the ashes of the deceased child and directing that the ashes be preserved in their current state until the substantive issues between the parties were finally determined. The defendants were also required to provide an undertaking to the court as to the security and preservation of the ashes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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). 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. 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]. 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. 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. 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. 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.