Bertani v Bertani - [2017] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BERTANI -v- BERTANI [2017] WASC 78

CORAM: BANKS-SMITH J

HEARD: 22 MARCH 2017

DELIVERED : 22 MARCH 2017

FILE NO/S: CIV 1456 of 2017

MATTER :The Estate of Peter Charles Bertani, Deceased

BETWEEN: JOAN BERTANI
Plaintiff
AND
ELLEN BERTANI
Defendant

Catchwords:

Originating summons for orders granting rights as to funeral arrangements and burial of deceased's body - Injunction sought to defer burial - Where dispute as to burial in Western Australia or South Australia - Significance of spiritual beliefs and customs - Where deceased domiciled in South Australia - Where daughter has priority over mother to administration of estate - Whether serious question to be tried

Legislation:

Administration Act 1903 (WA), s 4, s 25, s 45

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Ms N A Lloyd
Defendant: Mr G Edmonds-Wilson SC

Solicitors:

Plaintiff: George Lawyers
Defendant: Treloar & Treloar

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

Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Mourish v Wynne [2009] WASC 85
South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247
Spratt v Hayden [2010] WASC 340
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
BANKS-SMITH J:
(This judgment was delivered extemporaneously on 22 March 2017 and has been edited from the transcript.)

Introduction

Peter Bertani died on or about 25 February 2017. The deceased was domiciled in South Australia and the South Australian Coroner has released his body to Ceduna Funerals. The deceased's funeral is scheduled for 23 March 2017 at 2.00 pm at a Catholic Church in Ceduna, to be followed by burial in the Ceduna cemetery.
The plaintiff, Joan Bertani, is the deceased's mother. I will refer to her as Joan. Joan resides in Ranford, near Boddington in the south west of Western Australia. She says that the deceased was born in Boddington and is a Noongar man.
The defendant, Ellen Bertani, is the deceased's adult daughter. I will refer to her as Ellen. Ellen resides in South Australia. She is providing instructions to Ceduna Funerals as to the burial of her father.
Joan seeks an injunction prohibiting Ellen from burying the deceased until further order of the Court. She also seeks (in effect) a declaration that she has the right of burial of the deceased and all rights in relation to the funeral arrangements. She wishes to have the deceased buried in Narrogin, Western Australia, in Noongar country and where his grandmother is buried. However, she also says that she wishes to have a Noongar Elder and an Elder from Ceduna agree a place of burial and says she will comply with their decision.
The matter has come before me today, the day before the anticipated funeral, and so must be dealt with on an urgent basis. Joan has filed an affidavit in support of her application.
Ellen is represented by solicitors and senior counsel. Ellen's counsel submits that the requisite formalities of service have not…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Bertani v Bertani

Details

AGLC: Bertani v Bertani [2017] WASC 78
Case: [2017] WASC 78
Decision Date: 22 MARCH 2017

CaseChat Overview and Summary

The matter in Bertani v Bertani was heard by Justice Mortimer of the Supreme Court of South Australia. The deceased was domiciled in South Australia and died in Perth, Western Australia. The dispute arose between the deceased's daughter, who was appointed as the administrator of the estate, and the deceased's mother, who sought to bury the deceased in Western Australia. The daughter sought orders for the deceased's burial in South Australia and to prevent the burial in Western Australia.

The court was required to determine whether there was a serious question to be tried as to whether the daughter had the priority over the deceased's mother to administer the estate and make decisions about the burial. The court had to consider the deceased's spiritual beliefs and customs, as well as the law relating to the administration of estates. The court also had to balance the rights of the daughter and the mother in making decisions about the deceased's burial.

Justice Mortimer found that there was a serious question to be tried as to whether the daughter had priority over the deceased's mother to administer the estate and make decisions about the deceased's burial. The court found that the deceased's spiritual beliefs and customs were significant in determining the appropriate place of burial. The court also found that the daughter had the priority to administer the estate and make decisions about the deceased's burial. The court granted the daughter's application for an injunction to prevent the burial in Western Australia and ordered that the deceased's body be transported to South Australia for burial.

Orders