Bertani v Bertani
[2017] WASC 78
•22 MARCH 2017
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 been complied with. That may be true, but as it would be possible to make an order on an ex parte basis and as Ellen in any event has filed submissions and participated in the hearing through counsel, I do not consider such failure in the circumstances of this case requires me to adjourn the hearing or decline to make orders.
Joan's position
The facts below are based on Joan's affidavit.
The deceased is a Noongar man and his bloodline extends from Perth to Albany. He was born in Boddington. It is unclear when he moved to South Australia, but he has five children living in South Australia. He has one child living in Western Australia. There is another child who was adopted out but Joan does not depose to his whereabouts. The deceased was not married at the time of his death. He had been living with a woman for some eight months preceding his death.
Joan resides in Western Australia and is 77 years old. The deceased's father is also deceased. Joan wishes to bury her son in Narrogin. She says that under Aboriginal culture he should be returned to his Mother Earth, the place of his birth, or otherwise his spirit will wander to where he has travelled. Joan says that the deceased has always expressed a desire to return home and be buried with his nanna in Narrogin. It is not clear as to whom the deceased expressed such opinions or when. I add that Joan's counsel properly disclosed in submissions that family in South Australia say that he also expressed a desire to be buried in South Australia.
Joan says she has spoken to Aboriginal Elders who confirm that the deceased should be returned home and that in particular she has spoken to a Noongar Elder. She says the Noongar Elder is in contact with an Elder from Ceduna and that she wishes the funeral to be stopped so that the Elders can make a decision between them as to where the deceased should be buried.
Joan says that the deceased died intestate. She says that other than his children, she is the next person in line and highest in ranking to apply for a grant of letters of administration in the estate under the Administration Act 1903 (WA).
Ellen's position
Ellen has not sought to put on any evidence, although I acknowledge the short notice of this application. According to Joan, Ellen has applied for letters of administration of the deceased's estate in South Australia and it is apparent she is represented by South Australian solicitors. Ellen opposes any relief being granted and denies this Court has any jurisdiction.
Through counsel, aspects of Joan's affidavit were contested but not as to matters material to these reasons. Ellen's counsel also said that some time ago the deceased was initiated into the Anangu people of South Australia.
The law
The law with respect to jurisdiction to determine rights relating to burials was referred to by Le Miere J in Mourish v Wynne[1] as follows:[2]
In Burrows v Cramley [2002] WASC 47 Pullin J held that this court has jurisdiction to determine who should have the carriage of a funeral and where the deceased should be buried. Jurisdiction is conferred by s 4 of the Administration Act 1903 (WA). Section 6 of the Supreme Court Ordinance 1861 stated that the Supreme Court should be a court of ecclesiastical jurisdiction. That section was repealed by s 2 of the Administration Act 1903 (WA), but s 4 preserved the former jurisdiction. The burial of bodies was a matter for ecclesiastical courts: see Smith v Tamworth City Council (1997) 41 NSWLR 680, 685.
[1] Mourish v Wynne [2009] WASC 85.
[2] Mourish v Wynne [21].
The law with respect to burial rights was summarised by Le Miere J in Spratt v Hayden[3] as follows:[4]
At common law certain persons are under a duty to bury the dead, which is accompanied by a right to possession of the body for this purpose. 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. Where no executor is named the person with the highest right to take out administration will have the same privilege as an executor: Smith v Tamworth City Council (1997) 41 NSWLR 680, 685. This statement of principle is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied: Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328, [46] (Perry J). It would have to be a rare case to depart from this common or usual approach: Burrows v Cramley [2002] WASC 47, [27] (Pullin J).
[3] Spratt v Hayden [2010] WASC 340.
[4] Spratt v Hayden [5].
In this case, under Western Australian law, the persons with the highest right to take out administration are the children of the deceased.[5] Under South Australian law, the children also have a higher right than a mother to take out letters of administration.[6]
[5] Administration Act 1903 (WA), s 25.
[6] Supreme Court Probate Rules 2015 (SA), r 34(1).
The authorities suggest a similar approach to questions of rights relating to burials is taken in South Australia.[7]
[7] Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 [46]; South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247.
The priority of rights is not the only relevant matter. The cases indicate that there are various other matters to which the courts have regard. In this case, the following have relevance.
Practical issues relating to burial
The deceased died some weeks ago. The funeral is planned for tomorrow. There is no evidence as to what steps might be taken to ensure the dignity of the deceased is maintained while a burial is delayed. There is no indication as to how long it may take for Elders to make a determination or whether they will agree. I consider the body should be buried without unreasonable delay and with all proper respect and decency.
Ellen's counsel says that those attending the funeral will be inconvenienced by its postponement. I note that but put less weight upon it.
Wishes expressed prior to death
The wishes of the deceased may often be given regard[8] but in this case, the evidence is at most of a neutral effect.
Customary or traditional values
[8] Spratt v Hayden [16].
I acknowledge the importance to Joan of cultural values and beliefs associated with burials. Courts in Australia have given consideration to such matters, although they are not of themselves determinative.[9] In this case, there is no evidence of the significance of such matters to the deceased and I am unable to afford any great weight to them. I note that the deceased may have been initiated into a different group but I do not place any weight upon that. I cannot assume the impact of that upon the Noongar people's beliefs.
[9] Spratt v Hayden [19], [21]; Jones v Dodd [53].
Principals on interlocutory injunction
The requirements for the grant of an interlocutory injunction were set out by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd.[10] In short, it is necessary for the applicant 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.
[10] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [11].
Application to facts
I do not consider that Joan has established a serious question to be tried.
The prospect of her obtaining letters of administration in Western Australia is not high, as the deceased's children have priority in that regard. Further, there is no evidence of any property of the deceased in this State.
Ellen has priority over Joan in that regard, whether in Western Australia or South Australia. Ellen resided in the same state as her father, her father was domiciled there and it is where his body is now situated.
There are other children in South Australia.
There is no evidence of the extent to which the deceased maintained a connection with Western Australia.
The funeral arrangements are in hand in South Australia.
The common or usual approach (whether in this State or South Australia) is that the person with the highest right to take out administration will have the right to arrange for the burial of the deceased's body. The application of that approach would lead to Ellen having the right to conduct the burial. There is no good reason a court would depart from that approach in this case. Accordingly, I do not consider that Joan has made out a serious question to be tried or a prima facie case. Therefore, it is not necessary to consider the issue of the balance of convenience. I note, however, that contrary to Ellen's submission, I do not consider that Joan delayed in bringing this application. There were valid reasons provided by Joan's counsel as to its timing.
I understand the significance of these issues to the parties and respect their different views and beliefs. It is not possible in such circumstances for the Court to resolve those differences in a manner that satisfies both parties.
In these circumstances it is not necessary to determine Ellen's claim that this Court has no jurisdiction. Counsel contended there was no jurisdiction because the body is situated in South Australia, the deceased was domiciled in South Australia and there is no property in Western Australia. Certainly those matters are relevant to questions of an appropriate jurisdiction. Joan was seeking the assistance of this Court to protect rights she claims to have. All such matters would need to be considered properly before assuming a lack of jurisdiction.
Determination
It follows that the application is dismissed.
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