Brokenshire v The Territory Coroner - [2021] NTSC 68

CITATION:Brokenshire v The Territory Coroner & Anor [2021] NTSC 68
PARTIES:BROKENSHIRE, Karen Leanne

v
THE TERRITORY CORONER
and
PERRY-BROWN, Zeus Harmony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NOS:2020-03517-SC
DELIVERED:  1 September 2021
HEARING DATE:  On the papers
JUDGMENT OF:  Barr J
CATCHWORDS:

COSTS – Dispute between plaintiff mother and second defendant former de facto partner – To whom Coroner should release body of deceased – Plaintiff named as executor in deceased’s will – Former de facto contested validity of will – Alleged that the will had never been executed – Alternatively alleged deceased lacked legal capacity at time of execution of will – Alternatively alleged revocation by destruction – Practical considerations – Right and obligation of named executor – Order that body of the deceased be released to plaintiff for funeral and burial – Costs – Plaintiff contends general rule should apply – Costs should follow the event – Second defendant resists costs order – Impecuniosity and personal circumstances – Contends that no order as to costs should be made against her – Order that second defendant pay the plaintiff’s costs on the standard basis to be taxed in default of agreement
Smith v Tamworth City Council (1987) 41 NSW LR 680, applied

Northern Territory v Sangare [2019] HCA 25, 265 CLR 164; Monck v Commonwealth of Australia (No. 2) [2020] NTCA 1, followed
Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67, referred to.
REPRESENTATION:
Counsel:
Plaintiff:B O’Loughlin
First Defendant:  E Farquhar
Second Defendant:  Self-represented
Solicitors:
Plaintiff:Piper Ellis Lawyers
First Defendant:  Solicitor for the Northern Territory
Second Defendant:  Self-represented
Judgment category classification:    B
Judgment ID Number:  Bar2106
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Brokenshire v The Northern Territory Coroner& Anor [2021] NTSC 68
No. 2020-03517-SC

BETWEEN:
KAREN LEANNE BROKENSHIRE

Plaintiff
AND:
THE TERRITORY CORONER

First Defendant
AND:
ZEUS HARMONY PERRY-BROWN
Second Defendant

CORAM: BARR J

REASONS FOR DECISION IN RELATION TO COSTS
(Delivered 1 September 2021)

The plaintiff is the mother of Dylan Lawrence Brokenshire, born 26 June 1995, who died in Darwin on 9 September 2020. On 21 December 2020, I made an order that the body of the deceased be released to her so that she could arrange for the funeral and, as she saw fit, the burial or cremation of the body.
The first defendant did not participate in the litigation preceding the making of the order, except to the extent that the Solicitor for the Northern Territory, acting for the first defendant, informed the Court that his client would abide the decision of this Court.
The second defendant contested the plaintiff’s application, in a manner described by the plaintiff’s solicitors as “actively and vigorously”. She withdrew from the contest only at the eleventh hour. She failed to appear at the hearing. It is unclear what notice, if any, she gave to the other parties of her intention to disengage.
The hearing proceeded on 21 December 2020 in the absence of the second defendant. The plaintiff’s counsel tendered affidavit evidence and made submissions.
The uncontested evidence was that, on 26 December 2018, the deceased, being of full capacity, executed a valid will, duly witnessed, appointing the plaintiff as his executor.
The second defendant had been the de facto partner of the deceased and had lived with him for various periods prior to his death. However, the parties were not cohabitating in the several weeks before the death of the deceased. The deceased had moved out of the home he shared with the second defendant in late August 2020, intending to end the relationship.[1]
The second defendant raised a number of issues in the course of the proceedings. Because the second defendant did not appear at trial, these issues were ultimately not pursued. However, I refer to them in pars [8], [9] and [10] below to indicate the case which the plaintiff was required to meet in advance of the hearing.
The second defendant asserted that the deceased had never signed a will, based on statements allegedly made by the deceased to her in mid-January 2019 to the effect that the plaintiff was putting pressure on him to sign a will and power of attorney documents, which he did not wish to sign. The second defendant alleged that the deceased threw unsigned copies of those documents into a bin. I concluded that the statements attributed to the deceased, and the pressure said to have been brought to bear on the deceased by the plaintiff, would have been inconsistent with the deceased having already executed his will, less than three weeks previously, on 26 December 2018. I refer to [5] above.
The second defendant also asserted that the deceased lacked the relevant legal capacity to make a will. She claimed that she had spoken to the deceased on 26 December 2018, “on snapchat in the early morning”, at which time he was highly intoxicated. She claimed that he was “so drunk and/or high on drugs, he could not speak properly”. The second defendant’s claim was disputed by the plaintiff and, crucially, by the two witnesses to the execution of the deceased’s will. One said that there was “nothing unusual about Dylan, and he had not been drinking”. The other said that the deceased had not been drinking, that he was sober, and that he was not “under the influence of anything”.
The second defendant also asserted that the handwriting on the will was not the handwriting of the deceased. She had engaged a handwriting expert to provide an expert opinion to support her assertion. It would appear from statements made by or on behalf of the second defendant at pre-trial mentions that the handwriting expert was unable to reach a conclusion based on the samples provided. There was no evidence even as to a preliminary opinion, for example, that the handwriting in the will may not have been that of the deceased. The issue was ultimately not pursued.
The general common law principle is that where a deceased person has left a will, the named executor has the primary privilege of burying the deceased’s body. The principle was stated by Young J in Smith v Tamworth City Council as follows: [2]
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.
I found in the present case that the right and obligation to make funeral arrangements for the deceased lay with his named executor. There was no proper basis to question the validity of the deceased’s will, under which the plaintiff was appointed as his executor. There was thus no basis to question the validity of the plaintiff’s appointment. By making the order referred to in [1] above, the Court gave effect to the need to ensure that the deceased’s body was disposed of without further unreasonable delay, and with proper respect and decency.[3]
The plaintiff subsequently applied for an order for costs against the second defendant.
The second defendant responded to the plaintiff’s written submissions by filing written submissions in which she alleged: (1) the making of false complaints by the plaintiff to Territory Families and Northern Territory Police; (1) death threats against her made by the plaintiff and the deceased’s family; and (3) unlawful entry of her home and stealing. She claimed that she had incurred costs in the sum of $6,700 because she had been made senior next of kin by the first defendant. She also referred to her poor financial position as “a single parent on single parenting pension who is also about to give birth”. There was no evidence to support any of the allegations made by the second defendant in her costs submission, but I consider that the last statement, that she was a single parent on a pension, is probably true.
Even though I accept the second defendant’s statement as to her financial circumstances, the principle re-affirmed by the High Court in Northern Territory vSangare,[4] and then by the Northern Territory Court of Appeal in Monk v Commonwealth of Australia (No. 2),[5] is that the impecuniosity of an unsuccessful party is not a consideration that, without more, might justify a decision to deny a costs order in favour of a successful party. Financial hardship is an irrelevant consideration.
The observations of the High Court in Sangare and the observations of the Northern Territory Court of Appeal in Monck were made in the context that both unsuccessful parties, against whom cost orders were ultimately made, had been plaintiffs in proceedings at first instance. Mr Sangare had sued in defamation, unsuccessfully, and Mr Monck had sued in negligence, also unsuccessfully. Both had initiated unmeritorious proceedings. Different considerations might arise in the case of an unsuccessful defendant or respondent. Nonetheless, the usual order that costs follow the event is based on the underlying principle that a costs order is made to indemnify a successful party against that party’s liability for legal costs which the party was only required to pay because of the unsuccessful opposing party’s engagement in litigation. That engagement includes both engagement as a plaintiff asserting a groundless cause of action and as a defendant resisting a justified cause of action.
I consider that it is just in all the circumstances that the plaintiff be indemnified by the making of the usual order as to costs. I will make an order that the second defendant pay the plaintiff’s costs on the standard basis, such costs to be taxed in default of agreement.
To the extent that it is necessary, I certify fit for counsel.
The plaintiff’s lawyers should file a draft of the final orders, consistent with [17], for settling by the Registrar.
Plaintiff’s application for costs against the Territory Coroner
The plaintiff has sought a costs order against the Northern Territory Coroner, on the basis that the Coroner’s office ‘took sides’ in early October 2020 when the plaintiff was informed that the body of the deceased would be released to a funeral home of the second defendant’s choosing in 28 days, unless the Supreme Court directed the Coroner to do otherwise.[6] At that stage, or at least by 9 October 2020, the Coroner was made aware that there was a dispute between the plaintiff and the second defendant as to whether the second defendant was the de facto partner of the deceased at the time of his death, and as to whether she should have decision-making power in relation to his remains.[7]
In Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird, [8] published 13 October 2020, I expressed doubt as to whether a coroner in the Northern Territory has implied authority, under the Coroners Act 1993, to determine to whom a deceased’s body should be released in the case of disagreement or conflict.
By letter dated 16 October 2020, the Deputy Coroner replied to the plaintiff’s solicitors, referring them to the decision in Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird. The Deputy Coroner informed the plaintiff’s solicitors in that letter that the Coroner did not have the authority to make the determination they sought.
In my opinion, that was an appropriate position for the Coroner to take as at 16 October 2020. Indeed, the Office of the Coroner should not have earlier entered into the dispute between the mother and former de facto partner of the deceased by sending the email referred to in the footnote 6 to par [20] above. The Coroner should have simply notified both parties that the body of the deceased could be released to whomever of the contesting parties had a court order in her favour.[9] However, I stress that my view in relation to the last aspect is with the benefit of hindsight.
The most which could be said about the email communication from the Office of the Coroner on 1 October 2020 was that it brought the dispute between the plaintiff and the second defendant to a head.
The plaintiff commenced proceedings by filing an originating motion on 26 October 2020.
The reason the plaintiff commenced proceedings was that she was in dispute with the second defendant. Mediation had failed to achieve the outcome which the plaintiff wanted. The dispute remained a live dispute at the time the proceedings were commenced, and continued to be so over the next several months. The issues were those summarized in [8], [9] and [10] above. It is irrelevant that, on 1 October 2020, someone from the Office of the Coroner had expressed a preference to releasing the body to the second defendant as ‘senior next of kin’. Not only was that indication of intent effectively withdrawn by the Deputy Coroner in his letter dated 16 October 2020 but, as noted in [2], the Coroner appeared by counsel at the commencement of the hearing and indicated that he would abide this Court’s decision.
There was nothing done or omitted to be done by the Coroner or the Office of the Coroner at any relevant time which would make it appropriate to make a costs order against the Coroner. The plaintiff’s application in this respect is misconceived. No costs order should be made against the Coroner.
I was minded to make a costs order against the plaintiff for the unsuccessful costs application made by her lawyers against the Coroner. However, in the absence of an application, I make no order.
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[1]Affidavit Lisa Ann Perry promised 7 December 2020, paragraph 10; affidavit Jacinta Lea Roe promised 7 December 2020, paragraph 5; affidavit Chad Kirby sworn 7 December 2020, paragraph 6, read with paragraph 9.

[2] Smith v Tamworth City Council (1987) 41 NSW LR 680 at 693G.

[3] Calma v Sesar (1992) NTLR 37 at 42; Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird [2020] NTSC 67.

[4]Northern Territory v Sangare [2019] HCA 25; 265 CLR 164.

[5]Monk v Commonwealth of Australia (No. 2) [2020] NTCA 1.

[6] Email to plaintiff from the Grief Counsellor, Office of the Coroner, sent 1 October 2020.

[7]The plaintiff's solicitors wrote to the Office of the Coroner by letter dated 9 October 2020 describing the dispute in those terms.

[8] Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Territory Coroner & Baird [2020] NTSC 67, at [49].

[9]See Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67 at [47] – [48].