Dann v Office of the State Coroner
[2020] WASC 486
•22 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DANN -v- OFFICE OF THE STATE CORONER [2020] WASC 486
CORAM: SMITH J
HEARD: 22 DECEMBER 2020
DELIVERED : 22 DECEMBER 2020
FILE NO/S: CIV 2222 of 2020
BETWEEN: DENISE JEAN DANN
Plaintiff
AND
OFFICE OF THE STATE CORONER
First Defendant
TANYA LOUISE DANN
Second Defendant
Catchwords:
Application for injunction to restrain funeral - Originating summons for orders that the plaintiff have carriage of a funeral - Right to arrange funeral - Competing claims by members of the deceased's family - Significance of cultural, spiritual and religious factors - Practical considerations - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 4, s 14, s 25(1)
Coroners Act 1996 (WA), s 29(1), s 37(5)
Result:
Orders made that the body of the deceased be released to the second defendant and that the second defendant have carriage of the deceased's funeral
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr E B B Ryan |
| First Defendant | : | Ms C Thatcher SC |
| Second Defendant | : | Mr B D Hetherington |
Solicitors:
| Plaintiff | : | Butlers Lawyers & Notaries |
| First Defendant | : | State Solicitor for Western Australia |
| Second Defendant | : | Solomon Hollett Lawyers |
Case(s) referred to in decision(s):
Attwood v Office of the State Coroner [2020] WASC 198
Bertani v Bertani [2017] WASC 78
Burrows v Cramley [2002] WASC 47
Doodeward v Spence (1908) 6 CLR 406
Gilliott v Woodlands [2006] VSCA 46
Mourish v Wynne [2009] WASC 85
Reece v Little [2009] WASC 30
Spratt v Hayden [2010] WASC 340
Ugle v Bowra & O'Dea [2007] WASC 82
Williams v Williams (1882) 20 Ch D 659
SMITH J:
(This judgment was delivered extemporaneously on 22 December 2020 and has been edited from the transcript to correct infelicities in grammar and expression, and to add references).
Introduction
The plaintiff commenced these proceedings by originating summons dated 15 December 2020 seeking that the application be dealt with urgently.
The brother of the plaintiff, Jason Andrew Dann,[1] died suddenly on 15 November 2020. He was 47 years old when he died.
[1] In these reasons, without intending any disrespect, the deceased is referred to by his first name, as his family members have done so in their affidavits.
The plaintiff is one of Jason's siblings. The second defendant is the estranged wife of Jason.
The question that arises in these proceedings is who should have the right to make the funeral arrangements: the plaintiff (his sister) or the second defendant (his wife from whom he was legally separated at the time of death).
On 7 December 2020, Coroner Stephen Sharratt issued a decision stating that he intended to issue a certificate on 10 December 2020, pursuant to s 29(1) of the Coroners Act 1996 (WA), releasing Jason's body to the second defendant for burial.
The plaintiff applies for:
(a)an order staying the decision of the Coroner;
(b)an injunction restraining the release of the body to the second defendant;
(c)an order to release the body of Jason to the plaintiff;
(d)an order that the plaintiff have carriage of the funeral of Jason; and
(e)an order that Jason be buried on 9 January 2021 at South Hedland Cemetery by Pilbara Funeral Services.
The first defendant, the Office of the State Coroner, entered an appearance and senior counsel filed a written outline of submissions on 16 December 2020, helpfully setting out relevant legal principles to be applied when a person makes an application to this court for the right to possess and bury a body.
The originating summons was listed for directions on 17 December 2020. At the outset of the hearing, it was agreed by the parties that the matters in dispute were properly between the plaintiff and the second defendant, and that the first defendant should be excused from any further attendance in the proceedings.
Orders were made for the filing and service of additional affidavits on behalf of the plaintiff, and for the second defendant to file and serve any affidavits in reply.
The hearing of the originating summons was listed for hearing on Tuesday 22 December 2020.
Background
Jason was a proud Aboriginal man. Although he had lived in Broome from 2012 until he died, he had connections to the Nyul Nyul, Kariyarra, Ngarluma, Yindjibarndi and Banjima Countries, and had for a period of time, at least between 2006 and 2012, upheld a traditional way of life with the second defendant. During that time he lived on his ancestral homeland in the Dampier Peninsula, and sourced food, water, and shelter from the land. It must be accepted that he led a traditional way of life at other times.
It is also clear that, in some respects of his life, Jason adopted a non‑traditional lifestyle, in that he was employed in a trade and that he used modern means of communication, such as the sending of text messages and email correspondence, through the internet.
Jason and the second defendant married on 25 July 2009, at the Sacred Heart Church, Beagle Bay, in Broome.[2] Jason and the second defendant have one child together, Jason Ashley Gregory Ignatius Dann Junior (Jason Jnr), who is now 16 years of age and resides with the second defendant in Perth.
[2] Affidavit of Tanya Louise Dann sworn 18 December 2020 [4], TD1, page 6.
In or about September 2018, the second defendant separated from Jason and moved with Jason Jnr to Perth.
Jason stayed in Broome and continued to work. He provided for Jason Jnr financially. At some time following the second defendant's move to Perth, the second defendant made an application to the Child Support Agency for Jason to support Jason Jnr, which appears to have been granted.[3]
[3] Affidavit of Denise Jean Dann sworn 15 December 2020, TJD 3, pages 21 to 23.
The second defendant states in her affidavit that, whilst she has lived apart from Jason for two years, they remain married and maintained a good relationship. She claims that they never discussed divorce, and did not prepare or file an application for divorce. It is clear, however, that they did formally separate in 2018.
The plaintiff in her second affidavit states that Jason and the second defendant had discussed divorce.
The plaintiff in her second affidavit states that in her culture, Jason and the second defendant, having separated, were no longer married. I do not accept this contention. There is no explanation by the plaintiff as to why that would be so.
The plaintiff in her second affidavit annexes copies of a text message and an email exchange between the second defendant and Jason, which are said to be evidence of a poor relationship between them, and that divorce had been discussed.
The text message exchange took place on 6 May 2019, in which Jason referred to the second defendant shredding forged divorce papers before she left, and the second defendant having a new husband. However, it is difficult from what is said in the exchange to ascertain what was meant specifically, or whether the exchange was merely banter between them, as Jason at the end of part of the message had typed the well‑known emoji for love and kisses, 'XXXOOO'.
The email exchange occurred on 29 October 2020, which was a few weeks before Jason died. The email exchange appears to reveal an argument related to whether Jason would spend Christmas with Jason Jnr. It is noted, however, that some of the text of the email exchange has been deleted, but, in any event, whilst it appears that Jason and the second defendant had argued at least on 29 October 2020, I am not satisfied that one text message exchange and one email exchange is evidence of an ongoing poor relationship between the second defendant and Jason.
In any event, for the reasons I give below, I am not satisfied that there was not a relationship of husband and wife between Jason and the second defendant at the time of his death.
Jason's other surviving immediate family members include his father, George (73 years), and two older sisters, Georgina (51 years) and Rosalind (49 years).
The plaintiff claims that Jason also has an adult son, Jawane Fairclough (23 years). However, the second defendant says that Jason did not admit the paternity of Jawane during his lifetime. After Jason died, the second defendant made unsuccessful attempts to contact Jawane.
The plaintiff claims that Jason did accept paternity for Jawane in his lifetime, and that she accepts him as her nephew. The plaintiff states in her second affidavit that she has been able to locate Jawane and has informed him about her proposed funeral arrangements, and that he is supportive of those arrangements.
I do not find it necessary to determine whether Jawane was recognised by Jason as his son in his lifetime in these proceedings, as it is clear from the affidavits filed on behalf of both parties that Jason had a reasonably close relationship with Jawane. In any event, I am unable to ascertain what his views are of this application, as there is insufficient information before the court.
The issues in dispute
The issues in dispute are narrow. Both the plaintiff and the second defendant agree that the funeral should be conducted in Port Hedland, and that Jason's body should be buried. The parties also agree that Jason should be buried in accordance with his wishes and the Nyul Nyul, Banjima, and Kariyarra traditions, which are that:
(a)there should be a service conducted by a priest at St Cecilia's Catholic Church;
(b)as part of Jason's family tradition, there should be a nine-day novena, which includes a series of prayers recited over nine days in honour of Jason. On the ninth day, Jason will be buried, and final prayers will be said at the gravesite; and
(c)family from Beagle Way in the Kimberley will bring sand from Jason's Country, which will be placed with Jason when he is buried.
The plaintiff has made arrangements for the funeral to take place on Saturday 9 January 2021, with Pilbara Funeral Services, and the second defendant has tentatively scheduled the funeral to take place with Newman Funeral Services Pty Ltd on Friday 15 January 2021 (although this date may be changed to Friday 8 January 2021).
The plaintiff claims that, as the spokesperson of Jason's family, and in accordance with his wishes, she should be the person who should be entitled to take possession of Jason's body and proceed with the funeral arrangements that she has made on behalf of his family.
The plaintiff states in her second affidavit that it is not culturally appropriate for Nyul Nyul, Banjima, Kariyarra, Ngarluma and Yindjibarni peoples to be buried on a Friday, and that the second defendant has disregarded their request for the funeral to occur on a Saturday rather than a Friday.
The plaintiff also states in her second affidavit that in Nyul Nyul and Kariyarra custom:
(a)it is for the father of the deceased to choose the pallbearers, which should not include children or nephews of the deceased, and if Jason's mother was still alive she would also be involved in making that decision;
(b)the parents of the deceased should be the ones to travel in the car with the deceased to the funeral; and
(c)there should not be photographs of the deceased in Tribute Books that are to be distributed at the funeral.
The plaintiff in her second affidavit states that she has tried not to exclude Jason Jnr from the funeral arrangements, and has communicated directly with him following his father's death.
The second defendant claims that she should be the person who should be entitled to take possession of Jason's body and proceed with the funeral arrangements, because it is important for her and Jason's son, Jason Jnr, to be a part of organising his father's funeral.
The second defendant says that she is a woman of the Nanda people, and has a deep appreciation and respect for the customs and traditions of Jason's people and her people. The plaintiff claims that the second defendant is not Aboriginal. In her second affidavit, she states that she has searched the register on the website of the Office of the Registrar of Indigenous Corporations and ascertained that the second defendant is not a member of either the Nanda Aboriginal Corporation or the Barrel Well Community Nanda Corporation. Whilst that may be the case, I do not accept the plaintiff's contention that it necessarily follows because the second defendant is not on the register of either of those native title organisations that she is not Aboriginal. This is because there are many people who are part of a particular group of Aboriginal people who have not registered as a member of a particular Aboriginal corporation.
Jason's father and sisters are recognised members of native title claim groups, including IBN, Gumala Aboriginal Corporation, and Australian Executor Trustees. As a member of these native title groups, the plaintiff has been able to arrange funds for Jason's funeral, of about $18,000.00. However, the plaintiff says that these funds are only available to her and not the second defendant, as the second defendant is not a member of these bodies. Consequently, the plaintiff says that these funds are only available from this source if the plaintiff is successful in her application to have carriage of Jason's funeral.
Legal Principles
This court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA), and inherent jurisdiction, to determine who should have carriage of a funeral, and where, and how, a body should be disposed of.[4]
[4] Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).
Pursuant to s 29(1) of the Coroners Act, the Coroner investigating a death must issue as soon as reasonably possible a certificate permitting burial, cremation, or other disposal of the body. The Office of the State Coroner points out in their written submissions that the equivalent duty to issue in the Coroners Act 1985 (Vic) has been interpreted as carrying with it, by necessary implication, the power to decide questions as to where, and by whom, the disposal will be carried out, which is essential to the effective discharge of the Coroner's functions.[5]
[5] Gilliott v Woodlands [2006] VSCA 46 [20].
As counsel for the plaintiff points out, it is an established principle at common law that there is no property in a dead body, but executors are entitled to custody and possession of the body for the purpose of disposal of the body.[6]
[6] Williams v Williams (1882) 20 Ch D 659; Doodeward v Spence (1908) 6 CLR 406; Burrows v Cramley [2002] WASC 47 [15] - [16] (Pullin J).
The principles of law that apply in this State as to how this court is to determine who should have possession and control of the body of a deceased were recently set out by Archer J in Attwood v Office of the State Coroner as follows:[7]
[7] Attwood v Office of the State Coroner [2020] WASC 198 [10] - [12] (footnotes omitted); Burrows v Cramley [2002] WASC 47 [15] ‑ [18] (Pullin J); Mourish v Wynne [2009] WASC 85 [22] ‑ [24] (Le Miere J); Spratt v Hayden [2010] WASC 340 [5] (Le Miere J); Bertani v Bertani [2017] WASC 78 [14] ‑ [18] (Banks-Smith J).
(a)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.
(b)A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders, but is not legally bound to do so.
(c)Where no executor is named the person with the highest rank to take out administration will have the same position as the executor in proposition (a).
(d)The right of the surviving spouse or de facto will be preferred to the right of children.
(e)Where two or more persons have equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
The propositions in (a) and (c) are to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. It would have to be a rare case to depart from this common or usual approach.
Where those claiming the privilege of burial have equally ranking rights for administration, the question turns largely to matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency.
Relevant factors
Who is the party who has the highest ranking privilege to take out administration of Jason's estate?
Whilst the second defendant and Jason were separated at the time of his death, until divorced, at law, the second defendant was still his wife at the time of his death.
Pursuant to the table in s 14 of the Administration Act 1903 (WA), the second of defendant has the highest right to apply for administration of the estate of Jason, pursuant to s 25(1) of the Administration Act.
The plaintiff contends that the legal principles that apply in determining whether a person was in a 'surviving de facto relationship' should be applied. In particular, the plaintiff argues that it is crucial to consider the nature of the Jason's relationship with the second defendant at the time of death, as a failure to do so would result in a situation whereby the carriage of the deceased's funeral would fall to somebody with whom the deceased's relationship had irretrievably broken down and was not 'marriage-like', 'in the nature of marriage', or of the 'required quality'. This could result in the deceased's wishes not being given all proper respect and decency and, in the present case, in him being buried in a manner that would offend his customs and traditions.
This argument has no basis in law. The Coroners Act expressly contemplates that a senior next of kin can be a spouse of a deceased that does not live with the deceased. Also, the Administration Act does not contemplate, or require in any way whatsoever, that for a wife or husband of a deceased to be entitled to a distribution of property, or to apply for administration of a deceased estate, they must have lived with the deceased prior to the deceased's death or that their marriage had not broken down.
Counsel for the second defendant argues that, pursuant to s 37(5) of the Coroners Act, the senior next of kin is the person who is entitled to take control of the deceased’s body for the purposes of burial.
In determining who is the senior next of kin, siblings of a deceased are ranked below the legal spouse of the deceased. The Coroners Act even goes as far to distinguish between spouses who are residing together at the time of death, and those who are not residing together at the time of death. In both instances, a legal spouse outranks a sibling.
Section 37(5) of the Coroners Act provides:
(5)In this section, unless otherwise prescribed, senior next of kin in relation to the deceased person means the first person who is available from the following persons in the order of priority listed ‑
(a)a person who, immediately before death, was living with the person and was either -
(i)legally married to the person; or
(ii)of or over the age of 18 years and in a marriage-like relationship (whether the persons are different sexes or the same sex) with the person;
or
(b)a person who, immediately before death, was legally married to the person; or
(c)a son or daughter, who is of or over the age of 18 years, of the person; or
(d)a parent of the person; or
(e)a brother or sister, who is of or over the age of 18 years, of the person; or
(f)an executor named in the will of the person or a person who, immediately before the death, was a personal representative of the person; or
(g)any person nominated by the person to be contacted in an emergency.
On the basis that the second defendant outranks the plaintiff to apply for administration of the deceased estate, this is a factor that favours a grant in favour of the second defendant, as her right to apply to have carriage of the burial of Jason is higher than that of the plaintiff.
Wishes expressed by the deceased prior to death
The court may often give significant weight to the wishes of the deceased, particularly where those wishes are consistent with the established legal framework for resolving burials, and with the intentions of the person entitled to determine the form of burial.[8]
[8] Spratt v Hayden [2010] WASC 340 [16] (Le Miere J); see also Ugle v Bowra & O'Dea [2007] WASC 82 [16] (McKechnie J) and Bertani v Bertani [2017] WASC 78 [21] (Banks-Smith J).
Both the plaintiff and her sister, Rosalind Jennice Dunstan, say that Jason told them that he wanted the plaintiff to 'handle his affairs' after his death.
In her affidavit, Ms Dunstan states that she had various discussions with the deceased about what they wanted to happen to each of them after they passed away. The most recent discussion was when Jason last visited her home in Perth in September 2020. On that occasion, he told her that he wanted the plaintiff to handle his affairs when he was gone, that he wanted to be buried at the cemetery in South Hedland, and that he had pre‑booked a plot there, next to where their mother and brother are buried.[9]
[9] Affidavit of Rosalind Jennice Dunstan sworn on 18 December 2020, [4] - [6].
The wishes of a deceased is a factor to be considered, but is not on its own determinative. The wishes of Jason do favour a grant to the plaintiff. In any event, even if an order is made in favour of the second defendant, it is clear his wish to be buried in his pre-booked plot should be honoured.
Cultural, spiritual and religious values of the surviving family
Unfortunately, there is animosity between the plaintiff and the second defendant.
The cultural, spiritual and religious values of Jason and his surviving family should be given weight. For the reasons I have given, his surviving family include the second defendant, as she is his wife.
Whilst the plaintiff makes much of the differences in the arrangements proposed by the second defendant, there is very little difference between them. The second defendant in her affidavit makes it clear that she intends to conduct a proper and decent burial of Jason in accordance with all of the traditions, and cultural and religious values, of Jason's peoples.
Given that no firm date has yet been set for the funeral by either party, I see no reason why, if the second defendant is to have charge of the funeral, the day and date of the funeral could not be changed to a Saturday.
I also see no reason why an order could not be made that no photographs be shown of the deceased at the funeral.
The main issue appears to be whether Jason Jnr should be a pallbearer, and whether he should be allowed to travel in the funeral car with his grandfather and his father's body.
Decision of the Coroner
The Coroner chose to release the body to the second defendant for the reason that she was the senior next of kin of Jason, as opposed to the plaintiff who was one of his next of kin.[10]
[10] Affidavit of Denise Jean Dann sworn 15 December 2020, Annexure DJD-1, page 18.
The senior next of kin is defined in s 37(5) of the Coroners Act to mean, in relation to a deceased person, the first person who is available in the order of priority listed in the following subsections. The second defendant answers the description of a person in s 37(5)(b) as she is a person who, immediately before death, was legally married to Jason. The plaintiff answers the description of a person in s 37(5)(e) as she is a sister of Jason who is over the age of 18 years.
Consequently, the second defendant was the first person in the order of priority of s 37(5), and it was on this basis that the Coroner made his decision to issue a certificate to the second defendant, under s 29(1) of the Coroners Act, to permit the disposal of Jason's body.
Significant weight should be given to the decision of the Coroner to grant the certificate to the second defendant.
Other relevant factors
The wishes of the children of a deceased (whether or not they are a party to the proceedings) are relevant. In Reece v Little,[11] Templeman J remarked in that matter that the wishes of the deceased's children carried very great weight.
[11] Reece v Little [2009] WASC 30 [97] (Templeman J).
In this matter, it is clear that Jason has one biological child, Jason Jnr. It is less clear whether Jawane is also his biological child. I cannot determine whether he is or not. Although Jason Jnr is only 16 years old, his wishes should be respected.
Even if Jawane is a biological child of Jason, it is not entirely clear exactly what the wishes of Jawane are. The only inference that can be drawn from the second affidavit of the plaintiff is that he is supportive of the funeral arrangements that the plaintiff has made. No further inference can be drawn from the plaintiff's account of her conversation with Jawane. In particular, in light of the fact that there is very little dispute about the funeral arrangements themselves, it cannot be inferred that he is of the view that only the plaintiff should have carriage of the funeral arrangements and not the second defendant.
While the usual principles applied by this court are that the right of carriage of a burial by a surviving spouse is to be preferred to the right of children, the right of a child is generally to be preferred to that of a sibling of a deceased.
As there is evidence before the court that Jason Jnr supports the orders sought by his mother that she should have carriage of the funeral arrangements, this is a factor that supports an order in favour of the second defendant.
It appears that the plaintiff has the greater availability of immediate funds to pay for the funeral and the disposal of the body of Jason. However, the second defendant is willing to fund the cost of the funeral if funding cannot be obtained through an Aboriginal corporation.
In any event, as counsel for the second defendant points out, the costs of the funeral is a cost to the estate, and can be recovered from the deceased's estate.
Conclusion
I appreciate that in this case, as in many of the cases that come before this court that involve families, in particular families of Aboriginal persons, to choose who should have the right within a family to have the carriage of the funeral of a much loved deceased causes much distress to the losing party.
It is unfortunate that the parties to these proceedings have not been able to reach agreement as to who should have the carriage of the funeral arrangements when both parties put forward substantially the same arrangements.
However, no agreement has been reached despite the fact that a registrar of this court has attempted to mediate an agreement between the parties this morning before this hearing.
Regrettably, this court must decide who should have the right to arrange Jason's funeral and, in doing so, I must apply the established principles of law.
Having considered all of the evidence filed on behalf of the parties, and the submissions made by their counsel, this case is not such a rare case that would warrant the court departing from the common or usual approach. When regard is had to all the relevant factors and considerations, I am of the opinion that the second defendant should have the carriage of Jason's funeral.
This is because, when all relevant matters are considered on balance, the relevant factors are not such as to depart from the common or usual approach that the person who has the highest right to take out administration will have the right to arrange for the disposal of the deceased's body.
Postscript
For these reasons, I made the orders sought on behalf of the second defendant, except for the order sought for indemnity costs. This is because I did not agree that the plaintiff's case was not entirely without any merit. However, I formed the opinion that the plaintiff should pay the second defendant's costs of the application to be taxed, if not agreed.
Counsel for the second defendant informed the court that the second defendant consented to an order that the funeral be conducted on a Saturday. Counsel for the second defendant also informed the court that the second defendant agrees that Jason's body be buried in his pre‑booked plot. However, the plot was owned by the Dann family, which would require their consent to allow this to occur.
Counsel for the plaintiff and the second defendant informed the court that an order should be made that, except for one photograph of the deceased on the front of the Tribute Book, there should be no photographs shown of the deceased at the funeral.
Accordingly, I made the following orders:
1.The body of the late Jason Andrew Dann ('the deceased') be released to the second defendant.
2.The second defendant have carriage of the deceased's funeral.
3.The funeral be conducted on a Saturday and there be no photographs of the deceased shown at the funeral of the deceased, except for one photograph on the front cover of the Tribute Book.
4.The plaintiff pay the second defendant's costs to be taxed if not agreed, including reserved costs.
5.The plaintiff's originating summons filed on 15 December 2020 be otherwise dismissed.
At the conclusion of delivering of my reasons for making an order in favour of the second defendant, I urged the parties to facilitate a direct discussion between Jason Jnr and his grandfather about who should be pallbearers at Jason's funeral, and who should travel in the car with Jason's body at the funeral.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to Judge12 JANUARY 2021
5
11
2