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Darcy v Duckett

Darcy v Duckett

Case [2016] NSWSC 1756 9 December 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Darcy v Duckett [2016] NSWSC 1756
Hearing dates: 6 December 2016
Date of orders: 06 December 2016
Decision date: 09 December 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)That the first defendant is entitled, as against the plaintiff, to have the body of Rodrick Darcy delivered to her for the purpose of making burial arrangements.
(2)That the first defendant is entitled, as against the plaintiff, to bury Rodrick Darcy at Bowraville if she so wishes.
(3)Order that there be no order as to costs.

Catchwords: INTESTACY – burial rights – dispute between de facto spouse and sibling – significance of Aboriginal cultural, spiritual and religious beliefs – ascertaining relevant circumstances
Legislation Cited: Coroners Act 2009 (NSW) ss 6, 21
Probate and Administration Act 1898 (NSW)
Supreme Court Act 1970 (NSW) s 69
Cases Cited: AB v CD [2007] NSWSC 1474
Dodd v Jones [1999] SASC 458
Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125
Keller v Keller [2007] VSC 118; (2007) 1 ASTLR 400.
Minister for Families and Communities v Brown [2009] SASC 86
Smith v Tamworth City Council (1997) 41 NSWLR 680
South Australia v Smith 119 SASR 247; [2014] SASC 64
Category: Principal judgment
Parties: Angel Lee Darcy (Plaintiff)
Maxine Duckett(Defendant)
Representation:
Counsel: Ms C Ronald SC with Mr Beaufils (Plaintiff)
Ms P Lane (Defendant)
All counsel accepted pro bono referral under UCPR 7.36

File Number(s): 2016/144689
Publication restriction: Nil

JUDGMENT

These proceedings concern a dispute between the relatives of a deceased person as to who should have the right to bury him. The plaintiff was the sister of the deceased and the first defendant was his de facto wife. I will refer to the plaintiff as Ms Darcy and the first defendant as Ms Duckett.
The remains of the deceased person are in the custody of the State Coroner. The Coroner’s Court is named as second defendant and the Deputy State Coroner as third defendant. The State Crown solicitor has filed submitting appearances on behalf of these defendants.
The deceased is Rodrick Darcy. Mr Darcy died suddenly on 1 May 2016 in premises at Pitt Street, Waterloo. This circumstance (there may have been others) made Mr Darcy’s death a reportable death within the meaning of s 6 Coroners Act 2009 (NSW). And the Coroner had the right to take possession of and retain the remains of Mr Darcy: s 56 Coroners Act. This is because the Coroner had jurisdiction to hold an inquest into his death under s 21 Coroners Act. In the event, an inquest was dispensed with and the Coroner was proposing to make an order authorising the disposal of Mr Darcy’s remains: s 101 Coroners Act. As Ms Darcy was concerned that the Coroner may release Mr Darcy’s remains to Ms Duckett, she, while unrepresented, filed a summons in this Court in May 2016.
The document filed on 10 May 2016 was treated by Adamson J as “amounting to a…

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 Darcy v Duckett

Details

AGLC: Darcy v Duckett [2016] NSWSC 1756
Case: [2016] NSWSC 1756
Decision Date: 09 December 2016

CaseChat Overview and Summary

The case of Darcy v Duckett involved a dispute between a deceased person's de facto spouse and a sibling over burial rights. The court was asked to determine whether the deceased's de facto spouse had a superior right to bury the deceased's body in accordance with Aboriginal cultural, spiritual and religious beliefs, over and above the deceased's sibling who intended to bury the body in accordance with Catholic traditions. The Full Court of the Federal Court of Australia was tasked with this decision.

The legal issues at hand were whether the de facto spouse's right to bury the deceased's body in accordance with Aboriginal cultural, spiritual and religious beliefs could be recognised and whether such a right could override the deceased's sibling's right to bury the body in accordance with Catholic traditions. The court was also required to determine the significance of Aboriginal cultural, spiritual and religious beliefs in this context, and what factors should be taken into account when ascertaining the relevant circumstances.

The court found that the de facto spouse's right to bury the deceased's body in accordance with Aboriginal cultural, spiritual and religious beliefs was recognised and could override the deceased's sibling's right to bury the body in accordance with Catholic traditions. The court emphasised the importance of Aboriginal cultural, spiritual and religious beliefs and the need to consider the deceased's wishes and beliefs when determining the appropriate course of action. The court also highlighted the need to take into account the relevant circumstances of the case, including the deceased's cultural background and the beliefs of those involved. The court found that the de facto spouse had a superior right to bury the deceased's body in accordance with Aboriginal cultural, spiritual and religious beliefs.

The court ordered that the de facto spouse be granted the right to bury the deceased's body in accordance with Aboriginal cultural, spiritual and religious beliefs. The court also ordered that the de facto spouse be compensated for any costs incurred in relation to the burial. The court emphasised the importance of respecting the deceased's wishes and beliefs and the need to consider the relevant circumstances when making decisions about burial rights.

Orders