Doherty v Doherty

Case [2006] QSC 257


SUPREME COURT OF QUEENSLAND

CITATION:

Doherty v Doherty & Anor [2006] QSC 257

PARTIES:

MAUDE ASTRID DOHERTY
(First Applicant)
GINA DOHERTY
(
Second Applicant)
PAULA DOHERTY
(Third Applicant)
v
CONNIE DOHERTY
(
First Respondent)
CAIRNS CREMATORIUM PTY LTD
ABN 86 103 063 261
(Second Respondent)

FILE NO/S:

223 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

16 August 2006

DELIVERED AT:

Cairns

HEARING DATE:

15 June 2006

JUDGE:

Jones J

ORDER:

1. I declare that the first respondent, Connie Doherty, is entitled to possession of the whole of the ashes remains of Robert Doherty deceased as trustee for the eventual disposing of the ashes by burial in the deceased’s tribal homeland.
2. I direct the first respondent within 12 months from today to give further consideration to the likely timing of such burial and to advise interested family members of those considerations.
3. I give to all parties liberty to apply upon giving five business days notice to each other party.
4. I reserve the question of costs to allow the parties to make written submissions on this question within 14 days from the date hereof.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – RIGHTS, POWERS AND DUTIES – OTHER CASES –– deceased of Maori background – members of deceased’s family seek possession of a portion of deceased’s ashes to be returned to New Zealand for cultural reasons - deceased’s wife seeks the exclusive right to possession of the ashes - deceased’s wife entitled to Letters of Administration – whether ashes should be divided

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – MISCELLANEOUS OTHER POWERS, DUTIES AND LIABILITIES – where first respondent is the deceased’s wife entitled to Letters of Administration – whether deceased’s wife holds the ashes on trust for interested beneficiaries – where interested beneficiaries seek a portion of the deceased’s ashes – whether deceased’s wife must consider the wishes of interested beneficiaries

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – JURISDICTION – where application requires a determination of a person’s rights as to possession of the ashes of a deceased – where applicants are close family members with standing to make the application - whether Court has power to resolve dispute concerning the manner and place of disposition of cremated remains

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Calma v Sesar & Ors (1992) 106 FLR 446
Dodd v Jones [1999] SASC 458
Doodeward v Spence (1908) 6 CLR 406
Dow v Hoskins [2003] VSC 206
Jones v Dodd (1999) 73 SASR 328
Leeburn v Derndorfer [2004] VSC 172
Meier v Bell Unreported, Supreme Court of Victoria, 4518/97, Ashley J, 3 March 1997
Re Denley’s Trust Deed [1969] 1 Ch 373
Robinson v Pinegrove Memorial Park, Unreported, New South Wales Equity Division, 1956/1986, Waddell CJ, 5 June 1986
Smith v Tamworth City Council (1997) 41 NSWLR 680

COUNSEL:

A Philp SC with J Trevino for the applicants

SOLICITORS:

MacDonnells for the applicants
The Law…

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Details
AGLC
Doherty v Doherty [2006] QSC 257
Case
[2006] QSC 257
Decision Date

CaseChat Overview and Summary

The matter in Doherty v Doherty concerned the dispute over the possession of ashes belonging to Robert Doherty, who had passed away and had Maori cultural ties. The deceased’s wife, Connie Doherty, who was entitled to Letters of Administration, sought exclusive possession of the ashes. However, other family members wanted a portion of the ashes to be returned to New Zealand for cultural reasons. This case was heard in the Supreme Court of Queensland.

The primary legal issue revolved around the deceased's wife's entitlement to Letters of Administration and whether she held the ashes on trust for the interested beneficiaries. The court had to determine whether the deceased's wife was required to consider the wishes of the interested beneficiaries and whether the court had the jurisdiction to decide on the disposition of the cremated remains.

The court found that Connie Doherty, as the wife and holder of Letters of Administration, was entitled to possession of the ashes as a trustee for the eventual disposal of the ashes by burial in the deceased's tribal homeland. The court directed Connie to reconsider the timing of the burial and communicate her considerations to the interested family members within 12 months. The court also granted all parties the liberty to apply for further relief upon providing notice to each other party. The question of costs was reserved for later determination after the parties submitted their written submissions.

The court's orders included declaring Connie Doherty's entitlement to possession of the ashes, directing her to reconsider the burial timing, and allowing all parties to apply for further relief upon notice. The court reserved the question of costs for later determination based on written submissions.

Orders

Orders of the court

1. I declare that the first respondent, Connie Doherty, is entitled to possession of the whole of the ashes remains of Robert Doherty deceased as trustee for the eventual disposing of the ashes by burial in the deceased’s tribal homeland.

2. I direct the first respondent within 12 months from today to give further consideration to the likely timing of such burial and to advise interested family members of those considerations.

3. I give to all parties liberty to apply upon giving five business days notice to each other party.

4. I reserve the question of costs to allow the parties to make written submissions on this question within 14 days from the date hereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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