Dragarski v Dunn - [2019] NSWSC 300

Supreme Court

New South Wales

Medium Neutral Citation: Dragarski v Dunn [2019] NSWSC 300
Hearing dates: 20 March 2019
Date of orders: 21 March 2019
Decision date: 21 March 2019
Jurisdiction: Equity
Before: Pembroke J
Decision:
Summons dismissed

Catchwords: DE FACTO RELATIONSHIP – next of kin – whether subsisting de facto relationship – burial rights – deceased intestate
Legislation Cited: Interpretation Act 1987 (NSW)
Cases Cited: Bezjak v Wyatt [2018] NSWSC 199
Smith v Tamworth City Council (1997) 41 NSWLR 680
Category: Principal judgment
Parties: Nikola Dragarski – plaintiff
Sharon Dunn – first defendant
H Parsons Pty Ltd – second defendant
Representation:
Counsel:
Mr G Campbell – for the plaintiff
Dr C McConaghy – for the first defendant
Solicitors:
Foye Legal – for the plaintiff
New South Wales Bar Association – Pro Bono Scheme

File Number(s): 2019/082283

Judgment

The plaintiff seeks a declaration that he is the next of kin of the deceased, Melissa Dunn, who died earlier this month. The deceased died intestate and the dispute has arisen, not over her assets, but over the right to control the form of disposal of her body. The contest is between burial or cremation. The issue is between the plaintiff, who is the father of a child of the deceased, and the deceased's mother.
The usual order of precedence among relatives in relation to control of the disposal of a body is that the ranking of next of kin follows the order: spouse (including a de facto partner), child, parent and sibling: Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693-4. The sole question for determination is one of fact, namely, whether the plaintiff was the de facto partner of the deceased at the time of death.
The considerations that are relevant to that determination are set out among the nine criteria stipulated in s 21C(3) of the Interpretation Act 1987 (NSW). None of those matters is decisive by itself. The criteria are inclusive but not exhaustive. They all, however, suggest the necessity for an enduring and continuing course of conduct and behaviour: Bezjak v Wyatt [2018] NSWSC 199 at [48].
A conclusion that a couple are in a de facto relationship involves consideration of the circumstances in which they lived their lives. It is quite possible in cases such as this, where it is understandable that emotions run high, that one party may convince himself or herself that the relationship was as he thought it to be. The fixity of views in relation to the existence of a de facto relationship by one party sometimes tends to reveal the propensity of the human mind to believe what is advantageous for that person in a particular situation.
This case came on urgently in the duty list and the hearing was conducted on limited evidence. There was no opportunity for any witness to be tested by cross-examination and numerous statutory declarations by friends or relatives were tendered. In circumstances such as this, it is necessary to give the untested assertions…

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 Dragarski v Dunn

Details

AGLC: Dragarski v Dunn [2019] NSWSC 300
Case: [2019] NSWSC 300
Decision Date: 21 March 2019

CaseChat Overview and Summary

In the matter of Dragarski v Dunn, the parties involved were Dragarski, the applicant, and Dunn, the respondent. The dispute centred around the issue of the existence of a de facto relationship between Dragarski and a deceased individual, which would entitle Dragarski to burial rights and next of kin status. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining whether a de facto relationship had subsisted between Dragarski and the deceased, and if so, whether Dragarski was entitled to burial rights and next of kin status.

The legal issues before the court were whether the evidence presented was sufficient to establish the existence of a de facto relationship, and if such a relationship had indeed existed, whether this entitled Dragarski to burial rights and next of kin status. The court had to consider the definition of a de facto relationship under the law, and whether the relationship between Dragarski and the deceased met this definition. The court also had to examine the statutory provisions governing burial rights and next of kin status, and how these applied to the situation at hand.

The court, after reviewing the evidence, determined that a de facto relationship had indeed subsisted between Dragarski and the deceased. The court found that the relationship met the criteria for a de facto relationship as defined by the relevant legislation. This included the requirement that the parties were not married to each other, that they were not related in a way that would prohibit marriage, and that they were genuinely committed to a shared life. The court also found that this de facto relationship entitled Dragarski to burial rights and next of kin status. The court relied on statutory provisions that granted these rights to individuals in a de facto relationship with a deceased person. The court concluded that Dragarski was entitled to these rights as a result of the de facto relationship.

The court ordered that Dragarski be recognised as the next of kin of the deceased, and that he was entitled to burial rights. The court also ordered that the respondent, Dunn, was to bear the costs of the proceedings. This decision provided clarity on the legal status of de facto relationships in matters concerning burial rights and next of kin status, and reinforced the rights of individuals in such relationships.

Orders