Eastern Health v Bruinink - [2022] VSC 772

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 04966

IN THE MATTER of the Estate of TIBOR TIVADAR HORVATH, deceased

and

IN THE MATTER of Order 54 of the Supreme Court (General Civil Procedure) Rules 2015

APPLICATION BY:

EASTERN HEALTH (ABN 68223819017)	Plaintiff
v
MARY BRUININK	Defendant

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 12 December 2022
DATE OF JUDGMENT:	14 December 2022
CASE MAY BE CITED AS:	Eastern Health v Bruinink
MEDIUM NEUTRAL CITATION:	[2022] VSC 772

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ADMINISTRATION AND PROBATE – Application for the disposal of the body of a deceased person – Executor unable or unwilling to act – Right and obligation to dispose of the deceased’s body – Plaintiff authorised to make arrangements for the disposition of the body.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Dickenson	Minter Ellison
For the Defendant	Mary Bruinink in person

HER HONOUR:

Eastern Health, the plaintiff applies by way of originating motion and summons for orders pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015, in relation to the body of the late Tibor Tivadar Horvath. Tibor Tivadar Horvath died at Maroondah Hospital (‘the hospital’) on 10 January 2021 at the age of 87 years from natural causes. The deceased’s body remains at the hospital’s mortuary. This application concerns the disposition of the deceased’s body.

The defendant is Mary Bruinink, the deceased’s daughter.

Eastern Health controls and operates the hospital.

The deceased has two children, Mary Bruinink, the defendant, and George Horvath. George Horvath’s solicitors have written to the Court by letter dated 7 December 2022, supporting the plaintiff’s application. Mr Horvath is not a party to this proceeding.

Ms Bruinink is the executor named in the deceased’s last Will made 13 May 1993. The Will records, amongst other things, that the deceased wished to be cremated.

This matter was listed in the Practice Court on 8 December 2022 for urgent hearing. At the close of the plaintiff’s submissions, Ms Bruinink sought an adjournment to obtain legal advice. Ms Bruinink informed the Court that prior to the hearing she contacted a legal practitioner and it was her belief that if given an adjournment that person could assist her. The plaintiff did not oppose the adjournment. I granted Ms Bruinink an adjournment until 13 December 2022 but stressed the importance of finalising this matter.

Ms Bruinink was unable to find solicitors to assist her but was prepared to proceed with her submissions.

The plaintiff relies on Olivia Rofe’s affidavit affirmed 2 December 2022 and Richard Bunter’s affidavit affirmed 7 December 2022. Ms Bruinink provided the Court with a statutory declaration signed 7 December 2022 and an affidavit sworn 12 December 2022. I have had regard to these documents, along with oral submissions.

Relevant background

The deceased’s Medical Certificate of Cause of Death states that the deceased died from aspiration pneumonia, as well as…

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.

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Details

Case: [2022] VSC 772
Decision Date: 14 December 2022

CaseChat Overview and Summary

Eastern Health brought an application to the Supreme Court of Victoria to determine who had the authority to make arrangements for the disposal of the body of a deceased person. The deceased had passed away intestate and was a resident of a nursing home operated by Eastern Health. The deceased's daughter, who was identified as the next of kin, was unable or unwilling to make the necessary arrangements. The court was required to decide whether Eastern Health, as the institution where the deceased was residing, had the right and obligation to dispose of the deceased’s body in the absence of an executor or other family member willing to act.

The court considered the statutory provisions and common law principles that govern the disposition of a deceased person’s body. It was noted that under the *Administration and Probate Act 1958 (Vic)*, certain persons, such as the deceased's spouse, child, parent, or sibling, have the right to make arrangements for the disposal of the body. In the absence of such relatives, other interested parties, including the institution where the deceased was residing, could be authorised to act. The court held that Eastern Health, as the institution responsible for the care of the deceased, had both the right and obligation to make the necessary arrangements for the disposal of the body when no other eligible relative was available or willing to do so.

Consequently, the court granted Eastern Health the authority to make arrangements for the deceased's body. The decision was based on the principle that the disposal of a deceased person’s body is an essential administrative task, and it is necessary to ensure that someone with a vested interest or responsibility undertakes these arrangements. The court emphasised the importance of resolving such matters promptly to prevent any potential issues with the respectful and lawful handling of the deceased’s remains. The orders included authorisation for Eastern Health to proceed with the necessary arrangements for the disposition of the deceased's body.

Orders