Garlett v Jones

[2008] WASC 292

GARLETT -v- JONES [2008] WASC 292

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 292
Case No:	CIV:2668/2008	Heard:	5 DECEMBER 2008
Coram:	HASLUCK J	Delivered:	4/12/08
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for restraining order refused
Category:	B
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Parties:	WENDELL GARLETT KATHLEEN PENNY PAULINE PRISCILLA BROPHO VANESSA WARMDEAN BELLA BROPHO PAULINE BROPHO HARVEY BROPHO BARRY PARFITT JADE JONES DEBORAH JONES MAREENA PURSLOWE AND ASSOCIATES
Catchwords:	Executors and administrators Rights, powers and duties Dispute between family members as to funeral arrangements Assertion that Aboriginal cultural traditions regarding burial should be observed Evidence that deceased did not live traditionally De facto relationship for lengthy period As to intestacy the person with the highest right to take out letters of administration will have the same privilege as the executor to arrange for burial of deceased's body De facto spouse at liberty to proceed with funeral arrangements Application for restraining order refused
Legislation:	Administration Act 1903 (WA), s 14, s 15, s 25
Case References:	Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94 Ugle v Bowra and O'Dea [2007] WASC 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GARLETT -v- JONES [2008] WASC 292 CORAM : HASLUCK J HEARD : 5 DECEMBER 2008 DELIVERED : 5 DECEMBER 2008 FILE NO/S : CIV 2668 of 2008 BETWEEN : WENDELL GARLETT

KATHLEEN PENNY
PAULINE PRISCILLA BROPHO
VANESSA WARMDEAN
BELLA BROPHO
PAULINE BROPHO
HARVEY BROPHO
BARRY PARFITT
Plaintiffs

AND

JADE JONES
DEBORAH JONES
First Defendants

MAREENA PURSLOWE AND ASSOCIATES
Second Defendant

(Page 2)

Catchwords:
Executors and administrators - Rights, powers and duties - Dispute between family members as to funeral arrangements - Assertion that Aboriginal cultural traditions regarding burial should be observed - Evidence that deceased did not live traditionally - De facto relationship for lengthy period - As to intestacy the person with the highest right to take out letters of administration will have the same privilege as the executor to arrange for burial of deceased's body - De facto spouse at liberty to proceed with funeral arrangements - Application for restraining order refused

Legislation:

Administration Act 1903 (WA), s 14, s 15, s 25

Result:

Application for restraining order refused

Category: B

Representation:

Counsel:

Plaintiffs : Mr G M G McIntyre SC & Mr A C McIntosh
First Defendants : In person
Second Defendant : No appearance

Solicitors:

Plaintiffs : Corser & Corser
First Defendants : In person
Second Defendant : No appearance

Case(s) referred to in judgment(s):

Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94
Ugle v Bowra and O'Dea [2007] WASC 82

(Page 3)

HASLUCK J:

Introduction

1 The plaintiffs in this matter seek the relief specified in the notice of originating motion dated 4 December 2008. The relief sought is that the first defendants and second defendant be restrained from burying the remains of the late Harvey Bropho, who died on 22 November 2008, unless the burial is effected within the grave of the late Peula Bropho, being a certain plot within the Roman Catholic section of the Guildford Cemetery, Maida Vale Road, Guildford.

2 The first plaintiff, Wendell Garlett, is the father of the deceased, Harvey Bropho, who is a Nyoongah man. The other plaintiffs are members of the Bropho family.

3 The first-named first defendant is the de facto wife of the deceased. For ease of reference, I will call her 'Jade'.

4 The second-named first defendant is described as the de facto mother-in-law of the deceased. I would understand from evidence given at the hearing that she is Jade's aunt, but essentially has acted as a mother to Jade for many years past. I will call her 'Deborah'.

5 The second defendant, Mareena Purslowe and Associates, are funeral service providers.

6 The plaintiffs were represented at the hearing by counsel. The first defendants appeared in person. There was no appearance for the second defendant.

The application

7 The plaintiffs' application concerns a funeral service for the deceased man which is to be conducted by the second defendant on behalf of Jade and Deborah at the Guildford Cemetery on Monday next unless the restraining order is obtained.

8 It emerges from the evidentiary materials that the parties have been unable to reach agreement as to the form of funeral arrangements.

9 The plaintiffs contend that the appropriate form of burial is that which I referred to a moment ago, namely, that the deceased be interred within the grave of the late Peula Bropho, because she is his mother.

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10 On the other hand, the first defendants say that the deceased should be interred at the Guildford cemetery but in a new grave pursuant to arrangements made by them.

11 The difference of opinion is evidenced by par 4 of the notice of originating motion where it is said succinctly that the plaintiffs and first defendants cannot agree on whether the deceased should be interred in a new grave at the Guildford Cemetery or in the grave of his late mother, Peula Bropho, at that cemetery.

12 The evidentiary materials before me comprise, on the plaintiffs' side, the affidavit of Tina Rose Jackson sworn 4 December 2008, the affidavit of Pauline Priscilla Bropho sworn 3 December 2008, the affidavit of Kathleen Penny sworn 3 December 2008 and the affidavit of Bella Bropho sworn 5 December 2008.

13 On the first defendants' side I have before me their written submissions, which I have dated 5 December 2008, so that they can be placed on the court file. They did not file any affidavits, but I received evidence at the hearing from both of the first defendants in relation to the matters in issue.

The evidentiary materials

14 The evidentiary materials establish that the deceased, Harvey Bropho, was a Nyoongah man and was aged 26 at the date of his recent death on 22 November 2008.

15 The late Peula Bropho is the deceased's mother. She is buried at the Guildford Cemetery in the plot mentioned a moment ago. It emerges from the affidavits that there is a Nyoongah custom and tradition to bring close family members together when possible. It is said also that Harvey Bropho made a statement to his sister Tina Jackson that he wished to observe the custom in the event of his death.

16 The affidavit of Tina Jackson includes a passage referring to these matters, and to what was said by her late brother about a month before his death:

When he said that to me it was because we were talking generally about our family. He was not speaking as if he expected to die soon but he was suffering from ill health and had been very sick in hospital on occasions in the past. I accepted his statement as being what my late brother wanted and what any Nyoongah person would wish to happen once they had died

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because it is our Nyoongah custom and tradition to bury close family members together when it is possible.

I hope my late brother can be buried in our late mother's grave because I share the belief that it is the best thing for my late brother and my late mother if he is buried with her because she was the mother who gave him life and so he should go back to her in her grave now that he has also died.

17 As to the circumstances of the deceased in the period leading up to his death, it is said by Pauline Bropho that the deceased was the first born of the late Peula Bropho and her husband Wendell Garlett (one of the plaintiffs in this action). At the time of his passing away the deceased had a de facto wife, Jade Jones, who is one of the first defendants in this action. The other first defendant, Deborah Jones, is Jade's auntie. Deborah had been like a mother to Jade for many years. The deceased and Jade had three young children.

18 I pause here to note that there is an acceptance in Pauline's affidavit that Jade was in a de facto relationship with the deceased for a good many years. Indeed, it was said to have been for a period of 15 years.

19 It emerged from the evidence given by the defendants at the hearing that over the last five years, Jade and the deceased had undoubtedly been living as man and wife in a de facto situation at Deborah's home.

20 It is therefore quite clear, and I so find, that Jade was the de facto wife of the deceased immediately prior to his death and held that status for at least five years, and possibly 15 years. She is the mother of the deceased's children.

21 The affidavit of Pauline Bropho went on to say at par 24:

I am informed by Bella Bropho who is the older sister of Peula, the deceased's late mother, and on that basis believe that on 26 November 2008 the Metropolitan Cemeteries Board issued to Bella a grant of right of burial number G0012394 in respect of plot number 0520 in Guildford Cemetery for the intended purpose of that grave being opened and used to inter the remains of the deceased.

She went on to say at par 25:

On the same basis I believe that plot number 0520 in Guildford Cemetery is the grave of the late Peula Bropho the mother of the deceased.

22 The affidavits before me refer also to a meeting that was said to have occurred in the aftermath of the deceased's death.

(Page 6)

23 It was perceived on the plaintiffs' side that the defendants were agreeable to the idea that the deceased Harvey Bropho should be buried with his mother at the Guildford Cemetery in the manner proposed by the plaintiffs. It is said that the defendants subsequently resiled from this agreement due to a disagreement over certain financial and other matters.

24 It is said on the plaintiffs' side that there is no ill feeling between the parties, notwithstanding the difference of opinion that has brought the parties to court.

25 Before leaving the evidence given on the plaintiffs' side I note that in the affidavit of Kathleen Penny there is a fuller description of the cultural traditions of the Nyoongah people. Her account can be regarded as having a particular weight because she is 73 years of age and it emerges from what she has said that she is familiar with these traditions.

26 However, I must also take account of evidence given before me on oath by both of the first defendants. There is no need to traverse their evidence in its entirety but certain matters of significance can be referred to in summary form.

27 It emerged from the evidence that the de facto relationship I described a moment ago was indeed a reality. The parties to that relationship were living with Deborah for a period of at least five years preceding the death of the deceased.

28 Deborah said that no agreement was reached in the aftermath of the deceased's death as to what funeral arrangements should be made. She said that there was an exchange in passing at the funeral service provider's premises which did not amount to a concluded agreement. An opportunity was offered for a fuller discussion to take place subsequently but that did not give rise to an agreement in any real sense. Further, Jade was subject to a sense of duress and apprehension that coloured anything which might have been said for or on behalf of the first defendants. There is therefore a contested issue as to that aspect of the matter.

29 It was said also by each of the first defendants in the course of their evidence that neither the deceased nor his de facto wife (Jade) had been leading a traditional lifestyle. It was said that undue weight should not be given to the matters of Nyoongar cultural traditions in the manner contended for by the plaintiffs.

30 The first defendants outlined the funeral arrangements that are to take place if no restraining order is made. I pause here to say that I am

(Page 7)

satisfied that the proposed arrangements indicate that a funeral service and burial will be carried out with what seems to be a proper level of decorum and decency.

Legal principles

31 I must now come to the legal principles bearing upon a matter of this kind. They were conveniently summarised in the recently decided case of Joseph v Dunn [2007] WASC 238; (2007) 35 WAR 94 by EM Heenan J.

32 In that case, his Honour said [18] that there are five propositions that can be taken as representing the law on who has the privilege of arranging the burial of a deceased's body:

1. 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.

2. 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.

3. When no executor is named, the person with the highest right to take out letters of administration will have the same privilege as the executor in proposition 1.

4. The right of the surviving spouse or de facto spouse will be preferred to the right of children.

5. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

33 EM Heenan J noted also in Joseph v Dunn that the correct and preferred approach to an application for a restraining order of this kind was to decide it on the merits rather than by relying on the tests for determining whether or not a court should grant an interlocutory injunction as in effect the application involved a grant of final relief. I intend to proceed accordingly in the present case.

34 I note also that in another recently decided case, being that of McKechnie J in Ugle v Bowra and O'Dea [2007] WASC 82, it was held that an application of this kind is usually determined on the affidavit evidence because time does not permit a more leisurely examination of the evidence such as may be achieved by a trial.

(Page 8)

35 His Honour observed at par 16 in that case that the views of the deceased should be given weight but they are not to be regarded as decisive.

36 In Ugle's case the contest was between a son of the deceased and a de facto wife. The right to bury was ultimately determined to be something that lay within the province of the de facto wife and orders were made accordingly.

37 In the present case it is apparent from the evidentiary materials and submissions made to me that there is no will of the deceased in which an executor is named. This is therefore essentially the case of an intestacy.

38 It emerges from my review of the principles that the third proposition of EM Heenan J comes in to play, namely, when no executor is named the person with the highest right to take out letters of administration will have the same privilege as the executor in proposition 1. I must therefore determine who can be said to have the highest right to administration in this case.

The right to administration

39 The starting point must obviously be s 25 of the Administration Act 1903 (WA). By s 25 of the Act, the court may grant administration of the estate of a person dying intestate to the following persons being of the full age of 18 years, that is to say, one or more of the persons entitled in distribution to the estate of the intestate.

40 The persons entitled upon an intestacy are described in s 14 and s 15 of the Act. Broadly described, those provisions allow for the distribution upon intestacy to a husband or wife (including a de facto spouse), or issue, or parents of the deceased, according to the circumstances defined with exactitude in s 14 and s 15.

41 The position is summarised in Wills, Probate and Administration Service, Western Australia, at par 9.1. For example, under item 2(a) where a testator dies leaving a husband or wife and issue where the net value of the property does not exceed the sum of $50,000 the surviving husband or wife will be entitled to the whole of the intestate property.

42 Under s 2(b) where the net value of the intestate property exceeds the sum of $50,000 the surviving spouse becomes entitled to the sum of $50,000 absolutely together with one third of the residue and the children get two thirds of the residue.

(Page 9)

43 Other situations are then described. However, it is important to understand that as a consequence of recent amendments to the Act, s 15 has now been introduced concerning de facto relationships. Thus, if the intestate dies leaving a de facto partner but no husband or wife, then where the de facto partner and the intestate lived as de facto partners for a period of at least two years immediately before the death of the intestate, the de facto partner shall be entitled in accordance with s 14 to the intestate property to which a husband or wife of the intestate would have been entitled had the intestate died leaving a husband or wife.

44 It emerges, then, that in the case of a comparatively small estate, which I take this to be, having regard to the evidence given to me, the de facto wife (Jade) will be the party primarily entitled to the estate upon an intestacy. I have made a finding in that regard that there has been a de facto relationship in excess of two years.

45 An entitlement to distribution upon intestacy does not necessarily establish the entitlement to be granted letters of administration. However, if one looks at some of the leading authorities, such as Tristram and Cootes' Probate Practice (29^th ed) at par 6.81 and following, the indications are that in circumstances of the kind I have described, the party with the primary entitlement to distribution can be regarded as the party likely to obtain letters of administration.

46 It emerges, then, that Jade, as the de facto wife of the deceased, and one who has been of that status for in excess of two years, is the person who has the highest right to take out letters of administration. The third proposition of EM Heenan J therefore suggests that it is Jade who is essentially in the same position as an executor; that is, like an executor Jade is the person who is entitled to determine what the burial arrangements should be and what is to be done with the body of the deceased.

47 Counsel for the plaintiffs seemed to accept that the rules mentioned earlier lead to at least a prima facie conclusion of the kind I have just described. However, counsel sought to persuade me that this should be regarded as only a prima facie position. If the particular circumstances of the case weigh heavily against the person entitled to letters of administration being allowed to make the arrangements then it would be open to the court to make some other determination.

48 It was pursuant to this line of argument that counsel endeavoured to persuade me that the presence of the matters referred to in the affidavits

(Page 10)

he relied upon outweighed what he sought to characterise as the prima facie position. The thrust of his argument was that the presence of Nyoongah cultural traditions, which support the notion that a deceased son should be buried with his mother, was a factor to which considerable weight should be given.

49 Reference was also made to the deceased's expression of his wishes which, on the plaintiffs' affidavits, were said to show that the deceased wished to be buried with his mother. Emphasis was also given to the evidence that the funeral arrangements proposed by the plaintiffs would give rise to a decent and decorous burial.

50 It was put to me by the defendants, having regard to the matters relied upon by them which I have described previously, that the matters relied upon by the plaintiffs could not be taken to outweigh the basic rules I mentioned earlier. Some emphasis was put upon the fact that there was no prior agreement between the parties. There appears to have simply been a disagreement or possibly some misunderstanding as to the effect of certain conversational exchanges.

51 It was said also that it is Jade, namely the de facto wife of the deceased, who was living with the deceased in a matrimonial relationship for many years. She has been close to him and is the mother of his children. The children of the deceased have an interest in the matter also. Reference was made to a controversy on the evidence as to the expression of the deceased's wishes.

Conclusion

52 I must now draw all of this together. I have concluded, having regard to the previously decided cases, especially the reasoning of EM Heenan J in Joseph v Dunn, that it is indeed the deceased's de facto wife, Jade Jones, who is the person who has the highest right to take out letters of administration. That means essentially that it is Jade Jones, the first named first defendant, who has the right to determine what is to be done with the body and to determine what are to be the burial arrangements.

53 In my view, on the facts of this case it is not necessary for me to determine whether the application of the rule in question should be regarded as giving rise to a prima facie or provisional position, because I am not persuaded that the matters relied upon by the plaintiffs in the circumstances of this case are sufficient to outweigh or displace the

(Page 11)

crucial proposition, even if it be regarded as having only a prima facie or provisional status.

54 There was a degree of controversy as to what might or might not have been agreed by the parties, but in the end I am minded to accept the view of the matter put to me by Deborah Jones as to what the exchanges consisted of. There was no concluded agreement.

55 I recognise the importance of the Nyoongah cultural traditions and it may well be that in the circumstances of another case they might prove to be decisive. However, in the circumstance of this case, because there is a contested issue as to that point, it seems to me that I must give primary force to the principle I enunciated earlier, namely, it is Jade as the person notionally entitled to administration upon an intestacy that has the right to decide.

56 It follows from all of that that I am not persuaded that a restraining order of the kind applied for should be made.

57 I must briefly address one final point. It was put to me, in effect, that perhaps the court could or should give some directions that might result in some acceptable compromise being worked out between the parties. However it seems to me that that is a matter which could only be resolved by mediation.

58 If the parties have been unable to reach agreement, and are forced to approach the court for a ruling, it is the duty of the court to deal with the issue that has been placed before it, as I have done. Further, and in any event, I am of the view that it would be inappropriate in circumstances of this complexity for the court in some way to arbitrate or to determine what particular arrangement should be made. Thus, I will put that aspect of the matter to one side.