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…

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 Garlett v Jones

Details

AGLC: Garlett v Jones [2008] WASC 292
Case: [2008] WASC 292
Decision Date: 5 DECEMBER 2008

CaseChat Overview and Summary

In the case of Garlett v Jones, the parties involved were Garlett, who sought to assert the deceased's Aboriginal cultural traditions in relation to burial, and Jones, the deceased's de facto partner, who had been granted letters of administration. The dispute centred on the funeral arrangements for the deceased, with Garlett contending that Aboriginal cultural traditions should be observed, while Jones, who had been granted letters of administration, wanted to proceed with funeral arrangements. The court was required to determine whether the deceased's cultural traditions should be observed in the context of her burial, considering that she had not lived traditionally for many years and had been in a de facto relationship for an extended period.

The legal issues before the court were whether the deceased's cultural traditions regarding burial should be considered, given that she did not live traditionally, and whether the person with the highest right to take out letters of administration should have the same privilege as an executor to arrange for the burial of the deceased's body. The court had to balance the rights of the de facto spouse, who had been granted letters of administration, with the asserted cultural traditions of the deceased. The court's reasoning was that the deceased had not lived traditionally for many years and had been in a de facto relationship, thus giving Jones the right to proceed with funeral arrangements. The court found that the de facto spouse, having the highest right to take out letters of administration, should have the same privilege as an executor to arrange for the burial of the deceased's body.

The court concluded that the de facto spouse, having been granted letters of administration, was at liberty to proceed with funeral arrangements. The application for a restraining order was refused, as the court found that the de facto spouse had the right to arrange the funeral. The final orders of the court were that the application for a restraining order was refused, and the de facto spouse was entitled to proceed with funeral arrangements.

Orders

Orders of the court

Application for restraining order refused

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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