JOSEPH -v- DUNN [2007] WASC 238

Reported Decision:	(2007) 35 WAR 94
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 238
Case No:	CIV:1949/2007	Heard:	19 & 20 SEPTEMBER 2007
Coram:	EM HEENAN J	Delivered:	20/09/07
No of pages:	9	Judgment Part:	1 of 1
Result:	Injunction refused Father to have control of body to proceed with imminent funeral
Category:	A
PDF Version

Parties:	OLIVE PATRICIA JOSEPH NOEL ROBERT DUNN
Catchwords:	Application for injunction to restrain funeral Executors and administrators Unexplained cause of sudden death of 8 year old boy Burial Control of body of deceased Right to arrange funeral Dispute between parents of deceased boy Significance of decision of coroner to release body to father Deceased living with father in years before death
Legislation:	Coroners Act 1996 (WA)
Case References:	Burrows v Cramley [2002] WASC 47 Calma v Sesar (1992) 106 FLR 446 Re Boothman SM (Unreported, WASC, Library No 990031, 27 January 1999) Smith v Tamworth City Council (1997) 41 NSWLR 680

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JOSEPH -v- DUNN [2007] WASC 238 CORAM : EM HEENAN J HEARD : 19 & 20 SEPTEMBER 2007 DELIVERED : 20 SEPTEMBER 2007 FILE NO/S : CIV 1949 of 2007 BETWEEN : OLIVE PATRICIA JOSEPH

Plaintiff

AND

NOEL ROBERT DUNN

Defendant

Catchwords:

Application for injunction to restrain funeral - Executors and administrators - Unexplained cause of sudden death of 8 year old boy - Burial - Control of body of deceased - Right to arrange funeral - Dispute between parents of deceased boy - Significance of decision of coroner to release body to father - Deceased living with father in years before death

Legislation:

Coroners Act 1996 (WA)

Result:

Injunction refused

Father to have control of body to proceed with imminent funeral

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Ms M Van Der Kwast

(ex parte on 19 September 2007)

Defendant : Mr J A Sutherland (on 20 September 2007)

Solicitors:

Plaintiff : Dwyer Durack

Defendant : McDonald & Sutherland

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

Burrows v Cramley [2002] WASC 47
Calma v Sesar (1992) 106 FLR 446
Re Boothman SM (Unreported, WASC, Library No 990031, 27 January 1999)
Smith v Tamworth City Council (1997) 41 NSWLR 680

(Page 3)

1 EM HEENAN J: I have been sitting in unusual circumstances to hear the submissions of the parties on an originating summons brought by the plaintiff, Olive Patricia Joseph. The plaintiff, who is the mother of the deceased, seeks an injunction to restrain the defendant, Noel Robert Dunn, the father of the deceased, from proceeding with the funeral arrangements for their son's burial at Newman. The funeral is, as things currently stand, to take place tomorrow.

2 The tragic circumstances of this case are only too apparent to everyone. I have the most profound respect and sympathy for both the plaintiff and the defendant who face the tragic situation of the sudden and unexplained death of their young son. The circumstances…

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 Joseph v Dunn

Details

AGLC: Joseph v Dunn [2007] WASC 238
Case: [2007] WASC 238
Decision Date: 20 SEPTEMBER 2007

CaseChat Overview and Summary

The application was brought by the father of an eight-year-old boy who died suddenly and unexpectedly. The mother of the child sought to prevent the funeral from going ahead, which had been organised by the father. The court was required to determine the right to control the body of the deceased and to arrange his funeral. The dispute arose because the deceased had been living with his father in the years preceding his death. The coroner had decided to release the body to the father for the purposes of the funeral. The court had to decide the legal issues concerning the right to arrange the funeral of a child where the parents are in dispute as to the appropriate course of action. The court considered the coroner's decision to release the body to the father and the circumstances of the deceased's living arrangements prior to his death. The court held that the father had the right to arrange the funeral of the deceased child. The court found that the decision of the coroner to release the body to the father was significant and that the deceased had been living with his father in the years before his death. The court held that these factors supported the father's right to control the body of the deceased and to proceed with the imminent funeral. The court refused the mother's application for an injunction to restrain the funeral. The court ordered that the father was to have control of the body and was permitted to proceed with the funeral.

Orders

Orders of the court

Injunction refused

Father to have control of body to proceed with imminent funeral

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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