Kollin v Metropolitan Memorial Parks Land Manager

[2025] NSWSC 565

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kollin v Metropolitan Memorial Parks Land Manager [2025] NSWSC 565

Hearing dates:

5 May 2025

Date of orders:

6 May 2025

Decision date:

02 June 2025

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Summons Dismissed. Costs Reserved.

Catchwords:

HEALTH — Burial and cremation — Burial – plaintiffs include the named executor of the estate of a deceased person, who was a member of the Jewish faith – the deceased survived her parents, who were Holocaust survivors – the deceased’s parents are buried in a part of the cemetery (Section 18E) reserved for Holocaust survivors and Orthodox members of the Jewish faith who observe the Sabbath – the first defendant is the cemetery operator responsible for managing this cemetery on Crown land – the function of the second defendant is to care for the burial needs of the Sydney Jewish community according to Jewish law – the deceased was not proven to be an observer of the Sabbath – the plaintiffs applied for the transfer of an existing interment right to the estate of the deceased enable the deceased to be buried with her parents in Section 18E – after consulting the second defendant, the first defendant declined to allow the transfer or the burial applied for – whether the plaintiffs can require the first defendant to issue an order for interment under Cemeteries and Crematoria Act2013, s 65 to allow the deceased to be buried in section 18E – construction of the Cemeteries and Crematoria Act ss 46 and 58.

Legislation Cited:

Cemeteries and Crematoria Act2013

Supreme Court Act 1970, s 69

Cases Cited:

Chipizubov v Elias [2025] NSWSC 326

Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763

Vosnakis v Arfaras [2015] NSWSC 625

Category:

Principal judgment

Parties:

First Plaintiff: Robert Thomas Kollin as the Executor of the Estate of the late Debby Karen Kollin

Second Plaintiff: Victor Berk

First Defendant: Metropolitan Memorial Parks Land Manager

Second Defendant: Sydney Chevra Kadisha

Representation:

Counsel:

Plaintiffs: D O’Connor

First Defendant: J Jaffray

Second Defendant: D Baran

Solicitors:
Plaintiffs: Origo Law

First Defendant: McCullough Robertson Lawyers

Second Defendant: Y Bloom Legal

File Number(s):

2025/168996

Publication restriction:

Nil

JUDGMENT

1. Andrew and Anna Berk survived the Holocaust. They died in the 1990s and are now buried in in the Rookwood Necropolis in Section 18E of Zone G, an area reserved and consecrated for the burial of people of the Jewish faith. Their daughter, Debby Karen Kollin, died on 30 April 2025.

2. The plaintiffs who represent the family of Debby Kollin (“the deceased”) want her to be buried with her parents. The first defendant, the Metropolitan Memorial Parks Land Manager (“the Land Manager”), which administers the Rookwood Necropolis under the Cemeteries and Crematoria Act 2013 (“the CCA”) has declined to allow her to be buried in Section 18E with them but submits to the order of the Court.

3. The Land Manager has consulted with the second defendant, the Sydney Chevra Kadisha (“the SCK”), an organisation founded to care for the burial needs of the Sydney Jewish community according to Jewish law. SCK has informed the Land Manager that burying the deceased in Section 18E, which is reserved only for Holocaust survivors and observant members of the Jewish faith, would be contrary to Jewish law. SCK says that it has not been shown evidence to establish the deceased was an observant member of Jewish faith and therefore she cannot be buried in Section 18E conformably with Jewish law.

4. The deceased’s husband and the executor of her estate, Mr Robert Kollin, the first plaintiff and her brother Professor Victor Berk, commenced these proceedings against the Land Manager, to enforce a right of interment in a burial site within Section 18E, which they acquired in 2003 from a predecessor of the Land Manager and is enforceable against the Land Manager under the CCA.

5. A complicating factor is that the subject right of interment was acquired in 2004 not by the deceased but by her brother Victor for his then wife, Susie Berk, next to him and to his parents. The Court understands that Victor and Susie Berk are no longer married and that they both now want the right of interment to be transferred to the deceased. But before the deceased can be buried with her parents, the Land Manager must enable the transfer of the right of interment from Susie Berk to the estate of the deceased.

6. The matter came before the Court on an urgent basis in the Equity Duty list by Summons filed on the morning of Friday, 2 May 2025. The plaintiffs seek orders against the Land Manager for the specific performance of the transfer of the burial site known as allotment 561A in Zone 9 of Section 18E of Rookwood Necropolis from Victor Berk to her estate, so she can be buried in Lot 561A. The Summons also seeks an order that the Land Manager issue a Certificate under CCA s 65 confirming the right of her estate to have her buried in Lot 561A and an order under CCA s 67 for her interment.

7. The Court required the Summons to be returnable the same afternoon when the Land Manager appeared understandably with minimal instructions given the time constraints. Directions for the filing of evidence were made, and the proceedings were adjourned for hearing for a very short period to Monday, 5 May 2025 to take account of Jewish practice that burial should take place as soon as possible after a death. SCK appeared on Monday May 5 and applied to be joined as a defendant to the Summons

8. The Land Manager’s submissions indicated that it would submit to the order of the Court, once the Court had heard from SCK and had considered the proper application of the CCA in the situation presented. The evidence was that only SCK conducted burials in the Jewish faith area of the Rookwood Necropolis. Given the Land Manager was submitting to the Court’s orders and a burial could not take place without the practical operation of SCK, the Court decided to join SCK as the second defendant.

9. This is not the first time the present dispute has come before the Court. Previous applications were made in separate proceedings, before the death of Debby Kollin. These other proceedings need not be discussed in any detail here. One proceeding came before Rothman J but appeared to be inadequately constituted and the plaintiff did not proceed. Another proceeding came before Kunc J prior to Debby Kollin’s death on 30 April 2025 but were dismissed as premature.

10. The plaintiffs have been assisted in commencing these proceedings by Mr Yankel Koncepolski who holds a power of attorney from Robert Kollin to assist him in bringing action on behalf of the deceased’s estate. There is no challenge to his authority under that power of attorney. Mr Yankel Koncepolski’s affidavit sworn on 2 May 2025 was read in the plaintiffs’ case together with his supplementary affidavit of 5 May 2025. The plaintiffs also read an affidavit of Rabbi Menachem Mendel Kaminetzky of 4 May 2025.

11. The first defendant adduced evidence of Georgina Mason of 5 May 2025, who is the General Counsel and Executive Director – Governance of the first defendant. And the second defendant adduced evidence from its president, Dr Mendel Monk sworn on 4 May 2025.

12. The hearing on 5 May 2025 commenced at 12 noon to permit the parties to prepare their evidence and submissions. By the time submissions were heard on all sides it was mid-afternoon and there was insufficient time to give judgment to allow the deceased’s burial the same day. The Court reserved judgment overnight and gave an outline of these reasons orally, indicating that fuller reasons would be published later. These are those reasons.

13. Mr D. O’Connor of counsel appeared for the plaintiffs instructed by Origo Law. Ms J Jaffray of counsel appeared for the Land Manager instructed by McCullough Robertson Lawyers. And Mr D Baran of counsel appeared for SCK instructed by Y Bloom Legal.

The Deceased, Her Family and Their Rights of Interment at Rookwood Necropolis

14. Few of the facts in this matter, except for those as to religious and cultural practice are in dispute. The undisputed facts may be shortly stated at the outset.

15. Andrew and Anna Berk were both interred in Zone G of Rookwood Necropolis Anna first on 4 April 1995 and Andrew, soon afterwards on 28 November 1995. They were buried next to one another in Lots 560 and 561 in Section 18E. The burial customs applicable in this section of the Rookwood Necropolis will be discussed later in these reasons with the more contentious facts. But it is not contested within Zone G there are several sub zones including Section 18, and Section 18A and Section 18E. Section 18 is an area where non–Orthodox Jews are buried.

16. In 2004, before the passing of the CCA in 2013, the rights of interment at Rookwood Necropolis were issued and administered by religious organisations representing the religious denominations with reserved areas for members of their faith at the cemetery. These organisations had some authority to decide about burial practices in the sections of the cemetery reserved for the burial of persons of their faith.

17. In September 2004, rights of interment in Zone G of the Rookwood Necropolis were issued by the Jewish Cemetery Trust Necropolis (“the JCT”) which had offices in Oxford Street Bondi Junction. JCT also appeared to be the then custodian of the records for Zone G. JCT’s records which are available to SCK, indicated that in September 2004 burial sites (or allotments) 561 A, B and C, which were adjacent to 560 and 561, were vacant.

18. On 16 November 2004, JCT issued an interment right for plot 561A in Section 18E which was sold to Victor Berk, with Susie Berk, his wife, being nominated as the person with the right for Interment in that allotment. On the same date, the Interment right for allotment 561B in Section 18E was sold to Susie Berk, and Victor Berk was nominated as the person with the right for interment in that allotment. The first of these allotments, 561A is the allotment in issue in these proceedings.

19. On 16 November 2004, a certificate securing an exclusive right of burial in respect of each of those two lots was issued by the JCT which then had control, under the then applicable legislation, over allotments 561A and 561B. That certificate indicated that in consideration the amount of $1650 that the trustees of JCT granted an “exclusive right burial in” the identified allotments in Zone G and Section 18E. A certificate is in evidence for allotment 561B, but it is not an issue that certificates were issued for both allotments, because a tax invoice for $3000 plus GST was issued at the same time and later documents confirm the issue of certificates for both allotments. Sometime between 2004 and 2016 Victor Berk transferred the right of interment in respect of allotment 561A to Susie Berk. Whether that was before or after the passing of the CCA is unclear.

20. In 2012, the JCT amalgamated with other trustee bodies at the Rookwood Necropolis, the land was converted Crown land, which is currently managed by the Land Manager. The legislative history of those changes is fully recounted in Parker’s J’s decision in Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763 (“Rookwood General Cemeteries”).

21. By July 2016, after the passing of the CCA, the records of the Land Manager indicated that Susie Berk was recorded as the holder of the interment right for allotment 561A and that an Interment Right Certificate had been issued in her name as the holder of the interment right for allotment 561A. CCA, s 65 creates a statutory presumption such a certificate is correct unless the contrary is proven. After identifying Susie Berk as “the holder of the perpetual interment right” in relation to allotment 561A, the July 2016 certificate states that is issued subject to the CCA and includes the following terms the which reflect CCA s 60:

“The interment right cannot be traded or sold. Rookwood General Cemeteries Reserve Trust may refuse to grant, transfer or renew an interment right if in the Rookwood General Cemeteries Reserve Trust opinion, the grant or transfer would tend to create a monopoly or encourage dealings in interment rights. An application for the transfer or renewal of an interment right must be in the form approved by the Rookwood General Cemeteries Reserve Trust and accompanied by the appropriate documents and applicable fees from time to time.”

22. The current cemetery register, maintained by the Land Manager, the first defendant, records that Susie Berk is the current holder of the interment right for allotment 561A. Some evidence suggests that there may have been an application for the transfer of the ownership, not just the right of interment in respect of that allotment, to Susie Berk in July 2019. But the evidence does not record that such an application was ever processed and given the contents of the July 2016 certificate, it is reasonably clear that Susie Berk is already the holder of a perpetual interment right in respect of allotment 561A and a further application for transfer was not necessary.

23. After the deceased's death, the plaintiffs applied for her to be buried in allotment 561A. But before the deceased could be buried in allotment 561A the plaintiffs needed to apply to a transfer of the allotment from Susie Berk to the estate of the deceased. Susie Berk consented to this course. There is no evidence that Susie Berk, or Victor Berk sought any valuable consideration for the transfer. On the contrary it seems that it was a generous gift within the family to honour the deceased and her memory and to facilitate her wish to be buried in her parents.

24. The application for transfer of allotment 561A in Section 18E of Zone G is dated 23 March 2025, and was submitted by Victor Berk to the Land Manager in anticipation of the deceased’s then imminent death. The proposed transferee was nominated as Debby Kollin. It is not disputed that it was received but it has not been processed. The application to transfer was accompanied by the payment of a statutory administration fee of $365, a sum ordinarily levied by the Land Manager to cover the costs of considering and approving such applications for transfer. The statutory basis for the Land Manager’s role in such transfers is discussed below.

25. The Lands Manager has not yet decided about the transfer and has consulted with the SCK about whether the deceased can be buried decision in Section 18E. The current situation therefore is that allotment 561A is still held by the first plaintiff, Victor Berk, and confers the right burial at that site of Susie Berk.

26. The Land Manager’s consultations with SCK about its views on the question of burial of the deceased at that site have led to SCK taking a position that is generally consistent with a Memorandum of Understanding made between them to which these reasons will shortly come.

27. It is now appropriate briefly to advert to the relevant structure of the legislation – the CCA passed in 2013 – which governs the grant and transfer of rights of interment at cemeteries.

The Cemeteries and Crematoria Act 2013

28. I am grateful to the industry of counsel in the short period of time that has been available for the preparation of this case for reference to the applicable parts of the CCA and to the decisions of Robb J in Vosnakis v Arfaras [2015] NSWSC 625 (“Vosnakis”), Parker J in Rookwood General Cemeteries, and most recently Meek J in Chipizubov v Elias [2025] NSWSC 326. These decisions consider the history and purpose of the CCA and many features of its operation, but they do not deal with the precise issue presented by this case.

29. As the objects of the CCA make clear, it was passed to better order the conduct of cemeteries and crematoria in this State, compared to the patchwork of practices and arrangements that had preceded it.

30. The CCA recognised for the first time in legislation in this State (as the second reading speech pointed out at the time) the special objects set out in s 3(a) and (b). Those two objects and other relevant parts of s 3 are also set out below.

“The objects of this Act are as follows

(a) to recognise the right of all individuals to a dignified interment and treatment of their remains with dignity and respect,

(b) to ensure that the interment practices and beliefs of all religious and cultural groups are respected so that none is disadvantaged and adequate and proper provision is made for all,

…

(d) to provide for the operation of a consistent and coherent regime for the governance and regulation of cemeteries and crematoria,

(e) to ensure that the operators of cemeteries and crematoria demonstrate satisfactory levels of accountability, transparency and integrity…”

31. The issues presented by these proceedings principally relate to CCA Part 4 – Interment Rights and more specifically to Division 2 – Interment Rights and Subdivision 2 – Interment Rights Generally (containing ss 46 to 53), Subdivision 4 – Grant and Transfer of Interment Rights Generally (containing ss 56 to 62) and Subdivision 5 – Miscellaneous (containing ss 63 to 69).

32. But first Subdivision 1 – Preliminary, s 45 provides that the rights of interment in Crown land, which had been issued under the Crown Lands Act 1989 and previously known as “burial licences”, are taken “on the commencement of this section to be an interment a right granted under this Division…” and if the interment right was granted or given “in perpetuity or without a fixed term – to have been granted or given (on the same terms as it was originally granted or given) as a perpetual interment right” under the CCA. Thus, although the JCT issued the original burial licence for allotment 561A to Victor Berk under the Crown Lands Act, the rights it conferred (which were for perpetual interment) are now rights under and governed by the CCA.

33. Subdivision 2 – Interment Rights Generally, contains the principal provisions relevant to the current dispute. Specifically, s 46 sets out the nature of Interment rights:

(1) A cemetery operator must--

(a) permit the interment of the remains of the person to whom it relates at the site in a cemetery identified in, or in accordance with, the interment right, and

(b) permit the interment in accordance with the cultural or religious practice applicable to the part of the cemetery in which the interment site is located at the time the interment right is granted, and

(c) permit a memorial to the deceased person to be erected at the site with the approval of the cemetery operator, and

(d) leave the remains undisturbed in perpetuity (or, in the case of a renewable interment right, until such time as the remains may be disturbed or removed in accordance with this Act) unless disturbance or removal at an earlier time is requested or authorised by the holder of the interment right, and

(e) leave any memorial to the deceased person lawfully erected at that site, with the permission of the cemetery operator, undisturbed (provided the interment right remains in force and the memorial is kept in good repair) until such time as the memorial may be disturbed in accordance with this Act unless disturbance at an earlier time is requested or authorised by the holder of the interment right.

(2) A cemetery operator must comply with the requirements of subsection (1) (d) and (e).

Maximum civil penalty: $27,500.

(3) Subject to the regulations, a cemetery operator must ensure that any remains of a person that are disturbed or removed are dealt with in accordance with any cultural or religious practices applicable to the remains.

34. Interment rights may be bequeathed as part of the holder’s personal estate as is provided for in s 49:

(1) The holder of an interment right may (subject to section 51) bequeath the right as if it were the holder's personal estate.

(2) A person to whom an interment right devolves as a result of a bequest does not become the holder of the right until the cemetery operator's register is amended to indicate that fact.

(3) On application made by a person to whom an interment right has devolved as a result of a bequest, the cemetery operator must amend the cemetery operator's register so as to indicate that the person has become the holder of the interment right.

(4) An application under this section must be in the form prescribed by the regulations or approved by the Cemeteries Agency and accompanied by the appropriate fee.

(5) The executor or administrator (within the meaning of the Probate and Administration Act 1898) of the estate of the holder of an interment right who has bequeathed the interment right must give the relevant cemetery operator written notice of the death of the holder within the period prescribed by the regulations after the executor or administrator becomes aware of the death.

35. Interment rights if not bequeathed, pass on intestacy as part of personal property (s 50) and will also pass to a surviving joint holder (s 51). A perpetual interment right may only be revoked if the perpetual interment right is not exercised within 50 years after it was granted.

36. Within Subdivision 4 – Grant and Transfer of Interment Rights Generally, interment rights may be granted in accordance with s 56:

(1) A cemetery operator may grant an interment right in respect of an interment site in a cemetery.

(2) An application for an interment right must be in the form approved by the Cemeteries Agency and be accompanied by the appropriate fee.

(3) An interment right may be granted to one person or to 2 or more persons as joint holders.

(4) A cemetery operator cannot, without the approval of the Cemeteries Agency, grant or transfer an interment right to a person if the granting or transfer of the interment right will result in the person holding (including jointly holding) interment rights in respect of more than 2 interment sites in the cemetery for which the interment right is sought or sought to be transferred.

37. The content of an interment right is defined in s 57:

An interment right granted by a cemetery operator must--

(a) identify the person or persons to whom the right is granted, and

(b) identify the interment site to which the right relates, and

(c) specify the number of persons whose remains may be interred pursuant to the right at that site, and

(d) identify the person or persons or class of persons whose remains may be interred pursuant to the interment right or provide that a specified person or person of a specified class may, at a future time, nominate the person or persons whose remains may be interred pursuant to the interment right, and

(e) identify whether the interment right is granted as a perpetual interment right or as a renewable interment right, and

(f) specify that the interment right may (subject to section 56 (4)) be transferred, and

(g) subject to any applicable mandatory code of practice requirement imposed under section 31, specify any other conditions on which the interment right is granted.

38. The Court’s attention was not directed to any mandatory code of practice relevant to the issues in these proceedings. CCA s 57 distinguishes between “the person or persons to whom the right is granted” (s 57(a)) and “the person or persons or class of persons whose remains may be interred pursuant to the interment right” (s 57(d)). The distinction is not material in this case as the proceedings were argued on the basis that Susie Berk has been certified as the transferee and she presently has both s 57(a) s 57(d) rights to allotment 561A.

39. The important relevant provisions governing transfer of interment rights (to persons other than a cemetery operator for example on revocation) is set out in s 58 as follows:

(1) A cemetery operator may, on application, transfer an interment right from one person or 2 or more persons as joint holders to one person or 2 or more other persons as joint holders.

(2) An application under subsection (1) may be made only by the holder of the interment right concerned or, if the interment right is held by joint holders, by all the joint holders.

(3) An application for the transfer of an interment right must be in the form prescribed by the regulations or approved by the Cemeteries Agency and be accompanied by the appropriate fee.

40. Interment rights may be transferred to a cemetery operator (s 59). Section 60 speaks to the cemetery operator’s grounds to refuse to grant or transfer an interment right. Section 60 provides:

“A cemetery operator may refuse to grant or transfer an interment right if, in the operator’s opinion, the grant or transfer would tend to create a monopoly or encourage dealing in interment rights.”

41. CCA s 60 create a requirement for the Lands Manager to consider the matters identified in section but as these reasons show, those matters are not the only ones that the Lands Manager can take into account in deciding whether to transfer an interment right.

42. Finally, Subdivision 5 – Miscellaneous provides for the keeping of a register and documents by cemetery operators (s 64), the issuing of certificates to persons to whom interment rights are granted or transferred (s 65), and the making of orders for interment (s 67), which states that “an interment must not take place in a cemetery unless the cemetery operator has issued an order for interment” which must not be unreasonably delayed or withheld.

The Conflict of Evidence in Relation to Cultural and Religious Practice

43. One of the key provisions relevant to the current issue which was debated between the parties was s 46(1)(b). SCK says that the interment of the deceased would not presently be in accordance with the cultural or religious practice applicable to this part of the cemetery in which the interment site is located, Section 18E. SCK submits that the interment of the deceased would also not have been in accordance with the cultural or religious practice applicable in 2004, when the right of interment was granted by JCT.

44. SCK says that the Land Manager should not permit the transfer of the subject right of interment under s 58(1) to the estate of the deceased, and that no interment of the deceased into this burial site should be permitted by reason of a conflict between such a proposed burial and the requirements of s 46(1)(b). The burial of her body in Section 18E would be, the second defendant says, contrary to the relevant cultural or religious practice that applied to “the part of the cemetery in which the interment site is located”.

45. The Land Manager says that it will do, in effect, what the Court says it lawfully must do in relation to the interment, once the Court has decided about the transfer and the right of burial. In arguments that will be set out below, the plaintiffs submit that the transfer to the deceased’s estate should now be accepted by the Land Manager, which should now make an order for interment under s 67 and that no cultural or religious practice for Section 18E of the cemetery is an impediment to the deceased’s burial there.

46. This hearing was brought on at very short notice. The Court has accommodated the parties by setting a final hearing as quickly as possible in the Duty List. The evidence in relation to this disputed issue was only as complete as the parties were able to muster within that short time. The Court has been assisted by the industry that is evident from the material provided on all sides but is conscious that it is deciding this matter based upon limited evidence gathered in those circumstances. The Court must nevertheless do the best that it can on the available materials.

47. The essential conflict that lies behind this issue is explained in the affidavits of Dr Monk and Ms Mason on the one side, and Rabbi Kaminetzky on the other. No witnesses were cross-examined in these proceedings. The urgency of the matter and the availability of scheduled Court time did not permit cross-examination to occur. Given some of the affidavit evidence at times covered disputes about decades of burial practice in Section 18E, a short cross examination would have been unlikely to resolve the issue in any event.

48. Dr Monk and SCK state that there is no compelling evidence that the deceased recognised and practised the Sabbath and is not entitled to be buried in Section 18E, which is reserved for two classes of persons: observers of the Sabbath, and those who survived the Holocaust.

49. On the available evidence before the Court, it does not appear to be in contest that Debby Kollin was not a regular observer of the Sabbath. So, the remaining factual question is whether the burial of the deceased in Section 18E would be contrary the cultural or religious practice applicable to this part of the cemetery.

50. Dr Monk says SCK and the Land Manager (and before 2013 the predecessor to the Land Manager) have since at least 2003 operated under a mutual Memorandum of Understanding between themselves in relation to burial practice in Zone G. Ms Mason confirms that the Memorandum of Understanding has been operational since approximately the time of the constitution of the Land Manager.

51. The Memorandum of Understanding relevantly provides as follows:

Re: Section 18a, Jewish Cemetery Rookwood Necropolis

Memorandum for approval between Jack Hollander for the Trustees, Jewish Cemetery Trust, Rookwood Necropolis, and M. Monk for the Sydney Chevra Kadish

Dated this Friday 23^rd May 2003.

WE, resolve the following with the provisions and conditions as stated here.

1. That the section north of existing Section 18, between Section 18 and the J.C.T. site office, fronting Hawthorne Avenue, previously the site of Dawson Street of the Jewish Section of Rookwood Necropolis, be established as a distinct congregational section exclusively for Jews defined as acceptable for that Section by the Sydney Chevra Kadisha [and] the Orthodox Jewish Community as defined by the Executive of the Sydney Chevra Kadisha or its nominee. This new section be called Section 18a.

(Italicised text is text that was handwritten on the Memorandum)

2. (Skipped numbering)

3. The Executive of the Sydney Chevra Kadisha shall inform the Jewish Cemetery Trust of the appointment of the Responsible Designated Officer (RDO).

4. The Responsible Designated Officer shall act as the point of referral for the purpose of vetting qualified clients to purchase Right of Burial plots in Section 18a.

5. Custody of Section 18a remains with the Jewish Cemetery Trust and is reserved for allocation by the RDO as nominated by the Sydney Chevra Kadisha. This right of allocation remains in force until all plots are exhausted either by reservation or burial or else for a period of 15 years from this day, whichever event first expires.

6. The section to be called 18a, shall range from plot numbers 1000 to 1111. Plot numbers 1000 to 1008, 1023, 1024, 1039, 1040, 1055, 1056, 1071, 1072, 1087, 1088, 1096 and 1111, be tentatively reserved for Kohanim and their immediate family.

7. The Responsible Designated Officer shall act as the point of referral for the purpose of vetting qualified clients to purchase Right of Burial plots in Section 18a.

52. As the plaintiffs point out, the Memorandum of Understanding refers to Sections 18 and 18A of Zone G but does not refer expressly to Section 18E. But the Memorandum of Understanding does establish that there is a section of the Necropolis within Zone G established as a distinct congregational section set aside exclusively for the Orthodox Jewish community, and that a person appointed as a Responsible Designated Officer should act as the point of referral, and presumably approval, for the purpose of vetting who is qualified to purchases rights of burial for allotments in these sections.

53. Dr Monk explains in his evidence that this section, which he says does include not only Sections 18, 18A but also Section 18E of the cemetery was established in about 1955 by Rabbi Bernat, a newly arrived Orthodox Rabbi from Hungary, who arrived in Australia in 1948 and who established the Adass Yisroel Synagogue in Bondi. Dr Monk explains that the initial allotments in this area were sold to the Adass Yisroel congregation. But he explained that other members of the Adass Yisroel congregation who had come from Europe as survivors of the Holocaust and who came to pray at the Adass Yisroel synagogue on Shabbos, (whether, or not, they strictly observed the laws of the Sabbath according to Jewish law) were permitted by Rabbi Bernat for a period to purchase allotments in Section 18 and 18A. Otherwise those who could purchase allotments had to be Shomer Shabbos, that is to say, those who were recognised as observing the Sabbath as Orthodox members of the Jewish faith community.

54. Dr Monk says that after the death of Rabbi Bernath, that Rabbi Bernath’s son, Mr L Bernath (until about 30 years ago) and then Dr Monk fulfilled the role of approving and authorising the purchase of the allotments in Section 18 and 18A.

55. Dr Monk addresses the issue in the proceedings as to whether Section 18E was a part of Zone G to which the practice as to burial applied of only allowing Holocaust survivors or persons recognised as Shomer Shabbos to be buried. About that he said the following:

“About 20 years ago or so, as Section 18 had become full, an adjacent area to Section 18 was religiously consecrated as Shomer Shabbos area for not only Adas Yisroel members but also for former Shomer Shabbos of the general Sydney Jewish community. I understand that the area has been renamed 18E, however, the authorisation policy remained the same.”

(original emphasis)

56. He further says that:

“On occasions, there were members of the community who were not Shomer Shabbos, however wanted to be buried next to their parents, who were buried in Section 18, they were explained the situation and were not permitted to be buried there. There is no religious requirement for someone to be buried next to or near their parents or family members.”

57. Two other features of Dr Monk's evidence are important. He says, looking back at the records for the issue in November 2004 of the burial licences to Victor Berk and Susie Berk, that "it is unclear how [Victor Berk] was permitted to purchase 2 lots in Section 18 without the SCK’s approval".

58. It appears that there was no express requirement made of Professor Berk or Susie Berk that they should declare their Shomer Shabbos status at the time they purchased these two allotments in November 2004. Dr Monk says, in substance, that this appears to have been, and indeed must have been, a mistake made by the JCT. Whether that inference – of mistake – is correct or not does not need to be determined in these proceedings, for reasons which will be explained. But the matter may perhaps need to be determined at some future time. It may not have been a mistake. But if it was a mistake, then it could be explained by someone acting in the role of the Responsible Designated Officer perhaps either not being consulted or failing to assess the Shomer Shabbos status of Professor Berk and Susie Berk or making an error in that assessment. Perhaps the best available present evidence of what happened is the hearsay evidence of Mr Koncepolski who says that Professor Berk told him that when he (Professor Berk) was purchasing the allotments in 2004 “no one asked if anyone was Orthodox”.

59. Dr Monk can speak about a considerable period of the recent history of Zone G in Rookwood. He says he joined SCK as a volunteer in about 1980, became a director of SCK in 1989, treasurer in 1993, and vice president in 2000. He therefore had a position of some authority and knowledge of SCK's affairs in 2004, when the relevant certificates were issued. And therefore, it may be inferred he probably had a reasonably comprehensive knowledge of the burial practices in this area at that time. But there are contradictions in his account to which the Court will shortly come.

60. The affidavit evidence of Georgina Mason, adduced by the Land Manager, shows that to ensure that the Land Manager complies with its licence under the CCA and that interments are conducted in accordance with religious and cultural requirements of the Jewish faith, it consults with and takes guidance from SCK about the cultural and religious practices applicable to the Jewish areas of the Rookwood Necropolis. She explains that the consultation between SCK and the Land Manager has been continuing since at least 2012 when the Land Manager took control of Rookwood Necropolis and that SCK has approved all the interments in Zone G since then.

61. Ms Mason deposes that the then President of the Jewish Board of Deputies (an umbrella organisation representing communal organisations of the Jewish community in New South Wales) wrote to the Land Manager in October 2024 setting out what was described as a statement of Jewish “unchangeable” burial requirements. This document gives insight as to the operation of the 2003 Memorandum of Understanding.

62. Ms Mason deposes as to the contents of this communication in so far as it set out the Jewish Unchangeable Burial Requirements:

“The Jewish Unchangeable Burial Requirements currently provides:

(a) ''This document provides a general guide to assist cemetery managers and Cemeteries and Crematoria NS W with compliance with the Cemeteries and Crematoria Act 2013, including, without limitation, sections 46, 54, 55, 66 and 106"(introduction).

(b) "In NSW, the only burial society or funeral provider permitted to prepare the deceased for Jewish Burial and to bury Jewish deceased persons is the Sydney Chevra Kadisha"(section 10(a)).

(c) "Cemetery managers must not allow a person to be buried by any funeral provider other than the Sydney Chevra Kadisha in a section consecrated for Jewish burial" (section 10(b)).

(d) "Only persons of the Jewish faith are permitted to be buried within the grounds consecrated for Jewish Burial. Any community Rabbi listed in the "Community Diary and Resource Book" (or any successor listing document or internet resource) that is produced by the NSW Jewish Board of Deputies Ltd, can verify/confirm the eligibility of the deceased to be buried within the consecrated grounds of the Jewish Cemetery. This verification is coordinated by the Sydney Chevra Kadisha. By a convention which helps maintain unity within the Jewish community the Sydney Chevra Kadisha works in cooperation with Rabbis of each of the streams of Judaism. The Sydney Chevra Kadisha may also request verification of being Jewish by other means e.g., marriage certificates, conversion certificates and family history forms." (section 10(c)).

(e) "There is a policy observed by the Sydney Chevra Kadisha that only persons deemed to be "Shomrei Shabbat" can be interred in any "Shomrei Shabbat" subsection of the cemetery, and in such a section by custom the arrangement of single graves is to be male/female/female/male. This is not a requirement of Jewish religious law." (section 2(a)(ii)).

(f) "Cemetery managers are not permitted to sell plot site(s) to individual(s) directly without written confirmation of eligibility from the Sydney Chevra Kadisha who works in cooperation with Rabbis of each of the streams of Judaism to confirm eligibility." (section 13(a)).

(g) "For purchase in the Shomrei Shabbat section, the cemetery will need to obtain (prior to purchase}, a special written approval from the Sydney Chevra Kadisha." (section 14(a)).

63. Relevantly, subparagraph (e) says there is a “policy observed by SCK that only persons deemed to be Shomrei Shabbat can be interred in the Shomrei Shabbat subsection of the cemetery”. This subparagraph appears to admit that there is no religious law to refuse burial to persons not deemed Shomrei Shabbat, but that the local custom, implemented by SCK policy, is as set out in subparagraph (e).

64. The plaintiffs have adduced contrary evidence. They rely upon the evidence of Rabbi Kaminetzky, who provided expert evidence on Jewish burial law. Rabbi Kaminetzky says he is a Dayan/Jewish Judge qualified to give opinions on aspects of Jewish law. He cites various Jewish rabbinical authorities and sources in his evidence.

63. Rabbi Kaminetzky states that his qualification to give such evidence is as being Yadin Yadin and he says that the vast majority Rabbis only have a lesser qualification of the Yore Yore. He says that to his understanding he is “the only Dayan in Australia that is qualified and appeared frequently as a Dayan in monetary matters…” thus he can offer “expert opinions about…complex matters of Jewish law”.

64. Rabbi Kaminetzky’s affidavit set out, in short form, a form of “submissions” from the point of view of Jewish law, as it relates the disputed matter in this case, and how strict observance of Jewish burial law has lesser significance in the modern era.

65. On the subject of burying a person who did not observe the Jewish Sabbath laws in a Sabbath observers’ section of the Jewish section of a cemetery, Rabbi Kaminetzky provides a precedent of the Chief Rabbi of Israel, Rabbi Bakshi Doron who wrote the following in the 7^th volume of the Techumim the following:

“it is known today, that we are nearly always not particular about not burying an evil individual next to a righteous individual. Only in a very few Jewish Burial societies are they particular about separating those that guard the commandments from those that did not observe the commandments (when they were alive). The reason being that nowadays we no longer possess the standards of measurement to assess who is a righteous individual and who is an evil person...and so we are not able to decide who is a righteous person and who is an evil individual, to distinguish between one who serves G-d and one who does not serve G-d. And we are only able to distinguish between a non-Jew and a Jew”

68. Rabbi Kaminetzky further explains what he regards as the more modern approach to this issue is accepted in Jewish religious law:

“4. There are various approaches how to treat Jews who do not observe the Commandments at this time. We are accustomed to the ruling found in Chapter 23 of the Questions and Answers in the book Binyan Zion, where he rules that they (those that are non-observant) are considered babies who were captured (and whose Jewish education never reached the minimum to be held responsible for the lack of observance of Jewish law), and we cannot call such Jews violators of the Sabbath.

5. On page 179 of the book (of Jewish Law) Misgeret HaSchulchan, it says that in our days we are not precise about this (separation of righteous from the non righteous), and the author of this Book of Jewish Law relies on this position. We should note, that near the plot of the Jewish leader of our generation (Montefiore Jewish Cemetery in Queens, NY) many people who did not observe the Sabbath laws are buries near the Sabbaths observers.”

69. Finally in relation to mistakes in relation to burial allotments, Rabbi Kaminetzky cites a 1988 precedent from the Beis Din Rabbanei Hagadol (a court of Jewish law) in Jerusalem, presided over by Gaon Rav Avrohom Chaim Sherman, the Chief Justice of that court for 10 years, the substance of which Rabbi Kaminetzky explains as follows:

“In that ruling, Dayan Sherman and Dayan Dichovsky both concurred in a ruling that found that in a case in which the burial society erred by buring someone in a lot belonging to someone else. The question was whether the purchaser of the plot has all rights to the plot and if so can he demand that the buried body be exhumed. Dayan Sherman and Dayan Dichovsky ruled that according to Jewish law, the purchaser of the plot entitled him to all rights of that plot and that the Chevra Kadisha who mistaken sold plot to someone else by mistake, was not entitled to revoke the rights of the original purchaser to be buried in the plot he purchased. See Nesivei Emes V'Chesed 1988 28/37”.

70. These observations were useful to the Court in understanding some of the particulars of Jewish law, as declared by authorities in Israel, this Court must apply the CCA, whilst considering the contest of available views about Jewish religious practice.

71. With some force, based on this evidence, Mr O'Connor, submitted on behalf of the plaintiffs, that the Court must consider that the certificate which was issued on 16 November 2004 was unqualified by any condition relating to Orthodox observance. Indeed, SCK’s case (which seems to rely upon a mistake being made by JCT) is some basis itself to infer that that the claimed policy of only burying observant Jews in Section 18E was imperfectly applied.

72. Mr O'Connor further submitted that the Memorandum of Understanding, which predates the issue of the certificate by about 18 months, does not refer to Section 18E at all (but only to sections 18 and 18A) and is a basis to infer that Section 18E was not exclusively reserved for persons deemed to be Shomrei Shabbat.

73. And the opinion of Rabbi Kaminetzky supports Mr O’Connor’s submission that the issuing of the certificates without any requirements to verify whether the purchaser of the allotment was recognised as Shomer Shabbos is consistent with some Jewish law authority.

74. But in the Court's view, consideration CCA s 46, which the Court must consider helps to resolve this question. CCA s 46 (1)(b) requires a cemetery operator to permit the interment “in accordance with the cultural or religious practice applicable to the part of the cemetery in which the interment site is located at the time the interment right is granted” (emphasis added). The relevant enquiry under s 46 (1)(b) is not as to broad religious or cultural practice generally, but only as to the cultural or religious practice applicable to the part of the cemetery in which the interment is proposed to occur.

75. And in that respect the Court accept the evidence of Dr Monk as to what is the burial practice in relation to Section 18E. First the long history of involvement of Dr Monk as an officer of SCK uniquely places him to speak about SCK’s practices in relation to Zone G. His evidence is consistent with Ms Mason’s description of that relationship and the protocols that are applied under the 2003 Memorandum of Understanding in the communication from the Jewish Board of Deputies in 2024. In contrast Rabbi Kaminetzky can only speak of general rulings about Jewish burial practice. CCA s 46(1)(a) is drafted on the basis that local cultural or religious practice relevant to the burial site can vary from general cultural or religious practice in other parts of Australia or the world with respect to that religion or culture.

76. Dr Monk can draw upon the detailed knowledge of the area of which he speaks over time. He can speak to local burial practice “at the time the interment right was granted” in 2004. His evidence including his frank admission that the issue of this certificate in 2004 by the JCT appears to be a mistake or unclear, as he says, are all persuasive evidence of at least the general consistency of the cultural and religious practice with respect to this Section 18E in 2004. He has also explained, and the Court accepts that notwithstanding the omission of Section 18E from the 2003 Memorandum of Understanding the same burial practices that applied to Sections 18 and 18A applied in 2004 and now apply to Section 18E.

Consideration

77. The first question here is not whether the deceased is presently entitled to be buried in allotment 561A. It is not disputed that the deceased’s estate has no present entitlement to require her burial in allotment 561A. Rather the first question is whether the Land Manager is entitled to refuse Professor Berk’s present application to transfer allotment 561A to the deceased estate under CCA s 58. If a transfer is permitted the question is then whether the Land Manager, may be required under CCA s 65 to grant a certificate that the deceased has an interment right in force in respect of allotment 561A.The answer to this question requires analysis of the operation of s 46 and then of the interplay between CCA ss 46 and 58.

78. The Summons seeks relief against the Lands Manager in specific performance of the transfer of allotment 561A from Victor Berk to the deceased’s estate (prayer 1). Then it seeks an order (prayer 2) that upon completion of the transfer that the Lands Manager issue a certificate under CCA s 65 certifying that the deceased holds in force an interment right in relation to allotment 561A.

79. Mr O’Connor of counsel correctly acknowledged that the plaintiffs were really seeking the relief sought in prayer 2, on the assumption that the Lands Manager had approved the transfer under CCA s 58. Specific performance against the Land Manager was not appropriate, as there was no contract between the estate and the lands manager, merely the submission of an application to transfer an interment right after payment of the applicable fee.

80. The terms of CCA s 58 give the Land Manager as the cemetery operator a discretion – “may, on application” – to transfer an interment right from a person/s to person/s. In substance, the plaintiffs were arguing that in the circumstances of this case the Land Manager was required to exercise that discretion in favour of transfer, in part because the right of interment to allotment 561A contains no qualification that the original grantee, Victor Berk, the current holder, Susie Berk or the proposed transferee, the deceased, should be Shomer Shabbos. The Court treated prayer 2 as in substance an order for mandamus under Supreme Court Act 1970 s 69 or an order consequent upon a claim for declaratory relief, as to the plaintiffs’ entitlements to the transfer. Susie Berk was not a party to the proceedings. Strictly she rather than Victor Berk was the right person to sign the application for transfer on 25 March 2025, given the terms of CCA s 58(1) but she indicated her consent to the application by the deceased’s estate and the parties did not argue the case on this ground as they wanted the Court to deal with the substantive issue.

81. Resolution of the issues in this case requires close consideration of CCA ss 46 and 58. After the introductory words “a cemetery operator must” CCA s 46 sets out five requirements, (a) to (e), that give content to and described the nature of the interment right. Each of the subparagraphs defines what the cemetery operator is obliged to do to give effect to the interment right. No hierarchy is provided for within each of the subparagraphs, although subparagraph (a) and (b) apply at the time of burial, subparagraph (c) applies shortly after burial and subparagraphs (d) and (e) apply in perpetuity thereafter.

82. Ms Jaffray, on behalf of the Land Manager, has in my view correctly submitted that the way that CCA s 46 operates is that, if the pre-conditions for the operation of subparagraphs (a) and (b) are fulfilled, then a cemetery operator, such as the Land Manager, has a duty to give effect to the conditions for which s 46(a) and (b) provide in relation to an interment right and should therefore permit the interment of the remains of the person to whom the right relates at the identified site. And if, conversely, the factual elements of each of the subparagraphs is not made out, then the cemetery operator has no obligation to permit the claimed interment to occur.

83. The submissions put on behalf of SCK about the existing interment rights in this case raise a fundamental issue which applies in respect of the current owner of the permit, Susie Berk, but is ultimately something the Court does not have to decide unless the transfer presently applied for is permitted.

84. CCA s 46(1)(a) is focused upon the grant of a permit for the “interment of the remains of the person who whom it relates [in this case, it is Susie Berk] at the site in a cemetery identified in accordance with the interment right.” (Emphasis added). As might be expected, the fundamental nature of the interment right is for a person referred to in the interment right to be buried in a place identified in the interment right. A core part of the interment right is to link the named person with the identified site.

85. CCA s 46(1)(b) talks about something quite different: the way the cemetery operator must permit the burial to take place. And describes it in accordance with cultural or religious practice applicable to a part of the cemetery in which the interment site is located.

86. The Court should not construe s 46(1)(b) in a manner which would negate the fundamental linkage in s 46(1)(a) between a person’s remains and an identified site. The two provisions should be construed to be consistent with one another.

87. Put simply the obligation under s 46(1)(b) to apply a cultural or religious practice to the manner of burial should not be construed to negate the essential nature of the interment right defined in s 46(1)(a). Once the interment right has been issued for the remains of an identified person, the cemetery operator cannot say that that person cannot be buried there, because it does not accord with the “cultural or religious practice applicable to the part of the cemetery”. For the cemetery operator to assert that would contravene its obligation under s46(1)(a), an obligation which is fundamental to the nature of the right conferred under the legislation.

88. Consideration of s 57 reinforces this construction of s 46. CCA s 57 (a)-(d) requires interment rights granted by a cemetery operator to identify the grantee, the site, the numbers of persons whose remains may be interred, and “the person or persons or class of persons whose remains may be interred” pursuant to the right. Thus, the interment right clearly links a person or persons (or the nomination of remains for burial by a specified person or a class of persons – s 57(d)) to burial at the identified site. This content of the interment right is not compatible with the idea that the right of interment could be defeasible because a person’s burial did not comply with a third party’s opinion about burial practices at the site.

89. The right of interment having been issued for allotment 561A with respect to Susie Berk’s remains, a question might theoretically arise one day as to whether it is possible for s 46(1)(b) to be construed so that religious practice could, in effect, prevent her exercising the right under (a). For the reasons stated here I strongly doubt that it could do so, notwithstanding that she at that future time may not be Shomer Shabbat.

90. But that is not the question before the Court. The primary question here is whether the Lands Manager should approve the transfer which it has so far declined to approve under CCA s 58(1), although the Lands Manager has indicated it will submit to the Court’s direction on this. The Court will not direct the Land Manager as to what decision it should make but in the Court’s view the Land Manager could decline to approve the transfer.

91. The CCA should, to the extent possible, be construed harmoniously. If a cemetery operator is faced with deciding as to whether it will permit a transfer to take place under the statutory power of s 58, the cemetery operator should of course take into account relevant considerations and not take into account irrelevant considerations. In the Court’s view, the cemetery operator is entitled to consider when making its s 58 decision, not only s 60 issues, but also the situation that would arise for it in the future under s 46, in the event that the transfer were to take place and the transferee were to request burial of the remains of a specified person at the site identified in the right of interment.

92. A cemetery operator would be entitled to decline to allow the transfer to take place, if the transfer would create a conflict in a future burial between the exercise of the interment right in s 46(1)(a) at the site, and the cultural or religious practice for interment defined in s 46(1)(b) that is applicable to the part of the cemetery where the site is located. Allowing that the potential for conflict that might arise in a prospective burial is a relevant consideration to a s 58 decision whether to permit a transfer, tends to promote the objects of the CCA set out in s 3(a) and (b).

93. Given the cultural and religious burial practices with respect to Section 18E established in the evidence, the Lands Manager would be entitled to decline to allow the transfer to the deceased’s estate, because a transfer would give the deceased’s estate a right to the burial of her remains in a part of the cemetery which would conflict with accepted cultural and religious practice in that part of the cemetery. Conversely there is no legal basis for the Court to compel the transfer. The position of the Lands Manager in these proceedings is that it would decline the transfer unless compelled to give effect to it.

94. Mr O'Connor, for the plaintiff, argued that because the certificate was issued in an unqualified form by the predecessor of the first defendant, the JCT, there is currently an estoppel against the defendants maintaining any argument that the burial right in the right of interment cannot be exercised on an unstated condition. He may be right in so far as the interment right concerns Susie Berk: the document does not contain any qualification. But as explained that is not the present issue. The issue here is the approval of the transfer of the interment right to the estate of the deceased. There is no estoppel preventing the Land Manager declining the transfer which the estate is now requesting.

95. This result will be one which will be profoundly disappointing to the plaintiffs and perhaps all the family of the late Debby Kollin. But the objects of the CCA Act still hold out some positive light for the parties. Consistent with the objects of the CCA, the defendants have indicated that an attempt will be made to locate an available burial site as close as reasonably practicable to Anna and Andrew Berk in Zone G of the Jewish burial area of Rookwood Necropolis.

96. At the conclusion of these oral reasons, issues concerning the costs of the proceedings were raised. The Court indicated that the parties should not be diverted from the burial of the deceased by such questions and that written submissions in relation to costs, if they remained an issue, could be deferred until later.

Outcome and orders

97. For these reasons the following orders are made. The Court:

1. DISMISSES the Summons filed 2 May 2025.

2. DIRECTS the parties to agree on a timetable for submissions in relation to any outstanding the plaintiffs file and serve submissions in respect of costs.

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Amendments

02 June 2025 - Typographical error in representation

02 June 2025 - Coversheet - representation

[1] Typographical error

Decision last updated: 02 June 2025