Lotoaniu v Helu - [2022] VSC 675

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2022 04280

ALEX LOTOANIU	Plaintiff
v
LUISA HELU	Defendant

---

JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF JUDGMENT:	8 November 2022
CASE MAY BE CITED AS:	Lotoaniu v Helu
MEDIUM NEUTRAL CITATION:	[2022] VSC 675

---

PRACTICE COURT – Injunctions – Interim injunction to restrain defendant from cremating the body of deceased – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 54.02 – Jurisdiction where Coroner has made an order for the release of the body pursuant to s 47 of the Coroners Act 2008 (Vic) – No will of the deceased – Right and obligation to dispose of the body of the deceased – Likely administrator test – Test applied and found in favour of defendant – Interim injunction expired and not extended – Consideration of Gilliott v Woodlands [2006] VSCA 46.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Levine	Kelly and Chapman
For the Defendant	M Bennett	Grimshaw Legal

HER HONOUR:

Introduction

Sione Lotoaniu (the deceased) died unexpectedly on 11 October 2022. He was 55 years old. The Coroner took possession of his body in order to exercise functions under the Coroners Act 2008 (Vic) (Coroners Act).

Luisa Helu had been in a de facto relationship with the deceased for approximately 25 years. She had applied under s 48 of the Coroners Act for release of the body. She was the only applicant. On 18 October 2022, Coroner Gebert made an order releasing the body to Luisa[1] pursuant to s 47 of the Coroners Act.
[1]I have used first names in these reasons meaning no disrespect to any individual.

Pursuant to that order the body was placed in the care of Lonergan & Raven, funeral directors. Luisa arranged a mass of thanksgiving at their local parish church which was held on 20 October 2022 and intended to cremate the body and have the ashes remain in Melbourne.

Alex Lotoaniu is the son of the deceased from his earlier marriage. He applies to this Court under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), or alternatively the inherent jurisdiction of the Court, seeking that he be granted the right to, and bear the obligation for, disposal of the body of his father. Injunctive relief was initially granted ex parte on 20 October 2022 upon the information that the cremation was planned for that day, pending the urgent hearing of the application.

Underlying the legal question to be determined were strongly held and opposing views about the manner of disposal: whether by burial or cremation, and whether the deceased is laid to rest in a family plot in Sydney, or cremated with his ashes to remain in Melbourne.

A question of jurisdiction was also raised by Luisa in light of the Coroner’s order already made releasing the body to her. Given the urgency I…

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 Lotoaniu v Helu

Details

AGLC: Lotoaniu v Helu [2022] VSC 675
Case: [2022] VSC 675
Decision Date: 8 November 2022

CaseChat Overview and Summary

The case of Lotoaniu v Helu involved a dispute over the cremation of the body of a deceased individual. The plaintiff sought an interim injunction to prevent the defendant from cremating the body, arguing that she had the right and obligation to dispose of the deceased's remains. The case was heard in the Supreme Court of Victoria. The defendant, who had been ordered by the Coroner to release the body, argued that she was the likely administrator of the estate and therefore had the right to dispose of the body.

The legal issues in the case revolved around the jurisdiction of the court to grant an interim injunction in the circumstances and the application of the "likely administrator test" to determine who had the right to dispose of the deceased's remains. The court had to consider whether it had jurisdiction to grant the injunction given that the Coroner had already made an order for the release of the body. The court also had to determine whether the defendant met the criteria for being considered the likely administrator of the estate.

The court found that it did have jurisdiction to grant the injunction and that the defendant met the criteria for being considered the likely administrator of the estate. The court applied the "likely administrator test" and found that the defendant was the likely administrator because she was the deceased's spouse and there was no will. The interim injunction was not extended, and the body was cremated. The court also considered the case of Gilliott v Woodlands [2006] VSCA 46 in reaching its decision.

The final orders of the court were that the plaintiff's application for an interim injunction was dismissed, and the defendant was found to be the likely administrator of the estate. The court also noted that the defendant's application to extend the interim injunction was refused, and the body was cremated as per the Coroner's order. The court's decision highlights the importance of considering the likely administrator test and the jurisdiction of the court when dealing with disputes over the disposal of a deceased person's remains.

Orders