Lotoaniu v Helu
[2022] VSC 675
•8 November 2022
| 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 |
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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 |
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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.
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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 heard substantive argument and informed the parties following the conclusion of the hearing that my decision, if jurisdiction were established, would be that the body be released to Luisa as the custodial parent of teenage children of the deceased. In those circumstances the interim injunction lapsed on the conclusion of the hearing and was not extended. These are the reasons for my decision.
It is important to set out the context in which the competing claims for the right to choose the manner of disposal of the body arise. It is also important to set out that it is not the role of the Court to determine the merit of the different choices that might be made.[2] Nor is it the role of the Court in such applications to embark on a fact-finding mission attempting to resolve complex factual disputes that underlie the competing wishes of the parties.[3]
[2]Calma v Sesar (1992) 106 FLR 446 (‘Calma’); Meier v Bell (unreported, 3 March 1997, Supreme Court of Victoria, Ashley J) (‘Meier’).
[3]Leeburn v Derndorfer (2004) 14 VR 100 (‘Leeburn’); Keller v Keller [2017] VSC 118 (‘Keller’).
The issues for determination are:
(a)Whether by reason of the Coroner’s Court order of 18 October 2022 the question of who bears the right to and responsibility for the disposal of the body has already been determined.
(b)In determining the substantive dispute as to who bears the right and responsibility to dispose of the body, how does the Court decide between competing claims?
Family circumstances
The deceased’s mother is alive and living in Sydney, and his father is buried in Sydney at Rookwood cemetery. The family is from Tonga and the parents of the deceased raised their 10 children as Catholics. Most of the surviving siblings live in Sydney. None live in Melbourne. The deceased had been married, but his wife left him many years ago. They had nine children, five of whom died shortly after birth and are buried in the Rookwood cemetery. The remaining children, who include the plaintiff Alex, are aged between 23 and 32.
The deceased subsequently partnered with Luisa who is also Tongan. As the deceased did not believe in divorce and his marriage had not been annulled, he and Luisa did not marry. Their relationship is longstanding, having first met in 1988 in Tonga. For the past 10 years they have lived in Melbourne. Together they were raising five children presently aged 23, 17, 15, 14 and 12. A sixth child, their second born who is now 22, was adopted at birth by an aunt of the deceased. The eldest, Joyceline, was removed from the family in 2015 and lived with an aunt until 2020 without contact with her parents during that time. In 2022 she returned to live with her parents and to help in the care of her younger siblings. Throughout their relationship Luisa was the primary income earner and the deceased largely a stay-at-home father.
The relationship between the deceased and Luisa though longstanding has been fraught with difficulties. It was marred by violence exacerbated by alcohol use, which led to periods of separation and reconciliation. Family violence intervention orders were obtained on many occasions. One such intervention order had been taken out after Luisa had called the police around 12 September 2022. That order remained in force at the time of the deceased’s death. Since being removed from the home by the police on this occasion, the deceased had remained living in temporary or short-term accommodation. His body was discovered by Luisa when she went to visit him at his temporary accommodation.
No will of the deceased has been located.
The wishes of the parties
The plaintiff relied on the following affidavits:
(a) Affidavit of Alex Lotoaniu dated 24 October 2022;
(b) Affidavit of Hateni Lotoaniu (the deceased’s older brother) dated 25 October 2022.
The defendant relied on the following affidavits:
(a) Affidavit of Joyceline Lotoaniu (the defendant’s oldest daughter with Luisa) dated 26 October 2022;
(b) Affidavit of Anthony Kerin (the defendant and Luisa’s pastor) dated 26 October 2022;
(c) Affidavit of Luisa Helu dated 27 October 2022.
Alex described his family’s Tongan culture and religious beliefs as requiring burial. He deposed that cremation is against his family’s beliefs. Clearly, there is a strong family presence at the Rookwood cemetery and the desire to inter the deceased with family members there is powerful. Alex deposed that this desire was held by his family that the body of the deceased be transported to Sydney for burial alongside his father, five infant children and other close family members in Rookwood.[4]
[4]Affidavit of Alex Lotoaniu dated 24 October 2022, [14].
Luisa wishes to cremate the body and to keep the ashes with her and the children so that the deceased would remain a presence in their lives.
Jurisdiction
The defendant submitted that where a coroner has exercised statutory power and made an order identifying the person to whom the body is to be released, the Court does not have jurisdiction to further consider the matter on its merits. She relied on Gilliott v Woodlands (Woodlands).[5] Although considering earlier provisions as to the powers of a coroner as contained in the Coroners Act 1985 (Vic) (the 1985 Act), the case was relied on to support an argument that where a coroner has made an order for the release of the body, this Court has no jurisdiction. This is because the Court would, in effect, make a decision on the merit of a question already decided by the Coroner.
[5][2006] VSCA 46 (‘Woodlands’).
The plaintiff submitted that the Coroners Act has no application in this case. Any order made by a coroner is limited to responding to an application made, or where there is more than one application, resolving those applications by a determination under s 48(2) of ‘who has the better claim’ in accordance with s 48(3). Alex has not made any application to a coroner for release of the body. In any event he submitted that an order of a coroner does not prevent this Court from granting relief pursuant to order 54.02.
The facts of Woodlands are important. Under the 1985 Act, like the present legislation, the body of the deceased remained under the control of the Coroner during any investigation of a death. Previously that control ended upon the issue of a certificate pursuant to s 23(1) of the 1985 Act. The form of the certificate prescribed by regulation at that time required the Coroner to specify one of four manners by which the body was to be disposed, namely: burial, cremation, disposal at sea or ‘other disposal’. There was nothing in the legislation that gave the Coroner power to determine to whom the body was to be released for the specified form of disposal.
In Woodlands, there was no dispute between the father and mother of a deceased adult child that she be buried, but to whom the body would be released and therefore where it would be buried were not agreed. Both mother and father contacted the Coroner and set out reasons why each laid claim to the right to bury their daughter. The Coroner released the body to the mother and expressed reasons for doing so.
The father appealed and given the urgency it came on for hearing in the Practice Court without formal commencement of a proceeding. In so doing the father sought to raise a question as to mode of disposal of the body, now wishing it to be cremated and the ashes shared. Before the Practice Court, there was no issue that the body be released to the mother. In the Practice Court the judge determined that the body be cremated.
On appeal from this decision, Maxwell P and Charles JA held that the Coroner’s statutory duty to issue a certificate as soon as reasonably possible stating the mode of disposal necessarily implied a power to decide by whom and where the disposal was to be carried out.[6] Both the mode of disposal and to whom that right was given were therefore decisions under s 23(1) of the 1985 Act with no provision for administrative review. The absence of a review mechanism was described as understandable given the circumstances and the urgency. The avenue open to the father was judicial review under order 56 — limited to questions of law. Maxwell P and Charles JA said:
His Honour was asked to decide whether cremation (and division of the ashes) was to be preferred to burial. The argument from both sides proceeded upon the assumption that his Honour had the power to decide that question. In deciding to submit his own view – that cremation was to be preferred – his Honour made what amounted to a decision on the merits on a question which the Coroner had already decided.
[6]Woodlands (n 5) [20].
The Court had no jurisdiction to decide the question of burial or cremation, that having been already decided by the Coroner.
Consideration of jurisdiction
Part 7 of the Coroners Act deals with appeals to the Supreme Court from a variety of determinations that a coroner may make. Relevantly an appeal under part 7 is only on questions of law.[7] The right of appeal under s 85 against an order releasing the body or the terms of that release is given to persons who have applied for release of the body under s 48. Alex did not apply to have the body released to him and so was arguably not a person who could avail himself of s 85.
[7]Coroners Act 2008 (Vic) s 87(1).
Unlike the procedure in the 1985 Act, on the release of a body a coroner is not required to make any determination as to the mode of disposal of a body. Section 47 provides that an order releasing the body must specify a person to whom the body is released and may contain terms or conditions as the Coroner considers necessary. In this case the Coroner acted on the basis of one application and imposed no conditions.
Where a dispute does arise before the Coroner, it is to be resolved by the statutory principles in s 48(3). That provision provides:
In determining who has the better claim, the coroner must have regard to the following principles–
(a)if the person named in the will as an executor is an applicant, the body of the deceased should be released to the executor;
(b)if a person specified under paragraph (a) is not an applicant, the body should be released to the senior next of kin;
(c)if there appear to be 2 or more applicants who are the senior next of kin of the deceased, the coroner should determine to whom the body is to be released having regard to any principles of common law relating to the release and disposal of a body of a deceased person;
(d)if no person referred to in paragraph (a) or (b) is an applicant, the coroner should determine to whom the body is to be released having regard to the principles of common law relating to the release and disposal of a body of a deceased person.
By subsection (d), if none of the earlier provisions are applicable the Coroner is to have regard to the common law principles relating to the release and disposal of a body of a deceased person.
The applicable common law principles is that prima facie the person responsible for the administration of the estate is the person accorded the right to decide questions associated with the disposal of the body. That is usually the executor, or absent a will the person likely to be appointed administrator. The common law principles and their application in this case are dealt with in greater detail below.
In my view, Woodlands clearly prevents a party who has applied to a coroner for release of a body from seeking a further determination on the merits of any matter addressed by the Coroner’s order. In Woodlands, the question that was agitated in this court — burial or cremation — was already decided by the Coroner.
In the present case, and more widely under the present Coroner’s Act, an order releasing a body is not required to specify the method of disposal. In Woodlands, the Court of Appeal stated:
There is nothing in s 23(1) which authorises the Coroner to decide – where there is a contest – to whom the body is to be released or where the disposal of the body is to take place, issues which – as the present case demonstrates – are often intertwined. Nevertheless, we are in no doubt that the Coroner does have the power to decide those questions if and when they arise. The duty to issue ‘as soon as reasonably possible’ a certificate permitting one or other form of disposal of the body carries with it, by necessary implication, the power to decide questions as to where and by whom the disposal will be carried out. The existence of the implied power is essential to the effective discharge of the Coroner’s functions. Moreover, to deny the coroner this implied power and require the issue to be litigated elsewhere would only prolong and exacerbate the distress which inevitably attends any such dispute.[8]
[8]Woodlands (n 5) [20] (emphasis added) (citations omitted).
The defendant contends that the principle in Woodlands requires a broad interpretation. Once a coroner makes an order releasing the body to an applicant, this court has no jurisdiction to consider any claims by persons who wish to make decisions regarding how or where the body is to be disposed of. In effect, an order releasing a body to a person under s 47 is a decision as to the person entitled to decide the means and location of disposal of the body of the deceased.
I do not accept that this is necessarily the effect of all orders under s 47. It is important to look at the terms of the order to see what questions arose for determination. In the present situation no question of wishes as to the manner of disposal of the body arose, nor was the Coroner asked to make any decision as to ‘the better claim’. Where there is only one applicant, the Coroner was not required to consider who might at common law be the appropriate person to decide questions as to release and disposal of the body. Where there is more than one application the Coroner determines the priority amongst applicants. For example, it is clear from the wording of s 48(3) in the first place that the body is to be released to the executor under s 48(3)(a), but only if the executor is an applicant.
The Coroners Act process for the urgent resolution of disputes as to competing wishes with respect to release of the body and the limited nature of appeal and review rights from any decision of a coroner is primarily the place for resolution of such disputes. There may be circumstances where a claim is not put forward in that process, for example the executor of a will located only after the release of a body to a next of kin. The plaintiff did not make application to the Coroner so any claim he had to the release and disposal of the body was not considered by the Coroner. It may be that reasons for not participating in the procedure under the Coroners Act might be relevant as to the granting of any relief by this court, but it is not necessary to consider this further.
The order made by the Coroner does not remove the Court’s jurisdiction to consider Alex Lotoaniu’s claim. Whether the position in Woodlands is applicable to the present statutory regime – that this court has no jurisdiction to determine on the merits a factual question squarely decided by a Coroner exercising statutory power under the Coroners Act raised by parties who were applicants in that process – needs not be determined.
The right and obligation to dispose of the body of the deceased
Rule 54.02 of the Rules provides:
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
The rule provides a broad source of power for the personal representative of a deceased person to obtain advice in the administration of an estate. The procedure has been said to be appropriate to determine the mode or place of disposal of the body, or to whom that responsibility falls.
Where the Coroners Act is not applicable, it has been observed that the rule is an appropriate vehicle for determining questions of who is to decide matters of disposal of the body as with other aspects of administration of the estate.[9]
[9]Meier (n 2) p 6; cited in Leeburn (n 3) [12].
In Meier v Bell[10] — a dispute over where the body of the deceased was to be interred — Ashley J said the issue was one the Court is empowered to determine and that r 54.02 was an appropriate vehicle to do so. In doing so the Court is not embarking upon a decision as to the merits of competing wishes of the living. Rather it identifies the person with the best claim in law for responsibility to make those decisions.
[10]Meier (n 2).
In Smith v Tamworth City Council & Ors,[11] Young J traced the development of the law relating to the right of burial and the law’s approach to competing wishes and emotions of the living. This was distilled into 15 principles. Relevant to this case they are:[12]
[11](1997) 41 NSWLR 680 (Young J).
[12]Ibid 693-694 (maintaining numbering as originally set out by Young J).
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.Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
3.A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
4.Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
5.The right of the surviving spouse or de facto spouse will be preferred to the right of children.
6.Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
8.Cremation is nowadays equivalent to burial.
14.The holder of the Right of Burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
As was said by Young J:
It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased’s body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and the payment of funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, the person with the largest interest will normally be the person who is the one expected to bury the body.[13]
[13]Ibid 691.
Where there can be no better legal right discerned — such as a dispute between two parents with equal rights — then to some extent the Court will have to consider competing claims. In Calma v Sesar,[14] parents of an adult son disagreed on the location for burial. The father favoured a family plot in the cemetery at the church in Port Hedland, WA where the son was baptised, and the mother chose Darwin where she had many relatives. Martin J said:
A legal solution must be found, not one based upon competing emotions or the wishes of the living, except insofar as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values. The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.[15]
As a matter of practicality, burial arrangements had been made in Darwin and the body was already located there. Martin J said there was no good reason in law that the removal of the body to WA for burial should be preferred.
[14]Calma (n 2).
[15](1992) 106 FLR 446, 452.
The likely administrator test may be departed from. Byrne J in Leeburn v Derndorfer[16] observed that the decision entrusted to an executor may admit qualification in circumstances where the three executors could not agree on instructions to the funeral directors. In Keller v Keller,[17] Hargrave J was faced with a will that appointed State Trustees as executor. The professional executor sought guidance from the Court in resolving a dispute between the two adult children of the deceased. The two adult children had equal claims and the resolution reached was to identify the child in whom the deceased had placed her trust and confidence concerning significant issues in her later years. This could be objectively ascertained from evidence before the Court.
[16]Leeburn (n 3).
[17]Keller (n 3).
Application of principles
Alex puts forward his claim as the best in law on the basis that the de facto relationship between the deceased and Luisa had come to an end by reason of the September 2022 intervention order. That submission rested on evidence of words and actions of the deceased, mostly in or around June 2022 consistent with an intention to end the relationship permanently. As a result he submits that the defendant could not be appointed as administrator. In the alternative he submits that the circumstances of this case mean that he, on behalf of the siblings and mother of the deceased, bears the right and obligation to dispose of his father’s remains.
Luisa claims a right and obligation based upon a subsisting relationship, submitting that although living separately at the time of death the relationship was ongoing. She deposes to continuing to support the deceased financially, practically and emotionally, up until his death. She shed a different light on some of the events, such as their attendance at a wedding in Sydney in June 2022, in the context of their relationship.
The factual circumstances of the family relationships and the events giving rise to various claims and counterclaims would require a lengthy adversarial hearing into the merit of the competing factual disputes. The Court should not enter into such matters unless it is necessary to the Court’s task. Although the plaintiff submitted it was necessary for me to determine whether or not there was a de facto relationship subsisting between Luisa and the deceased, it is not necessary that I do so. I refused an application by the plaintiff’s counsel to cross-examine Luisa on this question.
The person meeting the test of the likely administrator may not be the person ultimately appointed as administrator. Nor for that matter might any administrator be appointed. It is a convenient vehicle for prioritising persons wishing to hold the rights and obligations with respect to a deceased person. When ascertaining a likely administrator, one looks to the person with the greatest interest in the estate.
In the present case, the greatest interest in the estate would fall to the four minor children of the deceased. As their custodial parent, Luisa would be likely administrator regardless of whether or not her relationship with the deceased remained on foot. This means that on the test of the likely administrator the defendant would succeed over a claim by an adult child of the deceased. It is not necessary to consider practicalities that would favour one or other of the two claims.
For completeness I should add that to the extent that the strongly held cultural or religious beliefs of the deceased are relevant factors to consider, I am not satisfied that the evidence disclosed that the deceased did express any strongly-held belief or wishes with respect to his remains.
At the conclusion of the hearing I made orders giving the defendant seven days from publication of these reasons to make any submissions regarding orders as to costs and the plaintiff a further seven days to respond. I will then deal with any costs orders on the papers and make an order dismissing the proceeding.
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