Marschall v Elson - [2023] SASCA 1

Supreme Court of South Australia
(Court of Appeal: Civil)
MARSCHALL v ELSON
[2023] SASCA 1
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Lovell)
12 January 2023
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
By an originating application dated 5 January 2023, the appellants urgently sought the grant of letters of administration over the estate of their son, who died intestate. At the hearing before the primary judge the central issue concerned the funeral and cremation arrangements made by the respondent.
The respondent is or was the domestic partner of the deceased and the mother of two of his three infant children. The appellants maintained that cremation was contrary to the deceased’s religious views and wishes which favoured burial.
The appellants’ application was effectively for injunctive relief. This was dismissed and the primary judge gave reasons ex tempore, emphasising that the respondent had “priority in obtaining letters of administration”. The allegations regarding the deceased’s religious views and wishes did not appear to have been addressed.
The respondent did not file any evidence but made submissions on appeal that the deceased was not religious and had said that he wanted to be cremated.
The Court held:
1.Whilst whether the respondent is in a position to take out letters of administration is relevant to determining who may decide the manner and place of burial, the decision of the Full Court in Jones v Dodd (1999) 73 SASR 328 required a flexible, open textured approach where cultural, spiritual and religious considerations relating to the deceased and his family are also relevant.
2.It cannot be said that there was no serious question to be tried on the approach laid down by the Full Court in Jones v Dodd, or that the balance of convenience did not favour the making of an order forestalling cremation.
3.The appeal is allowed and the matter remitted for urgent determination with the benefit of the further evidence the parties wish to adduce.

Supreme Court Act 1935 (SA) ss 19C, 50; Uniform Civil Rules 2020 (SA) r 212.4; Family Relationships Act 1975 (SA) s 11A; Burial and Cremation Act 2013 (SA) s 9, referred to.
Brown v Tullock (1992) 7 BPR 15,101; Burrows v Cramley [2002] WASC 47; Calma v Sesar (1992) 106 FLR 466; Dodd v Jones [1999] SASC 458; Haydon v Chivell [1999] SASC 315; Jones v Dodd (1999) 73 SASR 328; Jones v Dodd [1998] SASC 6769; Meier v Bell (Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997); Minister v Brown [2009] SASC 86; Smith v Tamworth City Council (1997) 41 NSWLR 680; South Australia v Smith (2014) 119 SASR 247; South Australia v Ken [2021] SASC 10, considered.

MARSCHALL v ELSON
[2023] SASCA 1
Civil - Livesey P and Lovell JA
THE COURT:
Introduction

By an originating application dated 5 January 2023, the appellants sought the grant of letters of administration over the estate of their son, Joshua Wade Marschall, who died intestate on 21 December 2022.
When the matter came on urgently before the primary Judge on Thursday, 5 January 2023, the appellants pressed for appointment as interim administrators, asking that the matter be adjourned to allow them to file the documents necessary to obtain a grant of letters of administration.
It became clear during the hearing, however, that the appellants were primarily concerned about the funeral and cremation arrangements made by the respondent, scheduled for the following day (Friday, 6 January 2023) at Barossa Funerals at Tanunda in the Barossa Valley. The appellants opposed cremation, claiming that it was contrary to the deceased’s wishes and religious views which favoured burial. The underlying assumption was that whoever could obtain letters of administration could determine the manner and place of burial. Despite the terms of the appellants’ application, the hearing effectively turned on whether they were entitled to an interlocutory injunction which prevented cremation pending the resolution of the dispute over the manner and place of burial.
The appellants’ application was dismissed and the primary Judge gave reasons ex tempore, emphasising that, as the respondent is or was the domestic partner of the deceased and the mother of two of the deceased’s three infant children, she had “priority in obtaining letters of administration”.
The appeal – some observations
On Monday, 9 January 2023 the appellants filed an appeal against the refusal of the primary Judge to grant injunctive relief preventing cremation, requesting that it be heard urgently. Given the urgency, the appeal was heard by two members of this Court on 12 January 2023.[1]
[1] Where the Chief Justice or President determine, two judges may sit, see s 19C(2) of the Supreme Court Act 1935 (SA) and r 212.4(c) of the Uniform Civil Rules 2020 (SA).
As with many disputes over the fate of human remains, the primary Judge was presented with a difficult decision. Doyle CJ has described this kind of decision as one which could not truly be called a “legal judgment” and that determining who may decide the manner and place of burial requires that the Court resolve a problem which is “really insoluble in one sense” because no solution or compromise will satisfy those in dispute.[2]
[2] Dodd v Jones [1999] SASC 458, [36] (Doyle CJ).
This was compounded by the circumstances of the deceased’s death and the effect that had on his family. He died unexpectedly and apparently by suicide. The parties in dispute were grieving and, inevitably, affected by emotion. They were troubled and perhaps motivated by a range of issues, many of which were not relevant to the decision that the Court was required to make. Of necessity, the litigation came on quickly. There was little time to prepare. The evidence was incomplete and sparse if not also conflicting. These difficulties were pronounced in this case because not all parties were represented before the primary Judge (none were on appeal) and they were not in a position to provide the assistance the court could usually expect.
Before the merits of the appeal were addressed, the parties were invited to consider mediation and, although arrangements were made to facilitate that on the morning of Friday, 13 January, mediation did not proceed because the parties did not all agree to it.
Barossa Valley Funerals should have been joined but has not been. Barossa Valley Funerals has nonetheless effectively abided the event.
Because the primary Judge refused relief in the nature of an injunction, permission to appeal is not required, see s 50(5)(c) of the Supreme Court Act 1935 (SA).
The question for this Court is whether the judgment of the primary Judge in refusing the appellants an injunction was affected by a material error, whether that be an error of fact or of law, or in connection with the discretionary considerations bearing on whether to grant an injunction. Whilst whether the respondent is in a position to take out letters of administration is relevant to determining who may decide the manner and place of burial, in South Australia the authorities favour a flexible, open‑textured approach where cultural, spiritual and religious considerations relating to the deceased and his family are also relevant.[3] That may be contrasted with the traditional common law approach where neither the intestate deceased nor anyone apart from the person entitled to full decision-making authority has control over the body and the manner and place of burial.[4]
[3] Jones v Dodd (1999) 73 SASR 328, [50]-[51] (Perry J with whom Millhouse and Nyland JJ agreed); Dodd v Jones [1999] SASC 458, [30]-[39] (Doyle CJ); Minister for Families and Communities v Brown [2009] SASC 86, [31] (Gray J); South Australia v Smith (2014) 119 SASR 247, [34] (Nicholson J); South Australia v Ken [2021] SASC 10, [6]-[10] (Stanley J).
[4] Kate Falconer, “Reconceptualising the Law of the Dead by Expanding the Interests of the Living” (2019) 45(3) Monash University Law Review 757, 760-761.
For the reasons that follow, in determining whether to grant an injunction, the primary Judge failed to follow the approach laid down by the Full Court in Jones v Dodd,[5] with the result that on 12 January 2023 the appeal was allowed and the matter remitted for urgent determination.
[5] Jones v Dodd (1999) 73 SASR 328, [33] (Perry J with whom Millhouse and Nyland JJ agreed).
The decision of the primary Judge
The respondent was represented by her solicitor before the primary Judge. The appellants were not represented though they received assistance from the carer who usually assists the first appellant with her eyesight and mobility issues.
The argument before the primary Judge proceeded on the basis that the respondent is or was the deceased’s “domestic partner” within the meaning of s 11A of the Family Relationships Act 1975 (SA):
11A—Domestic partners
A person is, on a certain date, the domestic partner of another if—
(a) the person is, on that date, in a registered relationship with the other; or
(b) the person is, on that date, living with the other in a close personal relationship and—
(i)the person—
(A)has so lived with the other continuously for the period of 3 years immediately preceding that date; or
(B)has during the period of 4 years immediately preceding that date so lived with the other for periods aggregating not less than 3 years; or
(ii)a child, of whom the 2 persons are the parents, has been born (whether or not the child is still living at that date).
There is no suggestion that the relationship between the deceased and the respondent was “registered”, and no declaration has been sought pursuant to s 11B of the Family Relationships Act 1975 (SA).
A significant feature of this litigation is that the respondent through her solicitor submitted that she remained the deceased’s domestic partner at the time of his death but there was no evidence to that effect. Indeed, no evidence at all has been filed by or on behalf of the respondent.
A reading of the transcript shows that the primary Judge was understandably troubled by the appellants’ delay in making their application, some days after a meeting at Barossa Funerals during which they had discussed and appeared to agree with the funeral arrangements which the respondent had arranged with representatives of the funeral home. Nonetheless the second appellant, the deceased’s father, told the primary Judge that he had objected to cremation and the first appellant, the deceased’s mother, said that they were told that they had “no say” in the matter.
The primary Judge was told that the funeral and cremation arrangements had been deferred to Monday, 9 January 2023.
The brief affidavit evidence before the primary Judge was supplemented by submissions from the deceased’s mother and the respondent’s solicitor, using Webex. Only an audio connection could be made. After those submissions, the primary Judge dismissed the application, principally because the respondent had “priority in obtaining letters of administration”.
Whether the respondent remained the deceased’s domestic partner at the date of his death was not the subject of any finding. That is understandable as it seems to have been assumed that even if the respondent could not make an application in her own right, she could do so on behalf of her infant children. The primary Judge had no information about the attitude of the deceased’s previous domestic partner, who resided in Queensland with the deceased’s eldest infant daughter.
No finding was made about the appellants’ contention that cremation was contrary to the deceased’s wishes and beliefs. Whilst it was clear that the respondent was pressing for cremation, there was no evidence or other information led to explain her position.
Hearings before the Court of Appeal
The primary challenge made on appeal is to the finding that the respondent qualified under the Family Relationships Act 1975 (SA) as the “domestic partner” of the deceased at the date of his death. The grounds of appeal are as follows:
1.That HH the Chief Justice erred in law when he applied those facts known to him, so as to suggest that the Respondent [in these proceedings] would qualify under the Family Relationships Act 1975, to be considered to be the senior person who would qualify pursuant to Section 11A and Section 11B, as the “domestic partner” of the deceased at the vesting date, namely the deceased’s date of death, ahead of the deceased’s parents, and notwithstanding that the Respondent does not have (nor qualify) any Order pursuant to the Family Relationships Act 1975.
2.(a) That HH the Chief Justice failed to exercise his discretion to invoke the provisions of Section 32(2) of the Coroners Act, 2003 (SA) in that the Court is now aware of a “dispute as to who may be entitled at law to possession of the body of a dead person for the purposes of its disposal” and failed to make an appropriate Order in line with those provisions
(b) AND alternatively, that the Court [ HH the Chief Justice] ought to have intervened (notwithstanding that the “Authorisation for the disposal” had already been issued), within the Court’s inherent parens patraie jusrisdictional powers – to Order that the deceased is not to be buried or cremated, until the dispute is resolved.
The brief affidavit evidence before the primary Judge has been supplemented by further affidavit evidence filed by the appellants on 9 January 2023.[6]
[6] Though the respondent objected to this “fresh evidence” it was, at the least, relevant to the application to extend the injunction.
The appeal was listed for directions during the early afternoon of Monday, 9 January 2023. When the matter came on before Lovell JA, he was informed that the relevant parties were at the funeral which was then being conducted at Barossa Funerals. Following brief submissions from the solicitor for the respondent, Lovell JA made an interim order enjoining Barossa Funerals from proceeding with cremation until Friday, 13 January 2023 and he listed the appeal for an urgent hearing before the Court of Appeal on the morning of Thursday, 12 January 2023.[7]
[7] Uniform Civil Rules 2020 (SA), r 212.5(1).
Ultimately, this is a case concerning an application for an interlocutory injunction made in the context of competing claims by family members as to who has the right to possession of the deceased’s body for the purposes of determining the manner and place of burial where the deceased died intestate.[8]
[8] Cf, Jones v Dodd (1999) 73 SASR 328, [33] (Perry J, with whom Millhouse and Nyland JJ agreed).
At the hearing of the appeal the appellants accepted that if the deceased was to be buried they would and could meet the cost of doing so. The respondent maintained that there should be a cremation.
Factual background
The deceased was born on 4 March 1989 and was 33 years at the time of his death. There appears to be no dispute that the deceased and the respondent were domestic partners for around nine years. During the course of that relationship the deceased and the respondent were joint lessees of rental property at Munno Para and, as mentioned, there were two children of that relationship who are presently six and two years of age. The deceased has an older daughter who is presently 14 years and lives in Queensland with her mother, Ms Kirsty Nance. There was evidence that the deceased remained in regular contact with his older daughter.
Whether the respondent remained the deceased’s domestic partner at the date of his death is disputed. The appellants contend that the respondent moved out of the Munno Para home she shared with the deceased and was residing with their two children in her parents’ home in nearby Gawler for some months. Nonetheless, the respondent remained a named lessee and she retained keys to the Munno Para home. Though the evidence is unclear, it would appear that the respondent discovered the deceased’s body when she went to the Munno Para property a day after the deceased had asked her to visit him and she had refused. It may be that the deceased was suffering from depression and died by suicide. There was apparently an earlier suicide attempt made when the deceased was 18 years.
After discovering the deceased’s body, the respondent contacted police and, eventually, the Coroner authorised the release of the deceased’s body to Barossa Funerals for the purposes of cremation.[9] Whether the body was released into the custody of the respondent is unclear. Certainly, there is no evidence that the Coroner became aware of any dispute within s 32(2) of the Coroner’s Act 2003 (SA):
If the State Coroner becomes aware of a dispute as to who may be entitled at law to possession of the body of a dead person for the purposes of its disposal, the State Coroner may refrain from issuing an authorisation for the disposal of human remains in respect of the body until the dispute is resolved.
[9] See generally, Haydon v Chivell [1999] SASC 315 (Lander J) in relation to ss 30 and 31B of the repealed Coroner’s Act 1975 (SA). See also the Burial and Cremation Act 2013 (SA).
Although the first appellant told the primary Judge that the deceased had been estranged from his parents for 18 months, she also said that she had a number of conversations with the deceased after he separated from the respondent. Based on these conversations, the appellants claimed that the deceased and the respondent were effectively living apart but under the same roof for two years before December 2022. They maintained that the deceased had commenced a new relationship with a woman whom he had known since she was a teenager. The first appellant asserted that the respondent contacted this woman and asked that she refrain from revealing the fact of her new relationship with the deceased.
Both the first appellant and Ms Nance have deposed that over several months during late 2022 the deceased told them that, after he and the respondent had separated, informal arrangements were in place for the deceased to have contact with his two younger children. Evidence from Ms Nance also demonstrated that from 1 October 2022 the deceased’s responsibilities by way of child support concerning his eldest child were varied and payments were reduced to reflect his care of his two younger children, suggesting that the respondent (or perhaps the deceased) had notified the Child Support Registrar of a relevant change to the deceased’s circumstances as from that date.
After the appeal was filed, on 11 January 2023 the appellants filed a further application seeking an extension of the orders made by Lovell JA for 28 days so that they could prepare the documents necessary to proceed with their application to be granted letters of administration. The evidence filed in support was somewhat repetitive but included serious allegations against the respondent’s father, accusing him of making threats of violence against the appellants.
Two features in the evidence: an unaddressed issue
None of the deponents was called for cross‑examination and, inevitably, there remain unresolved issues as well as significant gaps in the evidence. Nonetheless, there are two striking features in the evidence, only one of which is significant for the purposes of this appeal.
The first of these features, which it is not necessary to determine on this appeal, is that the appellants were concerned about the fate of various chattels, primarily motor vehicles, which they contend were owned by the deceased and in which they have an interest pursuant to a reservation of title arrangement under which they advanced monies to the deceased for the purposes of acquisition. They claim that the respondent and her father have made it difficult for them to recover their property. This seems to be one of the reasons why the appellants seek appointment as administrators.

Whilst these disputes over property rights are of undoubted importance to the parties, it is not necessary to resolve them for the purposes of resolving the present appeal. On any view, the deceased’s estate is small and unlikely to reach $20,000. Were it not for the dispute over the manner and place of burial, an estate of that size would not warrant the appointment of an administrator.
The second feature of the evidence, which is relevant to the appeal, is that the appellants and Ms Nance have deposed to conversations with the deceased about his wishes and beliefs. The appellants maintain that the deceased wanted to be buried in the Barossa with his parents and four generations of forebears of the Marschall and Kuchel families. They say that, as a Catholic, he did not wish to be cremated and that these arrangements were discussed over the years, especially following the deceased’s first suicide attempt at the age of 18 years. Ms Nance deposed that the deceased told her that he was a Christian who did not want to be cremated but instead buried.
As mentioned, there is no evidence from the respondent. It was only during the hearing of this appeal that she requested an opportunity to adduce evidence.
In answer to questions from the Court, the respondent challenged the evidence that the deceased was a Christian who did not wish to be cremated but instead buried. She acknowledged the possibility that the deceased had said different things to different people but favoured the view that, whatever might have been said to his parents or his former domestic partner, around five years ago he indicated a preference for cremation and the scattering of his ashes in the Murray River near a property owned by her parents. The respondent said that her plan was that the deceased would be cremated and his ashes split equally between her and her children, the deceased’s daughter in Queensland and the appellants. She said that this had been agreed with the appellants during the meeting at Barossa Funerals. Although it seems that the respondent facilitated the funeral in the Barossa Valley, she said that the deceased did not want to be buried with his family in the Barossa Valley.
Finally, there is an unaddressed issue. By s 9(3) of the Burial and Cremation Act 2013 (SA) a person may not proceed with cremation if that person “knows or is aware” that “a personal representative or a parent or child of the deceased objects”:
A person must not dispose of bodily remains by cremation or cause, suffer or permit bodily remains to be disposed of by cremation, if the person knows or is aware that a personal representative or a parent or child of the deceased objects to this method of disposal (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation).
Neither the primary Judge nor this Court heard submissions about the effect of s 9(3) in this case, or about the Burial and Cremation Act 2013 (SA) more generally, including whether it may be overcome by an order of the Court (or by anyone else, see for example, s 11 by which the Attorney-General, the State Coroner or a magistrate may by order prohibit disposal by cremation).
The applicable legal principles
The leading authority in South Australia is the Full Court decision of Jones v Dodd, and the facts of that case bear some similarity to the facts of this case. In that case the former de facto spouse of the deceased, the mother of two of his children, and the deceased’s father were in dispute over where the deceased should be buried.[10] There was no real prospect that letters of administration would be sought, the deceased having died intestate.
[10] Jones v Dodd [1998] SASC 6769 (Debelle J); on appeal Jones v Dodd (1999) 73 SASR 328 (Perry J, with whom Millhouse and Nyland JJ agreed).
The former spouse favoured burial in Port Augusta where she and her children lived, but the deceased’s father wanted the burial to be in the family’s traditional lands in Oodnadatta, in the area where the deceased had spent most of his life. The deceased’s father gave evidence that this was consistent with the deceased’s wishes and with Aboriginal custom, where the head of the family decided family and land issues.
Having found that the former spouse could not apply for letters of administration under the Administration and Probate Act 1919 (SA), the primary Judge, Debelle J, applied the principle which he determined was laid down in Smith v Tamworth, that the right of burial then vests in the next of kin.[11] On that approach, and consistently with the evidence of Aboriginal custom in that case, the primary Judge found that the deceased’s father had the right to decide the funeral arrangements.[12]
[11] Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-693 (Young J).
[12] Citing Percival E Jackson, The Law of Cadavers (Prentice-Hall Inc, New York, 1937), cited in Smith v Tamworth (1997) 41 NSWLR 680, 686-687, 693.
On appeal, the Full Court dismissed the appeal but rejected the proposition that there was a “next of kin” rule.[13] In the course of conducting an extensive review of the common law regarding the dead and burial rights, Perry J accepted that earlier authorities had concentrated on the wishes of the person best placed to obtain an order for administration of the estate of the intestate deceased.[14] However, he held that there was no rigid principle of law to that effect which was applicable in all cases. Perry J adopted the following statement of principle made by Young J following his own, exhaustive review of the authorities in Smith v Tamworth:[15]
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 for the payment of the 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,[16] the person with the largest interest will normally be the person who is the one expected to bury the body.
(Emphasis added by Perry J.)
[13] Jones v Dodd (1999) 73 SASR 328, [26] (Perry J, with whom Millhouse and Nyland JJ agreed).
[14] For example, see Brown v Tullock (1992) 7 BPR 15,101 (Waddell CJ in Eq); Meier v Bell (Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997).
[15] Jones v Dodd (1999) 73 SASR 328, [45]-[46] (Perry J, with whom Millhouse and Nyland JJ agreed), citing Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 (Young J), referring to R v Stewart (1840) 12 Ad & E 773 at 778; 113 ER 1007 at 1009, R v Fox (1841) 2 QB 246; 114 ER 95; Williams v Williams (1882) 20 Ch D 659; R v Gwynedd County Court; Ex parte B [1992] 3 All ER 317, Robertson v Pinegrove Memorial Park Ltd (1986) 7 BPR 15,097, Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273; Calma v Sesar (1992) 106 FLR 446; Brown v Tullock (1992) 7 BPR 15,101; Burnes v Richards (1993) 7 BPR 15,104; Warner v Levitt (1994) 7 BPR 15,110, and a number of cases on the separate question of property in a corpse, including in that respect Dobson v North Tyneside Health Authority [1996] 4 All ER 474; Doodeward v Spence (1908) 6 CLR 406; Pierce v Proprietors of Swan Point Cemetery (1872) 10 RI 227; 14 Am Rep 667 at 677; Polhemus v Daly 296 SW 442 at 444 (1927). He also refers to Percival E Jackson, The Law of Cadavers (Prentice-Hall Inc, New York, 1937); S G Hume, "Dead Bodies" (1956) 2 Sydney Law Review 109; P.W. Young “The Exclusive Right to Burial” (1965) 39 ALJ 50; and G. Pawlowski, “Dead Bodies as Property” (1996) 146 NLJ 1828.
[16] In the Estate of Slattery (1909) 9 SR (NSW) 577; 26 WN (NSW) 116.
Where there is no estate, or where there is no likelihood of an application for a grant of administration in intestacy, Perry J held that an approach based on the extent of interest in the estate, or on the entitlement to apply for a grant, “takes on an air of unreality”:[17]
In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.
[17] Jones v Dodd (1999) 73 SASR 328, [50]-[51] (Perry J, with whom Millhouse and Nyland JJ agreed).
Contrary to earlier authority,[18] and notwithstanding the prospect that the evidence may be conflicting, Perry J held that “proper respect and decency” compelled the Court to consider “spiritual or cultural values”, and that this was consistent with various international obligations,[19] including the rights of the deceased’s children and, where known, their views. Later, Perry J emphasised these matters:[20]
In any event, as I have explained, the common law principles, to the extent that they may be relevant, have regard to the extent of interest in the estate and eligibility to apply for a grant of letters of administration in intestacy, rather than on “kinship”. But as I have explained, such so-called principles are no more than a convenient method of approach to some cases, rather than a hard and fast rule. Furthermore, that approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for.
In all cases, consideration should be given to cultural, spiritual and religious factors, where such factors are present.
[18] Calma v Sesar (1992) 106 FLR 466, 452 (Martin J): “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”.
[19] Such as the “right to freedom of thought, conscience and religion” under the International Covenant on Civil and Political Rights, 999 UNTS 171 (signed 18 December 1972, ratified 13 August 1980); the special rights of indigenous peoples, including the “minimum standards (necessary) for the survival, dignity and well-being of the indigenous peoples of the world” under the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007); and that ‘the best interests of the child shall be a primary consideration’ under the Convention on the Rights of the Child, GA Res 44/25 (adopted 20 November 1989); see generally Jones v Dodd (1999) 73 SASR 328, [56]-[63] (Perry J, with whom Millhouse and Nyland JJ agreed).
[20] Jones v Dodd (1999) 73 SASR 328, [67]-[68] (Perry J, with whom Millhouse and Nyland JJ agreed).
Following the English practice, it was contended that the highest priority was to be accorded to the wishes of those with the greatest interest in the estate, not the next of kin.[21] So, whilst neither a former de facto spouse nor the infant children of the deceased could in that case obtain a grant of letters of administration in the estate of the intestate deceased, the children were entitled to the whole of the estate under s 72G(c) of the Administration and Probate Act 1919 (SA). Consistently with the Probate Rules of the Supreme Court, that meant that the children in that case held the priority interest. As they were minors, the Probate Rules provided that their parents or guardians were entitled to the grant.
[21] Jones v Dodd (1999) 73 SASR 328, [48] (Perry J, with whom Millhouse and Nyland JJ agreed).
The Full Court effectively concluded that, despite the capacity of the former de facto spouse to obtain a grant of letters of administration in respect of the rights of the infant children of the deceased in his estate, the cultural, spiritual and religious factors emphasised in the evidence of the deceased’s father were to be preferred and, on the unchallenged evidence, his views as the head of the family must prevail.
Subsequently, in Dodd v Jones Doyle CJ emphasised that Perry J had recognised that the common law approach was the “usual approach”, though it was not to be rigidly applied.[22] In that case, which involved different parties and evidence than the Full Court case, the wishes of the de facto spouse of nine years, together with those of their children, were preferred over the wishes of the deceased’s father. As Doyle CJ explained:[23]
Their wish to bury the deceased where he and they lived is an understandable one. One would expect that usually the wishes of a spouse, either at law or de facto, would be respected in relation to the place of burial.
[22] Dodd v Jones [1999] SASC 458, [30]-[31].
[23] Dodd v Jones [1999] SASC 458, [33].
Doyle CJ emphasised that “the claim of a de facto spouse of nine years standing, who has two children by the deceased, is a strong one on any view of the practices and attitudes that prevail in our society”.[24]
[24] Dodd v Jones [1999] SASC 458, [37].
In Minister for Families and Communities v Brown, Gray J was asked by the Minister to make an order in the exercise of the Court’s inherent jurisdiction so as to resolve a disagreement about the place of burial in connection with competing claims made under the funeral assistance programme operated under s 10 of the Family and Community Services Act 1972 (SA).[25] The deceased had died intestate. One part of the family favoured burial in the deceased’s traditional lands near her place of birth at Coober Pedy. There was evidence that the deceased did not adhere to traditional Aboriginal practices and customs. By contrast, another part of the family favoured burial at Raukkan, also known as Point McLeay, where the deceased had purchased and installed a headstone for her deceased de facto spouse. There was also evidence that the deceased had expressed a desire to be buried with her de facto spouse, her “husband”, and to have her name added to the headstone.
[25] Minister for Families and Communities v Brown [2009] SASC 86, [1]-[3].
Having weighed the conflicting claims, Gray J upheld the wishes of those who sought burial at Raukkan, explaining:[26]
It has been necessary to consider … the lifestyle, relationship and practices of the deceased in order to give effect to the factors outlined in the approaches of Pullin J in Burrows v Cramley[27]and that of the Full Court in Jones v Dodd.[28]
[26] Minister for Families and Communities v Brown [2009] SASC 86, [31] (Gray J).
[27] Burrows v Cramley [2002] WASC 47 (Pullin J).
[28] Jones v Dodd (1999) 73 SASR 328.
In South Australia v Smith, Nicholson J was called on by the Minister to resolve another dispute about the mode and location of burial following conflicting requests for financial assistance made under the statutory funeral assistance programme. Nicholson J addressed the question of standing in some detail. After having carefully reviewed the authorities, Nicholson J concluded:[29]
The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded.
[29] South Australia v Smith (2014) 119 SASR 247, [34] (Nicholson J).
On the evidence in the case before him, Nicholson J identified four main considerations to be weighed in connection with the flexible approach laid down by the Full Court in Jones v Dodd:[30]
1.The person who might be entitled to obtain letters of administration in the event that such an application were to be made;
2.Aboriginal cultural matters and concerns raised in the evidence;
3.The deceased’s own wishes; and
4.The wishes and sensitivities of the living close relatives.
[30] South Australia v Smith (2014) 119 SASR 247, 260-263 [47], [55], [61] and [65] (Nicholson J).
The deceased had been born in Port Augusta before moving between there, Coober Pedy and Ceduna, where he died intestate. The children preferred burial in Port Augusta, where one of the deceased’s children was buried. The extended family sought burial where they resided in Cooper Pedy. Although one of the children was soon to be in a position to seek letters of administration in the deceased’s estate, Nicholson J gave that circumstance little weight, relying on the reasons of Perry J in Jones v Dodd.[31] His Honour ultimately preferred the wishes of the deceased’s children over those of the deceased’s extended family.[32]
[31] South Australia v Smith (2014) 119 SASR 247, [53] (Nicholson J).
[32] South Australia v Smith (2014) 119 SASR 247 (Nicholson J).
In a recent case Stanley J preferred the wishes of the intestate deceased’s paternal family over those of his mother and sister, having regard to the “Aboriginal cultural matters and concerns established by the evidence”:[33]
In Love v Commonwealth[34] Bell J said that the High Court in Mabo v Queensland[35] recognised a connection that Aboriginal Australians have with “country” that is essentially spiritual.[36] In Love Nettle J observed that central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.[37]
[33] South Australia v Ken [2021] SASC 10, [27] (Stanley J).
[34] (2020) 270 CLR 152.
[35] (1992) 175 CLR 1.
[36] (2020) 270 CLR 152, [70] (Bell J).
[37] (2020) 270 CLR 152, [276] (Bell J).
On the evidence, the deceased was a fully initiated Wati and his country was Pukatja. His paternal family asserted cultural authority to decide where the deceased would be buried: as they lived on their traditional lands they wished to conduct the burial of the deceased according to their law and custom. That was consistent with evidence of academic research and writing on Pitjantjatjara burial practices, demonstrating that it was important for Anangu to be buried back on country, the land of their totemic ancestors, the country of their Tjukurpa.[38]
[38] Bill Edwards, “Changes in Pitjantjatjara Mourning and Burial Practices” (2013), Vol. 1, Journal of Australian Aboriginal Studies 31.
Stanley J considered various of the South Australian authorities before observing that the flexible approach of Nicholson J in South Australia v Smith, following the Full Court’s decision in Jones v Dodd, had been adopted interstate.[39]
[39] South Australia v Ken [2021] SASC 10, [11] (Stanley J), citing Darcy v Duckett [2016] NSWSC 1756, [8] (Campbell J): “the same flexible approach should be applied in New South Wales” and [27]-[28]; Abraham v Stone [2017] NSWSC 1684, [50] (Rothman J), albeit preferring the approach of Young J in Smith v Tamworth; Nayacakalou v Vincent [2020] NSWSC 24, [28] (Henry J). See also Kitchener v Thomas [2019] NSWSC 701, [21] (Emmett AJA).
Following this review of the authorities,[40] the key propositions appear to be these:
1.There is no property in a dead body, and it may not be owned by anyone. Nonetheless in certain circumstances the law may protect the lawful possession of a corpse or body parts.[41]
2.When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative. Where there is a will, that is the executor or executrix named in the will. There is no longer any obligation in a husband to meet the reasonable funeral expenses of his deceased wife.[42]
3.Where the deceased does not have the means to pay for burial, the occupier of the premises in which the person dies has the duty to cover the body and convey it for burial. That obligation extends to hospitals and medical facilities.[43]
4.Where there is no executor named, but the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup those expenses out of the estate.[44]
5.Where the deceased dies intestate, but there is no significant estate, or it is unlikely that an application will be made to take out letters of administration, the wishes of the person best placed to obtain an order for administration will not necessarily be accorded significant weight on account of that fact alone.[45]
6.Rather, in all cases involving intestacy, the proper approach requires a flexible balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious matters that are of importance on the evidence. This extends to taking into account, at the least, the wishes of the deceased and the members of the family of the deceased.[46]
7.It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased,[47] and the conscience of the community,[48] require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved.[49]
[40] Particularly Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-693 (Young J) and Jones v Dodd (1999) 73 SASR 328, [27]-[52] (Perry J, with whom Millhouse and Nyland JJ agreed) and the cases they cite.
[41] Doodeward v Spence (1908) 6 CLR 406, 414 (Griffith CJ with whom Barton J agreed, Higgins J dissenting).
[42] Jones v Dodd (1999) 73 SASR 328, [29] (Perry J, with whom Millhouse and Nyland JJ agreed). Cf Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-692 (Young J).
[43] Kate Falconer, “Reconceptualising the Law of the Dead by Expanding the Interests of the Living” (2019) 45(3) Monash University Law Review 757, 761 cites University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch); Lakey v Medway NHS Foundation Trust [2009] EWHC 3574 (QB).
[44] Smith v Tamworth City Council (1997) 41 NSWLR 680, 691 (Young J).
[45] South Australia v Smith (2014) 119 SASR 247, [53] (Nicholson J).
[46] South Australia v Smith (2014) 119 SASR 247, [34] (Nicholson J).
[47] Burial and Cremation Act 2013 (SA) s 6; Minister for Families and Communities v Brown [2009] SASC 86 at [10].
[48] Calma v Sesar (1992) 106 FLR 446, 452 (Martin J).
[49] Calma v Sesar (1992) 106 FLR 466, 452 (Martin J).
Determination of the appeal

When resolving the application for an injunction in this case it would appear that principal consideration was given to the capacity of the respondent to obtain appointment as administrator, whether in her own right or on behalf of her children (as had been advocated in Jones v Dodd).[50]
[50] Jones v Dodd (1999) 73 SASR 328, 333 and see also s 72G(1)(c) of the Administration and Probate Act 1919 (SA) and r 34(1) of the Probate Rules 2015 (SA).
None of the leading authorities were cited to the primary Judge. His ex tempore reasons do not explicitly refer to the wishes of the deceased or his family, nor to the religious and cultural considerations reflected in them.
In a case where the estate is very small and it is likely that, were it not for the dispute about the manner and place of burial, no interested party would seek to take out letters of administration, the wishes of the person who is best-placed to take appointment is not determinative. When considering whether there was a serious question to be tried,[51] it was necessary to balance common law principles and practical considerations, and this included considering the cultural and religious matters which, on the evidence, had to be addressed under the flexible approach laid down by the Full Court in Jones v Dodd.
[51] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason CJ), followed in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, 217-218 (Gleeson CJ). No undertaking as to damages was offered or sought before the primary Judge or on appeal, see r 111.1 of the Uniform Civil Rules 2020 (SA) and Varley v Varley [2006] NSWSC 1025, [66]-[68] (Campbell J).
That was not done. As there was apparently a failure to take into account the relevant test and considerations when determining whether there was a serious question to be tried, it follows that the appeal must be allowed. It cannot be said that there was no serious question to be tried on a proper application of the flexible approach laid down by the Full Court in Jones v Dodd, or that the balance of convenience did not favour the making of an order forestalling cremation.
It is necessary that a decision be made promptly about the manner and place of burial so that the deceased’s burial arrangements can proceed with appropriate dignity and without further dispute, delay or expense. It is preferable that this Court, having determined that the appeal should be allowed, proceeded to finally determine the matter.[52]
[52] Uniform Civil Rules 2020 (SA), r 217.11(1).
However, whatever the desirability of dealing with the matter in that way, this Court is hampered because it does not have any evidence from the respondent. Whilst it could be said that the respondent has had opportunities to put on evidence but has chosen not to do so, even though she was for a time legally represented, it is appropriate to deal with this matter on its substantial merits, mindful that the parties are not now legally represented and that both the respondent and the appellants wish to adduce further evidence.
In these circumstances it is regrettably necessary to set aside the judgment under appeal and remit the matter for urgent hearing next week. It is also necessary to continue the injunction on an interlocutory basis to permit determination of the dispute regarding the manner and place of burial.
Conclusion
For these reasons, on the morning of 12 January 2023 the Court allowed the appeal and remitted the matter for trial before Judge Bochner on Thursday, 19 January 2023, and it also made orders regarding the delivery of affidavits and submissions to facilitate that hearing. No order was made as to costs.
It is not necessary to address the terms of the appellants’ applications concerning the administration of the deceased’s estate. If they are pressed, they can be addressed by a judge in due course.