Marschall v Elson (No 2) - [2023] SASCA 3

Supreme Court of South Australia
(Court of Appeal: Civil)
MARSCHALL v ELSON (No 2)
[2023] SASCA 3
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
30 January 2023
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
The appellants are the parents of the deceased who died intestate on 21 December 2022. The respondent claims to have been the domestic partner of the deceased around the time of his death. The central issue before the Court was whether the deceased should be buried (as the appellants sought) or cremated and his ashes distributed amongst his family members (as the respondent sought).
The trial judge found in favour of the respondent and held that the deceased should be cremated. The appellants commenced an appeal against the judgment of the trial judge. They also sought a stay and an injunction pending the hearing of the appeal, which were refused by Nicholson J. The appellants commenced an appeal against the judgment of Nicholson J.
The Court heard the application for leave to appeal against the order refusing the stay, together with the appeal against the judgment of the trial judge. Further applications were made to lead further evidence and to adjourn the matter so as to enable the appellants to gather further evidence to be led at a new trial.
The Court held:
1.The applications to lead further evidence and seeking an adjournment are dismissed.
2.Leave to appeal against the decision refusing a stay is refused, and the appeal against the refusal to grant a stay and an injunction is dismissed.
3.The appeal against the decision of the trial judge is dismissed.
4. The order made by the Court of Appeal on 12 January 2023 preventing cremation, whether by way of a stay or an injunction against Barossa Funerals, which operated until 9 February 2023 is vacated.

Uniform Civil Rules 2020 (SA) r 213.1; Evidence Act 1929 (SA) ss 22, 23, 24, referred to.
Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152; Police v Mahon [2022] SASCA 76; Return to Work Corporation of South Australia v BI (Contracting) Pty Ltd [2022] SASCA 49; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98, considered.

MARSCHALL v ELSON (No 2)
[2023] SASCA 3
Court of Appeal – Civil: Livesey P, Lovell and Doyle JJA
THE COURT (ex tempore):
Introduction

This is the second time this matter has come before this Court. The appellants are the parents of the deceased who died intestate late last year. The respondent says that she was the deceased’s domestic partner. She is the mother of his two youngest children. The parties are in dispute as to whether the deceased’s remains should be buried or cremated. The appellants seek burial whereas the respondent seeks cremation. The parties are not represented by lawyers.
On the first occasion, the Court allowed the appeal and remitted the matter for urgent determination with the benefit of further evidence from the parties.[1] Orders were made for the filing and service of affidavit evidence. A week later, the trial judge, Judge Bochner, heard the matter and delivered reasons for her decision, upholding the contention of the respondent that the body of the deceased should be cremated, and his ashes divided between the appellants, the respondent and the deceased’s eldest daughter in Queensland.
[1] Marschall v Elson [2023] SASCA 1 (Livesey P and Lovell JA).
The appellants then appealed and, in addition, sought a stay pending the hearing of their appeal. The application for a stay was considered by Nicholson J and on 25 January 2023 his Honour dismissed the application for a stay and injunctive relief pending the hearing of the appeal.
On 27 January 2023, the appellants lodged a Notice of Appeal against the orders made by Nicholson J. An urgent hearing was sought. We have listed that appeal together with the substantive appeal against the orders made by the trial judge on 19 January 2023 for hearing today.
For the reasons that follow, the appeals against the judgments of Nicholson J and Judge Bochner must be dismissed.
The decision by the trial judge
After considering the evidence of the parties as set out in their affidavits, Judge Bochner expressed the view that the respondent’s evidence was the only source of the deceased’s “recent wishes, views and beliefs” and she considered but ultimately rejected the case of the appellants concerning their historical discussions with the deceased about his views concerning burial. Her Honour concluded:[2]
In the circumstances, having considered all of the evidence and the submissions made by the parties, having considered the words of the Full Court in Jones v Dodd, the Court of Appeal in this matter, and the other decisions that have been made in this court since Jones v Dodd, the only orders I feel that I can make today are that the body of the deceased should be cremated and that his ashes should be divided between the applicants, Ms Elson [the respondent] and the deceased’s daughter, Savannah.
[2] Ruling dated Thursday, 19 January 2023, page 6.
The appellants have lodged an amended Notice of Appeal containing the following grounds regarding the judgment of Judge Bochner:
1.     That a material error, as part of the ‘hearing’ occurred, in that;
(a) HH the learned Judge digressed from the original Application which did not seek any Orders for burial or cremation, but sought Orders which were pursuant to the Family Relationships Act.
(b) HH the learned Judge erred in making a finding for cremation, by not informing herself of findings of Debelle J, at first instance, in Jones v Dodd and which were followed later by Nicholson J, in SA v Smith and fails to consider the impact of Gray J, in MINISTER v BROWN [2009] SASC 86
(c)     HH the learned Judge erred in refusing to allow oral evidence to be given – where the witnesses would be able to be cross-examined and testing the honesty and accuracy of the information provided that HH the learned Judge simply accepted oral claims and submissions from the floor which were made by the parties.
(d) HH the learned Judge erred in making findings of fact that the Respondent may be able to establish her entitlement to a declaration under the Family Relationships Act.
(e)     HH the learned Judge erred in her application of erroneous findings of fact, to the appropriate and applicable legal principles that she ought to have applied in reaching any conclusion/s.
(f) That the factual principles in SA v Smith, ought to be distinguished from the current matter, although some of the legal principles set out therein have sound application to a Jones v Dodd type matter, but that a finding of facts, are unable to me [sic] made without a full trial as to a declaration under the Family Relationships Act.
2.     That a material error in law occurred, in that
(a)     That the legal principle was wrongly applied by HH the learned Judge, missled herself in that she failed to correctly adopt those legal principles set out by the Full Court of the Supreme Court of South Australia, and/or by correctly adopting the application of those set out in Jones v Dodd, which were applied by subsequent Courts, namely by Gray J in 2009 in MINISTER v BROWN and by Nicholson J in 2014 in SA v Smith. However HH the Learned Judge was and is unequivically [sic] bound by those principles set out in Jones v Dodd. Including that the Respondent in this matter would not be in any position to be appointed on behalf of her children, and if such provision did apply, the mother of the older child would prevail.
(b)     HH the learned Judge failed to consider the matters raised in the successful Appeal to the Court of Appeal, wherein the Appellants raised the question/s regariding [sic] the provisions of “senior next-of-kin” within the context of the Coroner’s Act, before that Court of Appeal, asserting that the Judge at first instance failed to address those provisions – and asserting that the Appellants – not the Respondent - are the correct parties to make whatever decision/s were required with respect to the affairs of the deceased, including his burial.
(c)     That the legal principle which;
(i)was not applied but that should have been applied, was incorrectly applied by HH the learned Judge, and
(ii)     which was not applied by HH the learned Judge, and
(iii)and the failure by HH the learned Judge, to apply that principal, led to a material failure of the hearing undertaken by HH the learned Judge, in that;-
HH the learned Judge made erroneous findings of fact, and then applied those erroneous facts to a mistaken legal prinicple in which she misdirected herself as to the applicable law to be applied in this matter.
3. That a material error of fact/s occurred ;
(a)     That those facts which were not found,
(i)but which should have been found were that the Respondent had no legal relationship with the deceased within the context of the applicable laws, which would or could elevate her (Respondent) to a position of ‘domestic partner’ within the context of the applicable appropriate legal principles of the legislature and the case law.
(ii) the evidence of such facts which were not found included information that could only be obtained by way of subpoena (and which is and was not available to the Appellants) but Form 183 which is readily available through independent evidence.
(iii) and a failure by HH the learned Magistrate to take into account any finding of such facts as to the Respondent’s Declarations to the Australian Government that her relationship with the deceased – if that had formerly been a “domestic partner” – that independent information available to the Court, was ignored and such informastion [sic] was not permitted to be presented to the Court, which would have involved obtaining material/s via Subpoena and would have had a material impact on the overall decision and findings of HH the learned Judge.
(b) That those facts which were found,
(i) but which should not have been found, included that the Respondent would be able to establish that she is entitled to a declaration under the Family Relationships Act.
(ii) the evidence of such facts which should not have been found was based on mere oral assertions and were not subjected to any cross-examination or scrutiny or factually opposite informations available to the Court.
(iii) and a failure to not have found such facts which would demonstrate that the Respondent would not be entitled – at the vesting time - to any declaration under the Family Relationships Act, was highly material as to the overall decision of HH the learned Judge.
(c) That there is no evidence before the Courts, of the Respondent having any Order within the provisions of the Family Relationships Act 1975 (SA) or seeking any such Order.
The dismissal of the stay application
Nicholson J regarded the interlocutory application before him as seeking a stay of Judge Bochner’s orders, together with injunctive relief directed to Barossa Funerals in aid of the stay, pending consideration by the Court of Appeal of the Notice of Appeal. Nicholson J proceeded on the basis that a stay was necessary even though the order made by the Court of Appeal on 12 January 2023 was expressed to operate subject to the “further order of the Supreme Court” as follows:
Subject to further order of the Supreme Court, Barossa Funerals and the Respondent are enjoined from proceeding with cremation of the deceased's remains until 5pm on Wednesday, 9 February 2023.
After expressing concern about the terms of the grounds of appeal, an amended Notice of Appeal with more particularised grounds of appeal was filed and served and considered by Nicholson J, as set out above. Nicholson J concluded that, whilst grounds 1(c) and 3(b)(ii) were reasonably arguable, he was not satisfied that any of the other grounds were reasonably arguable or that a stay should be granted.
A successful litigant is ordinarily entitled to the benefit of a judgment unless and until it is set aside or varied on appeal. It is for the party seeking a stay to demonstrate a proper basis for the favourable exercise of the court’s discretion. When determining whether it is in the interests of justice to grant a stay the court will usually evaluate that by reference to factors such as whether and to what extent the appeal is reasonably arguable, as well as the balance of convenience.[3]
[3] Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590 (White J); Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, [19]-[25] (Stanley J).
Nicholson J determined the stay application having regard to this approach. He held that it was reasonably arguable that the trial judge erred when refusing the appellants’ request to cross-examine the respondent notwithstanding that the matter had to be decided urgently and was overlayed by significant emotional distress on both sides. He held that, ordinarily, where a trial is conducted on the basis that evidence-in-chief is given by affidavit, cross‑examination of the deponent should be permitted. Nicholson J held that, ordinarily, a fundamental failure of trial procedure would lead to an appeal being allowed.
We agree. Parties are, subject to the oversight of the trial judge, ordinarily permitted to cross-examine the witnesses called by an opposing party.[4] The denial of cross-examination can produce a denial of procedural fairness and an unfair trial. Where the parties are emotionally distressed and in difficulty that will usually affect the way in which a cross-examination proceeds, not whether it proceeds at all. Where questions are thought to go to irrelevant matters, or are otherwise inappropriate or offensive, the trial judge has a wide discretion and a broad power to regulate the manner in which cross-examination is conducted.[5]
[4] Though cross-examination has from time to time been described as a “right”, the court has the power to prevent or restrict cross-examination where it is in the interests of justice to do so. For example in Allen v Allen [1894] P 248, 254 Lopes J said: “no evidence given by one party affecting another party in the same litigation can be made admissible against the other party, unless there is a right to cross-examine”, but in GPI Leisure v Herdsman (No 3) (1990) 20 NSWLR 15, 18-23 Young J held that the only “right” was to a fair trial and a judge may in “special circumstances” limit or preclude cross-examination. As these matters were not argued before us it is not appropriate to address what may comprise special circumstances or whether they were present in this case.
[5] See, for example, the Evidence Act 1929 (SA), s 22 (the court may disallow questions which are vexatious and not relevant), ss 23 and 24 (the court may disallow certain questions affecting the credibility of a witness) and s 25(1)(c) (the court may disallow questions which are unnecessarily repetitive, offensive or oppressive).
However, as Judge Bochner correctly identified the necessary considerations and made findings of fact relevant to each, Nicholson J set out to determine whether any of the findings she made might reasonably have been different if cross‑examination had been permitted. The question is whether, if there was a denial of procedural fairness, the respondent can demonstrate that “compliance with the requirements of natural justice could have made no difference”.[6]
[6] See generally Police v Mahon [2022] SASCA 76, [85] and the cases there cited, being Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [29] (Kiefel CJ, Gageler and Keane JJ), [40] (Nettle J), [72] (Edelman J); MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [31] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Nicholson J found that cross-examination would not have altered the findings made by Judge Bochner. Nicholson J dismissed the prospect that cross‑examination might have shown the respondent to be “a liar” and his Honour emphasised that the applicants failed on these issues because they had no evidence with which to contradict the respondent’s evidence. Their evidence about the deceased’s preference for burial concerned statements he had made in his late teens. Accordingly, Nicholson J found that it was not reasonably arguable that the absence of cross-examination gave rise to any miscarriage, with the result that the proposed appeal was not reasonably arguable. Finally, Nicholson J held that it was not in the interests of justice to allow the question of burial or cremation to be agitated further.
The only ground of appeal against these findings is that Nicholson J made a “material error” in refusing to grant a stay. No particulars of that are given and the appellants have today been unable to articulate what that error is said to be.
In her submissions today, Mrs Marschall made it clear that cross-examination of the respondent would only have been directed to determining that the respondent was no longer the deceased’s domestic partner. She said that this issue went to whether the respondent was still the deceased’s “next of kin” and entitled to determine his manner of burial. That issue was addressed in the earlier reasons of this Court. There is no “next of kin” rule and whether the respondent can take out letters of administration in her own right as the deceased’s domestic partner is far from determinative of the issue before the Court.
An adjournment application - determination of the appeals
The appellants have applied to lead two further affidavits which were filed today. They also seek an adjournment so that they can gather further evidence, including after issuing subpoenas, to be led at a new trial.
None of the proposed evidence could be said to be fresh, as it could have been gathered and given to the trial judge. Whilst the Court has a broad discretion,[7] there is in matters such as these a particular need to heed the importance of the principle of finality. Cases such as these are emotionally difficult for the parties, who are still grieving. The Court has endeavoured to accommodate the parties by addressing the real issues in dispute with reasonable expedition, whether at first instance or on appeal.[8] The appellants were given a reasonable opportunity to lead their evidence before Judge Bochner.
[7] See, for example, Return to Work Corporation of South Australia v BI (Contracting) Pty Ltd [2022] SASCA 49, [75]-[77] (Livesey P and Bleby JA).
[8] The procedural history can be discerned from the ruling of the Chief Justice in proceedings CIV-23-000039, given on 5 January 2023, the interim injunction ruling of Lovell JA in the Court of Appeal in proceedings CIV-23-000105 given on 9 January 2023, the judgment of the Court of Appeal in Marschall v Elson [2023] SASCA 1 given on 12 January 2023, and in the reasons for decision of Judge Bochner in proceedings CIV-23-000039 given on 19 January 2023 immediately after the trial.
Even if the new affidavit of Ms Stacey Sweet were to be admitted, the high point is that in the course of her brief relationship with the deceased there was one occasion in late 2022 when the deceased said he was critical of cremation and favoured burial. That evidence was not put before the trial judge. Most of the other material is otherwise not relevant, or it is directed to whether the deceased and the respondent remained in a domestic relationship. To the extent that this issue is relevant, it is not determined by what Ms Sweet says the deceased told her about his relationship with the respondent, or by what he said to Ms Sweet about their relationship in circumstances where it was, to some extent, clandestine.[9]
[9] The evidence raises a number of possibilities about the deceased’s relationships before his apparent suicide. These include that the deceased and the respondent had finally separated, that they had separated for a time but not finally and, as for the new relationship with Ms Sweet, that the deceased may or may not have intended that it was to be permanent. He may not have come to any final decision about any of these matters. Overarching all of these possibilities is the prospect that the deceased was in an emotional state, being both confused and uncertain. None of this was directly relevant to the issue before the court regarding the question of burial or cremation.

In any event, no good explanation has been given for not putting this evidence before Judge Bochner. It appears that the appellants have remained in contact with Ms Sweet throughout. We decline to receive the further evidence and we refuse the adjournment application. There must be an end to this litigation.
Leave to appeal is required regarding the dismissal of the stay application because that decision was interlocutory in nature.[10] When determining whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions.[11]
[10] Uniform Civil Rules 2020 (SA), r 213.1(1)(a).
[11] Those questions are: 1. Whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; 2. Whether the decision raises an issue of principle or general importance; and 3. Whether allowing the decision to stand would work a substantial injustice to the applicant. See, for example, Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98, [4] (Livesey P and Doyle JA).
On the question of procedural fairness, there can be no criticism made of Nicholson J’s resolution of that issue, nor of his finding regarding the interests of justice. That is reinforced by the explanation Mrs Marschall gave today regarding her intended purpose in conducting a cross-examination of the respondent, which was confined to showing that the respondent and the deceased had separated, and that the respondent was therefore no longer the deceased’s “next of kin”.
In our opinion it was not, and it is not now, in the interests of justice to grant a stay or an injunction. The appeal against the refusal to grant a stay and an injunction must be dismissed.
Having reviewed this matter, and the terms of amended Notice of Appeal which was considered by Nicholson J, we agree with the analysis he made of the appellants’ poor prospects of success. The appellants were today unable to articulate any further argument in support of their appeal against the orders made by Judge Bochner. They accepted that, if they failed with their appeal against the decision of Nicholson J, there was no point continuing with the appeal against the decision of Judge Bochner.
In these circumstances, the appeal against her Honour’s judgment must likewise be dismissed.
Accordingly, the Court orders:
1.The applications to lead further evidence and seeking an adjournment are dismissed.
2.Leave to appeal against the decision of Nicholson J refusing a stay is refused, and the appeal against the refusal to grant a stay and an injunction is dismissed.
3.The appeal against the decision of Judge Bochner is dismissed.
4.The order made by the Court of Appeal on 12 January 2023 preventing cremation, whether by way of a stay or an injunction against Barossa Funerals, which operated until 9 February 2023 is vacated.
The effect of these orders is that there is no longer any impediment to cremation.
After hearing from the parties, there will be an order for costs in favour of the respondent fixed in the sum of $750 relating to the expenses incurred in obtaining legal advice. The appellants have two months in which to pay the respondent.