Marschall v Elson (No 2)

Case [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

  1. 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.…

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Marschall v Elson (No 2) [2023] SASCA 3
Case
[2023] SASCA 3
Decision Date

CaseChat Overview and Summary

The appeals concerned the disposition of the body of a deceased person. The primary dispute was between the appellants, who sought to have the deceased buried, and the respondent, who advocated for cremation. The matter came before the Supreme Court of South Australia on appeal from decisions made by Judge Bochner and Nicholson J.

The central legal issues before the Court of Appeal were whether Judge Bochner had erred in her findings of fact and application of legal principles when ordering the cremation of the deceased and the division of ashes. Specifically, the appellants argued that the judge had digressed from the original application, failed to consider relevant case law, improperly refused oral evidence, made erroneous findings of fact regarding the respondent's entitlement under the Family Relationships Act, and misapplied legal principles established in prior Full Court decisions, particularly *Jones v Dodd*. They also contended that the judge failed to address provisions of the Coroner's Act concerning "senior next-of-kin" and that the respondent lacked the legal standing to be elevated to a position of "domestic partner" under applicable laws.

The Court of Appeal dismissed the appeals, upholding the decisions of the lower courts. The Court found that Judge Bochner had properly considered the evidence before her, including the deceased's recent wishes, views, and beliefs as presented by the respondent. While acknowledging the appellants' submissions regarding historical discussions about burial, the judge concluded that the respondent's evidence was the most reliable indicator of the deceased's current intentions. The Court found no material error in the judge's approach to the evidence or her application of the relevant legal principles, including those derived from *Jones v Dodd* and subsequent cases. The appeals against the judgments of Nicholson J and Judge Bochner were therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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