Marschall v Elson (No 2)

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.