Marschall v Elson (No 3)

[2023] SASCA 4

Supreme Court of South Australia

(Court of Appeal: Civil)

MARSCHALL v ELSON (No 3)

[2023] SASCA 4

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

31 January 2023

HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS - PENDING SPECIAL LEAVE APPLICATION

HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS - GENERALLY

HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - SPECIAL LEAVE TO APPEAL - WHERE REFUSED

Application for a stay pending a proposed application for special leave to appeal to the High Court.

The applicants 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 dispute in the decisions below was whether the deceased should be buried (as the appellants wished) or cremated and his ashes distributed to his family members (as the respondent wished). 

The trial judge found in favour of the respondent.  The appellants appealed the trial judge’s decision to the Court of Appeal, and sought a stay and an injunction pending the hearing of the appeal from a single judge.  The single judge refused the stay and injunction, and the appellants also appealed those decisions to the Court of Appeal.

The Court of Appeal dismissed the application for leave to appeal against the orders refusing the stay and injunction, together with the appeal against the judgment of the trial judge. 

The appellants seek a stay pending their proposed application for special leave to appeal to the High Court. 

Held, per the Court:

1.      There are not reasonable prospects of success in the proposed application for special leave. 

2.      The application is refused.

Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; Mandeville v Better Lending Pty Ltd (No 2) [2021] SASCA 61; Marschall v Elson [2023] SASCA 1; Marschall v Elson [2023] SASCA 2, considered.

MARSCHALL v ELSON (No 3)
[2023] SASCA 4

Court of Appeal – Civil:  Livesey P and Doyle JA

1. THE COURT (ex tempore):   The applicants seek a stay pending their proposed application for special leave to appeal to the High Court. 

2. The background to this matter has been set out in several judgments of this Court,[1] and need not be repeated.

   [1]     See, for example, Marschall v Elson [2023] SASCA 1 (Livesey P and Lovell JA); Marschall v Elson [2023] SASCA 2 (Livesey P, Lovell and Doyle JJA).

3. The principles governing the resolution of this application are not in dispute.  They are set out in the decision of the High Court in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1)[2] and Bryant v Commonwealth Bank of Australia,[3] and were recently applied in this Court in Mandeville v Better Lending Pty Ltd (No 2).[4]

   [2]     Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 683-685 (Brennan J).

   [3]     Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 308-309 (Kirby J).

   [4]     Mandeville v Better Lending Pty Ltd (No 2) [2021] SASCA 61 at [5]-[6] (Doyle, Livesey and Bleby JJA).

4. The central dispute between the parties is whether Joshua Marschall, who died on 21 December 2022, should be buried or cremated.

5. The appellants, his parents, would like him buried. The respondent, his long-term partner,[5] would like him cremated.

   [5]     The appellants dispute whether the respondent was still Mr Marschall’s partner at the date of his death, but for reasons given elsewhere that is of limited relevance to the reasoning in the decisions of this Court.

6. The decisions of this Court have given effect to the respondent’s wishes.  The central reason for this is that the only evidence of the deceased’s recent “wishes, views and beliefs” supported cremation.

7. It can be accepted that if this application is refused the appellants’ application for special leave to appeal would be rendered nugatory.  However, as the authorities make plain, this is not determinative.  The grant of a stay pending an application for special leave to appeal involves the exercise of “an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted”.[6]

   [6]     Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685 (Brennan J).

8. The difficulty for the appellants in the present case is that, whilst they assert error in the decisions made below, they have not identified any error of principle in those decisions below, let alone one of the nature and quality that would have reasonable prospects of attracting a grant of special leave to appeal.  Whilst the appellants complain about being deprived of an opportunity to cross-examine the respondent, it would seem that any cross-examination would have been confined to the status of the respondent’s relationship with the deceased at the date of his death, and would not have affected the reasoning or decisions below. 

9. The issue raised for the first time today as to the coat of arms and seal used by the Court has no merit.  Similarly, the suggestion for the first time today that there ought to be a second autopsy is also not a matter that would attract a grant of special leave to appeal.  It is not an issue previously raised in these proceedings, and remains unsupported by any relevant evidence.

10. In these circumstances, and bearing in mind that it has been over a month since Mr Marschall died, there is no basis for a stay.  The lack of merit in the proposed application for special leave to appeal, and the interests of finality, weigh heavily against the application for a stay. 

11. The application is refused.