Milenkovic v McConnell
[2013] WASC 421
•22 NOVEMBER 2013
MILENKOVIC -v- McCONNELL [2013] WASC 421
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 421 | |
| Case No: | CIV:2498/2013 | 4, 18 OCTOBER & 14 NOVEMBER 2013 | |
| Coram: | McKECHNIE J | 22/11/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Injunctions discharged | ||
| A | |||
| PDF Version |
| Parties: | JOSETTE ANN MILENKOVIC EMMA CHRISTINA McCONNELL METROPOLITAN CEMETERIES BOARD |
Catchwords: | Administration of deceased estates Right to dispose of ashes after cremation Principles in Smith v Tamworth City Council Extent to which they apply to cremations Whether there is an obligation to consult with other stakeholders |
Legislation: | Administration Act 1903 (WA), s 4, s 24, s 45 Cemeteries Act 1986 (WA) Cremation Act 1929 (WA) |
Case References: | Burrows v Cramley [2002] WASC 47 Leeburn v Derndorfer (2004) 14 VR 100 Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097 Smith v Tamworth City Council (1997) 41 NSWLR 680 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
AND
IN THE MATTER OF SECTIONS 4, 24 AND 45 OF THE ADMINISTRATION ACT 1903
- Plaintiff
AND
EMMA CHRISTINA McCONNELL
First defendant
METROPOLITAN CEMETERIES BOARD
Second defendant
Catchwords:
Administration of deceased estates - Right to dispose of ashes after cremation - Principles in Smith v Tamworth City Council - Extent to which they apply to cremations - Whether there is an obligation to consult with other stakeholders
Legislation:
Administration Act 1903 (WA), s 4, s 24, s 45
Cemeteries Act 1986 (WA)
Cremation Act 1929 (WA)
Result:
Injunctions discharged
Category: A
Representation:
Counsel:
Plaintiff : Mr R E Lindsay & Ms R L O'Callaghan
First defendant : Mr M J Biesse
Second defendant : No appearance
Solicitors:
Plaintiff : Hayles Lawyers Pty Ltd
First defendant : Paynes
Second defendant : No appearance
Case(s) referred to in judgment(s):
Burrows v Cramley [2002] WASC 47
Leeburn v Derndorfer (2004) 14 VR 100
Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097
Smith v Tamworth City Council (1997) 41 NSWLR 680
- McKECHNIE J:
What this case is about
1 This is a case about what should happen to the ashes of a person who died suddenly leaving a mother, a sister, a brother, a partner and a small child. I suspect it is also a case about hurt feelings, grief and bitterness but the law has no remedies for those.
The events giving rise to the application
2 Brent Dwayne Slattery died in May this year at the age of 30. His death was unexpected.
3 He left behind a young partner Emma McConnell and their infant son Kobe. They live in Perth. His grieving mother Josette Milenkovic and sister Samantha live in South Australia.
4 Emma arranged and paid for the funeral service and cremation at the Fremantle Cemetery. Mrs Milenkovic and Samantha both attended.
5 Emma did not collect the ashes immediately, and some months passed. Being a sole parent and dealing with the issues arising as a consequence of Brent's death she did not feel emotionally ready to deal with the option for disposal of the ashes until she made an appointment to attend at the Fremantle Cemetery on 30 August 2013. This appointment had to be cancelled because Kobe was sick. She telephoned the cemetery on 23 September 2013 and made another appointment for 7 October 2013 which she attended.
6 Prior to this however, Mrs Milenkovic had become concerned. She formed the view that before Brent's death he and Emma had quarrelled and their relationship had finished. She feared that Emma would not be concerned with providing Brent a suitable resting place. On about 18 September 2013 Mrs Milenkovic telephoned the Fremantle Cemetery and was told that Emma had not attended the appointment or answered letters. Because she believed that Emma and Brent had separated, as Brent's biological mother, she should be entitled to collect the ashes and lay them to rest in their final resting place.
7 Mrs Milenkovic therefore instructed solicitors to apply for an urgent injunction without giving Emma the opportunity to confer with her either under the Rules or by common courtesy. The injunction was accompanied by an originating summons which sought orders:
That in the absence of any resolution reached by the Plaintiff and the First Defendant in relation to the internment [sic] of the ashes of the late Brent Dwayne Slattery, the ashes which are in the possession of the Second Defendant are to be released from the Fremantle Cemetery to the deceased's biological mother, Josette Ann Milenkovic, the Plaintiff in these proceedings.
8 Mrs Milenkovic established a weak but arguable case for an injunction, and because there was some urgency with the foreshadowed appointment by Emma with the Fremantle Cemetery on 7 October 2013, I issued an injunction to expire on 14 October 2013. The injunction was served and the parties entered into negotiations.
The negotiations
9 Emma's solicitors advised Mrs Milenkovic's solicitor by letter on 11 October 2013 that:
11. Our client is planning to have his ashes interred in the Sainsbury Memorial Garden with a plaque in the ground. She particularly chose this area as it has frangipani trees that Brent liked.
12. Her decision is supported by other members of Brent's family.
10 The letter received a response from Mrs Milenkovic's solicitor on 15 October 2013 which included the following:
Our client has instructed us that if:
1. she can be satisfied that a plot has been reserved or otherwise secured, public access is available to the plot, the plaque will be as she envisages it or, on seeing a photograph, she is comfortable with its presentation, the inscription on the plaque will include the wording as set out above and that the ashes will be interred with the plaque by a nominated and reasonably proximate date; and
2. your client is willing to give appropriate written undertakings addressing all of these matters,
she will be willing to resolve the Supreme Court action this Friday by asking the Court to record the terms of the written undertakings and otherwise discontinuing the action although on the basis that it be noted that she has liberty to apply in the event that your client does not comply with some or all of the undertakings.
11 The responsive letter on 16 October 2013 set out details of a proposal, including plot, the plaque and inscription concluding:
Our client does not want to be hurried into making a final decision on these matters, particularly when dealing with these court proceedings has distracted her.
12 On 5 November 2013, Mrs Milenkovic's solicitor wrote to Emma's solicitors requesting that Emma enter into a deed of settlement. This received an immediate response on 6 November from Emma's solicitors:
Our client is not prepared to sign any deed and feels affronted that your client has considered it appropriate to request that she does so.
13 The response continues:
She confirms in this email, which is sent an open letter to be produced to the Court, the arrangements which she is prepared to agree to being:
1. Our client will cause Brent's ashes to remain in the possession and custody of the Metropolitan Cemeteries Board until such time as they are interred.
2. Within two (2) business days of confirmation that you client agreed with what is contained in this letter and to the discharge of the injunction, our client will:
(a) pay for and secure the plot at Sainsbury Memorial Gardens, Fremantle Cemetery reserved by her on 15 October 2013.
(b) pay for and request the Board to produce a plain bronze plaque with a coloured photograph of Brent mounted on a black granite base. The inscription will read:
Brent Dwayne Slattery
Slatts
22.03.1983 - 14.05.2013
Beloved Fiancé to Emma and Adoring Father to Kobe
Much loved son to Shane and Josette
Brother to Leigh, Samantha and Jack
Death leaves a heartache no one can heal
Love leaves a memory no one can steal
4. No later than seven (7) days after the placement, our client will advise your offices that the placement has occurred.
As the Memorial Gardens are in a public place, your client and Brent's other relatives and friends will be at liberty to visit the plot during the Cemetery's ordinary opening hours.
Please confirm the matter can be resolved on this basis.
14 Rebuffed from obtaining a deed, on 8 November 2013, Mrs Milenkovic's solicitors then proposed that the matter be resolved by a consent order and that if the action cannot be resolved by the making of a consent order 'she will contest Emma's right to deal with the ashes and seek the order claimed in the Originating Summons that they be released to her':
[Our] client will not now resolve the action without a legally binding outcome.
15 On 11 November 2013, Emma's solicitors wrote back:
Our client is not prepared to agree to Consent Orders being made
From our client's point of view;
1. the whole manner is which your client has dealt with this matter is extremely heavy handed and had either your client or anyone on her behalf contacted our client before commencing the proceedings, the proceedings would have been unnecessary.
2. the highest that your client's right can be put, is the right for a conferral to take place.
3. This has occurred and an agreement has been reached.
4. There is no basis for your client to suggest that ours will not honour any agreement.
16 And so on 14 November 2013, a date to which the proceedings had been adjourned, Mr Lindsay sought an order to compel Emma to do what she had agreed to do. Mr Biesse opposed this course.
17 As I pointed out to Mr Lindsay, an initial difficulty in making an order is that there may be no basis to do so. All that has happened is that an injunction has been granted and extended. Because the parties have spent the time in useful negotiations, Emma has not yet put on oath any rebuttal of the assertions in the plaintiff's and Samantha's affidavits. To make what would effectively be a final order without giving Emma the opportunity to contest the allegations would be unfair and wrong. But there are other reasons as well.
Jurisdiction to make an order
18 No one has sought a grant of probate or letters of administration. The action is said to be brought 'In the matter of the estate of Brent Dwayne Slattery deceased' and 'In the matter of sections 4, 24 and 45 of the Administration Act 1903'.
19 The Administration Act 1903 (WA) s 4 gives the court jurisdiction and authority in respect of the estates of deceased persons. Section 24 continues the granting of administration in the estate of an intestate and s 45 gives the court power to settle all questions arising in administration: Burrows v Cramley [2002] WASC 47 [3].
20 I am satisfied there is jurisdiction to make the order sought.
Why an order will not be made
21 Sometimes it is necessary to strip out all the natural human emotions of grief, loss, bereavement, anger and pain, to focus only on the precise legal relationship between the parties.
22 Approaching the matter without the benefit of authority, the legal position is relatively simple. From the evidence it appears that Emma entered into a contract with the Metropolitan Cemeteries Board (MCB) who is responsible for the Fremantle Cemetery. Under the contract, the MCB agreed, among other things, to cremate the body. The process of cremation of course reduces a body from its corporeal form to ashes.
23 Having provided that service, there is every reason why the MCB may complete the agreement and dispose of the ashes in accordance with the directions of the person who paid for the service, Emma; not to a stranger to the contract, Mrs Milenkovic.
24 Having read the authorities regarding the often emotive issue as to who has burial rights when there is a contest, I consider this initial impression of the law is in accord with principle.
25 The review of authorities was made easier because of the detailed analysis of principles outlined by Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680.
26 The debt due to Young J for his analysis has been acknowledged by others: Leeburn v Derndorfer (2004) 14 VR 100 [13].
27 In Smith v Tamworth City Council, Young J eventually set out 15 principles. Although he confined the principles to New South Wales, on my review of the same authorities and the relevant legislation, and subject to what I set out shortly, the principles have general application in Western Australia.
28 The relevant legislation includes the Cemeteries Act 1986 (WA), the Coroners Act 1996 (WA) and the Cremation Act 1929 (WA).
29 The Cremation Act, s 7 provides:
(1) Where any dead human body has been cremated in a crematorium, and the person who obtained the permit required by this Act for the cremation of such body desires to dispose of the ashes of such body after cremation otherwise than by burial upon the site of the crematorium, it shall be lawful for the Board or controlling authority of the cemetery, or the association in whose crematorium the body was cremated, to deliver the said ashes to the said person for removal from the crematorium.
(2) Subject to subsection (1), the ashes of a dead human body after cremation shall not be removed from the crematorium in which such body was cremated, except for the purpose of burial in the site of the crematorium.
30 This confirms the lawful authority for the MCB to give the ashes to Emma.
31 In determining priority as the 'nearest surviving relative' under the Cremation Regulations 1954 (WA), Emma, living as the de facto partner of the deceased immediately before death, ranks as first in order of priority. Mrs Milenkovic ranks fourth. The priority is important when there is no administrator and a permit for permission to cremate is sought: Cremation Act s 8(3B) (Cremation Regulations Form 6).
32 Not all the principles in Smith v TamworthCity Council are relevant in this case but some are:
3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
…
5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.
…
8. Cremation is nowadays equivalent to burial.
9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.
…
14. The holder of the right of burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave (694).
Principle 3
33 It is not clear to me precisely what authority supports principle (3) to the extent that it states the person choosing how to bury a body is expected to consult with other stakeholders. However, this is of no moment because the authorities do support the second part of the principle that such a person is not legally bound to do so.
Principle 8
34 Principle 8 was discussed by Byrne J in Leeburn v Derndorfer:
In the case of cremation at least, it is at this point that the path through the judicial forest begins to peter out. In his Smith v Tamworth City Council proposition 8, Young J states that cremation is nowadays the equivalent to burial. This is, of course, correct in the sense that the executors have available to them the choice of cremation in deciding as to the manner of disposition of the body. But an important difference between cremation and other methods of disposition is that, after cremation, there remain the ashes. The obligations of the executors with respect to the body may be complete after cremation, but what rights and obligations do they have with respect to the ashes? [17] (footnotes omitted)
35 After discussing Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097, Byrne J concluded:
Where the body has been cremated this is ordinarily done pursuant to an agreement between the person responsible for the disposal and a funeral director or, perhaps, with the trustees of the crematorium and the resultant ashes are later delivered to that person.
…
In addition to burial, the ashes may be dealt with in a way that would not be possible with respect to a dead body: they may be sprinkled over or distributed loosely on the surface of the earth, they may be retained in an unburied state or they may be divided and the parts dealt with in different ways. Also, when they are buried, they are not subject to the qualified statutory prohibition against exhumation. Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence (1908) 6 CLR 406 at 412. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence [26] - [27]. (footnotes omitted)
Principle 14
36 The non-exclusion principle (in 14) only comes into play if ashes are to be disposed of outside a cemetery: Cremation Act s 7(1). If the ashes remain within a cemetery, the person with the right to disposition cannot exclude relatives or others. The cemetery is controlled by the MCB and access is both permitted and regulated.
37 If not buried on the site of a crematorium, ashes may be scattered across the waters. They may be scattered or buried in a place that was significant to the deceased. Ashes may be kept in a container on a mantel as a reminder and token.
38 In short, ashes may be reverently disposed in a way that precludes any ability thereafter to express affection at a fixed point such as a grave.
39 To the extent that principle 14 is relied on by Mrs Milenkovic, I hold that it has no application to disposal of ashes after cremation.
Conclusion
40 The authorities to which Young J made reference before enunciating principle 3 in Smith v Tamworth City Council do not support more than an expectation of consultation.
41 Even if consultation is a legally enforceable right (which it is not), that right has been exercised. The parties have reached an agreement. Emma is required to do no more.
42 Emma was within her rights to decline to enter into a deed which of course requires no consideration to be advancedby Mrs Milenkovic. All the burden of the deed would fall on Emma.
43 In any event, there is no evidence why I should make an order compelling Emma to do what she has already said she will do.
44 The injunctions preserved things as they were until the parties could negotiate. There is now no reason to continue the injunctions. Moreover, the balance of convenience strongly favours discharge of the injunctions. The injunctions are preventing Emma from her plan to inter Brent's ashes among the frangipanis and honour his memory with a plaque.
Order
1. Injunctions granted 4 October 2013 are dissolved.
3
4
3