JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MOURISH -v- WYNNE [2009] WASC 85
CORAM: LE MIERE J
HEARD: 30 & 31 MARCH, 1 APRIL 2009
DELIVERED : 1 APRIL 2009
PUBLISHED : 2 APRIL 2009
FILE NO/S: CIV 1284 of 2009
BETWEEN: BRIDGETTE RAELENE MOURISH
CORAL WILSON
PlaintiffsAND
BARBARA JEAN WYNNE
Defendant
Catchwords:
Originating summons for orders that plaintiffs have carriage of funeral - Right to arrange funeral - Dispute as to paternity of deceased - Dispute between maternal grandmother and aunt and disputed paternal grandmother - Deceased raised by defendant and lived and died in Albany
Legislation:
Administration Act 1903 (WA)
Supreme Court Ordinance 1861
Result:
Originating summons dismissed
Category: A
Representation:
Counsel:
Plaintiffs: Mr M L Segler
Defendant: Mr A P Skerritt
Solicitors:
Plaintiffs: Martin Lee Segler
Defendant: Great Southern Legal Pty Ltd
Case(s) referred to in judgment(s):
Burrows v Cramley [2002] WASC 47
Calma v Sesar (1992) 106 FLR 446
Dobson v North Tyneside Health Authority (1997) 1 WLR 596
Hartshorne v Gardner [2008] EWHC B3 (Ch)
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Leeburn v Derndorfer [2004] VSC 172; (2004) 14 VR 100
Meier v Bell (Unreported, VSC, Library No 4518 of 1997, 3 March 1997, Ashley J)
Re Boothman SM (Unreported, WASC, Library No 990031; 27 January 1999)
Smith v Tamworth City Council (1997) 41 NSWLR 680
Ugle v Bowra & O'Dea [2007] WASC 82
University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch)
LE MIERE J:
Application
The plaintiffs apply by originating summons for orders:
1.That they have carriage of the funeral of the late Bridgette Raelene Mourish who was born on 10 June 1993 and who died on 1 February 2009 (the deceased).
2.That the deceased be buried in a cemetery in Midland.
3.A permanent injunction restraining the defendant from burying the deceased in Albany.
The hearing
The plaintiffs commenced this matter by originating summons issued on 9 February 2009. The matter came before me on 10 February at which time the plaintiffs sought an ex parte injunction restraining the defendant from burying the body of the deceased. Counsel for the plaintiffs informed me that he had been in contact with a solicitor who in turn had been in contact with the defendant and that that solicitor had suggested that it was appropriate that upon the grant of an interim injunction the application for the continuation of the injunction should be adjourned for 14 days. I granted an interim injunction for the period of 14 days.
The matter was subsequently programmed, at the request of the parties, for the originating summons to be heard on 30 March 2009. The parties were directed to file and serve any affidavits to be relied upon on or before 12 noon on 26 March 2009. That direction was not complied with. The affidavits relied upon by the plaintiff were served on the defendant's…
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- AGLC
- Mourish v Wynne [2009] WASC 85
- Case
- [2009] WASC 85
- Decision Date
CaseChat Overview and Summary
The court considered the legal principles governing the right to arrange a funeral and the weight to be given to the various relationships between the parties. The court noted that the deceased had been raised by the defendant and had lived and died in Albany, and that there was a dispute as to paternity between the maternal and paternal grandmothers. The court held that the right to arrange a funeral is not an absolute right and must be balanced against the rights of other interested parties. The court also noted that the relationship between the deceased and the parties was a relevant consideration in determining the right to arrange the funeral.
The court found that the plaintiffs, the maternal grandmother and aunt, had not established a sufficient connection with the deceased to warrant the right to arrange the funeral. The court held that the defendant, who had raised the deceased and with whom the deceased had lived and died, had the primary right to arrange the funeral. The court also noted that the disputed paternal grandmother had not established a sufficient relationship with the deceased to warrant a right to arrange the funeral. The originating summons was dismissed, and the court declined to make any orders in relation to the funeral arrangements.
No further orders were made by the court. The decision of the court is a reminder of the importance of considering the relationships between the parties in determining the right to arrange a funeral, and that the right is not an absolute one. The decision also highlights the need for parties to establish a sufficient connection with the deceased in order to have a claim to arrange the funeral.
Orders
Orders of the court
Originating summons dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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