Mourish v Wynne

Case [2009] WASC 85

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
Plaintiffs

AND

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

Joseph v Dunn [2007] WASC 238

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)

Reece v Little [2009] WASC 30

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

  1. 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

  1. 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.

  2. 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 case of Mourish v Wynne involved a dispute over the right to arrange the funeral of a deceased individual. The deceased was raised by the defendant and lived and died in Albany. The maternal grandmother and aunt of the deceased, who were the plaintiffs, sought orders to have carriage of the funeral. The paternal grandmother, who was also a party to the proceedings, disputed the plaintiffs' claim. The matter was heard in the Supreme Court of Western Australia. The court was required to determine the legal rights of the parties in arranging the funeral of the deceased, considering the disputes as to paternity and the relationships between the parties.

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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