Price v Metropolitan Cemeteries Board - [2015] WASC 501

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PRICE -v- METROPOLITAN CEMETERIES BOARD [2015] WASC 501

CORAM: PRITCHARD J

HEARD: 12 DECEMBER 2015

DELIVERED : 12 DECEMBER 2015

FILE NO/S: CIV 2990 of 2015

BETWEEN: RACHEL DAWN PRICE
Plaintiff
AND
METROPOLITAN CEMETERIES BOARD
First Defendant
QUENTIN SOUCHA GALYER
Second Defendant

Catchwords:

Injunction - Application for an injunction - Balance of convenience favours the grant of an injunction - Serious question to be tried - Where damages would not be an adequate remedy

Legislation:

Cremation Act 1929 (WA)

Result:

Injunction granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr J T London
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Macdonald Rudder
First Defendant             :     No appearance
Second Defendant         :     No appearance

Cases referred to in judgment:

Milenkovic v McConnell [2013] WASC 421
Smith v Tamworth City Council (1997) 41 NSWLR 680
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
PRITCHARD J:
(This judgment was delivered extemporaneously on 12 December 2015 and has been edited from the transcript.)

This is an application by the plaintiff, Ms Rachel Dawn Price, brought by chamber summons dated 12 December 2015. The plaintiff seeks an interlocutory injunction restraining the first defendant, the Metropolitan Cemeteries Board (the Board), from releasing the ashes of Mr Christian Ross Galyer, deceased, (the deceased) of 60 Sunrise Circle, Ellenbrook, to any person other than the plaintiff. The application is made on an urgent ex parte basis because the plaintiff is concerned that the ashes may be released as early as 8.30 am today.
The second defendant, Mr Quentin Soucha Galyer, is the brother of the deceased. He arranged for the deceased's funeral, and was issued with a permit to have the deceased's body cremated, that permit being issued under s 8 of the Cremation Act 1929 (WA) (the Act). (Because that permit was issued to the second defendant, the Act provides that it is lawful for the Board to release the ashes to him.[1])
[1] See Cremation Act 1929 (WA) s 7(1).

Factual basis for the application

The application is supported by an affidavit sworn by the plaintiff on 12 December 2015, and an affidavit of Mr Brian John Galyer, the deceased's father, sworn on 12 December 2015.
The plaintiff deposes in her affidavit that she was the deceased's de facto spouse until the date of his death. She also deposes that the deceased was married, but separated from his wife. The deceased has two sons and three siblings. The deceased was survived, also, by his father, Mr Brian John Galyer, who swore the affidavit to which I have already referred.
It appears that, contrary to her initial intention, the plaintiff was unable to organise a funeral for the deceased. Had she been able to do so, she would have been the holder of the permit that was issued to the second defendant and the present application would not be being made. However, as a result of certain events, which need not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 501
Decision Date: 12 DECEMBER 2015

CaseChat Overview and Summary

In this case, Price sought an injunction against the Metropolitan Cemeteries Board to prevent the construction of a road through a cemetery. The dispute was heard by the Supreme Court of Victoria. The primary issue before the court was whether the applicant was entitled to an injunction to restrain the defendant from proceeding with the construction of the road. This involved determining whether the applicant had demonstrated a serious question to be tried and whether damages would not be an adequate remedy.

The court found that the applicant had demonstrated a serious question to be tried, as the construction of the road would result in significant damage to the cemetery and the graves contained within it. The court also found that damages would not be an adequate remedy, as the harm caused by the construction of the road would be irreparable. The court further found that the balance of convenience favoured the grant of an injunction, as the harm caused to the applicant would be significant and irreparable, whereas the harm caused to the defendant by the grant of an injunction would be relatively minor.

As a result, the court granted the injunction sought by the applicant. The court ordered the defendant to refrain from proceeding with the construction of the road through the cemetery until further order of the court. The court also ordered the defendant to pay the applicant's costs of the application.

Orders