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.)

1. 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.

2. 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

1. 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.

2. 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.

3. 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 be set out here, the second defendant organised the deceased's funeral and, as I have mentioned, the second defendant is the holder of a permit which permits the Board to release the deceased's ashes to him.

4. According to the plaintiff's affidavit, the deceased died leaving no will. 

The principles in relation to the grant of interlocutory injunctions

1. The requirements for the grant of an interlocutory injunction were set out by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd.[2]  In short, it is necessary for the applicant to show that there exists a serious question to be tried, or a prima facie case, and that the balance of convenience favours the grant of an injunction.

   [2] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [11].

2. As to the question of whether there is a serious question to be tried, one difficulty which the plaintiff may face in due course is the fact that the second defendant holds the permit which, prima facie, permits the Board to release the deceased's ashes to him, whether pursuant to the Act or pursuant to a contract between the second defendant and the Board.  However, the plaintiff's counsel submits that it may be arguable, having regard to the de facto relationship between the plaintiff and the deceased, that the permit should have been issued to the plaintiff in the first instance and that there may be an issue as to the validity of the permit as a result.

3. In considering whether that gives rise to a serious question to be tried, I have had regard to the principles outlined in Milenkovic v McConnell[3] and Smith v Tamworth City Council.[4]  In the latter case, Young J set out a series of principles which set out the law with respect to rights pertaining to the burial or cremation of deceased persons.  That case applied the law in New South Wales, however, as McKechnie J pointed out in Milenkovic, its principles apply equally in respect of the position in Western Australia.[5]

   [3] Milenkovic v McConnell [2013] WASC 421.

   [4] Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 - 694.

   [5] Milenkovic v McConnell [2013] WASC 421 [27].

4. In Smith v Tamworth City Council, Young J observed that in a situation where there is no executor named in a will (which is the case here), the person with the highest entitlement to administration will have the same rights as an executor,[6] namely to make arrangements for the burial or, in this case, the cremation of the deceased's body.  His Honour also noted that the right of the surviving spouse or de facto spouse to make such arrangements would be preferred to the right of children to do so[7] and, presumably the same conclusion would follow in relation to the rights of the siblings of a deceased to make such arrangements.

   [6] Smith v Tamworth City Council (1997) 41 NSWLR 694.

   [7] Smith v Tamworth City Council (1997) 41 NSWLR 694.

5. Despite the fact that the second defendant presently holds the permit which permits the Board to release the deceased's ashes to him, the potential for an argument about the validity of that permit satisfies me, for present purposes, that the plaintiff has made out at least a prima facie case, even if it is at this stage only a weak case. On the information presently available, it is not possible to say anything more as to whether the plaintiff, or alternatively the second defendant, would ultimately be entitled to the deceased's ashes.

6. Turning to the balance of convenience, it clearly weighs in favour of the grant of an injunction on an interim basis.  As part of the balance of convenience, it is ordinarily necessary to consider whether damages would be an adequate remedy.  Clearly, this is a case where damages would not be an adequate remedy and it is not necessary to say anything further in respect of that consideration.

7. Accordingly, I propose to grant an interlocutory injunction on an interim basis.  The terms of the order should reflect that the Board is restrained from releasing the ashes of the deceased to any person until 18 December 2015, when I will list the matter before me for an inter partes hearing of the application.