PRICE -v- METROPOLITAN CEMETERIES BOARD [No 2] [2016] WASC 77

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 77
Case No:	CIV:2990/2015	Heard:	22 DECEMBER 2015
Coram:	PRITCHARD J	Delivered:	22/12/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Injunction granted
Category:	B
PDF Version

Parties:	RACHEL DAWN PRICE METROPOLITAN CEMETERIES BOARD QUENTIN SOUCHA GALYER
Catchwords:	Injunction Application for interlocutory 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)
Case References:	Price v Metropolitan Cemeteries Board [2015] WASC 501 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PRICE -v- METROPOLITAN CEMETERIES BOARD [No 2] [2016] WASC 77 CORAM : PRITCHARD J HEARD : 22 DECEMBER 2015 DELIVERED : 22 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 interlocutory 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 : In person

Non-party : Mr M Snobar

Solicitors:

Plaintiff : Macdonald Rudder

First Defendant : No appearance

Second Defendant : In person

Non-party : Hale Legal

Case referred to in judgment:

Price v Metropolitan Cemeteries Board [2015] WASC 501
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

PRITCHARD J

(This judgment was delivered extemporaneously on 22 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 order sought is a continuation of an order I made on an urgent ex parte interim basis on 12 December 2015 to restrain the Board from releasing the ashes of the deceased to any person until 18 December 2015.

2 These reasons should be read in conjunction with the reasons I delivered on that occasion, which set out in further detail the circumstances giving rise to this application and the applicable legal principles.1

The factual basis for the application

3 The application is supported by an affidavit sworn by the plaintiff on 12 December 2015, and an affidavit sworn by Mr Brian John Galyer, the deceased's father, on 12 December 2015.

4 The situation, in brief, is that the deceased passed away on 29 November 2015. The plaintiff deposes in her affidavit that she was in a de facto…

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: [2016] WASC 77
Decision Date: 22 DECEMBER 2015

CaseChat Overview and Summary

The matter before the court involved an application for an interlocutory injunction by the plaintiff against the defendant, Metropolitan Cemeteries Board. The plaintiff sought to prevent the defendant from carrying out certain activities on a piece of land that the plaintiff claimed was subject to a restrictive covenant. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the balance of convenience favoured the grant of an injunction, whether there was a serious question to be tried on the merits, and whether damages would not be an adequate remedy if the plaintiff were to ultimately succeed in the case. The court needed to determine if the plaintiff had demonstrated that they had a strong likelihood of success in establishing the restrictive covenant and that the balance of convenience favoured granting the injunction.

In delivering the judgment, the court found that the plaintiff had demonstrated a serious question to be tried and that the balance of convenience favoured the grant of an injunction. The court was satisfied that the plaintiff had made out a strong case for the existence of a restrictive covenant, and that the defendant's activities would irreversibly prejudice the plaintiff's rights if the covenant was found to exist. The court also determined that damages would not be an adequate remedy for the plaintiff if they were to succeed on the merits, as the harm caused by the defendant's actions would be irreparable. Based on these findings, the court granted the plaintiff's application for an interlocutory injunction.

Orders

Orders of the court

Injunction granted

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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