Price v Metropolitan Cemeteries Board [No 2]
[2016] WASC 77
•22 DECEMBER 2015
PRICE -v- METROPOLITAN CEMETERIES BOARD [No 2] [2016] WASC 77
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 77 | |
| Case No: | CIV:2990/2015 | 22 DECEMBER 2015 | |
| Coram: | PRITCHARD J | 22/12/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Injunction granted | ||
| 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
- 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 relationship with the deceased until the date of his death. The plaintiff also deposes in her affidavit that she had commenced planning a funeral for the deceased but, as a result of some other circumstances, which need not be set out here, she ended up in hospital in intensive care and was not able to continue with those preparations. After the plaintiff came out of hospital, she was informed that funeral arrangements had been made for the deceased by his brother, the second defendant. The funeral proceeded, as did the cremation of the deceased's body, and a dispute has now arisen as to who is entitled to collect the ashes from the Board. Because the second defendant made an application to the medical referee and obtained a permit under s 8 of the Cremation Act 1929 (WA) (the Act) for the cremation, the Act provides that it is lawful for the Board to release the ashes to him.2
5 The purpose of the injunction which is sought is to ensure that the ashes are not delivered to the second defendant, or indeed to any party, until a dispute that exists between the plaintiff, the second defendant, and Ms Natalie Jane Counsel, who is the wife of the deceased and the mother of his two children, is resolved. (That dispute will potentially fall to be resolved by proceedings between the parties for letters of administration in respect of the deceased's estate.) I note that the second defendant is content for the injunction to be continued.
6 The Board has not been represented at the hearing of the present application. However, it has been advised on two occasions of hearings for the extension of the interim injunction which I granted on 12 December 2015. The Board has now advised the Court that it does not intend to actively participate in the proceedings, but rather will abide by the outcome of the Court's decisions, save as to costs.
Principles in relation to the grant of interlocutory injunctions
7 The requirements for the grant of an interlocutory injunction were set out by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd.3 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.
8 As to the question of whether there exists a serious question to be tried, counsel for the plaintiff has advised that the plaintiff intends to challenge the decision of the medical referee to issue a permit to the second defendant under s 8 of the Act, on the basis that the second defendant was not a proper person to make the application. The plaintiff contends that she would have been the proper person to make that application. In this respect, the purpose of the interlocutory injunction is to maintain the status quo while the plaintiff pursues a review of the decision of the medical referee. I note in passing that the medical referee, or the person who occupied the position of the medical referee, is not joined to these proceedings. That may be a matter that requires attention should these proceedings be pursued in the future.
9 I am satisfied, although with some reservations, that the plaintiff has established that there exists a serious question to be tried, or a prima facie case, having regard to the terms of s 8 of the Act.
10 Turning to the balance of convenience, it is also very clearly the case that the balance of convenience favours the grant of the injunction. 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 unnecessary to say anything further in respect of that consideration.
11 I have some reservations about injunctive relief being granted as against the Board when, to a very large extent, it is not actively involved in the present dispute between the parties. However, for the Board to continue to hold the ashes of the deceased in circumstances where it does not object to doing so and where that will clearly ensure that the ashes are preserved in a safe place while the parties' present dispute is resolved, is to the advantage of all concerned. In all of those circumstances, I am content to extend the injunction.
The timeframe for the injunction
12 The only issue in dispute between the parties, or at least as between Ms Counsel (who seeks to become a party to these proceedings in due course) and the plaintiff, concerns the timeframe for the injunction. The plaintiff seeks an injunction for a further six months to permit questions of administration of the deceased's estate to be resolved in the interim. Mr Snobar, who has appeared on behalf of Ms Counsel by leave today, has submitted that that is too long a period of time.
13 It seems to me that the grant of an injunction to a date approximately six months from now, but with liberty to the parties to apply, would resolve that concern. Accordingly, I propose to extend the interlocutory injunction which has been granted. The terms of the order should reflect that the injunction restraining the Board from releasing the ashes of the deceased to any person will be continued until approximately six months from now.
1Price v Metropolitan Cemeteries Board [2015] WASC 501.
2 See Cremation Act 1929 (WA) s 7(1).
3Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [11] (Beech J).
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