Raggio v Horlock
[2016] SADC 79
•11 July 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
RAGGIO & ANOR v HORLOCK
[2016] SADC 79
Judgment of His Honour Judge Slattery
11 July 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The applicants for review were the plaintiffs in an action in Magistrates Court in which the defendants were the sister (now deceased) of the plaintiffs and their niece. The issue in the Magistrates Court proceeding was the claim of the applicants to be entitled to be named as the licensees on a burial license agreement made with the Corporation of the City of Holdfast Bay. The burial plot is in the Brighton Cemetery and there are no interment rights remaining under that license.
The original holder of the license right was the deceased father of the applicants (John Joseph Raggio). Upon his death and under his will and before all interment rights were filled, the license holder became his daughter Lucy Markevicius (deceased) as his executor. Prior to her death in 2014, Lucy Markevicius (deceased) arranged with the City of Holdfast Bay for the transfer of the license to her daughter, the respondent Laura Horlock.
In the Magistrates Court, the applicants brought an action to challenge the status of Laura Horlock as licensee. By the time that those proceedings had been brought, the interment rights under the license were filled. In the Magistrates Court, a finding was made that the license right was a form of property for s 8 Magistrates Court Act and that the matter was justiciable before that Court. The dispute was referred to mediation at which the parties entered into a settlement agreement.
In the Magistrates Court, the applicants then sought to set aside the settlement agreement because of alleged duress and other grounds. Another Magistrate dismissed that application and the applicants now seek a review of that decision.
Held:
1. The license is not property, it does not create any proprietorial rights and is only a contractual right that may be dealt with under the permission granted by the City of Holdfast Bay.
2. Under the proceedings initially brought by the applicants in the Magistrates Court, there was no justiciable lis before the Court: the finding of jurisdiction under s 8 Magistrates Court Act was in error.
3. Notwithstanding some criticisms that may be made of the process of mediation, there was no factual basis made out by the applicants to justify setting aside the settlement agreement. The applicants are bound by the terms of their settlement agreement.
4. There is no basis to suggest that the respondent Laura Horlock was in breach of the settlement agreement.
5. The transfer by Lucy Markevicius (deceased) to Laura Horlock of the license was not the transfer of an hereditament and it was not an instance of Lucy Markvecius (deceased) relinquishing the administration of her father’s estate.
6. Notwithstanding that as executor of the deceased estate of John Joseph Raggio, Lucy Markevicius (deceased) did not have the power to assign property of that estate, when she transferred the license (only with the consent of the City of Holdfast Bay) she was doing no more than acting in the position of the deceased who in his own lifetime had the power to transfer the license under arrangements with the City of Holdfast Bay to whomsoever he chose.
7. The principle of chain of executors has no operation in this matter.
8. Those provisions of the Burial and Cremation Act 2013 which have retrospective operation do not change the result in this review.
Observations of the content and operation of the Burial and Cremations Act 2013.
Halsbury's Laws of Australia vol 14, para 252; Burial and Cremation Act 2013 Division 3 of Part 3, s 28(4)(b) , s 30 , s 32, s 33, s 35, s 37, s 39 , s 43(c), s 44, Schedule 1; Local Government Act s 592; Magistrates Court Act s 8(1)(b), s 38(7); Cremation Act 2013 (repealed); Evidence Act 1935 s 67C; Law of Property Act 1936 s 7; Local Government (Control of Cemeteries) Amendment Act 1966 Generally; DC Pearce and RS Geddes, 'Statutory Interpretation in Australia', Lexisnexis Butterworths 8th Ed. 2014; Swinburne, 'Wills' Pt 4, s2, pl 2 at chapter 10; “The Exclusive Right to Burial” (1965) 39 ALJ 50; Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Grounds Australia (1998) 20 (1) Sydney Law Review 78 (Professor Prue Vines), referred to.
R v Toohey ex parte Meneling Station (1982) 158 CLR 327; Maxwell v Murphy (1957) 96 CLR 261; Attorney-General of NSW v Worlds Best Holdings (2005) 63 NWSLR 557; NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27; Victrawl Pty Ltd v Telstra Corp Ltd (1995) 183 CLR 595; Smith v Tamworth City Council (1997) 41 NSWR 680; Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273; Boni v Larwood [2014] SASC 185; In Re Knowles Trust [1948] 1 All ER 866 (affirmed CA [1940] 1 All ER 160); In Re Biss [1903] 2 Ch; Re Yerburgh: Yerburgh v Yerburgh [1928] WN 208; In the Estate of Skinner (Dec’d) [1958] 1 WLR 1043, discussed.
Thomas v Sorrell (1673) Vaugh 330; 124 ER 1098; George Hudson Limited v Australian Timber Workers Union (1923) 32 CLR 413; Re Gardiner [1938] SASR 6; Australian Education Union v General Manager of Fairwork Australia (2012) 246 CLR 117; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors [2004] 219 CLR 165; Rhode Island of Silvia v Helger 67 A2d 27; 10 ALR 2d 216 (1949); Read v Madorn [1989] 2 All ER 431; Brookwood Park Limited v Guney and Ors [2014] EWHC 2629; (2014) Ch; R (HM) Coroner for the Eastern District of London v Secretary State for Justice and Sutovic [2009] EWHC 1974 (admin); Bishop Urinej Dobrijevic and Anor v Free Serbian Authodox Church, Diocese for Australia and New Zealand Property Trust & Ors (No.2) [2015] NSWSC 1976, considered.
RAGGIO & ANOR v HORLOCK
[2016] SADC 79JUDGE SLATTERY
In an action in the Magistrates Court number 2987 of 2013, Ms Frances Raggio and her brother Mr Alfred Raggio sought a declaration that she be entitled to be named as a licensee of the gravesite of her deceased parents John Joseph Raggio and Maria Aurora Raggio. It appears from the Court records that Ms Frances Raggio was understood to be the most active plaintiff in seeking these orders.
The respondents to the proceedings were her sister Lucy Markevicius and the daughter of Lucy, Ms Laura Horlock. Lucy Markevicius is now deceased and she passed away on 29 March 2014. Probate of her deceased estate was granted on 5 August 2014 and the Public Trustee was named as her sole executor. These proceedings are now brought solely against the respondent Ms Laura Horlock, the niece of the applicants.
The licence of the burial plot at the Brighton Cemetery was controlled by the corporation of the City of Holdfast Bay and was purchased by Mr John Joseph Raggio in 1976. The plot licence was for a total period of 50 years. In 2013 such a licence would cost $1,567.00. A plot licence gave to the holder a right of burial of three bodies in the Brighton Cemetery. The plot is now full after the interment of the parents and sister (Carmel called Lina) of the applicants in that plot.
The application to the Magistrates Court by Ms Frances Raggio was based on two alternate propositions namely:-
1Part XXX of the Local Government Act 1934 and the Local Government (Cemetery) Regulations 2010 made under that Act; or
2The Burial and Cremations Act 2013 (that Act had not yet been proclaimed).
In his reasons for judgment of 4 October 2013, the learned Magistrate Mr Millard SM at [9] held that neither of those statutes provided a cause of action but his Honour proceeded to hear and determine the matter on the basis that the evidence disclosed a value of the licence and that being so, the licence may be equated to property of a value of less than $25,000. As a consequence the learned Magistrate held that the Magistrates Court was in a position to make orders concerning that property including orders for equitable relief and declaratory orders. The learned Magistrate found that it was common ground between the parties that between 1 June 1987 and September 2011 there was: “…no registered licensee…” of the gravesite (at [22]) and that as executor and trustee of the deceased estate of John Joseph Raggio, Lucy Markevicius was entitled to arrange for a transfer of the licence into her name or of the name of any other person: “…willing to act as trustee of the licence…” (at [22]).
There are a number of issues that immediately arise. A licence is not and has never been a form of property. In R v Toohey ex parte Meneling Station,[1] Wilson J said:-
A dispensational licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it would had been unlawful: Thomas v Sorrell (1673) Vaugh 330 at page 351; 124 ER 1098 at 1109. It is a personal privilege conferring no interest in the land. It is not transferrable, nor can it be granted in perpetuity. It is generally revocable and merely excuses a trespass until it is revoked: Halsbury vol 14, para 252.
[1] (1982) 158 CLR 327 at 352.
I refer especially to the comment by Wilson J in relation to the transferability of a licence. These rights (as they exist) only arise as a matter of contract. A licence, by its nature, is not absolutely transferrable except by agreement of the licensor; usually a fresh licence being granted. Such an agreement by the licensor may be withheld for any reason. The decision about what is to happen with the licence rests always with the licensor. Therefore by its very nature a licence is not transferable and this explains the reference by Wilson J to the non-transferability of licences.
I refer later to the Burial and Cremation Act 2013. That Act, which commenced operation on 1 February 2014, makes reference to a Register of Licenses in the quite specific context of the operation of that Act. The reference to a register (of licenses) is really a convenient term or phrase and it does not raise any notion of proprietorial rights. As the licence does not constitute a property interest, the register does not change that position and as a matter of common sense, the change of the name of the licensee creates no proprietary interest in that person as the new licensee. I will deal with that matter later in these reasons.
The learned Magistrate found that John Joseph Raggio purchased the licence for the interment of the remains of his deceased wife Maria Aurora who passed away on 1 August 1976. The licence was granted under the powers contained in s 592 of the Local Government Act which, in 1976 read as follows:-
s 592
The council may grant rights for burial purposes over any part of the cemetery vested in, or under the care, control and management of the council and may do other things necessary for the upkeep, maintenance and management of the cemetery. No such right for burial purposes may be granted for a longer term than 99 years.
The learned Magistrate also found (at [24]) that on 9 November 2011, Lucy Markevicius transferred the licence under a Transfer of Licence Declaration for the City of Holdfast Bay. In that transfer, Lucy Markevicius identified herself as:-
A person entitled to exercise the rights granted to the licence upon the licensee’s death or legal incapacity and being the highest ranked person in the following descending order of entitlement.
She described herself as the “sole executor or administrator [sic] of the licensee”. Therefore, Lucy Markevicius purported to transfer the licence in her capacity as the sole executor or administratrix of the deceased estate of the original licensee. Ms Horlock who does not live in South Australia and has not lived here for many years, now wishes to remain as licensee of a burial plot that is full. This means that under the licence agreement all that devolves upon Ms Horlock is the responsibility to maintain the gravesite, to comply with Council requirements from time to time and to renew the license arrangement if the licensor is willing to so do. The license also carries with it the power to make decisions about the content of the headstone or such plaques as may be placed upon the slope[2] of the grave. In those circumstances it is not at all clear why all parties appear to treat the licence as an asset when properly construed it is an obligation that carries a number of burdens.
[2] The expression “slope” is an industry expression that means the top of the grave which in this instance comprised a polished stone slab. It is that “slope” to which the plaque in honour of Carmel (Lena) has been affixed.
On 28 September 2011, City of Holdfast Bay issued in the name of Ms Horlock, a document called “North Brighton Cemetery Lease”. This is a misnomer. The Council had no apparent intention to grant a lease of the cemetery land. It granted a licence that carried with it interment rights. As matters now stand, the plot is full and there is no other available interment rights. The other interment places had been taken by deceased members of the Raggio family.
After discussing the source of the controversy between the parties arising from the wording of a plaque on the “slope” of the grave commemorating Carmel Raggio deceased, the learned Magistrate turned his attention to the Court’s jurisdiction and in particular the operation of s 8(1)(b) of the Magistrates Court Act.[3] The learned Magistrate held (at [46]) that “a licence to occupy a gravesite is ‘property’ within the broad contemplation of the Act”. This is because the grave may have a notional value by a comparison to the more modern rate of costs of purchase and the trustee has a maintenance obligation and a cost of the renewal of the license at expiration which must be attended to by the trustee.
[3] 8—Civil jurisdiction
I am unable to agree with those findings of the learned Magistrate. As I have already explained, the licence does not in either a broad or in a narrow sense constitute property and the operation of s 8(1)(b) of the Magistrates Court Act cannot create a proprietorial interest when none exists. The executor of the estate of the deceased estate of John Joseph Raggio, Ms Lucy Markevicius is now deceased and the executor of her estate was the Public Trustee. All indications are that the estate of Lucy Markevicius has been fully administered. For reasons which I develop later I consider that the doctrine of chain of executors has no application here. Ms Laura Horlock is the executor of the deceased estate of Carmel Raggio and the Public Trustee is the executor of the deceased estate of Lucy Markevicius.
Ms Horlock is named as licensee under a transfer. There is no obligation upon her to renew the license and the only other source of obligation upon her arises under any by-law or Regulation promulgated by the Corporation of the City of Holdfast Bay. Neither of those matters creates a proprietorial interest and they are to be properly understood as obligations. The only remaining right is the control of the content of the headstone and the “slope” of the grave. Such things are normally agreed in the family as a matter of common sense and so leave little room for dispute. There are of course exceptions.
I consider that the Magistrates Court did not have jurisdiction to hear and determine the action for those reasons. I consider that no proper lis is joined in the proceedings in that the controversy between the parties is not resolvable by the Magistrates Court under the jurisdiction of that Court.
On one view this could be said to be the end of the matter but I consider that for many reasons this is an unsatisfactory result. It would possibly be an end to the matter because it may be argued that the appeal is not competent and the applicants have no proper standing to bring an application for review. Such a view may overlook two matters: the nature of the jurisdiction being exercised by the Court and, as well, the nature of the application for review brought by the applicants. Enough is known of the former and my comments here are focussed upon the latter issue.
The applicants seek to set aside an agreement reached at a mediation and so they contend that the jurisdiction of the Magistrates Court was exercised but wrongly. That issue turns upon the agreement itself and the process leading to agreement. That is a different matter than the claims heard before Mr Millard SM that led to the exercise of jurisdiction by his Honour which in turn led to the mediation. It does not necessarily logically follow that the findings I have made on jurisdiction about the nature of the license should necessarily or at all mean that this review should not proceed upon the basis of the contractual issues that arise as a consequence of the grounds of review contended for by the applicants.
A second consideration is that I may be wrong in my view of the status of a license and the decision of Mr Millard SM. It is a rare thing for a Court exercising the very general jurisdiction of the Magistrates Court to be found not to have jurisdiction. Enough has been said and written about the breadth of this jurisdiction to understand that I would not lightly reach such a conclusion. But I readily accept that minds will differ on this issue.
I also consider that the parties should have the benefit of a decision on the whole of those matters and then a (reasoned) conclusion. I consider that matters of public policy and the use of Court resources and the parties’ own resources require this approach. I will therefore proceed in my decision in this matter by considering all questions but I ultimately decide this review on the basis of the contractual matters that are reflected in the applicants’ grounds of review. I have proceeded accordingly.
The Burial and Cremation Act 2013 (the Act) was gazetted on 1 February 2014 and came into operation on that date. Division 3 of Part 3 of the Act deals with interment rights. Under s 30 of the Act, power is given to a relevant cemetery authority to agree to an interment right which may be issued to any person for a period specified in the interment right or in perpetuity. The interment rights may be renewed under s 32 of the Act and under s 33 of the Act there may be a transfer of interment right at the current fee payable for the issue of an interment right of the same kind. Under s 35 of the Act, where the holder of an interment right has died, that interment may be exercised or enforced by the personal representative of the deceased or otherwise a person determined in accordance with the Regulations. The transfer of the interment rights under s 33 are contemplated to be for consideration and it only prescribes an upper limit on the fee payable for the transfer but sets no lower limit on such fees.
There are suggestions within the new Burial and Cremation Act 2013 (the Act) of retrospective operation of some of its provisions. The Act deals specifically with interment rights at Division 3 of Part 3 of the Act commencing at s 29 et seq. In particular, the Division guarantees a renewal of interment rights (s 32), the duration of the interment right (s 31), the transfer of interment rights (s 33), the surrender of interment rights (s 34) and the exercise of enforcement of interment rights (s 35). The Register of Interment Rights is dealt with at s 37. The Regulations also operate in this area. The indications of retrospectivity are as follows:-
1. There are transitional provisions in Schedule 1. Part 3 of those transitional provisions reads as follows:-
9—Transitional provision relating to interment rights
An interment right granted before the commencement of this Schedule will be taken to be an interment right granted under this Act (as if this Act had been in force when the interment right was granted) and—
(a) if the interment right was granted in perpetuity—the presumptive interment right will be taken to have been granted in perpetuity;
(b) if the interment right was granted for a fixed term—the presumptive interment right will be taken to have been granted for the same term;
(c) in any other case—the presumptive interment right will be taken to have been granted for a term prescribed by the regulations.
Obviously enough, the language used in Schedule 1 Part 3 Clause 9 identifies a retrospective operation of the Schedule.
2. Section 39 of the Act reads as follows:-
39—Ownership of memorial
(1) For the purposes of the law of this State, a memorial to a deceased person in a cemetery, natural burial ground or other place of interment is the personal property of the person who holds the interment right in respect of the interment site where the memorial is situated.
(2) However, the relevant authority for a cemetery or natural burial ground in which a memorial is situated may deal with and dispose of the memorial in accordance with this Act.
(3) This section applies to memorials whether erected before or after the commencement of this Act.
Thus, a memorial to a deceased person in a place of interment is the personal property of the person who holds the interment right. This is applicable to memorials whether erected before or after the commencement of the Act. Again, quite obviously, there is a retrospective operation of this provision.
3. Section 28(4)(b) of the Act reads as follows:-
28—Obligations of relevant authorities on closure of cemeteries etc
(3) Subject to the regulations, if a cemetery, natural burial ground or crematorium is closed, the relevant authority must, within 60 days after the closure, forward to the Libraries Board of South Australia any record relating to the cemetery, natural burial ground or crematorium in the custody of the relevant authority.
(4) Subsection (3) does not apply in relation to—
…
(b) non-official records relating to a cemetery, natural burial ground or crematorium closed before the commencement of this section.
Those cemeteries which have closed prior to the commencement of the Act are excluded from the obligation to comply with those relevant provisions of the Act.
4. Section 43(c) reads as follows:-
43—General powers of relevant authority
A relevant authority for a cemetery, natural burial ground or crematorium may—
…
(c) restrict interments in any part of the cemetery or natural burial ground, except as may be required by interment rights granted before the commencement of this Act;
This subparagraph preserves those interment rights granted under different arrangements and legislation before the commencement of the Act.
5. Section 44 of the Act reads as follows:-
44—Multicultural needs to be recognised
(1) The relevant authority for a cemetery or natural burial ground must, in the establishment, administration, extension or improvement of the cemetery or natural burial ground, have due regard to the customs and needs of the various ethnic and religious communities that may resort to the cemetery or natural burial ground for the disposal of human remains.
(2) A relevant authority is required to comply with subsection (1) in relation to a cemetery established before the commencement of this Act only to the extent that is reasonably practicable.
This section gives a limited retrospective operation for compliance with recognition of multicultural needs by cemeteries established before the commencement of the Act but only to the extent reasonably practicable.
The retrospective operation of these parts of the Act are apparent. The question becomes whether, on the generally applicable principles, it is arguable that the Act has retrospective operation to include coverage of the arrangements made between the Corporation of the City of Holdfast Bay and the interment rights in respect of the Raggio burial plot.
Under s 35 of the Act, where the holder of the interment right has died, that right is exercisable by the personal representative of the deceased who will usually be the person who was registered on the Register required under s 37 of the Act as the person to whom the interment right has been issued. It is apparent that Part 3 Division 3 sets out a scheme for the management of interment rights. There is no indication within that Part of a means of resolving conflict between family members in relation to the transfer of the right or the payment of the fee prescribed under s 33(1).
It is necessary to consider the relevant principle applicable to the question of retrospectivity of legislation. I do so hereunder. The matters that I set out hereunder are generally taken from the discussion by the learned authors of Statutory Interpretation in Australia.[4]
[4] DC Pearce and RS Geddes, Lexisnexis Butterworths 8th Ed. 2014 at chapter 10.
The general principles are as follows:-
Retrospectivity of Legislation
The High Court held in Maxwell v Murphy[5] that there is a general presumption against the retrospective operation of legislation at common law. Dixon CJ held at 267 as follows:-
The general rule at common law is that a statute changing a law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference of past events.
[5] (1957) 96 CLR 261 at 267.
The general common law principles are based on concepts of fairness and justice. If a Court is able to determine that a retrospective operation will bring a sufficient degree of unfairness or injustice, then the Court will likely form the view that there is no intention for the Act to operate retrospectively.[6]
[6] Attorney-General of NSW v Worlds Best Holdings (2005) 63 NWSLR 557 at [54] ff; NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456 at [130] et seq. The concept of fairness must be assessed according to the wording of the legislation and this wording determines whether the Court will adopt a retrospective operation of an Act. In George Hudson Limited v Australian Timber Workers Union (1923) 32 CLR 413 at 434, Isaacs J, quoting from Maxwell on Statutes, said: “Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. That is the universal touchstone for the Court to apply in any given case. But its application is not sure unless the whole circumstances are considered, that is to say, the whole of the circumstances which the legislature may be assumed to have had before it. What may seem unjust when regarded from the standpoint of one person affected may be absolutely just when a broad view is taken of all who are affected.
Generally, in order to be retrospective, it would be necessary for legislation to specifically provide that rights and obligations are changed prior to the commencement date of the legislation. This is to be viewed in the background that all legislation is presumed to infringe on rights and obligations. Persons now subject to the operation of the Act (who presumably were not so subject prior to the commencement of the Act) must alter their own conduct in order to satisfy the legislation. This may be explicit or it may be implicit (for example by the use of a drafting method that e.g. uses past participles generally).
A distinction must be drawn between legislation that has a prior effect on past events and one that is based on future actions about past events. In Coleman v Shell Co of Australia[7] Jordan CJ held as follows:-
…if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of [a] matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards to the creation of further particular rights or liabilities.
[7] (1943) 45 SR (NSW) 27 at 31.
Presumption against retrospectivity
The presumption against retrospective operation may be excluded in a number of ways. The first is by the specific wording of the Act and the second, where a Court might identify the necessary intendment that an Act operates retrospectively.[8] In Worrall v Commercial Banking Co of Sydney Ltd[9] Barton J held as follows:-
Necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable.
[8] Pearce and Geddes ‘Statutory Interpretation’ 8th Ed at [10.12].
[9] (1917) 24 CLR 28 at 32.
The presumption against retrospectivity does not apply universally. For example, where a declaratory Act is passed, which interprets prior legislation then, as a matter of ordinary common sense the declaratory Act will have the retrospective function of interpreting earlier legislation.[10]
[10] Re Gardiner [1938] SASR 6; Australian Education Union v General Manager of Fairwork Australia (2012) 246 CLR 117 per French CJ, Crennan and Kiefel JJ at [53].
If a statute could be classified as being only procedural in nature, the presumption against retrospectivity does not necessarily apply. The difficulty often is how to classify a statute as being only procedural in nature. This question occupied the High Court in Victrawl Pty Ltd v Telstra Corp Ltd.[11] where the Court held (at 615) as follows:-
Whether the provision’s operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable.
Although the High Court indicated that this was the applicable question, it is difficult to obtain much practical assistance from the very general nature of the content of this portion of the judgment of the Court. It is difficult to draw a clear rule to assist a Court in making a decision between what may be called procedural and what may be described as substantial. Pearce and Geddes[12] suggest at [10.23] as follows:-
The notion is thus adopted that, if a statute is concerned only with the way in which certain rights are to be enforced or is quite literally concerned with Court procedure, it will operate retrospectively. This means that it is applicable to all actions commenced after the passing of the procedural statute to enforce rights, whether those rights arose before or after the enactment of that statute. A statute that amends prescribed procedure will also apply to actions commenced but only partly completed when the change in procedure is made.
Whether the Burial and Cremation Act 2013 has retrospective operation
[11] (1995) 183 CLR 595.
[12] Statutory Interpretation in Australia 8th ed.
I have earlier set out the apparent retrospective operation of the relevant portions of the Act – see Regulations Schedule 1 Clause 9, s 39, s 28 and s 43. I am satisfied that the intention of Parliament was to give those specific provisions retrospective operation because, as a matter of common sense and experience, those types of provisions will ordinarily have retrospective operation in order to preserve accrued rights. They do not mean that the whole statute operates retrospectively or indicate that this is the intention of Parliament. Consistent with the judgment of Jordan CJ in Coleman, the sections that operate retrospectively apply to past events and therefore operate upon future actions about past events.
The conclusion which is easily drawn is that where otherwise than expressly stated, the legislation is intended only to have a prospective operation. In those circumstances, provisions such as s 33, s 34, s 35, s 37 and Division 5, except where expressly stated, have only a prospective operation. It follows that those provisions have no application to the issue for determination before the Court in this matter.
As a matter of completeness, it is necessary to identify that the Burial and Cremation Act 2013 expressly repeals the Cremation Act 2013. That Act was repealed as at 1 February 2014. I have reviewed the contents of the Cremation Act. That Act has no application to the issues before this Court.
The learned Magistrate thoroughly considered the evidence before him and identified the obvious fracture or schism in the relationship between the siblings of the Raggio family. On the one side was Frances (and Alfred) and on the other side Lucy, Lina and, it appears, Lucy’s children. The learned Magistrate formed the view that there was no prospect of a harmonious relationship between Laura Horlock and Frances Raggio. That is not to say that any particular level of blame lay in one quarter or another. My observation is that the behaviour of the parties may be criticised in equal measure.
The learned Magistrate decided that the best way forward was to refer the matter to a mediation to explore resolution and in particular whether the license might be shared between Ms Horlock and Mr Alfred Raggio. The learned Magistrate identified Mr Raggio as a person who ought to be considered as a joint licensee: this was because of the particular personal qualities that the learned Magistrate identified from his observations of Mr Alfred Raggio. As matters have transpired, there was never any prospect of Ms Horlock agreeing to this proposal for reasons that are not obvious bearing in mind that there are no further interment rights available in the plot. This appears to be but one example of inexplicable intransigence. The learned Magistrate also decided that the matter was to be remitted to him if settlement is not achieved at the mediation.
A mediation was held and a Mediation Agreement was signed at the conclusion thereof. No agreement to mediate was placed in evidence before me in this hearing. The terms of the Mediation Agreement were as follows:-
SETTLEMENT AGREEMENT
1. It is agreed that defendant HORLOCK has discharged her duties as executor and trustee of the RAGGIO estate with proficiency and commitment to propriety.
2. It is agreed that defendant HORLOCK is, and remains the executor and trustee of the estate.
3. IT IS AGREED: by the plaintiffs that they are not of similar standing as that of registered proprietors of the gravesite. Only the licensee has standing.
4. It is agreed, that plaintiffs’ RAGGIO may cause a suitable plaque to be installed on the RAGGIO gravesite, situated at North Brighton Cemetery, Brighton Road, Brighton South Australia dedicated to the memory of Carmel (Lina) RAGGIO, who is interred in the same plot as her parents.
5. Such a plaque will be within the standards and conditions for such gravesite artefacts prescribed by Holdfast Bay City Council, South Australia.
6. The plaque will be inscribed with such details and sentiments as plaintiffs’ deem appropriate.
·In loving memory of Carmel (Lina) Raggio
·Remembered by all her brothers and sisters
·Devoted Aunty Lina to all their families
·Rest in Peace in the arms of her Parents
The plaque is to be embossed brass, or similar and no larger than one half A4.
7. The licensee is to ensure that the plaque conforms to any such Council by-laws and conditions.
8. The costs associated with manufacturing and placing the plaque is to be met in the final resort by the plaintiffs.
9. There is no time schedule set of the installation of the plaque, but rather it is to be at plaintiffs’ convenience.
10. It is agreed that defendant HORLOCK, as licensee may be required to make provisions for renewal of the terms of the licence agreement beyond the current term, and to arrange to make good any substantial repairs, consequent to damages which may occur to the grave. It is hoped that these actions will be consequent to family conferences and agreement, however, the licensee is not obliged to either seek or act on the decisions reached by the extended family. She alone carries the responsibility of license. She must remain independent and unfettered and be able to seek and accept such legal advices as may be required, from time to time, and to act appropriately.
11. If the funds of the estate become depleted, the licensee, in arranging for security of the licence and maintenance of the gravesite, may at her discretion cause a plea for financial assistance to be circulated to members of the extended family. Such relatives and persons cannot be compelled to assist. The licensee will then be required to determine if the gravesite is to be retained for future generations.
12. All parties are to have an unfettered access to the gravesite.
13. The current plaque of Carmel (Lina) Raggio is not to be removed.
14. It is agreed, and recommended, that the current licensee give consideration as to who would be the appropriate person to succeed her as licensee. Whether or not she makes this decision known to the family, is at her discretion.
15. IT IS AGREED: that this is an internal family agreement. It is an amicable agreement settled in good faith and with honest intent.
16. IT IS AGREED: that this is an agreement based on trust. It is a non-binding agreement, in that it is not a contract between the parties.
17. IT IS AGREED: that this settlement agreement may be executed into a deed. However, the performance of the agreement as it stands is not contingent on establishing such a deed.
18. IT IS AGREED: and a vital consideration to the terms of this agreement that the defendant will place no obstacles or hinder the plaintiffs in seeking to obtain joint ownership of the gravesite lease agreement. Should permission be obtained both plaintiffs seek to be formally recognised. Any expense entailed in obtaining this license is to be borne by the plaintiffs.
19. The second plaintiff may in his own time refurbish the Crucifix and the surrounding chain fence.
20. Defendant (1) is deceased and her affairs under the administration of the Executor Trustee Company.
This agreement satisfies all claims and counter claims in their entirety in this matter.
All parties understand that this Mediation Agreement is binding and failure to comply with the terms of the agreement may result in a Summary Judgment being given against them in Court without an opportunity to further pursue or defendant the matter.
All parties agree that the terms and conditions of this settlement agreement are to remain confidential within the parties.
It is necessary to focus on only two groups of terms namely Clauses 4-9 inclusive and 13 which relate to the plaque to be installed on the slope of the existing grave in the agreed terms as there set out. These clauses are largely self-explanatory and, as Clause 13 makes clear, this term involves the creation of a second plaque as a memorial to Carmel Raggio (deceased).
Clause 18 is obviously essential to the Agreement and it says as much. If it be vital, a reasonable expectation is that it may be comprehensible as identifying a compromise (see s 67C Evidence Act 1935: all parties waived privilege in relation to the terms of this Agreement). I consider that the Clause fails to perform what may reasonably be expected of it and it further prolongs the misapprehension of the existence of some form of property right in the licence. The suggestion of the plaintiffs seeking to obtain joint ownership of the Gravesite Lease Agreement is self-evidently the language of misapprehension. And an agreement without a mechanism for agreement (including a “tie breaker” clause in the absence of agreement) or an understanding of what is required to become a licensee and the need, for example, for consent to be given, barely registers as an agreement at all. But this is the document that the parties executed and so it is their agreement.
The plaintiffs sought to set aside the Agreement because it is alleged that it had been procured by duress and without Frances Raggio and Alfred Raggio having read the form of the Agreement. That application was heard by Mr Milazzo SM and his Honour refused the application. This of course is now a different issue than the one before Mr Millard SM. There is no doubt that a Magistrate exercising ordinary jurisdiction of the Court may hear and determine an application to set aside an agreement. And I can see little benefit in attempting to emphasise the fact that the matter more latterly came before the Court by a circuitous route that was initially beyond the jurisdiction of that Court. The relevance of that matter is that the parties likely would not have come to the mediation if they were told of the limit of the Court’s jurisdiction. At the mediation referred by Mr Millard SM the parties entered into the mediation agreement that was the subject of the application before Mr Milazzo SM.
The terms of the application for review of a minor civil decision are as follows:-
GROUNDS OF APPEAL
The grounds of the Review are that Mr Milazzo
i.Found against the Plaintiffs on certain facts which the Plaintiffs assert are true, which asserted facts are that:-
a. Neither Plaintiff read the re-engrossed mediation agreement, nor was it read to them, bar the first sentence, before they signed it; and
b. Both Plaintiffs signed the re-engrossed mediation agreement without reading it;
c. The Plaintiffs were put under such pressure that they signed it against their will so that it was effected by duress within the meaning of the law;
ii.Failed to address in his reasons the issue raised by the Plaintiffs that the Defendant Laura Horlock (the Defendant Lucy Markevicius having died) breached the terms of the mediation agreement in a vital and substantial respect;
iii.Determined that the Plaintiffs were bound to the mediation agreement in circumstances where, the Plaintiffs allege, they signed it under pressure and substantial terms were breached by the Defendant and furthermore, it was based on the erroneous premise that the surviving Defendant was the executor of the estate of the licensee of the burial plot the subject of these proceedings;
iv.Determined that even had the Plaintiffs signed the re-engrossed mediation agreement without reading it they were bound to it, whereas the Plaintiffs assert that the withholding of its terms from them was part of the alleged pressure upon them to sign it;
v.Determined that the mediation was binding in circumstances where the Plaintiffs assert that the Settlement Agreement reached at mediation was either void ab initio or became voidable;
vi.Based his decision in part on a High Court decision on contract, namely Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors [2004] 219 CLR 165 which concerned commercial parties under no pressure and who had full access to the disputed terms, whereas the Plaintiffs are unsophisticated litigants and two children of a deceased person whose burial plot they seek to care for, and who felt pressured to sign an agreement they had not read nor were given the opportunity to read. In the cited High Court case the Court applied the settled principles of the law (vide paragraph 50) while recognising exceptions (vide paragraph 49). The Plaintiffs assert that their case warranted consideration of the exceptions; and
vii.Held that the Plaintiffs’ application to set aside the mediation agreement was without foundation when it was open to him on the evidence to determine that the agreement was vulnerable to legal attack on several grounds.
For the reasons already outlined there is nothing to be gained by a re-examination of the decision of Mr Millard SM. Properly construed, his decision was to exercise jurisdiction by referring the dispute to mediation. There an agreement was made and that agreement was the subject of the application before Mr Milazzo SM. The judgment of Mr Milazzo SM is in the following terms:-[13]
Magistrate S.H. Milazzo
Civil Jurisdiction
[1] This is an application supposedly to overturn an agreement mediated by Mr Humphries between the parties to these proceedings. I am told there was a lengthy discussion in the morning and I am told that following a luncheon break a re-engrossed copy of the agreement was produced to the parties.
[2] Ms Raggio tells me and Ms Horlock disputes that she did not read the agreement and that Mr Humphries did not read it to her. I find Ms Raggio’s claims hard to accept given the amount of emotional energy that had been invested by both Mr Raggio and Ms Raggio in this dispute. I cannot image that after everything that occurred on the file prior to the mediation, they both signed the mediation agreement without reading it.
[3] But in any event, if they did, then they are bound by it nonetheless. As a matter of law, by signing the agreement they indicated to the other parties to it, Ms Horlock and Mr Humphries, that they were agreeing to its terms: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Others [2004] 219 CLR 165. I do not accept that Ms Raggio and her brother could both have been put under such pressure that they signed it against their will so that it was affected by duress within the meaning of the law.
[4] This matter has gone on for too long. I am not going to permit it to be reopened. It was resolved at mediation and the mediation is binding on the parties. The applicant's application to set aside the mediation agreement is without foundation and is refused.
[13] SM Milazzo ex tempore judgment 16 July 2015 (AMCCI-13-2987).
The plaintiff now seeks a review of this decision under s 38(7) of the Magistrates Court Act. That provision reads as follows:-
38—Minor civil actions
…
(7) The following provisions apply to such a review by the District Court:
(a) the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e) in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
At the hearing before me, both parties were, by consent, represented by Counsel. The appellant read the following affidavits into evidence:-
1. Affidavit of Frances Patricia Raggio sworn 4 August 2015 (FDN12);
2. Affidavit of Frances Patricia Raggio sworn 19 August 2015 (FDN13);
3. Affidavit of Frances Patricia Raggio sworn 9 September 2015 (FDN16);
4. Affidavit of Frances Patricia Raggio sworn 19 September 2015 (FDN20);
5. Affidavit of Alfred Joseph Raggio sworn 29 October 2015 (FDN25); and
6. Second affidavit of Margaret Jane Minney sworn 13 November 2015 (FDN28).
The respondent read the following affidavits into evidence:-
1. Affidavit of Laura Anne Horlock sworn 17 November 2015 (FDN18);
2. Affidavit of Laura Anne Horlock sworn 26 October 2015 (FDN24);
3. Affidavit of Laura Anne Horlock sworn 13 November 2015 (FDN29);
4. Affidavit of Laura Anne Horlock sworn 10 December 2015 (FDN30); and
5. Affidavit of Laura Anne Horlock sworn 10 December 2015 (FDN31).
For reasons which will become clear throughout the course of this judgment, I have not specifically identified or discussed each and every item of evidence set out in the affidavit material read by the parties. I have taken a general view of this matter bearing in mind the nature of the jurisdiction which I am exercising. I can see little benefit in closely analysing each item of evidence because, in the end, I have relied upon my overall impression of the written evidence which was supplemented by further oral evidence. However, in coming to my decision, I have taken into account the whole of the content of the oral evidence and of the affidavit material filed on behalf of both parties.
Ms Frances Raggio was called to give further evidence and was cross examined. The respondent was also called to give further evidence and was cross examined. The respondent also called in evidence the mediator who was cross examined.
The ground of duress claimed by the appellant revolved largely around her state of health on the date of mediation, 26 March 2015. This was said to have caused her difficulties in understanding the course of the mediation and made she and her brother susceptible to pressure executed by Ms Horlock. She suffered a serious medical condition in the afternoon on 25 March 2015 and received treatment including hospitalisation. As well, the evidence suggests that Mr Alfred Raggio suffers from a heart condition. I have accepted that evidence in reaching my decision. Everyone present at the mediation on 26 March 2015 and especially the mediator, were aware of the medical issues being experienced by Frances Raggio. The evidence given by the mediator satisfies me that howsoever Frances Raggio was feeling on the day, that did not affect her ability to participate in the mediation nor adversely affect her ability to understand what was happening in the mediation. I would not accept any proposition to the contrary. My observations of Ms Frances Raggio in the witness box are that she is a very forthright, determined and robust woman. Those observations made many months after the date of the mediation appear to match largely the observations made of her by the mediator on the day of the mediation.
On the question of the mediation itself, the mediator was confronted by what may almost be described as an internecine familial conflict. The animus between the parties was apparent and it ran deep but for reasons which are not apparent to me. The mediator came to the mediation with what was described as a “side letter” which the mediator appears to have prepared in anticipation of discussions and perhaps, an agreement. In my view, the preparation of the side letter was a useful starting point for discussion but for reasons which are not clear, it seems to have created many problems. One of the problems is that Ms Frances Raggio has made a note on her copy that one non-negotiable issue is the position of the co-licensee. The note on top of the side letter (FPR2 to the affidavit of Frances Patricia Raggio sworn 26 March 2015 and filed in the Magistrates Court and in this action, being Exhibit MJM3 to the affidavit of Margaret Jane Minney sworn 13 November 2015) records that Laura (Horlock) has no objection and puts no obstacle in the way of Frances Patricia Raggio and Alfred Raggio becoming co-licensees of the gravesite. This had been the subject of discussion and what is recorded there by Ms Raggio reflects Clause 18 of the settlement agreement (cf. RR3 to the same affidavit and exhibit to the second affidavit of Margaret Jane Minney).
The evidence of the mediator was that this Clause did not satisfy the requirements of Ms Frances Raggio who wished to achieve an agreement to be a co-licensee (which Clause 18 does not achieve). The evidence of the mediator was that the turning point came in the afternoon of the mediation (it commenced at 9.30am) when Mr Alfred Raggio convinced Ms Frances Raggio that they both have achieved much of what they set out to achieve (see Clauses 4-9 and 13 of the Agreement) and that the Agreement should be signed. It is apparent from the evidence that there was a degree of obvious exhaustion and perhaps resignation associated with the position taken by Mr Alfred Raggio and then Ms Frances Raggio. According to the evidence of the mediator, the Agreement was then signed.
The lis before the Court which brought the parties to the mediation following judgment of Mr Millard SM allegedly was the “property interest” justiciable by the Court consisting of the licence rights under the Agreement with the Corporation of the City of Holdfast Bay. I consider that no such interest or property right existed and there was therefore no justiciable controversy before the Court arising out of the claim of the plaintiffs Ms Frances Raggio and Mr Alfred Raggio. The learned Magistrate was alert to this problem and discussed the rights under the Trustee Act for a trustee to seek directions. It is not necessary for me to discuss this matter further but it is plain that at no time was Ms Laura Horlock a trustee in the sense as described under the Trustee Act. The only relevant trustee in those circumstances may well have been the trustee of the deceased estate (if that be the case) of Lucy Markevicius.
The issue before me on this Minor Civil Review involves the question of the licence but only in the context of the question of the agreement made by the parties in mediation. This requires some consideration. One ground of review suggests that the mediation agreement was void ab initio or became voidable. This is the language of fraud in the legal or equitable sense or of an agreement procured by reliance upon misrepresentations. In the findings I have made, I have decided that no basis is made out to sustain such a ground.
A secondary aspect is the argument that if the Court had no jurisdiction to hear and determine the matter, then it had no power to refer the matter to mediation. There are really two propositions here which should not be confused. It is correct to say that the Court did not have jurisdictions but that does not affect the question of an agreement reached at mediation. The Court had the power to refer the matter to mediation if a lis justiciable by the Court was before it. The applicants knew that if no agreement was reached the matter was to return to the Court. An agreement was reached and I am satisfied that it was made voluntarily by the parties. It contains, for the better or worse, the terms of their bargain. That bargain was not procured by a misrepresentation or by fraud for reasons that I set out hereunder.
I am not satisfied that this ground of appeal was made out. Even if I am wrong about the question of the lis before the Court, my view and the result of this appeal would still be the same.
The agreement was negotiated and then signed irrespective of the parties’ understanding of the erroneous finding of the Magistrate Court that it had jurisdiction to hear and determine the claims of Frances (and Alfred) Raggio. Absent that position they would have been out of Court and without a remedy in that Court. That is not to say that they could not pursue a remedy in a higher Court in a different cause of action. They were prepared to make their bargain with Ms Horlock and that is the bargain they wish to set aside. In the end there must be an end to these matters on a number of grounds.
The findings that I have made on the evidence before me mean I have not identified any error in the approach of the learned Magistrate Mr Millazzo because the Settlement Agreement was a compromise of the personal controversy between the parties that may be sufficient to resolve this matter. I have based that finding on all of the evidence before me, on my reading of the settlement agreement and my rejection of the suggestion that Ms Frances Raggio was at the time acting under such physical or mental difficulties or deficiencies that it would be unconscionable to hold her to the Agreement. Although some of the methods employed by the mediator may appear a little unorthodox, I am equally satisfied that the actions of the mediator did not in any way overbear the will of Ms Frances Raggio.
I am also satisfied that the Agreement was read over to Ms Frances Raggio and Mr Alfred Raggio by the mediator and that at least an hour and possibly an hour and a half was given to them to read over a copy of the Settlement Agreement that had been placed before them. I have serious doubts that they did not do so. The Agreement carries signatures and initials of all of the parties to the agreement including Frances and Alfred Raggio in places where amendments had been made to the text of the Agreement. This does not suggest a tangential involvement of Frances or Alfred Raggio in the execution of the Agreement or in the formulation of the terms of the Agreement.
I earlier mentioned the conduct of the mediator. Although I have not set them out in detail here, I initially had concerns about the conduct of the mediation in so far as it involved behaviour of the parties. I am unable to accept any of the evidence of Laura Horlock about her conduct at the mediation and in particular, in summary (of the impressions that she purported to give me in evidence) that she was equable in her behaviour to Frances Raggio during the course of the mediation. Her demeanour in the witness box before me was unsatisfactory and she was an unimpressive witness. When giving evidence she did show real aggression towards Frances Raggio fed, it seems, by some otherwise inexplicable inter-family dispute that remains unresolved. This animus appears to have been of long standing and had its genesis in disputes arising between the family members of earlier generations. It is very regrettable that later generations of the family appear not to have possessed the good sense, judgment or intelligence (or perhaps a combination of all three) to behave in a way that dissipates rather than inflames these difficulties.
In giving his evidence the mediator very frankly said that he used expressions to indicate he would abandon the mediation if Ms Frances Raggio did not sign (the Agreement) and used other more subtle suggestions to bring her to the table of agreement. The methods, tactics and conduct of mediators change according to many different variables including the dispute, the parties and the issues that otherwise may seem intractable. The mediator obviously identified that the pivot point in the discussions at the mediation was perhaps the labile stance taken by Ms Frances Raggio in the background of a dispute about a burial plot in which no other person could be interred. I would not agree with such tactics but I would not change my judgment here based upon the behaviour of the mediator. This is because more skilful mediators may have used greater subtlety but no less strength when dealing with Ms Frances Raggio in order to achieve (about) the same result. This Court is not naïve to the stresses and strains in mediations that pull disputes in one direction or another and the continuing search by a mediator for a means to pivot a dispute back to the parties’ appreciation of each other’s positions. This is logically a principal step in the resolution of disputes in a mediation and the task of the mediator is to correctly choose the time and opportunity to create (with the necessary degree of skill and force) that pivot point.
As occurs in so many cases, the mediator appraised his performance by suggesting that he would act differently if he had his time again. However, in every mediation or negotiation moments of high stress, anguish and elevated emotions arise. They have to be properly managed as do the participants. My impression is that the mediator did not fully succeed in that task but equally, my impression is that Ms Frances Raggio was just as determined as Ms Laura Horlock to get what she came to the mediation for irrespective of what, on occasions, was inappropriate behaviour by Ms Laura Horlock. In short, the impression that I formed was that Ms Frances Raggio was almost as intransigent as Ms Laura Horlock was difficult. This was never more clear than in the observations I was able to make of both of these women in the witness box. These observations satisfy me that the duress ground raised by Ms Frances Raggio and Mr Alfred Raggio is not made out on the facts of this matter. I am satisfied that the result of the mediation in the agreement was reflective of the positions reached by the parties about their dispute. As in every dispute, a mediation agreement will leave the parties in a position where they are not completely satisfied with the agreement but that it resolves matters acceptably well. I am satisfied that this is the position reached in the mediation despite the submissions now made by the applicants.
It is for those reasons that I am not satisfied that Ms Frances Raggio and Mr Alfred Raggio makes out their general grounds of appeal. However, that is not the end of the matter.
I am satisfied that Laura Horlock did not breach the terms of the mediation agreement because under Clause 18, the onus was upon the applicants to act. If they did nothing then Laura Horlock was not obliged to take any steps. One peculiarity here is that by the terms of their application the applicants contend for the operation of the agreement and for its termination. This is an obviously inconsistent alternative position taken by them. For the same reasons I am satisfied that the agreement was not procured by fraud or a misrepresentation and so, on those grounds, was not void or voidable.
I have addressed the duress ground. Whatever criticisms I make of the process adopted by the mediator, they are not sufficient to cause me to accede to the applicants’ claims on this ground. I have not accepted any suggestion of a withholding of terms because I am satisfied on balance that the agreement was read over to the applicants and they had and I think they took the opportunity to read it. The balance of the grounds in the notice are merely reformulation of the duress ground that I have rejected.
The applicants then put a number of alternative submissions. They contended generally that a plot licence is property under s 7 of the Law of Property Act 1936. Under that definitional provision, property is defined, inter alia, to include:-
Land – includes incorporeal hereditaments, and an easement, right, privilege, or benefit, in, over or derived from the land.
The primary contention of the appellant is that the plot licence constitutes property of the deceased estate of the late John Joseph Raggio distributable to his beneficiaries or otherwise it is a hereditament. I have already rejected the contention that the plot licence is a form of property.
In law, a hereditament is any kind of property that can be inherited and there are two types namely corporeal hereditaments and incorporeal hereditaments. We are only here dealing with incorporeal hereditaments by virtue of the definition of land in s 7 of the Law of Property Act 1936. Examples of incorporeal hereditaments are hereditary titles, rights of way, pensions, annuities, rents, franchises and in relation to lands usually means tenements and hereditaments. The appellant contends that following the decision of Young J in Beard v Baulkham Hills Shire Council[14] it could be argued that although Young J decided that a right to a grave (a burial licence) was a contractual right and could not be owned legally or beneficially, it was accepted as a hereditament. I am unable to accept that submission.
[14] (1986) 7 NSWLR 273.
The decision in Beard concerned the purchase in 1949 of four burial sites of the Castle Hill Cemetery then conducted by the “Church of England” but more latterly conducted by the relevant local government authority, it having received that obligation under the Local Government (Control of Cemeteries) Amendment Act 1966. The only documentation evidencing and relating to the purchase was the receipt indicating that four graves had been paid for. The purchaser of the graves, Mrs Sherwood had four children. The will of Mrs Sherwood left the whole of her estate to her son Ralph. Three of the graves were filled either by the interred bodies of the deceased children or their cremated remains. Mr Beard, as executor of his wife’s will (his wife was the daughter of Mrs Sherwood), approached the Shire Council, (the Baulkham Hills Shire Council) through its cemetery manager and made arrangements for the burial of Mrs Beard in one of the gravesites which had been purchased in 1949. In doing so, an assumption was made that Mrs Sherwood had purchased the four gravesites for her children but the Court was not prepared to infer that she gave or alternatively declared herself trustee for any of the children in respect of any of the sites. Mr Beard thought the gravesite was held on trust for his wife or outright for her benefit but the Court would not accept this proposition.
When the arrangements for burial of Mrs Beard were made, the plaintiff and the cemetery manager were clearly under the impression that one of the gravesites had always been intended for the grave for Mrs Sherwood’s daughter, Cora Beard. The contradictor to these propositions were put by the second defendant, the surviving wife of the son Ralph Sherwood and her daughter: they sought for disinterment of the body of Mrs Beard and for reburial of her body elsewhere. At page 276 at E, Young J addressed the question of what is the juridical classification of that which is properly being called “the exclusive right to burial of the ownership of the grave site”. His Honour took judicial notice of the fact that in 1949, there was current in the community the custom of cemetery authorities selling rights to bury and that the right that Mrs Sherwood purchased was a right which is ordinarily called an exclusive right to burial. His Honour then referred to his own article in the Australian Law Journal[15] wherein he said:-
…the right (an exclusive right to burial) was a right in contract and not a proprietary right analogous to an easement and that probably the owner of an exclusive right to bury might permit the interment in the gravesite of whomsoever he may deem proper and I reach the conclusion on the basis of the decision of Rhode Island of Silvia v Helger 67 A2d 27; 10 ALR 2d 216 (1949). I also reached the view that once an interment took place in a gravesite with the permission of the cemetery authority then there was an irrevocable licence so far as that body was concerned, for it to remain at least until the natural process of dissolution.
[15] “The Exclusive Right to Burial” (1965) 39 ALJ 50.
Young J then assumed that this was the state of the law in Australia and found that the right that Mrs Sherwood had was a contractual right to have buried any person that she may nominate subject only to the terms and conditions of the cemetery. Relevantly those terms and conditions were not before the Court and therefore his Honour inferred that the content of the contractual rights was in accordance with the right already described by him. On this point, his Honour concluded as follows:-[16]
It is quite clear that if a person provides himself with the gravesite and if a person named as executor in the will… seeks to bury the person in that gravesite then that is something which the Court will enforce. The Court has on quite a number of occasions had to deal with problems as to who should be responsible for a funeral and whether burial or cremation should take place and has consistently taken the view that the wishes of the person named as executor are to be preferred, especially in the situation where the deceased herself has indicated what she wants to happen.
[16] At page 279G-280B.
On that basis, I am unable to accept the submission of the appellant that the plot licence is a hereditament or that that proposition is supported by the decision of Young J in Beard. I therefore reiterate my view that I have not received any evidence nor have the applicants identified any authority to me to satisfy me that the licence interest constitutes property or that the matter was otherwise properly before the learned Magistrate Mr Millard SM. I have already set out my reasons for disagreeing with the assessment of the learned Magistrate Mr Millard SM about the subject matter of the proceedings. I therefore agree with the submissions of the respondent on that topic based upon the authorities to which I have been referred.[17]
[17] Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Grounds Australia (1998) 20 (1) Sydney Law Review 78 (Professor Prue Vines); Read v Madorn [1989] 2 All ER 431; Brookwood Park Limited v Guney and Ors [2014] EWHC 2629; (2014) Ch; R (HM) Coroner for the Eastern District of London v Secretary State for Justice and Sutovic [2009] EWHC 1974 (admin) at [26]; Bishop Urinej Dobrijevic and Anor v Free Serbian Authodox Church, Diocese for Australia and New Zealand Property Trust & Ors (No.2) [2015] NSWSC 1976.
In Smith v Tamworth City Council[18] Young J relevantly set out a number of propositions that have application generally and in this case. Some of those have been considered by Master Withers in Boni v Larwood.[19] The relevant propositions outlined by Young J in Smith that were discussed by Master Withers in Boni are as follows:-
10. A right of burial is not an easement, but a licence; it is irrevocable once a body has been buried in the licenced plot.
11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.
12. Subject to such by-laws, the holder of the right of burial has the power to decide on the appearance of the grave and headstone.
13. The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate.
14. The hold of the right of burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the (licensee’s) legal personal representative.
[18] (1997) 41 NSWR 680 at 693-694.
[19] [2014] SASC 185 at [33] and [34].
The applicants did not challenge the authoritative status of the decision of Young J but here they contend that Lucy Markevicius should have transferred the plot licence to one of her siblings. It is not clear to me that this argument follows. The applicants rely upon In Re Knowles Trust.[20] The position of the respondent is that there is a lacunae in the current law on this topic. The applicants contend that there is no lacunae at all having regard to the authorities of Knowles, Biss[21] and Yerburgh.[22]
[20] [1948] 1 All ER 866 (affirmed CA [1940] 1 All ER 160).
[21] In Re Biss [1903] 2 Ch.
[22] Re Yerburgh: Yerburgh v Yerburgh [1928] WN 208 (see Sundberg (1975) 49 ALJ 673).
Knowles concerns an option to renew a lease of a farm taken up by the trustee of an estate where the farm was held on trust during the joint lives of the trustee and his siblings. The Court held that the right of renewal was part of the farm gift because of the duties upon the trustee to hold that asset for the benefit of the beneficiaries of the estate and so to renew the lease as a beneficial asset for the estate. The trustee could take no personal benefit for the lease under the renewal. The appellant contends that Lucy Markevicius owed a duty to the beneficiaries of the estate of John Joseph Raggio to deal with the plot licence for their benefit. However, that appears to confuse the nature of the plot licence (and its renewal) with an option to renew a lease of a farm.
In Knowles, the Court applied well settled principles in relation to the obligation of a trustee not to benefit from his position as a trustee by dealing with an asset of the trust inconsistently with his obligations as trustee. I consider that the transfer of a licence by Lucy Markevicius, in her capacity as trustee and executor, is not the same as the situation as arose in the Knowles decision. There is no property in the plot licence. The licence is not held for the benefit of any beneficiaries except to the extent that those beneficiaries might have a right of burial within the plot licence. I am prepared to infer that Carmel Raggio may have had an understanding from her parents that she would be buried in the plot but the transfer by Lucy Markevicius to her daughter of that plot licence is not inconsistent with that inferred right.
The decision in Biss is really little different because there the right of renewal of a lease of real property was found to be held for the benefit of the estate. This included not only the lease but also the right of renewal. The argument put by the appellant is that, just as a lease, the plot licence could not be transferred out of the estate. However this confuses the proprietorial qualities of lease with a plot licence. Different from the interest in land created by a lease, the plot licence is a contractual right the ownership of which cannot be transferred as an absolute right. Any transfer requires the involvement of the City of Holdfast Bay. That contractual right is a right to have buried any person that may be nominated by the holder of the contractual right. However, as there are no further interment rights under the licence, there is no contractual rights to be exercised. Therefore, no benefit flows with the transfer of the licence which has not otherwise been fulfilled. That is, the contractual right of the executor to use the interment right for the burial of Carmel Raggio has been fulfilled. No other contractual right exists and all that remains is the obligations upon the licensee as well as her right to control the content of the headstone and what is to be affixed to the “slope”.
I am unable to gain any assistance from the decision in Yerburgh because I am unable to make any finding on the material before me that Lucy Markevicius relinquished the administration of the estate by divesting herself of the plot licence. The plot licence was not in any sense an asset of the estate; it was a contractual right which has been fulfilled.
On the question of the inter vivos transfer between Lucy Markevicius in her capacity as executor and Laura Horlock, her daughter of the licence held by Lucy Markevicius in her capacity as executor and trustee, some guidance is obtained from the decision of Young J in Smith at proposition 15 which I have set out above. But that proposition does not address the question of whether or not an inter vivos transfer is possible.
Although it is not strictly necessary for me to address this issue, I should express some views in light of Counsel’s submissions. Lucy Markevicius (deceased) was appointed as the trustee of the deceased estate of John Joseph Raggio under the terms of his last will. There is no evidence of any challenge to that appointment. Upon the decease of John Joseph Raggio, his real and personal property vested in his executor. At the same time, the executor is required to fulfil the duties and powers of that position which would vary in every case. The executorship is proved by a grant of probate. So much could not be in contest between the parties. The source of the appointment of Lucy Markevicius (deceased) as executor and therefore personal representative of John Joseph Raggio is the will of the deceased. From the time of the grant of probate, Lucy Markevicius was entitled to exercise all of her right of office in that position.
Lucy Markevicius is now deceased and I am now informed, although I have not seen any evidence, that the Public Trustee administered her estate. The actual controversy is the transfer by Lucy Markevicius to Laura Horlock of the licence which transfer took place by arrangement with the Corporation of the City of Holdfast Bay. As I have already found, this is not a property right and consists only of a contractual right. The contentions of the applicants in summary devolve to the proposition that in her position, Lucy Markevicius fulfilled a role of personal trust. There could be no contest that this was her position arising from her role as the executor.
The position at law is that the rights, powers and duties of an executor cannot be assigned by the executor. For the same reasons, it follows that an executor cannot assign property that she holds by virtue of her office except where in doing so, the executor is carrying out the duties of her office. The position is summarised by Sachs J in his Honour’s decision in: “In the Estate of Skinner (Dec’d)”[23] as follows:-
First it has been axiomatic since before the days of Blackstone’s Commentaries that, at common law, there can be no assignment of the office of executor as it is an office of personal trust. Leaving out of consideration certain specific statutory provisions… which do not apply in the present circumstances, it follows that the rights, powers and duties of an executor cannot be assigned by him: nor can an executor properly assign property he holds by virtue of his office, save in the course of carrying out his duties under that office. It is to be noted that not only is the office of executor one of personal trust but the third parties (such as those who may take under the rule) have an interest in seeing that no such assignment by an executor takes place.
[23] [1958] 1 WLR 1043 at 1046-1047.
I think that there is little profit in attempting to draw fine distinctions between transfer and assignment. Rather I think that this question is to be considered in the context of execution of the transfer of the contractual right with all of the burdens that follow it in the fulfilment of the duties of an executor. Lucy Markevicius acted in her role as executor of the person John Joseph Raggio (deceased) who was the testator. In that capacity, Lucy Markevicius had the appointment of John Joseph Raggio to execute his will according to its terms. Swinburne, Wills Pt 4, s2, pl 2 says:-
To appoint an executor is to place one in the stead of the testator who may enter to the testator’s goods and chattels… and who may dispose of the same goods and chattels… and performance of his will.
It appears to be well accepted as a fundamental proposition that Lucy Markevicius stood in the stead of John Joseph Raggio and was required to administer his estate according to the terms of his will. She stood in his stead in relation to the contractual rights arising under the licence. She had the same powers as were previously held by John Joseph Raggio in his lifetime to deal with that license. Any dealing by her with that license in any way that was available to John Joseph Raggio is not, ipso facto, inconsistent with carrying out the duties of her office as executor. There is no evidence before me of John Joseph Raggio having made any specific request that may have involved that license. It appears common between the parties that the right fell into the general range of matters covered under the will.
I consider that the right was purely contractual and as John Joseph Raggio had the power to transfer the licence under the agreement with the Corporation of the City of Holdfast Bay, so also could Lucy Markevicius in her role as the executor and in the exercise of her powers transfer the licence to Laura Horlock in the same circumstances. I do not consider that this action in any way amounts to a renunciation by Lucy Markevicius of her position as an executor. For the same reasons, I do not consider that the principle of chain of executors applies because Lucy Markevicius dealt with the licence in her lifetime. The Public Trustee in its particular role in relation to the estate of Lucy Markevicius would have no part to play here because there is no evidence before me that the estate of John Joseph Raggio was not administered completely before the death of Lucy Markevicius.
For all of these reasons I would reject the grounds of appeal and I would therefore affirm the decision of the learned Magistrate.
I will hear the parties as to consequential orders.
(1)The Court has jurisdiction—
(a)…
(b) to hear and determine an action (at law or in equity) to obtain or recover title to, or possession of, real or personal property where the value of the property does not exceed $100 000;
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