Re Horner
[2020] VSCA 85
•9 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0001
| In the matter of an Application by MARK JAMES HORNER | Applicant |
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| JUDGES: | TATE and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 March 2020 |
| DATE OF JUDGMENT: | 9 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 85 |
| JUDGMENT APPEALED FROM: | [2018] VSC 736 (McMillan J) |
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ADMINISTRATION AND PROBATE – Application brought for advice or directions in relation to access to and disposal of ashes of deceased parents – Co-executors not named as parties – Whether judge erred in finding procedure under Order 54 Supreme Court (General Civil Procedure) Rules 2015 not appropriate – Whether judge erred in not giving applicant a fair hearing – Apprehended bias – Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997), Leeburn v Derndorfer (2004) 14 VR 100, Macedonian Orthodox Community ChurchSt Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, Tsaknis v Lilburne [2010] WASC 152, discussed – Leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| Mr M Horner in person by audio visual link | ||
TATE JA:
Introduction and summary
Mark James Horner (‘Mark’) seeks access to the cremated ashes of his deceased parents.[1] Together with his two siblings, John Edward Horner (‘John’) and Jane Ethel Leopard (‘Jane’), he is an executor of the estate of his father, Edward James Horner. His father was the executor of the estate of his mother, Barbara Jean Horner. He brought proceedings under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules of Court’), ‘Administration of estates and execution of trusts’, for advice relating to the rights and duties of co-executors with respect to cremated ashes. He claims that Jane has refused him access to his parents’ ashes and has threatened to dispose of them in a manner contrary to his mother’s wishes. He did not join John or Jane to the proceeding but understood that the primary judge might do so if she considered that course necessary or desirable.
[1]I have used first names as a matter of convenience, given that many of the persons referred to have the same family name. No disrespect is intended.
The judge dismissed Mark’s application on the basis that the procedure under Order 54 was not appropriate because there were disputed issues of fact and the co-executors were not parties.[2] She invited Mark to file a brief written submission to see if the issues could be narrowed and to identify more clearly what advice was sought. She indicated that when that was done, she would ‘come back’ to Mark. Mark received no further communication from the judge until he received the judgment refusing to join John and Jane and dismissing his application.
[2]Application by Horner [2018] VSC 736 (‘Reasons’).
Mark seeks leave to appeal on the basis that he was denied procedural fairness and the judge erred in concluding that the procedure under Order 54 was inappropriate.
For the reasons set out below, I would grant leave to appeal and allow the appeal. I consider that the judge breached the principles of procedural fairness and misapplied Order 54. The judge ought to have joined John and Jane (indeed, as co-executors they were required to be parties to the proceeding),[3] and ought to have recognised that the presence of contested issues of fact does not preclude a proceeding being brought under Order 54. She ought also to have assisted Mark, as a self-represented litigant, to identify precisely what relief he sought, as she promised to do.
[3]Rules of Court r 54.03(a).
I would remit the matter to be heard afresh by a different judge. I would direct that the Originating Motion be amended to join John and Jane as defendants and that Mark identify what enforceable orders he seeks. To facilitate the progress of the proceeding, I would also refer the matter, with Mark’s consent, to the Victorian Bar Pro Bono Assistance Scheme to ensure that Mark receives the legal assistance he deserves.
The death of the parents
Barbara Jean Horner, the mother of Mark, Jane, and John, died on 11 March 1994. She left burial instructions that her ashes be buried so that she might live eternally as a rose tree. The father was named as the sole executor of her will. He interred his wife’s ashes by mixing them with earth and potting mix, placing the mixture in a pot, and planting a rose tree in the pot. The father kept the rose tree with him at his family home until his death on 3 November 1999. In an affidavit sworn 26 June 2018, Mark said his father could not bear to be separated from his wife.
When the father died he left no funeral or burial instructions and did not leave any instructions with respect to the rose tree. At that time Mark, John, and Jane jointly, as next of kin, decided to cremate their father’s body and agreed that Jane should take possession of the mother’s rose tree and the father’s ashes in the interim.
It appears that probate was granted on 4 February 2000 and the three executors signed the final distribution of the estate on 21 November 2000.
Mark claims that over a long period of time he sought meetings with his siblings to discuss permanently dealing with and disposing of the ashes of both their parents. According to his allegations, his requests have either been rejected or ignored. His request to refer the matter for mediation was ignored. Jane was prepared to agree to Mark’s first request to have access to the ashes of his parents to pay his respects, on the condition that he cease inquiring into a missing chattel of the estate. Mark refused to comply with the condition. Since then Jane has ignored his subsequent requests to access the ashes or for the three siblings to meet to discuss how ultimately to deal with the ashes.
The first application to the Supreme Court for advice
In June 2012 Mark applied to the Supreme Court to obtain a declaration with respect to his duties as an executor; in particular, he sought advice as to whether he would be in breach of his duties as an executor if he did not take legal action to require the majority of the executors to deal with, and dispose, of the ashes and resolve an issue relating to a missing chattel of the estate. Mark was self-represented and gained the impression from Habersberger J that he would not be in breach of his duties if he did not take legal action against the other executors. His Honour offered to stand the matter down in order for Mark to obtain pro bono legal assistance from a barrister. However, Mark decided not to continue with the application and it was dismissed.
Further attempts to gain access
In April 2016 Mark met with John after four years of estrangement. John told Mark that Jane and he had discussed options for disposing of the ashes but had been unable to reach agreement. The three options discussed were: (1) taking the ashes to England (both parents having been English) and throwing them off the Clifton Suspension Bridge into the Avon River, near to where the father had lived as a child; (2) taking the ashes to Penang and burying them at the Casuarina River near a tree sponsored by their father; or (3) dividing the ashes. John said that he supported Jane’s continuing possession of the ashes and he did not want a reconciliation with Mark. Nevertheless, as a result of that meeting John wrote to Jane expressing his support for Mark to have access to the ashes. Jane’s solicitors have written to Mark threatening him with a restraining order if he contacts Jane about access to, or the disposition of, the parents’ ashes.
Mark remains concerned that any of the options for the disposition of the ashes, discussed between John and Jane, involve disturbing his mother’s ashes, overturning his mother’s instructions and, as he sees it, disposing of the ashes in a manner that does not treat the ashes with dignity and respect.
The second application to the Supreme Court for advice
By Originating Motion on 26 June 2018 Mark brought a second proceeding in the Supreme Court seeking advice and directions. It is the determination of this proceeding from which he seeks leave to appeal.
Mark continued to be self-represented. He brought the proceeding under Order 54 of the Rules of Court. This provides:
54.01 Definitions
In this Order—
administration proceeding means a proceeding for the administration of an estate or the execution of a trust under the direction of the Court;
estate means the estate of a deceased person.
54.02 Relief without general administration
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
(2)Without limiting paragraph (1), a proceeding may be brought for—
(a)the determination of any question which could be determined in an administration proceeding, including any question—
(i)arising in the administration of an estate or in the execution of a trust;
(ii) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or
(iii)as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust;
(b)an order directing an executor, administrator or trustee to—
(i) furnish and, if necessary, verify accounts;
(ii) pay funds of the estate or trust into court; or
(iii) do or abstain from doing any act;
(c) an order—
(i)approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
54.03 Parties
In an administration proceeding or a proceeding referred to in Rule 54.02—
(a)all the executors of the will of the deceased or administrators of the estate or trustees of the trust, as the case may be, shall be parties;
(b)where the proceeding is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff shall be made a defendant;
(c)notwithstanding anything in Rule 9.03(1), and without limiting the powers of the Court under Order 9, all persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, need not be parties, and the plaintiff may make such of those persons parties as the plaintiff thinks fit;
(d)where in the taking of an account of debts or liabilities under a judgment or order in the proceeding, a person not a party makes a claim—
(i)a party other than the executors or administrators or trustees shall not be entitled to attend before the Court in relation to that claim except by leave of the Court; and
(ii)the Court may direct or allow any party to attend before the Court either in addition to or in substitution for the executors, administrators or trustees.
54.04 Notice of proceeding and judgment
(1)In an administration proceeding or a proceeding within Rule 54.02, notwithstanding Rule 54.03, the Court may order that any person not a party be given notice of the proceeding and of any judgment in the proceeding.
(2)On the application of a person given notice under paragraph (1), the Court may, in accordance with Rule 9.06(b), order that the person be added as a party.
54.05 Relief in proceeding by originating motion
(1)In an administration proceeding or a proceeding within Rule 54.02 the Court may make any order and grant any relief to which the plaintiff is entitled by reason of any breach of trust, wilful default or other misconduct of the defendant, notwithstanding that the proceeding was commenced by originating motion.
(2)Paragraph (1) does not limit the power of the Court under Rule 4.07(1) [power to order that a proceeding commenced by originating motion proceed as if commenced by writ where appropriate].
...
It is apparent from r 54.03(a) that in an administration proceeding brought under Order 54 ‘all the executors of the will of the deceased … shall be parties’.[4] It is also apparent from r 54.04(1) that the court has a broad discretionary power to ‘order that any person not a party be given notice of the proceeding’.
[4]Emphasis added.
The Originating Motion did not name any other party. It identified six questions, described as questions of law, which Mark sought to have the Court answer.
The six questions identified were as follows:
Question 1: What are the executors’ rights and duties regarding Mum’s ashes given that she left burial instructions, was a devout Christian, and Dad was her executor?
Question 2: What are the executors’ rights and duties regarding Dad’s ashes given that Dad left no burial instructions and was a practising Christian?
Question 3: Is there property in the ashes and if so who is the owner?
Question 4: Does the law grant the applicant a right of access to the ashes to express his respects and verify the ashes are treated with dignity and respect?
Question 5: Is dealing with and disposing of the ashes an exercise of joint or several power?
Question 6: Does the applicant have a right to make enquiries of John and Jane regarding [a] chattel which is missing from the estate and right of access to accounts and documents of the estate or is he statutorily barred or restrained in some other way?[5]
[5]Mark submitted that the question of the recovery of a missing chattel was a secondary issue to the question of access to the ashes.
The Originating Motion also noted that the Court could join John and Jane as parties:
The Applicant [Mark] has not issued a summons on John and Jane because the Applicant is unsure if the matter requires him to do so. However, the Applicant notes that the Court has power to invite John and Jane to become parties under O 54.04(1), if the Court considers it is necessary.
The relief sought included that the Court declare ‘what is the law regarding the six questions of law’. Mark also sought an order directed at Jane that she advise the Court of the location of the ashes and, if she was in possession of them, retain possession of them until the Court considered Mark’s application. Further, Mark sought for the Court to grant leave for him to consider the Court’s declarations to discuss them with John and Jane, as well as leave to make a further request to the Court under r 54.02, if required. Reliance was also placed on Victoria’s Charter of Human Rights and Responsibilities (‘the Charter’).
The Originating Motion was supported by Mark’s affidavit of 26 June 2018, mentioned above.
On 8 August 2018 Mark filed an Outline of Submissions in which he developed extensive written argument addressing each of the six questions with reference to a range of authorities. He highlighted areas where there was inconsistency or uncertainty in the law. He also made much reference to the Charter and to the right to equality, protection from degrading treatment, rights of privacy or family, and the freedom of religion and belief. He emphasised the need for the disposal of ashes to meet the objectives of the Cemeteries and Crematoria Act 2003, namely, that ‘human remains are treated with dignity and respect’.[6]
[6]Cemeteries and Crematoria Act s 2A(a).
The directions hearing of 10 August 2018
At the directions hearing on 10 August 2018 the judge sought to understand the principal issue in the case and to determine precisely what relief was being sought. She queried whether the Charter issues and the issues under other legislation were at the periphery of Mark’s application and whether the matter was primarily about his deceased parents’ ashes. She ascertained from Mark that ‘essentially, it was about the ashes’.
She then said to Mark: ‘I’m going to ask you to try and redo what you’ve done … so that I’m clear about what you’re seeking’.
She noted that Mark had not named anyone else as a party and that normally when seeking relief a litigant needs a defendant. She noted that Mark had a lot of questions directed against his siblings because he had had a disagreement with them. She suggested he take his Originating Motion and ‘pin it down to a couple of short questions’. She suggested it might be helpful if he was to obtain some legal advice and have someone represent him in the proceeding. She asked if he had spoken to the Court’s co-ordinator for pro bono representation. Mark said he had and had received information but did not think he was eligible for pro bono legal assistance ‘and the closest I am is where there’s a matter of public interest, but I think the limit is to do with family issues like family violence’.
One of Mark’s complaints in his application for leave to appeal is that the judge misrepresented in the Reasons his response to the question of whether he had sought legal assistance.
Mark said to the judge that he could submit a summary of his case which would describe the ‘gist’ of it. The judge responded by saying, ‘Yes … why don’t you send in something in writing’. She then repeated that she was rather confused about what Mark was seeking:
Her Honour: So it’s the … what the executor must do in respect of burial; is that what it is?
Mark:Correct. To make permanent her situation. She’s in a pot plant and she’s been there for 20-odd years.
Her Honour: Yes. Well, I’m sure she’s not complaining.[7]
[7]Emphasis added.
Mark points to the remark made by the judge about his mother as insensitive and maintains that it reveals bias and pre-determination.
The exchange went on:
Mark:So the issue being is what is our rights and duties in regards to two separate things: one being mum’s ashes and the other being dad’s.
Her Honour: All right. So, now, I’m going to ask you, do you have a shot at drafting that ...
Mark: Yes.
Her Honour: ... in one page?
...
Mark: Thank you. And when would you like that by?
Her Honour: You can send it in within seven days, do you think?
Mark: Yes. And where should I send that?
Her Honour: You can send it to my registry lawyer ... you’ve probably been communicating by email, have you?
Mark: Yes. I’ve been sending it to the registry.
Her Honour: Yes. Send it to the registry.
Mark: Okay. So that will be by 17 August.
Her Honour: Yes. You can do it by the 24th, if you like.
Mark: Okay. Thank you.
Her Honour: And then I’ll have a look at it and I’ll come back to you on email ....
Mark: Okay. Terrific.
Her Honour: ... rather than get you to come in and we’ll see if we can narrow the issues and sort out what you’re seeking advice on.
Mark: Be most grateful, your Honour.
Her Honour: All right.
Mark: Thank you.
Her Honour: Thank you, Mr Horner.[8]
[8]Emphasis added.
Mark submitted his one-page draft dated 22 August 2018 to the Court for its consideration.
As mentioned, Mark received no further communication from the judge until about three months later when he received, by email, the judgment dismissing his application.
In short, Mark claims that he was deprived of a fair hearing because the judge had indicated that once he had attempted to narrow the issues by filing a one-page summary of his position, she would return to him to assist him in identifying precisely the advice that was relevant to his circumstances. This she never did. He never received an opportunity to be heard on the issues once narrowed or on the availability or appropriateness of the Order 54 procedure.
The judge’s reasons
The judge delivered her reasons on 26 November 2018.
She noted that, pursuant to s 35 of the Charter, the Attorney-General of the State of Victoria was notified of Mark’s application but by letter dated 29 August 2018 had indicated that he would not be intervening in the proceeding. The directions hearing was summarised as follows:
On the first return of the application, the Court queried the basis and breadth of the application and whether the applicant’s siblings were aware of it. The Court also asked the applicant whether he had obtained legal advice or representation or had sought assistance through the pro bono scheme. His answers to these questions were in the negative. The Court required the applicant to narrow the issues as best he could.
The applicant forwarded amended explanations of his ‘objections’ with evidence to support his objections in attached bundles of evidence and authorities.[9]
[9]Reasons [6]–[7] (emphasis added).
She summarised Mark’s ‘objections’ by reference to his claim that the majority of the executors, John and Jane, are exposing the ashes to the risk of treatment that does not ensure the ashes are treated with ‘dignity and respect’ and amounts to ‘degrading treatment’.
The judge recounted the six questions Mark had posed and described his application under Order 54 as encapsulating the Court’s jurisdiction recognised by Gillard J in Re Atkinson[10] ‘to provide advice or directions to personal representatives on a matter of administration or management, or as to the construction of the will or trust instrument, without the need to commence an administration suit’.[11] She observed that the jurisdiction involves the exercise of a discretionary power by the Court:
The exercise of power by the Court to authorise, or refuse to authorise, a proposed course of action is discretionary. When asked to advise whether or not a personal representative should initiate or defend a proceeding, the Court’s role is limited. It is not bound to investigate the evidence in order to make a finding as to the outcome of a proposed proceeding; it must determine only whether the proceeding should be taken, that is, whether the proposed course or action is lawful and proper.[12]
[10][1971] VR 612, 615.
[11]Reasons [18].
[12]Reasons [20].
The judge then made a general statement to the effect that Order 54 is not available where a proceeding involves contested issues of fact:
The procedure pursuant to Order 54 should not be used where the questions are likely to raise contested issues of fact or allegations of breach of trust by one party interested in the administration of the trust against another.[13]
[13]Reasons [21] (emphasis added) (citation omitted).
She relied on Tsaknis v Lilburne[14] to support this proposition.
[14][2010] WASC 152 [41] (‘Tsaknis’).
She refused to make orders joining John and Jane for the same reason:
Clearly there are disputes between the applicant [Mark], John and Jane that mean there will be contested issues of fact in the administration of the estate, making the procedure adopted by the applicant to proceed using Order 54 singularly inappropriate.
In his originating motion, the applicant says the reason for there being no defendants is because his application requests the Court to declare what is the law and he is not in a position to make a claim or seek a remedy against John and Jane. He states he is unsure if the application requires him to issue a summons on John and Jane and notes, however, that the Court has power to invite John and Jane to become parties under r 54.04(1) of the Rules, if the Court considers it necessary.
The applicant requests that the Court make an order that Jane advise the Court of the location of the ashes and, if she is in possession of the ashes, an order that she retain possession of the ashes while the Court considers this application. The Court would not make orders against a non party and would not make orders joining either John or Jane where there are disputes between them and unknown contested issues of fact.[15]
[15]Reasons [23]–[25] (emphasis added).
She dismissed the proceeding concluding that, because there were contested issues of fact arising in the proceeding, it would be inappropriate to seek to answer the questions Mark raised:
The Court has considered the applicant’s submissions and for the stated reasons, it is inappropriate to consider the questions in circumstances where there are disputes between the applicant, John and Jane and unknown contested issues of fact.[16]
[16]Reasons [26].
The proposed grounds of appeal
In his application for leave to appeal Mark relies on five proposed grounds of appeal:[17]
[17]In what follows I refer simply to the ‘grounds of appeal’.
Ground 1: The applicant did not receive a ‘fair hearing’;
Ground 2: Judicial error — applying the wrong test to Order 54;
Ground 3: Judicial error — omitting to consider the approach under the Charter;
Ground 4: Judicial error — proceeding under Order 54 is inappropriate;
Ground 5: Judicial error — giving rise to a reasonable ‘apprehension of bias’.
Ground 1 relies on the exchange between Mark and the judge at the directions hearing and the subsequent dismissal of Mark’s application without any further hearing. Grounds 2 and 4 are inter-related and raise the issue of whether the judge ought to have joined John and Jane in a proceeding in which they clearly had an interest. In oral submissions Ground 3 was given no prominence. Ground 5 turns on comments made by the judge during the directions hearing and the peremptory dismissal of Mark’s application.
Was Mark denied a proper opportunity to be heard? — Ground 1
Mark submits that the judge, having offered to assist him to narrow the issues in dispute, and to identify the advice he was seeking, simply withdrew her assistance without notice or explanation. The judge dismissed his application on the ground that the procedure he had adopted was ‘singularly inappropriate’ without affording him an opportunity to make submissions on the appropriateness or regularity of the procedure. The leave he was given to file a one-page submission was confined to the question of how to narrow the issues in dispute and not the regularity of the procedure adopted.
In those circumstances Mark submits that he was denied a fair hearing. In particular, he submits that, as a self-represented litigant, he was denied the opportunity properly to participate in his hearing and the judge breached her duty to give due assistance to him to ensure that he could effectively participate.[18]
[18]Tomasevic v Travaglini (2007) 17 VR 100 (Bell J); Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624 (Bell J).
I agree. I consider that Mark was denied a fair hearing in the circumstances of the case. The judge had taken steps to assist Mark, most especially by making him aware that the scope of the proceeding should be clarified and the issues confined. She quite properly provided him with an opportunity to address the concerns she had identified at the directions hearing by filing a summary document. This was no doubt the correct approach. The error arose when she failed to afford Mark an opportunity to address her on the foundational issue that she relied upon to dismiss the proceeding, namely, that the Order 54 procedure was unavailable in the face of contested facts.
The error was compounded by two factors. The first was that the judge undertook, or, at least, raised an expectation, that she would provide Mark with a further opportunity to be heard by ‘com[ing] back to’ him to ‘see if we can narrow the issues and sort out what you’re seeking advice on’.[19] The comments clearly conveyed that the proceeding would remain live until there had been a further opportunity for participation. To defeat that expectation summarily aggravated the failure to observe procedural fairness.
[19]See [28] above.
The second factor is that Mark was self-represented and had not received legal assistance in pursuing his application. It was apparent to the judge that the proceeding raised a host of issues and that the advice or directions sought required closer identification. In other words, the judge was well aware that without some assistance (which she volunteered she would give) Mark would not be able to effectively participate in the proceeding. The judge dismissed Mark’s application in the knowledge that there had been no effective participation by Mark in the proceeding. She thus failed to ensure that Mark, as a self-represented litigant, received a fair hearing.
I would uphold ground 1.
Should the judge have joined John and Jane under Order 54? — Grounds 2 & 4
Mark submits that the judge applied the wrong test in her assessment of whether the Order 54 procedure was available or appropriate in the circumstances of the case. He submits that she was mistaken to consider that, because there were factual issues in contest, he could not avail himself of the Order 54 procedure. Furthermore, he submits that she was wrong to refuse to join John and Jane on the basis that there was a disagreement amongst the executors and ‘unknown contested issues of fact’.[20]
[20]Reasons [25].
As mentioned above,[21] r 54.03 requires that all executors of the will ‘shall be parties’ to any proceeding brought under Order 54. It allows for circumstances where there may be a dispute between the executors by providing that an executor who does not wish to be joined as a plaintiff ‘shall be made a defendant’. It follows that the proceeding commenced by Mark by way of Originating Motion required that John and Jane be joined as parties, realistically as defendants.
[21]See [14]–[15] above.
This conclusion is reinforced by the consideration that the very question of Mark’s access to the ashes of his deceased parents, raised in circumstances where it was alleged that Jane had possession of them, or had had possession of them, was one in which Jane (and John) had an interest of which the Court would need to be made aware. On any assessment, John and Jane are persons ‘whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon’.[22] They thus ought to have been notified of the proceeding, pursuant to r 54.04(1), and, if they applied to be joined, they ought to have been added as parties, pursuant to r 54.04(2).[23]
[22]Rules of Court r 9.06(b).
[23]In accordance with r 9.06(b).
In my view, leave ought to have been granted by the judge for Mark to amend his Originating Motion to join John and Jane, and the matter listed to return before her Honour for mention at a suitable date. The procedural irregularity inherent in Mark’s Originating Motion, as filed, could have been readily overcome.
Leeburn v Derndorfer[24] is an example of a proceeding brought under Order 54 to resolve a dispute between executors of a will about the place of disposal of cremated ashes. The executors were the three adult children of the deceased. In his will, the father had expressed his wish to be cremated but no preference as to the place of disposition of his ashes. After the cremation, the sibling executors could not agree on the disposition of the ashes. Mrs Derndorfer considered that the ashes should be interred at the Yan Yean Cemetery. Mr Leeburn was for dividing the ashes into three parts, so that each of the children might respectively dispose of their third as they pleased. Mrs Derndorfer viewed this as sacrilegious. There was no resolution. Mrs Derndorfer and her sister collected the ashes from the funeral director and the next day the ashes were interred at the Yan Yean Cemetery. This was done without the knowledge or approval of Mr Leeburn.
[24](2004) 14 VR 100 (Byrne J) (‘Leeburn’).
Mr Leeburn commenced proceedings under Order 54 ultimately seeking that the ashes be disinterred and he be given one-third for disposal as he thought appropriate, with the remainder being given to the two sisters to return to the Yan Yean Cemetery or as they thought fit. The parties each filed supporting affidavits but, as Byrne J observed, ‘they deal with matters and conflicts which are of no relevance for my task’.[25] Byrne J commented on the difficulty of the case and recognised the personal importance of the issues to the parties:
It is difficult because the issues are important to the parties. It was apparent to me that Mr Leeburn is very upset at the prospect that his father’s remains are in a place not of his choosing and where it is not convenient for him to visit and pay his respects.[26]
[25]Ibid 101 [8].
[26]Ibid 101 [9].
He also commented on the difficulties raised by there being surprisingly little judicial guidance on the issues.[27] He acknowledged that the court had a role to play in disputes about the place of disposition of cremated ashes and, specifically, that the proper procedure for the resolution of those disputes was that provided for under Order 54:
It is well established that the court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition. In Meier v Bell, Ashley J held that the proper procedural vehicle for such a claim was by proceeding under r 54.02 of the Supreme Court Rules and this was the procedure adopted in this case.[28]
[27]Byrne J’s observations on the lack of authority in this area were affirmed by Cranston J in Borrows v HM Coroner for Preston [2008] EWHC 1387 (QB), [30].
[28]Leeburn (2004) 14 VR 100, 103 [12] (citation omitted).
He went on to acknowledge that ashes do not legally form part of the estate but that the interest of executors in cremated ashes is that of a trustee. He said:
[A]s to the legal interest of the executors in [the] ashes ... [t]hey do not form part of the estate of the deceased so that they do not pass under the will, any more than a testator’s mummified body. It seems to me that the interest of the executors in the ashes is that of a trustee ... the executors as trustees hold the ashes for the purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.[29]
[29]Ibid 107 [28] (emphasis added). See also Takamore v Clarke [2013] 2 NZLR 733.
He recognised that it was within the powers of executors to divide ashes and distribute them among members of a family and that the powers of the court would extend, in an appropriate case, to authorising or directing that this be done. However, he determined not to exercise that power on discretionary grounds, in particular, that the father’s remains had laid in Yan Yean Cemetery for over four years.
Meier v Bell[30] was a case where the Court was invited to resolve the question of where a deceased body should be interred. The plaintiff preferred the Altona Cemetery and the defendant preferred Swan Hill cemetery. The problem was immediate as the body had not been buried. The plaintiff had commenced the proceeding by Originating Motion under Order 54. As Byrne J noted in Leeburn, Ashley J considered that the Order 54 procedure was the appropriate procedure. Ashley J said:
Jurisdiction:
The parties rightly agreed that the issue is one which the court is empowered to determine. There have been a number of instances spanning a long period where superior courts have assumed such a jurisdiction.
The plaintiff commenced the proceeding by Originating Motion seeking orders pursuant to Rule 54.02 of Chapter 1 of the Rules. The defendant did not contend that this Order could not provide a vehicle for getting the issue before the court. No attention was directed by either party to possible problems created by Rule 54.03. Counsel for the defendant did submit that the matter might have been brought before the court in an alternative and preferable way. He contended that a proceeding could have been commenced pursuant to Order 4 of Chapter 3 of the Rules. ... it appears to me that Order 4 of Chapter 3 would not have been a suitable vehicle for getting the present matter before the court. The plaintiff would have been obliged, for instance, to undertake to collect and administer the estate. That is a matter well removed from the immediacy of the present problem.[31]
[30](Supreme Court of Victoria, Ashley J, 3 March 1997).
[31]Ibid 1–2.
Two affidavits were filed by the plaintiff and two by the defendant. The deceased was an Aboriginal man. Some of his family were buried at the Swan Hill cemetery. The plaintiff was the mother of a young child of the deceased. None of the deponents of the affidavits were cross-examined and Ashley J considered that cross-examination with a view to resolving the dispute would have been inappropriate.
He identified numerous areas of factual dispute in the material before him (eg was there an uninterrupted and ongoing de facto relationship between the plaintiff and the deceased?; was the deceased a man to whom Aboriginal spiritual beliefs meant anything?) but took the view that not only would they take a great deal of time to determine with the body remaining unburied but that also, in this area, the courts proceed with practical considerations uppermost in mind. Courts attempt to resolve these matters while avoiding, so far as possible, the determination of underlying factual disputes. Nevertheless, he emphasised the importance of adhering to established legal principles.[32] He observed that the executor of a deceased estate has a right to the custody and possession of the body (but no property in it) until it is properly buried, and with the right to possession comes the duty to dispose of the body.[33] The court is thus typically concerned to identify the person who is a potential administrator. He went on to say:
The situation, then, when a will has been left and an executor appointed is clear. But there are cases where there is no will. They fall broadly into two categories. First, where a child dies. Second, where an adult dies intestate. The present situation, that is where there was allegedly a will but it appointed no executor, may be equated for present purposes with the second category. The authorities show that in cases falling within both categories courts have been at pains not to decide, so far as possible, the merits of competing claims to place of burial. ...
Only where there has been no discernible better legal right, as in a dispute between the natural parents of a deceased child (albeit a child of full age who died intestate) has it been necessary to resolve a dispute to any extent on the merits — though with a strong emphasis on pragmatic considerations ...[34]
[32]See Heather Conway, ‘Dead, but Not Buried: Bodies, Burial and Family Conflicts’ (2003) 23(3) Legal Studies 423, 431.
[33]See Williams v Williams (1882) 20 Ch D 659.
[34]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 7–8.
He ultimately determined that the plaintiff was the person meeting the description of a potential administrator based upon the uncontroverted facts that she was the custodial parent of a child of the deceased; she should thus bear the responsibility for disposing of the body of the deceased.
Ashley J in Meier v Bell clearly affirmed the Order 54 procedure as appropriate to the recognised jurisdiction of superior courts to determine these matters even where there are known or unknown contested issues of fact between the parties. He understood that these matters may involve unresolved complex questions of fact but that much of that conflict may be irrelevant to the issue at hand. Somewhat similarly, Byrne J in Leeburn suspected that the differences between the parties ‘represents a manifestation of some more deep-seated hostility which I cannot resolve’[35] and, as mentioned,[36] commented that the affidavits filed in the proceeding before him ‘deal with matters and conflicts which are of no relevance for my task’.[37]
[35]Leeburn (2004) 14 VR 100, 102 [9].
[36]See [53] above.
[37]Leeburn (2004) 14 VR 100, 101 [8].
The force of the comments of both Ashley J and Byrne J is that the Supreme Court, in determining a proceeding under Order 54 relating to the disposition of the body or ashes of a deceased, ought to avoid resolving any contested issue of fact beyond those, if any, that are strictly necessary for its determination. Their comments do not support the proposition, relied on here by the judge, that, as a general principle, the Order 54 procedure is unavailable in the face of contested issues of fact.
The primary judge relied upon Tsaknis[38] when she concluded that Order 54 should not be used when there are contested factual issues between the parties. In Tsaknis an executor and trustee of the deceased’s will sought advice and directions from the Court, under s 92 of the Trustees Act 1962 (WA),[39] for declarations that he be at liberty to oppose the application of the other executor, David Lilburne, for a grant of double probate of the will of the deceased and to seek revocation of the leave reserved by the original grant of probate for Mr Lilburne to apply for probate. Mr Lilburne was the son and Mr Tsaknis was the son-in-law of the deceased. The estate was large. There had been a refusal by Mr Lilburne, resident in New York, to give an inventory of the remaining items of the deceased’s valuable collection of books, maps, and prints, or to return items he held in New York. EM Heenan J emphasised the long-standing jurisdiction of a State Supreme Court to give directions in respect of the administration of trusts. He said:
[T]he Rules of the Supreme Court 1971 (WA) O 58 r 2 provide that any trustee or any person interested under the administration of a deceased estate or under any trust may apply on originating summons for the determination, without a general administration of the estate or trust, of any of a number of designated questions or matters including ‘(g) the determination of any question arising in the administration of the estate or trust’.
The availability of this jurisdiction to enable a trustee to seek directions from the court, including ‘judicial advice’, as to whether or not to commence or to defend legal proceedings affecting the interests of the trust estate has been confirmed on many occasions and, recently, at the highest level in Macedonian Orthodox Community ChurchSt Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand ... Earlier examples of the settled jurisdiction of the court to entertain applications for advice as to whether or not a trustee should sue or defend pending or anticipated litigation are provided by In re England’s Settlement Trusts; Dobb v England; Alcock v Public Trustee; Marley v Mutual Security Merchant Bank & Trust Co Ltd; and Alsop Wilkinson (a firm) v Neary. This has been referred to as the court’s ‘supportive, supervisory jurisdiction in addition to its punitive enforcement role’.
The power can be employed by the trustees not only in cases where litigation is imminent or pending but where any doubt exists as to their position or correct course of action. The so-called ‘Beddoe’ applications are discussed in Underhill and Hayton ...
The position has long been recognised that a trustee, including an executor of a deceased estate, if in doubt about the course of action to be adopted in the course of administration of the estate or the trust, may always apply to the court for its opinion, direction or advice: In re Atkinson (dec).[40]
[38][2010] WASC 152.
[39]Section 92 of the Trustees Act provides: ‘(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee. (2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient’.
[40][2010] WASC 152 [35]–[38] (citations omitted).
He recognised that the jurisdiction was not one that ought involve the resolution of substantive factual disputes but, relying on the High Court authority of Macedonian Orthodox Community ChurchSt Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand,[41] he was emphatic that this was not a question of a lack of power in the court but rather a question of the court’s discretion:
Mr David Lilburne also submits that s 92 ought not be used to determine substantive issues which involve the resolution of a contest between the trustee and other parties to the trust ...
There are many cases containing dicta that the procedure should not be used to determine substantive issues involving hostile disputes between a trustee and beneficiaries — … but these dicta now need to be read in the light of the observations in the Macedonian Orthodox Community Church case that there are no limitations implied upon the exercise of the jurisdiction once it is enlivened and such expressions of judicial opinion about when the statutory power applies go rather to discretion than to power.[42]
[41](2008) 237 CLR 66.
[42][2010] WASC 152 [39]–[40] (emphasis added).
He acknowledged that the need for a final determination of substantive issues would be a relevant consideration against the use of the court’s ‘supportive, supervisory jurisdiction’ in this area. It is for this reason that he determined to treat the application for directions under s 92 as a preliminary matter, making an assessment of the allegations made against Mr Lilburne (particularly the refusal to disclose the extent of maps, books, and prints forming part of the estate that remained in Mr Lilburne’s possession or control) at a preliminary level without seeking to arrive at a final determination. He did not consider that the contested allegations precluded him from exercising the traditional jurisdiction of the Court. He said:
However, those discretions do raise questions about the suitability of the procedure if there are likely to be contested issues of fact or allegations of breach of trust or misconduct of any kind by one party interested in the administration of the trust against another. That is why I have considered that it is desirable in the present proceedings, to deal with the application for directions under s 92 as a preliminary matter in order to determine whether or not Mr Tsaknis, as the existing trustee to whom probate has been granted, does have sufficient reason to oppose the claim for double probate and related matters sought by Mr David Lilburne. That first question is a matter which can, and in my view should, be determined on the s 92 application without attempting to embark, at least on this occasion or in the s 92 application, on any final determination of whether or not there should be a grant of double probate to Mr David Lilburne ...
Part of this determination will involve an assessment, at this preliminary level, of whether, if Mr Tsaknis’s allegations were to be established and accepted, they would amount to grounds upon which the desired grant of probate could be refused.[43]
[43]Ibid [41]–[42] (emphasis added). He was satisfied, in the circumstances of the case, that there were real arguable issues as to whether Mr Lilburne was a suitable or competent person to obtain a double grant of probate and become a co-executor and co-trustee of his late father’s estate: [69]. He gave directions that Mr Tsaknis could oppose the application of the double grant and that there should be a trial of the issue of whether Mr Lilburne’s application for a double grant should be passed over.
In my view, EM Heenan J’s avoidance of final determinations of factual issues reflects no more than the same caution expressed by Byrne J in Leeburn and by Ashley J in Meier v Bell that, while the presence of contested issues of fact does not preclude the use of the Order 54 procedure, the directions or advice provided by the Court ought be given without the determination of any unnecessary or irrelevant factual allegations, of which, in this context, there may be many.
In my view, here the judge fell into error in concluding that the Order 54 procedure was neither available nor appropriate because there were contested issues of fact. It appears that the factual issues relevant to the question of Mark’s future access to the cremated ashes of his deceased parents may not go far beyond a determination of the current location of those ashes. Questions about who said what to whom over the period of years following the death of the parents may be irrelevant, in much the same way as Byrne J in Leeburn treated the ‘conflict between [the parties] as to what was said’[44] in relation to the disposition of the ashes in that case because ‘it is not necessary that I resolve these disputes’.[45]
[44]Leeburn (2004) 14 VR 100, 101 [4].
[45]Ibid.
I would uphold grounds 2 and 4.
Did the judge wrongfully ignore the Charter? — Ground 3
There was little reliance on the Charter in the oral hearing of the application for leave to appeal. It is unclear what application the Charter may have to the circumstances of this case. Section 6 of the Charter provides that ‘only persons have human rights’. A ‘person’ is defined as meaning a ‘human being’,[46] that is, a natural person. The common law has traditionally not afforded rights to a dead person. However, after the death of a person a determination can be made, for example, by a Coroners Court, that the person, when alive, had been deprived of their liberty in a police station in a manner that was not consistent with their humanity and the inherent dignity of a human person as required by the Charter.[47] The Full Court of the Supreme Court of South Australia, in a case where no executor was named, Jones v Dodd,[48] held that the question of the place of burial was to be approached with
the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.[49]
[46]Charter s 3 (definition of ‘person’).
[47]Inquest into the Death of Ling Gong Tang [2014] VicCorC 219.
[48](1999) 73 SASR 328.
[49]Ibid 336 [51].
The Court held that rights under the International Covenant on Civil and Political Rights, to freedom of religion and rights of cultural minorities, were to be respected and given appropriate weight in this context.
In any event, this issue need not be resolved here.
It is unnecessary for me to determine ground 3.
Was the judge guilty of apprehended bias? — Ground 5
There are five bases upon which Mark alleges that the judge was guilty of apprehended bias: (1) her jocular remark with respect to the insecure state of Mark’s mother ashes;[50] (2) her misrepresentation of Mark’s position with respect to legal assistance when he said he did not think he was eligible and the judge described him as not having sought assistance;[51] (3) her refusal to join the other executors; (4) her withdrawal of assistance without notice; and (5) what he describes as the judge’s refusal to ‘protect the ashes’.
[50]See [26] above.
[51]See [24] and [33] above.
Mark submits that collectively these factors are sufficient to infer that
a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case ... after he [or she] has ... expressed clear views ... about a question of fact which constitutes a live and significant issue in the subsequent case.[52]
[52]Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300.
In my view, these factors do not support a finding of apprehended bias and I do not consider that any conduct or comment of the judge in this matter supports such a finding.
The observation by the judge that she was sure the mother was ‘not complaining’[53] about her current place of interment was no doubt unfortunate and distressing to Mark. The judge most likely regretted the remark as soon as she had made it. With respect to the availability of legal assistance the judge may have intended to say no more than that Mark was not legally assisted and this explained why she had asked him personally to prepare a summary attempting to narrow the issues ‘as best he could’.[54]
[53]See [26] above.
[54]See [33] above.
I have already explained why I consider that the judge’s refusal to join the other executors is an error at law and why the failure to afford Mark with an opportunity to be heard was a breach of procedural fairness, aggravated by the withdrawal of assistance without notice. These errors led the judge to the dismissal of Mark’s application and I do not consider that this dismissal is tantamount to a ‘refusal to protect the ashes’.
More generally, there is nothing to suggest that the judge had pre-determined the outcome of the application, or that a reasonable observer would apprehend that she had done so. The judge had clearly tried to assist Mark during the conduct of the
directions hearing. While the judge fell into error, in the ways I have described above, the errors do not reveal apprehended bias.
I reject ground 5.
Conclusion
In my view, leave to appeal should be granted and the appeal should be allowed. I consider that the matter ought be remitted to a different judge to hear and determine the proceeding according to law. I would direct that Mark be granted leave to amend his Originating Motion to join John and Jane as defendants, pursuant to r 54.03(a), and that the matter be referred, with Mark’s consent, to the Victorian Bar Pro Bono Assistance Scheme to ensure that Mark is given legal assistance to pursue the proceeding. At the return of the proceeding for mention, the remitter judge may seek to narrow further the scope of the proceeding and may direct, after hearing from Mark and from Jane and John, that the issues be determined not as multiple questions of law but as a claim for access by Mark to the cremated ashes of his deceased parents and for other particular forms of relief.
KAYE JA:
For the following reasons, I agree with Tate JA that the applicant should be granted leave to appeal on grounds 1, 2 and 4, and that the appeal be allowed on those grounds. I also agree with the orders and directions proposed by her Honour.
Ground 1
In considering ground 1, it should be acknowledged that the primary judge was confronted with a claim that was expressed in quite complex terms. It was appropriate that the judge requested the applicant to refine and thus clarify the relief that he was seeking from the court.
Having read the transcript of the hearing before the primary judge, it is possible that the judge and the applicant were, to some extent, at cross-purposes in respect of what the judge intended should follow when she requested the applicant to re-draft his application for relief. Nevertheless, it is clear, from the terms in which the judge expressed that request, that the applicant must have derived a fair expectation, from the judge’s request, that, having re-drafted his application, he would be given a right of further hearing before her Honour. Instead, the judge, having received the applicant’s re-drafted application, proceeded to deliver judgment in the proceeding without according the applicant that right. In that way, the applicant was not accorded procedural fairness.
For that reason, I would uphold ground 1 of the application.
Grounds 2, 4
The judge’s decision, to dismiss the proceeding, was based on the proposition that, because there were disputes, and ‘unknown contested issues of fact’, between the applicant and the co-executors, in the administration of the estate, it was inappropriate for the applicant to proceed by originating motion under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 and for the co-executors to be joined to that proceeding.[55] There are, in my view, two difficulties in her Honour’s reasoning to that effect.
[55]Application by Horner [2018] VSC 736, [23]–[26] (‘Reasons’).
First, it is not evident that relevant disputed issues of fact might arise between the applicant and his co-executors in the resolution of the issue as to the appropriate disposition of the remains of the applicant’s mother. Certainly, in light of the personal differences between the applicant and his siblings, it might fairly be anticipated that, in a proceeding concerning that issue, the parties might seek to agitate a number of contested factual issues. As a matter of human experience, such an expectation would be realistic. However, experience also demonstrates that, in a case such as this, a number of issues, that are raised by the parties, may not be relevant to the question as to the appropriate disposition of the remains of the deceased person. In those circumstances, such irrelevant issues of fact may be left unresolved.
The second difficulty, with the judge’s approach, is that the authorities make it clear that the potential, or actual, existence of relevant factual disputes between the parties does not, of itself, preclude an executor or administrator having recourse to provisions, such as Order 54, in order to seek the Court’s direction concerning a matter that arises in the administration of an estate. Without rehearsing the authorities at length, the following principles are sufficiently clear.
First, in determining whether the procedure adopted by the applicant was appropriate, the primary question is whether the application comes within the jurisdiction of the Court.[56] In that respect, it is accepted that an application, by originating motion, in a case such as this, involves the determination of a question ‘arising in the administration’ of the estates of both the applicant’s mother and father pursuant to r 54.02(2)(a)(i) of the Rules of Court.[57] That is, notwithstanding that the deceased’s remains do not constitute part of the property of the deceased’s estate, the question concerning the correct disposition of those remains may properly be regarded as a question arising in the administration of the deceased’s estate.[58]
[56]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 89 [56] (Gummow A-CJ, Kirby, Hayne and Heydon JJ) (‘Macedonian Orthodox Community Church’).
[57]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) (‘Meier v Bell’); Leeburn v Derndorfer (2004) 14 VR 100 (‘Leeburn’).
[58]Leeburn (2004) 14 VR 100, 107 [28] (Byrne J).
Secondly, the circumstance, that the Court’s determination of such an issue may involve the resolution of disputed issues of fact, does not of itself preclude the Court hearing and determining such an application in a proceeding commenced under r 54.02. As Tate JA has noted, the question before Ashley J, in Meier v Bell, raised four strongly contested issues of fact, some of which were quite sensitive.[59] Notwithstanding the existence of those disputed issues, Ashley J heard and determined the question as to the disposal of the body of the deceased. That approach was consistent with, and supported by, the authorities to which Tate JA has referred.[60]
[59]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 5.
[60]Tsaknis v Lilburne [2010] WASC 152, [40] (Heenan J); Macedonian Orthodox Community Church (2008) 237 CLR 66, 95 [79].
Thirdly, in the hearing and determination of a dispute concerning the disposition of the remains of a deceased, the courts adopt a principled, but practical, approach, particularly to issues of procedure.
In Meier v Bell, Ashley J adopted a passage from the judgment of Martin J in Calma v Sesar[61] which set out the applicable principles in convenient terms.[62] In that case, Martin J was determining a dispute between the natural parents of a deceased child. His Honour said:
Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased’s extended family as well. Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and a profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except insofar as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.
The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.[63]
[61](1992) 2 NTLR 37 (‘Calma’).
[62]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 6.
[63](1992) 2 NTLR 37, 42.
The principled, but pragmatic, approach, described by Martin J in Calma, has been adopted in successive decisions of the trial court, including the decisions of Ashley J in Meier v Bell,[64] of Byrne J in Leeburn[65] and of Hargrave J in Keller v Keller.[66] They illustrate the capacity of the Court to navigate past the emotional issues that commonly arise in an application such as this, and to determine the central question, that is before the Court, in a principled and fair manner.
[64]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 8–9.
[65]Leeburn (2004) 14 VR 100, 104 [16].
[66](2007) 15 VR 667, 669–71 [9]–[16]. See also Frith v Schubert [2010] QSC 444, [53]–[58] (Lyons J); Joseph v Dunn (2007) 35 WAR 94, 98 [21] (Heenan J). Cf Jones v Dodd (1999) 73 SASR 328, 336–7 [52]–[57] (Perry J with whom Millhouse and Nyland JJ agreed).
For those reasons, I consider that the judge did err in summarily dismissing the proceeding. Rather, her Honour ought to have directed that the applicant’s two siblings be joined as defendants in the proceeding, and to have given directions for the appropriate management and disposition of the unfortunate issue that has arisen between them.
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