Seidler v The State Coroner of Western Australia - [2025] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SEIDLER -v- THE STATE CORONER OF WESTERN AUSTRALIA [2025] WASC 81
CORAM:   GETHING J
HEARD:   11 MARCH 2025
DELIVERED          :   11 MARCH 2025
PUBLISHED           :   14 MARCH 2025
FILE NO/S:   CIV 1083 of 2025
BETWEEN:   KATHRYN SEIDLER
Plaintiff

AND

THE STATE CORONER OF WESTERN AUSTRALIA
First Defendant

ANITA LOUISE SEIDLER
Second Defendant

Catchwords:

Burial rights - Dispute between one next of kin who wanted remains buried and another who wanted remains cremated - Relevance of right to object in the Cremation Act 1929 - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 4
Cremation Act 1929 (WA) s 13

Result:

Remains of deceased released to the plaintiff who is to have carriage of the funeral

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	Ms K E Ellson
Second Defendant	:	In Person

Solicitors:

Plaintiff	:	In Person
First Defendant	:	State Solicitor's Office
Second Defendant	:	In Person

Case(s) referred to in decision(s):

Atwood v Office of the State Coroner [2020] WASC 198
Britt v The State of Western Australia [2022] WASCA 75
Burrows v Cramley [2002] WASC 47
Fairburn v Healey [2009] WASC 114
Hart v Hart [2010] WASC 329
Pryor v Huata [2024] WASC 13
Smith v Smith [2021] WASC 15

GETHING J:

(This judgment was delivered extemporaneously on 11 March 2025 and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities).

Karl Seidler, whom I will refer to as the Deceased, died on 5 September 2024. He is survived by two daughters, Anita Seidler and Kathryn Seidler. For purposes of clarity and meaning no disrespect, I will refer to them by their first names.
Anita would like to have the Deceased's body cremated. Kathryn would like to have his body buried.
By writ filed on 29 January 2025, Kathryn sought the assistance of the Supreme Court to resolve this issue. She in effect seeks an order that the body of the Deceased be released to her and that she have carriage of the funeral and that the Deceased's remains be buried. Kathryn in the action also seeks orders in relation to the estate of the Deceased. Those orders are beyond the scope of the present action and will need to be the subject of a separate action in the context of whether the Deceased had a will or died intestate.
The State Coroner of Western Australia (Coroner) was the initial defendant. On 31 January 2025, Lundberg J made an order that Kathryn serve the relevant court documents on the Coroner and Anita. His Honour also made an order for Anita and Kathryn to confer as to the relief claimed in the action.
On 6 February 2025, Lundberg J made orders that the Coroner be the first defendant and Anita be joined as the second defendant.
The Deceased's body is currently in the State Mortuary. The Coroner has instructed the State Mortuary not to release the Deceased's body until the resolution of these proceedings or further orders of this court.
There is no will of the Deceased in evidence before the court. Kathryn is of the view that the Deceased did have a will, and that one Peter Mattock was the executor. Mr Mattock was a friend of the Deceased. Kathryn thinks that she might be the alternate executor. Mr Mattock apparently resides in New South Wales. He has not been able to be contacted.
The trial was initially listed for 13 February 2025. On that occasion, at Kathryn's request, I adjourned the hearing to today. One of the reasons for doing so was to allow her to make further inquiries to track down Mr Mattock. At two subsequent hearings, I declined applications by Kathryn for the court to make orders to try and get more information about any will. The Deceased died over six months ago. I would have thought that if there was a will, it would have been found by now.
The court takes the view that there is an imperative for expedition in disputes of this nature. This is because it would be an affront to the dignity of the Deceased and the emotional well-being of those close to the Deceased for the funeral to be delayed for many months after death to allow questions of interest and entitlements to be fairly and properly resolved.[1] Accordingly, I will proceed to determine this application on the basis that the Deceased did not leave a will. In any event, as I will set out in more detail later in these reasons, any wishes of the deceased person set out in their will as to the disposition of their body is not binding on the court, though it does have some weight.
[1] Britt v The State of Western Australia [2022] WASCA 75 [61], [64] (Mitchell JA, with whom Murphy and Beech JJA agreed).
In due course, someone will need to apply for letters of administration or, if a will is found, probate. There is an issue in the materials before the court as to who is entitled to do so, but it is not an issue I need to resolve. I note that Kathryn has obtained a caveat in the Supreme Court of New South Wales to the effect that no grant of probate is to be made in the estate of the Deceased without prior notice to her. She has also provided this court with a document filed in the New South Wales Supreme Court indicating an intention to apply for a grant of probate relating to a will of the Deceased of which Peter Mattock is said to be the executor. However, the New South Wales Supreme Court only 'has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in New South Wales'.[2] So, the caveat has no effect in Western Australia.
[2] Probate and Administration Act 1898 (NSW) s 40.
The other reason I adjourned the first trial listing was to give Kathryn a further opportunity to raise outstanding matters with the Coroner in relation to the autopsy of the Deceased. Her correspondence is set out in Ms Tyler's second affidavit. Ms Tyler deposes that she forwarded all Kathryn's correspondence to Dr Clive Cook, a forensic pathologist with the Forensic Pathology and State Mortuary Service of PathWest. She also annexes Dr Cook's response, which was in an email to Ms Tyler dated 17 February 2025. Dr Cook advises that he can think of no useful testing that can be undertaken on the body of the Deceased, setting out his reasons for coming to this conclusion. In my view, there is now no evidence to suggest that there should be any further delay in dealing with the application on the ground of the need to preserve the body of the Deceased for further forensic analysis.
Kathryn's evidence is set out in her affidavits sworn 28 January 2025, 27 February 2025 and 28 February 2025.
Anita's evidence is set out in two affidavits, sworn 11 February 2025 and 7 March 2025.
On 1 February 2025, Sarah Tyler, the acting principal registrar of the Coroner's Court, filed an affidavit in the action affirmed that day. The same day the State Solicitor's Office acting for the Coroner filed submissions. Ms Tyler, as I mentioned, filed a second affidavit. This was affirmed on 28 February 2025. The material filed by the Coroner was intended to assist the court by ensuring that all relevant material facts were before the court and that the other parties were aware of relevant legal principles ahead of the trial. It makes no submissions one way or another on the merits and will simply abide by, and give effect to, the order of the court.
At the hearing today, counsel for the Coroner attended, Anita attended in person and Kathryn attended by video link. I made orders to the effect that each affidavit would be taken as read. I did not consider it appropriate for the deponent of any affidavit to be cross-examined.

Kathryn's evidence and submissions

Kathryn is the second oldest daughter of the Deceased. Kathryn's home address is in New South Wales, though she is currently residing in Seattle in the USA.
Kathryn deposes that the Deceased was 'German Catholic and was always very traditional'. He had her and her sister christened, and they both had 'Holy Communion as Catholics'. They attended Catholic infant and primary school, she says, due to the Deceased's selection of the family's religion at the time. She recalls attending church at times, as her father did. Kathryn describes him as enjoying 'these aspects of tradition, including the occasional service, in particular Christmas mass'.[3] She deposes that the Deceased never expressed any desire for cremation, nor any negativity in relation to burial.
[3] Affidavit of Kathryn Seidler sworn 28 January 2025, page 4.
Kathryn deposes that the tradition preferred for a Catholic is burial and that in Germany everyone must be buried. If the person is cremated, the urn is to be buried. She goes into some detail as to her understanding of the doctrine of the Catholic Church on this point.
Kathryn is currently unemployed due to a workplace injury. In relation to her proposal to fund a burial, her evidence is to the effect that she believes that the Deceased had an account with the Commonwealth Bank of Australia (CBA) in which there is over $250,000. Her proposal is that these funds be used to pay for a burial. She tells me the CBA will pay directly an invoice from a funeral director on receiving authority to release funds to do so. She deposes:[4]
The CBA does not require more than one person sign the authority to release funds for the funeral, and Anita can also do that with the same type of invoice. The form makes it clear that it requires all signing, but the CBA does not require that.
[4] Affidavit of Kathryn Seidler sworn 28 February 2025, par 20.
Kathryn tells me that she has confirmed with the CBA that they only require one signature. I am not sure that this is in fact the case. Kathryn annexed to her submissions filed 14 February 2025 a copy of guidance provided to the next kin of the estate of deceased person by the CBA. This is to the effect that the authorised estate representatives can apply to have the assets of the deceased released to pay for or reimburse immediate funeral expenses. The guidance for the authorised estate representative follows the legal position. If there is a will, it is the executor, and the CBA requires copies of either the will and death certificate or grant of probate. If there is no will, it is the immediate surviving next of kin. In the absence of the grant of letters of administration, this is in the order of spouse, de facto spouse, then children. If there is no spouse or de facto, then the authority to release assets must, in effect, be signed by all children.
In the present case, this is, at least as I understand it, and I may well be wrong, this means that the funeral expenses of the Deceased, whether cremation or burial, can only be paid out from his bank account with the CBA if Kathryn and Anita both sign the authority to release assets.
In her first affidavit, Kathryn gives evidence about loans made by the Deceased to Anita in the period 2008 to 2019, and her father's efforts to recover these loans. In my view, these matters have no relevance to the issues I am required to determine.
Finally, Kathryn relies on the Cremation Act 1929 (WA) s 13, which I will come back to at the end of my reasons.
In summary, Kathryn said:
I sincerely do not think that my father wants cremation. I am also not comfortable with him being dispatched in a way I consider does not provide sufficient respect of his passing and my separation at this time.

Anita's evidence and submissions

Anita is the eldest daughter of the Deceased. She lives in Western Australia.
Anita tells me that the Deceased arrived in Australia in 1960, when he was 20 years old. He lived in Sydney for most of this time.
Anita's evidence is that the Deceased was born in Brawin, Wagstadt, Sudetenland into a Catholic family, but he was not a practising Catholic. I note that Brawin, Wagstadt, Sudetenland, at least to my research, now appears to be in the Czech Republic, though nothing turns on that.
To Anita's knowledge, the Deceased did not regularly attend church services or participate in Catholic sacraments such as confession or Holy Communion. As a child and teenager, she does not remember the Deceased attending church or taking her to church weekly or to attend weekly mass. He did not express any strong religious convictions in conversations with her or her family. The Deceased lived with her and her family between December 2014 and September 2017. He did not attend church during this time. Anita did not observe the Deceased engaging in any religious activities or devotion, nor did he ever indicate to her any particular religious beliefs or preferences.
Anita's evidence is that at no time did the Deceased discuss or make arrangements for a Catholic burial, nor, as far as she is aware, did he leave instructions for one in any formal or informal manner. At no point did the Deceased express to her specific wishes regarding whether he would prefer to be buried or cremated.
Anita tells me that on her research, cremation is an acceptable funeral arrangement in Germany. She also refers to a statement of Pope Francis in 2016 that cremation is acceptable so long as the remains are treated with respect.
Anita deposes she does not have the time to arrange a full funeral burial due to family and study commitments. She has obtained a quote for a funeral at Fremantle Cemetery from Bowra & O'Dea which was $13,512. She deposes that she does not have the financial means to pay for a full burial and funeral service.
Anita annexes to her second affidavit a quote from Direct Cremations Perth for a non-attending cremation of $2700. She deposes to being ready to make arrangements to pay for a cremation.
As the Deceased spent more of his lifetime in Sydney, Anita proposes to then arrange a memoriam in Sydney at a future date when Kathryn is available.
The Deceased was married, but has been divorced for many years. Anita has spoken to her mother, Beatrice Seidler (Mrs Seidler). Anita details her attempts to get Mrs Seidler to file an affidavit, which attempts were ultimately unsuccessful. She tells me Mrs Seidler's position is that she is in agreement with Anita's proposal for cremation.
Anita also deposes that the continued delay in resolving the matter is causing emotional distress to her and her mother, prolonging her grief and preventing her from achieving closure.
Anita submits that as the Deceased lived nearly 64 years in Australia, she believes that the customs and laws of cremation in Australia are to be observed as he was a permanent resident of Australia.
In her second affidavit, Anita deposes that after her father died, she took responsibility for clearing out his personal belongings, including his room and other areas of his shared accommodation. She thoroughly searched his personal belongings, including all drawers, files and other storage areas. She did not find any will or other document regarding his final wishes.
In summary, Anita submits that as the oldest next of kin residing in Western Australia, she believes that she has the legal, moral and practical authority to finalise arrangements for the remains of the Deceased. She submits that cremation is the most practical and immediate solution to allow the whole family to grieve properly and move forward. She expresses a belief that cremation is the most respectful and dignified, practical, timely and appropriate option, given in her words, 'the urgency of finally allowing our father to rest in peace'.[5]
[5] Anita's Affidavit, par 9.

Relevant principles

The jurisdiction to resolve a dispute as to who should have carriage of the funeral of a deceased and where and how his body should be disposed of rests with the Supreme Court jurisdiction in its inherent jurisdiction, which is preserved by Administration Act 1903 (WA) s 4.[6]
[6] Britt [52]; Smith v Smith [2021] WASC 15 [65] (Smith J) (Smith); Burrows v Cramley [2002] WASC 47 [15] - [27] (Pullin J) (Burrows).
The starting point in the analysis are the following fundamental principles:[7]
(a)there is no property in a dead body;
(b)a person by will cannot dispose of his or her body;
(c)the wishes of the deceased will be of considerable weight;
(d)the person to whom the body is released has the power to make any funeral arrangements and to determine how the body is disposed of; and
(e)in doing so, the person is expected to consult with other stakeholders, but is not legally bound to do so.
[7] Britt [53] - [54]; Smith [66], [70]; Pryor v Huata [2024] WASC 13 [10] (Hill J) (Pryor).
The court will ordinarily order that the body will be released to:[8]
(a)the executor of the deceased pursuant to his or her will; or
(b)if there is no will, the person who appears on the state of the evidence before the court to be the person who is most likely to receive a grant of administration, (who will ordinarily be the person with the greatest interest in the estate).
[8] Britt [53] - [59], [65], also [35] (Murphy and Beech JJA).
In Britt v The State of Western Australia, Mitchell JA after stating these propositions added the following guidance:
(a)the approach in [41] is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied, nor an approach that applies except in extremely rare cases;[9]
(b)the approach to be taken and the weight to be given to the various considerations depends on the particular circumstances of the case;[10]
(c)in determining the person to whom a deceased body should be released, the court is not required to make any final determination of who is entitled to the intestate, estate or administration of the estate and will often not be in a position to do so;[11]
(d)the court will usually determine questions in an expedited summary way without needing to resolve every factual dispute that may be relevant to the grant of administration and without undertaking any extensive cross-examination;[12]
(e)there will always be an imperative for expedition in disputes of this nature as it would be an affront to the dignity of the deceased and the emotional wellbeing of those close to the deceased for the funeral to be delayed for many months after death to allow questions of interest in entitlement to be fairly and properly resolved;[13] and
(f)it would seldom, if ever, be appropriate to await the outcome of a contested application for the grant of letters of administration.[14]
[9] Britt [59], [64].
[10] Britt [60].
[11] Britt [60], [61], [65].
[12] Britt [65].
[13] Britt [61], [64].
[14] Britt [64].
The factors which the court may consider in the exercise of the discretion include the following:[15]
(a)the deceased's wishes (to the extent that they are known to the court);
(b)the wishes and sensitivities of living close relatives of the deceased;
(c)spiritual or cultural considerations;
(d)the ability of members of the deceased family to attend the funeral or burial site;
(e)the need for the funeral and burial or cremation to be held in a timely way; and
(f)the costs and logistical difficulties of the competing proposals.
[15] Britt [58], [147] - [150]; Pryor [12].
The weight to be placed on each of these factors is to be determined in the particular factual context of the dispute in the case.[16]
[16] Britt [58].

Who is most likely to be granted administration of the Deceased's estate?

The starting point is then to determine who is most likely to be granted administration of the Deceased's estate. As mentioned, I am proceeding to determine this action on the basis that the Deceased died intestate, that is, without a will.
Section 25(1)(a) of the Administration Act empowers the court to grant administration of the estate of a person dying intestate to one or more persons entitled in the distribution of the estate who are over the age of 18 years.

The normal approach to the exercise of this power is to grant letters of administration to the person who has the greatest interest as beneficiary in the intestate estate.[17] However, in the present case, each of the Deceased's children are entitled to an equal share in his estate and are thus equally entitled to be granted letters of administration.[18] They may all be granted administration conjointly.[19] Even if Kathryn resides overseas, it would be sufficient for her to have an address for service in the jurisdiction.[20] If one sibling applied, the applicant would have to give notice to the other siblings of the application.[21] In the event as to a contest between siblings, the court can make an order that one (or more) be appointed administrator. In doing so, the court will make the order which best advances the real object of the administration, which is the due and proper administration of the estate.[22]
[17] Britt [67]; Hart v Hart [2010] WASC 329 [17] (Jenkins J) (Hart); Fairburn v Healey [2009] WASC 114 [7] (Hasluck J) (Fairburn).
[18] AA s 14; Hart [16] - [18].
[19] AA s 25(1).
[20] Non-contentious Probate Rules 1967 (WA) (NCPR) r 14.
[21] NCPR r 22.
[22] Hart [19] - [24]; Fairburn [7].
As I have mentioned, in determining the person to whom a deceased's body should be released, the court is not required to make any final determination of who is entitled to the intestate estate or the administration of the estate. I am not in a position to do so. Rather, I proceed to determine the present action on the basis that each of Kathryn and Anita is equally entitled to be appointed administrator of the Deceased's estate.
Where those claiming the privilege of burial have equally ranking rights for administration, the question of who the body should be released to turns largely to matters of practicalities, paying due regard to the need to have the body disposed of without unreasonable delay, but with all proper respect and decency.[23]
[23] Britt [57]; Atwood v Office of the State Coroner [2020] WASC 198 [12] (Archer J); Pryor [16] - [19].

Who should the Deceased's body be released to?

I turn then to determining to whom the Deceased's body should be released. Going through the factors which I have mentioned, there is no evidence which I regard as reliable as to the Deceased's wishes, either as to who should have the carriage of his funeral or as to whether his remains should be buried or cremated.
As to the wishes and sensitivities of living close relatives of the Deceased and cultural considerations, I accept that Kathryn has a strongly held belief on religious grounds that it would not be appropriate to cremate the Deceased's remains. Anita refers me to material to the effect that cremation is acceptable for a Catholic person and views cremation as being permitted in the Catholic faith. I do not need to resolve the issue of whether or not cremation is acceptable to a person of Catholic faith in the Catholic Church. It is sufficient that I recognise Kathryn's strongly held belief that it is not.
However, against Kathryn's strongly held belief, I accept Anita's evidence as to the absence of any religious convictions or expression by the Deceased in his lifetime.
The need for dealing with the remains of the Deceased in a timely manner strongly favours cremation. Kathryn did not provide a timetable for burial. As she is in Seattle, she would have to organise a burial remotely. Her proposal for funding a burial is, in my assessment, dependent on all surviving siblings signing the authority to release assets, which may or may not be possible.
The issue of logistics strongly favours Anita. She is in Western Australia. She is able to coordinate the process of cremation and is able to pay for this to occur. Her proposal for a memoriam in Sydney at a time when Kathryn is available is both respectful and appropriate.
There is, however, one final factor, which is Cremation Act s 13, which is s 13(1) relevantly provides:
Notwithstanding anything hereinbefore contained, no person shall cremate or apply for or grant any permit for the cremation of the body of any deceased person if he knows that a person who was married to, or is in a de facto relationship with, the deceased immediately before the death of the deceased, or any person who is next of kin of the deceased has objected in writing to the body being cremated, unless the deceased shall by his will or codicil or any memorandum in writing signed by him and attested, have directed and expressed a desire that his body be cremated.
In effect, this section prevents the body of a deceased person being cremated if any person who is a next of kin has objected in writing to the body being cremated. Neither the Cremation Act nor the Cremation Regulations 1954 (WA) specify to whom the notice in writing is to be directed. However, in this case, I am readily satisfied that correspondence by Kathryn to the Coroner constitutes sufficient notice in writing.[24]
[24] I add that Form 6 of the Cremation Regulations 1954 (WA) requires the applicant for a permit to cremate to note objections to the deceased's remains being cremated, in accordance with Cremation Act 1929.
That being so, as a matter of law, the body of the Deceased cannot be cremated.[25] There is no power in the court to order to the contrary.
[25] Burrows [30].
Anita's proposal of cremation is one that she can fund. Although the practicalities strongly favour the Deceased's body being released to her, in my view, it would be unfair to her to release the body to her with a direction that burial take place.
For this reason and this reason alone, I consider the appropriate exercise of the court's discretion is to order the Deceased's body be released to Kathryn, who is to have carriage of the funeral arrangements, including the decision as to whether his remains should be cremated or buried.
In coming to this conclusion, I should record that I have a great deal of sympathy for both parties. They are both trying to do what is best to honour their father.

Orders

I make the following final orders:
1.The remains of the Deceased be released to the plaintiff who is to have carriage of the funeral.
2.There be liberty to apply in relation to the identity of the funeral director to whom the remains of the Deceased are to be released.
3.The action otherwise be dismissed.
4.There be no orders as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
14 MARCH 2025