Seidler v The State Coroner of Western Australia [No 2] - [2025] WASC 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SEIDLER -v- THE STATE CORONER OF WESTERN AUSTRALIA [No 2] [2025] WASC 141
CORAM:   GETHING J
HEARD:   ON THE PAPERS
DELIVERED          :   23 APRIL 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:

Application to stay decision in absence of appeal - 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:

Cremation Act 1929 (WA) s 13
Supreme Court (Court of Appeal) Rules 2005 (WA) O 26 r 2
Vexatious Proceedings Restriction Act 2002 (WA) s 4, s 8

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	N/A
First Defendant	:	N/A
Second Defendant	:	N/A

Solicitors:

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

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

Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40
Seidler v Royal Melbourne Institute of Technology [2016] FCCA 1205
Seidler v The State Coroner of Western Australia [2025] WASC 81

GETHING J:

This history of this action is set out in Seidler v The State Coroner of Western Australia (Decision).[1] Karl Seidler, whom I will refer to as the Deceased, died on 5 September 2024. He was 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. In the Decision I ruled in favour of Kathryn. This decision was the consequence of the application of Cremation Act1929 (WA) s 13 which 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. I was satisfied that Kathryn had so objected in writing. Accordingly, I ordered that remains of the Deceased be released to Kathryn who was to have carriage of the funeral.
[1] Seidler v The State Coroner of Western Australia [2025] WASC 81.
I am aware from being copied into correspondence that Anita was dissatisfied with the Decision and had raised her concerns with the Chief Justice. However, no appeal has been lodged in respect of the Decision. According, the Court of Appeal does not have jurisdiction to grant a stay. That jurisdiction remains with the General Division of the Supreme Court. I accept that I have the inherent power to stay the Decision pending the lodgment of a notice of appeal.
At 9:46 am today the court received an email from Anita attaching a letter (23 April Letter). A further email was sent at 9:52 am which contained the complete version of the letter (page 3 had been omitted in the first email). The 23 April Letter was addressed to the Chief Justice, but copied to me. The Chief Justice was not available as he is presiding over a criminal trial. Given the urgency, it fell to me to respond.
The essence of the 23 April Letter was that:
(a)the funeral of the Deceased was scheduled to commence at 10:15 am today;
(b)he was to be buried at 11:45 am at the Fremantle Cemetery; and
(c)Anita seeks a stay of the burial (Application).
I leave aside the fact that the Application was not made in a proper form and the factual materials were not before the court by way of affidavit.
Anita records her distress at what has occurred. She says that she only learnt about the funeral yesterday afternoon.
On the limited materials available to me, at around 10:00 am this morning I made the decision that I would not stay the Decision. Anita was informed of this by email from the registry at 10:15 am. My reasons for doing so follow.
The stay was sought pending 'review' of the Decision. The primary reason given for the need for a review is that Kathryn is a vexatious litigant who did not get leave to commence the action. My inquiries before 10:00 am revealed that Kathryn is not recorded on the list maintained by this court of persons who have been declared vexatious litigants pursuant to Vexatious Proceedings Restriction Act 2002 (WA) (VPRA) s 4.
Three other matters were raised in the 23 April Letter.
The first is that the Decision was the result of a 'jurisdictional error', in that it misapplies the Cremation Act 'by prioritising a distant litigant over the closest next of kin (Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40)'.
The second is that the Decision was tainted by 'Wednesbury Unreasonableness: No reasonable court could grant carriage to an overseas litigant while disregarding local family (Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223)'.
Neither point has any reasonable prospect of success. A stay will generally be refused unless it can be established that the potential appeal has reasonable prospects of success.
The third matter was that the balance of convenience favoured a short stay pending 'review' of the Decision. I accept what Anita says that she only found out yesterday afternoon that the funeral was today.
I add to this the timing of the Application. It was open to Anita to have commenced an appeal from the Decision at any time after 14 March 2025, over a month ago. She did not do so. In any event, Supreme Court (Court of Appeal) Rules 2005 (WA) r 26(2) required her to have commenced an appeal within 21 days of the date of the Decision. That time has now lapsed, though she could have sought an extension. Had Anita commenced an appeal, it would then have been open for her to have sought a stay from the Court of Appeal.
Until such time as the Decision is stayed, the ordinary rule is that it stands and Kathryn is entitled to act on it. It is for Anita to move the court to a favourable exercise of its discretion to stay the Decision. The court will not do so unless special circumstances are shown. The material provided by Anita to the court was insufficient to move me to exercise the discretion to stay the Decision.
For these reasons, in the few minutes I had to consider the Application, I declined to make the order sought.
A review of decisions of the Federal Court this morning, shortly after 10:15 am, did however reveal the decision of Seidler v University of New South Wales [No 3] [2011] FCA 1330 in which Perram J made orders pursuant to Federal Court Rules 2011 (C'th) that Kathryn not continue with any proceeding commenced by her in the Federal Court without the leave of that court and that she not commence any proceedings in the Federal Court without the leave of that court. By VPRA s 8, the order of the Federal Court is in effect given application in the courts of this State, including the Supreme Court. This required Kathryn to have sought leave to have commenced the present action. She did not do so. Had I known this prior to making the Decision, I would in any event have granted Kathryn leave. There was a clear need for the court to resolve the impasse between Kathryn and Anita as to who had the right to make the funeral arrangements for the Deceased. It is also the case that, regardless of whether Kathryn commenced the present action or not, Cremation Act s 13 prohibited any person from cremating the remains of the Deceased.

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
23 APRIL 2025