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Smith v Smith

Smith v Smith

Case [2021] WASC 15 20 January 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SMITH -v- SMITH [2021] WASC 15
CORAM:   SMITH J
HEARD:   16 & 23 DECEMBER 2020, 12 & 15 JANUARY 2021 & ON THE PAPERS
DELIVERED          :   20 JANUARY 2021
FILE NO/S:   CIV 2237 of 2020
BETWEEN:   ALANA TRACEE SMITH
Applicant
AND
FIONA BEVERLEY SMITH
First Respondent
LANCE BRADFORD SMITH
Second Respondent
GREGG STEVEN SMITH
Third Respondent
GLENN EARL SMITH
Fourth Respondent

Catchwords:

Application for injunction to restrain funeral - Summons for orders that the applicant have carriage of a funeral - Right to arrange funeral - Competing claims by siblings of the deceased - Practical considerations

Applications for an adjournment of the application by the applicant on grounds of ill health - Applications refused - Sufficient affidavit material before the court to determine the application - The importance of laying a deceased body to rest without unreasonable delay considered - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 4, s 14
Coroners Act 1996 (WA), s 37(5)

Result:

Summons dismissed
Fourth respondent to have carriage of the funeral

Category: B

Representation:

Counsel:

Applicant	:	Mr J T London on 16 & 23 December 2020 & 12 January 2021, in person 15 January 2021
First Respondent	:	Mr B D Hetherington
Second Respondent	:	Mr B D Hetherington
Third Respondent	:	Mr B D Hetherington
Fourth Respondent	:	Mr B D Hetherington

Solicitors:

Applicant	:	Robertson Hayles Lawyers until 13 January 2021, in person from 14 January 2021
First Respondent	:	Solomon Hollett Lawyers
Second Respondent	:	Solomon Hollett Lawyers
Third Respondent	:	Solomon Hollett Lawyers
Fourth Respondent	:	Solomon Hollett Lawyers

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

Attwood v Office of The State Coroner [2020] WASC 198
Bertani v Bertani [2017] WASC 78
Burrows v Cramley [2002] WASC 47
Doodeward v Spence (1908) 6 CLR 406
Gilliott v Woodlands [2006] VSCA 46
Mourish v Wynne [2009] WASC 85
Smith v State Coroner [2020] WASC 472
Smith v State Coroner of Western Australia [2020] WASC 355
Spratt v Hayden [2010] WASC 340
Sprlyan v Wyborn [2016] WASC 227
Stead v State Government Insurance Commission [1986] HCA 54; (1996) 161 CLR 141
Ugle v Bowra & O'Dea [2007] WASC 82
Williams v Williams (1882) 20 Ch D 659

SMITH J:

Introduction

Without intending any disrespect, in these reasons, because all of the parties have the same last name, after they are introduced, I will refer to each of the parties, other than the applicant, by their first name.
The applicant, Alana Tracee Smith, commenced these proceedings by chamber summons dated 15 December 2020 in judicial review proceedings against the State Coroner.
In the proceedings against the State Coroner, the applicant sought review of a decision made on Wednesday 9 December 2020 to issue a certificate on Monday 14 December 2020, pursuant to s 29(1) of the Coroners Act 1996 (WA), in favour of her sister, Fiona Beverley Smith, permitting the burial of the body of their mother, Kathleen Smith…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Smith

Details

AGLC: Smith v Smith [2021] WASC 15
Case: [2021] WASC 15
Decision Date: 20 JANUARY 2021

CaseChat Overview and Summary

In the matter of Smith v Smith, the parties involved were siblings, the applicant, Smith, and the respondent, Smith, who were contesting the right to arrange the funeral of their deceased mother. The applicant sought an injunction to restrain the respondent from proceeding with the funeral and a summons for orders that the applicant have carriage of the funeral. The dispute was heard in the Supreme Court of New South Wales. The central legal issues revolved around the right to arrange a funeral and the competing claims by siblings of the deceased, alongside the consideration of practical circumstances surrounding the funeral arrangements.

The court considered the affidavit evidence provided by both parties and concluded that there was sufficient material before it to determine the application. The applicant had applied for an adjournment of the application on the grounds of ill health, which was refused. The court emphasised the importance of laying a deceased body to rest without unreasonable delay, while also recognising the competing claims of the siblings. Ultimately, the court found that the case turned on its own facts, and the applicant's right to arrange the funeral was not established.

The court granted the respondent permission to proceed with the funeral and dismissed the applicant's application. The final orders of the court were that the applicant had no entitlement to have carriage of the funeral, and the respondent was granted the right to proceed with the funeral arrangements. The court also noted that the matter of funeral arrangements was one that turned on its own facts and that the importance of laying a deceased body to rest without unreasonable delay was a significant consideration in reaching its decision.

Orders