Smith v Smith - [2021] WASC 15

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 (the deceased), who died on 5 September 2020.
The application for judicial review was dismissed on Sunday 13 December 2020, and reasons were published on 18 December 2020.[1]
[1] Smith v State Coroner [2020] WASC 472.
The judicial review proceedings against the State Coroner followed proceedings instituted by the applicant, pursuant to s 36(3) of the Coroners Act, seeking an order that a limited post-mortem examination be performed on the deceased.
The parties to the post-mortem proceedings were the State Coroner, and Fiona and four other children of the deceased, including the other respondents to this application, Lance Bradford Smith, Gregg Steven Smith and Glenn Earl Smith. The application made by the applicant for a limited post-mortem was granted on 6 October 2020.[2]
[2] Smith v State Coroner of Western Australia [2020] WASC 355.
On Wednesday 16 December 2020, an order was made in these proceedings that the chamber summons, filed on 15 December 2020, in the proceedings for judicial review, be treated as an originating summons filed in a separate proceeding.
In the chamber summons, filed on 15 December 2020, the applicant sought orders that, until further order, Fiona be restrained by injunction from taking possession, or authorising or allowing anyone else to take possession, of the body of the deceased from the State Coroner.
Although the application is for injunctive relief against Fiona, the applicant, in effect, seeks orders that the body of the deceased be released to her, that she have carriage of the funeral of the deceased, that the deceased be cremated, and her ashes be taken or sent to England to be placed with the remains of her deceased relatives.
Consequently, the issues in dispute are as follows:
(a)who should the deceased's body be released to, and who should have carriage of the deceased funeral;
(b)should the deceased's body be buried or cremated; and
(c)if it is decided that the deceased body should be cremated, should the deceased's remains be returned to her country of birth (England), or should they remain in Australia, the country of residence of all of her eight children and many grandchildren?
It is common ground that there is considerable acrimony between the applicant and Fiona, and that Fiona has a current family violence restraining order in place against the applicant.
In these proceedings, and in the application for a post-mortem and the application for judicial review, the applicant has made serious allegations against Fiona of elder abuse by Fiona against the deceased prior to her death. Some of these allegations were made by the applicant in the post-mortem examination proceedings Smith v State Coroner of Western Australia.[3] It is my understanding that the allegations raised by the applicant were referred to the police for investigation. Those allegations are refuted by Fiona and the majority of her siblings.
[3] Smith v State Coroner of Western Australia [2020] WASC 355.
Given the acrimony between the applicant and Fiona, it is agreed by the respondents that, if the applicant's application is dismissed, Glenn should have the conduct of their mother's funeral.
For this reason, the allegations made by the applicant against Fiona are not relevant to the disposition of this application, and have not been referred to in these reasons.
On 16 December 2020, among other orders, the following orders were relevantly made:
(a)listing the application for injunctive relief for hearing at 11.00 am on Thursday 24 December 2020;[4]
(b)requiring the applicant to file and serve any affidavit in support of her application by 4.00 pm on Monday 21 December 2020;
(c)allowing Fiona to file and serve any affidavit in reply by 4.00 pm on Wednesday 23 December 2020; and
(d)allowing any other child of the deceased to be joined as a respondent if they advise the court by 12.00 pm on Wednesday 23 December 2020.
[4] The hearing (and all other directions hearings in this proceeding) was listed at 11.00 am because the applicant had made it known to the court, in the hearing of the application for judicial review on 13 December 2020, that she suffers from a medical condition that makes it difficult for her to attend any court proceedings at any earlier time of the day.
On Tuesday 22 December 2020, the applicant's lawyers wrote to the court seeking that the time for compliance with the order requiring the applicant to file her affidavit in support of her application be extended to 21 January 2021, and that the time for which affidavits in reply were to be filed be extended to 28 January 2021. In effect, what was sought was an adjournment of the hearing and the relisting of the matter for hearing sometime after 28 January 2021.
In support of the application for an adjournment, the applicant swore an affidavit on 21 December 2020, in which she stated that:[5]
[5] Affidavit of Alana Tracee Smith sworn 21 December 2020 [3] ‑ [4].
My medical condition
3.I have:
(a)Permanent 29% of whole body impairment due to cervical spinal damage resulting from a motor vehicle accident;
(b)Chronic fatigue syndrome;
(c)A severe form of Ehlers‑Danlos syndrome;
(d)Chronic Central Sensitisation;
(e)Post‑Traumatic Stress Disorder.
4.Because of my medical conditions:
(a)I have to take a range of medication, one side effect of which is that day‑night cycle is messed up, which prevents me from being able to get out of bed and get anywhere before about 11:00 AM;
(b)I cannot drive for more than about 20 minutes;
(c)I tired easily;
(d)I cannot write or type;
(e)I need to have many medical appointments.
Attached to her affidavit, sworn on 21 December 2020, were copies of medical reports written by two medical specialists containing some information about her medical conditions. One report is dated 14 August 2020, and the other 3 December 2020. The two reports appear to have been prepared for the purposes of further investigations of the applicant's existing medical conditions. Also attached to her affidavit, sworn on 21 December 2020, was a medical certificate provided by a Dr Michael Murphy, a general practitioner in Midland, dated 21 December 2020, in which it was stated that the applicant, 'is unwell to attend court for four weeks from 21/12/2020 to 21/01/2021 inclusive.'
In her affidavit, sworn on 21 December 2020, the applicant stated that:
(a)she had less than 41 hours between when she first contacted her lawyers to make this application and the first directions hearing on 16 December 2020, and she did not have enough time to fully brief her lawyer:
(i)about her medical condition and how it affects her ability to participate in the proceedings; and
(ii)why the order that she file her affidavit material in support of the application by 4.00 pm on 21 December 2020 was prejudicial to her as a person with physical and psychological disabilities; and
(b)in other Supreme Court proceedings that she has been involved in, the court has taken notice of her medical condition, and has allowed her extended deadlines. Consequently, she expected that this would happen at the directions hearing on 16 December 2020; and
(c)she had a medical appointment on 18 December 2020 and two medical appointments on 21 December 2020, which she had forgotten about (when she attended the directions hearing on 16 December 2020), which left her without sufficient time to work on the preparation of an affidavit.
The respondents to the application opposed the applicant's application for the extension of time for the applicant to file an affidavit in support of her application, and to adjourn the hearing listed for 24 December 2020.
Unfortunately, the application for an adjournment was not made until two days before the hearing was to occur, and the application for an adjournment could not be listed until Wednesday 23 December 2020. By that time, there was only one court sitting day left in the calendar year before Christmas Day and court vacation.
After hearing counsel for the parties on 23 December 2020, the application for an adjournment was granted, and the hearing of the application for interlocutory relief was relisted for hearing on Thursday 14 January 2021, being for the first available date after the resumption of the Christmas break. However, I was not persuaded that the matter should be delayed until the end of January 2021 for the following reasons.
First, the medical certificate provided by the applicant's general practitioner did not indicate that the applicant was not fit to provide instructions to her lawyers to prepare an affidavit for the hearing of her application. Secondly, the determination of applications for the conduct of funeral arrangements are matters that should be promptly determined by the court and determined on affidavit evidence without cross‑examination. Consequently, there was no reason why the applicant would be required to attend court. The applicant was informed that, if she wished to do so, arrangements could be made for her to attend the hearing by the use of a videoconferencing facility or by an audio facility.
On 23 December 2020, orders were made by the court that the time for compliance with the order requiring the applicant to file her affidavit material be extended to 4.00 pm on Friday 8 January 2021, and that the respondents file and serve any affidavit in reply by 4.00 pm Tuesday 12 January 2021. An order was also made that the matter be relisted for hearing at 11.00 am on Thursday 14 January 2021.
No affidavit was filed by the applicant on 8 January 2021.
On Saturday 9 January 2021, the applicant's lawyers filed a letter applying for case management directions, seeking that the time for compliance with the orders requiring the filing of affidavits be suspended until further order, and that the matter be listed for 22 January 2021 to monitor whether the applicant's health permitted her to resume attending to her application.
In support of the second application for an adjournment of the hearing of the application, the applicant's lawyers filed two affidavits. The first affidavit related only to events that had occurred on Sunday 3 January 2021, involving an altercation between the applicant and Fiona. A restriction order was sought in respect of the contents of that affidavit. The contents of that affidavit went only to the application for an adjournment, and are not relevant to the determination of this application.
The second affidavit was affirmed by the applicant's lawyer, Jeremy Thomas London, on 8 January 2021. In his affidavit, Mr London stated that on 6 and 7 January 2021 he had spoken to the applicant who informed him that:
(a)on Monday 4 January 2021, she had been informed by an eyewitness that she had been punched in the head on 3 January 2021. As a result, she had attempted to be seen by a doctor (at St John of God Midland Public Hospital) on 4 January 2021, but after waiting three hours she left the hospital, and made an appointment with her general practitioner, who she was unable to see until 6 January 2021;
(b)on Wednesday 6 January 2021, her general practitioner, Dr Murphy, diagnosed her with concussion, and referred her for a chest x-ray and a CT scan of her head;
(c)when she had the CT scan of her head, the radiologist told her that she needed to get an MRI scan done because of apparent damage to her temporal lobe;
(d)on Thursday 7 January 2021, she was referred for an MRI scan of her brain;
(e)since the assault on 3 January 2021, she has the following symptoms:[6]
[6] Affidavit of Jeremy Thomas London affirmed 8 January 2021 [2(i)].
(i)Her legs and arms are black with bruises;
(ii)Her legs are swollen;
(iii)Her right temple is swollen;
(iv)She has a severe headache in her right temple and base of her skull;
(v)She is woozy and having severe difficulty focussing;
(vi)Her arms and legs are in pain;
(vii)Her heart is constantly racing;
(viii)Nausea;
(ix)Confusion;
(x)Blurred vision.
(f)she suffered from a pulmonary embolism in 2014, and has active breast tumours, and as a result has an elevated risk of further pulmonary embolisms.
The application for a further adjournment of the hearing of the application for interlocutory relief was listed on 12 January 2021.
Prior to the hearing of the application, the court was informed by the respondent's counsel that the application was opposed on grounds it would be unjust for these proceedings to be further delayed, and that the respondents were eager to bring these proceedings to a close so they could finally lay their mother to rest.
At the hearing of the application for a further adjournment on 12 January 2021, the applicant was represented by counsel, and she attended the hearing by audio link.
At the hearing of the application for a further adjournment of the proceedings:
(a)counsel for the respondents informed the court that, as a result of the incident that occurred on 3 January 2021, the applicant had been charged by the police with a breach of a family violence restraining order, and aggravated assault. Counsel for the respondents also informed the court that no charges had been laid against Fiona; and
(b)counsel for the applicant stated that a booking had been made for her to undergo the MRI scan on Thursday 14 January 2021, and that it was his understanding that the results should be available early next week, which would enable his client to have some certainty about her health condition and the amount of time that it would take for her to recover from this injury, or whether the injury was not serious. Consequently, no estimate could be made as to when the application could be heard, as it could not be predicted by his client as to when the state of her health would allow her to proceed to hearing.
In answer to questions that I put to counsel for the applicant, the court was informed that prior to 3 January 2021, substantial progress had been made towards taking instructions to complete an affidavit to be sworn by the applicant. In particular, he had taken instructions, in broad outline, in respect of the following matters:
(a)what the deceased had told the applicant over the years about her wishes to return to England, how strong that desire was, and her wish to be cremated rather than buried;
(b)the applicant had been in contact with the deceased's five surviving siblings in England to seek their views about funeral arrangements for the deceased, but the applicant had not passed on all the details that are necessary to ascertain whether affidavits could be sought from any of the deceased's English relatives; and
(c)the applicant was of the view that it was perverse for any of her siblings to be responsible for the deceased's final resting place because, irrespective of the allegations she makes against Fiona, the majority of her siblings, other than Garry and her sister Kathleen (who resides in Brisbane), supported their brother (who is not a party to these proceedings and has not put any affidavit material before the court), who had committed an offence against their mother, and those siblings did not support the deceased (in respect of that matter).
The applicant's counsel informed the court that the matters he had taken instructions about go to the nature of the relationships that the deceased had had with each of the respondents, and are relevant to the determination as to who is an appropriate person to make the final arrangements for the disposal of the deceased's remains.
Having heard the submissions made by counsel, I formed the opinion that the application for a further adjournment of the application should be refused on the following grounds:
(1)In an application for injunctive relief concerning the question of who should have carriage of a funeral and the appropriate arrangements, the application should be dealt with by the court promptly because it is very important that a deceased person's body be laid to rest without unreasonable delay and with all proper respect and decency. Part of laying someone to rest with all proper respect and decency is to ensure, so far as reasonably practicable, that funeral arrangements are made without unreasonable delay.
(2)Unfortunately, when this application was filed on 15 December 2020, there had already been a very long delay in laying the deceased to rest, as the parties to these proceedings had been in dispute about the making of funeral arrangements since at least sometime in October 2020, when the Coroner had possession of the deceased's body.
(3)Given the urgent nature of the application, the applicant had a sufficient time to prepare her evidence. A period of more than two weeks had elapsed since the application for injunctive relief had been filed on 15 December 2020 before the events that occurred on 3 January 2021, which time should have been sufficient for the applicant to provide instructions to her lawyers in respect of the application, given that she had been in dispute with her siblings about the funeral arrangements since at least sometime in October 2020.
(4)It was clear that from the information provided by the applicant's counsel that sufficient instructions had been taken to enable an affidavit to be sworn and filed, setting out those instructions that go to the relevant matters that the court should take into account when considering whether an order should be made that the conduct of the funeral should be granted in favour of the applicant or her brother Glenn, and whether the deceased remains should be buried or cremated.
(5)Given the applicant's medical issues, I was satisfied that an affidavit could be sworn by a legal practitioner, who had taken those instructions from the applicant, as counsel for the respondents had undertaken not to take any objection to the hearsay nature of the matters stated in the affidavit. Consequently, I was satisfied that the instructions that the applicant's counsel had taken prior to 3 January 2021 were sufficient to not only prepare an affidavit setting out those instructions but to put forward the matters that were relevant to the factors this court should take into account in determining the applicant's application.
(6)The applicant's siblings had already filed affidavits setting out their views as to what the funeral arrangements should be, and the wishes that their mother had expressed to them about her funeral arrangements in her lifetime.[7] It is clear that they each have a pressing interest in these proceedings being concluded as soon as possible.
(7)The applicant's interest in adjourning her application for injunctive relief should not prevail over the interests of her siblings in circumstances where it was not clear whether, in one or two weeks, the applicant would be in a position to comply with the order made by the court (that she file an affidavit in support of her application).
[7] The respondents filed their affidavits in opposition to the application on 23 December 2020, and their brother Garry had filed an affidavit on 21 December 2020.

On 13 January 2021, the applicant's lawyer filed an affidavit on the applicant's behalf, setting out his instructions as to the applicant's evidence in respect of this matter.
On 14 January 2021, the respondent's lawyers filed a written outline of submissions, and informed the court that no further affidavit evidence would be filed on behalf of the respondents.
Shortly before the close of business on 14 January 2021, the court was informed that the applicant had terminated her lawyer's retainer to act for her in these proceedings. An email was received from a Ms Pinna who identified herself as 'Alana's disability support advocate that helps with the typing of emails', stating that the applicant had dictated the email, and that she was unable to attend court on 15 January 2021 because she had a medical certificate stating that she not attend any court hearings from 21 December 2020 to 21 January 2021, and she sought an adjournment of the hearing on 15 January 2021.
On being informed of the contents of the email, in light of the fact that all relevant evidence had been filed in the proceedings to enable the court to determine the application, I formed the opinion that the application could be determined on the papers.
In response to the email to Ms Pinna, my Associate sent the following email to Ms Pinna with a copy to the respondents' lawyers:
I have spoken to Mr London who has said that his retainer to act for Ms Smith has been terminated by Ms Smith.
Could you please inform Ms Smith that if she is unable to attend the hearing tomorrow at 11.00 am by audio or in person, her Honour will determine the application on the papers. That is, the application will be determined without a further hearing and by regard to all of the documents filed in this application. This is because all of the evidence has been filed by the parties.
Prior to the hearing on 15 January 2021, a notice of representation was filed on behalf of the applicant, stating that she intended to act in person. The applicant subsequently informed the court that morning that she intended to appear in person at the hearing listed for 11.00 am, rather than by audio‑link.
At the outset of the hearing, the applicant made an application that the persons present in the public gallery identify themselves. This application was refused.
The applicant was then asked whether she wished to make an application for an adjournment. The applicant said she was entitled to an adjournment, and then said it was her view that her former lawyer, Mr London, had been having significant problems dealing with this matter and that the affidavit he affirmed and filed on 13 January 2020 was 'lacking' and contained mistakes.
The applicant also complained that no photographs had been attached to the affidavit.
It was then put to the applicant that:
(a)what was relevant in her evidence to the disposition of the application was, in essence, only two matters and they were: what her mother told her during her lifetime about whether she wished to return to England, and how her mother's remains should be disposed of; and
(b)Mr London had filed and served an affidavit on 13 January 2021 that set out her instructions as to the relevant conversations she had had about this issue.
In response, the applicant stated that the contents of the affidavit were incomplete and inaccurate. The applicant was provided with a copy of Mr London's affidavit, affirmed on 13 January 2020, which comprised seven pages, and was requested to identify the parts of the affidavit that did not accurately record her conversations with her mother, during her lifetime, about the disposal of her mother's remains after her death, and her desire to return to England.
The court adjourned for ten minutes to enable the applicant to review those parts of the affidavit that set out those matters.
When the court reconvened, the applicant was taken through, paragraph by paragraph, paragraphs 14 to 28 of Mr London's affidavit, and asked to identify the matters she claimed were inaccurate. Paragraphs 14 to 31 of Mr London's affidavit stated:[8]
[8] Affidavit of Jeremy Thomas London affirmed 13 January 2021 [14] ‑ [31].
1992
14.When Kathleen's mother died in 1992, Kathleen told Alana that Kathleen's mother would be cremated and her ashes buried in the family burial plot in Birmingham, England.
15.Kathleen told Alana that her dead siblings, parents, grandparents, and other ancestors' ashes are all interred there and that that's where she wanted her ashes to end up too.
16.From speaking to Kathleen's brother in the UK, Alan's uncle Jimmy Milner, Alana knows that the plot number is 69176, Yardley Cemetery, Birmingham, England.
1997
17.In 1997, Alana decided to get a British passport, which she was entitled to get due to her parents being British.
18.Alana asked Kathleen if she would like Alana to help her renew her British passport too and she said she would, so Alana did. Kathleen told Alana, as she had told her before, how she wanted to move back to England.
2005
19.Alana's parents divorced in 2005. Kathleen started saying, 'All I need is a man. He'll take me back to England.' She always related to her life events in terms of how they related to her returning to England.
2007
20.In 2007, Kathleen and Alana's British passports were expiring. Alana applied to renew hers and asked Kathleen if she would like Alana to help her renew hers too. She said she did, so Alana did.
21.Kathleen again told Alana about wanting to return to England.
22.Kathleen said, 'Seeing the White Cliffs of Dover would bring me a lot of joy and peace. Bring me home at all costs.'
2014
23.Alana's father died on 8 September 2014 in the Philippines. His children fought with his Thai wife about where his ashes should be buried. They reached an agreement with her for some of his ashes to come back to Australia, but she reneged on the agreement.
24.When Kathleen heard about this, she said to Alana, 'I don't want that to happen to me. This lot [Kathleen's children] will all be fighting over my money and jewellery and what I've got. I've made them all millionaires but they won't give a shit about getting me home. They could have taken me home to England because I don't want to go by myself but no one will go with me. But I'll get home to my family in England whether in this life or in the afterlife.'
25.Kathleen again told Alana about the family burial plot in Birmingham, England.
26.Kathleen always seemed to like telling Alana about her family history. Kathleen said Alana was the only one of her children who was interested in their ancestry.
2017
27.The last time Kathleen talked to Alana about wanting to return to England was in April 2017, when Alana asked her if she wanted Alana to help her renew her British passport, since Alana had helped her the last 2 times, in 2007 and 1997.
28.Kathleen said, as she had said to Alana before, 'I'll get back to England whether in this life or in the afterlife. He kept me here away from my family and made me terrified to get on a plane. I never wanted to stay in this godforsaken country away from my family.' By 'he', Kathleen was referring to her husband, Alana's father.
29.To put this in context, Kathleen had told Alana how Alana's father had controlled the family's purse strings and kept getting Kathleen pregnant so she was pregnant for most of the next 10 or so years after she came to Australia. She had no money and no driver's licence. Kathleen also told Alana how Alana's father made her fearful of flying by convincing her the plane would crash.
30.Kathleen's first plane ride was in 2010, when Alana took her on a trip to Melbourne. Kathleen told Alana that surviving the flight made her even more excited about the idea of flying back to England.
31.Kathleen also said, 'I don't want to be buried because I don't want the worms eating me. I want to go back to the family burial plot. That's where I want to end up.' She told Alana again about the family burial plot in Birmingham, England.
After hearing from the applicant, it was clear that the applicant's complaint was not that the matters stated in each of the paragraphs were inaccurate, but that each paragraph did not set out all relevant background information, such as who paid for the renewal of the deceased's passport,[9] and other matters, such as the circumstances of the dispute that arose between her siblings and her father's second wife when her father died in the Philippines in 2014, that her grandmother was buried not cremated, and whether some of her deceased relatives' remains are buried in the family plot and the ashes of other relatives rest there.
[9] The applicant claims she paid to renew her mother's passport.
The only complaints made by the applicant that the contents of the affidavit sworn by Mr London were incorrect that had any substance were: (a) the statement in paragraph 27 that the last time her mother talked to her about wanting to return to England was in April 2017; and (b) in paragraph 14 that her grandmother's body would be cremated.
The applicant informed the court that her mother told her that her grandmother's body would be buried in the family burial plot, and that after 2017 she had other conversations with her mother about her wishes.
Despite the applicant's complaints about the contents of the affidavit, given that the affidavit was reasonably comprehensive in its details as to the instructions Mr London had received from the applicant about these matters, I formed the opinion that the court had before it sufficient information about the wishes that the deceased had expressed to her children during her lifetime to determine the application.
I then informed the applicant that I intended to determine the application on the papers, but that before I did so I would allow the applicant to file a submission in writing that addressed any matter in response to the respondents' written outline of submissions and orders sought, filed on 15 January 2021, except for the paragraphs that referred to the allegations the applicant made against Fiona.
The respondents' counsel informed the court that his clients did not object to the application being determined on the papers.
At that point in the proceedings, the applicant renewed her application for an adjournment of her application for injunctive relief. The applicant was informed that her application for an adjournment was refused, and that judgment would be delivered on the papers and published by 4.00 pm on Wednesday 20 January 2021.
The applicant in her written submissions, sent to the court on Monday 18 January 2021, complained that she has been denied a fair hearing because she should have been granted an adjournment of her application for injunctive relief, because:
(a)she needed time to put further information before the court in support of her case as the affidavit filed by Mr London was inadequate;
(b)she was unfit to attend to the application due to her medical conditions and medical investigations due to her disability and recent concussion; and
(c)she is a vulnerable person because of her disabilities and medical condition.
In Stead v State Government Insurance Commission, Mason, Wilson, Brennan, Deane and Dawson JJ said:[10]
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board, in these terms:
'There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.'
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
[10] Stead v State Government Insurance Commission [1986] HCA 54; (1996) 161 CLR 141, 145 - 146.
In the context of a criminal trial, Jenkins J applied the key principles of procedural fairness in Sprlyan v Wyborn, as follows:[11]
What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, including the nature of the jurisdiction, the subject matter, and the statutory provisions governing the power or jurisdiction being exercised.
As a general rule a person will not be afforded procedural fairness if he or she is not given a reasonable opportunity to make relevant submissions, give evidence, and call witnesses in support. However, the opportunity that must be afforded will always be qualified by the requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.
The assessment is one of 'practical injustice'. For example, a court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions that were cut off would have made no difference to the outcome.
[11] Sprlyan v Wyborn [2016] WASC 227 [160] - [162]. (footnotes omitted)
The applicant in this matter was given reasonable opportunity to make relevant submissions in respect of her application, as I have outlined thus far in these reasons.
The nature of the application made by the applicant required the court to deal with it expeditiously and without undue delay, and involved very limited issues. The determination of applications of this kind should not stray into an enquiry into a deceased's entire life history.
However, the applicant has continued to attempt in these proceedings to raise extraneous and irrelevant matters, such as by raising in her written submissions, provided to the court on 18 January 2021, that despite numerous requests the coroner has not released to her the results of hair analysis and has yet to determine a cause of death for the deceased.
There are two reasons why I formed the view on Friday 15 January 2021 that the applicant has had a reasonable opportunity to present her case.
Firstly, I was not satisfied that the applicant could have provided, if she had have been granted a further adjournment of the application, any additional relevant information in support of her application. Secondly, because of her medical condition, her disabilities, and her ongoing conflict with the majority of her siblings, I was not satisfied that it was appropriate that she have the conduct of the funeral arrangements for her mother.
In the circumstances, it is my view that the applicant has been accorded procedural fairness in this matter.

Legal Principles

The court has jurisdiction pursuant to s 4 of the Administration Act 1903 (WA), and inherent jurisdiction, to determine who should have carriage of a funeral, and where and how a body should be disposed of.[12]
[12] Burrows v Cramley [2002] WASC 47 [3] (Pullin J); Mourish v Wynne [2009] WASC 85 [21] (Le Miere J).
It is an established principle at common law that there is no property in a dead body, but that the executors are entitled to custody and possession of the body for the purpose of disposal of that body.[13]
[13] Williams v Williams (1882) 20 Ch D 659; Doodeward v Spence (1908) 6 CLR 406; Burrows v Cramley [2002] WASC 47 [15] ‑ [16] (Pullin J).
Pursuant to s 29(1) of the Coroners Act, the coroner investigating a death must issue, as soon as reasonably possible, a certificate permitting burial, cremation or other disposal of the body. The equivalent duty in the Coroners Act 1985 (Vic) has been interpreted as carrying with it, by necessary implication, the power to decide questions as to where and by whom the disposal will be carried out, which is essential to the effective discharge of the coroner's functions.[14]
[14] Gilliott v Woodlands [2006] VSCA 46.
In Ugle v Bowra & O'Dea,[15] McKechnie J adopted the reasoning of the Victorian Court of Appeal in Gilliott v Woodlands, and went on to find that it is a matter of considerable weight that the Deputy Coroner (in the matter before his Honour) made a decision on the matter and decided that the body should be released to the de facto partner of the deceased, and not to a son of the deceased.[16]
[15] Ugle v Bowra & O'Dea [2007] WASC 82 [19] - [20].
[16] Ugle v Bowra & O'Dea [2007] WASC 82 [20].
The principles of law that apply in this State as to how this court is to determine who should have possession and control of the body of a deceased were recently set out by Archer J in Attwood v Office of the State Coroner as follows:[17]
[17] Attwood v Office of The State Coroner [2020] WASC 198 [10] - [12] (footnotes omitted); Burrows v Cramley [2002] WASC 47; Mourish v Wynne [2009] WASC 85 (Le Miere J) [21]; Spratt v Hayden [2010] WASC 340 [5] (Le Miere J); Bertani v Bertani [2017] WASC 78 [14] ‑ [18] (Banks-Smith J).
(a)If a person has named an executor in his or her will and that person is ready willing and able to arrange for the burial of the deceased's body the person named as executor has the right to do so.
(b)A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders, but is not legally bound to do so.
(c)Where no executor is named the person with the highest rank to take out administration will have the same position as the executor in proposition (a).
(d)The right of the surviving spouse or de facto will be preferred to the right of children.
(e)Where two or more persons have equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
The propositions in (a) and (c) are to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. It would have to be a rare case to depart from this common or usual approach.
Where those claiming the privilege of burial have equally ranking rights for administration, the question 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.
The legal consequences of the instructions or the wishes of a deceased as to the manner of disposal of their body are not determinative. In Spratt v Hayden, Le Miere J observed:[18]
The legal consequences of burial instructions or the wishes of the deceased is discussed by Heather Conway in 'Dead, But not Buried: Bodies, Burial and Family Conflicts' (2003) 23 Legal Studies 423. Dr Conway says that apart from appointing an executor who will have the right to dispose of the corpse and from legislation conferring a statutory right to donate body parts for research or transplant purposes, a person has no legal right to dictate what will happen to his or her remains after death. Dr Conway opines that upholding burial directions would respect the autonomous choice of the individual by ensuring that the deceased's remains are dealt with according to his or her wishes. Dr Conway notes that there have been several instances of courts referring to the wishes of the deceased: Grandison v Nembhard [1989] 4 BMLR 140; Saleh v Reichert (1993) 104 DLR (4th) 384, but observes that these will only be upheld where they are consistent with the established legal framework for resolving burial disputes and with the intentions of the person entitled to determine the form of burial. In Ugle v Bowra & O'Dea [2007] WASC 82, McKechnie J said that the views of the deceased, while not decisive, should nevertheless be given considerable weight.
[18] Spratt v Hayden [2010] WASC 340 [16].

The funeral arrangements proposed by the parties

The applicant proposes that her mother's remains be cremated and her ashes be sent to England to be placed with the remains of her own mother and other relatives, at a family plot at the Yardley Cemetery in Birmingham, England. In her written submissions sent to the court on 18 January 2021, she indicated that she would agree to her mother's body being buried in the family plot at the Yardley Cemetery. It is clear, however, that such a proposal during a time where COVID‑19 restrictions are in place would render the making of such an arrangement impractical.
All of the four respondents, together with their brother Garry, are of the opinion that their mother's remains should be buried in a plot arranged by Fiona in Fremantle Cemetery. It is their view that the deceased loved Fremantle, as it was the port in which she landed upon arrival in Western Australia in 1971, and she regularly visited. It is also their view that their mother should be buried in a place where each of the seven siblings, and 20 grandchildren who live in Western Australia, can visit to pay their respects.
In October 2020, when the coroner was considering who to release the deceased body to, the respondents lawyer informed the Principal Registrar of the State Coroner that he had provided a written proposal to the applicant, which proposed:[19]
a.all parties agree for the deceased's body to be released to Gift of Grace Funerals in Fremantle;
b.on a day to be agreed (once the Coroner indicated the deceased's body could be released following the receipt of the hair analysis results), Ms Alana Smith conduct her own service at the Fremantle Chapel with Gift of Grace Funerals at a cost to her of approximately $235.00 for the service plus the cost of her own celebrant; and
c.following that service on the same day, his clients would conduct their own service, and then lay the deceased to rest in the burial grounds.
[19] Affidavit of Fiona Beverly Smith affirmed 23 December 2020, attachment FBS-5 page 43.
This offer was not responded to by the applicant, and she did not consult any of her siblings before making this application. The applicant's legal representative did, however, make submissions on her behalf to the State Coroner before the body was released to Fiona. The applicant's submissions to the State Coroner were that the deceased's body should not be released, because she wished to seek advice as to whether further examinations or tests could or should be conducted.[20]
[20] Smith v State Coroner [2020] WASC 472 [18(7)], [18(15)].

The evidence

The matters about the deceased that are not in dispute

The deceased died without a will.
The deceased was born on 23 September 1938, in England, and died on 5 September 2020. When she died she was 82 years old. She came to Western Australia in 1971 from England with her husband. Although the deceased had the financial means to do so, she did not return to England at any time after 1971.
The deceased had eight children, who all survive her. Seven of her children live in Western Australia and one child, Kathleen, lives in Queensland. Four of her children are respondents to the application (Fiona, Lance, Gregg and Glenn). Of the other three children, two have not made their views of this application known to the court, and the other, Garry John Smith, caused to be filed an affidavit on 21 December 2020, in which he deposed that he opposed the applicant's application.

The relevant wishes of the deceased as expressed to her children during her lifetime

It is the applicant's evidence that:[21]
(a)she assisted her mother to renew her British passport in 1997, 2007 and in 2017;
(b)her mother told her in 1997, 2005, 2007, 2010, 2014 and 2017 that she wanted to return to or move back to England;
(c)when the deceased's mother (the applicant's grandmother) died in 1992 (in England), the deceased told the applicant that her mother would be buried in the family burial plot with the remains of other family members in Birmingham, England;[22] and
(d)her mother told her in 2010, 2014 and 2017 that she wanted to go back to England whether in this life or in the afterlife. In 2017, her mother said she did not wish to be buried as she did not want the worms eating her, and that she wanted to go back to the family burial plot in Birmingham, England.
[21] As recounted by her lawyer, Jeremy Thomas London in his affidavit affirmed 13 January 2021 [14] ‑ [31].
[22] Which is said to be plot number 69176, Yardley Cemetery, Birmingham, England; affidavit of Jeremy Thomas London affirmed 13 January 2021 [16].
It is Fiona's evidence that:[23]
(a)her mother lived with her for many years, and she was her mother's carer for about one and a half years prior to her mother's death;
(b)her mother had told her on more than one occasion that she wanted (her remains) to be buried and she did not want to be burnt. In particular, she often made this comment when watching police shows that dealt with death;
(c)her mother was Christian and did not believe in cremation; and
(d)her mother did, at one point in time, express a desire to go to the United Kingdom for a holiday, but it was for never more than a holiday.
[23] Affidavit of Fiona Beverley Smith affirmed on 23 December 2020 [4] ‑ [21].
It is Glenn's evidence that during conversations he had with his mother over the years she had made it clear to him that her view was that cremation was against her religious beliefs.[24]
[24] Affidavit of Glenn Earle Smith sworn 23 December 2020 [6].
It is Gregg's evidence that if his mother's remains were to be cremated and her ashes return to England this would not be what his mother wanted because he recalled her saying to him that, 'I don't want to be burned', and she often told him how much she loved Australia, and that she did not want to go back to England. In particular, he recalls her saying words to him to the effect of, 'I could never live in England again, I couldn't handle the cold weather now that I've been here so long'. He also recalls that his mother said to him that she wanted go back to England for a short holiday, but he understood that she never got around to doing so.[25]
[25] Affidavit of Gregg Steven Smith sworn 23 December 2020 [9] ‑ [14].
It is Lance's evidence that he recalls that his mother said to him that she wanted to be buried, not cremated, and that she had never told him that she wanted to go back to England.[26]
[26] Affidavit of the Lance Bradford Smith sworn 22 December 2020 [10] ‑ [12].
It is Garry's evidence that throughout the years he had known his mother she had expressed a wish not to be cremated, that she regarded being burnt as an insult, and that she wanted a burial site so that her children have a resting place to visit and lay flowers.[27] He also states that it is the intention of the majority of the family, including himself, to have a burial in Fremantle Cemetery.

Other evidence of the deceased wishes

[27] Affidavit Gary John Smith sworn 21 December 2020 [2] ‑ [4].

In guardianship and administration proceedings in the State Administrative Tribunal in 2019, when being questioned by a lawyer, the deceased said she thought she should leave the country, take all her money with her, and go back to England. However, when the transcript of the exchange is read in context, it appears that the deceased made this comment in response to questions about whether her finances were being properly managed.[28]
[28] Affidavit of Alana Smith sworn 13 December 2020 pages 42 ‑ 43.

Relevant factors

Is there a party who has the highest ranking privilege to take out administration of the deceased estate?

It is common ground that the deceased died intestate.
Pursuant to item 5 of the table in s 14 of the Administration Act 1903 (WA), each of the parties to the application, as children of the deceased, have an equal right to apply for administration of the estate, pursuant to s 25(1) of the Administration Act.
Pursuant to s 37(5) of the Coroners Act, the senior next of kin is the person who is entitled to take control of the deceased's body for the purposes of burial. In the post-mortem proceedings, it was not in dispute that Fiona was the senior next of kin of the deceased.[29]
[29] Smith v State Coroner of Western Australia [2020] WASC 355.
However, in these proceedings, given the acrimony between Fiona and the applicant, if the applicant is unsuccessful, the respondents agree that an order should be made by the court that Glenn should have the conduct of the funeral arrangements, as it has been agreed by five of the siblings that Glenn, together with Fiona, should be granted letters of administration of the estate of the deceased.
However, as at the date of hearing of this application, no application by Fiona and Glenn for administration of the deceased's estate has been filed.
Consequently, this factor is neutral.

Wishes of the deceased

In this matter, all of the parties argue that the views of the deceased, as to whether she should be buried or cremated, should be given considerable weight. The difficulty is that the evidence before the court discloses that the deceased appears to have expressed an entirely different view of her wishes and beliefs to the applicant than she did from time to time to five of her other children.
Clearly, the applicant's recollection of what her mother wishes were, about where she wanted her remains to rest, and whether she wished to be buried or cremated, is contradicted strongly by the evidence of five of her siblings.
In matters involving their beliefs, sometimes people make statements to one person to indicate a particular view on a particular subject, and at other times make statements to another person or persons, on the same subject matter, that are entirely contradictory to the statements made to the first person. Perhaps this has occurred in this matter.
Unfortunately, the deceased did not reduce her wishes to writing. Consequently, in light of the conflicting evidence, the court is unable to conclusively determine what her wishes were at the time she died. Given that it appears the deceased had the means to visit England during her lifetime, but chose not to, it may be unlikely that, by the time she died, it was her wish that her remains be returned to England.
In circumstances where the majority of the deceased children say that she had, on a number of occasions, expressed a fervent wish not to be cremated but to be buried in a place where her children can visit, and that she chose during her lifetime not to return to England after coming to live in Western Australia in 1971, the weight of this evidence could be regarded as more persuasive than the weight of the applicant's evidence.
However, I do not find this factor to be determinative of this application on its own.

Other evidence which favours a burial of the deceased's remains in Fremantle

The respondents in their affidavit material, and Garry in his affidavit, together make the point that the deceased has 20 grandchildren in Western Australia, and it is the view of the respondents who have children that they wish to visit their mother's final resting place in Fremantle together with their children (the deceased's grandchildren).
When this evidence is considered, together with the weight of the respondents' and Garry's evidence about their mother's wishes regarding the disposal of her remains, it is a factor that weighs in favour of the burial of the deceased in Western Australia.

Practicality of disposal of the deceased's body without delay

Unfortunately, a substantial and unacceptable delay has occurred in disposing of the deceased's body with all the proper respect and decency.
On three occasions, the applicant has sought to adjourn her application for injunctive relief. The first application was successful. It appears that her medical conditions have prohibited her from pursuing this application in the manner she desires. Whilst it is unfortunate for the applicant, I am not satisfied that, prior to 3 January 2021, she did not have sufficient time or assistance to prepare her case to support her application.
The fact that the applicant has multiple medical issues and disabilities makes it very difficult for the court to have any confidence that she is fit to attend to the funeral arrangements of her mother, in circumstances where there is clear acrimony between her and a number of her siblings. In any event, it is clear that she does not regard the laying to rest of her mother to be a matter that should be attended to with reasonable urgency.
Consequently, I am not satisfied that the applicant is in a position to attend to the funeral of her mother without unreasonable delay.
It is clear that the respondents have been ready and able to attend to the deceased's funeral since her death on 5 September 2020. I am also satisfied that the respondents are able to attend to the funeral without delay.
I am also satisfied that the respondents have put forward a proper and well‑considered proposal to the applicant (being the proposal that was put to her in late October 2020) that provides all of the children of the deceased, and her grandchildren who are located in Western Australia, with an opportunity to commemorate the life of the deceased in their own way, prior to laying her remains to rest, and that that proposal provides for the applicant and her siblings to separately pay their proper respects to their mother.
In her written submissions provided in response to the respondents' written submissions, the applicant raises for the first time an allegation against the fourth respondent, Glenn, which relates to his relationship with his mother. I have not had regard to this late allegation.
During the period that the State Coroner was considering who the body of the deceased should be released to, the applicant raised many allegations involving ill-treatment and abuse of her mother. During that period of time the respondents' counsel, Mr Hetherington was acting for each of the respondents, including Glenn, wrote to the applicant on 28 October 2020, on behalf of the respondents, putting a funeral proposal to her, which made it clear that the respondents, including Glenn, that they each wished to conduct a service together with a separate service for the applicant. The applicant did not respond to this proposal by raising this allegation, or any other allegation against her siblings, except for the allegations she made against Fiona.
The lawyer who represented her at that time, Mr Pont of Cardillo Gray Partners, prepared and sent to the State Coroner a detailed lengthy written submission,[30] which included lengthy and detailed allegations made by the applicant against Fiona. In the submission prepared by Mr Pont, the applicant did not raise any allegation against Glenn or any other allegation against any of her other siblings, except the allegations she raised against Fiona.
[30] Affidavit of Alana Smith sworn 12 December 2020, pages 25 ‑ 31.

Conclusion

For these reasons, I am of the opinion that:
(a)the applicant's application to have the conduct of the funeral of her mother, and for her mother's remains to be cremated, should be dismissed;
(b)an order should be made that the body of the deceased be released to Glenn, and Glenn should have carriage of the deceased's funeral; and
(c)an order should be made that the body of the deceased be buried at Fremantle Cemetery.
In light of the acrimony between the applicant and the majority of her siblings, and because of the effect of the family violence restraining order prohibiting the applicant from having contact with Fiona, I am of the view that arrangements should be made by Glenn to enable the applicant to participate in a separate funeral service, prior to the burial of the body of the deceased.
For this reason, an order should also be made that Glenn take reasonable steps to ensure that the applicant can participate in her own service, separate from that of the respondents.
As to the costs of these proceedings, I am of the opinion that costs should follow the event, as there is no reason why this usual rule as to costs should be departed from.
Consequently, I am of the opinion that an order should be made that the applicant pay the respondents' costs of these proceedings, including reserved costs, to be taxed, if not agreed.
For these reasons I will make the orders sought by the respondents that are attached to the respondents' written submissions, dated 14 January 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Smith
20 JANUARY 2021