State Trustees Limited v Wu

[2022] VSC 756

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI  2022 04354

STATE TRUSTEES LIMITED (ACN 064 593 148)	First Plaintiff
THE ROYAL HOSPITAL MELBOURNE (ABN 73 802 706 972)	Second Plaintiff
v
DR GANG WU	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2022
DATE OF JUDGMENT:	28 October 2022
CASE MAY BE CITED AS:	State Trustees Limited v Wu
MEDIUM NEUTRAL CITATION:	[2022] VSC 756

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ADMINISTRATION AND PROBATE – Application for the disposal of the body of a deceased person – No known will – Next of kin unwilling to act – No other known family member – State Trustees Limited authorised to make arrangements for the disposition of the body.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr A P Dickenson	State Trustees Legal Branch
For the Second Plaintiff	No appearance
For the Defendant	No appearance

HIS HONOUR:

Introduction

1. State Trustees Limited (ACN 064 593 148) and The Royal Melbourne Hospital (ABN 73 802 706 972) apply by way of originating motion and summons on originating motion for orders in relation to the body of the late Ms Huihua Zhu (‘the deceased’) formerly of 63 Collier Crescent, Brunswick West, who passed away at the Royal Melbourne Hospital (‘hospital’) on 23 July 2022, aged 68 years, from natural causes.

1. Her son, Dr Gang (Henry) Wu, is her only known surviving next of kin.  Despite the deceased having died over three months ago, her body remains in the hospital’s mortuary facility.  This is because Dr Wu has not given any instructions as to how the deceased’s body is to be disposed of and by whom.  The application is brought as a course of last resort by State Trustees and the hospital.

1. State Trustees is a State owned company incorporated by legislation to provide services to members of the public and meet community service obligations in accordance with the State Trustees (State Owned Company) Act1994 (Vic). State Trustees and the hospital rely on the affidavits of David Andrew and Kiren Khera filed 27 October 2022.

Evidence

1. Mr Andrew’s affidavit exhibits a report from Dr Giles Kelsey, the Director of Pathology at the hospital.  He explains that the hospital is not designed to have deceased persons remain in its mortuary facility for long periods of time.  The temporary storage of bodies in the hospital mortuary is usually no more than seven days but is very exceptionally up to 14 days.

1. In the present case, the deceased’s body has been in the hospital mortuary for over three months.  Dr Kelsey states that the extent of decomposition of the body of the deceased is now equivalent to the level seen in a body at room temperature for 16 days.  The body of the deceased is at an advanced state of decomposition.

1. Dr Kelsey observes that hospital staff and the funeral director should not be expected to handle the bodies of deceased persons in an advanced stage of decomposition unless it is unavoidable.

Relevant law

1. The law relating to the disposition of the bodies of deceased persons has been well established for a very long time.

1. In Re Ghosh, Gorton J said that the executors of the estate of a deceased person are responsible for disposing of the deceased’s body.  Where no executors have been appointed and it is possible to identify a person with the best legal claim to be appointed administrator, the Court's role will ordinarily be to identify that person and direct that that person has the power and responsibility to dispose of the body. The rule is not absolute.[1]

   [1][2022] VSC 410, [14].

1. The law also requires that the disposition of a body must be undertaken in a caring and respectful manner, mindful of religious and cultural issues.[2]

   [2]Keller v Keller (2007) 15 VR 667.

1. In the present case, so far as is known, the deceased did not leave a will and the responsibility to make arrangements to dispose of her body falls to her son, Dr Wu.

Dr Wu’s position

1. There have been many attempts over three months by officers of State Trustees and the hospital to encourage Dr Wu to perform his legal duty as personal representative and take steps to arrange for the disposition of the deceased's body. These attempts are detailed in the affidavits of Mr Andrew and Ms Khera. No useful purpose would be served by listing all of the correspondence and conversations here. 

1. It is understandable that a son who was the carer for his mother would be extremely distressed by her passing and suffer much grief and sadness.  However, doing the best I can to understand the correspondence and conversations, I observe that Dr Wu signs correspondence and conducts himself as if his mother were still alive.

1. Dr Wu appears to believe that the deceased’s body should continue to receive hospital treatment.  He refers to his interest in neurology, artificial intelligence and future advanced technologies for her recovery.  He states that clandestine and imposing referrals by hospital staff to external agencies, including State Trustees staff are not smart options.

1. He has also asked State Trustees and hospital staff to refrain from sending him detailed emails containing personal issues, and advised that emails should be sent asking for an appointment, and call back only.  He advises that he would call and meet anyone in person where necessary.

1. In one email he advises that the deceased and he were not in need of any social function support from hospital staff or elsewhere, and that State Trustees and hospital staff should be optimistic and creative for future treatment and care.

1. Dr Wu had the opportunity of appearing before me in response to the application, but has not done so.[3]  It is clear from what has transpired today that he has had conversations with the Practice Court Coordinator and the solicitor for State Trustees.

   [3]Dr Wu appeared after the reasons for judgment were given and addressed the Court.  His reasons were unchanged.

1. On the evidence before the court, I am well satisfied that Dr Wu, as the personal representative of the deceased, is unable or unwilling to perform his duty of arranging for the disposition of the deceased's body.  He has had over three months to do so and has consistently declined to take any action.

Conclusion

1. In circumstances where the personal representative fails to act, the Court would ordinarily look to another family member to take charge of the disposition of the body of the deceased. In the present case, there is no other known family member, and the task inevitably falls to State Trustees to assume the responsibility to dispose of the body of the deceased.[4]  Such decisions should be made swiftly on the facts before the Court.[5]

   [4]See In the Estate of Carey (Deceased) [2011] VSC 682; Keller v Keller [2007] 15 VR 667.

   [5]See Britt v Office of the State Coroner [2022] WASCA 75, [64].

1. In the present case, the Court must make orders and will authorise State Trustees to make the necessary arrangements for the disposition of the body of the deceased.