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

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.

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.

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

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.

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.

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…

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 State Trustees Limited v Wu

Details

AGLC: State Trustees Limited v Wu [2022] VSC 756
Case: [2022] VSC 756
Decision Date: 28 October 2022

CaseChat Overview and Summary

In the matter of State Trustees Limited versus Wu, the dispute involved the administration of the estate of a deceased person who died without leaving a will. The State Trustees Limited sought authorisation to make arrangements for the disposition of the deceased's body, as there were no known family members willing to do so. The case was heard in the Supreme Court of New South Wales.

The central legal issues the court had to resolve were whether State Trustees Limited was entitled to act on behalf of the deceased in the absence of a known will and next of kin, and whether there were any other family members who might have a claim or interest in the body. Additionally, the court needed to consider the statutory framework governing the disposition of a deceased person's body when no will exists and no relatives are available to make the necessary arrangements.

The court found that there was no evidence of any family members willing or able to take responsibility for the deceased's body. Given the statutory provisions under the Administration and Probate Act 1958 (Vic), the court ruled that State Trustees Limited was duly authorised to make the necessary arrangements for the deceased's burial. The court concluded that in the absence of a will and known relatives, the State Trustees Limited were the appropriate party to act in the interests of the deceased. The final orders authorised State Trustees Limited to proceed with the disposition of the deceased's body as per the court's directions.

Orders