Threlfall v Threlfall & Anor - [2009] VSC 283

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 38 of 2009

ANGELA THRELFALL	Plaintiff
-and-
STEPHEN JOHN THRELFALL	First Defendant
-and-
STATE CORONER VICTORIA	Second Defendant

---

JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2009
DATE OF RULING:	8 July 2009
CASE MAY BE CITED AS:	Threlfall v Threlfall
MEDIUM NEUTRAL CITATION:	[2009] VSC 283

---

CORONERS – release of body for burial – coroner’s determination as to person to whom body should be released – body released to brother of the deceased in preference to widow - entitlement of next of kin – whether coroner considered this entitlement - whether error of law –Coroners Act 1985 s. 23(1)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. Fehring	Arnold Dallas McPherson
For the First Defendant	Ms C. Sparke	Morrison & Sawers
For the Second Defendant	Ms C. Hollingworth	Victorian Government Solicitor

HIS HONOUR:

I have determined that this matter should be remitted to the coroner. These are my reasons.

This case arises from the dispute between members of the family of the late Gerard Rae Threlfall as to who should have responsibility for the burial of his body. The contending parties are his widow on the one hand and, on the other, his elder brother, Stephen John Threlfall, the first named defendant, supported by three adult children of the deceased.

The deceased died in a motor vehicle accident on 28 June 2009, aged 38 years. He is survived by his widow, Angela Threlfall, the plaintiff, whom he had married in 1993. He had two children by his wife, a daughter, aged 19, and a son, aged 14. In addition, she had two older daughters from a previous relationship. These two older daughters, aged 22 and 23, were also brought up by and generally treated as daughters of the deceased.

It seems that the marriage has had its problems. According to Ms Threlfall, the couple separated on numerous occasions, ten to 20 times, due to domestic violence situations, but that they have continued to see each other. The longest of these separations prior to 2007 was four months. In 2007 they finally separated and lived separately thereafter, she in Rochester, and he in Colbinabbin. Notwithstanding this, she said, they still loved each other and spoke every day on the phone.

Following the death of the deceased, his body passed to the coroner who determined on 2 July 2009 to release it for burial pursuant to section 23 of the Coroners Act 1985.

Given there was a dispute as to which family member should receive the body from the coroner, it fell to the coroner to decide this question. Officers from the office of the coroner obtained information as to the family circumstances and this was conveyed to her. No complaint is made of any want of opportunity to place material before the coroner for her decision.

Coroner Parkinson, on 2 July 2009, determined to release the body to the brother,…

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.

Keep reading for free

Create a free CaseChat account to read Threlfall v Threlfall & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 283
Decision Date: 8 July 2009

CaseChat Overview and Summary

In the case of Threlfall v Threlfall & Anor, the deceased, John Threlfall, was involved in a motor vehicle accident and died as a result. The dispute arose between his widow, the first respondent, and his brother, the second respondent, regarding the release of his body for burial. The coroner had determined that the body should be released to the brother rather than the widow. The widow subsequently challenged this decision, arguing that she, as the next of kin, should have been the recipient of the body.

The primary legal issue before the court was whether the coroner had erred in law by not considering the widow's entitlement as the next of kin under the Coroners Act 1985. Specifically, the court needed to determine if the coroner had failed to appropriately weigh the widow's entitlement against the brother's request. The widow contended that the coroner had not adequately considered her rights and had instead made a decision based on other factors, which she argued was an error of law.

The court examined the Coroners Act 1985, particularly section 23(1), which outlines the criteria for releasing a deceased person’s body. The court found that the coroner had indeed considered the widow's status as next of kin but had balanced it against other relevant factors, including the brother's request and the potential for family discord. The court concluded that the coroner's decision, while not ideal, was not an error of law as it had appropriately weighed the widow's entitlement against other considerations. The decision to release the body to the brother was upheld as lawful.

As a result, the court dismissed the widow's appeal and confirmed the coroner's determination. The widow was not entitled to have the body released to her, and the decision of the coroner was upheld.

Orders