Threlfall v Threlfall & Anor
[2009] VSC 283
•8 July 2009
| 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 |
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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 | |
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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)
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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, Stephen, giving her reasons for this decision. Ms Threlfall challenges this decision for error of law and for this purpose she has commenced this proceeding.
I approach the matter as directed by the Court of Appeal in Gilliott v Woodlands.[1] It is not for me to determine the merits of the coroner's decision. If there is an error of law it must be remitted for determination in accordance with law.
[1][2006] VSCA 46
At common law, the right to receive a body for burial lies with the executor of the will of the deceased or, if there be no will, by those in order of precedence entitled to letters of administration. This, however, is not an inflexible rule so that this order of precedence will yield to the circumstances of the case.[2]
[2]Leeburn v Derndorfer (2004) 14 VR 100 at 104, Dow v Hoskins [2003] VSC 206 at 37, Jones v Dodd (1999) 73 SASR 328, Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693-4 and Burnes v Richards (1993) 7 BPR 15104.
This said, the primacy of the common law rule of precedence must be emphasised. Questions such as this must be determined quickly and at a time when the bereaved family members are under considerable stress. There may be limited capacity in the court or the coroner, to investigate and to make a determination of complex emotional, social, and perhaps cultural questions.
In Meier v Bell[3], it appears to be suggested that the common law precedence should be disturbed only where there is a contest between claimants of equal degree. I am not at all confident that the rule is as inflexible as this because the circumstances of the case may direct a different result.
[3]Supreme Court of Appeal, Ashley J, No. 4518, 3 March 1997, unreported.
The reason provided by the coroner in this case suggests that she approached the matter very much as an exercise of discretion in which the degree of kinship was but one indicator. Having listed the contentions of the competing paries, she said this;
The weight of the evidence satisfies me that Stephen John Threlfall, brother of the deceased, was the most senior relationship save for the children of the deceased. I am satisfied that the information he has provided establishes that the likelihood is that the deceased's wishes would be best met by arrangements for a funeral made by his brother. Whilst it is apparent that there had been a long complicated relationship between Mr Threlfall and his estranged wife, the period of separation is significant and had moved into a more permanent status. There is no doubt that all of the parties who made submissions are emotionally committed to the deceased.
It is not altogether clear what was intended by the expression "most senior relationship". It cannot be a reference to the common law priorities because Ms Threlfall ranks first under that principle. I infer that the coroner intended to say that the brother was the person with the greatest claim to perform the task of burial. That may be correct in a broad sense, but the correct question was whether this was sufficient to disturb the common law rule of precedence.
Late in her reasons the coroner said this:
In exercising my implied powers under section 23(1) and having reviewed all of the submissions addressing the competing claims, I am satisfied that Stephen John Threlfall, brother of Gerard Threlfall, has the highest claim in relation to Senior Next of Kin status and consequently to arrange for the disposition of Gerard's remains.
The expression "senior next of kin" is a defined term in the Act albeit in a different context. If the coroner was using the expression as defined, she clearly fell into error. The senior next of kin, under section 29, would again be the widow, Ms Threlfall. The brother, Stephen, ranks behind the adult children.
I wish to underline, if I have not already made it clear, that the proper approach to a decision under section 23 in a case such as the present, is that the coroner should first determine who has priority in terms of the entitlement to a grant of letters of administration of the estate of the intestate deceased. The body should be released to that person unless it be demonstrated that this is not an appropriate course. The decision is one which must be made in a pragmatic way, having regard to the competing relationships of the claimants and to any social, cultural and practical considerations and, further, having regard to the requirement that the body be buried or otherwise dealt with in accordance with law without unnecessary delay.
Accordingly, accepting as I do, that the decision of the coroner is amenable to being set aside for error of law, I am satisfied that such error has been demonstrated. The determination of the second named defendant of 2 July 2009 will be set aside and the matter remitted to the coroner to be determined in accordance with law.
There was some discussion as to whether is was appropriate that the matter be remitted to a coroner other than coroner Parkinson. The consensus was that it would be in the interests of the parties that the matter be looked at afresh upon material including material which was not before the coroner on 2 July and in circumstances where the parties might have confidence that this was to be a new decision. I have concurred in this and will direct that the matter be considered by another coroner, if this be possible. I do not intend by this to be taken to be in any way critical of the careful and sympathetic way in which the staff of the State Coroner investigated and coroner Parkinson resolved this difficult question or to be suggesting that the determination which she made might not be open upon the reconsideration of the matter which I have remitted.
The orders will be as follows:
a) That the decision of the State Coroner made 2 July 2009 be set aside.
b) The question as to the disposal of the body of the late Gerard Threlfall pursuant to section 23(1) of the Act be remitted to the State Coroner for determination in accordance with law by a coroner other than by Coroner Parkinson.
c) In making the determination, the coroner have regard to:
a. The material provided to the coroner prior to the decision of 2 July 2009;
b. The material provided at the hearing of this application; and
c. Any further material filed by the parties by 4.00pm on 10 July 2009.
d) The first defendant on 24 hours’ notice to the defendants in writing have liberty to apply for an indemnity certificate pursuant to section 4(1) of the Appeal Costs Act 1998.
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