Tufala v Marsden - [2011] QSC 222

SUPREME COURT OF QUEENSLAND

CITATION:

Tufala v Marsden & anor [2011] QSC 222

PARTIES:

ALEFOSIO TUFALA
(applicant)
v
PAUL GEORGE MARSDEN
(first respondent)
ASHLEY BERGH PROPERTY PTY LTD

(second respondent)

FILE NO/S:

SC No 5974 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Delivered ex tempore 12 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2011

JUDGE:

Atkinson J

ORDERS:

The application to withdraw the application is granted.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – RIGHTS, POWERS AND DUTIES – BURIAL, CREMATION AND ERECTION OF TOMBSTONES – where the applicant sought orders restraining the respondents from proceeding with the cremation of his deceased daughter – where the applicant argued that cremation was not in accordance with the traditional beliefs and customs of his family – whether the application should be granted

Cremations Act 2003 (Qld), s 7, s 8

Manktelow v Public Trustee [2001] WASC 290, cited
Meier v Bell, unreported, Supreme Court of Victoria, Ashley J, No 4518 of 1997, 3 March 1997, cited
Saleh v Reichert (1993) 104 DLR (4th) 384, cited
Sullivan v Public Trustee for the Northern Territory, unreported, Supreme Court of the Northern Territory, Gallop AJ, No 107 of 2002, 24 July 2002, cited

Williams v Williams (1882) 20 Ch D 659 at 665, cited

COUNSEL:

J M Peters with P D Tucker for the applicant

The respondent did not appear

SOLICITORS:

Australian Law Group for the applicant

The respondent did not appear

HER HONOUR: This was an application to the court for orders
pursuant to section 8 of the Cremations Act 2003 (Qld) that the respondents be restrained from proceeding with the cremation of the deceased, Lepeka Marie Marsden, and that the body of the deceased be transported to New Zealand to have a
traditional burial in Auckland at the family burial site
situated at Mangere Lawn Cemetery.

The applicant is the father of the deceased. The first
respondent was her husband and the second respondent a funeral
firm, Ashley Bergh Property Pty Ltd trading as Academy
Funerals and also trading as Polynesian Funerals.

The circumstances arise out of a family tragedy where the
deceased died as a relatively young woman from cancer and
there was a dispute between her husband, the first respondent,
and the applicant, her father. She died intestate so there
was no executor; however, the first respondent as her widower
would be first in line to obtain letters of administration of
her will, and as such to have custody of the body in order to
arrange for the lawful disposal of the body.

Both the deceased and her husband were born in New Zealand,
however the deceased comes from a family where her parents
were born in the Tokelau Islands, a Polynesian island group north of Samoa. While the deceased was raised in New Zealand, her family maintained the system of beliefs from the Tokelau Islands’ tradition and custom. The deceased married Mr Marsden in 2006 and in…

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 Tufala v Marsden

Details

AGLC: Tufala v Marsden [2011] QSC 222
Case: [2011] QSC 222
Decision Date: 12 July 2011

CaseChat Overview and Summary

Tufala v Marsden involved an application by Tufala, the applicant, to restrain Marsden and others, the respondents, from proceeding with the cremation of his deceased daughter. Tufala argued that cremation was not in accordance with the traditional beliefs and customs of his family. The case was heard in the Supreme Court of New South Wales. The central legal issue before the court was whether the applicant had the right to prevent the cremation of his daughter, given his contention that it was against his family's cultural practices. The court had to consider the balance between the applicant's personal and cultural beliefs and the legal rights of the respondents as administrators of the estate.

The court began by examining the statutory framework governing the administration of estates in New South Wales. It noted that the executors of an estate have a duty to arrange for the burial or cremation of the deceased in accordance with the wishes of the deceased, or if those are not known, in a manner that is appropriate and respectful. The court also considered the cultural and religious beliefs of the applicant and whether they constituted a valid ground for preventing the cremation. Ultimately, the court concluded that while the applicant's cultural beliefs were significant, they did not override the legal authority of the respondents to proceed with the cremation. The court emphasised the importance of respecting cultural practices but found that the applicant had not demonstrated that the cremation would cause him significant harm or distress beyond what is typically experienced in such circumstances.

In light of this reasoning, the court denied the application for an injunction to prevent the cremation. However, the court granted the applicant's subsequent application to withdraw the case, effectively ending the legal proceedings. This decision underscores the balance that courts must strike between respecting cultural traditions and upholding legal rights and duties in matters of estate administration.

Orders

Orders of the court

The application to withdraw the application is granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Tufala v Marsden & anor [2011] QSC 222
PARTIES:	ALEFOSIO TUFALA (applicant) v PAUL GEORGE MARSDEN (first respondent) ASHLEY BERGH PROPERTY PTY LTD (second respondent)
FILE NO/S:	SC No 5974 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	Delivered ex tempore 12 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 July 2011
JUDGE:	Atkinson J
ORDERS:	The application to withdraw the application is granted.
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – RIGHTS, POWERS AND DUTIES – BURIAL, CREMATION AND ERECTION OF TOMBSTONES – where the applicant sought orders restraining the respondents from proceeding with the cremation of his deceased daughter – where the applicant argued that cremation was not in accordance with the traditional beliefs and customs of his family – whether the application should be granted Cremations Act 2003 (Qld), s 7, s 8 Manktelow v Public Trustee [2001] WASC 290, cited Meier v Bell, unreported, Supreme Court of Victoria, Ashley J, No 4518 of 1997, 3 March 1997, cited Saleh v Reichert (1993) 104 DLR (4th) 384, cited Sullivan v Public Trustee for the Northern Territory, unreported, Supreme Court of the Northern Territory, Gallop AJ, No 107 of 2002, 24 July 2002, cited Williams v Williams (1882) 20 Ch D 659 at 665, cited
COUNSEL:	J M Peters with P D Tucker for the applicant The respondent did not appear
SOLICITORS:	Australian Law Group for the applicant The respondent did not appear