Clark v Cottingham

[2018] NZHC 773

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-752

[2018] NZHC 773

IN THE MATTER

of the Estate of HAYDN DAVID CLARK

BETWEEN

JESSICA ROSE CLARK, for and on behalf of her father, JAMES LESLIE CLARK Applicant

AND

BRENDA ANN COTTINGHAM

Respondent

Hearing:	23 April 2018
Appearances:	K J Rowe and A J Best for the Applicant No appearance by or for the Respondent
Judgment:	24 April 2018

JUDGMENT OF WOODHOUSE J

(Without notice application for injunction)

This judgment was delivered by me on 24 April 2018 at 9:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms K J Rowe, Mr A J Best and Mr R Coltman, Duncan Cotterill, Solicitors, Auckland

CLARK v COTTINGHAM [2018] NZHC 773 [24 April 2018]

[1]                  I have just determined an oral, without notice, application for an interim order to prevent the cremation today of Haydn David Clark, and for related orders. The application was heard under real urgency because I heard it at about noon with the cremation scheduled for this afternoon.

[2]                  Haydn Clark, aged 20, and his father, James Leslie Clark, were involved in a car accident in Kopu last Thursday, 19 April. Haydn died in or soon after the accident. Haydn’s father has been admitted to Middlemore Hospital in Auckland. I was advised that he is likely to remain in hospital at least until tomorrow, but perhaps longer.

[3]                  The background facts are those provided directly to me in Court by the sister of Haydn, Jessica Rose Clark, supplemented by advice from Ms Rowe, counsel for Ms Clark. Ms Clark is the half-sister of Haydn. She is the daughter of James Leslie Clark. Jessica Clark makes this application on behalf of her father because of his incapacity in hospital. In substance, she also makes it on her own behalf as Haydn’s sister.

[4]                  Haydn’s mother is the respondent, Brenda Ann Cottingham. I understood from the advice I received that James Clark and Brenda Cottingham separated when Haydn was under the age of four. When Haydn was aged four he was placed in the care of a family friend where Haydn remained for approximately four to five years. James got full custody of Haydn when Haydn was approximately eight years old and Haydn lived with his father from then until last Thursday. I was told that the understanding of those in Court, including Jessica Clark, was that Haydn had seen very little of his mother over the last three years or so.

[5]                  I was advised that following Haydn’s death, and with his father in hospital, Ms Cottingham uplifted Haydn’s body. I was told that Ms Cottingham advised an undertaker in Waihi, or perhaps another person with relevant authority in respect of Haydn’s body, that she, Ms Cottingham, had full authority and entitlement to give directions for disposal of Haydn’s body. In consequence, a funeral service had been arranged on Ms Cottingham’s instructions, to commence in Waihi at around 2:00 pm this afternoon, to be followed by cremation of Haydn’s body. Jessica Clark’s evidence

was that her father had not been consulted, nor had she, nor had Haydn’s partner of three years, Gabrielle.

[6]                  Jessica Clark stated that her father did not want the cremation to proceed at this time. Apart from anything else, he has had no opportunity to see his son’s body. He has apparently told his daughter that what he wants, once he has seen his son’s body, is for a service to be held in the chapel at Middlemore Hospital, with appropriate arrangements for disposal of Haydn’s body to follow.

[7]                  I was told that arrangements had been made for Haydn’s body to be held in the mortuary at Middlemore Hospital if orders were made preventing the cremation this afternoon and for Haydn’s body to be uplifted and moved to Auckland.

[8]                  I was satisfied that this is a case justifying an application without notice and then justifying the making of the orders, which are recorded below. The orders have been made on the basis of the information provided to me in Court. The information has not been tested, by cross-examination or otherwise, but that was not determinative. What is determinative is, first, that I am satisfied there is a serious question to be tried. Second, it is plain that far greater harm would result if the orders were not made, and in the end it is established that the cremation in Waihi should not have proceeded, than any harm that may follow from the making of the interim orders. The interim orders are just that – they are temporary. They can be undone. The alternative to interim orders could not be undone.

[9]                  The orders, which have already been sealed for despatch to Waihi and service, were as follows:

(a)The crematorium at Pyes Pa Memorial Park Chapel in Tauranga and the deceased’s estranged mother, Brenda Ann Cottingham, are restrained from undertaking the cremation of Haydn David Clark.

(b)There shall be no cremation of Haydn David Clark pending further order of the Court.

(c)The body of Haydn David Clark may forthwith be uplifted from the Waihi RSA, or wherever else it may be, by or on behalf of the applicant, Jessica Rose Clark, and the body shall be brought to the mortuary at Middlemore Hospital, Auckland.

(d)If Brenda Ann Cottingham wishes to apply for relief in respect of these orders, or to seek orders on her own behalf, she may make application on notice (to be served at the applicant’s solicitor’s office) which notice must be filed in this court and served no later than 4:00 pm on Thursday, 26 April 2018.

(e)The matter is then to be referred to the Duty Judge or Civil List Judge for further directions.

(f)The parties bound by this order are to comply with it notwithstanding the fact that an original copy may not have been served.

[10]I make further orders as follows:

(a)The applicant may apply now for further orders in respect of the disposal of the body of Haydn David Clark with determination of any such application to depend, in part, on whether an application is made by the respondent by 26 April 2018.

(b)If the respondent files an application or opposition on or before 4:00 pm on 26 April 2018 the Registrar is to convene as soon as reasonably possible a telephone conference with the respondent or her counsel and with counsel for the applicant for directions to be made.

(c)If no steps have been taken by or for the respondent by 26 April 2018, the applicant shall by 30 April 2018 file a memorandum with proposals for final determination of this matter and the file shall be referred to the Duty Judge for directions.

[11]              The applicant’s solicitors are forthwith to send a copy of this judgment to the respondent.

Woodhouse J