Jeffrey James Pauling and Jacqueline Pauling v Maria Rose Williams
[2000] NZCA 159
•20 July 2000 1 8 August 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA69/00 |
| BETWEEN | JEFFREY JAMES PAULING AND JACQUELINE PAULING |
| Appellants |
| AND | MARIA ROSE WILLIAMS |
| First Respondent |
| AND | THE MINISTER OF HEALTH |
| Second Respondent |
| Hearing: | 20 July 2000 | |
| Coram: | Keith J Doogue J Fisher J | |
| Appearances: | J L Williams and D Brown for the Appellants | |
Judgment: Reasons for Judgment: | 20 July 2000 1 8 August 2000 | |
| REASONS FOR THE JUDGMENT OF THE COURT | ||
At the hearing on 20 July 2000 the Court, with the consent of counsel, indicated that the appeal against the whole of the High Court judgment which answered two questions was to be allowed and that that judgment was to be set aside. It was understood that the parties would be free to argue afresh the issues ruled on in the High Court. A brief written judgment to that effect was issued. The judgment also stated that there was no order as to costs.
Counsel for both respondents subsequently filed a memorandum indicating their expectation that the Court would provide a brief written judgment that set out:
1.the reasons why the Court considered it appropriate that the High Court judgment be set aside;
2. that a cross-appeal was accepted from the first respondent;
3.that the appeal and cross-appeal were both allowed on the following basis:
(i)the factual basis for the High Court Judge’s finding on Question 1 could not be substantiated;
(ii)that otherwise the reasoning of the High Court Judge was not criticised or overturned; and
(iii)that the issues giving rise to Questions 1 and 2 remain live for determination in the substantive proceedings.
Counsel suggested that a further written judgment clarifying this position would assist the parties and the High Court in progressing these proceedings.
Counsel for the appellant declined the opportunity to sign the memorandum and has not responded to an invitation from the Court to comment in writing on the respondents’ memorandum.
In the circumstances, there does appear to be value in the Court responding to the request by stating in writing the reasons discussed in the hearing. We accordingly provide those reasons. It is unnecessary to recall the earlier judgment since the final order on the appeal remains unchanged.
The proceedings have their beginning in a tragic car crash on 29 July 1995 in which a father, Zyon Robert David Pauling, and his 27 day old daughter, Tori Rose Williams, died. Maria Rose Williams, the mother of Tori, was injured in the crash. She is the first defendant in these proceedings. The plaintiffs, Jeffrey James Pauling and Jacqueline Pauling, are the parents of Zyon.
The Paulings purchased the exclusive right of burial in a plot at the Riverside Park Lawn Cemetery from the Masterton Borough Council and Zyon and Tori were buried in the same coffin in the plot five days after the crash.
In December 1996, Maria Williams approached Choice Health (Wairarapa) seeking guidance about the process for applying for a disinterment licence. In March the following year she applied for a licence to the Ministry of Health. On 10 July the Minister, through a duly authorised delegate, issued a licence for this purpose:
Lawful Disposal of T.R. Williams and Re-Burial in the same plot of Z.R.D. Pauling
The authority granted by the licence was subject to certain conditions including the requirement that a health protection officer supervise the process and act as an intermediary between Maria Williams and the Paulings and that Maria Williams obtain any necessary approval for the disinterment from the management of the cemetery. In addition
The remains of Z R D Pauling be subjected to the minimum possible disruption that is compatible with expeditious and dignified reburial.
Mr and Mrs J Pauling of Masterton be given at least seven days prior notice of the time and date of the disinterment.
The Licensee comply with, or at least not hinder, any reasonable request that Mr and Mrs J Pauling might make with respect to the remains of their son Z R D Pauling.
The Paulings had purchased the exclusive right of burial under s10 of the Burial and Cremation Act 1964 and Maria Williams had obtained her licence under s51. Section 10 authorises local authorities to sell either in perpetuity or for a limited period the exclusive right of burial in any part of a cemetery, and also the right of constructing any vault or place of burial with the exclusive right of burial in it. We do not need to go into the further details of the provision. Section 51 makes it unlawful to remove from its burial place any body, or the remains of any body, buried in any cemetery, Maori burial ground, or other burial ground or place of burial, without a licence from the Minister of Health, and except in accordance with such conditions as the Minister prescribes. Again we need not mention the details of the power and licence.
The Paulings, in their amended statement of claim, contend (1) that the Minister, through the delegate, in issuing the licence breached natural justice in various respects and that the license should as a result be set aside; and (2) that even if the licence were valid (which is denied) it cannot legitimise what would otherwise be an unlawful trespass on the plot and that an injunction be granted against Maria Williams to prevent her from trespassing on the plot where Zyon and Tori are buried.
Counsel agreed to two questions being answered before trial:
1. WHERE a disinterment licence has been granted under s51 of the Burial and Cremation Act 1964 (the Act) to disinter A and B (who are buried together) and to then reinter A, and an exclusive burial right has been granted to the parents of A in accordance with s10 of the Act in relation to the burial plot;
1.1 Do the rights granted to the parents of A under s10 of the Act include the right to prevent A and B’s grave from being disturbed (which would be necessary on any disinterment of B)?
1.2 If the answer to question 1.1 is yes, can the rights conferred on the 1st Defendant by the disinterment licence granted under s51 of the Act legitimise the disinterment of A and B or otherwise debar the parents of A from injunctive relief?
Heron J answered the first question Yes. He reached that conclusion on the basis of the law of trespass and by reference to the statutory rights under s10:
I frankly see no difficulty in holding that such a licence, namely the exclusive right of burial, is such that would be protected if that exclusive right was in some way interfered with in a manner not otherwise authorised by law. As with Read v Madon [1989] 2 All ER 431 it does not matter as to whether it is an interest in land, although I think it essentially is such an interest. The important thing is that the words of the statute plainly give exclusivity and as such, that must be able to be protected, as with any other property right, by remedy for the breach of the statutory right, such as an action akin to an action in trespass and available against third parties.
As we noted in the course of the argument, the implication at the end of the first sentence of that paragraph that someone would be able to act, notwithstanding the exclusive burial licence, if the action was “authorised by law” is difficult to reconcile with the absolute character of the positive answer to the first question. That absolute character of the Paulings’ right under the licence is also difficult to reconcile with the answer to the second question which favours Maria Williams:
The second question must be answered this way. The licence, assumed to be valid for the purpose of this preliminary proceeding, will legitimise the disinterment of the two people buried and as it stands would debar the plaintiffs from injunctive relief.
The Paulings’ appeal is in substance against that ruling.
In addition to those difficulties arising from the form of the questions and the answers to them are two other matters arising outside and anterior to the questions. One has been noted – the challenge to the validity of the licence. If that challenge succeeds the answers given in the High Court to the two questions would have had no practical value. A further matter, emphasised from the bench during the hearing, concerns the legal rights and duties of Maria Williams in respect of the burial and the remains of her child. It would appear that that matter had not previously been taken into consideration.
In all, we considered that the proceedings had gone down a false trail. While the parties should be free to argue the questions which had been answered in the High Court, they should as well take account of the other matters raised in the course of the hearing. We also expressed the hope that this very distressing matter might be able to be resolved without complex litigation.
On point 2 in counsel’s memorandum (para [2] above), we recall that counsel agreed at the hearing that, since the Paulings’ appeal was not limited to the second question of law, the notice of appeal was broad enough to cover the ruling on the first question as well (even although the answer to that question favoured the Paulings). Allowing the appeal would accordingly lead to both answers being set aside. As also discussed at the hearing, an alternative path to the same result would have been to grant leave to the first respondent to cross-appeal against the answer to the first question, a course to which counsel for the appellant was responsibly willing to consent. As the earlier judgment indicates, we took the former path with the consequence, to repeat, that both answers were set aside with the parties being free to argue afresh the issues ruled on in the High Court.
The appeal was accordingly allowed on the terms indicated in para [1] above.
Solicitors:
Gawith & Co, Masterton for the Appellants
Dyer Whitechurch & Bhanabhai, Auckland for the First Respondent
Crown Law Office, Wellington for the Second Respondent
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