Dayman v Dayman [2024] NSWSC 838

Supreme Court New South Wales

Medium Neutral Citation: Dayman v Dayman [2024] NSWSC 838 Hearing dates: 20, 21, 24 June, 1, 5 July 2024 Date of orders: 5, 10 July 2024 Decision date: 10 July 2024 Jurisdiction: Equity Before: Meek J Decision: Approval of arrangement agreed between parties in respect of separate question of the deceased's ashes. Further notations and ancillary orders made. Catchwords: SUCCESSION — Funeral arrangements and disposal of deceased's remains — Dispute between the plaintiff (an estranged daughter of the deceased) and the defendant (her mother, the deceased's long-separated wife being the nominated executrix under a distant Will) in relation to funeral arrangements and disposal of the deceased's remains by cremation after being held by the coroner — Plaintiff brought urgent application before the Court seeking, amongst other relief, release of the deceased's body for immediate cremation, in circumstances where there was little clarity as to who had control or possession of the body or its the precise location — Subsequently, the plaintiff and the Court were informed by the funeral director that the deceased's body had been cremated shortly before the plaintiff's initial approach to the Court — After initial listings, it became apparent that the plaintiff's claims could be separated between issues relating to the distribution of the deceased's ashes ("ashes issues") and other issues relating to probate and administration of the deceased's estate ("probate and other issues") — Given the need for the orderly disposal of the deceased's remains with respect and without undue delay, it was appropriate to resolve the ashes issues in the first instance as a separate question — Following discussion with the parties and funeral director, an arrangement was made by consent in relation to the ashes issues, leaving the probate and other issues to be subsequently dealt with by the Court if the plaintiff still wished to agitate them HEALTH — Burial and cremation — Sources of law — Discussion of the various provisions of legislation and the general law which bear upon burial law in NSW, including in the Coroners Act 2009 (NSW) ("Coroners Act") and the Supreme Court's inherent jurisdiction — In light of the extensive statutory provisions and general law which bear upon this area, the precise nature and extent of the authority of a person to arrange for the disposal of a deceased body, as well as any cognate issues which may arise, will necessarily be fact and issue specific — Discussion of issues that have previously arisen in caselaw CORONIAL LAW — Jurisdiction — Discussion of the coroner's role and jurisdiction in relation to reportable deaths and practice where there are disputes between interested parties as to the release and disposal of the deceased's body — Discussion of the meaning of "inquest" and "senior next of kin" as those terms are used in the Coroners Act SUCCESSION — Burial law — Discussion of the nature and purpose of the Court's inherent jurisdiction to deal with the disposal of a deceased person's remains — Discussion of main types of disputes dealt with under the jurisdiction and the Court's approach to resolving them — Discussion of circumstances in which such applications are made to the Court and the (often informal) nature of information and materials that are available to the Court to determine the matter ALTERNATIVE DISPUTE RESOLUTION — Burial law — Discussion of merits of mediation and Court explored consensual outcomes CIVIL PROCEDURE — Separate determination of questions — The imperative of the orderly disposal of the deceased's remains with respect and without undue delay justified determination of the ashes issues in the first instance as a separate question Legislation Cited: Anatomy Act 1977 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Cemeteries and Crematoria Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Coroners Act 2009 (NSW) Funeral Funds Act 1979 (NSW) Human Tissue Act 1983 (NSW) Interpretation Act 1987 (NSW) Public Health Act 2010 (NSW) Public Health Regulation 2022 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AB v CD [2007] NSWSC 1474 Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 AG v JB (Anonymised) [2022] NSWSC 326 Angius v Salier [2019] NSWSC 184 Arfaras v Vosnakis [2016] NSWCA 65; (2016) 14 ASTLR 397 Brown v Weidig [2023] NSWSC 281; (2023) 22 ASTLR 386 Charafeddine v Magistrate R Denes sitting in the Coronial Jurisdiction at Ballina [2015] NSWSC 269 Darcy v Duckett [2016] NSWSC 1756 Dragarski v Dunn [2019] NSWSC 300 Frail v Shorey [2021] NSWSC 122 Gilliott v Woodlands [2006] VSCA 46 Kak v Kak [2020] NSWSC 140 Kitchener v Magistrate Thomas (in his capacity as a Coroner) [2019] NSWSC 701 McCredie v Batson [2020] NSWSC 1913 Milson v Milson [2020] NSWSC 919 Munro v Pitt [2019] NSWSC 1374 Nayacakalou v Vincent [2020] NSWSC 24 Novakovic v Joseph Medcalf Funeral Services [2021] NSWSC 166 Penfold v Perpetual Trustee [2002] NSWSC 648 Privet v Vovk [2003] NSWSC 1038 Smith v Tamworth City Council (1997) 41 NSWLR 680 Ugle v Bowra & O'Dea [2007] WASC 82 Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44 Vosnakis v Arfaras [2015] NSWSC 625 White v Williams (2019) 99 NSWLR 539; [2019] NSWSC 437 Texts Cited: Abernethy John, et al, Waller's Coronial Law and Practice in New South Wales (4th ed, 2010, LexisNexis Butterworths) Bible - New International Version Coroners Court New South Wales, "Guidance and information" https://coroners.nsw.gov.au/help-and-support/guidance-and-information.html accessed 9 July 2024 Dal Pont, G E, Law of Executors and Administrators (2022, LexisNexis) Falconer, Kate, "Australian Burial Law 25 Years on from Smith v Tamworth City Council" (2022) 96 ALJ 581 Tuckey, John S (ed), Mark Twain's "Which Was the Dream?" and Other Symbolic Writings of the Later Years (1966, University of California Press) Category: Principal judgment Parties: Kate Dayman (Plaintiff) Glenys Dayman (Defendant) Representation: In person (Plaintiff and Defendant) File Number(s): 2024/228092