Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Gill [2024] NSWSC 1263 Hearing dates: 24 April 2024, 25 September 2024 Decision date: 11 October 2024 Jurisdiction: Equity Before: Lindsay J Decision: Subject to members of the biological family of a deceased person giving to the Court an undertaking that they will, at their expense, cause the body of the deceased to be cremated in a timely manner, order that the family be permitted to have carriage of cremation of the deceased's body and retention of her ashes. Catchwords: SUCCESSION – Intestacy – Burial Rights – Nature and purpose of Court's jurisdiction – Determination of competing claims to have carriage of disposal of deceased person's body – Burial versus cremation – Cultural division between biological family of the deceased and a person who claims to have been in a de facto relationship with the deceased CIVIL PROCEDURE — Jurisdiction — Inherent jurisdiction - Nature of "standing" in service of the Court's inherent jurisdiction to determine a dispute about disposal of a dead body Legislation Cited: Coroner's Act 2009 NSW Interpretation Act 1987 NSW Supreme Court Act 1970 NSW Cases Cited: Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 Britt v Office of the State Coroner [2022] WASCA 75 and 75(s) Brown v Weidig [2023] NSWSC 281 Charafeddine v Magistrate Denes sitting in the Coronial Jurisdiction at Ballina [2015] NSWSC 269 Dayman v Dayman [2024] NSWSC 838 Doodeward v Spence (1908) 6 CLR 406 Ex Parte West (1861) 2 Legge 1475 Frigger v Frigger [2023] WASCA1 03 In the estate of Jones (Deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458 Marshall v Elson [2023] SASCA 1, 3 and 4 R v Waters [1912] VLR 372 Re An Alleged Incapable Person (1959) 77 WN (NSW) 156 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 RAP v AEP [1982] 2 NSWLR 508 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 Small v Phillips (No 3) [2020] NSWCA 24 Smith v Tamworth City Council (1997) 41 NSWLR 680 South Australia v Ken [2021] SASC 10 South Australia v Smith [2014] SASC 64; (2014) 119 SASR 249 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 W v H [2014] NSWSC 1696 Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 White v Williams (2019) 99 NSWLR 539 Texts Cited: HS Theobald, The Law Relating to Lunacy (Steven & Sons, London, 1924) Category: Principal judgment Parties: Plaintiff: State of NSW First Defendant: Joanne Gill Second Defendant: Leslie ("Leroy") Speeding Third Defendant: Cathy-May Gill Fourth Defendant: Edward Gill Representation: Counsel: Plaintiff: Ms Z Heger SC Second Defendant: Mr PG Smart (as amicus curiae on 25 September 2024) First, Third and Fourth Defendants: Mr DJ Reynolds Solicitors: Plaintiff: Crown Solicitors Office 1st, 3rd, 4th Defendants: Mr Mascitti, KS Lawyers File Number(s): 2023/00284055 JUDGMENT INTRODUCTION 1. By a summons filed on 6 September 2023, the State of New South Wales (as plaintiff), seeks orders for the disposal of the remains of Debbie-Lee Gill ("the deceased") who died intestate (and with no substantial assets) on 8 January 2021 aged 40 years (having been born on 30 March 1980). 2. The remains of the deceased are presently held at a mortuary at the premises of Newcastle Forensic Medicine (co-located with John Hunter Hospital), the staff of which are employed in the NSW Health Service. In the context of the present proceedings the State of NSW can be taken to be the appropriate representative of the public institution in possession of the deceased's remains. 3. The parties to the proceedings comprise, in addition to the plaintiff: 1. the first defendant, Joanne Gill, the mother of the deceased and administrator of her deceased estate; 2. the second defendant, Leslie (also known as "Leroy") Speeding, who claims to have been the de facto spouse of the deceased at the time of her death; 3. the third defendant, Cathy-May Gill, a sister of the deceased; and 4. the fourth defendant, Edward Gill, the father of the deceased. 1. The deceased was survived by the following family members, who are not named as parties in the proceedings: 1. a brother, Christian Gill; 2. a brother, James Gill; 3. a child, Jack Copeland, born in January 2005; 4. a child, Hayley Copeland, born in August 2006; and 5. a child, Emily Copeland, born in March 2009. 1. A fourth child of the deceased (named "Angel") was still-born in 1999 and, by arrangement with the deceased, cremated. 2. Each of the parties to these proceedings other than the deceased's father claims Aboriginal heritage. As a close member of the family that identifies as Aboriginal, he can be taken to have been accepted by the Aboriginal community into which he has married and, with his wife, raised a family. 3. The deceased and her biological family have identified as Wiradjuri. The second defendant and his family have identified as Bundjalung. Each side of the controversy draw support from Indigenous custom as they perceive it to be in their particular community. The relationship between the deceased and the second defendant (however it may otherwise be characterised) was, in terms of the parties' self-identification, cross-cultural. The biological family say that cremation is an acceptable option within their community. The second defendant disputes that, insisting upon a burial according to indigenous custom as he perceives it to be. 4. Close attention has not been given in these proceedings to the form of any ceremony that might attend a funeral, be it associated with a burial or a cremation. 5. The defendants representing the biological family of the deceased (the first, third and fourth defendants) dispute the claim of the second defendant to have been in a de facto relationship with the deceased at the time of her death. Rightly or wrongly, they blame him for her death. The third defendant in particular, has been prominent in advancing that case. 6. On or about 2 February 2021 the Deputy State Coroner determined, for the purposes of the Coroner's Act 2009 NSW, that the second defendant, as the self-proclaimed de facto spouse of the deceased, was her "senior next of kin" within the meaning of section 6A of that Act, a determination which the biological family of the deceased contend was incorrect. 7. The Coroner's determination, in aid of the due administration of his statutory functions, has no material bearing on the Court's determination of the present proceedings. The Coroner's Act 2009 does not in any way abrogate the Court's inherent jurisdiction, the intersection of which has been recently explained by Meek J in Dayman v Dayman [2024] NSWSC 838. 8. The Coroner has more than once expressly advised the deceased's biological family that the coronial process has been completed; that the deceased's body may be released to the first defendant (as administrator of the deceased's estate) from the mortuary where it is now located; that, despite persistent representations on behalf of the biological family, the Coroner is not minded to order that there be a further autopsy of the body; and that "a dignified burial [for the deceased, as contemplated by an agreement recorded in orders made by Hallen J on 22 July 2021 pursuant to which letters of administration were granted to the first defendant] can occur in tandem with any further requests for the reopening of the coronial matter or further police investigation". 9. Leaving aside the "agreement" noted by Hallen J, the biological family has consistently advanced the case for a cremation of the deceased's body after the completion of a second autopsy to address what they contend to be deficiencies in the autopsy conducted under the supervision of the Coroner. The Coroner has invited the family to arrange a private autopsy but, they say, they have been unable to find a qualified person willing to conduct a private autopsy. 10. As matters presently stand, the family does not accept the Coroner's reasons (published in a document styled "Coroner's Report on Dispensing with an Inquest" dated 16 February 2022) for declining an inquest and they reserve such, if any, entitlements they may have to reactivate the coronial process or to make representations for police action against the second defendant. 11. The second defendant's case depends not upon the Coroner's administrative determination that he was the "senior next of kin" of the deceased or, indeed, upon whether he might be characterised as having been in a "de facto relationship" with the deceased (within the meaning of section 21C of the Interpretation Act 1987 NSW or otherwise) at or before the time of her death. It depends upon an assessment, in fact, of the existence and nature of his personal relationship with the deceased and his evidence of statements attributed by him to the deceased about disposal of her body upon death. Substance over form is the focus of attention in these proceedings. 12. On 22 July 2021 (in probate proceedings numbered 2021/00035921) Hallen J ordered that letters of administration of the intestate estate of the deceased be granted to her mother, the first defendant. 13. Those orders were made in proceedings commenced by a "Summons for Administration" filed on 8 February 2021 by the first defendant seeking a grant of letters of administration on intestacy and, by way of interim relief, an order for a special grant of administration "limited to the Administrator having custody of the deceased's body and being authorised to arrange the burial of the deceased" or, in the alternative, "a declaration pursuant to section 6A of the Coroner's Act that the plaintiff [the first defendant in the present proceedings] is the Senior Next of Kin". 14. An Amended Summons was filed on 15 March 2021 in which the plaintiff (the first defendant in these proceedings) specifically sought a declaration that she is entitled to have the body of the deceased delivered to her for the purpose of making cremation arrangements and that she is "entitled to cremate [the deceased] if she wishes so". 15. By a statement of cross-claim filed on 19 March 2021 the defendant to those proceedings (the second defendant in the current proceedings) sought a declaration that he is entitled to have possession of the body of the deceased "for the purpose of making burial arrangements"; that he is "entitled to bury" the deceased; and that he should be granted letters of administration on intestacy in relation to the deceased's estate. 16. It was in that context that the parties to the administration proceedings (not all the parties to the current proceedings) ostensibly consented to orders made by Hallen J in chambers providing for a grant of administration to the plaintiff (the first defendant in the current proceedings) and incorporating a notation of an agreement of the parties that: 1. The Plaintiff (the present first defendant) is entitled to have the body of the deceased delivered to her, or as she directs, upon obtaining the grant of letters of administration from the Court. 2. The deceased's body is to be buried at Noraville Cemetery; 3. The Plaintiff is responsible for the deceased's funeral and burial including: ii. engaging the services of a funeral director located on the Central Coast; iii. completing all forms, if any, provided by the funeral director; iv. advising the Coroner's Court of the funeral director's details to enable collection of the deceased's body; v. acquiring a perpetual internment right for a plot at Noraville Cemetery; vi. organising the funeral service arrangements including the date, time and order of service; vii. selecting the casket; viii. engaging the services of a representative from the Tribal Warrior Association to conduct a smoking ceremony at the burial plot prior to the final committal of the deceased's body to its final resting place; and ix. paying of all costs and expenses including the funeral director's and Tribal Warrior Association's fees. 1. The Defendant (the second defendant in the current proceedings) may request that the NSW Coroner and funeral director to only use female employees to handle the deceased's body. 2. The Plaintiff (the first defendant) shall provide the funeral director's details to the Defendant (the second defendant) (within one day of a funeral director being engaged) for the purpose referred to in (d) above. 3. The Plaintiff (the first defendant) shall advise the Plaintiff's solicitor of the funeral details once known, so that notice of the details can be given to the Defendant (the second defendant) no later than three days before the funeral date. 4. The Plaintiff (the first defendant) shall request that the funeral director includes Angel's ashes in the casket of the deceased. 5. The Defendant (the second defendant) may request that the funeral director includes a piece of Aboriginal artwork of the Defendant's choice which artwork is to be provided by, and at the sole expense of, the Defendant, provided that the Defendant provides the artwork to the funeral director no later than one day before the funeral date. (j) The Plaintiff (the first defendant) may request that the funeral director includes in the casket any items of memorabilia from the deceased's immediate family, provided that the Plaintiff provides those items to the funeral director no later than one day before the funeral date. (k) The Defendant (the second defendant) may request that the funeral director includes in the casket any items of memorabilia from the Defendant, provided the Defendant provides the items to the funeral director no later than one day before the funeral date. (l) The Plaintiff (the first defendant) may arrange for the placement of a headstone or memorial at the deceased's grave. The inscription must include "In loving Memory * Debbie-Lee Gill * 20 March 1980- 9 January 2021". (m) The Defendant (the second defendant) may, subject to complying with any requirements of the Noraville Cemetery, place a memorial at the deceased's grave provided that such memorial does not obstruct, affect or replace any headstone or memorial placed by the Plaintiff (the first defendant). (n) The Defendant (the second defendant) must do all things reasonably necessary including signing all documents and consents as may be required for the Plaintiff's (the first defendant's) application for grant of letters of administration. (o) The Plaintiff (the first defendant) acknowledges that the Defendant (the second defendant) had been in a relationship with the deceased. 1. Letters of Administration were issued by a Senior Deputy Registrar on 10 December 2021 pursuant to the orders made by Hallen J on 22 July 2021. The Inventory of Property annexed to the Letters of Administration discloses that the deceased died owning property valued at $899.86, comprising $199.86 in a bank account and jewellery with an estimated value of $700. 2. In essence the agreement recorded by Hallen J was for the body of the deceased to be released to the first defendant for burial, largely (but not only) at her expense, at Noraville Cemetery, a location favoured by the second defendant, according to a regime predicated upon co-operation between the parties. 3. The first defendant has disclaimed that agreement, contending that she was unfairly pressured by her then solicitor into agreeing to a burial rather than a cremation and that she understood that, despite the formal agreement recorded by the Court on 22 July 2021, she was free to arrange for the deceased's remains to be cremated. 4. Save for the disputed "agreement", there is no evidence that any member of the deceased's biological family has ever conceded that the second defendant was in a de facto relationship with the deceased or that he was, or is, entitled to be regarded as her Senior Next of Kin. 5. It is not necessary in these proceedings to make a determination about this controversy because, as the State has correctly observed, the positions of the parties as to the funeral arrangements for the deceased are irreconcilable and no interested person is willing to proceed in accordance with the notation of Hallen J. Any agreement between the parties as recorded in his Honour's notation which might otherwise be regarded as enforceable at law must be taken to have been abandoned by the parties and, if ever adopted by them, all other interested persons. It finds no favour with anybody. 6. In these proceedings: 1. the biological family of the deceased contend that they should be permitted to arrange for the deceased's remains to be cremated, as they undertake to do; 2. the second defendant contends that he should be permitted to arrange for the deceased's remains to be buried at Noraville Cemetery; 3. neither side of the contest alleges that the agreement ostensibly recorded by the Court on 22 July 2021 is strictly enforceable according to its terms, although the second defendant relies upon the agreement in submissions in support of his case for a burial at Noraville Cemetery; and 4. the central question for determination in the proceedings is what orders should be made (on the plaintiff's summons) for disposal of the remains of the deceased, having regard to all the circumstances of the case presently known to the Court, including (but not limited to) the terms of the (disputed) agreement recorded by the Court on 22 July 2021. 1. As foreshadowed to the parties at a pre-trial directions hearing (at a time when the second defendant was represented by counsel), and without objection by any party, the hearing of the plaintiff's summons was conducted on the basis that: 1. all affidavits reproduced in a court book were taken as read without objection save as to relevance; 2. no deponent was to be cross-examined without the leave of the Court, and no leave was sought; 3. no final determination was to be sought or made by the Court attributing personal responsibility to any person for the death of the deceased; 4. the determination of the Deputy State Coroner that the second defendant was the "senior next of kin" of the deceased was not determinative of any question to be decided by the Court in these proceedings. 1. This is consistent with the approach adopted in proceedings upon an exercise of protective jurisdiction (with which the current type of proceedings has some things in common, both concerned with protection of, and respect for, the welfare and interests of a central personality not wholly present before the Court) in proceedings which are principally directed to administration of that central personality's affairs "without strife in the simplest and least expensive way": RAP v AEP [1982] 2 NSWLR 508 at 512C-D; W v H [2014] NSWSC 1696 at [50], informed by HS Theobald, The Law Relating to Lunacy (Steven & Sons, London, 1924), pages 59-60 and 382. 2. The Court's jurisdiction is not directed towards the determination of competing rights between competent parties (who, in ordinary civil proceedings are generally able to appear on their own account and to protect their own interests), but towards an orderly and respectful disposal of the remains of an individual person (not present and able to protect his or her own interests), informed by the witness of those who knew the deceased, but not confined by the evidence of any person or party as might be the case in an adversarial contest about competing claims of right between competent adversarial parties. 3. The conventional experience of a court exercising protective jurisdiction offers an insight into how disputes about the disposal of a dead body can be, and generally are, contested with less formality than that ordinarily expected in ordinary civil litigation. Theobald's classic text provides a convenient summary of that experience (at pages 59-60): "… [Though] is there similarity between Chancery and Lunacy [both jurisdictions having been administered by or under the supervision of the Lord Chancellor of England], the divergence is greater than the similarity. In Chancery there are always parties; in Lunacy hardly ever. And where there are parties they are generally such persons as the heir-at-law or next of kin who have no definite or ascertained rights, but a spes successionis only. They are somewhat in the position of amici curiae, who desire not to benefit themselves but to assist the Court by imparting the intimate knowledge they have of the lunatic and his affairs from their position as members of the family. Chancery has a large administrative business like lunacy, but in Lunacy there is far wider discretion. In Chancery there is a will, settlement, or other document which defines the rights, or, if not, as in the administration of intestates' estates, a well settled code regulating the course of administration. In Lunacy there are none of these things. It is necessary to take up the conduct of a man's affairs cut short by his mental breakdown. Chancery determines rights between hostile parties. Lunacy is paternal and protective: it cannot determine rights as between the lunatic and others. If it is necessary to do so, recourse must be had to the ordinary tribunals. It follows that while strict rules of evidence must be followed in Chancery where conflicting rights are in question, there is far less necessity for this in Lunacy. The paternal jurisdiction in Lunacy is assisted by inquisitorial powers unknown to Chancery as such - powers much enlargened and by the appointment of the Lord Chancellor's Visitors, who have been well described as the eyes and ears of the Judge in Lunacy. The Court of Chancery acts only upon the motion of a complainant, and upon evidence supplied by him. The Judge in Lunacy, having regard to the incapacity of the persons he has to protect, must often act on evidence obtained by himself or by persons acting under his direction. The improvement of Lunacy administration has consisted largely in freeing Lunacy from the domination of Chancery practice and procedure." 1. Although NSW as long ago as 1958 abandoned the word "Lunacy" in its description of the Court's protective jurisdiction, and formally adopted the expression "Protective jurisdiction" as the appropriate descriptive label, the accumulated wisdom of those administering the jurisdiction since the time of Lord Eldon as Chancellor resonates in contemporary Australian experience. Theobald's commentary is based upon Eldon's jurisprudence and his own experience as a Master in Lunacy. As explained in W v H, Theobald is a principal source for NSW case law dealing with the protective jurisdiction. 2. Even if the practice in protective proceedings is not in terms adopted, the exigencies of a body disposal case may warrant a departure from strict rules of evidence commonly encountered in ordinary adversarial proceedings: Dayman v Dayman [2024] NSWSC 838 at [103]-[106]. 3. The biological family of the deceased were represented by pro bono lawyers at the hearing of the proceedings, with counsel having also appeared at interlocutory hearings. The second defendant was represented by pro bono counsel until, at the commencement of the hearing, he (with no objection on the part of the second defendant) applied for, and was granted, leave to withdraw. The second defendant represented himself throughout the hearing. 4. These proceedings involve a number of novel, although not entirely unique, features that require notice. 5. The first is that the State, as plaintiff, is the moving party, not (as is usually the case) a member of the family or broader community of the deceased person whose body is the subject of the proceedings. This requires reflection on the standing of the State to bring these proceedings; the nature of the standing required to invoke the Court's jurisdiction in a "body disposal case" (commonly described as a "burial case"); and the nature of the jurisdiction itself. 6. The second novel feature of the proceedings, connected with the first, is that the State, as the moving party, has disclaimed any adversarial role in the proceedings and adopted a role akin to that of an interpleader or a trustee in a construction suit in which the task at hand is to assist the Court, leaving adversarial positions to be taken by other parties. The State has no interest in the outcome of the proceedings beyond seeking an orderly outcome and, if no party accepts financial responsibility for disposal of the deceased's body, entertaining the possibility of a publicly funded funeral. 7. The third novel feature of the proceedings is that, contrary to the seminal judgment of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693F-694B and the many cases that have viewed "body disposal cases" through the prism of probate law and practice in the administration of a deceased estate (including, at an appellate level, Britt v Office of the State Coroner [2022] WASCA 75 and 75(S); Marshall v Elson [2023] SASCA 1, 3 and 4; and Frigger v Frigger [2023] WASCA 103), there is little guidance to be had in these proceedings from an analogous consideration of "rights" to the administration of a deceased estate, or from an adoption of a hierarchy of competing rights to administration, because a grant of administration has been made and it has proved ineffectual. 8. There is no room for speculation about who might be entitled to a grant of administration. A grant has been made. No application has been made for its revocation and there would be no utility in a revocation application or order. Neither is there utility in making a decision based upon an administrator's, or a prospective administrator's access to estate funds to fund a funeral; the deceased died with insufficient funds to pay for a funeral or to reimburse the funder of a funeral. Nor is there utility in approaching the problem presently before the Court on the basis that an administrator (like an executor) has an obligation by virtue of his or her office to arrange an orderly disposal of the deceased's body; a grant of administration has been made based upon notation of an agreement not implemented and the body of the deceased has been kept in storage by the State since that time in a default setting. 9. Newcastle Forensic Medicine continues to follow any informal directions that may be given by the Coroner's Court from time to time regarding the body. 10. The fourth novel feature of the proceedings is that the jurisdiction of the Court has been invoked, not to deal with an urgent application for relief (as usually occurs), but rather to deal with a stalemate between competing interests that has gone on far too long, leaving the deceased's body in cold storage, personal animosity on the boil and the public purse diminished by the costs of it all. THE STATE'S LOCUS STANDI 1. The researches of counsel and the Court have located only two cases in Australia in which a State has applied to a Supreme Court for directions about disputed arrangements for the disposal of a dead body. Both were in South Australia. 2. In South Australia v Smith [2014] SASC 64; (2014) 119 SASR 249 at [5]-[8] Nicholson J proceeded on the basis that: 1. disputes involving the right to bury a deceased person were justiciable before the Court as part of its inherent jurisdiction. 2. whilst the question of standing was a different matter, none of the parties before the Court suggested that the State might not have standing to bring before the Court a dispute about the right to bury a deceased body. 3. ordinarily, a plaintiff was required to have a sufficient special interest in the subject matter of an action, in the absence of a special statutory or legal right to bring an action, before it could be found to have standing. 4. the criterion of special interest was a flexible one and did not necessarily speak of a commercial interest. 5. in the instant case, the State conducted a funeral assistance programme pursuant to legislation that granted wide powers to a Minister and a Department of government with stated objectives that included promotion of "the dignity of the individual and the welfare of the family as the basis of the welfare of the community … by providing individuals or families in need or distress, with assistance by way of grants or loans of money or commodities, accommodation, financial counselling or any other form of assistance". 6. also in the instant case, the deceased had died with no estate of any value and his immediate relatives were without funds sufficient to cover the costs of a funeral, and Departmental rules governing the State's funeral assistance programme were applicable. 7. the Department, in endeavouring to carry out its administrative functions in accordance with its statutory obligations, had found itself in receipt of conflicting requests for assistance pursuant to its funeral assistance programme and family conflict could not be resolved by the Department so that it was essential that arrangements for the burial of the deceased be resolved with as much haste as decently could be managed, noting that the dignity of the deceased and all interested family members was of paramount concern, that the integrity of the Department's processes needed to be protected and preserved and that the family protagonists lacked the wherewithal, financial or otherwise, to take the necessary steps to bring the matter before the Court in a timely manner. 8. in those circumstances, the Court could be satisfied that the State, through the Department, had standing to bring its application before the Court. 1. In South Australia v Ken [2021] SASC 10, Stanley J proceeded on the basis that: 1. the remains of the deceased the subject of an application by the State (seeking orders as to the final burial place of the deceased) remained in storage at the mortuary of the Royal Adelaide Hospital a little more than two years after his death. 2. there was an irreconcilable dispute between family members as to the location at which the deceased's body should be buried. 3. in the circumstances, the dignity of the deceased and the conscience of the community required that a declaration as to the place at which the deceased be buried be made so that he could be buried without further delay, but with all proper respect and decency. 4. there was no issue that the dispute was justiciable before the Court pursuant to its inherent jurisdiction; and 5. there was no dispute that the State had standing to bring the proceedings, noting the judgment in South Australia v Smith. 1. A case involving a State as a plaintiff in proceedings for directions about the disposal of a body in order to resolve an irreconcilable dispute between individuals who claim to be "family" or "a significant other" of the deceased person is to be distinguished from a case in which an attorney general is granted leave to appear before the Court as an amicus curiae. Charafeddine v Magistrate Denes sitting in the Coronial Jurisdiction at Ballina [2015] NSWSC 269 at [22] is an illustration of such a case. A similar case, but one in which it is not clear whether it was the State or the attorney general who appeared as an amicus curiae or whether the State was joined as a party, is Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 at [16]. Cases such as these do not involve the State or a minister of the State acting as a moving party. 2. Not uncommonly, the Office of a State Solicitor will appear (and commonly enter a submitting appearance) on behalf of a Coroner joined in proceedings because in possession of a body the subject of the proceedings. Cases of this character differ from a case in which a State is the moving party in proceedings even if, as might reasonably be expected, a Coroner in possession of a body might be called upon to provide assistance to the Court and parties, and might invite the Court to proceed in a particular direction. 3. In the present proceedings the State of New South Wales, as plaintiff, expressly relies for its standing upon its possession (perhaps, more accurately, its possession, custody and control) of the deceased's body. 4. As it seems to me, that approach, at least implicitly, draws upon the analogy of an interpleader action (Dayman v Dayman [2024] NSWSC 838 at [67]) and perhaps even (at a stretch) the notion (reflected in the seminal judgment of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694B-C) that "if a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body", although neither analogy is perfect. 5. The foundational idea, commonly discussed by reference to Doodeward v Spence (1908) 6 CLR 406, that there is generally no property in a dead body sits uncomfortably with the idea of an interpleader action to enable the Court to determine competing claims of right to property. So too does characterisation of the State as a householder who, by mischance, happens upon a body in close quarters. 6. In my opinion, the standing of the State (or indeed any other party) to apply to the Court for directions about disposal of a dead body in a case in which there is a dispute between members of the deceased's community (family and significant others) takes its colour from the Court's inherent jurisdiction to give such directions. 7. The Court's jurisdiction to make orders governing the disposal of a dead body may properly be regarded as incidental to its establishment as a superior court of record responsible for the administration of justice within New South Wales and, whatever its historical foundations, it is supported by the Supreme Court Act 1970 NSW, section 23, which provides that "[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales": Brown v Weidig [2023] NSWSC 281 at [24]; Dayman v Dayman [2024] NSWSC 838 at [71]-[74]. 8. An analysis of the Court's inherent jurisdiction has focal points in the following propositions: 1. a starting point in analysis of a dispute relating to the disposal of a body is that "there is no property in a dead body". In some circumstances, the law may protect the lawful possession of a corpse or body parts, but the general proposition holds good as a starting point. 2. the significance of the proposition that there is no property in a dead body is that, in the determination of a dispute about disposal of a body, there is a strong public interest element that may prevail over private claims of any type. 3. by analogy with the Court's protective jurisdiction (as explained by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258 by reference to Lord Eldon's judgment in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243) the jurisdiction of the Court might reasonably be said to be "founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them". 4. the purpose for which the jurisdiction of the Court exists governs its exercise. 5. the purpose for which the jurisdiction exists is that of facilitating, so far as may be reasonably practicable, an orderly disposal of the mortal remains of a person whose dignity, as a person, should be respected: Brown v Weidig [2023] NSWSC 281 at [28]. 1. It is generally correct to say that there is a common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect: Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 524. 2. However, the character of the Court's inherent jurisdiction to make orders governing disposal of a dead body the subject of a dispute about its disposal does not lend itself to analysis in terms of the prevention of a violation of a public right, to enforcement of the performance of a public duty or the identification of a special interest to protect. 3. The judgment of the High Court of Australia in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at [2], [93]-[98], [162] and [211] points the way to an understanding of the nature of "standing" in service of the Court's inherent jurisdiction to determine a dispute about disposal of a dead body. It does this in its recognition of the historical fact that, at common law and in equity, there has been no universal rule (of law or practice) that a plaintiff must have a "sufficient special interest in the subject matter of an action" to have standing to invoke a jurisdiction of the Court governed by public interest considerations. 4. Perhaps the clearest illustration of this is found in the realm of prerogative writs, with a writ of habeas corpus (in NSW, now replaced with similar relief available under the Supreme Court Act 1970 NSW, section 69), available on the application of a stranger: see Ex Parte West (1861) 2 Legge 1475 (cited by Kirby J at 200 CLR 653) and R v Waters [1912] VLR 372 at 375 (cited by Gummow J at 200 CLR 627). The same is true upon an exercise of protective jurisdiction; a stranger may apply for the appointment of a protected estate manager: Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106; Re An Alleged Incapable Person (1959) 77 WN (NSW) 156. 5. In my opinion, any person, even a stranger, has standing to apply to the Court for directions, upon an exercise of its inherent jurisdiction regarding the orderly disposal of a dead body, if the applicant can demonstrate a reasonable case for the intervention of the Court. No "special interest" beyond that is required. 6. Ordinarily, such an applicant might reasonably be expected to be a member of the community of the deceased (a member of his or her "family", however defined, or a significant other); a person in whose possession, custody, control or care the person or body of the deceased was at about the time of death or at the time of commencement of proceedings; or a public institution or officer acting within authority. 7. In any case, the Court must remain diligent to deny standing to any applicant reasonably perceived to be officious or motivated by an improper purpose; that is, a purpose other than making arrangements for an orderly and respectful disposal of a body. The purpose for which the jurisdiction of the Court exists governs questions of standing no less than an exercise of jurisdiction generally. 8. In the current proceedings, the State has possession, custody and control of the deceased's body and has patiently, and beyond any obligation to do so, kept the body in its care in default of steps being taken within the community of the deceased to dispose of it. The State has commenced, and maintained, these proceedings for the very purpose for which the Court's jurisdiction exists. An acknowledgement of that fact underpins a formal finding that it has the requisite standing to maintain the proceedings. GOVERNING PRINCIPLES 1. The parties to these proceedings accept that the principles to be applied in disposition of the proceedings are those identified by me in Brown v Weidig [2023] NSWSC 281 at [23]-[66] and elaborated by Meek J in Dayman v Dayman [2024] NSWSC 838 at [71]-[106]. 2. Those cases draw heavily upon the judgment of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693G-694E as developed in the judgment of the Full Court of the Supreme Court of South Australia in Jones v Dodd (1999) 73 SASR 328 at [43]-[51], the judgment of Doyle CJ in In the estate of Jones (Deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458 at [29]-[32], the judgment of Nicholson J in State of South Australia v Smith (2014) 119 SASR 249; [2014] SASC 64 at [22]-[23] and [34] and the judgment of Sackar J in White v Williams (2019) 99 NSWLR 539. 3. As has been noted, the starting point is to recognise that there is generally no property in a dead body of a human and that, in the determination of a dispute about disposal of a body, there is a strong public interest element that may prevail over private claims of any type. 4. The task of the Court is generally to make an evaluative judgement as to who is best suited or best able to deal with the remains of the deceased given the various factors identified in the authorities: Dayman v Dayman [2024] NSWSC 838 at [106], citing White v Williams (2019) 99 NSWLR 539 at [114]. 5. The purpose for which the Court's jurisdiction exists governs its exercise. It exists for the purpose of facilitating, so far as may be reasonably practicable, an orderly disposal of the mortal remains of a person whose dignity, as a person, should be respected. 6. Respect ordinarily requires that, so far as may be reasonably practicable, consideration be given in a timely and empathetic manner to the wishes or preferences of the person and the person's "significant others" (including, particularly, members of his or her family, however defined) to which the person belonged. The concepts of "personhood", "respect" and "belonging" are of central concern. 7. In all decision-making the central personality is the deceased, recognising that he or she must be taken, prima facie, to have lived and died in community with others with whom he or she may have shared perspectives on life, death and an afterlife. 8. Because the deceased is the focal point for decision-making his or her perspective should ordinarily, subject to practical constraints, prevail at the intersection between his or her wishes or preferences and those of any community to which he or she belonged. 9. I repeat what a wrote in Brown v Weidig at paragraphs [36]-[38], [60]-[61] and [63]: "[36] The law governing the disposal of a dead body works best when there is a consensus about what is to be done or at least an acquiescence on the part of everybody who might reasonably be thought to have a right to object. The Court's jurisdiction is available if, in a particular case, a problem needs to be solved by an independent adjudication. For the most part, in the ordinary course, the law of succession provides a template to guide decision making without recourse to the Court. [38] Ultimately, in the absence of legislation governing the outcome of a case, the Court is required, in the determination of a dispute as to who has carriage of disposal of a body, to exercise a discretion taking into account a range of factors (depending upon the particular circumstances of the case and unable, prudently, to be stated exhaustively in the abstract) that may include: 1. the logistics and available funding for disposal of the body; 2. the wishes or preferences of the deceased, if known; 3. the wishes or preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family); 4. any cultural or spiritual factors material to how the deceased lived life; and 5. the accessibility of the deceased's mortal remains to those who seek to mourn a death or to remember. … [60] Although convenience often attaches to use of the law of probate and administration of estates as a paradigm for decision making, a court is not obliged to employ it if the administration of justice in a particular case points in another direction. What is ultimately required is a decision, informed by practical wisdom, which allows a body to be disposed of in an orderly way with as much respect as may be possible for the dignity of the deceased and those of his or her community, or (as in this case) his or her communities, who mourn a death and yearn to remember a life. [61] The necessity for the Court's jurisdiction to be and remain flexible is reinforced by changes in the way members of contemporary society live and die in community. … [63] … [Too] slavish an adherence to technical requirements of the law of probate, the administration of estates or, it might be said, family law in contested proceedings about the disposal of a dead body runs a risk of diverting the Court, and warring parties, from the purpose of the Court's jurisdiction into unresolvable, collateral disputes about the validity of a will, or the existence or otherwise of one or more de facto relationships, for example. It is important that everybody remain focused on why the Court's jurisdiction exists and how it can best be exercised." 1. The factors for consideration identified in this extract dovetail with Meek J's description, in Dayman v Dayman [2024] NSWSC 838 at [93]-[94], of the Court's approach to an interlocutory application for orders regarding the disposal or internment of a deceased person's remains or the distribution of ashes: "[93] The initial task of the Court is often one of: gleaning information about the deceased; identifying the members of the deceased's immediate family and those who might be interested in the disposal, internment or distribution issues; clarifying who currently holds or has control of the deceased's body, and where it is located; and ascertaining whether there are any material cultural or spiritual factors as to how the deceased lived in his or her life which may bear upon appropriate orders to address the disposal, internment or distribution issues. [94] In the first instance, the Court seeks to ensure that no precipitous action is taken in relation to the disposal or internment of the deceased's body. The Court will frequently consider making orders to restrain any action in that regard whilst the claims of the party who has approached the Court are made known to the defendants and other interested parties by service of the document or documents initiating the claim." 1. At each stage of proceedings regarding the disposal of a dead body or ancillary questions the Court is called upon to manage a process with prudential wisdom as an aspiration. CONSIDERATION 1. The present proceedings illustrate problems that arise when decisions about the orderly and respectful disposal of a body are diverted by collateral disputes grounded upon complex, dysfunctional informal social arrangements, bitter personal relationships and rivalries, and the want of a will or other formal expression of a deceased person's testamentary intentions. 2. A person's prospective funeral arrangements should not, of course, govern whether or not to embrace the formality of a marriage or even the making of a will; but the absence of a marriage or a will can involve the estate of a deceased person and his or her family (however defined) in transaction costs (economic or otherwise) if he or she dies in the midst of social disharmony and trauma. 3. The young woman who is the central personality in these proceedings lived a hard life and died in controversial circumstances just as hard. Her life was attended by domestic violence the marks of which the Coroner observed on her body. She lived the life of a prostitute on call in country NSW, routinely exposed to the use and abuse of alcohol and drugs. She looked to her parents for respite and for the care of her children. She died in hospital soon after family members found her hanging in their backyard late at night after a tumultuous argument with the second defendant. 4. Whether or not the deceased and the second defendant were in a de facto relationship of the type recognised by law (ironically, a legal category governed by statute), they were in some type of relationship. Although the second defendant hotly disclaims the office, and takes offence at its attribution to him, the evidence marshalled against him by the deceased's biological family, if accepted, would justify a finding that he occupied the office of her pimp, looking to her for both sex and money. On the other hand, her biological family is deeply sceptical, if not offended, by evidence of the second defendant, his father and friends which, if accepted, would justify a finding that she was besotted with the second defendant, emotionally committed to him. He, for his part, appears to have lived a hard life no less than the deceased. They both had personal experience of life in gaol. 5. It is not necessary for the Court in these proceedings to choose between the competing narratives about the relationship between the deceased and the second defendant, or the circumstances of her death, still less the ancillary narratives about personal relationships within the biological families of the deceased and the second defendant. The proceedings have been conducted on the agreed basis that no final determination would be sought, or made by the Court, attributing personal responsibility to any person for the death of the deceased. I do not intend, by this judgment, to depart from that agreement. 6. What can be said is that, living temporarily in a shed at the back of her parents' house and with her children in the care of her parents, the deceased was dependent upon her parents and, quite possibly, her siblings generally. 7. Her entrustment of the ashes of her still-born child "Angel" to her sister, the third defendant, points in the same direction. So too does the support of the deceased's children for the case advanced by their biological family. 8. Although the second defendant says that he had a good relationship with the children, he was not their father; their evidence is not supportive of his assessment of their personal relationships; and he has no ongoing relationship with them. 9. However close the second defendant may have been to the deceased in life, and however much he may mourn her death, and fear for the fate of her spirit (as he says he does) if she is not afforded a burial on country as proposed by him, his loss of her companionship and anguish consequent upon her death is more than matched by that of her biological family. 10. It comes as no surprise that in these proceedings, as is commonly the case in proceedings of this nature, one side of the dispute favours cremation and the other favours burial, each calling in aid evidence of statements attributed to the deceased, and evidence of cultural customs and traditional systems of belief. 11. A "Guide to Respecting Practices and Beliefs of Indigenous Australians" published by the State in December 2018 records the following statement: "While communities may share common beliefs, there is no 'standard' death ritual or funeral practice observed by all Indigenous Australians. Cultural practices vary widely between different communities, and individuals may also have their own preferences." 1. In its text, the Guide draws to attention a need to respect and understand "the cultural wishes of the deceased person", noting the following: "… [A] common cultural practice and belief for many Aboriginal people includes returning the body to the earth, with: * a perpetual burial; * burial at sufficient depth. Cremation is also gaining acceptance, depending on individual preference. … Many indigenous Australians prefer for the deceased to be returned to country". 1. The Guide is consistent with the evidence adduced in these proceedings and with a perceived need to accommodate the particular preferences of each individual living and dying within an Indigenous community. 2. Viewed as a whole, the evidence in this case tends to suggest that the deceased's life took her on a journey that encountered the different norms of two Indigenous communities, that of her biological family and that of the second defendant's biological family. Her closest connection appears objectively to have been with the community of her biological family, a connection never severed. To the extent that cultural or spiritual factors might be material to a determination of what should happen to her body, that connection is more certain than any connection she may have had with the second defendant's community. 3. The fact that there is a conflict in the evidence about the deceased's personal expressions of her preferences for a funeral is not altogether surprising. She may have coloured her statements to accommodate the views of each audience whilst in their midst. That is not an uncommon feature of cases involving expressions of testamentary intention. 4. Weighing in the balance the factors identified in Brown v Weidig as material to an exercise of the Court's discretion about the determination of the dispute between the deceased's biological family and the second defendant about disposal of her body, decisive factors in favour of the biological family are the long established, and enduring, relationship she had with her family; the close bonds she shared with her children, albeit that they were in the care of her parents; the preferences of the children as her descendants; and, critically, the evidence that, in life, she had chosen cremation for her stillborn child and, in death, entrusted those ashes to her sister in the confidence that her ashes would join those of her baby in death. 5. These intangible factors are reinforced by evidence of the deceased's biological family that they are ready, willing and able to arrange, and to fund, cremation of her body if it be released (as can be arranged by the State) into their custody. 6. The logistics favour the biological family given their preparedness to undertake to the Court that, at their own expense, they will move expeditiously to have the deceased's body cremated. I am not confident that the second defendant can reasonably be expected to have the resources, or will, to arrange for a burial, let alone a funeral involving participation of the deceased's family as may be required. 7. A measure of the biological family's commitment to an orderly and respectful disposal of the deceased's body is their commitment to fund her cremation and a funeral. In the course of his final submissions the second defendant, by contrast, submitted that the cost of a burial of the deceased's body should be met by the State, not him. His hesitancy in accepting a personal responsibility for funding the funeral arrangements upon which he insists points away from adoption of his proposed funeral arrangements. 8. For these reasons, I propose to make orders of the nature sought by the deceased's biological family upon their undertaking that they will proceed with due diligence to have the deceased's body cremated at their expense. 9. In the circumstances of this particular case, I do not propose to make an order compelling the deceased's biological family to give notice of the deceased's funeral arrangements to the second defendant or to involve him in those arrangements. What, if any, notice of developments is given to him is left to the collective judgement of the family. The nature of the personal relationships between the parties, if only related to the circumstances of the deceased's death, do not lend themselves to ongoing contact in an environment of peace or harmony. 10. During the course of the hearing of the proceedings the second defendant expressed anguish about a sense of personal responsibility for the fate of the deceased should he not be able to have her buried on country and according to custom as he perceived to be her wish. If he is to find peace in light of the deceased's cremation, he must find it within himself, having informed the Court of the deceased's wishes and preferences as he remembers them. He bears no responsibility for the deceased's cremation against his wishes. In the nature of these proceedings, that is a responsibility borne by the Court in making an evidence-based decision according to legal principles. PROPOSED ORDERS 1. Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, and obtaining confirmation of the undertaking to be given to the Court by or on behalf of the first, third and fourth defendants, I propose to make orders to the following effect: UPON the first, third and fourth defendants by their counsel giving to the Court an undertaking that, within two months after the date upon which these orders are made (or such other time as the State may, in writing, approve or the Court, upon application, may allow) they will jointly, at their expense, cause the body of the deceased to be cremated in accordance with arrangements approved in writing by the State or further orders of the Court: 1. NOTE the reasons for judgment, published as State of New South Wales v Gill [2024] NSWSC 1263 on 11 October 2024. 2. NOTE that the dead body of the deceased is currently stored at the Newcastle Forensic Medicine Mortuary Facility at John Hunter Hospital ("the Facility"). 3. DECLARE that, as between the first defendant and the second defendant, the first defendant is entitled to have carriage of disposal of the body of the deceased by means of cremation. 4. ORDER that the first defendant be granted such, if any, permission as may be necessary to cause the body of the deceased to be cremated. 5. ORDER that the plaintiff, upon notice to the solicitor for the first, third and fourth defendants, provide to the Facility (via email) no later than 14 October 2024 a copy of: 1. these orders; and 2. the reasons for judgment, published as State of New South Wales v Gill [2024] NSWSC 1263. 1. DECLARE that, as between the first defendant and the second defendant, the first defendant is entitled to take custody of the ashes of the deceased after cremation, and to entrust the ashes to the care of the third defendant, to be kept together with the ashes of the deceased's stillborn daughter, Angel. 2. ORDER that the first defendant notify the plaintiff, no later than 25 October 2024, of the name of the funeral director authorised to take custody of the body of the deceased on her behalf. 3. ORDER that the first defendant notify the plaintiff, no later than 8 November 2024, of the date upon which it is proposed to take custody of the body of the deceased. 4. RESERVE to all parties, and to the Facility, liberty to apply for such, if any, further orders as may be required in implementation of these orders. 5. NOTE that, by agreement between the parties, no orders are made as to the costs of these proceedings. 6. ORDER that the plaintiff's summons otherwise be dismissed. 7. ORDER that these orders be entered forthwith. 1. The fact that no orders are to be made as to the costs of the proceedings reflects a proposal made by the State at the commencement of the hearing and adopted by the other parties to the proceedings. 2. As explained in Brown v Weidig [2023] NSWSC 281 at [83], if I were to be called upon to consider the question of costs, I would be minded to apply a general rule applied in protective proceedings; namely, that costs do not routinely "follow the event" but are generally awarded, or not, in response to the inquiry: "What, in all the circumstances, is the proper order for costs that should be made?": Small v Phillips (No 3) [2020] NSWCA 24 at [2]. That approach is calculated to accommodate the purpose of the jurisdiction exercised by the Court and the public interest imperative attending the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2024