Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701

Supreme Court New South Wales

Medium Neutral Citation: Kitchener v Magistrate Thomas in his capacity as a Coroner [2019] NSWSC 701 Hearing dates: 27, 28, 29, 30 May 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Common Law Before: Emmett AJA Decision: 1. Order that the amended summons be dismissed. 2. Order that the cross claimant is entitled, as against the plaintiff, to have the body of the late Joseph Mark Leonard Ahoy (the Deceased) delivered to her for the purpose of making funeral and burial arrangements and that she is entitled, as against the plaintiff, to bury the Deceased at Kempsey or such other place as she wishes. 3. Direct that there be no order as to the costs of the summons or the cross summons. Catchwords: SUCCESSION – where the Deceased died intestate and no administrator has been sought – whether priority to take administration under the Probate and Administration Act 1898 (NSW) determines the question of release of remains.

HEALTH LAW – burial and cremation - whether the mother of the Deceased is entitled, as against the de facto partner of the Deceased, to the body of the Deceased for the purposes of making burial arrangements – whether the mother of the Deceased is entitled, as against the de facto partner of the Deceased, to bury the Deceased at Armidale as opposed to Kempsey.

FAMILY LAW – de facto relationship – whether the Second Defendant was in a de facto relationship with the Deceased at the date of his death within the meaning of s 21C of the Interpretation Act 1987 (NSW) – whether the Second Defendant was therefore senior next of kin under s 6A of the Coroners Act 2009 (NSW). Legislation Cited: Child Support (Assessment) Act 1989 (Cth) Coroners Act 2009 (NSW) Interpretation Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Sharp v Lush (1879) 10 Ch Div 468 South Australia v Smith & Anor (2014) 119 SASR 247 Category: Principal judgment Parties: Cheryl Kitchener (Plaintiff) Magistrate Brett Thomas in his capacity as a Coroner (First Defendant) Teleena Ruth Marie Wright (Second Defendant) Health Administration Corporation (Third Defendant) Representation: Counsel: C Gregory (Plaintiff) (Submitting appearance) (First Defendant) L Goodchild (Second Defendant) (Submitting appearance) (Third Defendant)