Editors --- "In re An Application by the Tasmanian Aboriginal Centre [2007] TASSC 5 - Case Summary" [2007] AUIndigLawRw 10; (2007) 11(1) Australian Indigenous Law Review 109

• In re An Application by the Tasmanian Aboriginal Centre Inc [2007]
• Facts:

In re An Application by the Tasmanian Aboriginal Centre Inc [2007]

Supreme Court of Tasmania (Underwood CJ, ex tempore)

9 February 2007

[2007] TASSC 5

Succession – wills, probate and administration – probate and letters of administration – grants of probate and letters of administration – limited special and conditional grants of probate and administration – where no estate except remains of deceased – whether limited grant to recover and bury remains should be granted.

Facts:

The Tasmanian Aboriginal Centre (‘TAC’) applied for letters of administration over the remains of 17 Tasmanian Aboriginals being held in the United Kingdom Natural History Museum. This was to enable the TAC to seek an injunction in the High Court of England against the Museum to prevent it conducting DNA investigations on the remains prior to their repatriation for burial.

There was no evidence before the Court that any of the deceased held any property or that there is any surviving estate. This posed a threshold problem since at common law an order for administration should only be granted if necessary to deal with the real or personal property of a deceased intestate.

Provided this hurdle could be surmounted the next issue for the Court was whether the TAC was a suitable organisation in which to vest control over the remains. The TAC contended that their extensive involvement in the repatriation negotiations with the Museum and the Australian Government made it the proper recipient of letters of administration.

Held, granting the application subject to limitations:

1. The Administration and Probate Act 1935 (Tas) confers jurisdiction upon the Court to grant letters of administration with respect to the estates of deceased persons who died both before and after 1935.

2. While at common law such orders are customarily made only when it is necessary to dispose of a deceased intestate’s real or personal property, the power to grant letters of administration is in fact unfettered. It is a matter of discretion, not a question of justice.

3. There cannot, at common law, be possession in a body. However, this does not mean that a human body, or a portion thereof, cannot become the subject of property. Equity will intervene to protect the licence to bury a body: Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

4. The ‘sufficient doubt’ over the nature of an interest in the remains and their burial justified granting letters of administration to enable an administrator to test the proprietorial right to the remains for the purpose of burial.

5. The TAC’s ‘real interest in seeing that the remains get a proper burial in accordance with customary law’ means it is the proper recipient of such letters.

6. The order is limited to

(a) commencing legal proceedings seeking the return of the remains and/or preventing disturbance of them; and/or
(b) taking possession of the remains; and/or
(c) affording the deceased proper burial according to Aboriginal law and custom.