Woodlands v Gilliot [2006] HCATrans 413 (4 August 2006)

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Woodlands v Gilliot [2006] HCATrans 413 (4 August 2006)

Last Updated: 19 September 2006

[2006] HCATrans 413

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M30 of 2006

B e t w e e n -

SHANE WOODLANDS

Applicant

and

KIM GILLIOT

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2006, AT 12.05 PM

Copyright in the High Court of Australia

MR M.C. McKENZIE: If your Honour pleases, I appear on behalf of the applicant. (instructed by Paul L. Ryan & Associates)

MR A. SOUTHALL, QC: I appear with my learned friend, MR A.T. STRAHAN, on behalf of the respondent. (instructed by Jane Pemberthy)

GLEESON CJ: Yes, Mr McKenzie.

MR McKENZIE: Your Honours, this application is made on the basis that the decision made in the Court of Appeal overturning the decision of Justice Hansen misconceived the nature of the application before the Supreme Court in the first instance. In this regard, I seek to take the Court’s attention to page 40 of the application book and the paragraph appearing at line 76. This paragraph is to these terms:

In this case the body was released to the Respondent mother and she arranged to bury the body of the deceased not upon orders of the Coroner to do so, but in her power as the person with custody of the body and simply as a result of it being her firm understanding that her daughter had expressed a wish to be buried and not cremated.

It may assist the Court to be informed that before Justice Hansen the coroner did not appear and on this appeal to the appeals court the coroner again did not appear and this in large part related to the fact that the substance of the matter in first instance was said not to be a challenge to the coroner’s decision to have the body returned to the mother in this case. If I could identify for the Court the issues that were in play. There was an issue as to whom - - -

GLEESON CJ: In play where?

MR McKENZIE: Firstly, before the coroner and more particularly then before Justice Hansen. The coroner dealt with a father’s request that a body be returned to him, released to him, from the coroner’s custody for burial in Sydney and a counter request on the part of the mother that the body be released to her for burial in Daylesford.

GLEESON CJ: That is why it is said on page 23, in paragraph 22:

it was not an issue before the Coroner but that the body would be buried.

MR McKENZIE: Yes, your Honour. The reference to burial has, from time to time, caused some difficulty because there are issues concerning whether burial is intended to mean interment of the body, burial proper, interment of the ashes, which can also be referred to as burial, and indeed if one looks at the coroner’s document and the references in the Act burial is used generally to mean disposal of the body rather than interment as such and the position - - -

GLEESON CJ: On page 20 in paragraph 10, the last sentence says:

Although he had argued before the Coroner that the body should be buried (in New South Wales), he now wished to argue that the body should be cremated.

Does that misrepresent the argument?

MR McKENZIE: It does not misrepresent the argument put before the coroner. The coroner was faced with both parents seeking the body be released to them for burial in Sydney or in Daylesford. The issue as announced to Justice Hansen was, “We do not challenge the coroner’s decision to release the body to the mother. We do not challenge the mother having the right to deal with the funeral service” - and I use that as a neutral term, your Honour – “the funeral service which meant that that would be in Daylesford”.

The issue that was clearly before Justice Hansen was an issue which I put as the secondary issue after some person has been nominated to deal with the body. There is a stream of authority which says that the courts primarily choose some particular person to deal with the disposal of the body, the funeral service, the arrangements and the nature of disposal. However, there is clear authority, and it appears in the summary material provided, that if the person entrusted with that task chooses a mode of disposal which does not respect the interests and wishes of relatives and friends, that the court under Order 54 – that is the administrative area dealing with probate and administration of estates – may review that decision.

The position that the applicant takes is that what was properly before the judge in the first instance was not an issue about disposal of the body per se, relating back to the coroner’s decision. The coroner’s decision was not appealed against in substance. It was accepted that the mother would have the call, it was accepted that the mother would have the funeral arrangements, and it was accepted that that would take place in Daylesford. The reason why Mr Justice Hansen could proceed as he did, and did not call for the coroner to be directly involved, was this was a challenge by friends and family, and in this case the father particularly, saying the proposed mode of disposal is not the best one and not an appropriate one.

Mr Justice Byrne has said in his authoritative summary of the cases that the courts do have a right to supervise and administer and may when they choose to do so go forward and review that aspect. The way it is put to this Court, your Honours, is that the very substance of the response before you in the paragraph that I have quoted says that the mother did not rely on any authoritative direction on the part of the coroner as to the particular mode of disposal of the body, and I have to be careful, your Honours, because the word “burial” does appear.

It may be of assistance to take you to the document which is form 2 which appears in the book at page 43, the very last page. There has been some issue taken by my learned friend that this document was not otherwise produced in connection with preparation of the appeal documents, but what I was seeking to do was to have the form of certificate put before the Court. The blank form was going to be included, but time moved on and we were able to obtain this form, and the substance of it and the way the argument is put to this Court is, there is just a permission by the coroner to release the body for disposal. He does not require it to be buried. He does not require it to be cremated. He merely moves on and he has completed his task. Should the father have gone and got a grant of probate, there was no will, or a grant of legislative administration, he may well have then said, “I now have some rights” or “I can be involved”.

But the issue really was one which flows after the coroner had finished his task and it was argued before the Supreme Court in the first instance on that basis. On appeal, the issue that the appeals court took said there is implied power in the coroner to make this decision and the nature of the application before the judge in first instance misunderstood the position.

With respect, your Honours, the applicant’s position is totally to the contrary. This was an argument between family members after the coroner had made his decision and the father came to the court asking for assistance. The initiating material talks about an appeal and the initiating material talks about a process, but I do not think it is properly characterised as an appeal and it is more in the nature of a parent family member seeking assistance from the court as to a manner of disposal and my submission, your Honours, is that the coroner had not mandated a particular form of disposal and the circumstances in which the courts will see fit to assist in these extremely trying and heartbreaking circumstances should not be such that the father is shut out.

I am aware, your Honours, that the position, as I understand it, is that there needs to be something of substance before this Court in order to warrant special leave being granted.

GLEESON CJ: We do not give advisory opinions on issues that do not arise for determination of the matter.

MR McKENZIE: Yes, your Honour, I appreciate that. Indeed, your Honour. In that sense I wish to make it clear that the father has identified that he will not seek to challenge what in fact occurred, which is the burial of the body in Daylesford. However, he did think that Justice Hansen dealt with him in a way which respected the issues and that before the appeals court, perhaps on my default, I failed to have that court properly consider the true nature of the application and the appeals court then required certain things as to whether the whole application before Justice Hansen was misconceived.

In my submission, your Honour, it is open to this Court to say some issues concerning the nature and extent of the coroner’s powers needs to be considered and can be considered. There are some issues available to this Court to determine the supervisory jurisdiction of the Supreme Court and there have been, in the material provided, the specific comments made by Mr Justice Byrne in the case of Leeburn v Derndorfer and I wish to just quote shortly from that. He refers to the fact that the courts generally leave the body and the disposition of the body to some suitable person, but he makes the comment in paragraph 16 of the printout:

Although the cases make it clear that the decision as to the manner and place of disposition of a dead body is entrusted to the executors -

Here, your Honours, that would be the mother, flowing from the coroner’s decision -

they do admit qualifications. It is possible in certain circumstances for the Court to intervene on the application of an interested party. The executors are expected to consult with those interested and they may not exercise this power so as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner.

Your Honours, that was the forum, that was the nub, of what was being put in the first instance. It was post the coroner and it is submitted that the coroner had not required that there be an interment and had not expressed in the nature of that form 2 any direct refusal that there could be a cremation. Justice Byrne talks about the issue arising as to cremation and in paragraph 17 says:

In the case of cremation at least, it is at this point that the path through the judicial forest begins to peter out.

It is submitted, your Honours, that we are not seeking an advisory opinion here. What I am saying, your Honours, is that the position here is that there have been a number of cases of great heartbreaking complexity. There have been calls in those cases for some assistance. This particular case is one of the very rare instances where a court at this level will have an opportunity to consider these matters because they will not, as a matter of course, ever come before this Court because of issues concerning timing and pressure and urgency and heartbreak.

In this particular instance, my submission, your Honours, is that this is a suitable vehicle to review the issue concerning the coroner’s position and the coroner has expressed an interest, should leave be granted, to be joined and is aware of the prospect that this matter goes forward. The coroner is not joined today because the coroner did not appear in front of Justice Hansen and, again, did not formally appear in front of the appeals court and the appeals court, in my respectful submission, your Honours, misconceived the nature of the application made before Justice Hansen.

It was an application under Order 54 seeking that the person acknowledge to have the authority to dispose of the body, respect the opinion and the wishes of associates. In that sense, we submit, your Honours, that it is not an advisory opinion that is sought but some judicial guidance. The father seeks this Court to uphold the position taken by Mr Justice Hansen. We acknowledge that the father has made it quite clear that he will not intend and does not wish to otherwise deal with the body and it would not be appropriate and we would respectfully request that his sensitivity in that respect not be held against him in the Court’s determination as to whether this is an appropriate matter for leave to appeal. I do not wish to say anything further, your Honours.

GLEESON CJ: Thank you. We do not need to hear you, Mr Southall.

Having regard to the nature of the issues that presented themselves before the coroner and subsequently before the Supreme Court of Victoria, we think an appeal would have insufficient prospects of success to warrant a grant of special leave. The application is dismissed with costs.

AT 12.22 PM THE MATTER WAS CONCLUDED