Britt v Office of the State Coroner & Anor [2022] HCATrans 118 (1 July 2022)

Last Updated: 11 July 2022

[2022] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P18 of 2022

B e t w e e n -

SUZANNE BRITT

Applicant

and

OFFICE OF THE STATE CORONER

First Respondent

STACEY SCHOPPE

Second Respondent

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 1 JULY 2022, AT 12.30 PM

Copyright in the High Court of Australia

HER HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S.C. CHURCHES appears for the applicant. (instructed by Campbell Law)

MS S. SCHOPPE appears in person.

There is a submitting appearance from the first respondent.

HER HONOUR: I might just identify the relevant documents. Ms Britt’s application was filed on 28 June 2022, and it is supported by two affidavits of Mr Campbell, the first affirmed on 27 June 2022 and the second affirmed on 28 June 2022. Dr Churches, unless you object, I propose to read the two affidavits that have been filed by the first respondent.

MR CHURCHES: Yes. Thank you, your Honour. Yes.

HER HONOUR: All right. I will also read the two affidavits of Brendyn Nelson, the first affirmed on 29 June 2022 and the second affirmed on 30 June 2022. Dr Churches, is there any other evidence?

MR CHURCHES: Your Honour, I think overnight there was a – is that second affidavit – sorry, your Honour, that second affidavit of Brendyn Nelson is the one I was thinking of that came in overnight, yes.

HER HONOUR: All right. So, I have all of the evidence. Ms Schoppe, I should just check, I assume that you are opposing the application?

MS SCHOPPE: Yes, that is correct.

HER HONOUR: Yes, all right. Thank you. Dr Churches, I have read the application, the special leave application, the supporting affidavits. Is there anything that you wish to add?

MR CHURCHES: Yes, your Honour. When it comes to the special leave application, my submissions to you today were going to be entirely in terms of the second of the three grounds in that application, so dropping grounds 1 and 3, the second ground being, of course, the matter of whether customary law should be taken account of as a primary consideration when determining authority to dispose of the deceased.

HER HONOUR: Can I just seek to clarify something, Dr Churches, you are cognisant that I am not dealing with the special leave application, I am only dealing with the stay application?

MR CHURCHES: Yes. I am merely working, your Honour, off the checklist provided by Justice Brennan in Jennings v Burgundy back in 1986 where the first of the four factors his Honour set out for getting a stay in the High Court was that there had to be:

a substantial prospect that special leave to appeal will be granted –

and I think I need to be able to make that case to your Honour today, that there is a substantial possibility, at least, of a grant. The other ‑ ‑ ‑

HER HONOUR: Are you – I just need to understand the ambit – are you saying that your client is no longer relying on grounds 1 and 3 for the purposes of the special leave application, or are you just relying on ground 2 for the purposes of the stay application?

MR CHURCHES: I am relying on ground 2 for the stay application, your Honour.

HER HONOUR: I see. All right, thank you.

MR CHURCHES: I have not got instructions about 1 and 3 at this stage.

HER HONOUR: I see. Go on.

MR CHURCHES: Yes. Sorry, the other three factors in Justice Brennan’s table of factors were that – the second one was that the applicant had – whether they had taken steps necessary to seek a stay from the court below, and in our submission that has been attended to and is evidenced in the affidavit of Mr Timothy Campbell of 28 June this year, that is the second of the Campbell affidavits, and that attaches the secondary judgment of the West Australian Court of Appeal evidencing that an application was made for stay which was refused by that Court. That was Monday of this week, 27 June. So, the applicant has made that attempt, it has failed below. The next of the factors in Justice Brennan’s table was:

whether the grant of a stay will cause loss to the respondent –

and our submission is that this would make it impossible for the respondent to exercise such authority over the deceased as she had at the time of the decision last Friday from the West Australian Court of Appeal, but there is no other material loss, there was no financial loss in that sense. So, the fourth factor was:

where the balance of convenience lies.

In our submission, the balance of convenience in this application must be with the applicant, because if there is no stay granted then, of course, the basis of the litigation will be subject to disappearance and the litigation will, of course, terminate, it will become moot.

HER HONOUR: What about the balance of convenience factors identified by the Western Australian Court of Appeal?

MR CHURCHES: No, I have not taken account of them, your Honour, if you could just – I will just look that up.

HER HONOUR: Well, let me remind you, they are that Ms Schoppe would be further deprived of the opportunity to grieve the deceased’s death by arranging a funeral, and that the respectful treatment of the deceased’s body and the emotional well‑being of those close to him in Western Australia would also count against a stay, and also the interest in bringing finality to the resolution of the dispute.

MR CHURCHES: Yes, your Honour. In these funeral disputes, there is always going to be this misfortune, and I do not mean to downplay it, and every sympathy to the respondent in this matter, but my client also has a strong emotional interest, otherwise we would not be here making these submissions. Yes, one party will end up being disappointed as to the disposal of the deceased, and in our submission, we have a sound case for why the disposal should be on terms proposed by the applicant to this submission. That will end up with disappointment to the respondent.

It is a misfortune of the funeral dispute. There are many of these cases – Chief Justice Doyle in the South Australian case of Dodd v Jones, which followed on the earlier case of Jones v Dodd, but in Dodd v Jones his Honour specifically finished up with a paragraph lamenting that there was inevitably going to be disappointment and sadness in these cases, but that the court simply had to make a resolution. In our submission, this is a matter which is appropriate for the High Court to attend to because there are conflicting approaches of Supreme Courts in this matter.

There has plainly been a divergence between the South Australian Full Court in Jones v Dodd and later case law, in particular a matter I will come to in a moment, your Honour, a case called Ken decided last year by Justice Stanley in the South Australian Supreme Court, and those decisions are plainly with a view to giving primacy to customary law in the determination of who should have authority to dispose of the deceased, whereas the West Australian Court of Appeal has plainly gone down another path with the plurality not referring to anything to do with customary law at all.

Justice Mitchell has, over some paragraphs, adverted to the issue, but then has shied away from it, and in our submission, the assumption that is apparent in the West Australian Court of Appeal decision is that the approach is to see who has, or who . . . . . order of primacy according to common law standards for determination of the estate. That approach, in our submission, is false where there are customary issues at stake.

HER HONOUR: As I understood the special leave application, the position was that the West Australian Court of Appeal identified the relevant principles as those stated in Jones v Dodd, the question was whether or not they erred in applying those principles. Is that correct?

MR CHURCHES: Justice Mitchell did set out his understanding of Jones v Dodd, your Honour, that is correct, but he then did not apply them, yes.

HER HONOUR: Thank you. I also did not pick up in the special leave application the contention that there were conflicting statements of principle, if that is what you are saying, in the different courts.

MR CHURCHES: Yes. I think, your Honour, to be candid, that is important in attracting the attention and the eye of the High Court in a special leave application, to show that there is a variation throughout Australian common law which requires some uniformity of approach.

HER HONOUR: Well, where is this dealt with in the special leave application?

MR CHURCHES: Yes, I suspect, your Honour, it may not be addressed in those terms. Yes.

HER HONOUR: I see. All right. Well, before you go on to deal with that orally, could we just finish off dealing with the written application. There is a contention that the Court of Appeal should have taken judicial notice at paragraph 19.

MR CHURCHES: Yes.

HER HONOUR: Was that put to the Court of Appeal?

MR CHURCHES: Now, your Honour – the truth is, I have come into this matter very late in the day. I am not aware of the advocacy of the West Australian end of this matter.

HER HONOUR: I think there is something in the reasons for the stay application in the Court of Appeal to the effect that the issue of discretion was dealt with at a very high level, perhaps in a very superficial way, which made me question whether or not that point was taken in the Court of Appeal. Could you get instructions on that?

MR CHURCHES: Excuse me, your Honour. Yes. Your Honour, my instructions are that it was not, apparently, directly put, but we would submit that plainly the court was aware, given that Justice Mitchell has referred at some length, over four or five paragraphs, to that express issue.

HER HONOUR: Well – it is not obvious to me, sitting here in Sydney, that that proposition is correct. It is not supported by authority, and perhaps if you identify the relevant passages to the Court of Appeal’s judgment, I will be better informed about it.

MR CHURCHES: Yes, your Honour. Justice Mitchell at paragraphs 56 to 59, and also at paragraph 148 in the Court of Appeal.

HER HONOUR: Paragraphs 56 to 59. I am just skimming that, but you will have to point out to me where anything is said about judicial notice and the more specific proposition that judicial notice should be taken that a white woman cannot provide evidence of the wishes of an Aboriginal man, which are presumably any wishes.

MR CHURCHES: Yes, I think, your Honour, those specifics are subsumed into the general proposition that Jones v Dodd, the decision of Justice Perry for the Full Court in that case, was to the effect that there should be a primacy given to indigenous cultural interests, and that was given in very general terms in Jones v Dodd, although his Honour Justice Perry did address that matter over some paragraphs.

HER HONOUR: But there is a complexity here, I think, which is the distinction between indigenous interests of the deceased and indigenous interests of the family of the deceased, and as I understand it in this case, there was some evidence about the wishes of the deceased which did not necessarily conform with the interests of the family. So, what are the relevant indigenous interests?

MR CHURCHES: Well, in this case, your Honour, the indigenous interests of our client, the mother, as opposed to that of the now‑widow, whose interests are not customary but waiting to be determined according to common law.

HER HONOUR: But – maybe I have not expressed myself well – are we concerned with the wishes of the deceased, here, or are we not?

MR CHURCHES: No, your Honour, in our submission, we shy away, as it were, from the issue of the interests of the deceased, because all the case law says that the common law is clear that the interests of the deceased are not a primary interest. Many of the judges working in this field now say that the interests of the deceased might be taken note of, but they then in turn note that the common law is clear that the interests of the deceased have no ruling in common law. So, we do not want to address that issue at all, your Honour. For us, it is a bit of a red herring.

HER HONOUR: I see. All right. Well, then, coming back to this question of judicial notice, is there any – are you offering any support in the case law for the proposition that judicial notice should be taken of what evidence a white female can give about the wishes of an Aboriginal man?

MR CHURCHES: Your Honour, I have not got any case law addressing that gender distinction.

HER HONOUR: Supporting this proposition in paragraph 19 of the special leave application.

MR CHURCHES: Yes, yes, I am – your Honour, in the time available for me, I have not had time to go through the Victorian Law Reform Commission, but it may have something on this. I am not sure, it is a paragraph – a footnote. Yes. My instructor is just pointing out that there is a reference to “men’s business” but your Honour would say, well, the matter is about gender distinction generally.

HER HONOUR: I suppose – I mean, it is not obvious to me that that second sentence follows from the first. So – is the claim here that the wishes of the deceased, about how his body should be dealt with, “men’s business”, and is the suggestion that the Court should take judicial notice of that as well?

MR CHURCHES: Your Honour, I rather suspect that paragraph 19 is superfluous to the issue that is really at stake in ground 2, proposed ground 2 for the special leave, that gender distinction here is merely an illustration of customary law matters, and in the – the facts of the incident case, of course, involve a widow and a mother, so we do not have a gender issue at stake, although the answer to that might be that that the deceased was male, but the wishes of the deceased are not, in our submission, an issue. We have got a contest between a customary law‑based mother and a common law‑based widow.

HER HONOUR: Yes. All right. So, what more did you want to say about the second ground of appeal?

MR CHURCHES: Your Honour, that Justice Perry in what we regard as the foundation case of Jones v Dodd back in 1999 went some distance to referring – for support for his approach to introducing customary law standards – by referring to the International Convention on – it is the ICCPR, Convention on Political rights. He then further referred to what was then the draft Declaration on the Rights of Indigenous Persons.

That declaration did not come into being until 2007, at which point, I might say, it was rejected by the Australian Government, along with the US, New Zealand, and Canadian Governments, but the Australian Government did accept it in 2009. So, our submission is that, in general terms, things have moved a long way since Jones v Dodd 23 years ago, because we have since then had commentary from Professors Vines and Atherton – that is Professor Rosalind Atherton, now Professor Croucher – dealing with this topic, they are referred to in footnotes. The West Australian Law Reform Commission Report of 2006 on Aboriginal Customary Law ‑ ‑ ‑

HER HONOUR: Dr Churches, were these submissions put to the West Australian Court of Appeal?

MR CHURCHES: Again, I – my instructor thinks that the references to – certainly to the academics Vines and Croucher, I understand – and the West Australian Law Reform Commission report – yes. I would just note that West Australian Law Reform Commission report, your Honour, page ‑ ‑ ‑

HER HONOUR: I am sorry, I did not quite understand. Were you saying that this argument was put to the West Australian Court of Appeal?

MR CHURCHES: Yes, I am told that in particular the references to the West Australian Law Reform Commission were made, and that ‑ ‑ ‑

HER HONOUR: That is a different proposition, and I think perhaps I should try and get a bit of clarity around what exactly the argument is that you are now seeking to put, given that it is not in the written application. Can you firstly identify the argument, and then secondly tell me whether that was put to the West Australian Court of Appeal?

MR CHURCHES: Yes. The argument, your Honour, is that Jones v Dodd should command the field. According to Jones v Dodd, primacy should be given to customary rights in dealing with funeral arrangements, and that was clearly put, in my submission, or in my understanding of what was put to the West Australian Court of Appeal. Our submission at that point, your Honour, is that in support of why Jones v Dodd should be regarded as the leading authority in this area are the fact that academics have since commented on it at some length, and that the West Australian Law Reform Commission in 2006 wrote – I am looking at page 260, your Honour, it said:

The Commission believes that, as common law precedent, courts will take the decision in Jones v Dodd into account in determining cases where no estate exists –

Which, of course, that is the standard problem:

or where there is no likelihood of an application for a grant of administration –

HER HONOUR: So, Dr Churches, can I ask you just to go to the judgment on the stay application? Do you have that?

MR CHURCHES: I do, if I can just find it, your Honour. Yes ‑ ‑ ‑

HER HONOUR: It starts at a paragraph 152 of the Court of Appeal judgment.

MR CHURCHES: I am getting there, your Honour. I am sorry, your Honour, which paragraph was that?

HER HONOUR: I am looking at paragraph 155.

MR CHURCHES: Of the Court of Appeal?

HER HONOUR: Correct.

MR CHURCHES: Yes. No, I am lost, your Honour. I have got – my Court of Appeal, the principal judgment only goes to 151, I think.

HER HONOUR: This one is called [2022] WASCA 75(S).

MR CHURCHES: Yes.

HER HONOUR: And it is the reasons – on the application for a stay.

MR CHURCHES: Yes, and I go down to paragraph 11 of that judgment.

HER HONOUR: I see. Do you see a paragraph, which I think is the fourth paragraph, the issues on the appeal?

MR CHURCHES: I have got it, yes, your Honour.

HER HONOUR: And you see point 4:

whether the judge erred in law in failing to give sufficient weight to the cultural values and spiritual and religious beliefs of the deceased’s family –

MR CHURCHES: Yes, your Honour.

HER HONOUR: That seems to be the issue that we are dealing with now.

MR CHURCHES: Yes.

HER HONOUR: If you turn over, then, two paragraphs down, you will see a paragraph saying:

It is difficult to see how any of the issues raised in the appeal to this court have any substantial prospect –

MR CHURCHES: Yes, your Honour.

HER HONOUR: And then if you look at point 4, the judgment says:

The appellant’s submissions to this court in relation to the fourth issue were perfunctory and merely asserted a failure to give sufficient weight to the consideration.

And then there is another sentence, and then it is said in deciding this:

the Court applied the decision in Jones v Dodd –

Now, is your client taking issue with that, that the issue was dealt with in a perfunctory way, and that the court applied the decision in Jones v Dodd?

MR CHURCHES: Well, your Honour, we would submit that it was not perfunctory, but that the – with all due respect to the West Australian Court of Appeal, in our submission, the court has dealt with the submissions on Jones v Dodd in a perfunctory way, as evidenced by the few brief paragraphs in Justice Mitchell’s decision.

HER HONOUR: So, if special leave were granted, there would be an issue about how this matter was dealt with, a factual issue about how the issue was – the ambit of the submissions that were made to the Court of Appeal, is that right?

MR CHURCHES: Yes, your Honour.

HER HONOUR: Then, is it disputed that the court applied Jones v Dodd?

MR CHURCHES: But, in our submission, in a merely perfunctory way, and indeed, your Honour, that is relevant to our submission that it requires – it would be useful if the High Court were to standardise an approach here so that Jones v Dodd was not merely referred to in the mix in passing, as it were, as it is in the decision of Justice Mitchell and that it should be, in our submission, a primary consideration.

HER HONOUR: So, the special leave question is not about the correct principles, it is about the application of the principles?

MR CHURCHES: Yes, your Honour, it is.

HER HONOUR: All right. Thank you. Did you want to say anything more?

MR CHURCHES: Your Honour, I think that – the submission we finally make is that we hope for a provision of uniformity in Australian common law as to the rights affecting funerals of indigenous persons.

HER HONOUR: Did you want to point out anything that indicates that there is an inconsistency in the application of the principles in Jones v Dodd?

MR CHURCHES: Yes, your Honour. The distinction, for example, between the West Australian Court of Appeal and the relatively recent decision of the South Australian Supreme Court, a case – I am sorry, it is not on any of the lists, your Honour, I only found it last night – State of South Australia v Ken [2021] SASC 10, decision of Justice Stanley, the point being that Justice Stanley relies fair and square on Jones v Dodd to determine the primacy of indigenous customary approaches to funeral rights, and in passing his Honour Justice Stanley at paragraph 27 goes a little wider and he says:

In Love v Commonwealth Bell J said that the High Court in Mabo v Queensland recognised a connection that Aboriginal Australians have with “country” that is essentially spiritual. In Love Nettle J observed that central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.

In our submission, your Honour, the approach of Justice Stanley puts the business of funeral rights – that is r‑i‑g‑h‑t‑s – in a broader context going back to Mabo and customary rights generally in this country as expressed, for example, in Love’s Case in 2020. And that, in our submission, is a
totally different approach from the West Australian Court of Appeal, which went straight for the common law, let us look at the table of who has an ascendency amongst the possible beneficiaries of an estate, who would be first in the right to contest, and in our submission, that is not appropriate where there are indigenous issues at stake.

HER HONOUR: All right. Thank you, Dr Churches.

MR CHURCHES: Thank you, your Honour.

HER HONOUR: Ms Schoppe, I am not going to ask you to say anything, and the reason for that is that I am going to dismiss the application. So, in other words, you will win.

MS SCHOPPE: Thank you, your Honour.

HER HONOUR: So, I will now read out the judgment.

[JUDGMENT READ OUT]

HER HONOUR: Ms Schoppe, have you incurred any costs in relation to this application to the High Court?

MS SCHOPPE: Not that I am aware of, your Honour. I have represented myself throughout the whole proceedings.

HER HONOUR: All right. Thank you. So, I will not make any order as to costs. Is there anything else, Dr Churches?

MR CHURCHES: No. Thank you, your Honour.

HER HONOUR: All right. Could you please adjourn the Court.

AT 1.13 PM THE MATTER WAS CONCLUDED