TRACEY PATRICIA PHILLIPS v THE STATE CORONER [2024] SASC 134

Applicant: TRACEY PATRICIA PHILLIPS Counsel: MR M TAYLOR - Solicitor: ADELTA LEGAL First Respondent: THE STATE CORONER Counsel: MR M MILBURN - Solicitor: CROWN SOLICITOR'S OFFICE Second Respondent: SHYANNE PHILLIPS Counsel: DR R GRAY KC - Solicitor: DOUGLAS HOSKINS LEGAL Hearing Date/s: 18/11/2024 File No/s: CIV-24-010209 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. PHILLIPS v THE STATE CORONER & ANOR [2024] SASC 134 Judgment of the Honourable Associate Justice Dart 26 November 2024 SUCCESSION - PERSONAL REPRESENTATIVES - RIGHTS, POWERS AND DUTIES - DISPOSAL OF BODY HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES HEALTH LAW - BURIAL AND CREMATION - POWERS OF AUTHORITIES The applicant is the mother of the late Scot Adam Phillips - the body of the deceased is held by the Coroner - the second respondent is the twin sister of the deceased - this dispute relates to the question of who should have the conduct of the funeral arrangements for the deceased - it also relates to whether there should be a burial or a cremation - the resolution of the dispute requires a consideration of the operation of the Burial and Cremation Act 2013 (SA) - it also requires a consideration of the inherent jurisdiction of the Court and the interaction of that jurisdiction with the Act. Held: 1. The second respondent is to have conduct of the funeral of the deceased. 2. The second respondent is to arrange for the applicant to have a private viewing of the body of the deceased before the funeral. 3. There is to be a cremation of the body of the deceased. 4. The ashes of the deceased are to be shared equally between the applicant and the second respondent. Burial and Cremation Act 2013 (SA) ss 5, 9, 10 and 11, referred to. -- 1 of 9 -- Smith v Tamworth City Council (1997) 41 NSWLR 680; Jones v Dodd (1999) 73 SASR 328; Marschall v Elson [2023] SASCA 1; State of South Australia v Smith & Anor [2014] SASC 64; Marschall v Elson (No 2) [2023] SASCA 3; Maros & Anor v Luca & Ors [2024] SASC 98; Dodd v Jones [1999] SASC 458, considered. -- 2 of 9 -- PHILLIPS v THE STATE CORONER & ANOR [2024] SASC 134 1 This is a sad and distressing matter. Two family members are in dispute about who should have the conduct of the funeral arrangements for a recently deceased family member. Unfortunately, the parties have not been able to reach a consensus on the best way to proceed. It falls to the Court to make a determination. As of necessity a quick judgment is required. Background 2 Scot Adam Phillips died on 10 September 2024 aged 19 years. A person has been charged with his murder. The body of the deceased is presently held by the Coroner. He has given an undertaking not to release the body until these proceedings have resolved. 3 The applicant is the mother of the deceased. The contest is between her and the second respondent who is a daughter of the applicant and the twin sister of the deceased. Each wants possession of the body to conduct a funeral. The other area of dispute is whether the funeral should take the form of a burial or a cremation. 4 The family history is very sad. The deceased and the second respondent were taken from the applicant at a few months old and placed into foster care. The applicant had visitation rights and it seems that those rights were utilised until the children were about nine years old. 5 There was then a period until the children were about 14 during which there was little or no contact. There was a resumption of some contact at about the age of 14 with the deceased. The extent is not clear but there was some text message contact. 6 The deceased got into difficulties with the law. For a period when he was 17 and 18 he was incarcerated. The last period of incarceration was at Yatala Labour Prison. He was released from prison about nine months before he died. During that period the applicant was in contact with the deceased, predominantly by way of text messages. Some evidence of Facebook contact was tendered at the hearing. During that period the applicant also visited the deceased at his home on at least one occasion. She said that she had other text message contact with the deceased in that period. 7 The evidence suggests that the relationship between the applicant and the deceased was not straightforward. It is not clear to what extent the deceased wished to resume a relationship with his mother. There is some evidence from the second respondent that he regarded the applicant as someone who could be used for the purpose of obtaining money. 8 A fair summary of the position would seem to be that the applicant wished to resume a relationship with the deceased. That position may not have been fully -- 3 of 9 -- [2024] SASC 134 Dart AsJ 2 reciprocated. There is no dispute that the second respondent had a much closer relationship with her brother than did the applicant. The legal issues 9 There is a considerable amount of law that is relevant to resolving this dispute. The common law position is that an executor named in a will is entitled to take possession of the body of the deceased and is responsible for organising the funeral of the deceased. 10 The common law position was discussed by Young J in Smith v Tamworth City Council.1 His Honour said:2 It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, In the Estate of Slattery (1909) 9 SR (NSW) 577; 26 WN (NSW) 116, the person with the largest interest will normally be the person who is the one expected to bury the body. 11 The deceased left no will. There is, accordingly, no executor. In South Australia the Supreme Court Probate Rules provide an order of priority in respect to people seeking a grant of administration.3 The highest priority is for the domestic partner. The next priority is given to the children of the deceased and thereafter to the parents of the deceased. 12 In Jones v Dodd4 Perry J said that where there was no realistic likelihood of an application for a grant of administration in intestacy, giving priority to the person best placed to make such an application takes on an air of unreality. 13 Last year the Court of Appeal in Marschall v Elson5 undertook a consideration of the various authorities on the topic. The Judges summarised the key propositions as follows:6 Following this review of the authorities, the key propositions appear to be these: 1. There is no property in a dead body, and it may not be owned by anyone. Nonetheless in certain circumstances the law may protect the lawful possession of a corpse or body parts. 2. When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative. Where there is a will, that is the executor 1 (1997) 41 NSWLR 680. 2 (1997) 41 NSWLR 680 at 691. 3 Rule 34, Supreme Court Probate Rules 2015. 4 (1999) 73 SASR 328. 5 [2023] SASCA 1. 6 [2023] SASCA 1 at [59]. -- 4 of 9 -- [2024] SASC 134 Dart AsJ 3 or executrix named in the will. There is no longer any obligation in a husband to meet the reasonable funeral expenses of his deceased wife. 3. Where the deceased does not have the means to pay for burial, the occupier of the premises in which the person dies has the duty to cover the body and convey it for burial. That obligation extends to hospitals and medical facilities. 4. Where there is no executor named, but the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup those expenses out of the estate. 5. Where the deceased dies intestate, but there is no significant estate, or it is unlikely that an application will be made to take out letters of administration, the wishes of the person best placed to obtain an order for administration will not necessarily be accorded significant weight on account of that fact alone. 6. Rather, in all cases involving intestacy, the proper approach requires a flexible balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious matters that are of importance on the evidence. This extends to taking into account, at the least, the wishes of the deceased and the members of the family of the deceased. 7. It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased, and the conscience of the community, require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved. (footnotes omitted) 14 The Court has before it a number of affidavits. There has been some cross-examination of the deponents. A cautious approach to making findings of fact is called for in the circumstances.7 The Burial and Cremation Act 2013 15 It is appropriate to consider the operation of the Burial and Cremation Act 2013 (“the Act”). A significant part of the dispute between the second respondent and the applicant is the question of whether the deceased should be buried or cremated. On one view of the Act, a burial is the standard procedure and a cremation is a conditional outcome. 16 The first section to consider is the following: 9—Offences relating to cremation (1) A person must not dispose of bodily remains by cremation, or cause, suffer or permit bodily remains to be disposed of by cremation, unless the Registrar has issued a cremation permit in respect of the remains. 7 State of South Australia v Smith & Anor [2014] SASC 64 at [41]. -- 5 of 9 -- [2024] SASC 134 Dart AsJ 4 Maximum penalty: $10 000 or imprisonment for 2 years. (2) A person must not dispose of bodily remains by cremation, or cause, suffer or permit bodily remains to be disposed of by cremation, except at a lawfully established crematorium. Maximum penalty: $10 000 or imprisonment for 2 years. (3) A person must not dispose of bodily remains by cremation or cause, suffer or permit bodily remains to be disposed of by cremation, if the person knows or is aware that a personal representative or a parent or child of the deceased objects to this method of disposal (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation). Maximum penalty: $10 000. 17 The Registrar must issue a permit to allow a cremation to take place. Relevant to this issue is: 10—Cremation permits (1) Subject to this section, the Registrar may, on application made by— (a) a personal representative or close relative of a deceased person; or (b) a person aged 18 years or more who satisfies the Registrar that he or she is, in all the circumstances, a proper person to make the application, issue to the applicant a cremation permit authorising the disposal of the remains of the deceased person by cremation. … (7) The Registrar must not issue a cremation permit if— (a) the Registrar knows or is aware that a personal representative or a parent or child of the deceased objects to the disposal of the remains by cremation (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation); or (b) an order prohibiting disposal by cremation has been made under section 11; or (c) the death is a reportable death under the Coroners Act 2003. (8) If the Registrar becomes aware of a dispute as to who may be entitled at law to possession of the body of a deceased person for the purposes of its disposal, the Registrar may refrain from issuing a cremation permit in respect of the body until the dispute is resolved. 18 The Registrar referred to is the Registrar of Births, Deaths and Marriages. Reference should also be made to the following: 11—Power of Attorney-General, State Coroner or magistrate to prohibit disposal by cremation -- 6 of 9 -- [2024] SASC 134 Dart AsJ 5 (1) The Attorney-General, the State Coroner or a magistrate may, if he or she considers that there is reasonable cause for doing so, by order in writing, prohibit the disposal of the remains of a specified deceased person by cremation, either absolutely or until specified parts of the body of the deceased person have been removed and lodged in such manner and custody as the Attorney-General, State Coroner or magistrate may require. 19 The applicant, a parent, objects to a cremation taking place. Accordingly, pursuant to s 10(7), the Registrar is not able to issue a certificate. Therefore, there can be no cremation but there can be a burial. No certificate is required to proceed with a burial. 20 There is no mechanism in the Act to resolve a dispute between family members as to whether there should be a burial or cremation. In s 5 of the Act it is said that the provisions of the Act are in addition to, and do not derogate from, any other Act or law. Derogate means to detract from. The common law will be amended by the Act only where there is a direct conflict. 21 In Marschall v Elson, referred to above, the Court of Appeal noted that in that matter neither, before the primary Judge or in the Court of Appeal, was the question of s 9(3) of the Act addressed. In Marschall v Elson (No 2)8 the Court of Appeal, in an ex tempore judgment, made orders and stated the effect of the orders was that there was no longer any impediment to a cremation. 22 In Maros & Anor v Luca & Ors9 Bampton J was considering the effect of s 9(3) of the Act. Her Honour said:10 In Marschall v Elson (No 2), the Court of Appeal, in dismissing an appeal against an order permitting cremation, said, “The effect of these orders is that there is no longer any impediment to cremation”. Whilst the Court of Appeal in Marschall v Elson (No 2) did not address s 9(3) of the Act, it can be inferred it determined an order of the Court permitting cremation resolves any dispute such that an objection within the meaning of s 9(3) cannot be maintained. Accordingly, s 9(3) of the Act is not the end of the matter. It is for this Court to determine the application in its inherent jurisdiction. (footnotes omitted) 23 The position is that the Court has an inherent power to deal with matters of burial and cremation. The effect of s 5 of the Act is that the Court’s inherent jurisdiction is not to be diminished by the Act. Logically that would mean that the Act and the inherent jurisdiction must work together so as to avoid a conflict between the two sources of law. Both counsel before the Court in this matter urged 8 [2023] SASCA 3. 9 [2024] SASC 98. 10 [2024] SASC 98 at [30]-[32]. -- 7 of 9 -- [2024] SASC 134 Dart AsJ 6 the Court to adopt the approach suggested by Bampton J and determine the matter in the inherent jurisdiction of the Court. I propose to adopt that course. 24 The issue of the Court’s inherent jurisdiction and its interaction with the Act needs to be considered more fully in an appropriate case. If the Court has the power to order a cremation, notwithstanding the provisions of the Act, it should make a supplementary order permitting the Registrar to issue a permit so that the cremation takes place in conformity with the Act. Consideration of the issues 25 Before I move on to a consideration of the issues that will determine the outcome of this dispute, I wish to adopt the sentiment expressed by Doyle CJ in Dodd v Jones:11 Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party. 26 The situation is the same in this matter. All the Court can do is make a decision. Someone will be hurt by the outcome. 27 At the commencement of the hearing the Court was advised of two open offers. The offer put by the applicant was that the second respondent could have conduct of the funeral arrangements but that those arrangements would involve a burial of the deceased. The competing offer from the second respondent was that she would have the conduct of the funeral arrangements, there would be a cremation but she would share the ashes with the applicant. She was also prepared to allow the applicant to have a private viewing of the body of the deceased. 28 In the circumstances then, the difference between the parties really came down to whether there should be a burial or cremation. 29 Unsurprisingly, there is no serious evidence about the deceased’s wishes in regard to whether he should be buried or cremated. He was a young man entering adulthood and such matters would not have been on his mind. It is the second respondent who wishes a cremation. Her evidence was to the effect that in her extended foster family cremation was the normal approach. She gave evidence that she was concerned about possible vandalism of any grave of the deceased if he was buried. She also wished to keep the ashes of the deceased with her. 30 The applicant indicated she would prefer a burial. She wanted a gravesite to be able to visit so that she could remember her son. I accept that the applicant was 11 [1999] SASC 458 at [36]. -- 8 of 9 -- [2024] SASC 134 Dart AsJ 7 attempting to establish a relationship with the deceased during the period before he died. 31 Since the hearing, I must admit that I have changed my mind several times as to the appropriate outcome. The applicant is the mother of the deceased and even though her relationship with her son had been difficult and fractured, the fact that she was the mother of the deceased should be respected and given proper weight. I have given serious consideration to whether a burial was the most appropriate outcome, but ultimately I have decided a cremation is required. 32 It was clear on the evidence that a funeral to be organised by the second respondent would be more widely supported by the broader family than a service organised by the applicant. For that reason, it is more appropriate for the second respondent to have the conduct of the arrangements. 33 In giving proper respect to the wishes of the parties and having regard to the interests of all involved, and with an apology to the applicant, the following is the best outcome: 1. The second respondent is to have conduct of the funeral of the deceased. 2. The second respondent is to arrange for the applicant to have a private viewing of the body of the deceased before the funeral. 3. There is to be a cremation of the body of the deceased. 4. The ashes of the deceased are to be shared equally between the applicant and the second respondent. 34 I will hear the parties on the proper form of orders to be made. -- 9 of 9 --