8. Which court or tribunal should hear funeral and burial disputes?

 

Introduction

  1. 8.1 The Commission is aware of 48 funeral and burial disputes that have been determined by the courts in Australia over the last 30 years. Seven of these took place in Victoria.1
  2. 8.2 This number is far lower than the number of funeral and burial disputes that take place in the community. One reason for this discrepancy is that there are few legal avenues available to those close to the deceased to challenge the near-absolute authority of the deceased’s executor or likely administrator.
  3. 8.3 The Commission’s proposed legislative regime would allow people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent. It would also place greater obligations on the person with the right to control the funeral and burial arrangements of the deceased where no instructions were left.
  4. 8.4 While the Commission has been mindful of the need to establish a regime that provides the certainty and clarity needed when making funeral and burial arrangements, it has also attempted to provide greater flexibility when it comes to recognising the wishes of the deceased, and to a lesser degree, the wishes of the bereaved.
  5. 8.5 Although the Commission is of the view that encouraging people to talk about and document their funeral and burial wishes in binding instructions will prevent disputes, it is clear that the Commission’s proposed legislative regime would create more opportunities for people to go to court in the event of a dispute.
  6. 8.6 A family member or close friend of the deceased might wish to challenge the authority of the person who believes they have the right to control the funeral and burial arrangements of the deceased and/or the arrangements that person makes. Alternatively, the person with the right to control the funeral and burial arrangements of the deceased may ask a court to compel a family member or close friend of the deceased to recognise their authority by, for example, relinquishing the ashes of the deceased.
  7. 8.7 Consequently, the question of which court or tribunal should have jurisdiction to hear disputes under the Commission’s proposed legislative regime is an important consideration.
  8. 8.8 This chapter outlines the law and practice of the courts that currently have jurisdiction over funeral and burial disputes, as well as the law and practice of the court and tribunal that could be granted jurisdiction over such disputes. It then sets out the community’s responses and Commission’s conclusions in relation to the question of jurisdiction.
  9. 8.9 Enabling parties to settle their disputes without court intervention is also important. The role of mediation in achieving this is considered in Chapter 9.

Law and practice

Supreme Court of Victoria

  1. 8.10 The Supreme Court of Victoria has original jurisdiction to hear funeral and burial disputes. As Justices Maxwell and Charles stated in Gilliot v Woodlands:

It is well-established that the [Supreme] Court has original jurisdiction to decide between competing claims made on behalf of different persons wishing to be given possession and control of a body for disposal.2

  1. 8.11 Applications regarding funeral and burial disputes can be initiated by filing an originating motion pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), which allows parties to seek resolution of a dispute without having to apply for general administration of a deceased’s estate.3
  2. 8.12 The Supreme Court may grant injunctions at any stage of a proceeding and, in urgent cases, before proceedings have been filed.4 This is important in funeral and burial disputes where, for example, a person may wish to obtain an interim injunction to stop a funeral from occurring or a body from being buried, until the dispute has been heard by the court.5
  3. 8.13 In the seven cases that have been determined by the Supreme Court in relation to a funeral and burial dispute, parties sought:
  • orders and directions granting the right to control the disposal of the body of the deceased6
  • judicial review of a Coroners Court decision relating to the release of a body to a family member7
  • an order that the ashes of a deceased be disinterred and delivered to a family member.8
  1. 8.14 All but one of the seven cases were heard in the Supreme Court’s Practice Court.9 The Practice Court sits at any time depending on the urgency, and after hours assistance is provided on weeknights and weekends.10
  2. 8.15 Hearing cases in the Practice Court allows parties to have their matter determined as quickly as possible and thereby reflects community expectations regarding funeral and burial disputes. In the case of Meier v Bell,11 Justice Ashley considered that the ‘conscience of the community’ requires that the court resolve funeral and burial disputes ‘in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency’.12
  3. 8.16 Evidence in such cases is generally led by affidavit evidence only, and usually cross-examination is considered inappropriate:

The authorities establish that the court ought not, in an application such as this, embark upon a lengthy adversarial hearing to resolve the various claims and counterclaims. This would delay the decision for an unacceptable period while the body remained undisposed of. Accordingly, cross-examination will be inappropriate.13

  1. 8.17 At any stage of a civil proceeding, the court may order that the parties be referred to mediation.14 An external mediator may assist the parties or judicial mediations can be conducted in court by associate judges or judicial registrars.15 The Supreme Court website refers parties to mediation services provided by the Victorian Bar, the Law Institute of Victoria Mediation Service, the Institute of Arbitrators and Mediators Australia, and LEADR.16 The cost of any mediation is shared between the parties.
  2. 8.18 At present, the combined cost of filing an originating motion and summons is $1424.70,17 though the fees may be waived on the grounds of financial hardship.18 In most instances, fee waivers will only be granted for parties who have not instructed a lawyer to represent them in proceedings.19
  3. 8.19 Parties in the seven cases that have come before the Supreme Court have all instructed counsel to represent them. The need for counsel can place a significant financial burden on parties who seek the court’s assistance.

County Court of Victoria

  1. 8.20 The County Court of Victoria also has jurisdiction to hear funeral and burial disputes.20 However, the Commission is not aware of any funeral or burial disputes that have been determined by that court.
  2. 8.21 Applications regarding funeral and burial disputes can be initiated by filing an originating motion pursuant to Rule 54.02 of the County Court Civil Procedure Rules 2008 (Vic), which mirrors Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).21
  3. 8.22 Like the Supreme Court, the County Court hears urgent applications and has the power to grant injunctions.22
  4. 8.23 The filing fee in the County Court is $835, although this cost can be waived in limited circumstances.23
  5. 8.24 It too makes use of alternative dispute resolution processes and m ediation is encouraged in the majority of cases.24 In civil proceedings, the court may, with or without the parties’ consent, refer a matter to mediation or arbitration.25
  6. 8.25 The County Court sits in Melbourne and in 12 regional locations.26

Coroners Court of Victoria

  1. 8.26 The Coroners Court of Victoria has limited jurisdiction to intervene in funeral and burial disputes under the Coroners Act 2008 (Vic).
  2. 8.27 When releasing a body that has been under the control of the coroner, the coroner must make an order stating to whom the body is to be released and specifying any terms and conditions of that release.27
  3. 8.28 Where more than one person applies to the coroner for the release of a body, the coroner is required to determine who has the better claim to the body after having regard to the fact that:
  • The executor should have the highest claim to the body.
  • In the absence of an executor, the deceased’s senior next of kin should have the highest claim to the body.28
  • If there are two or more applicants who may be considered senior next of kin, or no senior next of kin, the person with the highest claim should be determined in accordance with the common law relating to the release and disposal of a body.29
  1. 8.29 When exercising their authority, the coroner must consider certain factors set out in the Coroners Act 2008 (Vic), including that ‘different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected’.30
  2. 8.30 In Carter v The Coroners Court of Victoria, Justice Almond held that cultural considerations may influence the question of whether the body should be released to the senior next of kin.31
  3. 8.31 An appeal of a coroner’s order to release a deceased’s body to a particular person must be made within 48 hours,32 and remains limited to appeals on questions of law.33 If an appeal is successful, the Supreme Court may determine who a body should be released to and any conditions of that release.34
  4. 8.32 Of the seven cases that have been heard by the Supreme Court in Victoria, three cases have been appeals from a coroner’s decision.35

Magistrates’ Court of Victoria

  1. 8.33 The Magistrates’ Court of Victoria has jurisdiction over civil matters in which the amount claimed does not exceed $100,000, as well as other nominated civil disputes such as family violence intervention order matters.
  2. 8.34 It currently costs $290 to bring an urgent matter before the Magistrates’ Court where no monetary relief is sought, or $316.50 if the Court is required to prepare the summons.36 The Court may waive such fees if satisfied that payment would cause financial hardship.
  3. 8.35 As stated in Chapter 2, the Magistrates’ Court, or Coroners Court where appropriate, may make orders requiring a cemetery trust to dispose of a deceased person who did not have sufficient means to pay for their burial or cremation. A magistrate or coroner must direct the cemetery trust to cremate the body, unless cremation was contrary to the wishes or religion of the deceased.37
  4. 8.36 The Magistrates’ Court has the same power to make orders and directions in civil proceedings as the Supreme Court and County Court, under the Civil Procedure Act 2010 (Vic).38 The Court may give any directions it considers appropriate regarding the use of alternative dispute resolution to assist in the resolution of a civil case.
  5. 8.37 The Magistrates’ Court has the power to grant injunctions at any time during proceedings,39 or in urgent cases, before proceedings are commenced.40 Within the limits of its jurisdiction, the Court’s powers to grant injunctions are as extensive as those of the Supreme Court or the County Court.41
  6. 8.38 The Magistrates’ Court has a Practice Court within its Civil Division. The Practice Court sits each weekday to hear any urgent matters, including applications for injunctive relief.
  7. 8.39 On weeknights, weekends and public holidays, a magistrate and registrar are available to deal with urgent intervention orders, child protection applications and search warrants.42
  8. 8.40 The Magistrates’ Court has specialist court models that are considered more informal and flexible than the traditional model.43 These have been adopted in the Koori Court, the Drug Court of Victoria and the Victims of Crime Assistance Tribunal.
  9. 8.41 The Magistrates’ Court offers a variety of mechanisms to support early resolution of disputes, including pre-hearing conferences, mediation and Early Neutral Evaluation.44
  10. 8.42 Pre-hearing conferences, if directed by the court, are compulsory for the parties and their lawyers to attend and are generally heard before an experienced registrar. The registrar assists the parties by identifying and exploring the issues and by promoting settlement.45 If no resolution is reached, the registrar may make directions for the dispute to proceed to a hearing.46
  11. 8.43 Parties can be referred to mediation in certain proceedings, with registrars, judicial registrars or an external mediator such as the Dispute Settlement Centre of Victoria (DSCV). Mediations conducted by the DSCV are free of charge to the parties.47 If the parties select a mediator from the court’s list of approved mediators,48 there is a flat fee of $1,320 plus the cost of a mediation venue, to be shared between the parties.49 The standard timeframe for a matter to be mediated as part of the Magistrates’ Court process is 60 days.50
  12. 8.44 A registrar can also direct a matter to proceed to Early Neutral Evaluation.51 This process involves:

hearing a statement of the relevant evidence and principles of law from each party to a dispute, the facilitation of discussions between the parties after those statements have been made and when required, [and] an indication by the magistrate of the likely outcome of the dispute if it proceeds to trial.52

  1. 8.45 If the parties do not reach a resolution in that forum, their matter can proceed to
    a hearing. Early Neutral Evaluation does not prejudice a parties’ chances in any
    future hearing, as the magistrate who presided over the process will not determine
    the case at hearing.
  2. 8.46 The Magistrates’ Court sits at 51 metropolitan and regional locations in Victoria.53

Victorian Civil and Administrative Tribunal

  1. 8.47 The Victorian Civil and Administrative Tribunal (VCAT) is a statutory body, headed by a Supreme Court judge, which determines a wide range of disputes. In addition to its Civil, Administrative and Residential Tenancies Divisions, VCAT has a Human Rights Division that deals with guardianship and power of attorney cases, among other matters.54 There are no filing fees for individuals who initiate cases in the Human Rights Division.55
  2. 8.48 As a statutory body, VCAT has the jurisdiction that Parliament has conferred on it. A VCAT decision can be appealed to the Supreme Court, but appeals are limited to questions
    of law.
  3. 8.49 VCAT does not have jurisdiction over disputes that fall within the scope of this inquiry. However, under the Cemeteries and Crematoria Act 2003, a holder of the right of interment may apply to VCAT for a review of a decision of a cemetery trust. That right of review is limited to reviews of a trust’s refusal to grant an approval to establish or alter a memorial or place of interment in the cemetery, or a review of a decision to grant such an approval that is subject to terms and conditions.56
  4. 8.50 Within its jurisdiction, VCAT may grant injunctions, including interim injunctions in proceedings.57
  5. 8.51 The use of mediation is a central part of the VCAT model.58 This includes:
  • compulsory conferences conducted by VCAT members who are accredited mediators
  • mediation conducted by a specialist panel of mediators
  • short mediation conducted by staff who are accredited mediators.59
  1. 8.52 VCAT has purpose-built mediation facilities in central Melbourne for these activities.60
  2. 8.53 VCAT staff and members are available out-of-hours for certain matters. Of particular relevance is the out-of-hours service that VCAT provides in conjunction with the Office of the Public Advocate in relation to urgent guardianship matters where a VCAT order may be required.61

Responses

  1. 8.54 In its consultation paper, the Commission invited submissions on which court/s and/or tribunal should have jurisdiction over funeral or burial disputes.
  2. 8.55 The Commission suggested that stakeholders give consideration to:
  • the cost of proceedings
  • the formality of proceedings
  • the capacity of parties to participate in proceedings
  • the expertise of the arbiters
  • the powers available to the arbiters
  • the resources of the court/tribunal
  • the location of the court/tribunal
  • the consequences of splitting jurisdiction
  • the consequences of granting concurrent jurisdiction.

Supreme Court of Victoria

  1. 8.56 Some stakeholders were of the view that funeral and burial disputes should continue to be heard in the Supreme Court.62 In its submission to the Commission, the Victorian Bar referred to the Court’s comparable probate jurisdiction:

The Supreme Court of Victoria has exclusive jurisdiction in Probate. The Probate List in the Common Law Division has jurisdiction over funeral and burial disputes. Many disputes of this type are in the context of other estate disputes. Applications can be determined quickly in this specialist list and judicial mediation referrals can be made. Despite the initial attraction to Tribunals because of accessibility and lower costs, there is a risk that there will be a lack of jurisdiction and power required to determine all of the disputes which must be determined in a funeral and burial dispute.

  1. 8.57 The Victorian Aboriginal Legal Service commented that the Supreme Court, while costly, had ‘the benefit of having experienced judicial members and registrars, with a long history of administering estates’. It observed that that the County Court had similar benefits.63
  2. 8.58 Other stakeholders told the Commission that the costs associated with bringing a matter before the Supreme Court excluded many people from accessing its services.64 It was considered that the Supreme Court would be too expensive for most families65 and that a more conciliatory venue should be available.66
  3. 8.59 The Victorian Aboriginal Legal Service provided a case study that highlighted the resources needed to appear before the Supreme Court. In that case, the hearing had been stood down to allow for a shuttle mediation. The Victorian Aboriginal Legal Service told the Commission:

while we managed to achieve a culturally sensitive and appropriate outcome that was mutually acceptable for the parties concerned, it was very resource intensive, requiring a full day at the Supreme Court of Victoria, a senior counsel and junior counsel for the Coroner, together with two instructing solicitors, a solicitor for the deceased’s mother from an aboriginal service, as well as a solicitor and counsel from our service.67

  1. 8.60 The Victorian Aboriginal Legal Service submitted that, if the Supreme and County Courts retained jurisdiction, legislation should be enacted to increase access.68

Magistrates’ Court of Victoria

  1. 8.61 The Magistrates’ Court told the Commission it is well placed to hear and determine funeral and burial disputes. It considered that the low cost of litigation in the Magistrates’ Court, and the speed with which it could process disputes of this kind, would assist the parties involved.69
  2. 8.62 The Greater Metropolitan Cemeteries Trust told the Commission that the Magistrates’ Court and Coroners Court should have initial jurisdiction to hear such disputes. The Trust highlighted the importance of accessibility and availability, ‘especially where judgements are required in order to allow funeral and burial rituals to proceed without undue delay.’
    It further noted, ‘Both Courts are already prescribed in the Cemeteries and Crematoria Act 2003 for certain matters and have experience with issues relating to the disposition of the deceased.’70
  3. 8.63 The Victorian Aboriginal Legal Service stated that if a lower court or tribunal was to be given jurisdiction over funeral and burial disputes, proceedings should be modelled on VCAT’s Guardianship List (discussed below) or the Victims of Crime Assistance Tribunal. It observed that the Victims of Crime Assistance Tribunal has proven to be highly culturally responsive and sensitive to Aboriginal applicants, with dedicated support workers and regular meetings with service providers.71
  4. 8.64 The Victorian Aboriginal Legal Service also proposed that magistrates or tribunal members should be specialists in this area and be required to undertake in-depth cultural awareness training. It suggested the Koori Court model be considered, and noted improved engagement and outcomes achieved by the Koori Court by allowing Koori Elders and Respected People to be involved in the judicial process.
  5. 8.65 The Magistrates’ Court informed the Commission that the court has the capacity and ability to assist parties in culturally sensitive matters. Often parties in such matters provide evidence from their own cultural or religious leaders. Additionally, the court’s Koori Liaison Officer could be available to assist in such cases and in their absence, the Koori Liaison Officer from the County Court could assist.
  6. 8.66 As noted above, the DSCV provides free mediation services at the Magistrates’ Court for civil disputes, including personal safety intervention orders.72 The Centre said that it could arrange mediation within a matter of days if it was able to make contact with the parties and they were willing to use its services.73 It noted that its mediators have extensive experience mediating intense and long standing disputes.74 The Centre’s services are discussed in more detail in Chapter 9.

 

Victorian Civil and Administrative Tribunal

  1. 8.67 The Honourable Justice Garde AO RFD, President of VCAT, told the Commission that funeral and burial disputes would naturally fit within VCAT’s Human Rights Division. Among the reasons stated for this were:
  • Matters that come before the Division do not generally attract fees.
  • Proceedings are informal.
  • Many litigants appear without legal representation.
  • The Division also hears disputes relating to guardianship and powers of attorney, and has all the powers necessary to make appropriate orders.
  • The Division has members who are skilled in hearing these types of disputes. 75
  1. 8.68 A number of people and organisations favoured granting jurisdiction over funeral and burial disputes to VCAT. The Law Institute of Victoria favoured VCAT because it is less formal and expensive than the Supreme Court, and parties are less likely to require legal representation. The Institute also submitted that the urgent nature of these disputes did not suit a more formal court process.76
  2. 8.69 Similarly, State Trustees recommended that VCAT be given jurisdiction to determine such disputes as they considered that ‘Funeral and burial disputes should be dealt with in the lowest-cost jurisdiction in order to minimise costs to the estate, the right holder, or other parties in the dispute.’77
  3. 8.70 Maurice Blackburn Lawyers observed:

Although the Supreme Court may seem like a logical choice through dealing with the related jurisdiction of wills disputes, it is submitted that a tribunal such as VCAT would be best suited to adjudicating such disputes, due to its emphasis on low-cost, time-effective dispute resolution.78

  1. 8.71 Rachael Grabovic, Accredited Wills and Estate Specialist, Rigby Cooke Lawyers considered that VCAT was the most appropriate forum for these types of disputes as, to a degree, its model is similar to mediation. Ms Grabovic suggested that specialist tribunal members could hear such disputes.79
  2. 8.72 A representative in the Commission’s consultation with the Jewish Community Council of Victoria observed that VCAT might be preferable because of its informal approach.80
  3. 8.73 The culturally responsive nature of VCAT was highlighted by the Victorian Aboriginal Legal Service which supported a forum modelled on VCAT’s Guardianship List.81
  4. 8.74 Anne Cregan, Special Counsel, Gilbert + Tobin, told the Commission that if law reform in this area would generate increased litigation then a fast and affordable forum such as VCAT for the resolution of such disputes would be better. However, she stated that if a disgruntled litigant is unhappy with the decision of the Tribunal and decides to appeal, it will take more time to resolve compared to the original jurisdiction remaining with the higher court.82

 

Conclusions

  1. 8.75 The Commission concludes that the Magistrates’ Court should be granted jurisdiction, in addition to the Supreme Court and County Court, over disputes that arise under the Act, except for disputes that concern the authority of an executor or the deceased’s estate.
  2. 8.76 The Commission considers that a distinction can reasonably be drawn between funeral and burial disputes that concern such matters as the authority of an agent or the practicability of the deceased’s instructions on the one hand, and disputes that concern a grant of probate or estate administration on the other hand. The complexity and financial consequences of probate and estate administration matters warrant Supreme or County Court jurisdiction, whereas more limited funeral and burial disputes do not.83
  3. 8.77 The Commission notes that the Magistrates’ Court and VCAT share a number of characteristics that make them suitable to hear more limited funeral and burial disputes under the Commission’s proposed legislative regime. These include the fact that they are generally more affordable and flexible than Supreme Court proceedings, and that parties are often afforded a greater opportunity to participate in Magistrates’ Court and VCAT proceedings.
  4. 8.78 Both also provide out-of-hours services. The time-sensitive nature of funeral and burial disputes means that it would be imperative for a magistrate or member to be available to those who require urgent intervention in the evenings and on weekends and public holidays.
  5. 8.79 There was considerable support among stakeholders for granting jurisdiction over funeral and burial disputes to VCAT. While acknowledging the attributes of VCAT that would render it suitable to hear funeral and burial disputes under the Commission’s proposed legislative regime, on balance the Commission considers that the Magistrates’ Court is the most suitable jurisdiction.
  6. 8.80 Certain features of the Magistrates’ Court led the Commission to reach this conclusion. The most important of these is the capacity to join Magistrates’ Court and higher court proceedings where they both have jurisdiction.
  7. 8.81 It may be that parties to a dispute over funeral and burial arrangements seek the lower court’s assistance in the days immediately following the death of a loved one. However, the dispute may raise larger questions about the authority of the deceased’s executor, which must be heard in the Supreme Court. If parties had commenced proceedings in both the Magistrates’ Court and the Supreme Court, they could be joined so that they were heard together in the most appropriate jurisdiction, which in that case would be the Supreme Court.
  8. 8.82 Moreover, granting the Magistrates’ Court jurisdiction in addition to the Supreme and County Courts would mean that where a probate or estate matter was already before the Supreme or County Court and a dispute over the deceased’s ashes arose, both disputes could be dealt with in the court that was already hearing the dispute.
  9. 8.83 Not all disputes that arose under the proposed legislation would require an urgent response. In disputes regarding the disposal of ashes, the Magistrates’ Court could reasonably consider the suitability of a case for mediation or Early Neutral Evaluation.
  10. 8.84 Flexibility in the court’s case management processes would be an important part of an effective response. The tailoring of a specialist model within the Magistrates’ Court could also include:
  • allowing for proceedings to be commenced by filing of a notice to avoid time consuming initiation and service requirements
  • urgent hearings in the Practice Court
  • revised timeframes and processes for mediation and Early Neutral Evaluation.
  1. 8.85 The Commission recognises that granting jurisdiction to the Magistrates’ Court would move the determination of certain funeral and burial disputes down the court hierarchy and thus introduce a new a layer of appeal. However, this would mirror the current process for determining a dispute between two senior next of kin who apply to receive a body from the coroner. As such, this outcome lends weight to the argument that the Magistrates’ Court is the most suitable jurisdiction to hear funeral and burial disputes under the Commission’s proposed regime.

 

Recommendation

  1. 24 The Supreme Court, County Court and Magistrates’ Court should have jurisdiction over disputes that arise under the proposed Act. Disputes arising under the Act that concern the authority of an executor and/or the deceased’s estate should only be heard in the Supreme Court or County Court.

 

Footnotes

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