Funeral and Burial Instructions: Consultation Paper
8. Resolving disputes
Introduction
8.1 Stakeholders the Commission consulted during its preliminary investigations expressed the view that the court and mediation services available to survivors involved in funeral and burial disputes could be enhanced.[1]
8.2 Except where the Coroners Court of Victoria has control over a deceased’s body, the Supreme Court of Victoria and the County Court of Victoria have the power to intervene in funeral and burial disputes.
8.3 Where a death is investigated by the Coroners Court, a coroner must decide who to release the body to once they no longer need it for their investigation, including when more than one person claims the body. If a person who applied to a coroner to have the body released to them believes that the coroner erred in their application of the law, the person may appeal to the Supreme Court.
8.4 Parties to a Supreme Court or County Court proceeding may seek, or be ordered, to undertake mediation, usually at the cost of the parties involved. In addition, the Dispute Settlement Centre of Victoria offers free mediation services to people involved in disputes that are suitable for mediation in that forum.
The courts
Supreme Court
8.5 In Leeburn v Derndorfer, Justice Byrne stated that ‘it is well established that the court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition’.[2]
8.6 Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) allows people to seek a determination or order in relation to the administration of a deceased person’s estate without commencing proceedings for general administration.[3] Justice Ashley, in Meier v Bell, confirmed that this was the proper process for commencing proceedings in relation to a funeral and burial dispute.[4]
8.7 Where a matter before the Supreme Court requires immediate attention, parties to a proceeding may make an urgent application to appear before the Practice Court of the Supreme Court, which can be contacted after hours.[5] Six of the seven cases involving a funeral and burial dispute that have come before the Supreme Court in the past 30 years have been dealt with in this way.[6]
8.8 The Supreme Court may grant injunctions ordering people to do, or not to do, specific acts, in a range of circumstances.[7] This would be useful where, for example, a party wanted to prevent an imminent burial or cremation from taking place.
8.9 At present, the combined cost of the filing fee and the summons to attend court is $1389.90,[8] although these costs can be waived in limited circumstances.[9]
County Court
8.10 Like the Supreme Court, the County Court has unlimited civil jurisdiction.[10] Rule 54.02 of the County Court Civil Procedure Rules 2008 (Vic) allows people to seek a determination or order in relation to the administration of a deceased person’s estate without commencing proceedings for general administration.[11] While it thus appears that the County Court also has jurisdiction over funeral and burial disputes, the Commission is not aware of a case of this kind that has come before the County Court.
8.11 The County Court hears urgent applications and can grant injunctive relief in a range of circumstances.[12] The filing fee is $814.60,[13] although this cost can be waived in limited circumstances.[14]
Coroners Court
8.12 There are a number of circumstances in which a death must be reported to the Coroners Court, including where the death appears to have been unexpected, unnatural or violent.[15] If a coroner determines the death requires investigation, the body will be taken into the care of the Court.[16]
8.13 A coroner may release the body once they are satisfied it is no longer necessary for their investigation and, when doing so, must identify the person the body is to be released to and may specify conditions of release.[17]
8.14 Where two or more people apply for the release of the body, the coroner must determine who has the better claim, after having regard to the fact that an applicant who is the deceased’s executor should be given highest priority and that, where there is no executor, the deceased’s body should be released to the senior next of kin.[18] Senior next of kin is defined in the Coroners Act 2008 (Vic) as the deceased’s spouse or domestic partner, followed by the deceased’s adult children, followed by the deceased’s parents, and so on.[19]
8.15 Any person exercising a function under the Coroners Act 2008 (Vic) should have regard to the fact that different cultures have different beliefs and practices surrounding death that should be respected where it is appropriate to do so.[20] In Carter v The Coroners Court of Victoria, Justice Almond held that evidence of culture, belief and practices may influence the question of ‘whether the body should be released to the senior next of kin’.[21]
8.16 A person who applied for the body may appeal to the Supreme Court in relation to the coroner’s decision concerning who the body should be released to or the terms of release.[22] The appeal must concern a question of law, not of fact.[23] Where the appeal is successful, it is for the Supreme Court to decide who the body should be released to and the conditions of release, if any.[24]
Alternative jurisdictions
8.17 If granted jurisdiction, funeral and burial disputes could be heard by the Magistrates’ Court of Victoria or the Victorian Civil and Administrative Tribunal (VCAT).
8.18 The Magistrates’ Court typically hears civil matters where claims do not exceed $100,000, as well as other nominated civil disputes, such as family violence intervention order matters.[25] It currently costs $441.90 to bring an urgent matter before a magistrate.[26]
8.19 The Law Reform Commission of Western Australia recommended that the Magistrates Court of Western Australia be given jurisdiction over funeral and burial disputes that do not involve funeral and burial instructions.[27] Disputes involving instructions should, according to the Commission, continue to be heard by the Supreme Court of Western Australia.[28]
8.20 VCAT was established to resolve disputes in a number of specialised areas.[29] VCAT proceedings are less formal than court proceedings, with parties often representing themselves. A party may appeal on questions of law to the Supreme Court.[30]
8.21 In addition to its Civil and Administrative Divisions, VCAT has a Human Rights Division which deals with guardianship and discrimination cases, among other matters.[31] Except for cases concerning exemptions from the Equal Opportunity Act 2010 (Vic), there are no filing fees for matters that fall within the Human Rights Division.
8.22 Among the factors stakeholders may wish to take into account when considering which jurisdictions should hear funeral and burial disputes are:
• 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.
Question
11 Which court/s and/or tribunal should have jurisdiction over funeral and burial disputes and why?
Mediation
8.23 Parties to a Supreme Court or County Court proceeding may ask the Court to refer the matter to mediation, or the Court may order the parties to undergo mediation at any stage of the proceeding.[32]
8.24 Parties to a Supreme Court proceeding may have their matter mediated by an associate judge, judicial registrar or prothonotary within the Court,[33] or by an external accredited mediator, such as those on the Victorian Bar’s list of accredited mediators.[34]
8.25 Parties to a County Court proceeding may have their matter mediated by an external mediator or a judicial registrar.[35]
8.26 The cost of mediation is shared by the parties, unless the court orders otherwise.[36]
8.27 The Dispute Settlement Centre of Victoria provides free, confidential mediation services unless the matter is deemed unsuitable for mediation in that forum, such as where the matter involves family violence.[37] Mediation can usually be arranged within a fortnight and it can be held at a location that is convenient for the parties.[38]
8.28 The Law Reform Commission of Western Australia recommended that wherever practicable, the hearing of funeral and burial disputes be preceded by mediation.[39] To that end, it further recommended that the Department of the Attorney-General liaise with stakeholders to establish which organisation/s might be best placed to offer culturally appropriate and immediate mediation.[40]
8.29 The Queensland Law Reform Commission formed the view that the free mediation services provided through the Dispute Resolution Centres of the Department of Justice and Attorney-General, in conjunction with those provided in Supreme Court proceedings and by the Aboriginal & Torres Strait Islander Legal Service (Qld), were sufficient.[41] The Commission recommended that the Department promote community awareness of its free mediation services for those involved in funeral and burial disputes.[42]
Question
12 How accessible and effective are low-cost mediation services for people involved in funeral and burial disputes, and how could they be made more accessible and effective?
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Preliminary consultations with the Australian Funeral Directors Association (4 August 2015) and the Victorian Aboriginal Legal Service
(6 August 2015).
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Leeburn v Derndorfer (2004) 14 VR 100, 103.
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Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 54.02.
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Meier v Bell (Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997). See, eg, Leeburn v Derndorfer (2004) 14 VR 100, 103.
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Supreme Court of Victoria, Practice Court (10 February 2015) <http://www.supremecourt.vic.gov.au/home/law+and+practice/areas+of+the+court/practice+court/>.
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Dow v Hoskins [2003] VSC 206; Carter v The Coroners Court of Victoria [2012] VSC 561; Threlfall v Threlfall [2009] VSC 283; Gilliot v Woodlands [2006] VSCA 46; Meier v Bell (Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997); Keller v Keller (2007) 15 VR 667. Leeburn v Derndorfer (2004) 14 VR 100 did not come before the Practice Court.
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Supreme Court Act 1986 (Vic) s 37.
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$1,018.60 to file an originating motion and $371.30 to file the summons. Supreme Court of Victoria, Prothonotary fees (2 July 2015) <http://www.supremecourt.vic.gov.au/home/forms+fees+and+services>.
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Supreme Court Act 1986 (Vic) s 129(3). The prothonotary may waive the fee if they believe that it would cause the person financial hardship, having regard to the person’s income, living expenses, liabilities and assets.
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County Court Act 1958 (Vic) s 37.
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County Court Civil Procedure Rules 2008 (Vic) r 54.02.
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County Court Act 1958 (Vic) s 37; County Court Civil Procedure Rules 2008 (Vic) r 4.08.
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County Court of Victoria, Fees <https://www.countycourt.vic.gov.au/fees>.
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County Court Act 1958 (Vic) s 28(4).
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Coroners Act 2008 (Vic) s 4.
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Ibid ss 4–5.
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Ibid s 47.
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Ibid s 48.
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Ibid s 3 (‘senior next of kin’).
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Ibid s 8(c).
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Carter v The Coroners Court of Victoria [2012] VSC 561 [39]. In that case, which concerned an Aboriginal deceased, the fact that the deceased had specifically told people that she did not want to be buried on country and that she instead wanted to be buried with her foster parents was a significant factor in the judge’s decision not to depart from the statutory hierarchy of people ordinarily entitled to possession of the body: at [44].
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Coroners Act 2008 (Vic) s 85.
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Ibid s 87.
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Ibid s 88.
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Magistrates Court Act 1989 (Vic) s 3 (‘jurisdictional limit’); Family Violence Protection Act 2008 (Vic) s 42.
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$138.70 to file a complaint, $92 to file an Overarching Obligations Certification and Proper Basis Certification, $67 for service and $144.20 for a summons: Magistrates’ Court of Victoria, Costs and Fees Ready Reckoner (1 July 2015) <https://www.magistratescourt.vic.gov.au/publication/costs-and-fees-ready-reckoner>.
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Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture, Final Report No 94 (2006) 263–4. Although Western Australia recognises instructions in relation to cremation, funeral and burial instructions more broadly are not binding. The Law Reform Commission of Western Australia recommended that funeral and burial instructions be binding.
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Ibid.
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Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 3 (‘enabling enactment’).
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Ibid s 148(1).
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Victorian Civil and Administrative Tribunal, VCAT Annual Report 2013/14, 4.
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Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 50.07; County Court Act 1958 (Vic) s 47A.
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Ibid rr 50.07.1, 50.07.3, 50.07.4.
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Supreme Court of Victoria, Mediation (19 February 2015) <http://www.supremecourt.vic.gov.au/home/forms+fees+and+services/mediation/>.
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County Court Civil Procedure Rules 2008 (Vic) rr 50.07, 50.07.1.
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Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 50.07(8); Supreme Court of Victoria, Mediation (19 February 2015) <http://www.supremecourt.vic.gov.au/home/forms+fees+and+services/mediation/>. See also County Court of Victoria, Family Property Division: Standard Mediation Procedures (21 August 2008) <https://www.countycourt.vic.gov.au/pdf/MCI_6-2008_CL_FPD_Standard_Mediation_Procedures.pdf>.
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Dispute Settlement Centre of Victoria, Frequently Asked Questions <http://www.disputes.vic.gov.au>.
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Dispute Settlement Centre of Victoria, Mediation <http://www.disputes.vic.gov.au/mediation>.
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Law Reform Commission of Western Australia, above n 27, Recommendation 79(2).
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Ibid Recommendation 79(3). The Law Reform Commission of Western Australia only examined disputes involving Aboriginal deceased in accordance with its terms of reference.
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Queensland Law Reform Commission, A Review of the Law in Relation to the Final Disposal of a Dead Body, Final Report No 69 (2011) 191, 192–3.
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Ibid 193.
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