Frith v Schubert[2010] QSC 444

SUPREME COURT OF QUEENSLAND

[1] On 5 November 2010 Byrne SJA made an order for a limited grant of administration of the estate of the deceased aboriginal man (the deceased) in favour of one of the applicants before him (Anthony Schubert).  The making of that order was supported by the other applicant (Ms Warry).  Although not named as a respondent, the application was intended to be served on the person who is the applicant before me (Ms Frith); and she appeared and made submissions at the hearing before his Honour.  She now applies to have his Honour’s order set aside, and for an order for a similar grant in her favour.

Background

[2] The reasons of Byrne SJA provide a comprehensive summary of the facts presented at the hearing, and are gratefully adopted.  However, it is useful to make mention of some of them.

[3] The deceased died on 18 October 2010.  He was born on 18 September 1981, at Cherbourg.  Early in his life, and it would seem prior to his second birthday, the deceased was “adopted out” by his biological parents.  He grew up as a member of the family of his adoptive parents, for whom the evidence shows he had a deep affection.  However, the adoption was informal. 

[4] The deceased’s name is Benjamin Bert Lawrence Combo Schubert.  Schubert is the surname of the deceased’s adoptive family, while Combo is the surname of the family of the deceased’s biological mother.  He used the Schubert surname for most of his life, though not for all of it.  He used the name, Benjamin Bert Lawrence Combo Schubert, when in primary school.  In secondary school, he used the name, Benjamin Bert Lawrence Schubert.  However, at times in his adult life he was known as Benjamin Bert Lawrence Combo.

[5] Anthony Schubert is the son of the deceased’s adoptive mother, and the stepson of the deceased’s adoptive father.  He is some twelve years older than the deceased.  From the time the deceased commenced living with the Schubert family, Anthony Schubert considered the deceased to be his brother.

[6] When he was aged about 18, the deceased met Ms Frith, with whom he had two children:  Taiesha born in 2000, and Jamal-Trey (referred to as Jamal), born in 2008.  However the deceased’s relationship with Ms Frith knew a number of interruptions (including from time the deceased spent in prison); and it came to an end about 18 months ago.  In the period prior to his death, and for at least a year, the deceased had been living in a de facto relationship with Ms Warry.

Reasons for judgment of 5 November 2010

[7] His Honour noted that Ms Frith was the mother of the two children, and that she sought an order which would allow her to arrange for the deceased’s burial, to occur in Cherbourg.  He noted that the deceased’s sister, Desley Combo, the deceased’s (biological) father, and other relatives of the deceased as well as many other residents of Cherbourg support Ms Frith’s position.

[8] However, his Honour noted the close relationship which the deceased had had with the Schubert family; his use of the Schubert surname; his strong links with Stanthorpe; the fact he had had little connection with Cherbourg for most of his life; and a number of expressions of the deceased’s intentions with respect to his burial place, in which he expressed a desire to be buried in Stanthorpe.

[9] His Honour noted that the views of those with an entitlement to a grant of letters of administration under r 610 of the Uniform Civil Procedure Rules 1999 (UCPR) favoured Cherbourg; and the strength of the feeling amongst a number of people that this indigenous man should be buried at Cherbourg.  However, his Honour considered that the nature of Anthony Schubert’s relationship to the deceased, notwithstanding the fact that adoption formalities had not been attended to, was of some significance.  The wishes of the deceased, and the fact that his children live in Stanthorpe, were also significant factors.  As a result, an order was made in favour of Anthony Schubert.

Jurisdiction to set aside order

[10] In Autodesk Inc v Dyason (No 2),[1] the High Court held that, at least prior to its formal entry, that court had jurisdiction to recall a judgment which had been pronounced, if it had been pronounced against a person who, without fault on the part of that person, had not had the opportunity to be heard as to why that judgment should not be pronounced.[2]  However, Mason CJ expressed the view that the jurisdiction was broader.[3]  In De L v Director General, NSW Department of Community Services (No 2),[4] a joint judgment of five members of the High Court recognised the broader jurisdiction, but noted that a heavy burden was cast upon an applicant for reopening, and the applicant must show that such a course is required “without fault on his part”.[5]

[11] The UCPR, however, includes rules relating to the setting aside or variation of an order.  The following are relevant:

“667 Setting aside

(1) The court may vary or set aside an order before the earlier of

the following—

(a) the filing of the order;

(b) the end of 7 days after the making of the order.

(2) The court may set aside an order at any time if—

(a) the order was made in the absence of a party; or

(b) the order was obtained by fraud; or

(c) the order is for an injunction or the appointment of a receiver; or

(d) the order does not reflect the court’s intention at the time the order was made; or

(e) the party who has the benefit of the order consents; or

(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.”

“668 Matters arising after order

(1) This rule applies if—

(a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or

(b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.

(2) On application by the person mentioned in sub-rule (1), the court may stay enforcement of the order against the person or give other appropriate relief.

(3) Without limiting subrule (2), the court may do one or more of the following—

(a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;

(b) set aside or vary the order;

(c) make an order directing entry of satisfaction of the judgment to be made.”

[12] Where these provisions speak of the making of an order, that is to be understood by reference to r 660, which provides that (generally) an order is made by being pronounced in court by the person making the order.

[13] It was not suggested, and there is no reason to think, that the provisions of these rules replace the inherent jurisdiction, referred to earlier.

[14] There are clearly two different powers conferred by sub-rules (1) and (2) of r 667.  That is apparent from the fact that sub-rule 1 includes a power to vary, as well as a power to set aside; and this sub-rule includes a time limit, whereas sub-rule (2) expressly provides for setting aside an order “at any time”.

[15] The exercise of the powers found in r 667(2) and in r 668(3)(b) depend upon the satisfaction of stated conditions.  No such conditions are identified for the exercise of the power conferred by r 667(1).  It would seem to follow that r 667(1) confers a general discretion on a court to vary or set aside an order.  The exercise of that discretion cannot be confined by the conditions set out in r 667(2), or r 668(1). 

[16] Counsel who appeared for Ms Frith, nevertheless, accepted, in my view correctly, that considerations relating to the public interest in the finality of litigation are relevant to the discretion conferred by r 667(1).

Grounds for setting aside order, relied on for Ms Frith

[17] For Ms Frith, it was said that her application having been brought, and having come before the court, before the filing of the order made on 5 November, and within seven days after the making of that order, it could be granted under r 667(1).

[18] Reliance was also placed on r 667(2)(a), it being submitted that the deceased’s children were necessary parties, the order having been made in their absence.

[19] It was also submitted that relief was available under r 668, on the ground that facts were put before the Court at the present hearing which had not been before the Court when the order was made.

[20] Finally, reference should be made to r 667(2)(d), it being common ground that in one respect, the order of 5 November 2010 does not reflect the intention of the Court at the time the order was made.  I shall return to this matter later in these reasons.

[21] It is convenient to deal with the other bases of Ms Frith’s application, in reverse order.

Relief under r 668?

[22] I have identified the basis on which it is said on behalf of Ms Frith that relief is available under this rule.

[23] Analogies have been drawn between this rule (and its predecessor), and a decision on an appeal to permit a party to present evidence which was available, but not discovered before trial.[6]  This rather strongly suggests that r 668(1)(b) is not satisfied if facts were known to a party at the time the order was made, but not presented to a court.  Any other view would be inconsistent with the general principle that a party is expected to present the entirety of its case relevant to the issues for determination, at the hearing conducted for the determination of those issues.[7]  Such a view would be inimical to the achievement of finality in litigation.  It can hardly have been the intention of those responsible for the drafting of the rule.

[24] There can be no doubt that Ms Frith participated in the hearing before Byrne SJA on 5 November 2010.  Her Counsel was unable to identify any relevant fact, not known to her, and discovered subsequently. 

[25] No other basis was identified for satisfying the conditions which are set out in r 668(1) of the UCPR.  Ms Frith’s application on the basis of this rule must fail.

[26] Before considering Ms Frith’s application based on r 667(2)(a), it is convenient to refer to rules relating to applications for letters of administration.

Applicants for letters of administration

[27] The UCPR include the following:

“610 Priority for letters of administration

(1) The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows—

(a) the deceased’s surviving spouse;

(b) the deceased’s children;

(c) the deceased’s grandchildren or great-grandchildren;

(d) the deceased’s parent or parents;

(e) the deceased’s brothers and sisters;

(f) the children of deceased brothers and sisters of the deceased;

(g) the deceased’s grandparent or grandparents;

(h) the deceased’s uncles and aunts;

(i) the deceased’s first cousins;

(j) anyone else the court may appoint.

(2) A person who represents a person mentioned in a paragraph of sub-rule (1) has the same priority as the person represented.

(3) The court may grant letters of administration to any person, in priority to any person mentioned in sub-rule (1).

…

(5) Each applicant must establish priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation.”

[28] For the purposes of this rule, the term “spouse” is defined to include a person, who at the time of the deceased’s death, had been the deceased’s de facto partner for a continuous period of at least two years ending on the deceased’s death.

[29] On behalf of Ms Frith, reference was also made to r 639:

“639 Grants to young persons

(1) This rule applies if a young person—

(a) is the sole executor of a will; or

(b) would be entitled to a grant of administration on intestacy.

(2)The court may grant administration with the will or administration on intestacy to a young person’s guardian or someone else the court considers appropriate until the young person becomes an adult.”

[30] The term “guardian” is not defined in the UCPR.

Order made in absence of party?

[31] For Ms Frith, it was submitted that the deceased’s children were entitled to priority over Anthony Schubert; that they were not present at the hearing held on 5 November 2010; and that accordingly the discretion to set aside the order then made, might be exercised in her favour.

[32] I was referred to the decision of Mackenzie J in Sproule v Long,[8] and to Stubberfield v Lippiatt & Co,[9] which appear to have adopted the position taken in Wilkinson v Wilkinson,[10] where physical absence was considered as absence for the purpose of such a rule.  However, in AMA v CDK & Ors[11] Applegarth J held that physical absence is not established if a party’s legal representatives are physically present, notwithstanding that the party is not present in person.

[33] An initial potential difficulty with the submission made on behalf of Ms Frith arises out of r 610(5).  The deceased’s children lack capacity, by reason of their age.  That would mean that they are not entitled to priority, notwithstanding r 610(1).  However, for Ms Frith, it was submitted that she was the guardian of the children for the purposes of r 639(2); and accordingly she represented them, with the effect that r 610(2) accorded to her the same priority which the children would otherwise have had. 

[34] It is not necessary to determine the correctness of these submissions.  At the hearing on 5 November, Ms Frith stated that she represented both herself, the deceased’s children, and her other child.  Moreover, at a later point she informed the Court that she had discussed the question of the deceased’s burial place with her children, and they wished him to be buried at Cherbourg.  She later confirmed she was speaking on behalf of the children at the hearing.  Assuming the correctness, therefore, of the submission made on behalf of Ms Frith, that she was entitled to priority under r 610 as the guardian of the deceased’s children, nevertheless it is clear that she was present in that capacity at the hearing, and actively participated in the hearing on that basis.

[35] However, Ms Frith was not present when the order was pronounced.  She was present in the course of argument, and it would seem from her evidence that she was present when Byrne SJA delivered his reasons.  She then left the Court, not appreciating that some further step was to be taken, and because she wished to try to get some legal assistance with a view to changing the order. 

[36] The evidence establishes that, taken literally, the condition set out in r 667(2)(a) is satisfied.  However, the apparent purpose of the provision is to confer a discretion on the Court to enable a party to be heard.  It is clear that Ms Frith was present in Court for the hearing which led to his Honour’s decision; indeed, she participated in that hearing.  Save for a matter which it is common ground requires some variation of the order, it is not suggested that Ms Frith would have made submissions to the effect that the order did not reflect the decision of his Honour, as recorded in the reasons for judgment.  In those circumstances, I would not be prepared to exercise the discretion to set aside the order made on 5 November 2010, by reason of the fact that Ms Frith was not present when the order was made.

Contentions re exercise of discretion under r 667(1)

[37] For Ms Frith, it was submitted that, notwithstanding the significance of the public interest in the finality of litigation, there are a number of factors which favour her application under r 667(1).  While perhaps not precisely reflecting the language of the submissions, it seems to me that these factors might be summarised as:  the availability of evidence not available at the earlier hearing; difficulties experienced by Ms Frith at the earlier hearing; the strength of Ms Frith’s case (or at least the fact that she had a good arguable case); and a matter which was said to be a matter of public interest.

[38] The additional evidence is of expressions by the deceased of a wish to be buried at Cherbourg; the fact that it is culturally important to aboriginal persons that they be buried in the place of their birth; the inclusive nature of the funeral arrangements proposed by Ms Frith; and the distress which Ms Frith, and the deceased’s children, would experience if the deceased were to be buried in Stanthorpe, contrary to their wishes. 

[39] As to the hearing, Ms Frith accepted that it was conducted fairly, but says that because she was without legal assistance, and was inexperienced in court proceedings, and because of her emotional state at the time, and the limited time available to her to prepare and present a case, she was unable properly to advance the case she wished to advance.

[40] The submissions relating to the strength of Ms Frith’s case focused upon the priority to which she was entitled as representative of the deceased’s children, and the significance of their wishes; although a number of other matters were also relied upon.

[41] The public interest matter was said to be that there has been no previous decided authority of this Court dealing with the competition between the biological family and the adopted family of a deceased aboriginal person, about where that person should be buried, although there have been many instances where aboriginal children have been adopted out.

[42] It was also submitted that, by analogy with the decision in Townsville City Council v Chief Executive, Department of Main Roads,[12] the discretion could be exercised to avoid an unjust outcome, to ensure that the decision of the court reflects the true merits of the case.

[43] For Anthony Schubert and Ms Warry, it was submitted that the additional evidence was unlikely to be significant in the determination of the competing applications, if the order was set aside.  That carries with it the proposition that Ms Frith’s ultimate prospects of success were not particularly strong.  It was submitted that Ms Frith was not significantly disadvantaged at the earlier hearing.  While I did not identify any express submission about the public interest matter which has been raised, it would seem that the position taken on behalf of Anthony Schubert and Ms Warry is that this consideration does not justify the setting aside of the order.

[44] With respect to Townsville City Council, it was submitted that the decision was based on statutory provisions which are quite different from r 667(1).

[45] At this point, it is convenient to consider the nature of the proceeding before Byrne SJA, and principles relevant to its determination.

Application for limited grant of letters of administration and relevant principles

[46] Although the order made by Byrne SJA was for a limited grant of letters of administration, the dispute was in substance one between competing claimants who wish to be given possession and control of the body of the deceased, to arrange for his funeral and burial.  There has been no debate about the jurisdiction of the court to determine such a dispute.[13]

[47] In Ugle v Bowra & O'Dea,[14] McKechnie J said, of applications to resolve disputes about the burial of a deceased person:

“It is in the nature of these applications that there is often only a short time for parties to prepare their case and materials and to respond to the other side’s case.  This may lead to some possibility of injustice.  Justice is relative not absolute and there has to be a balance between the need for prompt expedition of a matter that involves grief and loss to many people, together with the need to secure the burial of a person reasonably promptly, and the need for a full exploration of disputed matters.  In this case, given much time, many issues could be ventilated and explored, but time is one thing that is simply not available.  Pressures of time, stress and pain add to an already emotional situation where there are no winners and losers, only deeply held and legitimate feelings that are exacerbated by uncertainty.”

[48] In Keller v Keller[15] Hargrave J said:

“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 counter claims.  This would delay the decision for an unacceptable period while the body remained undisposed of.  Accordingly, cross-examination will usually be inappropriate.”

[49] Notwithstanding that the first matter I am asked to determine is an application to set aside a judgment, those statements are relevant to the present proceedings.  Indeed, this being the third occasion on which this matter has been before the Court, the circumstances, and the pressure of time, are, if anything, more significant.  The proceedings were conducted accordingly.  There has been no cross-examination of any witness; and there has been some informality in relation to the material that has been placed before the Court.  Indeed, both parties have relied upon statements made by Mr Frith from the bar table in the course of the hearing of 5 November.

[50] I have been referred to what is now a considerable body of Australian authority on the principles relevant to the application determined by Byrne SJA.  I shall attempt to identify those principles which are relevant to the present case.

[51] A common starting point is that there is no property in the body of a deceased person.[16]

[52] Where the deceased has made a will, and named an executor, the person so named has the right to arrange for the burial of the deceased’s body.[17]

[53] Further, where there is no executor, 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 those expenses out of the estate.  Moreover, the burial usually takes place before there is a grant of administration; one attempts to identify the person who is most likely to be granted letters of administration.[18]

[54] Where the deceased does not leave an estate, a similar approach is taken. 

[55] Some case regard this approach as the rule to be applied, without consideration of religious, cultural or spiritual matters which might relate to the question.[19]  However, in Jones v Dodd,[20] the Full Court of the Supreme Court declined to follow these cases, holding that while the usual rule was to consider the relative entitlements of the parties to a grant of letters of administration, it was also proper to have regard “to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question”. 

[56] Subsequent cases have adopted the view in Jones that there is no inflexible rule based on priority of entitlement to a grant of letters of administration; though reservations have been expressed about the occasions which would warrant a departure from the usual approach.[21] 

[57] On the other hand, in determining applications such as the present one, a range of other considerations have been taken into account.  Thus, while a person has no right to dictate what will happen to his or her body,[22] it has been said that the views of the deceased as to where he should be buried should be given considerable weight.[23]  A range of factors which might be described as emotional have been considered.[24]  In a particular case, the wishes of the deceased’s children were said to carry very great weight.[25]  The strength of the deceased’s association with particular people and places weighed heavily in one case.[26]

[58] Against that background, I turn to the question whether the order of Byrne SJA should be set aside.

Should the order of 5 November 2010 be set aside?

[59] Ms Frith’s application was made filed and brought before the Court on 8 November, 2010, which is the first business day after 5 November.  A stay of the order of 5 November was then granted, and directions were made for a hearing on 22 November.  In these circumstances, it was accepted that Ms Frith’s application might be dealt with under r 667(1).  It is therefore unnecessary to consider whether, on a literal reading of that sub-rule, the discretion might be exercised; or whether it would be necessary to consider an extension of time under r 7.

[60] In Townsville City Council, it was held that the discretion conferred on the Land Court by s 12 of the Land Court Act 2000 (Qld) (LC Act) to permit a rehearing after a matter had been decided was conferred “to avoid an unjust outcome of proceedings … and to ensure that the decision … reflects the true merits of the case as between the parties”.  The Land Appeal Court had held that the Land Court member who made the original decision and who had refused an application for a rehearing, had misapprehended the effect of evidence which was important in the case.  It was held that it was necessary to permit a rehearing, in order to avoid an unjust outcome of the proceedings.  It is true that in Townsville City Council, considerable reliance was placed on s 7 of the LC Act, which provides that in the exercise of its jurisdiction, the Land Court is required to act according to equity, good conscience and the substantial merits of the case.  It was held that s 7 was of significance in the exercise of the discretion conferred by s 12.[27]  However, the provision was also relied upon to reinforce the identified purpose of s 12.[28]

[61] There is some force in the argument that a purpose of r 667(1) is to avoid an unjust outcome in the proceedings in a court.  However, it seems to me unlikely that the rule is simply intended to permit the re-argument of a matter, after it is decided ; with the outcome of the case depending upon the view taken at the hearing of an application brought under r 667.

[62] Even if that view be wrong, it seems to me that the outcome of the hearing before Byrne SJA was not unjust, in the sense that it did not reflect the true merits of the case as between the parties, presented at the earlier hearing.  His Honour carefully weighed up the considerations arranged before him, and found the balance to favour Anthony Schubert’s application.  I am not persuaded that this outcome does not reflect the true merits of the case as then presented.

[63] In reaching that conclusion, I note that in his Honour’s reasons for judgment, there is no express reference to the wishes of the deceased’s children.  His Honour had been informed of them by Ms Frith, a matter which both parties relied upon in the hearing before me.  However, as has been mentioned, his Honour made reference to the two children and noted that they lived in Stanthorpe with Ms Frith, who was seeking an order which would allow her to arrange for the deceased to be buried in Cherbourg.  Later, his Honour observed that those persons identified in r 610 would prefer a funeral in Cherbourg, a consideration which his Honour described as “highly material”, and often decisive.  In light of these passages, and the manner in which the hearing was conducted on 5 November, I am not satisfied that his Honour did not give considerable weight to the wishes of the deceased’s children, as expressed through Ms Frith.

[64] It is apparent from his Honour’s reasons that Ms Frith has a good arguable case.  That would remain true, if the order of 5 November was set aside.  Indeed, both then and now, it could be said of Ms Frith’s case that it is a case of some strength.  As will become apparent, however, I do not consider its strength to be overwhelming; the case on behalf of Anthony Schubert is also of considerable strength.  I am prepared to proceed on the basis that the apparent strength of Ms Frith’s case is a factor relevant to the exercise of the discretion conferred by r 667(1) (though its relevance may be debatable).  I shall discuss the strength of the case when I consider how I would exercise the discretion which Byrne SJA exercised, were I to set aside his Honour’s order.

[65] It seems to me that it is a factor which provides some support for the grant of relief under r 667(1) that Ms Frith experienced difficulty in presenting her case.  She frankly acknowledges that that was not the result of the way in which the proceedings were conducted on 5 November, but of her personal circumstances, including her lack of experience.  These have been mentioned previously.  This matter makes it appropriate to give careful consideration to the additional evidence on which she wishes to rely.

[66] One of those matters is the evidence of the wish expressed by the deceased to be buried at Cherbourg.  It was submitted on behalf of Anthony Schubert and Ms Warry that I should not accept some of the evidence.  That is the evidence of Desley Combo that on Mother’s Day of this year, the deceased visited Desley who was in hospital at Cherbourg, and he said to her “If Mum goes before me I want to be buried next to my mother”.

[67] With respect to this evidence it was pointed out that Desley Combo had provided a handwritten document used at the hearing on 5 November 2010; that she was in court and took part in the hearing on that day; and that Byrne SJA had invited comment on the evidence to the effect that the deceased wished to be buried at Stanthorpe, and at that point Ms Combo had said nothing about a wish by the deceased to be buried at Cherbourg.

[68] The evidence is contained in a sworn affidavit of Ms Combo.  In the nature of things, it is not surprising she was not cross-examined; but that means I have not had any opportunity to assess her credibility.  There may be a number of factors which explain her failure to mention this matter on 5 November 2010, which are consistent with its truth.  There is other evidence that at an earlier time the deceased had said to Ms Fisher that he wanted to be buried with his biological parents in Cherbourg.  That evidence was not challenged.  It might be noted that Ms Fisher’s evidence was that on subsequent occasions he confirmed this wish.  Notwithstanding that Ms Fisher’s evidence deals with views expressed on other occasions, it has some consistency with the evidence of Ms Combo.

[69] In the circumstances, I am not prepared to reject Ms Combo’s evidence that earlier this year, the deceased expressed a wish to be buried with his biological mother.

[70] It is apparent from his Honour’s reasons that he attributed some significance to the deceased’s wishes, in reaching a decision inconsistent with the view of those who enjoy priority in respect of an entitlement to a grant of letters of administration.  It is not possible to say that the evidence would have had no effect on his Honour’s decision.

[71] I would not reach the same conclusion about the other additional evidence relied upon on behalf of Ms Frith.  The fact that aboriginal people generally consider it to be important to be buried at their birthplace is not, in this particular case, a matter which I consider likely to have influenced his Honour’s decision.  There is some strong evidence that on a number of occasions, including shortly before his death, the deceased expressed a wish to be buried at Stanthorpe, notwithstanding that he knew that his natural parents lived in Cherbourg.  Although there is evidence of some recognition by the deceased of his connection with Cherbourg, and of his general awareness of, and pride in, his aboriginal heritage, I think this consideration was unlikely to have been of significance in the present case.

[72] While there was no evidence before Byrne SJA of the arrangements which Ms Frith would have made for the funeral and burial of the deceased, there is no reason to think his Honour assumed that Ms Frith would not make appropriate and inclusive arrangements for the funeral.  It is difficult to think that his Honour did not appreciate that it would be deeply distressing to Ms Frith if the application made by Anthony Schubert was successful, in preference to her application.  It seems to me unlikely the specific aspect now advanced would have materially affected the outcome of the earlier proceedings.

[73] The significance of cultural considerations, in my view, is likely to vary from case to case.  There are already a number of decided cases which have accepted that these considerations are relevant to the exercise of the discretion, including one at appellate level.  In my view, public interest considerations related to a decision of this Court do not warrant the setting aside of the order made on 5 November 2010.

[74] The remaining question to be considered is whether, if the order were set aside, I would exercise the discretion in a way which would result in a materially different order.  Unless I am prepared to do so, there is no utility in setting aside the order of 5 November 2010.

Fresh exercise of discretion

[75] For Ms Frith, it was submitted the deceased clearly loved his children, and that their wishes should be accorded considerable weight.  Both propositions may, to a large degree, be accepted.  However, there may be some qualification relating to the weight to be given to the wishes of the deceased’s children.  Jamal is but 2 years old.  Even though Taiesha is 10 years of age, she is still very young.  Beyond the statements made by Ms Frith to the Court on 5 November 2010, there is no evidence of their wishes.  There is no evidence of the circumstances in which they expressed those wishes, and what factors, if any, were taken into account.  It seems to me that these matters are of some relevance, when taking the wishes of the children into account.

[76] However, it seems to me that I should treat Ms Frith as a person representing the children of the deceased, for the purposes of r 610.  It may be that she is the guardian of those children, as the term is used in r 639(2).  In any event, she is their litigation guardian under r 95.  On that basis, she would enjoy priority under r 610. 

[77] Ms Frith expresses a belief that the deceased would have wished to have been buried at Cherbourg, a wish to which she would give effect.  However, as will be discussed soon, the deceased on a number of occasions expressed a different wish. 

[78] Ms Frith’s position is a little clouded by reason of the fact that her relationship with the deceased came to an end more than 12 months before his death.  She had taken out a restraining order against the deceased, apparently in June 2009, preventing him from making contact with her and the children; although she had permitted some relaxation of the order so far as contact with the children was concerned.  Moreover, as has been previously mentioned, the deceased and Ms Warry had been living in a de facto relationship from about the end of July 2009.

[79] Ms Frith’s position derives some support from the evidence relating to the significance to aboriginal people generally, of a burial at the place of their birth.  There is also evidence that many members of the deceased’s biological family are buried at Cherbourg.  Again, however, the significance of that evidence in this case is affected by the evidence that, on several recent occasions, the deceased expressed a wish to be buried at Stanthorpe.

[80] One of those occasions was earlier this year, when he and Anthony Schubert picked out headstones for the deceased’s adoptive parents.  On that occasion, the deceased stated that he wished to be buried near his adoptive father in Stanthorpe, and not at Cherbourg.  According to the evidence of Anthony Schubert, this was consistent with wishes expressed by the deceased on previous occasions.

[81] Carl Sutherland gave evidence that in June this year the deceased expressed a wish to be buried with his adoptive father, on an occasion when the deceased and Anthony Schubert had been looking for headstones for a grave.  Troy Scopelliti gave evidence that the deceased recently spoke of death and expressed a wish to be buried close to his adoptive father in Stanthorpe.  Ms Warry also gave evidence that in September 2010, after discussion about what would happen if she were to die, the deceased had said that he wanted to go back to Stanthorpe to be buried with his adoptive parents.

[82] I have already referred to the evidence that on occasion the deceased expressed a wish to be buried at Cherbourg.

[83] For Ms Frith, it was submitted that not a great deal of weight should be given to the evidence of the deceased’s wishes, because, as a relatively young person, it is unlikely that he had contemplated death in the near future.  However, it seems to me that at least on some of the occasions on which he expressed a wish to be buried at Stanthorpe, it is likely that he was giving serious consideration to what would happen when he died. 

[84] At the hearing before Byrne SJA, Ms Warry had made submissions to the effect that the deceased was likely to have made statements intended to please those to whom he was speaking at the time.  That may be said to be true of the statements made to Ms Combo and Ms Fisher; and possibly the statement made in the presence of Anthony Schubert.  There is no reason to think that it was particularly significant in the case of the statement made to Ms Warry.  There is no reason to think that it was significant in the case of the statement made to Mr Scopelliti. 

[85] On balance, I consider that the deceased wished to be buried at Stanthorpe.  I reach that conclusion in part by reference to the circumstances in which the deceased expressed that wish; the fact that on a number of recent occasions, that wish was expressed; and by reason of the close relationship the deceased had with his adoptive parents, who were buried in Stanthorpe; and the strength of the deceased’s other connections with Stanthorpe.

[86] While Ms Frith would, under r 610, enjoy priority over Anthony Schubert as the representative of the deceased’s children, nevertheless amongst those who might make an application for a grant of letters of administration in this case, Anthony Schubert ranks relatively highly.  Moreover, he has had a close familial relationship with the deceased for most of the deceased’s life.

[87] Although the deceased’s biological father supports a burial at Cherbourg, he has had very little contact with the deceased during the deceased’s life.  The deceased’s biological mother, although still alive, has been in a coma for several years and is unable to communicate.

[88] Although Ms Warry does not qualify for priority as the deceased’s surviving spouse, r 16(1)(j) permits other persons to apply; and sub-rule (3) permits the Court to make an order not consistent with the priority set out in sub-rule (1).  In those circumstances, it seems to me that her relationship with the deceased gives her some standing in this case.  She supports a grant to Anthony Schubert.

[89] In addition, I take into account the deceased’s close relationship with the Schubert family generally; and his significant connections with the Stanthorpe area, noted in the reasons for judgment of Byrne SJA.  In that context, I would also refer to the evidence of Ms Warry that the deceased intended to save money to buy a place to live in Stanthorpe.  That evidence finds some support in the evidence of Ms Frith.

[90] Notwithstanding the strength of the claim made by Ms Frith, it seems to me that if I were to exercise the discretion afresh, I would grant letters of administration to Anthony Schubert.  In doing that I am conscious, as is often true in cases like this, that this is likely to cause considerable distress to Ms Frith, and to people related to the deceased by birth.  I would, however, point out that courts have frequently expressed the view that a party who has the benefit of a decision in a case like this should recognise the views and interests of others who have a close connection with the deceased.[29]

Agreed variation

[91] It is common ground that the order made on 5 November 2010 should be varied, to permit the conduct of a funeral.

Conclusion

[92] Save for the agreed variation, I am not prepared to set aside or vary the order made on 5 November 2010.  I shall hear submissions as to the form of order, and any other outstanding matter.