Contents

Chapter 24
The role of the courts

How the jurisdiction should operate

24.27In the following sections, we outline how we think the jurisdiction should operate in the courts.

24.28We deal with the following:

24.29We also consider cultural advisers to assist the court.

24.30We do not support imposing strict preconditions on a person’s standing to bring proceedings in this jurisdiction. A wide range of people could be interested in and affected by the burial arrangements of a deceased person. However, the courts should have the ability to dismiss proceedings that are frivolous, vexatious or an abuse of procedure as the Family Court is currently able to do under section 140(b) of the Care of Children Act 2004.

Ambit of the court’s jurisdiction

24.31In Chapter 22 we proposed that a person may appoint a decision-maker to make decisions about funeral arrangements after the appointer has died; whether and how the body should be buried or cremated; and how any remains of the body should be dealt with. We consider that the statute should provide for the courts to have jurisdiction to consider any dispute that may arise in relation to those decisions. In particular, it should have jurisdiction to determine who should make these decisions or, if they have already been made, whether the decisions are reasonable in the circumstances. Alternatively, a person may ask the court to make the particular decision itself.

How the court should make its decision: relevant statutory criteriaTop

24.32Whichever type of decision the court is being asked to determine and whichever court is exercising the jurisdiction, we propose that, in making its determination, the court should have regard to a list of statutory criteria to help guide their decisions.483 These criteria should be the same as the matters that must be taken into account by the deceased’s appointed decision-makers when making decisions, as we described above in Chapter 23. In summary, those criteria are:
24.33In relation to cultural considerations, we note that, under some statutes, judges can request cultural reports to be completed to provide information that may better inform their decisions.484 That information may include the cultural ties and values of the people concerned. Access to such reports may be beneficial when culture is a key issue in the proceedings, although we acknowledge that they may be costly and difficult to obtain. Consideration should be given to other methods of obtaining this advice, such as allowing cultural advisers or, in the Māori context, kaumātua to advise the court.

24.34In addition to the criteria above, the court should also be required to consider the practicality, cost and timeliness of any proposed burial arrangements, having regard both to the need to uphold the dignity of the deceased and the interests of those who had a relationship with the deceased. These may be useful factors particularly in cases where the competing interests are very finely balanced. For instance, the court may ultimately favour a burial location that most people can visit easily, or it may take into account whether certain arrangements would exhaust the estate, particularly where there are contemporaneous family maintenance claims.

The priority that should be given to these disputesTop

24.35It has been emphasised to us that the court jurisdiction serves little purpose if people have acted pre-emptively to take the body and bury or cremate it before court proceedings can be instigated. For instance, we were told that, sometimes, substantive Family Court proceedings (those not concerning vulnerable parties) are not finally determined until several months after they first go before the Court. Obviously, this will not be appropriate for burial disputes where the burial or cremation of the deceased is in question.

24.36We believe there is sufficient justification for the courts to prioritise burial dispute proceedings. These concern deeply significant decisions for those involved and turn on questions of culture and belief. They should not be prioritised ahead of matters where personal safety is at risk (for instance, domestic violence order applications), but they do have a special character that warrants a speedy process. We therefore recommend that, where the Court receives an application in this jurisdiction, it should be required to determine the case within 10 working days.

24.37In Issues Paper 34, we suggested that parties coming before the Māori Land Court might need to be comfortable with lengthier timeframes, but the Māori Land Court submission said that, in its opinion, it is well placed to deal with substantive proceedings in an efficient and timely manner.

Securing the position where urgency is required: urgent injunctionsTop

Imminent risk of a body being taken

24.38If the Court is satisfied that there is an imminent risk of a body being taken, it should have the power to make an order appointing someone to exercise control and custody over the body in the interim period. The person appointed should depend on the circumstances of the case, having regard to who is available and the level of risk involved. It could be the deceased’s representative or executor, if there is one, a coroner who is willing to be involved, a funeral director, a kaumātua or Police.485

24.39The scope of the powers attaching to that order would also be for the judge to decide. For example, they may include a power to shift the body to a secure location or to remain with the body.

Imminent risk of a body being buried or cremated

24.40A small number of submitters suggested that Police should have statutory powers to seize a body so as to prevent people from burying or cremating it before the court can hear the proceeding. At present, if a body is taken, Police legally have no power to seize custody of the body and tend to be wary of intervening in case of exacerbating the dispute.

24.41We do not support conferring a specific statutory power on Police to seize a body. We think that, if such a power is necessary in a certain case, a court application must first be made. Therefore, if a body is in someone’s custody and the court is satisfied there is an imminent risk of it being buried or cremated before the court can deal with the substance of the proceedings, the court should have the power to issue a warrant allowing Police to take custody of the body for the purpose of returning it to the legal decision-maker or for the purpose of enforcing the court’s orders.

Disinterment ordersTop

24.42We consider that, if a body has been buried in breach of the rights of a deceased’s representative or executor, the court should have a statutory power to order its disinterment. In Chapter 12, we discussed disinterment in other circumstances—where the family are not in dispute but wish to move the body closer to other relatives; or where a property developer wishes to use the burial land for other purposes. In that section, we emphasised the strong public view expressed in submissions on Issues Paper 34 that a body, once buried, should not be disinterred without significant reasons. We proposed there that the cemetery manager should have the power to grant permission for a single disinterment if satisfied that all interested relatives have been consulted and there are no objections expressed.

24.43In contrast, where a body has been buried in breach of the rights of the deceased’s representative or executor and a court has been asked to determine questions in relation to the body, it should have a power to order the disinterment of the body. In making that decision, it must consider the standard matters described above for its burial jurisdiction. If it orders disinterment, it would also consider alternative disposal of the body or how that decision should be made.

Right of appealTop

24.44Given the significance and potential finality of these decisions, a right to appeal is important to correct error and to supervise and improve decision-making. However, this needs to be balanced against the need for speed and certainty.

24.45We have concluded that claimants in the Family Court should be able to bring an appeal as of right to the High Court, and the appeal should be conducted by way of rehearing. After considering the matter, we have concluded that appeals should be limited to questions of law. Allowing an appeal on both fact and law increases the risk of delay caused by re-litigating factual decisions made in the court below. However, we are satisfied that a person should be able to appeal if they are of the view that errors were made in how the law was applied to their particular situation.

24.46Claimants in the Māori Land Court should be able to appeal to the Māori Appellate Court under the existing appeal procedure in the Te Ture Whenua Māori Act 1993.

Recommendations

R119 The statute should enable applications to be made to the High Court, the Family Court or the Māori Land Court for determination of post-death disputes in relation to funeral arrangements, disposal of the body or how any remains should be dealt with.

R120 If the parties cannot agree on which court should hear the proceedings, the matter should be heard in the High Court.

R121 In relation to such an application, the court should have power to:
  • appoint a person to make a decision;
  • determine whether a decision that has been made is reasonable in the circumstances;
  • make a decision about funeral arrangements, disposal of the body or how any remains should be dealt with;
  • make an interim order to secure the position of the body, including a power to order that the body be moved to a new location and a power to appoint someone to act as custodian of the body; and
  • order disinterment of a body buried in breach of the rights of an executor or deceased’s representative.
R122 When exercising this jurisdiction, a court should be required to take account of:
  • the deceased’s wishes;
  • the views of members of the deceased’s family group (with the specific weighting we describe in R116);
  • relevant cultural considerations, including tikanga Māori;
  • the practicality, cost and timeliness of any proposed burial arrangements; and
  • any other factors the court thinks are relevant.
R123 The statute should require the court to determine applications in this jurisdiction with expediency.

R124 A court order made by the Family Court should be able to be appealed as of right to the High Court and should be heard by way of rehearing on matters of law only.

R125 A court order made by the Māori Land Court should be subject to existing appeal processes to the Māori Appellate Court as set down in the Te Ture Whenua Māori Act 1993.
483See Queensland Law Reform Commission, above n 448.
484 See Children, Young Persons and Their Families Act 1989, s 187.
485 The Court could have access to a list of people who are willing and appropriate to act as interim custodians where required and could appoint someone from that list.