IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Practice Court
Common Law Division
Trusts, Equity and Probate List
S ECI 2022 04966

IN THE MATTER of the Estate of TIBOR TIVADAR HORVATH, deceased

and

IN THE MATTER of Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 

APPLICATION BY:  

EASTERN HEALTH (ABN 68223819017)	Plaintiff	
		
v  		
		
MARY BRUININK	Defendant	

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JUDGE:	INCERTI J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 and 12 December 2022	
DATE OF JUDGMENT:	14 December 2022	
CASE MAY BE CITED AS:	Eastern Health v Bruinink	
MEDIUM NEUTRAL CITATION:	[2022] VSC 772	

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ADMINISTRATION AND PROBATE – Application for the disposal of the body of a deceased person – Executor unable or unwilling to act – Right and obligation to dispose of the deceased’s body – Plaintiff authorised to make arrangements for the disposition of the body.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A P Dickenson	Minter Ellison	
			
For the Defendant	Mary Bruinink in person	

HER HONOUR:
1	Eastern Health, the plaintiff applies by way of originating motion and summons for orders pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015, in relation to the body of the late Tibor Tivadar Horvath.  Tibor Tivadar Horvath died at Maroondah Hospital (‘the hospital’) on 10 January 2021 at the age of 87 years from natural causes. The deceased’s body remains at the hospital’s mortuary. This application concerns the disposition of the deceased’s body.
2	The defendant is Mary Bruinink, the deceased’s daughter.
3	Eastern Health controls and operates the hospital.
4	The deceased has two children, Mary Bruinink, the defendant, and George Horvath. George Horvath’s solicitors have written to the Court by letter dated 7 December 2022, supporting the plaintiff’s application. Mr Horvath is not a party to this proceeding.
5	Ms Bruinink is the executor named in the deceased’s last Will made 13 May 1993. The Will records, amongst other things, that the deceased wished to be cremated.
6	This matter was listed in the Practice Court on 8 December 2022 for urgent hearing. At the close of the plaintiff’s submissions, Ms Bruinink sought an adjournment to obtain legal advice. Ms Bruinink informed the Court that prior to the hearing she contacted a legal practitioner and it was her belief that if given an adjournment that person could assist her. The plaintiff did not oppose the adjournment. I granted Ms Bruinink an adjournment until 13 December 2022 but stressed the importance of finalising this matter.
7	Ms Bruinink was unable to find solicitors to assist her but was prepared to proceed with her submissions.
8	The plaintiff relies on Olivia Rofe’s affidavit affirmed 2 December 2022 and Richard Bunter’s affidavit affirmed 7 December 2022. Ms Bruinink provided the Court with a statutory declaration signed 7 December 2022 and an affidavit sworn 12 December 2022. I have had regard to these documents, along with oral submissions.
Relevant background
9	The deceased’s Medical Certificate of Cause of Death states that the deceased died from aspiration pneumonia, as well as congestive heart failure and Alzheimer’s disease.
10	In January 2021, shortly after the deceased’s death, Ms Bruinink made a request to the Coroner’s Court to investigate the death. On 27 January 2021, the Coroner signed a determination that the deceased’s death was not a reportable death.
11	Ms Bruinink subsequently appealed the Coroner’s determination. The appeal was heard in this Court by Ginnane J. His Honour handed down judgment on 31 March 2022, Bruinink v Coroners Court of Victoria.  Ginnane J dismissed the appeal and held that the Coroner did not err in law in deciding that the deceased’s death was a reportable death.
12	Despite Ginnane J’s findings, Ms Bruinink has continued to agitate her concerns about the process of reporting the deceased’s death and maintains that there were omissions and inaccuracies in the reporting process to Births, Deaths, and Marriages. In April 2021, Ms Bruinink informed the hospital that she was seeking an independent autopsy.  To date an autopsy has not been organised by Ms Bruinink.
13	At various times there have been attempts to move the deceased’s body to a funeral parlour. It appears that while there may have been an initial willingness by funeral parlours to receive the body, it never occurred because of instructions from Ms Bruinink that they should not do so, or a reluctance by the funeral parlour to become involved. In Ms Bruinink’s affidavit dated 12 December she informed the Court that her most recent attempts to have a funeral director retrieve the body on her behalf have failed.
14	Ms Bruinink filed a complaint to the Health Complaints Commissioner (‘HCC’) against the hospital on 14 May 2021. The HCC has formally closed the complaint.
15	On 19 August 2022, the hospital purchased a coffin for the deceased. Six staff members, wearing full personal protective equipment, were required to place the deceased’s body in the coffin.
16	The hospital’s mortuary is not set up for long‑term storage or preservation of bodies. The deceased’s body has continued to undergo the natural process of decomposition. The reason why the hospital purchased a coffin was to reduce the health risks to the staff by the body’s decomposition, and also for the dignity of the deceased.
17	The hospital’s mortuary is refrigerated to 4 degrees Celsius, which is sufficient to slow decomposition, but not to prevent decomposition of the deceased’s body.
18	The hospital’s mortuary has space for only four bodies. Since the beginning of the pandemic, it has occasionally been necessary to transfer bodies from the hospital to Box Hill Hospital because of the limited facilities at the hospital.
19	The Court has been informed that William Matthews Funerals is, subject to the receipt of an order of this Court, willing to retrieve the deceased’s body from the hospital mortuary and to arrange cremation of the deceased’s body.
20	By letter dated 9 September 2022, the hospital wrote to Ms Bruinink offering to pay the funeral costs in a final attempt to resolve this matter. Ms Bruinink rejected the hospital’s offer to pay the funeral costs and instructed the hospital to retain her father’s remains in a suitable area and to preserve the body.
21	Ms Bruinink asserts that:
(a)	she witnessed what she believed was a fatal medical event at the hospital on 9 January 2021;
(b)	her father did not die on 10 January 2021, as there is no concise time of death on the Medical Certificate;
(c)	she has concerns about the current whereabouts of her father’s remains and what the current state of decomposition is;
(d)	she now fears that if there are human remains in the coffin at the hospital, they may not be her father’s but those of another patient who was in the bed opposite her father in the hospital;
(e)	the hospital has denied her the right to advocate for her father while he was alive and after his death; and
(f)	the hospital is determined to destroy her father’s body to avoid any further investigation.
22	Ms Bruinink expressed her strong wishes to uphold her right as the deceased’s executor to retrieve his body and that this matter be resolved.
Relevant law
23	The law relating to the disposition of bodies of deceased persons is well established.
24	In Re Ghosh, Gorton J confirmed that the executors of the estate of a deceased person are responsible for disposing of the deceased’s body. Alternatively, if there is no executor and if it is possible to identify a person with the best legal claim to be appointed administrator, the Court’s role will ordinarily be to identify that person and direct that person they have the power and responsibility to dispose of the body. The rule is not absolute.
25	The law also requires that the disposition of a body must be undertaken in a respectful manner, mindful of religious and cultural issues.
26	The community would regard disputes over the disposal of human remains such as this as unseemly. The Court needs to resolve such disputes in a practical  way having due regard to the need to have a dead body disposed of without unreasonable delay, but with proper respect and decency.
27	In Smith v Tamworth Civic Council & Ors, Young J traced the law relating to the right of burial and the law’s approach to competing wishes and emotions of the living. This was distilled into 15 principles.  I will not repeat the 15 principles but note in particular principles 1 and 7. Principle 1 states:
If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.
28	Principle 7 states:
If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.
Analysis
29	There have been many attempts since the deceased’s death close to two years ago by the hospital to encourage Ms Bruinink to perform her legal duty as personal representative and take steps to arrange for the disposition of the deceased’s body. These attempts are listed in Ms Rofe’s detailed affidavit. No useful purpose would be served by listing all the correspondence, meetings, and conversations in this ruling. It is understandable that a child who was the carer for their father would be distressed by their passing and suffer grief and sadness.
30	However, having considered the correspondence, conversations, and Ms Bruinink’s submissions to the Court, it appears that Ms Bruinink still maintains that there was potentially some wrongdoing by the hospital shortly before her father’s death and she now goes as far as asserting that the body held by the hospital may not be her father’s body. In her most recent affidavit, Ms Bruinink queries the location of her father’s body, the precise condition of her father’s remains and wants a formal DNA identification to confirm the identity of the remains.
31	Ms Bruinink is still agitating matters that were initially considered by the Coroner and then decided by this Court. Ginnane J found that the Coroner did not err in law in deciding the death was not a reportable death.  It is not appropriate for me to revisit these findings.
32	As to the fresh allegations, they are concerning assertions with no evidentiary foundation.
33	The hospital has endeavoured to negotiate and engage respectfully with Ms Bruinink since her father’s death.  Despite the hospital’s genuine efforts, including a recent offer to pay for the funeral, the hospital has had little or no co-operation from Ms Bruinink and has found itself caring for the deceased’s body for almost two years at its own expense, with limited facilities and in circumstances where it is creating a potential health risk to staff at the hospital.
34	Ms Bruinink is the  executor and would ordinarily have the right to organise the burial or cremation of the deceased’s body. For the reasons discussed I consider Ms Bruinink is not ready or able to do so. In almost two years Ms Bruinink has been unable to find a funeral home to take the body. I consider that Ms Bruinink’s conduct to date suggests that she is not willing to organise the burial or cremation as she believes there has been misconduct by the hospital and now disputes the identity of the remains. 
35	Mr Horvath who has the next best legal claim to be appointed administrator, does not want to take on the role and has positively said that he supports the plaintiff’s application.
36	In such circumstances, it seems that there is no competent person willing to bury or cremate the body and the hospital where the death occurred now has the responsibility for organising the deceased’s cremation, in accordance with his wishes.  
37	Putting aside the serious inconvenience and potential health danger to the hospital staff, there is also a general public interest to be weighed in this case that bodies of deceased persons be treated with respect, and consistent with the deceased’s wishes to be cremated reasonably promptly and not be permitted unnecessarily to decompose.
38	In summary, Ms Bruinink, the person with the right to arrange the burial or cremation of the deceased’s body, has shown by her conduct that she is unwilling or unable to make proper funeral arrangements.  Mr Horvath, the other next of kin, while not a party to this proceeding, has not indicated that he is willing or able to attend to his father’s burial or cremation.  In these circumstances, the hospital is the proper party to arrange the disposition of the deceased’s body on the basis that the deceased died in the hospital.
39	Given the time that has already elapsed since the death and the impact on the hospital having to store the body, it is critical that the deceased’s body be delivered immediately to a funeral home and the funeral home be instructed to preserve the body for a short period until cremation is organised. I am mindful that William Matthews Funerals should not find itself in a similar position to the plaintiff. It was made clear to Ms Bruinink that she can at any time organise to retrieve her father’s body and organise his funeral. The difficulty is that this cannot go on indefinitely for the reasons I have set out. The hospital or William Matthews Funerals should not be required to hold the body any more time than is now necessary to organise the deceased’s cremation in accordance with his wishes. Such decisions should be made swiftly on the facts before the Court. 
40	In summary, given the inordinate time that has lapsed since the deceased’s death and Ms Bruinink’s inability or unwillingness to organise for the disposition of the body,  it is appropriate that the Court make orders authorising the plaintiff to make the necessary arrangements for the transfer of the deceased’s body to William Matthews Funerals. The body is to be preserved for a period of two days following which William Matthews Funerals is authorised to cremate the deceased’s body. The cremation is to be completed no later than 23 December 2022.  I consider it appropriate that William Matthews Funeral notify Ms Bruinink and George Horvath at least 24 hours prior to the cremation and provide details of the time and date of the cremation.
41	Having already heard submissions on costs, it is appropriate that the hospital’s costs of and incidental to this proceeding be paid from the deceased’s estate.