Contents

Chapter 17
Court jurisdiction, procedure, and remedies

17.1 The Supreme Court in Takamore v Clarke treated the courts as the appropriate final arbiter of burial disputes. The majority held that the common law had “reached the position where a person who is aggrieved with the decision of the personal representative may challenge it in the High Court”764 and also made suggestions for how the High Court might deal with applications to control burial in cases of intestacy.765
17.2Elias CJ was also supportive of jurisdiction lying with the courts:766

The responsibility to decide as to the disposal of the body where there is dispute is inescapably that of the Court on application made to it.

Although the position of a court asked to resolve such differences is not a comfortable one, there is nothing particularly unusual in that. Courts not infrequently have to decide between positions that are not readily comparable.

17.3As noted by Griggs and Mackie, these proceedings will not be “ordinary litigation.”767 Burial dispute cases arise in circumstances of high emotional tension. The High Court might have to hear evidence about the relationships between the parties and the conduct and statements of the deceased that can be difficult to verify. A quick decision might also be required if the Court has been asked to make urgent interim orders to prevent a burial going ahead until the substantive dispute can be resolved, as was the case in the dispute over the body of James Takamore.768

17.4It will probably be unusual for most disputes to reach this stage. We expect that most disputing survivors are likely to want to resolve the dispute between themselves, “in the shadow of the law”, and in a way that suits their family circumstances. Nonetheless, on the occasions that disputes do reach the courts, the courts should be able to resolve them appropriately.

17.5The question we explore in this chapter is whether the High Court is accessible for parties who need it and whether it is well-placed, under the current common law framework, to decide burial disputes. We set out options for reform that might make the court system more accessible and effective for parties in dispute, including in disputes involving tikanga Māori. We also discuss potential remedies at the end of this chapter.

764Takamore v Clarke [2012] NZSC 113, [2013] 2 NZLR 733 at [160].
765At [143]–[148].
766At [10]–[11].
767Lynden Griggs and Ken Mackie “Burial Rights: The Contemporary Australian Position” (2000) 7 JLM 404 at 404.
768Clarke v Takamore [2010] 2 NZLR 525 (HC).