Contents

Chapter 17
Court jurisdiction, procedure, and remedies

Jurisdiction

17.14In Takamore v Clarke the Supreme Court proceeded on the basis that burial disputes would be heard by the High Court, most likely within its inherent jurisdiction. However, it is questionable whether the High Court is the court best suited to that task. In this section we consider whether it would be preferable to confer statutory jurisdiction on one or more different courts in the New Zealand court system.

The High Court

Traditional jurisdiction

17.15It might be argued that burial disputes do not fall within the traditional sphere of expertise of the High Court. The High Court is generally unaccustomed to making decisions on behalf of people, but usually reviews decisions already made. That is why judges in courts of general jurisdiction, whether in New Zealand or overseas, tend to defer to the decision of an executor. As long as the decision is not manifestly unreasonable and the executor has considered the views of others, the courts have been reluctant to displace it.780 This approach is consistent with exercising a kind of judicial review function towards the executor’s decision, with a high threshold for interference.
17.16In New Zealand, the Supreme Court’s clarification of the basis on which the High Court can intervene under New Zealand common law (that it is entitled to review the substance of the decision, not just the manner in which it was made) gives the High Court greater leeway in future disputes to make the decision on behalf of the executor, rather than limiting itself to reviewing the decision already made.781 Although common law jurisprudence on this will develop progressively, it cannot be expected to build up quickly over time, since burial dispute cases are relatively rare in New Zealand.

17.17This raises the question of whether it is desirable to leave these matters within the inherent jurisdiction of the High Court, or whether they would be better dealt with in a court that is used to encouraging the parties to reach decisions on difficult matters and, where necessary, where the court is able to make a decision itself.

17.18 Linked to this are the processes and procedures the High Court has at its disposal to help the parties make a decision. As a traditional litigation forum, the High Court is not designed to deliver mediated, consensus-based outcomes or to encourage the parties to reach the decision that suits them best. Josias has argued convincingly in favour of greater use of mediation in burial disputes.782 However, the High Court has limited statutory ability to refer parties to mediation.783 Nor do parties to a burial dispute have optional recourse to state-funded mediation services as an alternative or precursor to High Court proceedings.784

Accessibility

17.19Filing High Court proceedings is a relatively complex and lengthy process. It is also expensive, with filing fees of $1,350 for initiating an application.785 The total cost of bringing proceedings is likely to be much higher, factoring in the cost of amendments, hearing fees and any interlocutory applications. On top of court costs, there are also lawyers’ fees and other potentially unforeseen costs, such as the cost of storing the body while the case is heard.

The Family CourtTop

17.20 One option is to confer explicit statutory jurisdiction on the Family Court to hear these disputes. The Family Court has several advantages in this regard.786 Family Court registries are spread widely throughout the country.787 The cost of commencing proceedings in the Family or District Courts is closer to $200.788 The Family Court integrates mediation into its resolution processes.789 Another advantage is that the Family Court can process applications speedily, which will sometimes be required in burial disputes.

17.21The Family Court has jurisdiction to make orders related to a range of family matters. A similar jurisdiction could be conferred to make “burial orders”. This proposal would bring greater certainty than leaving the position as it is, where the High Court has a largely untested substantive review power. If the Family Court is empowered to make orders, families who are in a dispute would know that an accessible court is available to assist, if required.

17.22If one or more parties approach the Family Court, it could make an interim order that the body be placed under the care of one of the parties (perhaps a person who has a recognised statutory right of decision790 or a nominated funeral director) or that it not be moved from its current location until the dispute has been resolved, including any mediation processes completed. The interim order could be made without notice in the first instance, if need be. An analogy might be drawn with the Family Court’s existing jurisdiction to make orders to prevent a risk of child abduction, which often must be made urgently to address a significant risk.

Mediation

17.23Under this option, mediation could be compulsory if required by the Family Court Judge. The government body known as Dispute Resolution Services Limited could be ideally placed to conduct mediation in the first instance. The time for mediation should be limited – required to be completed within 14 days. If no agreement is reached after mediation, the matter would return to the Family Court to determine whether the matter needs to be decided with a court order. Orders could be made in accordance with guiding statutory factors (discussed in the previous section).

Appeal

17.24Another question is whether, under this option, an order made in the Family Court should be open to appeal in the High Court. Appeal rights serve an important purpose in our justice system but introducing a right of appeal here could further delay disposal.791 The expert, specialist function of the Family Court may weigh against including a right of appeal,792 although we note that other decisions of the Family Court are open to appeal to the High Court.793 The significance of the disposal decision and its finality favour including a right of appeal: Josias notes that decisions about burial are difficult to undo and that “[p]ublic policy and human nature frowns on disturbing the remains of the deceased”.794 The decision to cremate is physically impossible to reverse.

17.25 Whether or not there should be a right of appeal may depend on what the grounds of appeal are. It might not be desirable under this option to allow parties to relitigate the whole matter. However, a carefully-framed right of appeal to the High Court that is limited to matters of law might be appropriate.

Māori customary lawTop

Options involving the Māori Land Court

17.26 There is an option to confer jurisdiction for hearing burial disputes involving the application of Māori customary law on the Māori Land Court. This could be done by way of an extension to the existing jurisdiction of the Māori Land Court as contained in Te Ture Whenua Maori Act 1993. The Māori Land Court would then have concurrent jurisdiction to hear certain claims and to make an order either stating who has the right to control disposal or perhaps giving specific burial directions.

17.27If this were the case, we suggest that the Family Court could still be the first port of call for all applications for burial direction orders made under urgency. The Family Court has duty judges available to deal with those matters as required, whereas the Māori Land Court may be less well-placed to do so. Once the position has been secured, the parties could request, or the Family Court Judge could direct (with agreement from the parties), that the matter then be transferred to the Māori Land Court if it raises matters of tikanga.

17.28Our preliminary view is that only when both parties agree should proceedings be transferred in this manner. It would be necessary for all who come before the Māori Land Court to be comfortable with potentially lengthier timelines and processes, and with the fact that the dispute would be decided according to rules and principles derived from tikanga. It is likely to be impracticable for a Family Court Judge and Māori Land Court Judge to decide the case together as that would raise difficult jurisdictional questions.

17.29 We note that at the time of writing the Te Ture Whenua Maori Act 1993 is under review.795 We also note that the Māori Land Court does not deal with all disputes involving tikanga and that some may take the view that courts of general jurisdiction, which have an established body of law around recognition of tikanga, are the more appropriate forums for those disputes. Nonetheless the advantage of this option is the valuable repository of knowledge of tikanga in the Māori Land Court that would be available to the parties.

Options involving the Family Court

17.30We note that the Family Court currently deals with proceedings involving matters of tikanga Māori. If orders are requested that involve transferring guardianship of a child between different whānau, hapū or iwi, the Family Court is likely to consider the cultural implications of making such an order. In applications for an order for guardianship, a parenting order, or an order for the return of an abducted child, the Family Court can request a person to prepare a cultural report on the child, which may address any aspect of that child’s cultural background.796 The Court can also request a report, before making an order that a child is in need of care or protection, on the “heritage and the ethnic, cultural or community ties and values of the child or young person or the child’s or young person’s family, whānau, or family group”.797

17.31A similar power might be considered useful for a Family Court seeking to make an appropriate order for burial directions of a deceased who is Māori. Provision could be made in such cases for the Family Court Judge to request a report, or to make a request for a person to speak to the Court, on the cultural or tikanga implications of the case and/or the importance of tikanga to the deceased and/or their family. There may also be flexibility for a Māori Family Court Judge or a Family Court Judge who has specific understanding or experience of tikanga to hear the case.

780Heather Conway and John Stannard “The Honours of Hades: Death, Emotion and the Law of Burial Disputes” (2011) 34UNSWLJ 860 at 882 and generally at 881–891.
781Takamore v Clarke (SC), above n 764, at [162].
782Brian L Josias “Burying the Hatchet in Burial Disputes: Applying Alternative Dispute Resolution to Disputes Concerning the Interment of Bodies (2004) 79 Notre Dame L Rev 1141. See also Theresa E Ellis “Loved and Lost: Breathing Life into the Rights of Noncustodial Parents” (2005) 40 Val U L Rev 267.
783High Court Rules, r 7.79. The High Court does have inherent jurisdiction to order the parties to proceedings to attempt mediation of their dispute: Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC).
784Unlike in Queensland: see Queensland Law Reform Commission, above n 777at [6.216].
785High Court Fees Regulations 2013, Schedule.
786The Law Commission recently reviewed the operation of the courts under the Judicature Act 1908 but made no specific recommendations for the Family Court that would affect the proposals put forth in this Issues Paper: Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012).
787Family Court judges sit in 58 Courts throughout the country.
788The fee for filing an initial document in the District Courts is $200: District Courts Fees Regulations 2009, sch 1. Filing an application under the Family Proceedings Act 1980 is $211.50 (Family Courts Fees Regulations 2009, sch 1). Filing an application under the Care of Children Act 2004 is $220 (Family Courts Fees Regulations 2009, sch 2). The Family Court Proceedings Reform Bill (90-2) does not state that any changes are to be made to the fees in the Family Courts Fees Regulations 2009.
789The Family Court Proceedings Reform Bill (90-2) puts an even greater emphasis on parties using mediation to resolve their disputes outside of court.
790See ch 16.
791See Legislation Advisory Committee Guidelines on Process and Content of Legislation (Wellington, 2001, last updated 2012) at 276–278.
792At 276.
793See District Courts Act 1947, s 72.
794Josias, above n 782, at 1145.
795See Te Ture Whenua Māori Act 1993 Review Panel Discussion Document (Wellington, March 2013) <www.tpk.govt.nz>.
796Care of Children Act 2004, s 133.
797Children, Young Persons and the Families Act 1989, s 187.