NEW ZEALAND COURT GRANTS INTERIM ORDER TO PREVENT CREMATION AFTER WEIGHING BALANCE OF CONVENIENCE

In Clark v Cottingham [2018] NZHC 773, the New Zealand High Court considered an oral and without notice application for an interim order to prevent a cremation which was to be held in the afternoon on the same day of the hearing. The Court granted the order in terms, deciding that there was a serious issue to be tried and that far greater harm would result if the order was not made.

Background

Haydn Clark (aged 20) and his father were involved in a car accident. Haydn died in the accident and his father was admitted to hospital. Following Haydn's death and with his father in hospital, his mother uplifted Haydn's body and arranged a funeral service to be followed by cremation of Haydn's body.

Haydn's sister, on behalf of her father, made an ex parte application for an interim order to prevent the cremation of Haydn. She submitted that Haydn's mother was separated with his father when Hadyn was under the age of four and had seen very little of him over the last three years or so. Haydn's sister further submitted that her father had not been consulted, nor had she, nor had Haydn's partner of three years, with respect to the funeral. She stated that her father did not want the cremation to proceed at this time when he has had no opportunity to see his son's body. What the father wanted was for a service to be held in the chapel at the hospital in which he stayed, with appropriate arrangements for disposal of Haydn's body to follow.

General rule: serious issue to be tried and balance of convenience

In general, in deciding whether it is just or convenient to grant an interim injunction, the Court will first ask whether there is a serious question to be tried. If the answer is yes, the Court will then consider whether and to what extent the plaintiff will suffer from irrecoverable harm if the defendant continues to act unrestrained, and weigh such against the harm that the defendant may suffer if it is later found that the plaintiff should not have been granted an interim injunction. One question for the Court is whether damages could be an adequate remedy for the plaintiff.

Judgment

The Court was satisfied that this was a case justifying an application without notice based on the information provided, notwithstanding that the information had not been tested by cross-examination or otherwise. His Honour Justice Woodhouse found that first, there is a serious question to be tried, and second, it is plain that far greater harm would result if the orders were not made. He found that the plaintiff had established that the cremation of Haydn should not proceed: any harm that may follow from the making of the interim orders would be temporary and could be undone. If the cremation proceeded, the plaintiff would be without a remedy. The Court therefore granted orders that, inter alia, the crematorium should not proceed, Haydn's mother was restrained from undertaking the cremation of Haydn, and that there shall be no cremation of Haydn pending further order of the Court.

Comment

It is unusual for interim relief to be sought and granted in this sort of matter, but this is clearly a sensitive case which demonstrated special circumstances. If interim relief was not granted, the consequence that may follow would never be adequately remedied by damages.