Applicant v First Respondent

1 In 2020, the first respondent, the Registrar of Births, Deaths and Marriages ('Registrar') accepted an application by the applicant, Evgeniya Vernon ('Vernon') to register her relationship with Daniele Legler ('Legler') in the relationships register as a domestic relationship under the Relationships Act 2008 (Vic) ('Relationships Act').

2 Legler died intestate in 2022. There is an ongoing dispute between Legler's five children, including the second respondent, Nadja Legler ('Nadja'), and Vernon about the division of his estate.

3 In 2023, in the context of the estate dispute, the Registrar amended the relationships register by cancelling the entry of the domestic relationship between Vernon and Legler pursuant to s 19(1)(b) of the Relationships Act ('cancellation decision'). Vernon applied to the Victorian Civil and Administrative Tribunal ('VCAT') under s 28 of the Relationships Act to review the cancellation decision. Nadja was joined to the proceeding as a respondent. On 15 November 2024, a Senior Member of VCAT affirmed the cancellation decision ('VCAT decision').[1] Vernon has applied for leave to appeal the VCAT decision. There is a right to appeal only on a question of law.[2] Leave will only be granted where the appeal has a real prospect of success.[3]

4 I have concluded for the following reasons that leave to appeal the VCAT decision should be refused and the proceeding dismissed.

5 Vernon was born in the former USSR. She came to Australia in 2004 with her husband who she divorced in 2010. She became a permanent resident of Australia in 2012 and an Australian citizen in 2015. Vernon worked as a migration agent and owned a business which has a registered address in Victoria.

6 Legler was born in Italy. He worked in Europe as an actor and later as an acting coach. There are three children of Legler's first marriage, which ended in 1998. Legler married for the second time in 2002. There are two children of that marriage, which ended in 2015. Legler and his second wife lived in Melbourne for at least part of their relationship. Legler's second wife and her children continued to live in Byron Bay after the relationship ended.

7 Legler owned a property in Lagos, Portugal referred to in the proceeding as La Punta. He lived at that property for at least part of time from 2015 until his death in April 2022.

8 Vernon and Legler first met in Melbourne in 2016 and formed a relationship towards the end of that year.

9 Vernon was in Melbourne in February 2020 to attend a course related to her business as a registered migration agent.

10 On 12 February 2020, Vernon submitted an application to the Registrar for registration of her relationship with Legler under the Relationships Act. On 13 February 2020, Vernon attended the Births, Deaths and Marriages Registry ('Registry') and provided copies of the following documents in support of the application:

(a) Vernon's Victorian driver licence recording her address as 110 William Street, Melbourne;

(b) Vernon's Australian passport;

(c) Legler's Victorian driver licence recording his address as 110 William Street, Melbourne;

(d) Legler's Millennium Bank ATM card;

(e) a certified copy of Legler's Swiss passport;

(f) Legler's Westpac proof of account balance dated 13 February; and

(g) Legler's Westpac bank statement covering the period 14 January to 13 February 2020.

Legler submitted his part of the application online.

11 On 12 March 2020, the Registrar issued a certificate under the Relationships Act for a domestic relationship between Vernon and Legler to be entered on the register.

12 Legler died in Lagos, Portugal on 22 April 2022. La Punta was listed as Legler's last usual place of residence on the death certificate issued by the Civil Registry Office of Lagos.

13 On 23 May 2023, a delegate of the Registrar wrote to Vernon to advise of the cancellation decision. The delegate's letter includes:

Upon review, it has been established that the domestic relationship was incorrectly registered on the basis of two defects.

Firstly, section 7(a) of the [Relationships Act] requires that an application for the registration of a domestic relationship must be accompanied by a statutory declaration from each of the applicants verifying the information prescribed in section 7(a).

Upon further review, it has been identified that no statutory declarations were provided by either yourself or Mr Legler as part of the application. On that basis, the application was non-compliant with a mandatory requirement under the [Relationships Act] and should not have been registered at the time.

Secondly, section 6(a) of the [Relationships Act] provides that one of the persons in the relevant relationship must live in the State of Victoria in order to bring an application under that provision. Your application recorded both applicants' residential addresses as 110 Williams Street, Melbourne VIC 3000. Searches indicate that this address is not a residential address, but the address of the Australian Club.

For the reasons given above, I have amended the Register by cancelling the entry of the domestic relationship between you and Mr Legler, in effect cancelling the registration of the domestic relationship.

Relationships Act

14 The Relationships Act provides a statutory regime for the adjustment of property interests and the right to maintenance between persons in a domestic relationship.[4] As part of that regime, the Relationships Act establishes a relationships register in Victoria for the registration of domestic relationships.[5]

15 The Relationships Act defines domestic relationship to mean:

(a) a registered domestic relationship; or

(b) a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender)[.][6]

16 Persons may apply under s 6 of the Relationships Act for registration of a domestic relationship if:

(a) one of the persons in the relationship lives in the State; and

(b) each of the persons in the relationship -

(i) is not married or in a registered relationship; and

(ii) is not in another relationship that could be registered under this Part.

17 The requirements of an application for registration are set out in s 7 of the Relationships Act, which relevantly provides that applications 'must include or be accompanied by':

(a) a statutory declaration from each of the applicants verifying that the applicant -

(i) consents to the registration; and

(ii) is not married or in a registered relationship; and

(iii) is not in another relationship that could be registered under this Part[.]

18 The Registrar must maintain a register of registered relationships. For that purpose the Registrar has power to conduct inquiries and to correct or amend the register.

19 The Registrar's powers of inquiry are governed by s 18 of the Relationships Act, which relevantly provides:

(1) The Registrar may conduct an inquiry to find out -

(a) particulars to verify information given for, or in connection with, an application for registration of a relationship or revocation of registration; or

(b) whether particulars of a registered relationship have been correctly recorded in the Relationships Register.

(2) The Registrar may, by notice given to a person who may be able to provide information relevant to an inquiry under this section, require the person to answer specified questions or to provide other information within a time and in a way specified in the notice.

20 Correction and amendment of the relationships register is governed by pt 2.3 div 3 of the Relationships Act. Section 19 relevantly provides:

(1) The Registrar may correct or amend the Relationships Register -

(a) to reflect a finding made on inquiry under Division 2; or

(b) to bring an entry about a registered relationship into conformity with the most reliable information available to the Registrar of the registered relationship.

(3) The Registrar corrects or amends the Relationships Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.

21 A person whose interests are affected by a decision of the Registrar may apply to VCAT for review of the decision.[7]

22 The Senior Member summarised his findings and conclusions for making the VCAT decision as follows:[8]

(a) Mr Legler was not living in Victoria at the Relevant Time,[9] which is consistent with both:

- the Registration Application; and

- findings made by Supreme Court of New South Wales in The Estate of Daniele Claudio Legler[10] ('NSWSC Proceeding') that Mr Legler was 'quite settled' at his property in Portugal (known and referred to in these reasons as 'La Punta'), which he regarded as 'his home'.

(b) Ms Vernon was also not living in Victoria at the Relevant Time.

(c) Neither Mr Legler nor Ms Vernon produced a statutory declaration of the kind required under the [Relationships Act].

1. On this basis, it is clear the Registrar ought not have registered the domestic relationship between Ms Vernon and Mr Legler. However, having done so, the question is whether the preferable decision is to cancel that registration (i.e. in exercise of the discretion available to the Registrar).
2. For the reasons which follow, I consider that the preferable decision is to cancel the registration and, as such, I have affirmed the Registrar's Decision.

23 The reasons record the following background to the cancellation decision and the application for review:[11]

7 As discussed in more detail below, Ms Vernon and Mr Legler:

• first met in Melbourne in 2016 for business purposes;

• formed a relationship towards the end of that year; and

• spent their time together travelling internationally, particularly in Europe.

1. In February 2020, just prior to the declaration of the COVID-19 pandemic, Ms Vernon was in Melbourne for a short period to attend a course related to her business as a registered migration agent.
2. While in Melbourne, Ms Vernon submitted an online application to the Registrar for registration of the domestic relationship with Mr Legler. The Registration Application was automatically forwarded by email to Mr Legler to add his details. Ms Vernon then attended at the Registry office to provide certain evidentiary material required (e.g. a copy of the driver's licences for herself and Mr Legler).
3. The Registrar accepted the application and, after the mandatory waiting period of 28 days, registered the relationship and issued a relationship certificate on 12 March 2020 ('DR Registration').
4. Mr Legler passed away on 22 April 2022. Since his death, Ms Vernon and the children of Mr Legler's two former marriages (including the joined party, Ms Nadja Legler) have been locked in acrimonious disputes in relation to his estate, both in Australia (i.e. [The Estate of Legler]) and in Europe.
5. In October 2022, Ms Legler's solicitors wrote to the Registrar claiming that a Victorian death certificate for Mr Legler, which had been issued by the Registrar on application of Ms Vernon, contained false information contrary to the death certificate issued in Portugal. Among the details claimed to be false was Mr Legler's 'residential address' at the time of his death. This had been specified as 110 William Street, Melbourne (being the address of the Australian Club), rather than La Punta. The Registrar ultimately cancelled the death certificate later that month.
6. In March 2023, Ms Legler's solicitors filed an application in the Supreme Court of Victoria seeking a declaration that there was no 'registrable domestic relationship' between Ms Vernon and Mr Legler and that the DR Registration was void ab initio (i.e. from the start) ('VSC Application'). That application named the Registrar as first defendant.
7. In the materials produced in accordance with section 49 of the [VCAT Act] ('s 49 Material'), the Registrar states that 'receipt of service [of the VSC application] prompted the Respondent to make inquiries regarding the relationship registration application ... and supporting documents'.
8. As already noted, the Registrar's Decision - to cancel the registration of the domestic relationship between Ms Vernon and Mr Legler - was made on 23 May 2023.
9. As she was entitled to do, Ms Vernon applied for review of the Registrar's Decision by application filed on 16 August 2023. Ms Legler was joined as a party to the proceeding by orders made on 13 November 2023.
10. By the time the matter came on for hearing, the decision in [The Estate of Legler] had been handed down, with Pike J finding that Ms Vernon was the de facto spouse of Mr Legler at the time of his death, at least for the purposes of the relevant New South Wales Legislation. In the course of the decision, the judge made certain findings as to Ms Vernon's credit and as to where she and Mr Legler were domiciled and/or living at certain points in time. It will be necessary to come back to the use, if any, to be made of such findings.

24 The Senior Member then referred to relevant sections of the Relationships Act and outlined the evidence given in the VCAT proceeding.

25 In the reasons, the Senior Member set out evidence given by Vernon including:[12]

1. Ms Vernon states that her relationship with Mr Legler became personal from December 2016 and that, between 2017 and 2019, they spent the majority of their time travelling, particularly in Europe, as their relationship was 'growing'.
2. Ms Vernon states that, while she does not have 'one fixed place of abode', since 2017, she is 'a Victorian resident who has always lived in Victoria' and 'retain[ed] a domicile here when [she is] visiting overseas'. Further, she states that she has 'not adopted a permanent place of abode outside of Victoria', 'always intended to make [her] home indefinitely in Victoria' and 'continuously ... leased a storage unit for [her] household goods ... in Victoria'. She has also maintained a Victorian driver's licence since 2013. For much of that time, and including at the Relevant Time, the residential address recorded on her licence has been 110 William Street, Melbourne, which is the location of The Australian Club. While that club is a 'private gentlemen's club', of which she could not be a member, she states that she has been permitted by that club to use that address whenever it was required (i.e. when a PO Box address would not suffice).
3. Ms Vernon explains that she was in Melbourne between 5 and 22 February 2020 to attend some migration law workshops, before returning overseas. However, 'due to the COVID-19 lockdowns', she and Mr Legler were unable to return to Australia between March and December 2020. As a result, she obtained a permit 'to remain in Portugal with [Legler] during that period'.
4. Ms Vernon states that, after she submitted the Registration Application and had received confirmation that Mr Legler had completed his sections, she:
   • initially attended at the [...] Registry to provide the 'divorce certificates and Victorian Driver's Licences for both [Legler] and [herself]';
   • returned, later that day, with 'certified copies of both [of their] passports and a bank statement for [Legler]'; and
   • returned for a third time on the same day with bank statements for Mr Legler showing 'some transactions and funds in the account' (as had been requested).

She says that a [...] Registry staff member then informed her that 'everything is complete'.

1. To the extent relevant, Ms Vernon claims that she and Mr Legler have 'relied on the registration of [the] relationship both in Australia and overseas', giving some examples of having done so.
2. Ms Vernon claims to have 'lived permanently' in a unit in South Yarra since June 2022.

26 The Senior Member referred to the following evidence given by Vernon in cross-examination and made the following finding adverse to her credibility as a witness:

1. In cross-examination, it emerged that:
   • Ms Vernon had her clothes and personal papers at La Punta at the time of Mr Legler's passing in 2022 and, in proceedings instituted to recover those items, she claimed to be residing in Portugal;
   • she has continuously held a residence permit to live in Mallorca, Spain since at least 2014 and became a citizen of Spain in 2024;
   • she was the owner of two cars registered in Spain; and
   • she has maintained her Russian citizenship and passport.
2. In light of that evidence, which tends to suggest Ms Vernon makes claims as to her residence and related matters which can vary depending on the particular situation she is confronting, I consider that her evidence should be treated with some caution. That said, much of the evidence in her witness statement is corroborated by contemporaneous documentary material and, as such, still has probative value.

27 The Senior Member referred to a submission by Vernon that the presumption of regularity, which was not rebutted on the evidence before VCAT, supported a conclusion that the statutory declarations required under s 7 of the Relationships Act had been lodged with the Registrar in support the application for registration of the relationship.

28 The reasons record Nadja's submission that Vernon had failed to produce a copy of any statutory declaration, conceded she did not know if Legler had provided a declaration in support of the application, and that she was unable to recall if she had made a statutory declaration. The Senior Member referred to a submission by Nadja that the presumption of regularity was rebutted in this case.

29 The reasons record Vernon's submissions in reply that it was not for her to satisfy VCAT that the statutory declarations required by s 7(1) of the Relationships Act were provided.

30 The Senior Member made the following findings as to the statutory declarations:

1. It is clear that, at the Relevant Time, Mr Legler was in Portugal. As such, the only way in which he could have provided any statutory declaration on or about the date of the Registration Application would have been to do so electronically (i.e. to scan and email the original statutory declaration sworn or affirmed before a relevant person).
2. If Mr Legler had provided a statutory declaration, the [...] Registry would have a copy of it and the Registrar would have been required to include that in the s 49 Material.
3. The s 49 Material is voluminous and there is no evidence to suggest it is incomplete. Further, no application was made by Ms Vernon to require the Registrar to produce any further documents under section 49(3) of the [VCAT Act].
4. In those circumstances, I consider it appropriate to infer that Mr Legler did not provide a statutory declaration as required by section 7 of the [Relationships Act]. As section 7 requires 'each of the applicants' to provide a statutory declaration, it is unnecessary to make any further findings as to whether (or not) Ms Vernon provided one.

31 The Senior Member noted that while Legler specified the location of the Australia Club as his residential address in the registration application, he answered 'no' to the question of whether he was residing in Victoria. The Senior Member concluded that Legler's representation that he was not living in Victoria at the relevant time was supported by the decision of Pike J in The Estate of Legler.

32 The Senior Member recorded Vernon's submission that the word 'lives' as used in s 6 of the Relationships Act should be given its ordinary meaning, and that VCAT should adopt one of three suggested dictionary definitions as that meaning. Vernon submitted she should be found to have lived in Victoria at the relevant time based on any of those definitions.

Of the ordinary meanings put forward, I consider that the third definition referenced by Ms Vernon, i.e. to make one's home, have one's abode, dwell or reside, is the most apt. That definition is consistent with:

• the definition proposed by the Registrar given the meaning of abode is 'dwelling place; one's home'; and
• the way the word was applied in identifying a territorial connection to South Australia (albeit under different legislation) in Caldwell[[14]] (i.e. by reference to the applicant's marital home).

34 The Senior Member discussed that definition and construction of the 'lives in the State' requirement as follows:[15]

1. Importantly, as Ms Vernon accepts, a home connotes something more permanent than a hotel or other form of accommodation where a person stays for a few nights on a visit to a city or town. It follows that a person who is itinerant - i.e. travels from place to place - may have difficulty establishing that they live in any particular location. I also agree with Ms Legler's submission that a person may live in more than one place provided they can establish a sufficient connection with each place.
2. By contrast, the other two definitions put forward by Ms Vernon relate to how a person supports themselves in life. Due to that focus, those definitions would not necessarily assist in determining where a person lives. For instance, it is entirely possible that a person has their home in one place and earns their living elsewhere (e.g. an international airline pilot).
3. There is nothing in the definition to suggest that the notion of where a person lives or has their home depends on some particular property right (e.g. a freehold interest or lease); rather, it seems to me to turn more on the character of the place. For example, if an adult child leaves Victoria to study interstate or overseas but regularly returns to their parental home for their university holidays, the parental home may well be accepted as the place where they live, despite the child having no particular legal right to reside there. Indeed that is consistent with the decision in Caldwell. However, it may be otherwise where the connection with a given place is more tenuous as the facts in O'Sullivan[[16]] show.
4. A person's intention - gauged objectively - to live in a particular location may be a relevant factor but, as is often said in the context of determining a person's principal place of residence (for state tax purposes), is unlikely to be determinative of the issue.
5. Ultimately, as indicated in Caldwell, it is a question of fact, having regard to all of the evidence available.

35 Earlier in the reasons the Senior Member recorded the following submissions made by Legler:[17]

1. However, in this case, Ms Legler joins with the Registrar in submitting that Ms Vernon had a 'real connection to Spain and Portugal', but a lesser and insufficient connection to Victoria. Mr Tran noted that, while Ms Vernon leased a storage unit in which she kept her household goods, this was 'not a place that she could stay'. He also contrasted that with the clothing and documents Ms Vernon kept in Portugal, noting that she went to the length of engaging lawyers to seek the return of those items.
2. Ms Legler highlights that pleadings prepared on Ms Vernon's behalf for proceedings in Portugal - to establish her rights (as against Ms Legler and her siblings) in respect of La Punta - 'speak to the extent and depth of her life in Portugal'. For example, the pleadings provide:

[Ms Vernon] and Daniele Legler jointly decided, in June 2017, that [she] should come to live in Lagos [i.e. the town in Portugal where La Punta is located] with him.

And so it happened.

From that moment on, [Ms Vernon] and Daniele Legler moved their life in common to Portugal, having established [La Punta] as their family home.

1. Mr Tran observed that it was 'not possible for the lawyers to draft those pleadings without talking to Ms Vernon'.

36 The Senior Member was not satisfied on the evidence that Vernon lived in at the relevant time. The reasons given for that conclusion are as follows:[18]

1. While I accept Ms Vernon's evidence that she lived in Victoria in 2015 and 2016 (and perhaps earlier), I consider that she ceased to do so in 2017 when she and Mr Legler made the (joint) decision to make their home at La Punta[.]
2. While Ms Vernon may have subjectively intended to return to Victoria to live as soon as she could, it is evident from the material in the Tribunal Book that:
   • Mr Legler's home was in Portugal; and
   • his work required extensive travel, particularly in Europe.
3. As such, so long as Ms Vernon wanted to maintain her relationship with Mr Legler, she was never going to be able to return to Victoria 'indefinitely'.
4. Objectively gauged, Ms Vernon intentionally made her home in Portugal from 2017. Consistent with that intention, Ms Vernon hired a storage unit to keep some of her items (which self-evidently were not essential for day to day living), while taking her clothing and important personal documents to Portugal. That she had to use the address of The Australian Club for various correspondence speaks to her limited ties to Victoria at the time.
5. Of course, I accept that - due to the pandemic - Ms Vernon and Mr Legler could not return to Victoria between March and December 2020. But there is no objective evidence to suggest that they were intending to resume living in Australia at that time, as opposed to desiring to visit (e.g. so that Mr Legler could spend some time with the children of his second marriage). Relevantly, when they could and did return to Australia:
   • the transactions recorded in the bank statements included in the Tribunal Book suggest they spent a fair amount of that time travelling around other parts of Australia; and
   • there is no objective evidence to support the assertion that they were 'looking for a property [to] purchase' in Victoria as claimed.
6. While the Spanish residency permits and the two cars Ms Vernon had registered there may suggest she also lived in Spain, I consider the evidence to be insufficient to draw such a conclusion. Further, given the Spanish passport was not obtained until 2024 (four years after the Relevant Time) and in circumstances where it is unclear how often she visited or where she stayed when doing so, I do not consider the material on the Spanish government website - to the effect that a person needs to reside in Spain for at least 10 years to qualify for Spanish citizenship - sheds sufficient light to found the inference that Ms Vernon also lived in Spain at the Relevant Time.

Ground 1: Did VCAT err in its construction of the meaning of the expression 'lives in the State'?

37 The Senior Member erred by adopting the dictionary definition of 'live', and by further limiting that definition by imposing requirements of permanence and the need for a specific home or dwelling. Contrary to the Senior Member's reasoning, a person might live in the State if they stay in temporary accommodation for a few days at a time provided that, overall, they live in Victoria.

38 The intention of the provisions that introduce the register for domestic relationships is to facilitate the rights of non-married couples in a domestic relationship. The requirement that one party to the relationship live in Victoria was plainly not intended to impose an onerous hurdle on registration. That is confirmed by the Explanatory Memorandum, Relationships Amendment Bill 2015 (Vic), which states:

It is intended that the words "lives in the State" be given their ordinary meaning. However, it is intended that a person would need to show only that they currently live in Victoria and would not have to satisfy a minimum term of residency (either prior to or following registration).

By requiring the need for a specific home the Senior Member adopted a definition of 'live' that was inconsistent with the legislature's intention.

39 Vernon's evidence was that she did not have a home or a fixed property and travelled intermittently to and from Australia during her relationship with Legler for periods of two to nine months. As such, the Senior Member should not have placed weight on the need for a specific home but rather on Vernon's evidence that:

(a) she intended to make her 'home indefinitely in Victoria';

(b) in 2021, she and Legler looked for a property to purchase in Victoria;

(c) while in Victoria, she stayed at the Australia Club, and in hotels, Airbnbs, and other rental accommodation;

(d) after Legler's death, she lived permanently in a unit in South Yarra; and

(e) she had substantial connections to Victoria, including:

1. holding a Victorian bank account;
2. operating a business that was her sole source of income in Victoria;
3. lodging income tax returns through a Victorian accountant;
4. leasing a storage unit in Victoria;
5. being a member of the RACV Club;
6. being a member of the Russian Ethnic Representative Council of Victoria;
7. studying in Victoria;
8. holding bank accounts, credit cards and insurance policies with Australian institutions; [and]
9. representing Australia internationally as an athlete.

40 The intention of the provisions that introduce the register for domestic relationships and make it a condition that one party to the relationship lives in Victoria is to establish a sufficient territorial connection between the relationship and Victoria.

41 It is not in contention that the Senior Member determined 'lives in the State' should adopt its ordinary meaning. It was open for the Senior Member to find on the evidence that Vernon did not live in Victoria. Vernon's complaint is not that the Senior Member erred in law, by misconstruing s 6(a) of the Relationships Act, but is that the Senior Member erred in fact, by finding Vernon did not live in Victoria at the time of her relationship with Legler.

42 The Senior Member did not construe 'lives in' to require Vernon to have a specific home in Victoria, or to exclude those who do not have a home, who live in temporary homes or who live itinerantly, from living in Victoria.

43 The Senior Member did not err in adopting the dictionary definition of 'lives in'. The reality of Vernon's complaint, is that s 6(a) of the Relationships Act should have been interpreted by the Senior Member to mean she lived in Victoria at the time of her relationship with Legler. However, it was open on the facts to determine, as the Senior Member did, that Vernon did not live in Victoria at the relevant time.

44 I reject Vernon's criticism of the Senior Member's use of a dictionary definition as being apt when construing the expression 'lives in the State' and in applying that construction to the circumstances of the case.

45 The Senior Member accepted Vernon's submission that 'lives in', as used in s 6 of the Relationships Act, should be given its ordinary meaning. The Senior Member then adopted one of three definitions proposed by Vernon as being 'the most apt' to construction of s 6. Vernon's submissions on this application are inconsistent with the approach she urged the Senior Member to adopt.

46 The verb 'lives' may be used to convey that a person or thing is alive or existing or that a person or thing resides at a specific place. It is the latter meaning that applies in s 6 of the Relationships Act. Use of the phrase 'lives in the State' demonstrates Parliament was concerned with where persons in a domestic relationship live. A domestic relationship may only be registered if the location at which one person in the relationship lives is in the State.

47 The purposes of the Relationships Act include to establish a relationships register in Victoria and to provide for the adjustment of property interests between domestic partners. For the Relationships Act to apply, there must be some territorial link to Victoria. That link is established by the requirement for registration that one of the persons in a domestic relationship lives in the State.

48 Relevant contextual material supports the construction of 'lives in the State' as being about the place or location where persons in a domestic relationship reside. In the second reading speech to the Relationships Act, the Attorney-General said:[19]

Registration will be available for couples in a registrable relationship where both parties are adults, ordinarily resident in Victoria and not married, already in a registered relationship or in another relationship that could be registered in Victoria.

49 The Relationships Amendment Act 2016 (Vic) ('Amendment Act') reduced the requirement for registration in s 6 of the Relationships Act such that it is necessary that only one person in the relationship lives in Victoria. In the second reading speech to the Amendment Act, the Attorney-General said:[20]

In establishing the Relationships Register in 2008, Victoria followed the Tasmanian approach, which was the only Australian relationship registration scheme at that time. As such, the Relationships Act requires both partners in the relationship to be registered to be ordinarily resident or domiciled in Victoria.

This requirement imposes an unnecessary barrier to relationship recognition in Victoria. It is also now out of step with the majority of other interstate registration schemes that have since been established, which require only one person in the relationship to live or reside in the relevant state or territory.

The bill therefore makes it easier for couples to register their relationship in Victoria by simply requiring one partner in the relationship to live in Victoria.

50 Before s 6 of the Relationships Act was amended, the requirement for registration was that each person in the relationship be 'domiciled or ordinarily resident in the State'. The word 'domiciled' suggests having a permanent home. The phrase 'ordinarily resident' suggests a state of affairs that has persisted, albeit for an unspecified period of time. Read together, the words used in s 6 when it was first enacted conveyed a requirement that was more onerous in the sense that a person's residence in the State needed to be established, enduring or persistent. That requirement was relaxed by the Amendment Act.

51 While the Amendment Act reduced the requirement for registration of a relationship, it remains necessary that a person in the relationship resides in Victoria.

52 The definition used by the Senior Member is directed to the place or location where a person lives. Words such as 'home', 'abode', 'dwell', and 'residence' do not import a concept of permanence or necessarily impose a requirement of an established, enduring or persistent state of affairs. A person may make a place their home or abode, or dwell or reside in a place for a limited period. The Senior Member was correct to observe that the definition is apt to understanding the meaning conveyed by 'lives in the State'.

53 The Senior Member did not make use of the definition in a way that impermissibly restricted application of s 6 of the Relationships Act. The Senior Member did say that a stay of a few nights would not be sufficient to connote a home. However, the reasons show that conclusion was based not only on the term of residence but also the temporary nature of the accommodation and the intention that the stay was a visit. Further, Vernon agreed with the proposition.

54 The Senior Member's observation about itinerant persons is unsurprising and cannot be criticised. The Senior Member did not dismiss the possibility of an itinerant person establishing that they live in Victoria. Clearly, much would depend on the circumstances. A person who moved frequently from place to place, but almost always resided in Victoria, would probably have little difficulty establishing that they live in the State but may not be able to establish that they live at a more specific location. A person whose itinerant travel is spread equally across every State and Territory of Australia may have little difficulty proving they live in Australia, but may find it more difficult to establish that they live in a particular State or Territory. However, proof may not be difficult if the person is temporarily itinerant in the sense that they are travelling around Australia for a period of 12 months with the intention of returning to their home State at the end of their travels.

55 The Senior Member's finding that a person may live in more than one place at the same time, and emphasis on the character of the place at which a person is said to live, and the person's connection with that place, shows a flexible approach to the interpretation of s 6 of the Relationships Act. The Senior Member reasoned that a sufficient connection may be established in the absence of the person having a particular property right, and may be supported by a person's intention, gauged objectively, to live in a particular location. That flexible approach was confirmed by the observation that whether a person 'lives in the State' is to be determined 'having regard to all of the available evidence'.

56 I reject Vernon's submissions that, when construing the phrase 'lives in the State', the Senior Member impermissibly imposed requirements of permanence, or for a person to have a specific home or dwelling, and dismissed the possibility of a person staying in temporary accommodation establishing that they live in the State. Those submissions are demonstrably inconsistent with the Senior Member's reasons.

57 I accept the Registrar and Nadja's submissions that Vernon's real complaint is that the Senior Member erred by finding that she did not live in Victoria. That finding was open to the Senior Member and is not susceptible to review on this application for leave to appeal.

Grounds 2-4: Did VCAT fail to accord natural justice to Vernon?

59 VCAT is bound by the rules of natural justice. Although the rule in Browne v Dunn does not strictly apply to VCAT proceedings, VCAT may breach procedural fairness by making a finding of fact contrary to the evidence of a witness where that finding was not put to them.[21]

60 The Senior Member erred by failing to accord Vernon natural justice in the conduct of the VCAT hearing in three ways. First, by finding that Vernon intentionally made her home in Portugal from 2017 by relying on evidence that she hired a storage unit in Victoria for her personal belongings. Second, by having regard to The Estate of Legler, which was not tendered by any party and in circumstances where Vernon was deprived of the opportunity of making submissions on its contents. Third, by failing to accept Vernon's evidence that she and Legler were looking for property in Victoria, which was not challenged by any party.

61 Regarding the storage unit, Vernon was not afforded an opportunity to address the issue in evidence and it was not put to her in cross-examination that her maintaining a storage unit in Victoria implied an intention to live in Portugal. It was procedurally unfair for VCAT to find, 'objectively gauged' this intention based on the evidence of the storage unit in Victoria.

62 The parties were provided an opportunity to identify the material that should be relied on, prior to and during the VCAT proceeding. The Estate of Legler was not included in the Tribunal Book or Amended Tribunal Book and Vernon expressly stated in the VCAT proceeding that it was not in evidence despite the Registrar seeking to rely on it. It was procedurally unfair for the Senior Member to rely on it in deciding that Vernon and Legler made their home in Portugal as it was not in evidence or put to Vernon in cross-examination.

63 The failure to accept Vernon's evidence that she and Legler were looking for property to purchase in Victoria was procedurally unfair in circumstances where, had she been questioned about the issue, she could have responded by providing objective details of the searches for a property. The Senior Member's finding, which was directly contrary to Vernon's evidence, must have depended on an implicit adverse assessment of her credibility as a witness. That is a matter which should, in fairness, have been put to Vernon so she could have the chance to explain why her evidence should be believed.

64 The key issue in the proceeding was whether Vernon was living in Victoria at the relevant time. Submissions were made about the relevance of Vernon's storage unit to that issue. It was open for the Senior Member to find that Vernon's evidence about the storage unit did not bolster her case that she was living in Victoria. In any event, the Senior Member was not obliged to give a running commentary on, or a preliminary evaluation of, Vernon's evidence,[22] or to tell her how the evidence she gave might be used in a way adverse to her.

65 It was obvious that the Senior Member might conclude on the available material, including The Estate of Legler, that Legler was not living in Victoria at the relevant time. Further, any breach of procedural fairness was not material in the sense that the error did not deprive Vernon of a realistic possibility of a different outcome.

66 The Senior Member's treatment of Vernon's evidence about looking for a property to purchase was entirely orthodox. The Senior Member was not required to accept Vernon's evidence uncritically, particularly when it was not supported by other objective evidence and was contradicted by evidence that the Senior Member found to be more persuasive.[23]

67 The Registrar and Nadja's submissions to VCAT, to which no objection was taken, put the relevance of Vernon's storage unit to her living arrangements squarely in issue. It was not incumbent on the Senior Member to raise as a matter of procedural fairness a proposed line of reasoning that relied on material before VCAT.[24]

68 There was nothing impermissible in referring to The Estate of Legler as part of the general background and context to this litigation. It was never any part of Vernon's case that Legler lived in Victoria at the relevant time. Accordingly, any error in relying on The Estate of Legler was not material.

69 It was fair for the Senior Member to note that no documentary evidence had been provided in support of Vernon's contention about looking for a property to purchase in Victoria in assessing the weight to be given to Vernon's evidence on this point. It was unnecessary for the Senior Member to advert to the possibility that an adverse finding may be made regarding Vernon's own evidence in circumstances where her credit was squarely put in issue by the Registrar and Nadja.

70 Natural justice requires that a party have a reasonable opportunity to present their case. A decision-maker should ensure that the critical issues and any adverse conclusions that may not be obvious are identified.[25] However, a decision-maker is not obliged to point out deficiencies in a party's case,[26] or to make a party aware of their thought processes or provisional views.[27] A decision-maker is not obliged to accept evidence given by a party that is not directly challenged in cross-examination. It may be rejected on the basis that it is contrary to facts otherwise established. The evidence may effectively be challenged given the way in which the hearing was conducted, or by an attack on the reliability of that party's evidence. Rebutting evidence may not be necessary in order to reject what amounts to little more than an assertion.[28]

71 Legal error will only be established if it is shown that a breach of procedural fairness was material.[29]

72 A central issue in the VCAT proceeding was whether Vernon lived in Victoria at the relevant time. There was a substantial body of evidence before the Senior Member going to that issue.

73 Vernon relied on her evidence that she maintained a storage unit in support of her case that she lived in Victoria.

74 The Registrar and Nadja made separate submissions to the Senior Member that the evidence showed Vernon had a strong and real connection to Portugal and Spain, and a lesser and insufficient connection to Victoria. They submitted that the storage unit evidence supported their case that at the relevant time, Vernon did not live in Victoria. Accordingly, Vernon was on notice of the respondents' submission that maintaining a storage unit in Victoria did not support her case that she lived in the State and was consistent with her living in Portugal and/or Spain.

75 Further, Vernon's credibility was directly challenged by the respondents.

76 The Senior Member was not obliged to accept Vernon's submission about the relevance of the storage unit evidence, or to expose thinking processes or provisional views about how that element of the evidence fitted with all the material that was available in relation to the central issue. In the circumstances, there was no lack of procedural fairness associated with the finding of the Senior Member that taking personal items essential for day-to-day living to Portugal while storing non-essential items in Victoria was consistent with Vernon's intention to make Portugal her home from 2017.

77 In an affidavit made in this proceeding Vernon said that had she been asked about the storage unit in the VCAT proceeding she would have explained that she rented it because she needed a safe place to store her belongings and client files. Had that evidence been given at the VCAT hearing, it would have made no difference to the reasoning of the Senior Member. If my primary conclusion is wrong, then I would determine that the failure to question Vernon about the storage unit was not material to the outcome of the VCAT proceeding.

78 It was Vernon who originally put The Estate of Legler before VCAT. In final submissions, the Registrar sought to rely on adverse findings made by Pike J as to Vernon's credit. Vernon submitted to the Senior Member that the decision should not be relied on because it was not in evidence and the adverse findings had not been put to her in cross examination.

79 The Senior Member said in the reasons:[30]

The Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit. However, apart from the finding as to Mr Legler living in Portugal at the Relevant Time (which is consistent with the Registration Application), I do not consider that the findings in that case are particularly relevant to the current proceeding. This is particularly so given it is evident that the statutory questions and the evidence before Pike J differ considerably from the question and evidence before this Tribunal.

It is evident from the above paragraph, and from the summary of findings set out in paragraph [22] above, that the Senior Member only relied on The Estate of Legler to confirm what Legler said in the registration application, that he was not living in Victoria at the time.

80 The respondent's case at VCAT was that from 2017 to the date of his death in 2022, Legler lived in Portugal at La Punta. Vernon had the opportunity to respond to that case. It was not part of Vernon's case at VCAT that Legler lived in Victoria at the relevant time.

81 The Senior Member's finding about where Legler lived was open on the evidence before VCAT and was not contested by Vernon. As is plain from paragraph [112] of the reasons, the Senior Member's conclusion that Legler's home was in Portugal was based on evidence in the Tribunal Book.

82 The Senior Member's very limited reliance on The Estate of Legler decision was not material in the sense that it did not deprive Vernon of a realistic possibility of a different outcome.

83 It was a matter for Vernon to determine what evidence she sought to rely on in the VCAT proceeding to establish that at the relevant time she lived in Victoria. In relation to a number of matters, Vernon relied not just on what she said but also on documents that she produced to support her case.

84 Vernon did not put before VCAT any documentary or other evidence to support, in an objective way, her assertion that in the relevant period she and Legler were looking for a property to purchase in Victoria.

85 The Registrar and Nadja put Vernon's credibility squarely in issue in the VCAT proceeding. It is evident from paragraphs [44] and [45] of the Senior Member's reasons, set out in paragraph [26] above, that the Registrar and Nadja's attack on Vernon was successful. That adverse finding is not in issue in this appeal.

86 By attacking Vernon's credibility and relying on evidence supporting their case that Legler and Vernon had chosen to live in Portugal, the Registrar and Nadja effectively sought to contradict Vernon's evidence that she and Legler were intending to purchase property in Victoria.

87 In the circumstances, the Senior Member was not obliged to accept Vernon's evidence about looking for a property in Victoria, or to give Vernon notice before rejecting that evidence. The Senior Member adopted the orthodox approach of weighing the evidence and considering whether it was sufficient to establish the facts in issue to their satisfaction. That approach did not involve a failure to accord Vernon procedural fairness.

89 The Senior Member's finding that Vernon 'was never going to be able to return to Victoria "indefinitely"' was illogical because:

(a) it relied on an assumption for which there was no basis that if Legler wanted to live in Portugal and Vernon wanted to live in Victoria it necessarily followed that it would be Vernon, not Legler, who would have to compromise;

(b) it relied on an assumption that it was more likely Vernon would compromise her work arrangements when the opposite assumption was more likely; and

(c) it relied on an assumption that Legler and Vernon would not engage in a long distance relationship when they had in fact done so for considerable past periods.

There was no evident or intelligible justification for the Senior Member to treat the relationship between Vernon and Legler as a basis to conclude that Vernon could not have lived in Victoria at the time the relationship was registered.

90 The Senior Member's finding that Vernon had claimed in the Portuguese proceedings to be residing in Portugal was illogical for the following reasons:

(a) Vernon gave unchallenged evidence that she was not asked by her Portuguese lawyers where she lived, that she had given those lawyers full authority to act for her, and that she did not read Portuguese. In those circumstances, a claim made about where Vernon resided contained in court documents prepared by the Portuguese lawyers could have no probative value in assessing whether Vernon did in fact live in Portugal.

(b) The more likely inference was that the Portuguese lawyers simply inferred from Vernon's instructions that she and Leger were in a relationship from 2017 and that Vernon had resided with Legler for the whole of that relationship.

91 Having regard to the evidence about the nature of the relationship between Vernon and Legler, it was open to the Senior Member to conclude that if she wished to maintain the relationship, Vernon was not going to be able to return to Victoria indefinitely.

92 It can be inferred that the Senior Member did not accept Vernon's explanation that statements made in documents filed in the Portuguese proceedings had diminished probative value. The Senior Member was entitled to rely on the Portuguese court documents as more persuasive evidence for the purposes of fact finding.[31]

93 The Senior Member did not accept in unqualified terms Vernon's evidence that she had always intended to make her home indefinitely in Victoria. The path of reasoning to that conclusion was clear, intelligible and reasonable.

94 It was plainly open to VCAT to place reliance on the content of court documents filed on behalf of Vernon in the Portuguese proceedings. What was alleged in those documents was corroborated by other evidence, not least of which was the substantial evidence that Legler lived at La Punta and Vernon's case that they were in a relationship. It was open to the Senior Member not to accept Vernon's explanation about the contents of the Portuguese court documents.[32]

95 A fair reading of the Senior Member's reasons shows that the Senior Member considered but rejected Vernon's explanation for the content of the Portuguese court documents. Even if this were not the case, each piece of evidence before VCAT was not a mandatory relevant consideration, and the Senior Member was not required to give a sub-set of reasons for why Vernon's explanation about the documents was rejected.[33]

96 For there to be jurisdictional error on the basis of unreasonableness, the impugned finding must be 'one at which no rational or logical decision-maker could arrive on the same evidence'.[34]

97 In paragraph [39] of the reasons, set out in paragraph [25] above, the Senior Member recorded Vernon's evidence that she 'always intended to make [her] home indefinitely in Victoria'. The impugned finding in paragraph [113] of the reasons was a rejection of that evidence, focusing on the word 'indefinitely'. That rejection is to be understood in the context of findings by the Senior Member that Legler and Vernon had decided in 2017 to make La Punta their home; the pattern of the relationship was for Legler and Vernon to spend considerable time living or travelling together; and Legler's home was in Portugal and his work required extensive travel, particularly in Europe. In the context of those findings, it was open to the Senior Member to reason that maintaining her relationship with Legler meant Vernon was not going to be able to live indefinitely in Victoria.

98 The Senior Member's findings about this issue did not involve baseless assumptions about how Legler and Vernon would resolve issues to do with their place of residence and the impact this would have on where and how they would each conduct their work. The Senior Member was entitled to rely on findings about the pattern of Vernon and Legler's lives since they commenced their relationship in 2017 as the basis for the inference about what would occur if the relationship continued. The basis for the conclusion that so long as the relationship continued, Vernon would not be able to return to Victoria indefinitely is sufficiently set out in the reasons. The conclusion was open on the evidence.

99 Vernon's evidence about where she lived was expressly contradicted by a document filed on her behalf by lawyers that she engaged in the Portuguese proceedings.

100 The Portuguese court document contains a detailed history of relevant parts of Vernon's life and relationship with Legler. The document is signed by Vernon. It is a statement made on Vernon's behalf in a proceeding aimed at establishing her rights in respect of La Punta. The document had probative value in the VCAT proceeding.

101 The Senior Member was entitled to rely on the Portuguese court document as evidence of where Vernon lived at the relevant time. Given the adverse finding as to Vernon's credibility, the Senior Member was entitled to prefer the evidence in the Portuguese court document to Vernon's uncorroborated assertion that she was not responsible for or aware of the document's content. A fair reading of the reasons leads to the inference that the Senior Member took this logical path of reasoning.

102 It was not mandatory for the Senior Member to expressly consider in the reasons everything that was said by Vernon in evidence before VCAT, or to say why that evidence was rejected. The basis for the Senior Member rejecting Vernon's evidence about where she lived was sufficiently expressed in the reasons.

104 Vernon's application to review the cancellation decision could not succeed unless she satisfied s 6(a) of the Relationships Act. Accordingly, my conclusions on grounds 1-6 are sufficient to dispose of the application and appeal. However, I will proceed to consider the remaining grounds and the parties' submissions.

Ground 7: Did the Senior Member fail to have regard to the presumption of regularity?

105 The Senior Member found that the Registrar accepted the application made by Vernon and registered the relationship between her and Legler. The Relationships Act requires that an application be accompanied by a statutory declaration from each of the applicants.[35] Colin Hunter, operations manager at the Registrar's office, gave evidence that Registry staff would register a relationship if the application satisfied the statutory criteria. Vernon's uncontradicted evidence was that she was told by Registry staff that everything to do with the registration application was 'complete'. Given the presumption of regularity and the above evidence, the Senior Member erred by finding that Legler did not submit the required statutory declaration.

106 The Senior Member in fact applied the opposite presumption, presuming that, if a statutory declaration had been provided, the Registry would have a copy of it and would have filed it in the VCAT proceeding.

107 The Registry documents show that three staff members dealt with Vernon's application to register the relationship. None of those staff members were called to say whether a statutory declaration was provided by Legler, and no explanation was given for their absence. The Senior Member should have inferred that their evidence would not have assisted the Registrar.

108 The Senior Member's reasoning, that because Vernon had not asked the Registrar for a copy of the statutory declaration it should be inferred that Legler did not provide one, is irrational.

109 A ground for the Registrar cancelling the relationship was that Legler had not made the required statutory declaration. Vernon was therefore put on notice of an issue she needed to confront in the review of the cancellation decision. However, Vernon provided no positive evidence to VCAT that the required statutory declaration was provided by Legler in support of the application.

110 A proper reading of the reasons shows that the Senior Member considered the presumption to have been rebutted. That finding was open in circumstances where:

(a) Hunter's evidence did not include any history or prospect of documents being lost by the Registry;

(b) Vernon's evidence was that she did not know whether Legler had provided a statutory declaration; and

(c) the Registrar did not lodge any statutory declarations with VCAT in circumstances where it was required by s 49(1)(b) of the VCAT Act to lodge with VCAT the documents relevant to the cancellation decision.

111 There was no error by the Senior Member in not drawing a Jones v Dunkel inference as a result of a Registrar's failure to call any staff members who dealt with the application. There was no evidence those persons still worked with the Registrar. Further, whether the deceased provided a statutory declaration was nothing more than conjecture. The absence of evidence on that point could not be papered over by a Jones v Dunkel inference.

112 The evidentiary weight borne by the presumption of regularity will vary according to the proved circumstances.[36]

113 The Senior Member accurately summarised the parties' competing submissions as to the presumption of regularity and what was established by the evidence. It is reasonable to infer that the Senior Member considered the presumption of regularity in the context of the evidence that was relevant to whether a declaration was provided by Legler.

(a) because he was in Portugal at the time the registration application was made, Legler could only have provided the statutory declaration to the Registrar electronically;

(b) there was nothing in the voluminous material filed in the VCAT proceeding by the Registrar in accordance with the obligations in s 49 of the VCAT Act to suggest that the required statutory declaration was provided by Legler;

(c) there is no reason to suppose the s 49 material is incomplete; and

(d) in those circumstances, it was appropriate to conclude Legler did not provide a statutory declaration as required by s 7 of the Relationships Act.

115 It was a matter for the Senior Member to weigh the evidence before VCAT in order to determine what facts were established. The only evidence supporting a finding that the declaration had been provided by Legler was an inference based on what ordinarily happens in the course of assessment of a registration application by the Registry. The Senior Member was entitled to conclude that inference bore little weight in circumstances where there was no positive evidence that the declaration has been provided, no reason to suspect that the voluminous material provided by the Registrar was not comprehensive and there was nothing in that material to suggest the declaration had been provided.

116 I accept Nadja's submission that the Senior Member was not obliged to draw a Jones v Dunkel inference. In any event, such an inference could not be used to fill a gap in the evidence as to the provision of a statutory declaration by Legler.

118 I note that the Registrar is the statutory authority with responsibility for maintaining the relationships register. A basis for the cancellation decision was the Registrar's conclusion based on the most reliable information available, that Legler did not provide a statutory declaration. In other words the Registrar concluded, in performance of the statutory function, that registration of the relationship was not done regularly. That evidence significantly undermines the presumption of regularity on which Vernon relied.

Ground 8: Did VCAT give adequate reasons for concluding that Vernon failed to submit a statutory declaration?

119 I accept the Registrar and Nadja's submissions that the summary of findings in the opening of the reasons recorded the reference to Vernon having not produced a statutory declaration in error. It was clear from the reasons that the Senior Member found it 'unnecessary' to determine if Vernon had produced a statutory declaration.

120 Vernon's provision of a statutory declaration, or lack thereof, bears no weight on the VCAT decision. It formed no aspect of the Senior Member's reasoning.

121 Vernon concedes that a finding in relation to ground 8 is immaterial unless she succeeds on other grounds. I accept the submissions of the Registrar and Nadja that the success of this ground of appeal is immaterial. Leave is refused on ground 8.

Ground 9: Did VCAT err in failing to consider whether it was necessary to amend the Register?

122 Vernon concedes she can only succeed on ground 9 if she first succeeds on one or more of ground 1-6. She said that if she failed on the 'lives in the State' issue, she did not press ground 9. In the circumstances, I will say very little about this ground.

123 The Registrar relied on the power in s 19(1)(b) of the Relationships Act to make the cancellation decision. The Senior Member concluded that the broad discretionary power conferred by the provision was not limited to cases going to the existence of a relationship and entitled the Registrar to cancel a registration because of non-compliance with the requirements in s 7 to provide a statutory declaration. The Senior Member determined it was appropriate to exercise the discretion in s 19(1)(b) and on that basis affirmed the cancellation decision.

124 Vernon submitted that ss 19(1)(a) and (b) of the Relationships Act must both have work to do, and that if s 19(1)(b) were to be interpreted broadly, as the Senior Member had done, then findings by the Registrar of an inquiry under s 18 would, self-evidently, be information available to the Registrar and s 19(1)(a) would be otiose. She submitted that the power in s 19(1)(b) to correct the relationships register was limited to the particulars recorded in the register and did not extend to consideration of whether statutory declarations were provided or required to support an application to register.

125 A purpose of the Relationships Act is to establish and maintain a relationships register.[37] Parliament's intention that the register be correct and accurate is clear from the Registrar's powers to require further information relevant to an application for registration,[38] to conduct an inquiry,[39] and to correct and amend the register.[40]

126 An inquiry may only be conducted under s 18(1) of the Relationships Act 'to verify information given for, or in connection with, an application' and as to whether particulars of a registered relationship have been correctly recorded. The power in s 19(1)(a) to correct the register is limited to the purposes for which an inquiry may be conducted under s 18(1).

127 The power in s 19(1)(b) of the Relationships Act is broader. It allows the Registrar (and VCAT on an application for review) to correct the register at any time to ensure that it conforms with the most reliable information available. The power is directed to assessment of the reliability of information available to the Registrar. It is not concerned with the application process or correction of administrative errors.

128 I did not hear full argument on the ground because the concession by Vernon made it unnecessary. My provisional view, for the above reasons, is that the Senior Member is correct in the interpretation and application of s 19(1)(b) of the Relationships Act.

129 Had it been necessary I would have refused leave on ground 9.

130 Vernon's case fails on grounds 1-6. If Vernon was successful on either or all of grounds 7, 8 and/or 9, it would be immaterial to the outcome of this appeal. Regardless, Vernon has not succeeded on these grounds.

131 Leave to appeal the VCAT decision is refused and the proceeding is dismissed.

132 I will hear from the parties as to the form of orders.

[1] Vernon v Registrar of Births, Deaths and Marriages (Review and Regulation) [2024] VCAT 1090 (Senior Member Tang AM).

[2] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) ('VCAT Act').

[4] Relationships Act 2008 (Vic) s 1(ca) ('Relationships Act').

[5] Ibid s 1(a).

[6] Ibid ss 35(1), 39(1).

[7] Ibid s 28(1).

[9] The Senior Member defines relevant time as February 2020, when Vernon submitted the registration application. This definition is adopted in these reasons.

[10] [2024] NSWSC 726 ('The Estate of Legler').

[14] Caldwell v Caldwell & Georgeson [1946] SAStRp 32; [1946] SASR 185 ('Caldwell').

[16] Dale O'Sullivan v City of Camberwell (1991/01913) [1991] VICCAT 72 ('O'Sullivan').

[19] Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4394 (Rob Hulls, Attorney-General).

[20] Victoria, Parliamentary Debates, Legislative Assembly, 7 October 2015, 4554 (Martin Pakula, Attorney-General).

[21] Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd & Ors [2020] VSC 345, 65-6 [216] (Garde J) ('Mount Atkinson').

[22] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 166 [48] ('SZBEL').

[23] Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26, 6 [17] ('Rafidi').

[24] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, 598 [9] ('SZGUR'); Commissioner for Australian Capital Territory v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 ('Alphaone').

[25] SZGUR (n 24); McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, 796 [140] (Campbell J) ('McClelland').

[27] SZGUR (n 24); SZBEL (n 22); Alphaone (n 24).

[28] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348; Rafidi (n 23); Mount Atkinson (n 21) 68 [222].

[29] Mount Atkinson (n 21) 68 [223].

[32] SZSQL v Minister for Immigration and Border Protection [2015] FCA 294, 15 [59].

[33] Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177, 47-8 [109] (Farrell and Halley JJ).

[34] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-8, [130] (Crennan and Bell JJ).

[36] Johnson v Director of Consumer Affairs Victoria [2011] 34 VAR 447, 19 [60] (Kyrou J).

[37] Relationships Act (n 4) ss 4, 17.