Carr v Carr

CLR 24 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 Newell v The King (1936) 55 CLR; [1936] HCA 50 R v Feist (1858) Dears & B 590 at 598; 169 ER 1132 Re Blagdon Cemetery [2002] Fam 299; [2002] 4 All ER 482 Re Talbot [1901] P 1 Re Taylor; ex parte National Australia Bank Ltd (1992) 37 FCR 194 Rudewicz, R (on the application of) v Secretary of State for Justice [2013] QB 410; [2012] EWCA Civ 499 Smith v Tamworth City Council (1997) 41 NSWLR 680 Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116 The Queen v Stewart (1840) 12 Ad & E 773; 113 ER 1007 Tolley v Morris [1979] 1 WLR 592 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44 Wylde v Attorney-General (NSW) (1948) 78 CLR 224; [1948] HCA 39 Texts Cited: G Dal Pont, Law of Succession (3rd ed, LexisNexis 2021) K Falconer, "Australian Burial Law 25 Years on from Smith v Tamworth City Council" (2022) 96 Australian Law Journal, forthcoming L Murray, "Cemeteries in nineteenth-century New South Wales: Landscapes of Memory and Identity" (Ph D thesis submitted to University of Sydney, August 2001) Legal Nexus, Case with Opinion, Obtained from Counsel in England and in the Commonwealth, 1912 M Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) Category: Principal judgment Parties: Johanna Carr (Plaintiff) Paul Carr (First Defendant) The Secretary of the New South Wales Ministry of Health (Second Defendant) Representation: Counsel: A D Crossland (Plaintiff) E Vuu (First Defendant) M Pulsford (Second Defendant)

Solicitors: Longton Legal Pty Ltd (Plaintiff) Crown Solicitor for NSW (Second Defendant) File Number(s): 2021/216471 Publication restriction: Nil

Judgment

1. LEEMING JA: This is an application for judicial review of the decision by a delegate of the Secretary of the NSW Ministry of Health to decline to grant approval to two applications made by the plaintiff to exhume the remains of the late Thomas John Carr and the late Thomas Edward James Carr, who were buried in the same grave in a cemetery at Dubbo in 1966 and 1981. The plaintiff is the widow and mother, who for many years has applied to have the remains exhumed and buried in a cemetery at Wellington, where she herself intends to be buried. Her application is opposed by the five surviving children of the marriage, who want the grave of their father and their brother to remain undisturbed. The delegate's essential reasoning was that approval should be withheld given the opposition from close family members. The proceedings were brought under s 69 of the Supreme Court Act 1970 (NSW), and were listed for hearing before me to hear and determine in the Common Law Division, exercising the powers of a Judge of this Court pursuant to s 31(3) of that Act.
2. As will be seen below, an important aspect of the plaintiff's claim is the distinction between the two applications to exhume remains from the same grave. Given that her deceased husband and child shared the same given name, I shall for clarity follow the approach taken in written and oral submissions and refer to the "Husband" and the "Son".
3. The ultimate issue underlying this litigation is of the utmost seriousness to all family members, who have been divided for many years. On the one hand, the plaintiff gave evidence of her Roman Catholic faith, of her husband's conversion and the baptism of her children, and the trying circumstances when both her husband and son met their untimely deaths, in both cases unexpectedly. On the other hand, the oldest surviving son Paul, who was joined to the litigation on his own motion late last year (Carr v The Secretary of the NSW Ministry of Health [2021] NSWSC 1467), gave evidence that he and his siblings lived in Dubbo, and tended the grave, and of the cultural significance of his father and brother being buried in the country of their ancestors. In response, the plaintiff gave evidence that she too had tended the grave, and that she was a Wradjuri Elder, and that if the remains were removed to Wellington they would still be located on Wradjuri country. There was also conflicting evidence of the way the plaintiff had brought up her children, the reasons for the rift in the family, the plaintiff's motivation for bringing her application, whether removal of remains was or was not contrary to traditional custom, and indeed whether, as a matter of traditional custom, the surviving children of the marriage had a right to be heard or whether it was the plaintiff's exclusive decision (for example, the plaintiff adduced evidence that an Elder had told her "the cultural position is that your children have nothing to do with it"). Most of this evidence had not been placed before the Secretary's delegate, and much was inadmissible at a final hearing. The inconsistencies (which are numerous) need not be summarised in any detail, let alone resolved, because the issue for determination is not what was the decision the Secretary's delegate should have made, based on all the evidence now available. Nor is it what was the decision the Secretary's delegate should have made based on the materials before her. The litigation in this Court is far removed from the merits of the case.

Factual and procedural background

1. In order to explain the operation of the legislative regime, the grounds of review and the issues arising for determination, it is necessary to say something about the family history. I do not regard anything in the section which follows, ultimately, to be controversial. A contention which had been prominent in the plaintiff's affidavits, including her affidavit in reply, about whether the Son was the oldest or the youngest of her three sons was withdrawn after the discrepancy with the rest of the evidence including the Husband's death certificate was raised during the hearing following a short adjournment for obtaining instructions (T20.27-30). There is a disputed issue concerning the location of the grave, which I shall address in due course separately.
2. I am also conscious of the fallibility of human memory over time, and the fact that the burials took place more than 55 and 40 years ago. In what follows I have for the most part relied on contemporaneous documents, rather than testimonial evidence.

The circumstances surrounding the death and burial of the Father

1. Their marriage certificate discloses that the plaintiff, Ms Johanna Daley Carr and her husband married on 25 April 1959 in St Patrick's (Roman Catholic) Church, Wellington. The plaintiff had been born in Wellington on 2 December 1940, and was baptised at the same church in 1944. Her husband had been born at Dubbo District Hospital on 13 January 1938 and his father had also been born in Dubbo, according to his birth certificate. Dubbo and Wellington are some 50km distant. Although the plaintiff stated that her husband had converted to Roman Catholicism, the marriage certificate described the marriage as "mixed", and had occurred through dispensation.
2. There were six children of the marriage: Johanne Gay, Elizabeth Margaret, Maryanne, Thomas Edward James (now deceased), Paul and George Stephen. There is nothing in the evidence to suggest that the marriage was anything other than happy. The plaintiff said that the family lived in different areas in central west New South Wales, including Dubbo, Wellington, Cobar and Nyngan, depending on where her husband, who was employed on the railways and by the Department of Main Roads, was working.
3. Tragically, Thomas John died following being treated for cancer of the eye on 29 August 1966 in Royal Prince Alfred Hospital Camperdown. The death certificate stated his usual residence to be Dubbo. The plaintiff was left as a widow aged 25 with six children aged between 3 months and 7 years. Although the document was not in evidence, it was accepted that shortly after her husband's death, the plaintiff at her mother in law's request authorised her husband's body to be buried in "Old Dubbo Cemetery". The plaintiff's affidavit refers to this as "the Church of England Cemetery in Dubbo (now the Old Dubbo Cemetery)" (affidavit 2 December 2021, para 12); I return to this below. It is accepted that the plaintiff's mother in law contributed to the cost of the grave site; there is a dispute in the evidence as to whether the plaintiff paid for part of it herself. Nothing turns on this.
4. The plaintiff and her family returned to live with her own family in Wellington for a few weeks, but she applied for housing in Dubbo and, when that became available, they moved to Dubbo where they lived for the next 24 years. In late 1967, the plaintiff commenced a relationship which resulted in three further children. That relationship ended in about 1975. The plaintiff never remarried.

The circumstances surrounding the death and burial of the Son

1. The death certificate of the fourth child and oldest son of the marriage, Thomas Edward James, states that he died of the effects of myocardial infarction due to coronary sclerosis on 23 March 1981, aged 17. He had been in Minda Remand Centre in Sydney for the previous fortnight. It is necessary to summarise some of the evidence bearing upon the Son's final months of life, because it founds the plaintiff's principal argument that her surviving children are not "nearest surviving relatives".
2. An extract of a report into the Son's death carried out by the Royal Commission into Aboriginal Deaths in Custody described a series of relatively minor offences as a young teenager for illegally using motor vehicles, escalating to breaking and entering into premises in Dubbo, theft, and, finally, possession and discharge in a public place of a shortened firearm, the latter leading to his detention in Minda. Prior to being detained in Minda he had been committed to five months in Yawarra Training School near Maitland, from which he was discharged in September 1979. He left school at the end of 1979 after completing Year 10, but was convicted of taking and using a motor vehicle in April 1980, and spent four months in Mt Penang Training School near Gosford. The extract of a report prepared for the Royal Commission tendered in evidence concludes with a broken off sentence which from its context may refer to investigations into any underlying heart condition ("As Thomas had been admitted to Minda twice previously there were two medical cards for him. These noted that investigations had been made in 1977 at Royal ...").
3. The report also includes a verbatim extract of the Children's Court notes for 9 March 1981, when bail was refused, as follows: "Certain admissions made - weapon used similar to pistol - on bail for BES - 12/1/81 and 9/2/81 - no result - bad record - committed whilst on bail - weapon can be concealed. Not residing with mother. Accused says he is living with mother - never failed to appear before. Fears of further offences being committed."
4. One inference which may be drawn from those notes is that the Crown was urging against a further grant of bail to a person accused of discharging a shortened firearm whilst on bail for break, enter and steal, and that a matter bearing upon that was that he was not living with his mother, and that the Son or his legal representative had said that he was living with his mother and had never previously failed to appear.

The plaintiff's applications for exhumation

1. There has been a long history of applications made by the plaintiff to exhume the remains of the Husband and Son over the last 15 years. The delay is not especially relevant to the outcome of this litigation, although it is important to the members of the Carr family. The position is as follows.
2. The plaintiff made applications under cl 37 of the Public Health Regulation 1991 (NSW) in 2007 and 2008. There is some evidence that those applications were refused by a parliamentary secretary, although if so, the document constituting those decisions was not in evidence. There is also some evidence that an injunction was obtained, or threatened to be obtained, by the siblings preventing the exhumations, although there is also evidence that no formal order of the court was ever served. The only relevance of this is that the surviving children's objections to the exhumation applications are long-standing.
3. More recently, the plaintiff made applications in 2016 and 2018 pursuant to cl 70(2) of the Public Health Regulation 2012 for approval to exhume the remains, with the intention that they be re-interred in a burial plot in the Roman Catholic Cemetery at Wellington, where she herself intends to be buried. These were the applications which give rise to this litigation.
4. A statutory declaration accompanying the 2016 application stated: "it is my intention to have my husband and son's coffins transferred from the Old Dubbo Cemetery to the Wellington Lawn Catholic Cemetery". The plaintiff has acquired a burial licence in respect of what is described in her affidavit as "Plot no 15, in row H3 at Wellington Lawn Catholic Cemetery". A copy of the licence is annexed. Nothing turns on it, but I understand this to be a reference to the Roman Catholic section in Wellington Lawn Cemetery which is managed by the local council.

The opposition to exhumation by the surviving children of the marriage

1. Just as there is a very long history of applications by the plaintiff, so too there is a very long history of objection by the surviving five children of the marriage, or at least some of them. The plaintiff's 2016 statutory declaration stated: "On 17 March 2008 I received a letter from my daughters Joanne Gaye Carr, Elizabeth Margaret, Maryanne Carr, and Geraldine Marie Carr, who advised me of an injunction."
2. A letter from the Greater Western Area Health Service dated 14 October 2008 advised Wellington Funeral Home that: "This office has received legal notification from Nelson Keane & Hemingway stating that a member of the Carr family objects to the exhumation. Therefore this office cannot approve the exhumation until an agreement is made. Please advise this office if an agreement is reached, and we will process the paperwork ASAP."
3. The more recent applications by the plaintiff were accompanied by her statutory declaration made on 5 July 2018. She attached to that declaration the letter of 17 March 2008 recording some of her children's objections. She said: "I am 77 years old. I am the next of kin of both my late husband and late son. I wish my deceased husband and deceased son to be buried with me at Wellington Lawn Catholic Cemetery, as I wish to be buried with my late husband and son in the same cemetery."
4. The plaintiff said she was unaware of any injunction and that, following enquiries she believed no such injunction had been sought or made. She identified various enquiries she had made and stated that "my daughters and or son no longer dispute my decision and have not provided any formal objection in writing in 2018 or 2017 [sic]". It would appear that statutory declarations by two children accompanied the letter, both of which stated that they withdrew their objection to the exhumation.
5. The annexures included a page listing nine names, including the five surviving children of the marriage, with signatures against the names Johanne Gay, Elizabeth, Maryanne, and Geraldine. The page was otherwise blank.
6. The materials also included a statutory declaration made by the plaintiff's former solicitor, which included the following: "Mrs Carr has advised me until date she has no direct problems with her youngest son to the marriage Stephen Carr, however her other four surviving children to the marriage, Johanne, Elizabeth, Maryann and Paul Carr previously objected to her intentions to exhume the remains of their father and their brother and allegedly sought a Court ordered injunction on about 17 March 2008".

The response by the Western NSW Local Health District between 2019 and 2021

1. Those materials were sent to the Western NSW Local Health District on 10 August 2019. On 15 August 2019, an officer in the department sought clarification concerning the page with the signatures for Johanne, Elizabeth, Maryanne and Geraldine, with the other rows left in blank. There was apparently no response, leading to a follow up email on 22 August 2019. The solicitor explained on 24 August 2019: "this document was in the context of who was not against Mrs Carr's proposal to previously apply to exhume her late son and late husband's human remains".
2. By email dated 5 September 2019, the relevant officer replied "at this point we cannot approve the application by Ms Carr unless we have statements from all the children (who originally objected) that state they [withdraw] their objection to the exhumations".
3. The next piece of correspondence appears to be an email from the former solicitor dated 6 February 2020 stating that the plaintiff was of the view that her five surviving children of her marriage "would no longer object to this exhumation as they have lost interest in challenging their mother for this application". The solicitor asked whether it would be sufficient to write letters to the children and "if they failed to respond, then it would imply no objection to the exhumation application".
4. On 14 February 2020, the officer said he had followed up with the NSW legal branch and his manager and suggested letters be sent by registered post and that those letters and proof of their being sent be provided as part of the application process.
5. The evidence does not disclose whether that occurred. However, by letter dated 2 February 2021, new solicitors acting for all five surviving children of the marriage wrote to the Western NSW Local Health District advising that they disputed and did not consent to any application relating to the exhumation of the remains of their late father and brother.
6. On 26 May 2021, the plaintiff's current solicitor wrote, relevantly, as follows: "As we understand it, the explanation for the Department not having yet determined the applications, is that there are objections to the exhumations. In our view, that is not a reason to delay determination of the applications - and certainly not a reason to delay their determination any longer. Please proceed to determine the applications immediately In asking for you to take that step, we make the following points: 1. None of the objections to the exhumation of the Son are made by or on behalf of any person who falls within the definition of his 'nearest surviving relative' as per Reg 49 of the PH Regs. 2. The objections have no bearing on the application for exhumation of the Son. 3. The applications must be dealt with separately. 4. It is relevant to the determination of the application for exhumation of the remains of the Husband that those remains are located in the same grave as those of the Son. This is relevant for two reasons: (a) if the application in relation to the son were successful, the grave would be opened in any event; (b) it is appropriate that the remains of the Father be located in the new place (if the application in relation to the Son is successful) as the Son. We look forward to the Department's determination of our client's applications within 14 days. Our client is elderly. The applications should not be delayed further."

Proceedings in this Court

1. Proceedings were commenced shortly thereafter. Reasons were provided in accordance with r 59.9(2) of the Uniform Civil Procedure Rules 2005 (NSW). The reasons identified the correspondence summarised above, the material attached to the letter dated 4 January 2017 and that contained as the "full and final complete, relevant documents required for an application for exhumation" supplied on 10 August 2019. It also referred to the subsequent correspondence with the plaintiff's solicitor and with the solicitors retained by the five children. The statement of reasons annexed NSW Health Policy Directive PD2013_046 and stated that the delegate had had regard to it as well as to all the circumstances in the case. Under the heading "Reasons for Decision", the delegate stated: "In making the decision I took into account the strong and longstanding wishes of the applicant, as the nearest surviving relative of each deceased, described as her dying wish, that she be buried with her husband and son in Wellington Cemetery in the lot for which she has paid. However, against that matter, I have weighed the following competing matter of the opposition to the matter of exhumation expressed by the five siblings as at 2 February 2021 (see above at paragraph 16). Having regard to those matters, I decided not to grant permission in each of the applications for the exhumations of the applicant's late husband and son."
2. As previously noted, the oldest surviving son Paul was joined as the first defendant to the proceedings, and the Secretary became the second defendant.
3. Ultimately, the second further amended summons, leave for which was obtained without opposition at the hearing on 4 February 2022, advanced nine grounds of review. There was a deal of overlap in those grounds, and some were less than felicitously expressed. The central contentions advanced by the plaintiff were that the decision was unreasonable or irrational and had been made without according procedural fairness.
4. The unreasonableness ground focussed upon what was said to be the public health purpose of the legislation. There being no suggestion of any risk to public health standing in the way of the plaintiff's application, it was according to the plaintiff unreasonable or irrational for it not to have been granted. It was put thus in oral submissions: "The Act's purpose, we say, is narrowly drawn in the way I indicated previously. It is public health and we say the public health purpose is fulfilled by ensuring that as long as the public health purpose is met and the application is otherwise made in a regular way, then there is no reason why the application should not succeed, including all the matters I've raised before about the narrowness of the application."

The location of the grave

1. There is a discrepancy in the two death certificates. That of the father states that his body was buried in the "Church of England Cemetery, Dubbo", and identifies the minister as "W H McAlister, Church of England". That of the son states that he was buried at the "Old Catholic Cemetery, Dubbo", and does not record who officiated at the ceremony. It was however common ground that both bodies were buried in the same grave, and I so find.
2. Considerable importance was ascribed to the location of the grave in the plaintiff's affidavits, where prominence was given to her Roman Catholicism (there was also some evidence of canon law). In particular, the plaintiff gave the following evidence: "As a young widow, suddenly with the sole care of six young children, I did not give my husband's burial any thought at the time. I did not know any better and signed the documents Mama Carr told me I had to sign. My husband was then buried on 2 September 1966 in the Church of England Cemetery in Dubbo (now the Old Dubbo Cemetery). If I had not been in shock and overcome with sadness I would have disagreed with Mama Carr's burial arrangements at the Church of England Cemetery and I would have made arrangements for my husband to be buried in the Catholic section of the cemetery at Wellington."
3. On 11 February 2022, my Associate sent a letter to the parties' representatives including the following: "Judgment in this proceeding is presently reserved. I have been asked to draw to your attention the following. The plaintiff's evidence is that her husband and son were buried "in the Church of England Cemetery in Dubbo (now the Old Dubbo Cemetery)" (1st affidavit para 12; see also paras 13, 27 and 33). However, the statutory declaration made by Ms Shah on 5 August 2019 refers to "row 4 B general section" of Old Dubbo Cemetery (para 14). Likewise, the application dated 5 July 2018 and signed by the plaintiff refers to "R 4 (B) Row 4" in the "General Section" of Old Dubbo Cemetery. His Honour also notes that the description in Ms Shah's statutory declaration and in the application dated 5 July 2018 is consistent with the cemetery plan available from the Council website, a copy of which is attached. His Honour advises that he is minded to find that the grave is located in the general section of the cemetery now known as Old Dubbo Cemetery, and not in the Church of England section of that cemetery. If any party wishes to make any submission contrary to that proposed finding, they are invited to so in writing to me, copied to the other parties, by 4pm next Friday 18 February 2022. To be clear, there is no obligation on any party to make any submission."

Why this might matter

1. Although it is plain that "Old Dubbo Cemetery" is maintained today by the local council, I have considered what the reference to "the Church of England Cemetery in Dubbo (now the Old Dubbo Cemetery)" might connote. There is only one way in which, so far as I can see, this might be potentially relevant. That is whether the remains were buried on consecrated ground.
2. In the United Kingdom, to this day, whether the remains of a body are on consecrated or unconsecrated ground is the starting point for analysis in a case such as this, notwithstanding the unfamiliarity of the concept. The Arches Court of Canterbury stated at the commencement of its analysis in Re Blagdon Cemetery [2002] Fam 299; [2002] 4 All ER 482 at [10] that "[t]he difference between consecrated and unconsecrated land is not widely known or understood". The Court thereafter explained at [11]-[17] the nature of the dedication of land for a religious purpose involved in consecration, the difference in terms of jurisdiction (for the consistory court generally only has jurisdiction in respect of burials in consecrated ground) and in the test to be applied (traditionally, an application for a faculty authorising remains buried in consecrated ground to be reinterred in unconsecrated ground would be refused, for the reasons given by Dr Tristram QC Ch in Re Talbot [1901] P 1 at 5, namely, because this would be "sanctioning the removal of remains from a place of burial under the special protection of the Ecclesiastical Courts to a place of interment under the protection of no Court").
3. The history of church involvement in burials in this country is quite different from the position in the United Kingdom. For one thing, there are very few churches with attached burial grounds, for it was ordered at a very early stage, by local statute of 1825 (6 Geo IV c 21 s 10) that after 1 January 1826, "no Burial shall take place within the walls of any Church or Chapel of any denomination whatsoever nor within the limits of any town otherwise than in any Burial Ground which may be set apart for such purposes and which Burial Ground must be distant one mile at the least from any town or township". For another, s 5 of the same statute recognised that an Archdeacon's court had been established (to the Registrar of which records of baptisms, marriages and burials had to be sent annually). In fact it had been created by an Order in Council dated 2 October 1824, subordinate to the Bishop of Calcutta, with the Archdeacon holding an ex officio seat in the Legislative Council: see p 6 of the volume Legal Nexus which was admitted as evidence (over the objection of Kitto KC) in Wylde v Attorney-General (NSW) (1948) 78 CLR 224; [1948] HCA 39. The same volume describes how the Archdeacon (William Broughton) became Bishop of Australia when New South Wales and Van Dieman's Land were severed from the Diocese of Calcutta and the Bishopric of Australia was created (by Letters Patent dated 13 June 1834 and 18 January 1836). Thus a local statute of 1839 (3 Vic No 23, s 2) recited "whereas the Archdeacon's Court has been discontinued since the establishment of the Bishopric of Australia". The early history is described by Dixon J in Wylde at 284-285, who then stated at 285 and 286 that while "an ecclesiastical jurisdiction did exist in New South Wales", eventually "[t]he Ecclesiastical Court was disused and forgotten". One explanation of how a jurisdiction may come to be obsolete was given by Goddard LJ in Blunt v Park Lane Hotel Ld [1942] 2 KB 253 at 257-259. While a court does not cease to exist merely because of decades or centuries of disuse (see Manchester Corporation v Manchester Palace of Varieties [1955] P 133 at 149) it seems that subsequent colonial statutes dealing with the Church of England and its property are to be regarded as inconsistent with the continued existence of that court. Even so, as Young J observed in Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 at 277, there is unresolved question as to whether, and if so, the means by which and the extent to which, ecclesiastical law was applicable in colonial New South Wales. But I do not need to address that question, in light of the evidence bearing upon the location of the grave.

Applicable legislative regime

1. The Public Health Regulation 2012 (NSW) is made pursuant to a power conferred by s 134 of the Public Health Act 2010 (NSW). The objects of the statute are contained in s 3. They address public health. They are "(a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health, [and] (f) to monitor diseases and conditions affecting public health." Consistently with this s 3(2) provides that "[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act". The plaintiff prayed in aid this elaborate recitation of public health purposes, none of which was engaged in the exhumation applications, in support of her submission that wider considerations such as the opposition of her children were irrelevant.
2. Part 8 of the regulations is titled "Disposal of bodies". Clause 49 contains the following definition of "nearest surviving relative": nearest surviving relative means - (a) in relation to a still-born child - a parent, or sibling at or above the age of 16 years, of the child, and (b) in relation to a dead person who is not a still-born child - the spouse or de facto partner of the dead person immediately before death, a parent of the dead person, a child at or above the age of 16 years of the dead person or any relative of the dead person who was residing with the dead person when he or she died. Division 4 within Part 8 is titled "Exhumations". It provides, in its entirety: 69 Exhumation without approval prohibited (1) A person must not exhume the remains of a body unless the exhumation of those remains has been - (a) ordered by a coroner, or (b) approved by the Secretary. Maximum penalty - 20 penalty units. (2) However, a funeral director may, without a coroner's order or Secretary's approval, transfer a coffin from a vault in a cemetery to a mortuary for the purpose of the coffin being immediately repaired and returned to the vault. (3) A funeral director must return the coffin to the cemetery within 24 hours of its transfer. Maximum penalty - 10 penalty units. 70 Application to exhume remains (1) An application for approval to exhume the remains of the body of a dead person may be made to the Secretary by - (a) an executor of the estate of the dead person, or (b) the nearest surviving relative of the dead person, or (c) if there is no such executor or relative available to make the application - a person who, in the opinion of the Secretary, is a proper person in all the circumstances to make the application. (2) An application is to be made in the approved form and is to be accompanied by - (a) a certified copy of the death certificate relating to the dead person, and (b) a statutory declaration as to the relationship of the applicant to the dead person and the dead person's wishes, if any, regarding the disposal of his or her body (so far as any such wishes are known to the applicant), and (c) an application fee of $369. (2A) Despite subclause (2), the Secretary may dispense with the requirement for an application to be accompanied by a death certificate if - (a) the Secretary is satisfied that it is not reasonably practicable to get the death certificate in the circumstances, and (b) the Secretary consults the State Coroner about the application. (3) In this clause, death certificate means a certificate given by a medical practitioner as to the cause of death or issued under the Births, Deaths and Marriages Registration Act 1995. 71 Approval to exhume remains (1) The Secretary may - (a) grant an approval to exhume the remains of a body, subject to any conditions specified in the approval, or (b) refuse the application. (1A) In granting an approval to exhume the remains of a body under this clause, the Secretary is to impose conditions the Secretary considers necessary to ensure the remains of the body are treated with dignity and respect in the course of carrying out the exhumation. (2) An approval granted under this clause remains valid for 3 months from the date of the approval or for a period agreed to by the Secretary. 72 Exhumation not to take place without authorised officer present (1) A person must not proceed with an exhumation unless an authorised officer or a member of staff of the Ministry of Health is present at the exhumation. (2) A person must not proceed with an exhumation if the authorised officer or Ministry staff member who is present at the exhumation orders the exhumation to stop. Maximum penalty - 15 penalty units.

Was Paul a "nearest surviving relative" and does it matter?

1. The crux of the plaintiff's submissions in this Court reflected the contentions in the letter of 26 May 2021. It has never been in dispute that the plaintiff was a "nearest surviving relative" both as the spouse of her deceased husband and as a parent of her deceased son. It has also never been in dispute that the five siblings are "nearest surviving relatives" in relation to the application to exhume the remains of their deceased father. However, only if one or more of the siblings were residing with their brother when he died would they fall within the description of "nearest surviving relative" in respect of the application to exhume his remains. This gives rise to issues of fact and of law.
2. I did not understand anyone to suggest that the Son should be regarded as residing at Minda, where he spent his final days. According to the report tendered by the plaintiff, he was admitted to Minda on 10 March 1981, and the death certificate states he died on 23 March 1981. Plainly he had no settled intention to live there, and he did not reside there of his own free will.
3. The plaintiff's primary submission was that the Son had, for the purposes of the regulation, been "residing" with his girlfriend and her family, in the weeks prior to his arrest and detention, and on that basis none of his siblings was a "nearest surviving relative".
4. If the Son was still regarded as residing at the family home in the second half of 1980, then it is likely that Paul would also be regarded as residing there, as well as the youngest son George, who was then aged around 13. It may be noted that the Son's death certificate stated that his usual residence was the same residential address in Dubbo as that of his mother.
5. Paul's evidence was that he too had been living in the girlfriend's family household, and thus was a nearest surviving relative. However, the quality of the Son's residence with the family of his girlfriend may well have been quite distinct from the quality of Paul's residence in the same dwelling.
6. No party advanced submissions on the test for satisfying the "residing" limb of the definition. The word has a range of meanings, as may be seen from In re Cowan [1913] SALR 55, a decision on a provision cognate with s 76 of the Probate and Administration Act 1898 (NSW) authorising a grant of special letters of administration when an executor is residing out of the jurisdiction, which bears some resemblance to the issue posed by cl 70. Similar questions arise in a wide range of statutory contexts, sometimes where additional certainty is provided by references to "ordinary residence" or "habitual residence" (for example, Re Taylor; ex parte National Australia Bank Ltd (1992) 37 FCR 194 at 98 and LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 at [25]). The parties' submissions proceeded on the basis that either the Son was "residing" with the family, or with his girlfriend's family, and did not address the possibility (recognised by Lockhart J and the High Court in the passages cited above) that he might reside in both places simultaneously. I have summarised the evidence bearing upon this above; understandably it does not descend to this level of detail.

Nothing turns on "the" nearest surviving relative, as opposed to "an" executor

1. It is as well to mention immediately one textual aspect of the construction of cl 70. Clause 70(1)(a) and (b) distinguish between "an" executor of the dead person and "the" nearest surviving relative of the dead person.
2. The shift from "an" executor to "the" nearest surviving relative may seem minor, but it is the sort of change which prima facie is unlikely to be legally insignificant. Legislation (including delegated legislation such as the Public Health Regulation 2012) is construed on the working assumption that the drafter is skilled and conscious of the possibility that this sort of change in language is apt to suggest a change in legal meaning. Similar considerations informed Nettle J's judgment in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [108]; see also Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 at [28] and Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 at [18]. That said, the shift in language is minor, and syntactical analysis has its limits as a component of statutory construction, as Lord Diplock emphasised in Tolley v Morris [1979] 1 WLR 592 at 603.
3. As it happens, the textual variation in cl 70(1) corresponds with a familiar legal hierarchy in a cognate area. The three limbs in cl 70(1) broadly correspond with the classes of persons with the right to dispose of a body.
4. First, if a will appoints an executor, who is ready, willing and able to arrange for disposal of a body, then that executor has the right to do so (and notwithstanding the absence of a grant of probate). This was the first of Young J's 15 propositions in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693. It is not free from controversy (especially where the executor's preferences diverge from those of a spouse or close relative: see generally Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116), but it is well grounded in the United Kingdom and Australian authorities.
5. Secondly, in the absence of an executor named in a valid will, then traditionally the right to dispose of the body devolves to the person with the strongest claim to letters of administration. This was Young J's fourth proposition, although as explained in G Dal Pont, Law of Succession (3rd ed, LexisNexis 2021) pp 430-433 and K Falconer, "Australian Burial Law 25 Years on from Smith v Tamworth City Council" (2022) 96 Australian Law Journal, forthcoming, some inroads have been made into that rule in recent years.

Resolution of the main point of construction

1. I do not accept that the materials to which the Secretary's delegate may have regard are circumscribed in the way in which the plaintiff contends. Nor do I accept that the Secretary was obliged to accede to a valid application brought by a closest surviving relative which was not opposed by any other closest surviving relative and where there were no public health concerns.
2. The question in each case is one of statutory construction. It is whether the discretion conferred by cl 71(1) to grant or refuse an approval is impliedly constrained by limitations not expressed on the face of the regulation. The issue whether restrictions are to be implied into a generally worded decision-making power is far from unfamiliar. As the Secretary submitted, Dixon CJ observed in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473; [1963] HCA 54 that where a discretion is conferred without defining the grounds on which it is to be exercised "the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case". Those principles have often been applied, including in New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 at [3] and [53].
3. The Secretary also relied upon Mason J's statement in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 that: "Where a stature confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard."
4. There is nothing express in the statute to circumscribe the matters to which the Secretary may have regard, once a valid application has been made. Nor is there anything in the statute to oblige the Secretary to accede to a valid application, or even to create a presumption that a valid, unopposed application will be acceded to.
5. Contrary to the plaintiff's submission, I do not accept that the Secretary is restricted to considerations which bear upon public health. Clause 72 makes it plain that public health considerations are relevant, by ensuring that a staff member or authorised officer of the Ministry is present and empowered to cause the exhumation to stop, but it does not sustain the implication that the matters which the Secretary may consider are thereby circumscribed.

It was open to the delegate to decide the applications together

1. The plaintiff's solicitor's letter contended that each application "must be dealt with separately". The same submission was advanced in this Court. I disagree.
2. The applications were to exhume the remains of the Husband and the Son, buried in the same grave in 1966 and 1981, for the purpose of re-interring them in a different cemetery, once again in the same grave. The applications were made by the same applicant, on the same days, and for the same purpose. It was open to the delegate to consider them jointly, in circumstances where, for the reasons already given, the delegate was entitled to have regard to everything said in support of one application as bearing upon the other. I think this follows as a matter of course; why ever should the regulations be construed in a way that mandates an artificial separation of two applications so plainly linked? But in any event it is supported by the interpretative rule that references to the singular in an instrument include references to the same word in plural form: Interpretation Act 1987 (NSW), s 8(b); thus the power to "refuse the application" in cl 71(1)(b) extends to a power to refuse both applications made by the plaintiff.

Procedural fairness

1. If the Secretary's delegate's decision was not constrained by reference to submissions from "nearest surviving relatives", then it was said that it was procedurally unfair for the decision to have been made without first communicating that to the plaintiff. I disagree.
2. The plaintiff knew that there were objections from her children, and indeed had repeatedly disclosed as much to the Delegate. There may be occasions where, during the course of considering an application, a fresh issue arises, with the result that procedural fairness requires notice of that issue to be given to the applicant and a further opportunity to be heard. But the general rule is that it is unnecessary for decision-makers to disclose their thinking processes or proposed conclusions: see M Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017), pp 561-568.
3. In the present case, the plaintiff knew that her children had been objecting to her applications for more than a decade, knew that those objections appeared on the face of the material supplied by her to the Department, and must be taken to have known that there was a possibility that the decision-maker would not accept either or both of her submissions that (a) the two applications were required to be determined separately, and (b) the decision-maker was required to disregard the children's objection when determining the application to exhume the remains of the Son. The tenor of the letter of 26 May 2021 is to indicate opposition to the taking into account submissions made on behalf of the surviving children of the marriage in determining the application to exhume the remains of the Son. That carries with it an appreciation that the Secretary's delegate might proceed on that basis.

The individual grounds of review

1. The precise grounds of review in the second further amended summons were as follows. "1A. In making the First Decision, the Secretary did so on the basis that members of the family of Thomas Edward Carr (the Son) did not consent to the application to exhume his remains, which reasoning was unreasonable, irrational, not according to the law or the decision involved a defective use of power which was ultra vires. 1B. In the event that the Secretary's discretion in making the First Decision was unfettered in relation to what matters she could consider, the First Decision was unreasonable, irrational or not according to the law because she did not inform the plaintiff it was in this way unfettered and that the plaintiff could or should make whatever submissions or representations she considered were relevant and might assist her application. 1C. The Secretary's delegate failed to give procedural fairness in relation to the First Decision because she failed to give the plaintiff notice that she might not accept Johanna's position that the objecting siblings were not "nearest surviving relatives" of the Son and she did not give the plaintiff an opportunity to be heard in relation to that matter. 1D. In the alternative, the Secretary's delegate's reasoning in relation to the First Decision was unreasonable, irrational or not according to the law because the delegate failed to give consideration to whether or not the objecting siblings were the "nearest surviving relatives" of the Son. 1E. In the alternative, the Secretary's delegate's reasoning in relation to the First Decision was unreasonable, irrational or not according to the law because the delegate considered but did not decide whether or not the objecting siblings were the "nearest surviving relatives" of the Son. 3. Further or in the alternative, the Secretary decided the plaintiff's application on the basis that while there was only one applicant for the exhumation of the Son (the plaintiff), the number of family members who expressed that they did not consent to the plaintiff's application, were five in number, such reasoning being unreasonable, arbitrary, irrational and not according to the law. 5A. In making the Second Decision, the Secretary did so on the basis that members of the family of Thomas John Carr (the Father) did not consent to the application to exhume his remains, which reasoning was unreasonable, irrational, not according to the law or the decision involved a defective use of power which was ultra vires. 5B. In the event that the Secretary's discretion in making the Second Decision was unfettered in relation to what matters she could consider, the Second Decision was unreasonable, irrational or not according to the law because she did not inform the plaintiff it was in this way unfettered and that the plaintiff could or should make whatever submissions or representations she considered were relevant and might assist her application. 7. Further or in the alternative, the Secretary decided the application on the basis that that while there was only one applicant for the exhumation of the Husband (i.e., the plaintiff), the number of family members who expressed that they did not consent to the application were five in number, such reasoning being unreasonable, arbitrary, irrational and not according to the law."

Summary of conclusions

1. It was open to the delegate to determine both applications simultaneously, having regard to the entirety of the material supplied by both the plaintiff and the children of the marriage. It was not necessary to determine whether one or more of the children of the marriage were the "nearest surviving relatives" of the Son because even if they were not, their views were relevant to both applications. I note that in Re Blagdon Cemetery it was stated at [36] under the heading "Local support" that "the views of close relatives are very significant"; it is open to decision makers under the New South Wales regime to follow the same approach. There was nothing unreasonable or irrational about determining that where the views of the surviving children were diametrically opposed to those of the plaintiff, her applications should be refused. There is nothing to sustain the inference that the decision was based on the number of children objecting, as opposed to the fact that they were objecting.
2. It was not necessary to provide advance warning that the delegate might not accede to the plaintiff's submission that the delegate could not have regard to the views of the surviving children for at least two reasons. The first is that it was not material, because the submission is wrong in law. The second is that the delegate was under no obligation to indicate in advance the approach she would take.
3. It was open to the delegate to adopt as a general approach (from which departures might be made in any particular case) that: (a) approval would not be granted if the nearest relatives (even if they were not all "nearest surviving relatives" as defined) were not unanimous; (b) approval to exhume should be regarded as exceptional, as opposed to something available as of right upon a valid application being made; (c) the mere fact that a nearest surviving relative had relocated after the death away from the place where she and each deceased had the strongest connection was insufficient to warrant the grant of approval.

Orders

1. For those reasons, the plaintiff has failed to show judicially reviewable error in the decision of the Secretary's delegate to refuse to grant approval for both of the applications. The second further amended summons must therefore be dismissed.
2. Costs ordinarily follow the event. The Secretary did not seek costs. Paul sought his costs. However, I would depart from the usual rule in UCPR r 42.1. First, Paul only incurred costs because of his decision to intervene in the litigation. He was not joined when the proceedings were commenced, and I did not understand that he was (or even that he contended that he was) a necessary party. Secondly, Paul took the sensible approach of adopting and not repeating the submissions made by the Secretary, and making only short written and oral submissions. Thirdly, there is nothing to suggest that a costs order is worth anything. The plaintiff's evidence is that she has been struggling to save funds to pay for a burial plot in Wellington. There is nothing to suggest she has any means to pay an adverse costs order, if indeed Paul has incurred a liability for what I understand to be his pro bono legal assistance. That fact may not itself carry any great weight. However, the notion that the plaintiff's estranged children should be placed in a position to have a costs order assessed and ultimately executed upon their mother, in circumstances where Paul has disclosed in paragraphs 41 and 44 of his affidavit that his solicitors have been acting for him pro bono for the last year, and where the only defendant originally sued by the plaintiff did not seek costs, seems contrary to the proper exercise of the discretion as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2022