Carr v The Secretary of the NSW Ministry of Health

Supreme Court of NSW|2021-11-15|Before: Lonergan J

Judgment

Before the Court in the Duty Judge list is an application made by Amended Notice of Motion filed on 22 September 2021 by Paul Carr ("Mr Carr"), one of the sons of the plaintiff. He seeks leave to be added as a defendant to the proceedings or in the alternative to be granted leave to intervene.
The proceedings comprise, as articulated in the Amended Summons filed on 9 September 2021, an application for judicial review of the decision made by a nominee of the defendant, the Secretary of the NSW Ministry of Health ("the Secretary") on 2 June 2021, refusing the plaintiff's application to exhume the remains of her husband and her son for the reasons set out in a determination dated 26 August 2021. I will refer to these men out of respect for Culture by their positions in the family as the "husband and father" and the "brother and son".

The evidence

The applicant relied upon an affidavit of Mr Carr affirmed 14 October 2021 which deposed to the structure of the family, the views of his siblings, his understanding of the plaintiff's wishes, Culture, Lore and his personal views as to why he continues to oppose the exhumation as a result of these matters.
The Secretary relied upon an affidavit of solicitor, Andrew Bell, which appended the August 2021 Reasons, the relevant Health Department Policy and Procedure and some background correspondence dating back to the time of the initial request in 2008.
The plaintiff relied upon an affidavit of solicitor, Ms Mowle, which also provided background material. Matters of significance included a letter from Sparke Helmore Solicitors dated February 2021. They are the solicitors who were retained on behalf of Mr Carr and four of his siblings stating that those persons disputed the plaintiff's application for exhumation. There is also a letter by Ms Mowle to the Public Health Unit at Dubbo dated 26 May 2021 stating her understanding that because none of the objectors were persons falling within the definition of his "nearest surviving relative", the objectors had no status to object. There is also correspondence from the plaintiff's previous legal advisor to the Public Health Unit at Dubbo in 2017, stating that the plaintiff understood her children "no longer" objected to the exhumations, and pressing for the exhumations given that there was no "current" statement of objection. The response provided by that Unit was that the plaintiff had to present evidence that the objections made in 2008 by those persons were no longer pressed. It appears no such response was provided.
The evidence illustrated that this dispute regarding this question of exhumation has remained an issue between the plaintiff on the one hand, and Mr Carr and his siblings on the other, since the time the application was first articulated in 2008 up to the present day. The affidavit material indicates that it is a fraught and upsetting dispute. It is clearly desirable that it can be resolved finally and completely as soon as possible.

The statutory underpinning for exhumations

Section 134(2) of the Public Health Act 2010 (NSW) provides for the power to make regulations, relevantly to this dispute, regarding: …. (n) the cases in which, the manner in which, and the conditions under which, cremations of human remains may take place, (o) matters preliminary to, and consequential on, cremations of human remains, (p) other public health matters relating to the disposal and handling of human remains, (q) the registration of cremations and burials and (with any necessary modifications) the application to the registration of cremations of the provisions of any other Act, or of any law, in force in relation to the registration of a burial of the body of a deceased person, (r) the embalming, interment, disposal and exhumation of the bodies of deceased persons. ….
Clauses 69 to 71 of the Public Health Regulation 2012 (NSW) are contained in Division 4 of Part 8 of the Regulation dealing with "Disposal of bodies": 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. ….
Self-evidently, there can be no exhumation without permission and without the presence of an authorised officer or a Ministry of Health staff member.

The decision refusing the application

On 2 June 2021 the Secretary's delegate Ms Stanley, Director of Public Health at Western Sydney/Far West Local Health District wrote to Ms Mowle advising that the application to exhume was not approved "due to the objections by members of the immediate family" and referencing NSW Health Policy Directive PD2013046.
In the Reasons for Decision document dated 26 August 2021, Ms Stanley stated that she took into account "the strong and longstanding wishes of the applicant as the nearest surviving relative of each deceased, and what she ("Mrs Carr") described as her "dying wish that she be buried with her late husband and son", but that: "against that matter, I have weighed the following competing matter of the opposition to the exhumation expressed by the five siblings as at 2 February 2021".

The relief sought in the Amended Summons

The power of this Court to conduct judicial review proceedings is set out relevantly in s 69 of the Supreme Court Act 1970 (NSW): 69 Proceedings in lieu of writs (1) Where formerly - (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act - (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. …. (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings - (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. ….
Subsection 3(b) is relevant to the circumstances here because it contemplates the potential in cases of certiorari, for the Court to substitute its own judgment or order for the purpose of finally determining the proceedings. This potential brings into play Mr Carr's evidence, should this Court decide to quash the decision and to finally determine the issues, rather than returning the matter to the Secretary for re-determination.
The plaintiff seeks an order in the nature of certiorari quashing the decision(s) in respect of exhumation of her husband's and son's remains arguing first, that the decision-maker took into account irrelevant considerations, and second, and in the alternative, "Wednesbury" unreasonableness: 1. In making the First Decision, the Secretary's delegate took into account an irrelevant consideration, namely that members of the immediate family of [REDACTED] (the Son) who were not among his nearest surviving relatives (as defined in the Public Health Regulation 2010) did not consent to the application to exhume his remains. 3. Further or in the alternative, in making the First Decision the Secretary's delegate took into account an irrelevant consideration, namely 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. 4. Further or in the alternative, the First Decision was unreasonable because in reaching it the Secretary's delegate: (a) did not give separate consideration to the plaintiff's application for the exhumation of her Son (i.e., it was not separate to the consideration the delegate gave to the application to exhume [REDACTED] (the Husband)); and further or in the alternative; (b) treated the application to exhume the Son and the application to exhume the Husband as a single application in which there was only one relevant set of considerations; and further or in the alternative; (c) gave excessive weight to the fact that siblings of the Son had expressed that they did not consent to the application; and further or in the alternative; (d) gave excessive weight to the fact that while there was only one applicant for the exhumation of the Son (i.e., the plaintiff), those who had expressed that they did not consent to the application were five in number; and further or in the alternative; (e) did not make any enquiries into why the Son's five siblings did not consent to the application for his exhumation; and further or in the alternative; (f) did not make enquiries into whether any people, including any other family members. supported the application; (g) did not make enquiries into whether at the time of the application or, in the alternative, the First Decision, which if any of the Son's siblings did not consent to the application to exhume of the Son.

UCPR and principles regarding leave to add a defendant or intervener

UCPR r 59.3 appears in that part of the Rules that deal with Judicial Review Proceedings: 59.3 Commencement and parties (1) Judicial review proceedings are to be commenced by summons. (2) If a decision to be reviewed arose in the course of a dispute between parties, each party who is interested in maintaining the decision must be joined as a defendant. (3) If the proceedings seek to prohibit, injunct or mandate a step that has not been taken, each body or person who may be directly affected by the relief sought must be joined as a defendant. (4) The body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant.
UCPR r 6.24 sets out the power of the Court to join a party to proceedings: 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. …
The phrase in UCPR r 6.24(1) "all matters in dispute in the proceedings" may include ancillary or preliminary questions: Qantas Airways v A.F. Liddle Pty Limited [1981] 2 NSWLR 34 at 38.

Submissions

Counsel acting for the plaintiff, the Secretary and Mr Carr each prepared helpful written submissions.
Mr Vuu argued on behalf of Mr Carr that principles of statutory interpretation should be applied in interpreting r 59.3 and in doing so, the Court should give a beneficial interpretation to the term "course of a dispute between the parties", noting that although the judicial review proceedings were between the plaintiff and the Secretary, dealing with the dispute had required an invitation by the Secretary for submissions from Mr Carr and other persons in response to the plaintiff's application to exhume.
Second, Mr Vuu submitted that because the Court is not invested with a statutory judicial review jurisdiction, it ought to consider the context and test that applies in the Administrative Decisions (Judicial Review) Act 1977 (NSW) which identified the standing for persons seeking to be heard as "persons aggrieved". He argued that by analogy to the Coroners Act 2009 (NSW) which empowered the Coroner to grant leave to any person who had "sufficient interest in the subject matter of the proceedings" to appear demonstrated the type of test that the Court may consider analogous to Mr Carr's role.
Mr Vuu developed this submission by arguing that the mechanism provided by r 59.3 shows that Mr Carr would meet the qualifying fact that he is a person "interested in maintaining the decision" of the defendant.
Third, Mr Vuu pointed out that a decision-maker may not always act as a contradictor and the exercise of power often turns on a private dispute between individuals who were not necessarily "parties to a proceeding", but that r 59.3 expressly contemplates a distinction between the person or body whose decision is to be reviewed being a person bound by the orders of the Court, and a person who is interested in maintaining the decision as a separate person or entity.
Fourth, Mr Vuu submitted that the use of the term "dispute" in r 59.3(2) as opposed to "proceeding", lends support to the proposition that a "dispute" should be construed as imposing a different and lesser threshold than that required to constitute a "proceeding" and so what is being referred to in r 59.3 would encompass a person such as Mr Carr.
On the question of leave to intervene as opposed to being added as a party, Mr Vuu submitted that the common law test for non-party intervention propounded by Brennan CJ in Levy v The State of Victoria & Ors (1997) 289 CLR 579 at 603 is very wide. Here the proposed intervenor has demonstrated by his affidavit evidence that he has a sufficient legal interest in the proceedings so as to warrant a grant of leave.
Supplementary to this submission, Mr Vuu drew attention to the potential for the intervenor to assist the Court in the substantive proceedings, not just with evidence, but with respect to appropriate relief in the event that the Court finds that the decision of the Secretary was infected by jurisdictional error. Mr Carr may well wish to submit that the plaintiff cannot demonstrate that any asserted error deprived her of a realistic possibility that a different decision could have been made by the defendant had the asserted error not been made: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 per Bell, Gageler and Keane JJ.
Alternatively, even if the plaintiff can establish error, the Court should be given assistance on discretionary matters such as potential futility in remitting the matter for determination because of the nature and extent of the objections to the exhumations: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108-109 per Gordon and Gummow JJ.
Mr Pulsford for the Secretary submitted that it is open to this Court to join Mr Carr to the proceedings pursuant to r 59.3(2) and/or r 6.24 of the UCPR and adopted and agreed with the submissions of Mr Vuu that the decision(s) arising in the course of a "dispute" were the qualifying matters, as distinct from there needing to be a prior "proceeding" to which Mr Carr was a formal party.
He emphasised in this regard that UCPR r 59 is not confined to the decisions of adversarial tribunals, particularly given the fact that the supervisory jurisdiction of the Supreme Court is the mechanism for the determination and the enforcement of the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [98] per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
Mr Pulsford submitted that even independently of r 59.3, it may be open to the Court to join Mr Carr to the proceeding under the two overlapping limbs of r 6.24 accepting his submission that Mr Carr has a legal interest in the proceedings as a person or entity who "should be joined" as a party to litigation where orders might be made directly affecting his rights and liabilities or alternatively, that his joinder is "necessary to the determination of all matters in dispute".
Mr Pulsford submitted on discretionary factors that the Secretary could limit its submissions to the Secretary's powers and procedures if it was thought to do more would offend the Hardiman principle [1] . Even if it were concluded that Hardiman did apply, (and there are some good arguments as to why the Secretary's role to date involves no such contravention), the Court should bear in mind that the Amended Summons raises for determination which matters the Secretary is permitted to or prohibited from having regard to under the Public Health Regulation. Mr Carr's anticipated submissions do not address issues of that character.
Further, Mr Carr appears by pro-bono counsel on a direct access basis and so the Secretary is conscious of the need to assist the Court and will endeavour to the extent possible to avoid duplication of submissions with those made by Mr Carr, should he be granted leave to be added as a party or to intervene.
The plaintiff in her written submissions prepared by counsel Mr Crossland emphasised that she is an elderly woman who is not well and not well off. She is concerned that the involvement of Mr Carr in the proceedings will add to costs and raise matters that are objectively irrelevant.
She argues that the evidence filed by Mr Carr in support of his application refers to matters that did not arise in the "course of the dispute between parties" as required by r 59.3. The issue is between the plaintiff and the Secretary only. There was no determining by a tribunal, for example of the parties' "respective rights and obligations", it was simply an application for approval by the Secretary. Mr Carr's opposition to that arose in the course of an application and so the proper characterisation of the matters at issue in the current proceedings is not that the Secretary's delegate resolved a dispute between the parties by her decision, but rather there is dispute about how the Secretary should have exercised her discretion under Regulation 70. She is thus the only proper person to defend the Amended Summons.
The plaintiff also emphasised that the matters raised by Mr Carr in addressing indigenous Culture and Lore are irrelevant because that material was not before the decision-maker and if placed before the Judge on judicial review, this would force the proceedings down the path of a merits review which is not permissible.

Decision

In my view the analysis argued for by the plaintiff in opposing the application is too restrictive.
It is somewhat artificial to characterise the "dispute" for the purposes of UCPR r 59.3 as between the plaintiff and the Secretary. To do so ignores the reality that had Mr Carr (and his siblings) not "disputed" the application for exhumation, the decision to refuse the application would likely not have been made.
Rule 59.3 uses the term "dispute between parties" rather than "issues in proceedings". It is clearly contemplating the inclusion/addition of parties other than the decision-maker. That is self-evident in both the language of the rule and the matters referred to in subr 4 regarding the order in which the other defendants should be named.
In my view Mr Carr is "a party who is interested in maintaining the decision". The fact that the structure of the decision-making process applicable to the dispute was not in a forum that led to pleadings or documents that nominated interested persons as "parties" is immaterial to the role and function of r 59.3.
On one analysis, the plaintiff being well-aware that Mr Carr was interested in maintaining the decision, ought to have joined him as a defendant, although I understand to do so would likely have had the effect of undermining her primary assertion which seems to be that the defendant was in error considering anything Mr Carr had to say at all.
It is clear that the Court has the discretion to join Mr Carr if it forms the view that he ought to have been joined as a party, or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings: UCPR r 6.24(1).
In my opinion Mr Carr ought to have been joined because he has a right to seek to uphold his understanding of the relevant Lore and custom and Culture for his father and brother. This is clearly an important matter to him as a Wiradjuri man.
He also has filed evidence relevant to the question of the current status of opposition by other family members to the exhumation and so material arguably relevant to the relief sought by the plaintiff. This material has focus on the question of potential futility, should the Court hearing the proceedings form the view that jurisdictional error has been shown. Alternatively and importantly this material could assist the Court in determining final relief, should the Court decide it ought to proceed that way.
It should be noted that s 69(3) of the Supreme Court Act 1970 (NSW) specifically contemplates the Court potentially turning its mind to substituting its own decision, and it should have material available to it that is relevant to that task, should it reach the view that it should or can consider Mr Carr's evidence and submissions on the issue of final relief.
It is consistent with the requirements of ss 56-60 of the Civil Procedure Act 2005 (NSW) that the Court hearing the application for judicial review have for its assistance potentially relevant evidence and submissions so that the dispute can be comprehensively dealt with and all relevant issues determined to the extent possible and practicable. If Mr Carr is not joined, the Court will be missing material it may consider necessary and relevant.
The appropriate way to place that material before the Court, is adding Mr Carr as a defendant.

Costs

Mr Vuu argued that the plaintiff should pay Mr Carr's costs of this application.
Mr Pulsford stated that his client was content to bear her own costs.
Because of the unavailability of the plaintiff's counsel due to a medical emergency, Ms Mowle requested that I defer submissions on the question of costs as she wished to have the benefit of counsel's advice and time to read the reasons for judgment.
Accordingly, the question of costs as between the plaintiff and Mr Carr is reserved.

Orders

I make orders as follows: 1. Paul Carr is to be named as the first defendant in the proceedings. 2. Pursuant to UCPR r 59.3(4) the Secretary of the NSW Ministry of Health is to be named as the second defendant in the proceedings. 3. The question of whether the plaintiff should pay Paul Carr's costs of the Amended Notice of Motion filed on 22 September 2021 is reserved. 4. By consent, the Secretary of the NSW Ministry of Health is to bear her own costs of the Amended Notice of Motion. 5. The parties are to confer regarding further necessary case management orders and to the extent possible are to agree on those orders by 9:00am Friday 19 November 2021. 6. The proceedings are listed before Lonergan J at 9:00am on Friday 19 November 2021 for further directions.

Endnote

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 at 35-36 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: 23 February 2022

Administrative Decisions (Judicial Review) Act 1977(NSW)

Public Health Regulation 2012(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (11)

Cited By (1)