Glenda Mary Edgar, died in early July 2020. A death certificate was issued in respect of Mrs Edgar on 22 July 2020, on information provided by Ronald Gordon Gray, who claimed to be Mrs Edgar's de facto partner. On 3 August 2020 Mrs Edgar's son, James Edgar (the Applicant) sought to have the Respondent amend Mrs Edgar's death certificate, specifically to remove Mr Gray as her de facto partner, and instead to record her as a widow and himself as the next of kin. On 8 December 2020 the Respondent refused his application. That decision was affirmed on internal review. The Applicant then sought review by this Tribunal.
On 29 April 2021 the Respondent informed the Tribunal that it considered Mr Gray may wish to be joined in the proceedings. On 3 May 2021 the Respondent informed the Tribunal that Mr Gray was seeking pro bono legal advice, and, on 6 May 2021 the Tribunal informed the Respondent that it should write to Mr Gray informing him that if he wished to be involved in the proceedings he should advise the Tribunal accordingly. No contact was made by Mr Gray with the Tribunal, and, as a result, he was not joined as a party to the proceedings, although he did give evidence when the matter came on for hearing (see below).
[2]
Law relevant to the substantive application
A person's death must be registered pursuant to s 4 of the Births, Deaths and Marriages Registration Act 1995 (the BDM Act). The Registrar registers a death by making an entry about the death in the Register including the particulars required by the Births, Deaths and Marriages Registration Regulation 2017 (Regulation) pursuant to s 42(1) of the BDM Act. For the purposes of s 42(1) of the BDM Act, the particulars required include whether, immediately before death, a person was married, divorced, widowed, in a registered relationship or an interstate registered relationship or in a de facto relationship or had never married: cl 16(h) of the Regulation.
Section 45 of the BDM Act confers on the Registrar the power to correct the Register, relevantly, in accordance with the most reliable information available to the Registrar of the registrable event.
[3]
Evidence in the substantive matter
In addition to documents filed under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) I had before me material supplied by the Applicant and material Mr Gray had provided to the Respondent and which formed part of the s 58 documents.
[4]
Conduct of the review
By letter dated 30 April 2021, the Applicant wrote to the Tribunal requesting that Warren Underwood represent him at the hearing of his Application for Review. The Respondent did not object to this course.
When the matter came on for hearing on 20 May 2021 Mr Underwood said he did not propose to call the Applicant to give evidence. The Applicant claimed in his letter of 30 April 2021, that he felt he has been discriminated against and that the matter was taking an emotional and physical toll on him.
I heard evidence from Mr Underwood and Mr Gray. A number of other witnesses were to give evidence, but were not reached on the day.
The matter was listed for a resumed hearing on several occasions, but for one reason or another - including difficulties associated with COVID - it did not proceed. The matter was listed for resumed hearing on 5 May 2022, but on 29 April 2022 - only days before the resumed hearing - Mr Underwood advised the Respondent, but not the Tribunal, that the Applicant had passed away last year. The Respondent brought this to the attention of the Tribunal on 2 May 2022 and the date for the resumed hearing was vacated, and the matter was instead listed for a directions hearing.
[5]
The Respondent's application to dismiss the application for review
At the directions hearing on 5 May 2022 Mr Underwood said, notwithstanding the Applicant's death on 14 June 2021, he wished to continue the proceedings to "clear James' name". The Respondent applied for the Application for Review to be dismissed.
The Respondent relied on Rule 6.31 of the Uniform Civil Procedure Rules (UPCR) in relation to Court may dismiss proceedings not prosecuted following death of party. Amongst other requirements, an application to be substituted as applicant is to be made withing 3 months of the death of the applicant. It was submitted that as no such application had been made (by Mr Underwood, or any other person) the proceedings should be dismissed.
UCPR Rule 1.5 Application of these rules sets out to which "courts" the UCPR applies. NCAT is not listed, and, as the Appeal Panel commented in Tanious v NSW Land and Housing Corporation [2016] NSWCATAP 246, at [53]-[54]:
53 To the extent that Mr Tanious relied upon rr 31.18 and 31.27 of the Uniform Civil Procedure Rules 2005 (the 2005 Rules), these rules do not apply to the Tribunal. …
54 The Civil and Administrative Tribunal of New South Wales is not specified as a court to which the rules apply in the table in Column 1 of Sch 1 of the 2005 Rules.
I am satisfied that the UCPR Rule 6.31 does not apply to the continuation, or otherwise, of the Application for Review.
[6]
Can Tribunal proceedings be continued in circumstances where the Applicant has died?
In Maleganeas v ACT Planning Land Authority [2019] ACAT 105 (Maleganeas), the ACT Civil and Administrative Tribunal (ACAT) said at [21] "the first question and fundamental question is whether or not the right to review of the decision continues" and said at [22]:
[22] From the authorities provided, it seems that the answer to whether proceedings can be continued after the death of the applicant turns upon the nature of the proceedings. For civil proceedings the common law approach was that where the claim was 'personal to' the applicant it would not be transmissible upon death and would abate. A similar approach applies for criminal proceedings against a deceased defendant. (my emphasis)
ACAT said at [23] that consideration of whether administrative proceedings were "personal to an applicant" was to be determined by reference to the legislation providing for the decision and the right of review. In this case, the relevant legislation is the BDM Act. While some legislation may specifically provide that the rights of the applicant under the statute survive an applicant's death, the BDM Act does not. In such circumstances, ACAT held, the legislative scheme as a whole must be considered, with regard to the facts of the individual case, to determine whether the right to review a case is transmissible. A right to review an administrative decision, the consequences of which are purely "personal" to the deceased may be considered "transmissible". In such cases the proceeding does not abate on death of the applicant, and may be continued by the person in whom that right then vests.
Section 56 of the BDM Act has a broad provision in relation to who may seek to have a decision reviewed by the Tribunal: "a person who is dissatisfied with a decision of the Registrar". In my view it is unlikely that an application by Mr Underwood in his own right to have the Register amended with respect to Mrs Edgar's death would have been entertained by the Tribunal, given that he was "a friend" of Mrs Edgar's.
The object of the BDM Act includes the keeping in perpetuity of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex, and to ensure the integrity of the Register. In the context of the object of the BDM Act, I do not consider that the consequences of decision sought to be reviewed are purely "personal" to the Applicant. Mr Underwood submitted on multiple occasions in the course of the hearing that the Applicant's object was to have Mr Gray removed from his mother's death certificate (because they were not in a de facto relationship) and that, in doing so, the Applicant's prospects of gaining access to his mother's estate would be enhanced and that he was "in negotiations" with Mr Gray. As I told Mr Underwood on many occasions, the only matter before the Tribunal was in relation to the claim for correction of the Register, and that the Tribunal was unable to assist in relation to succession disputes.
The Respondent's role is to create and preserve a public record. This is not a matter in which an individual's interest, particularly that of the Applicant as articulated by Mr Underwood, survives beyond their death. As I result, I do not consider that the proceedings may be considered as "transmissible" to Mr Underwood, or any other person.
[7]
Can a deceased applicant's personal representative continue the proceedings on behalf of the deceased applicant?
In D'Ambrosio and Secretary, Department of Social Services (social services second review) [2021] AATA 1109 (D'Ambrosio), the AAT determined that the deceased applicant's estate may proceed to challenge a decision relating to the deceased's pension by obtaining a grant of probate or letters of administration and then seeking an order to join the legal personal representative to the AAT under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
Mr Underwood produced a "statutory declaration" by the Applicant purporting to be the Applicant's "will". It was a statutory declaration by "William James Edgar" dated 11 December 2020 in which the Applicant declared himself to be "of sound mind" and leaving all his assets, including "forthcoming assets" to Mr Underwood. The document bore the signature "JW Edgar" and was witnessed (in a different pen) by only one person. I consider it highly unlikely that the document would be considered a valid will and the Applicant therefore, appears to have died intestate. There is no executor of the Applicant's estate, and Mr Underwood informed me that he does not propose to seek probate (or letters of administration) of the Applicant's estate.
Mr Underwood said that the Applicant has no assets, although there was no evidence to that effect. He said though that the Applicant had thought that his mother had a modest bank account which had been "frozen" and Mr Underwood thought that would form the extent of the Applicant's estate. There was no evidence to support the contention that the account remained frozen nor that the Applicant would have been entitled to those funds. Further, there was no evidence about who might be entitled to the Applicant's estate, given that the "will" appears to be invalid.
In Maleganeas, the AAT dismissed the application rather than adjourning the proceedings to allow the deceased's executors to be formally granted probate and then be substituted for the applicant the Tribunal said it would be a cause of delay, result in expense to all of the legally represented parties and to the estate, and cause personal inconvenience to everyone involved. Therefore, even if Mr Underwood were to consider applying for probate/letters of administration, the course adopted by the AAT in Maleganeas would appear to be appropriate.
In Bates v Secretary, Department of Employment [2016] AATA 250 (Bates), DP Forgie stated at [47]:
47. Unless a particular enactment provides otherwise or to do so would be inconsistent with the nature of the decision, it seems to me that s 27(1) [of the AAT Act which provides that "…the application may be made by or on behalf of any person or persons…whose interests are affected by the decision"] would generally permit the personal representative of a deceased applicant to apply to be joined as a party in a proceeding that could potentially have an impact on the size of the deceased estate that he or she is administering.
The analysis in Bates was cited with approval by SM Lazanas in Mavris v Commissioner of Taxation [2018] AATA 4130.
In Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326, the AAT said:
Where the statutory entitlement that is the subject of the proceeding does not devolve upon the death of an applicant, then the death of the applicant will extinguish the availability of that entitlement and, with it, the power of any decision-maker (which, by s 43(1) Administrative Appeals Tribunal Act 1975 (the AAT Act), includes the power of the AAT upon review) to decide that that entitlement is properly payable to the applicant: Marvel Skate Co Pty Ltd v Bright Ex parte Reid (1952) 52 SR(NSW) 277 ; Goodman v Jones [1909] VLR 307. Where the statutory entitlement that is the subject of the proceeding does devolve upon the death of an applicant, then the person to whom the statutory entitlement devolves must make application pursuant to s 30(1 a) AAT Act to be made a party to the proceeding. Unless and until such application is made the Tribunal will have no jurisdiction to review the decision.
This then tends to suggest to me that the approach is that the Tribunal no longer has jurisdiction in the absence of a legal personal representative. As discussed above, there is, at this time, no executor of the Applicant's estate, nor, on the evidence, will there be.
In Gaudron v National Disability Insurance Agency [2021] AATA 615 the AAT found, on the death of the applicant, that it no longer had jurisdiction to consider and determine the review application. It dismissed the application under s 42A(4) of the AAT Act which allows the Tribunal to dismiss an application without proceeding to a review if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. It found that "the character of the review was personal to Mr Gaudron and did not survive his death". Consequently, the Tribunal said that even if a representative of the applicant's estate were to apply to become a party to the review application, that application would not succeed as only the late applicant's interests were affected by the decision and those interests did not devolve upon his death. Accordingly, the Tribunal dismissed the matter under s 42A(4) of the AAT Act which allows the Tribunal to dismiss an application without proceeding to review the decision if it is satisfied that the decision is not reviewable by the Tribunal. The Tribunal preferred to dismiss an application for review under s 42A(4) of the AAT Act (which allows the Tribunal to dismiss a decision if it is not reviewable) where it held the Tribunal no longer had jurisdiction to consider and determine the application rather than s 42B(1) of the AAT Act (which is in similar terms to s 55 of the CAT Act).
In D'Ambrosio, DP Rayment OAM QC determined that the Tribunal had no jurisdiction to deal with a review of the Respondent's decision relating to the late applicant's pension where the applicant had died before the proceedings could be determined even though she had authorised her son to conduct the proceedings on her behalf. However, the Tribunal said that the deceased applicant's legal representative could apply to be made a party to the proceeding under s 30(1A) of the AAT Act. Again, this course is not being adopted by Mr Underwood.
[8]
Should the Tribunal dismiss proceedings under s 55 of the CAT Act where the applicant has died?
The Tribunal's power to dismiss applications is set out in s 55 of the CAT Act:
55 DISMISSAL OF PROCEEDINGS
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.
As is apparent, the death of an applicant is not specifically addressed in the Tribunal's dismissal powers. In Bates, DP Forgie discussed dismissal of proceedings (in the AAT) and said at [41]-[42]:
41. My conclusion that the late Mr Bates' application does not survive his death by reason of the principles of devolution, does not mean that the application is deemed to be dismissed by virtue of his having died. The Tribunal's powers to dismiss an application do not address the situation. The closest is s 42A(2) of the AAT Act, which gives the Tribunal power to dismiss an application if the applicant fails to appear at the hearing of a proceeding or at an alternative dispute resolution process. The power is expressed in terms of "may", and not of "shall" or "must" and so I think that the power is properly characterised as discretionary. The other provision of the AAT Act that might be thought relevant is s 42B(1). It provides:
The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
42. The death of an applicant does not necessarily lead to a conclusion that the application should be characterised as coming within one or other of the three categories specified in ss 42B(1)(a), (b) or (c)….Once the person has died and the person could not carry on the relevant functions or occupation, there is no point in continuing the proceeding. That might be a situation in which it might be appropriate to exercise the power granted by s 42B of the AAT Act.
In BDK v Department of Education and Communities [2015] NSWCATAP 129, the Appeal Panel at [62]-[66] said in relation to s 55(1)(b) of the CAT Act:
62 … The Tribunal's power refers not only applies to proceedings that are "frivolous" or "vexatious", but then applies to proceedings that are "misconceived" or "lacking in substance". Section 55(1)(b) does not have a generic catch-all category of "abuse of process" to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there.
63. In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b)-s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of "misconceived" and "lacking in substance", he said:
25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:
"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" …, whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment …
26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Dept of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
…
66. In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While "misconceived" and "lacking in substance" may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are "frivolous" or "vexatious", conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.
In DXG v Public Guardian [2020] NSWCATAD 129 (DXG), SM McAteer dismissed a review of a decision made by the Public Guardian regarding access to a subject person under s 55(1)(b) of the CAT Act. The Senior Member found the application was lacking in substance and had become (by force of events due to the death of the subject person) misconceived. The Tribunal found that the decision under review had been rendered "otiose" because it no longer applied to the subject person as he was deceased. The Tribunal also said that entertaining the application made by the deceased subject person's grandson was contrary to case law and general principles of the Guardianship Act.
In Linck v Secretary, Department of Social Services [2021] AATA 3298, the applicant sought review of a decision to deny him payment of the disability support pension. He was represented by his father during the proceedings but died before the proceedings were determined. The AAT said at [67]:
67. Where the death of an applicant renders an application futile or without utility, or where the substantive statutory right or entitlement that is the subject of the application does not devolve on the person's death, the application may be rendered frivolous, vexatious or misconceived in a legal sense, or an abuse of Tribunal process. An application may be found to be legally vexatious or frivolous if it is rendered pointless and without possible positive effect following the death of the applicant. But the death of an applicant does not automatically or necessarily lead to such a conclusion. These are matters about which the Tribunal must be satisfied before the power to dismiss the application is enlivened.
The Applicant's death raises procedural issues, in particular, whether the application should be dismissed. I agree that the appropriate course is to dismiss the proceedings rather than adopt a more procedurally cumbersome course of regarding the Tribunal as having "lost" jurisdiction on the death of the Applicant.
[9]
Conclusion
There are serious questions about the utility of continuing the Application for Review and these have been discussed above. Furthermore, there are serious questions about Mr Underwood's authority to continue to represent the Applicant. It is the Applicant who is party to the proceedings, not Mr Underwood, and the Applicant is no longer able to express his wishes, to provide instructions or to give evidence.
For the reasons given above I find that the appropriate course is to dismiss the Application for Review by the late Mr Edgar under s 55 (1)(b) of the CAT Act.
[10]
DECISION
1. The Application for Review is dismissed.
[11]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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 May 2022