Bennett v Registrar, NSW Births Deaths & Marriages & Anor (GD)
[2007] NSWADTAP 2
•9 January 2007
Appeal Panel - Internal
CITATION: Bennett v Registrar, NSW Births Deaths & Marriages & Anor (GD) [2007] NSWADTAP 2 PARTIES: APPELLANT
Paul Graham Bennett
FIRST RESPONDENT
Registrar, NSW Births Deaths and Marriages
SECOND RESPONDENT
Margaret SchofieldFILE NUMBER: 069010 HEARING DATES: 8/06/2006 SUBMISSIONS CLOSED: 8 June 2006
DATE OF DECISION:
9 January 2007BEFORE: Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; O'Neill A - Non Judicial Member CATCHWORDS: application of legal principles to factual findings - findings of fact - procedural fairness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053182 DATE OF DECISION UNDER APPEAL: 02/02/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Sex Discrimination Act 1984 (Cth)CASES CITED: Attorney-General (NSW) v X (2000) 49 NSWLR 653
Australian Gas Light Co v Value-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 5
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Ebner v Official Trustee in Bankruptcy 75 ALJR 277
Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518
K v K [2000] NSWSC 1052
Kioa v West (1985) 159 CLR 550
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25
Re Fagan Deceased (1980) 23 SASR 454
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146REPRESENTATION: APPELLANT
FIRST RESPONDENT
In person
G Mahoney, solicitor
SECOND RESPONDENT
G Henniker, solicitorORDERS: 1. Leave to appeal against the merits of the Tribunal’s decision refused.; 2. The decision of the Tribunal is affirmed.; 3. Appeal dismissed.
Introduction
1 Mr Bennett’s father died on 26 April 2003. The death certificate records that Ms Schofield was the deceased’s de facto spouse at the time of death. Mr Bennett disputes that Ms Schofield was his father’s de facto spouse and applied to the Registrar of Births Deaths and Marriages (the Registrar) for the death certificate to be corrected by removing certain references to Ms Schofield and her status. The Registrar agreed to only one correction, that is changing the age at which the deceased began a de facto relationship with Ms Schofield. Mr Bennett applied to the Tribunal for a review of the Registrar’s decision: Births, Deaths and Marriages Registration Act 1995 (B D & M Act), s 56. Ms Schofield was joined as a party to those proceedings.
2 The Tribunal affirmed the Registrar’s decision. Mr Bennett has appealed to the Appeal Panel against the Tribunal’s decision. Mr Bennett is entitled to appeal on a question of law: Administrative Decisions TribunalAct 1997, s 113(2)(a). He has not sought the Appeal Panel’s leave to extend the appeal to the merits of the Tribunal’s decision: ADT Act, s 113(2)(b). Nevertheless, it is apparent from his submissions that he does wish the Appeal Panel to extend the appeal to the merits of the Tribunal’s decision. We deal with that application at [39] to [41] below.
Legislative scheme
3 If a person dies in New South Wales, the death must be registered and certain details about the deceased recorded: B D & M Act, s 36(1) & s 42(1). The Births, Deaths and Marriages Registration Regulation 2001 (the Regulations) lists the details that must be recorded. That list includes “the marital status of the deceased immediately before death” and if the deceased had married, the date of each marriage, the place of marriage and the full name of his or her spouse: Cl 12. There is no express requirement to record the existence of, or the details relating to, a de facto relationship. However, 43(2)(b) gives the Registrar discretion to include in the Register “such further information as the Registrar considers appropriate for inclusion.”
4 The Registrar considers information about de facto relationships to be appropriate for inclusion because he says that failure to record it constitutes unlawful marital status discrimination in the provisions of services contrary to the Anti-Discrimination Act 1977 and the Sex Discrimination Act 1984 (Cth). The Tribunal found at [11], that the Registrar is required to include on the Register information relating to heterosexual de facto relationships if so requested. Mr Bennett did not challenge that finding and there is no need for us to address that issue. It suffices to say that we are satisfied that the Registrar has power to include information in the death certificate about the details of any de facto relationship of the deceased prior to death: B D & M Act, s 43(2)(b). It is logical for those details to mirror, as far as possible, the details required for marriages including the date the relationship commenced and the full name of the de facto partner: Regulations, Cl 12.
5 The Registrar corrects the Register by “adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry”: B D & M Act, s 45(3).
Request for corrections
6 The Registrar refused Mr Bennett’s application to correct the Register, however he did remove the entry which stated that the deceased and Ms Schofield commenced a de facto relationship when the deceased was 23 years old. In an attempt to mirror the information required in relation to marital status, the Death Certificate, as varied, included the following information:
- Marital status at Date of Death: De Facto
Marriage(s) Place of Marriage 1. Sydney 2. De Facto
Age when Married 19 years Unknown
Full name of spouse Sylvia Bell Margaret Schofield
Informant: Name M.A Schofield
Address (Address deleted to protect Ms Schofield’s privacy)
Relationship to deceased De Facto Partner
7 Mr Bennett requested that the deceased’s marital status be changed to “Divorced” and that the entries under 2. (de facto, unknown and Margaret Schofield) be deleted. Mr Bennett also requested that the words “de facto partner” next to “Relationship to deceased” be changed to “carer”. The Registrar’s delegate declined to do so. That decision was affirmed on internal review. In both the original decision and on internal review, the Registrar’s delegates refused the application for a correction because Mr Bennett had failed to provide “consistent and conclusive documentation” to prove the couple were not in a de facto relationship. That test is not the test set out at s 45(1)(b) of the B D & M Act. That provision says that the Registrar may correct the Register “to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.” We return to this point at [22] and [23] below.
8 As an aside, it is apparent that in an effort to mirror the information required in relation to marriages, the Registrar has recorded the word “De Facto” next to the heading “Place of Marriage”. Mr Bennett says that that entry suggests that “De Facto” is the place of the deceased’s second marriage. The Registrar may wish to give some consideration to changing the format of the Death Certificate when recording de facto relationships.
Tribunal’s decision
9 Because there is no requirement in the B D & M Act to include the details of de facto relationships in Death Certificates, the term “de facto” is not defined in that Act. The Tribunal adopted the common law definition of de facto relationships and was guided both by relevant case law and the definition of that term in the Property (Relationships) Act 1984. The general principle that the Tribunal drew from the case law and from s 4 of the Property (Relationships) Act was that for a de facto relationship to exist, the couple must cohabit or live together as husband and wife. Several factors are relevant when deciding that issue, but none is determinative. In particular, there is no requirement for the couple to have lived together continuously for a particular period or for the relationship to have been monogamous.
10 The Tribunal found that the deceased and Ms Schofield were living together from May 1997. They bought a property in which they resided as tenants in common, in 1999. In 2001 the couple separated briefly, but soon resumed cohabitation. In September 2002, following a dramatic change in the deceased’s personality, Ms Schofield moved out. They remained separated, but continued to have contact, until December 2002. Shortly after Ms Schofield moved back into their home, the deceased was diagnosed with a brain tumour. Ms Schofield says she cared for him until the date of his death on 26 April 2003.
11 Mr Bennett provided extensive documentary and oral evidence to the Tribunal which he said established that the pair were not in a de facto relationship. For example, Mr Bennett said that his father and Ms Schofield had separate residences from 1980 to 1997 and that they did not attend family gatherings together. He also pointed to the fact that the deceased did not nominate Ms Schofield as his de facto partner on his income tax returns for 1996, 1997 or 1998. The Tribunal noted that Mr Bennett asserted that the recording of Ms Schofield as his late father’s de facto was designed to ensure that she had access to the deceased’s superannuation entitlements.
12 The Tribunal accepted Ms Schofield’s evidence as a truthful account of her relationship with the deceased and concluded at [44] to [47], that:
- 44 . . . In the present matter, Ms Schofield states that her relationship with the Deceased lasted 23 years. For the greater part of that period they maintained individual residences and for significant periods, resided significant distances from each other. While the authorities referred to above suggest that the relationship could be characterised as being de facto during the period to 1997 notwithstanding those facts, such characterisation would be difficult in some of that period.
45 In the circumstances it is not necessary to form a view on that point as I accept that the evidence supports the contention that the Deceased and Ms Schofield cohabited from 1997 onwards. The Registrar submits that it is not necessary to determine whether the relationship between the Deceased and Ms Schofield is properly characterised as being de facto during the period to 1997. I agree with that submission.
46 I do not agree with the Applicant’s contention that the failure by the Deceased and Ms Schofield to evidence their relationship in tax returns and other documentation precludes the existence of a de facto relationship. Despite the attempts by the Applicant to discredit the witnesses and the documentation presented in support of the contention that a de facto relationship existed, it is my view that the overwhelming evidence supports the existence of a de facto relationship by the Deceased and Ms Schofield at least for the majority of the period from 1999 to the date of the Deceased’s death. I am satisfied that the relationship can be categorised in that way at the date of the Deceased’s death.
47 Having formed that view, I am satisfied that the decision taken by the Registrar is the correct and preferable decision and accordingly it should be affirmed.
13 In order to deal logically with Mr Bennett’s grounds of appeal, we have grouped them into four categories:
- (i) challenges to findings of fact;
(ii) challenges to the Tribunal’s identification of the legal principles;
(iii) challenges to the Tribunal’s application of the legal principles to the factual findings; and
(iv) challenges to the procedures adopted by the Tribunal.
14 These categories correspond with the three stages of the determinative process in which a decision maker could make a legal error. Those stages are:
- (a) when “determining the fact by way of primary findings and inferences”;
(b) when “directing himself as to the law” and
(c) when “applying the law to the facts as found”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, per Glass JA at 156.
15 The Tribunal may also make errors relating to procedural fairness including not bringing an unbiased mind to the determination of the matter.
Challenges to findings of fact
16 Question of fact or law? Determining the nature of the relationship between the deceased and Ms Schofield is largely a factual rather than a legal process. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 the majority (Glass JA, with whom Samuels JA agreed) stressed that in appeals on questions of law, the appellate body may not review a finding of fact even if that finding is perverse or contrary to the overwhelming weight of evidence. Nor may the appellate body review findings on the facts which are alleged to ignore the probative force of the evidence which is all one way, even if no reasonable person could have reached the decision made and even if the reasoning by which the Court arrived at its finding was demonstrably unsound. Unless there is no evidence to support a finding of fact, those findings are a matter for the Tribunal below. Consequently, Mr Bennett’s submission that the Tribunal made incorrect findings of fact or did not take into account evidence about the electoral roll, bank statements, a car loan or the full tax records, does not raise a question of law.
17 Findings for which there is no evidence. According to Mr Bennett, there was no evidence for some of the Tribunal’s findings. One of those findings was said to be that the deceased and Ms Schofield continued to have constant contact while they were separated during the period from September to December 2002. It was not disputed that Ms Schofield moved in with her sister in September 2002 and that she and the deceased remained separated until December 2002. The Tribunal records at [26] that Ms Schofield said that during the time they lived apart, they continued to have constant contact. The Tribunal said, at [44], that it accepted Ms Schofield’s evidence as a truthful account of her relationship with the Deceased. Mr Bennett says that some of this evidence was not true and pointed to other evidence in support of his view. With respect to Mr Bennett, the Tribunal had evidence from Ms Schofield to support its findings. This is not a case where the Tribunal has made a finding on the basis of no evidence.
18 Mr Bennett also pointed out that Ms Schofield provided only hearsay evidence of a de facto relationship between 1997 and 1999 and that tax returns from 1996 to 1999 did not identify Ms Schofield as the deceased’s de facto spouse. There was, however, direct evidence from both Ms Schofield and two of her brothers that a de facto relationship did exist at that time. Even if there had been no evidence of a de facto relationship during that time, the Tribunal made the explicit finding, which was sufficient in the circumstances, that the couple were in a de facto relationship after 1999. Any finding about the status of the relationship prior to that time was not critical to the Tribunal’s conclusion.
Identifying the law
19 Introduction. There are three aspects of the law which the Tribunal needed to identify and apply. The first was the law relating to its role. The second was the meaning of “de facto relationship”. The third was the correct test to be applied to determine whether the Registrar had made the correct and preferable decision.
20 Identification of its role. The Tribunal correctly identified its role as being to decide whether or not the Registrar had made the correct and preferable decision: ADT Act, s 63. To emphasise the importance of the Tribunal’s decision, Mr Bennett submitted that, at common law, a death certificate is a public document and may be admitted as evidence of the truth of the facts asserted in it. Regardless of the evidentiary effect of a Death Certificate, the role of the Tribunal was to consider whether the Registrar’s refusal to amend it was the correct and preferable decision. Mr Bennett did not challenge the Tribunal’s statement of its role.
21 Meaning of de facto relationship. The second area in which the Tribunal needed to identify the relevant law was the meaning of the term de facto relationship. As we have said, the Tribunal adopted the common law definition of that term. While the meaning of an ordinary English word or phrase in a statute is a question of fact, the meaning of a technical legal term is a question of law: Australian Gas Light Co v Value-General (1940) 40 SR (NSW) 126 at 137 per Jordan CJ. Although the word “de facto” is not used in the B D & M Act, it is a technical legal term. Consequently, its meaning is a question of law. Mr Bennett made lengthy submissions about the evidence and the application of the evidence to the legal principles identified by the Tribunal. However, we were not able to identify any ground of appeal in relation to the Tribunal’s findings as to the meaning of the term “de facto” relationship.
22 Correct test? The third aspect of the law that the Tribunal needed to identify and then apply relates to the amendment power in s 45(1)(b). That section provides that:
- The Registrar may correct the Register:
- . . .
(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
23 In both the original decision and the internal review decision, the Registrar’s delegates refused Mr Bennett’s application for amendment because he had failed to provide “consistent and conclusive documentation” to prove that the deceased and Ms Schofield were not in a de facto relationship. As we have pointed out, that is not the test set out at s 45(1)(b) of the B D & M Act. Mr Bennett did not submit that the Registrar had applied the incorrect test when making his decision. The question nevertheless arises as to whether the Tribunal applied the correct test. It is apparent from the Tribunal’s reasoning and decision that it did apply the correct test when reviewing the merits of the Registrar’s decision. The Tribunal concluded that the evidence overwhelmingly supported a conclusion that a de facto relationship existed between the deceased and Ms Schofield for the majority of the period from 1999 to the date of death. Consequently, based on the evidence that the Tribunal considered to be the most reliable, there was no need to correct the Register.
Application of the law to the facts as found
24 As long as the Tribunal’s conclusion after applying the law to the facts as found was “reasonably open”, then the Tribunal will not have made an error of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288 and Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395. Chief Justice Spigelman prefers the formulation “not open” or “not open as a matter of law”: Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 677 and that is the test we have adopted in this case. In our view, it was open for the Tribunal to conclude that the Registrar had made the correct and preferable decision in refusing to “correct” the Register.
25 Mr Bennett also submitted that when applying the law to the facts as found, the Tribunal had failed to take into account relevant considerations. That ground of appeal will only be relevant if the Tribunal was exercising discretionary power when making the decision. There is authority to suggest that in relation to similar provisions, it can be inferred that there is an obligation on the decision maker to correct the Register in certain circumstances: Re M; M v Registrar of Births (1924) 26 WALR 115. Assuming that the Tribunal was exercising discretionary power, it is a fundamental principle of law that in exercising such a power, a decision maker must take into account relevant considerations and must not take into account irrelevant considerations. However, the Tribunal will only have made an error of law if it fails to take into account considerations that it is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25 per Mason J at 39.
26 One of the relevant considerations that Mr Bennett said the Tribunal failed to take into account was that the relationship between the deceased and Ms Schofield was not monogamous. The Tribunal did not make a finding about whether or not the relationship between the couple was monogamous and did not refer to any evidence on that point. We were not able to identify any evidence on that point but even if there was some evidence that either the deceased or Ms Schofield had another partner, the Tribunal has not made an error of law in failing to refer to make a finding on that point. That is because it was not bound to consider that matter. Even if it was bound to consider that matter, monogamy is not a pre-requisite to the existence of a de facto relationship: Re Fagan Deceased (1980) 23 SASR 454 and Property (Relationships) Act 1984, s 4.
27 Secondly, Mr Bennett said that if the Tribunal were to rely on the definition in the Property (Relationships) Act 1984, the facts of the case did not come within that definition. Section 4(1), (2) & (3) of that Act state that:
- (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
- (a) who live together as a couple, and
(b) who are not married to one another or related by family.
- (a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
28 Contrary to Mr Bennett’s contention, the Property (Relationships) Act 1984 does not require all of the elements in s 4(2) to be present before a finding may be made that a de facto relationship exists. The presence or absence of one or more of the matters in s 4(2) is not determinative. Consequently even if the Tribunal accepted Mr Bennett’s factual assertions, it was still open to it, as a matter of law, to decide that the Registrar’s decision was the correct and preferable one.
Procedural unfairness – breach of hearing rule?
29 Introduction. A fourth area in which the Tribunal may make a legal error is by denying procedural fairness to a person whose interests are affected by a decision. Mr Bennett made several submissions which, although not characterised as a denial of procedural fairness, alleged that he had been denied an adequate opportunity to present his case. The Tribunal is required to apply the rules of procedural fairness and, in particular, to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings: ADT Act, s 73(2) and s 73(4)(c). At common law, the hearing rule of procedural fairness requires that a decision maker hear a person before making a decision affecting their interests. (Kioa v West (1985) 159 CLR 550.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is "credible, relevant and significant to the decision to be made." (Kioa v West (1985) 159 CLR 550 per Brennan J at 629.)
30 The submissions which raise concerns about whether the Tribunal afforded Mr Bennett procedural fairness were that:
- (a) he did not know prior to the hearing, that Ms Schofield would be calling his brother, David Bennett, to give evidence; and
(b) he did not have an opportunity to tender evidence or make submissions in relation to Ms Schofield’s phone records evidencing contact with family members.
31 Knowledge of witnesses. Although he did not file a written statement, one of Mr Bennett’s brothers, David Bennett, gave some short evidence and was subject to cross-examination by Mr Bennett. When it became apparent that Mr Henniker, the lawyer acting for Ms Schofield, was going to call David Bennett, Mr Bennett said, “I haven’t prepared any questions for him, I didn’t know he was going to come.” Despite that comment, the Tribunal allowed Mr David Bennett to give some short evidence. He said that he was the executor of his father’s will. He also gave evidence about whether the funeral director had made any inquiry in respect of the relationship between the deceased and Ms Schofield. Mr Bennett and his wife quickly identified some areas on which they wanted to cross-examine David Bennett and proceeded to do so. Despite being unaware that his brother was going to give evidence, the transcript satisfies us that Mr Bennett had an adequate opportunity to test the oral evidence his brother gave. Given those circumstances, there was no denial of procedural fairness.
32 Phone records and other evidence and submissions. Mr Bennett summonsed certain documents from Ms Schofield including phone records and Telstra accounts. Although those records were received by the Tribunal on 7 November 2005, there is no record on the file of Mr Bennett being notified that the documents had been produced. The following exchange took place between the Tribunal Member and Mr Bennett’s wife at the hearing:
- MRS BENNETT: We’d like to know, we asked previously for evidence which was supposed to be brought up from the last hearing, some phone records we asked for from Ms Schofield, did you receive anything?
JUDICIAL MEMBER: I have phone accounts, Telstra accounts.
MRS BENNETT: We haven’t been able to see anything.
JUDICIAL MEMBER: Do you need them now?
MRS BENNETT: No, we can look at them later.
JUDICIAL MEMBER: Well, they’re here. Is there any objection to that?
HENNIKER: No objection.
JUDICIAL MEMBER: I’ll give them to you now and you can have a look through them at your leisure.
33 Mr Bennett said he could not obtain a photocopy of these records until after the hearing at which time he provided a further submission to the Tribunal. He also provided further evidence and submissions on other matters to the Tribunal after the hearing. The Tribunal did not take that evidence into account. The Tribunal Member made the following comment towards the end of the hearing on 14 November 2005:
- JUDICIAL MEMBER: What my intention would be is to go away and plough through this material and not get back together again. So if there’s anything at all that you need for me to see and take into account today’s the day. I don’t know when I’ll go through this but it’ll take me a while. I’ll start on it this afternoon but how long it takes I don’t know.
MRS BENNETT: Everything’s in the submission and it’s mainly we’d like you to take note of the background that we’ve actually written about Paul’s information, everything to do with his father and what he did up until the time of his death.
JUDICIAL MEMBER: I’ve read that.
MRS BENNETT: You’ve read it.
JUDICIAL MEMBER: Yes.
MRS BENNETT: And also why the second respondent should not be on the death certificate.
JUDICIAL MEMBER: Is there anything else that any of you want to say?
HENNIKER: No.
MAHONY: No.
JUDICIAL MEMBER: In that case I’ll go away. I’ll reserve my decision. I’ll read through all this material and get a decision to you as quickly as I can. I can’t give you any indication how long it’s going to take me. I won’t just sit down and read it all at once, I’ll do a little bit at a time. It’ll be some time next year before you get a decision, probably end of January, something like that but that’s a guesstimate. Hopefully I’ll be able to spend a lot of time early January on it. When this place is shut I can sit down and read.
MRS BENNETT: Is there any chance we’ll still be able to get more evidence forward through summonses?
JUDICIAL MEMBER: My intention is to go away, this case is closed. The only thing that has to happen is for me to make a decision.
MRS BENNETT: Okay.
JUDICIAL MEMBER: I’m not proposing that any more material come in.
MRS BENNETT: Okay.
JUDICIAL MEMBER: What type of material are you talking about?
MRS BENNETT: Evidence that Police Credit Union have that we can disprove certain figures. Because we can’t get hold of the files from the lawyers, the Police Credit Union have documents which the lawyers would have and it’s to do with monetary actions along the way or what the procedure was, things that were paid for, cheques that were paid out.
P BENNETT: There’s two ways to get information, that’s the person that writes the cheque and the person that receives the cheque. So we’re just going the other way around.
JUDICIAL MEMBER: What are thinking that that would prove?
MRS BENNETT: Paper trail, a lot. There’s a lot to prove, we still have a lot to prove.
JUDICIAL MEMBER: But what is it that you would be hoping to prove by that?
MRS BENNETT: Fraud.
JUDICIAL MEMBER: I’m not dealing with fraud. You may be able to get that information and take it to the police but I can’t see how it’s going to help.
MRS BENNETT: No, it’s getting the information, we have to get that first.
JUDICIAL MEMBER: You wouldn’t be able to get it through here. You’ve already issued summonses to the Police Credit Union, haven’t you?
MRS BENNETT: But I asked for the complete file but we didn’t get the complete file we only got a list of things.
JUDICIAL MEMBER: I can’t see how that’s going to make any difference to what I have to decide. I wouldn’t be inclined to allow the summons to be issued.
MRS BENNETT: Would we be able to get a copy of this?
JUDICIAL MEMBER: I’m happy to allow you to have access to it. Making copies, you’ll have to talk to the registry about it. There’s a photocopier out here and they’re happy for people to make copies there. But you’ll have to talk to the registry. I’ll let the registry know that you’re allowed to have a look at the documents. I’ll leave it at that and I’ll give you a decision as soon as I possibly can.
ADJOURNED
34 In the reasons for decision at [19] the Tribunal Member recorded the fact that he had not taken into account material filed after the date of hearing. Mr Bennett was on notice at the hearing that this was the Tribunal’s intention. Although Mr Bennett did not receive the phone records until the day of the hearing, he was given an adequate opportunity to tender them and make submissions about them at the hearing. He did not take advantage of that opportunity, even though he was on notice that that was his last chance to do so. There has been no denial of procedural fairness on this count.
Procedural fairness – breach of rule against bias?
35 Mr Bennett submitted that the Tribunal was biased because parts of the Tribunal’s decision are similar, or identical, to the Registrar’s submissions. The rule against bias requires a decision maker to disqualify himself from hearing a matter if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. The question in this case is whether the coincidence of language between the Registrar’s submissions and the Tribunal’s reasons demonstrates a failure by the Tribunal to bring an independent mind to the determination of the application.
36 In a slightly different context, Beazley J decided that when an administrator who was responsible for making a new decision, used the same language as the original decision maker in relation to critical aspects of the decision-making process, that made it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process: Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518. Some doubt was cast on that proposition by Nicholson J in Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 538. His Honour had reservations about Beazley J’s view that coincidence of language necessarily means that the second decision maker did not apply an independent mind to the decision-making process in the absence of further evidence.
37 Paragraphs that [36] to [43] of the Tribunal’s decision largely reproduce the Registrar’s submissions dated 28 October 2005 at 2.37 to 2.45. Those submissions relate to the common law meaning of de facto partner. It is apparent that the Tribunal adopted those legal submissions more or less in their entirety. However, Mr Bennett did not submit that the Tribunal made an error of law in its understanding of the meaning of de facto relationship or that its summary of the case law was incorrect. Given that both parties agreed with the Tribunal’s statement of the law, no question of bias arises.
Extension to the merits
38 Although the Notice of Appeal does not request leave for the appeal to be extended to the merits of the Tribunal’s decision, several of Mr Bennett’s grounds of appeal are appeals on questions of fact. The Appeal Panel has discretion to grant leave, whether or not an error of law has been identified: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. However, the ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of Guardianship Act 1987 which relates to appeals from Guardianship Tribunal decisions to the Supreme Court. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:
- It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
39 Mr Bennett did not identify any broad questions of administration or policy which would justify the granting of leave in this case. Nor is there anything in Mr Bennett’s submissions which persuades us that the Tribunal has gone about the fact finding process in an unorthodox manner or in a manner which has produced an unfair result. Mr Bennett merely submitted that there was strong evidence against there being a de facto relationship. Even if we accept that that is correct, there was also strong evidence supporting the existence of a de facto relationship and it was open for the Tribunal to conclude that the Registrar’s decision was correct.
40 Mr Bennett said that he had fresh evidence including documentation dated 20 December 2002 from the Illawarra Area Health Service which records the deceased’s marital status as “single”. We agree with the Registrar’s submission that the admission of this evidence would be unlikely to have led the Tribunal to come to a different conclusion. In those circumstances we decline to give leave to extend the appeal to a review of the merits of the Tribunal’s decision.
Orders
- 1. Leave to appeal against the merits of the Tribunal’s decision refused.
2. The decision of the Tribunal is affirmed.
3. Appeal dismissed.
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