4 February 2022, last written submissions 16 February 2022
Decision date:
25 February 2022
Jurisdiction:
Common Law
Before:
Leeming JA
Decision:
Second further amended summons filed 4 February 2022 dismissed.
Catchwords:
ADMINISTRATIVE LAW – judicial review of Secretary’s decision not to approve exhumation – plaintiff’s husband and son buried in same grave many years ago – plaintiff applied for approval to exhume remains for re-interment at different cemetery pursuant to Public Health Regulation 2012 (NSW), cl 70 – surviving children of marriage opposed exhumation applications – Secretary’s delegate refused application on basis of children’s opposition – whether children were “nearest surviving relatives” in respect of the deceased son – whether applications required to be determined separately – whether delegate entitled to have regard to children’s objections to application in respect of the deceased son – whether remains buried in consecrated land – whether procedural fairness required delegate to give notice of aspects of the decision in advance - Secretary’s decision not circumscribed as plaintiff contended – no denial of procedural fairness – summons dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Carr v Carr [2022] NSWSC 166
Case
[2022] NSWSC 166
Decision Date
CaseChat Overview and Summary
In the case of Carr v Carr, the plaintiff sought judicial review of a decision by the Secretary, made on behalf of the Minister for Health, not to approve an application to exhume the remains of her deceased husband and son from a single grave. The plaintiff wished to re-inter the remains at a different cemetery, in accordance with the Public Health Regulation 2012 (NSW), cl 70. The surviving children of the marriage opposed the exhumation. The Secretary’s delegate refused the application based on the objections of the children, concluding that they were the “nearest surviving relatives” of the deceased son. The plaintiff argued that the applications should be determined separately, that the delegate was not entitled to take into account the objections of the children in relation to the deceased son, and that the remains were buried in consecrated land. The plaintiff further contended that procedural fairness required the delegate to give notice of aspects of the decision in advance.
The court had to determine several legal issues, including whether the applications should be determined separately, whether the children were indeed the “nearest surviving relatives” of the deceased son, and whether the delegate was entitled to consider the objections of the children in relation to the deceased son. The court also had to consider whether the remains were buried in consecrated land and whether procedural fairness was observed by the delegate. The court found that the decision of the Secretary was not as narrowly construed by the plaintiff, and that procedural fairness was not denied. The court held that the applications could be determined together, and that the children were indeed the nearest surviving relatives of the deceased son. The court further held that the delegate was entitled to consider the objections of the children and that there was no procedural unfairness.
The court dismissed the summons for judicial review, affirming the decision of the Secretary. The court held that the delegate was entitled to consider the objections of the children, who were the nearest surviving relatives of the deceased son, and that there was no procedural unfairness in the decision-making process. The court found that the applications could be determined together, and that the decision of the Secretary was not as narrowly construed by the plaintiff. The court held that the plaintiff's contention that the remains were buried in consecrated land was not substantiated, and therefore, the plaintiff's arguments were unsuccessful.