OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov
[2013] NSWADT 196
•30 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196 Hearing dates: 8 July 2013, 7 August 2013 Decision date: 30 August 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: 1. The second respondent's objection to jurisdiction is rejected.
2. However, the application for review is stayed pending resolution of the District Court proceedings brought by the second respondent against the insurers (matters numbered 2011/00292705, 2011/00301247, 2011/00304114).
3. The Registrar is to re-list the matter once the outcome of those proceedings is known. If the applicants wish to proceed with the application for review at that point, the Tribunal will hear them in relation to exercise of the discretion under s 55(3) of the ADT Act.
Catchwords: JURISDICTION - Application for Review - Second Respondent objects to the Tribunal considering application because it lacks jurisdiction - whether the application for review satisfies pre-conditions relating to internal review - held no application for internal review was duly made - however the application for review by the Tribunal is not outside jurisdiction given the Tribunal's broad power to dispense with the requirement for an application for internal review. CASE MANAGEMENT - powers of Tribunal - No utility in application for review proceeding while District Court proceedings on foot - Application for review stayed Legislation Cited: Administrative Decisions Tribunal Act 1997
Births, Deaths and Marriages Registration Act 1995Cases Cited: Chief Commissioner of State Revenue v Print National Pty Ltd [2013] NSWCA 96
NL v Director-General Department of Community Services [2009] NSWADT 227
PC v University of New South Wales (GD) [2005] NSWADTAP 72
PC v University of New South Wales [2005] NSWADT 157Category: Principal judgment Parties: OnePath Life Limited (First Applicant)
Allianz Australia Life Insurance Ltd (Second Applicant)
Suncorp Life and Superannuation Ltd (Third Applicant)
NSW Registry of Births, Deaths and Marriages (First Respondent)
Sergy Gerasimov (Second Respondent)Representation: Counsel
S Walsh (First, Second and Third Applicants)
P Bingham (Second Respondent)
M Iacuzzi, Turks Legal (First, Second and Third Applicants)
M Dalla-Pozza, Crown Solicitor's Office (First Respondent)
T Cobban, Maurice Blackburn Lawyers (Second Respondent)
File Number(s): 133166
reasons for decision
Three insurance companies have applied to the Tribunal for review of the decision of the Registrar of Births, Deaths and Marriages to issue a death certificate on 23 May 2012 under the Births, Deaths and Marriages Registration Act 1995 (BDMR Act). The certificate records the death of a person named as Vladimir Ivanovich Safronov, an Australian citizen of Russian origin formerly resident in New South Wales. Mr Safronov travelled to Russia in October 2009. The certificate records that he died, aged 47 years, at Kharkov in the Ukraine on 7 March 2010. The insurers seek an order that the decision to issue the death certificate be set aside.
The insurers issued life policies to Mr Safronov during 2007 (separate policies each with a death benefit of $400,000, total sum $1.2m). The executor of Mr Safronov's estate, Mr Sergy Gerasimov, has claimed under the policies. Each of them has declined the claim. Mr Gerasimov has taken action in the District Court. The case is adjourned pending resolution of this application for review.
Mr Gerasimov applied to join the proceedings as a second respondent. The application was granted. He opposes the Tribunal dealing with the review application on the ground that it is not competent, and it is beyond the jurisdiction of the Tribunal to entertain it. The Registrar has appeared, made submissions on certain points at the request of the Tribunal, and will abide any decision of the Tribunal. The Tribunal has heard oral submissions, and received written submissions from all parties.
The death certificate was issued on the basis of an entry made in the Register on 10 March 2011. The power to make an entry of a foreign death of a person ordinarily resident in the State is given by s 36 of the Act. By virtue of s 38(1)(d) a foreign death may only be registered if the Registrar has been given a document which the Registrar is satisfied is 'equivalent' to the notice a local doctor or the order a local coroner must give in relation to a local death, as described in paras (a), (b) and (c) of s 38(1). The Registrar relied on the official morgue certificate from the morgue that received the corpse identified as that of Mr Safronov and provided by Mr Sergy Gerasimov in February 2011.
As noted, the death certificate was issued on 23 May 2012, as allowed by s 49. Section 49 provides relevantly: '(1) On completing a search of the Register, the Registrar may issue a certificate: (a) certifying particulars contained in an entry.'
The issuance of a death certificate, it can be seen, is no more than an administrative act. It is cast as involving a discretion, but it seems to me that a Registrar could not properly refuse a request made in proper form. The real issue that the insurers seek to have addressed is the original decision to make the entry on the Register.
A death certificate has evidentiary effect. Section 49 goes on to provide:
(2) A certificate under subsection (1) (a) is admissible in legal proceedings as evidence of:
(a) the entry to which the certificate relates, and
(b) the facts recorded in the entry.
The insurers have emphasised to the Tribunal that they are concerned over the probative effect of the death certificate in the civil proceedings if it is allowed to stand.
The insurers believe that the official documents from the Ukraine upon which the Registrar relied to issue the death certificate contain particulars as to the corpse that are inconsistent with certain physical features of Mr Safronov. They also refer to investigations they have made in Russia and the Ukraine that have led them to suspect that the claim under the policy is in aid of a fraud.
Ascertaining Jurisdiction
The first provision that the Tribunal scrutinises in assessing whether an application for review is within jurisdiction is s 55(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act):
55 When can an application for a review be made?
(1) A person may apply to the Tribunal for a review of a reviewable decision only if:
(a) the application is made by an interested person, and
(b) where the person was entitled to seek an internal review of the decision-the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and
(c) the application is made in the manner prescribed by the rules of the Tribunal, and
(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision.
Section 4 of the ADT Act defines an 'interested person' as:
a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).
The provisions conform to s 38(1) of the ADT Act, which confers on the Tribunal a general jurisdiction to review reviewable decisions:
if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or
(b) in the exercise of any other functions of the administrator identified by the enactment.
Section 38(3) provides:
If an enactment makes provision for applications to be made to the Tribunal in respect of a reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enactment only if those conditions are satisfied.
The insurers lodged their application with the Tribunal on 23 May 2013 relying on s 56(1) of the BDMR Act which provides:
56 Review by the Administrative Decisions Tribunal
(1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision.
The right to apply for external review sits at the apex of a decision-making pyramid. The ordinary scheme of the ADT Act contemplates that there will first be a primary decision by the administrator, then an application for internal review of that decision, and finally an application for external review. Section 47 gives the following summary as it relates to these three stages. I have left out the further elements relating to the Ombudsman, the Appeal Panel and the Supreme Court:
(1) The following is a summary of the process involved in the review of a reviewable decision:
Making of decision
An administrator makes a reviewable decision and (where appropriate) gives notice to an interested person of the decision and of review rights in accordance with Division 1 of Part 2.
Seeking reasons and/or internal review
An interested person may seek either or both of the following:
(a) reasons for the decision under Division 2 of Part 2,
(b) an internal review of the decision under Division 3 of Part 2.
External review by Tribunal
An interested person may (generally after an internal review) make an application to the Tribunal under Part 3 for a review of the decision. ...
The making of the decision and the procedures that the administrator must follow is the subject of ss 48-52 of the ADT Act. The making of applications for internal review is the subject of s 53. The making of an application for review is the subject of s 55. The provisions are clearly intended to be interdependent; this point is reflected in the summary given in s 47.
This case is unorthodox. The insurers were not involved with the making of the primary decision. While in their review application they cast the issuance of the death certificate as the primary decision, my view (as previously noted) is that this was no more than an administrative act that relied on the correctness of the entry of the death on the Register. I think it is more accurate to treat the making of the entry on the Register as the primary decision.
The insurers contend that they were entitled to apply for internal review, and they duly applied for internal review under s 53, and that therefore pre-condition (b) of s 55(1) is satisfied. The insurers refer to their solicitors' letter dated 22 November 2012, sent six months after the death certificate issued. The letter begins by advising that the solicitors act for the three insurers who are defendants in the civil proceedings in the District Court brought by the executor. It refers to the documents it understands the executor to have presented in support of the application for the death certificate. It refers to further investigations undertaken by the insurers, and provides that material. It refers to matters raised by the investigations that in its opinion cast doubt on the veracity of the death certificate.
The letter concludes as follows:
Having regard to the significant inconsistencies in the evidence, the defendants are of the view that the evidence indicates that Mr Safronov is not deceased.
In light of the above, we have received instructions to inform the Registry of the inconsistencies in the evidence and to request a review of the decision to issue the Death Certificate pursuant to s 38 of the Births, Deaths and Marriages Registration Act 1995. We look forward to hearing from you in this regard.
The letter advised that a copy had been sent to the executor's solicitors. The executors' solicitors wrote to the Registrar opposing any reopening of the matter.
After some delay and further requests for action by the insurers, the Registrar replied as follows on 26 April 2013:
I refer to your letters dated 22 November 2012, 25 January 2013 and 20 February 2013.
I note you have requested a review of the Registrar's decision to issue a death certificate for Mr Safronov pursuant to s 38 of the Births, Deaths and Marriages Registration Act 1995 (the Act).
I understand that there are presently on foot District Court proceedings involving your clients and Mr Gerasimov. Mr Gerasimov, as executor of Mr Safronov's estate, is claiming death benefits under life insurance policies issued by your clients. I understand relevant to the issues in dispute is whether Mr Safronov is in fact deceased. I would be pleased if you would inform me of the status of the District Court proceedings.
In light of the fact that the District Court will need to determine whether or not Mr Safronov is deceased, the Registrar does not propose, at this stage, to undertake a review of his decision. I note the Registrar may amend the Register to reflect any findings made by the District Court in due course, should that be required.
I look forward to hearing from you with respect to the current status of the District Court proceedings. Please contact me if you have any further questions [contact details given].
The material is not clear as to when the insurers first knew of either the decision to enter the death on the Register or the decision to issue the death certificate. Further, their letter to the Registrar did not refer at any point to the ADT Act, or suggest that the review sought was an internal review of the kind to which the provisions of the ADT Act is addressed.
What is a 'duly' made application under s 55(1)(b) is governed by the provisions of s 53. I will set the provision out in full:
53 Internal reviews
(1) Who may apply for an internal review
If an administrator makes a reviewable decision, an interested person may apply for an internal review of that decision under this section.
(2) Requirements for an application
An application for an internal review is:
(a) to be in writing, and
(b) to be addressed to the administrator concerned, and
(c) to specify an address in Australia to which a notice under subsection (6) may be sent, and
(d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person:
(i) if the person has requested reasons under section 49-was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or
(ii) if the person has not requested reasons under section 49-was notified of the making of the reviewable decision, and
(e) to comply with such other requirements as may be prescribed by the regulations in respect of the making of applications for internal reviews.
(3) Who is to deal with an application?
An application for an internal review of a decision is to be dealt with by an individual (other than the administrator) who is directed to do so by the administrator (the internal reviewer). The internal reviewer directed to deal with an application must be, as far as is practicable, an individual:
(a) who was not substantially involved in the process of making the decision under review, and
(b) who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed, and
(c) who is otherwise suitably qualified to deal with the issues raised by the application.
(4) Material to be considered
In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant.
(5) Review of the application
Following the internal review of the decision, the internal reviewer may:
(a) affirm the decision, or
(b) vary the decision, or
(c) set aside the decision and make a decision in substitution for the decision that is set aside.
(5A) Reviewer has functions of administrator
In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant enactment or other law that the administrator had in making the decision being reviewed.
(5B) Reviewer to notify administrator of decision
An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision.
(6) Notice of result of review and appeal rights
Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of:
(a) the outcome of the internal review, and
(b) the reasons for the decision in the internal review, and
(c) the right of the person to have the decision reviewed by the Tribunal.
(7) Statement of reasons
For the purposes of subsection (6), an applicant is notified of the reasons for a decision in an internal review only if the applicant is given a statement of reasons setting out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the understanding of the internal reviewer of the applicable law,
(c) the reasoning processes that led the internal reviewer to the conclusions the reviewer made.
(8) Status of decisions made on internal review
For the purposes of this Act, a reviewable decision that is affirmed, varied or set aside and substituted under subsection (5) is:
(a) taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer), and
(b) taken to have been made on the date on which the applicant is given a notice under subsection (6).
(9) When an internal review is finalised
An internal review is taken to be finalised if:
(a) the applicant is notified of the outcome of the review under subsection (6), or
(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).
Note. Section 55 provides that an interested person may apply for a review of a reviewable decision once an internal review of the decision is taken to be finalised under this subsection.
(10) No internal reviews of decisions previously reviewed under this section
A person is not entitled to a review under this section of any decision previously reviewed under this section or a decision made under subsection (5).
(11) Regulation-making powers
The regulations may:
(a) prescribe requirements to be observed in relation to the conduct of an internal review under this section, or
(b) exclude any class of reviewable decisions from the application of this section, or
(c) alter the period within which an internal review must be conducted or a notice given under this section.
After the first oral hearing of Mr Gerasimov's objection, I asked the parties to address me on further points, and in that regard asked the Registrar (who had been excused form the first hearing) to address points of concern.
My first concerns went to the issue of whether a person could enter the decision-making pyramid for the first time at the internal review stage. Section 48 contemplates that an administrator will give an interested person notice of a decision, and notice of their rights to have the decision reviewed. The insurers were not known to be interested persons so that did not occur here. Section 49 seeks to cover the situation where an interested person is not given a statement of reasons, and, arguably, the situation where a person who can properly be regarded as an interested person wants an explanation for a decision. This provision may be important in cases (as the present may be seen to be) where the applicant for the primary decision gets the decision they seek, but there are other persons affected by it who may not think it is the best decision (this equation is seen in guardianship matters in the Tribunal). Section 49(1) and (2) provide:
49 Duty of administrator to give reasons on request
(1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.
(2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons.
The right to apply for internal review under s 53 is given to 'interested persons'. The 'requirements' for an application for internal review address the situation where a person 'has not requested reasons under section 49'. They are obliged to state when they were 'notified of the making of the reviewable decision'. In my view, this provision is likely to have been intended to refer to people who were 'notified' of the decision by means of a notice from the administrator issued under s 48. However, I will adopt a beneficial construction, and treat 'notify' as embracing situations where interested persons find out about the decision by other means. I accept the insurers' submission that the 'making' of the reviewable decision, not the provision of written notice, is the foundation of the rights given by the ADT Act: as to which, see further, NL v Director-General Department of Community Services [2009] NSWADT 227 at [38] per Britton DP.
The insurers' letter of 22 November 2012 does not address this point. My understanding of the material is that a claim under each of the policies had been made some time in the latter part of 2010, with a letter issuing on 21 February 2011 to Mr Gerasimov's solicitors declining the claim. After that he moved to have the death entered on the register.
I have other difficulties. It seems to me that there is nothing about the letter of 22 November 2012, other than the use of the word 'review' that might have led an administrator to conclude that s 53 of the ADT Act was being engaged. I see this matter as important as the responsibilities imposed on an administrator by s 53(3) and following can only be properly carried out if that is known, or should reasonably have been known. The parties drew attention to PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [28]; which upheld my decision in PC v University of New South Wales [2005] NSWADT 157. I accepted an objection by a respondent agency to the filing of an application for review of conduct. There was a pre-condition that the applicant first apply for internal review of the conduct. She said she had. The letter to the agency that she relied upon contained no internal content that in my opinion might have suggested to a reasonable administrator that the applicant's rights under privacy law were being engaged. I said:
10 Obviously if the agency gets a letter that does not mention the Act, does not mention information protection principles and the like, does not seek formal remedies (as was the case with the letter of 28 November 2004), then it may be that it is never seen by the agency as being the kind of application that fits under s 53.
The Appeal Panel said at [28]:
28 In arriving at that factual determination, the Tribunal identified the correct test to be applied. In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought. The letter from the appellant to the respondent of 28 November 2004, cannot, on its face, reasonably be interpreted as an application for internal review.
In this case the Registrar has indicated that he is happy to treat the letter of 22 November 2012 as an application for internal review. In my view, that is a generous stance, when there is nothing in the correspondence between the parties that either of them ever turned their mind to the ADT Act and its rights.
Further this is a circumstance where the Registrar had an independent statutory power to correct the register after inquiry. See BDMR Act, ss 44, 45. Further the BDMR Act provides, s 45(2) that the Registry is duty-bound to correct the Register if so ordered by a Court. In my view, the Registrar more likely had these provisions in mind when dealing with the representations. The reference to the powers of the Court in the Registrar's reply of 26 April 2013 reinforce that point.
However, it seems to me that the ADT Act is nonetheless tolerant of a situation where a person lodges an application for external review without having gone through the orthodox process, or has sent a letter which is not seen as engaging the internal review provisions.
Section 55(3) provides:
(3) The Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:
(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned, or
(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned.
Of relevance to the present case is s 55(3)(b). This provision points to the conclusion that a failure to 'duly apply' for internal review is not fatal to proceeding in the Tribunal.
Mr Gerasimov also submitted that if the letter of 22 November 2012 can properly be regarded as an application for internal review, the application was not filed within 28 days of the application for internal review being finalised. On his calculations that date was 12 January 2013, being 28 clear days (s 55(2), s 55(1)(d)) after the application for internal review was finalised (s 53(9)), which in turn is 21 days after the application is made (s 53(6)).
I favour the insurers' and Registrar's submissions on these points. In my view it is apparent from the provisions of s 55(3) (set out above) and also s 55(4), (5) and s 57, which I will not set out here, that the Tribunal has wide powers to exercise discretion to allow out of time applications for internal reviews and to dispense with the requirement of internal review. These powers could be utilised in this case to meet the concerns raised by Mr Gerasimov, so these are not fundamental objections to entertaining an application for review.
In response to another submission, I do not think that the reference in s 53(1) to an 'interested person' should be read down so as to confine its meaning to persons who were identified as applicants at the primary decision making stage or within the group of people who might have been known to the administrator at that stage to be 'interested' persons. Here the interested person is by dint of s 56 to be treated as any person 'dissatisfied' with the decision of the Registrar. While the meaning of this word may take on a different hue as between different statutory contexts, I see as equally applicable to this context the recent observations of the Court of Appeal attributing a wide natural meaning to the term when used in relation to the review right under State tax laws: Chief Commissioner of State Revenue v Print National Pty Ltd [2013] NSWCA 96.
My conclusions therefore are: that there was no duly made application for internal review. However, this is not fatal to proceeding in the Tribunal by way of an application for review under s 55(1) because of the dispensing power given by s 55(3). I will not in this decision turn my mind to that question, because I am not satisfied (responding to another of Mr Gerasimov's points) that there is any utility in having the Tribunal proceed at this stage.
The Tribunal has a wide discretion under s 73 of the ADT Act to manage its business. Section 73(1) and (3) provide:
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
In contrast to other administrative review jurisdictions vested in the Tribunal, the Registrar has as already noted at least three different facilities for ensuring that the Register is correct - opening of a s 44 inquiry, responding to an application for review made to the Tribunal or implementing a court order.
In this case all the relevant material will fall to be addressed by the District Court. I do not see the evidentiary effect given by s 49 to a death certificate to be so significant that the Tribunal should get involved at this point.
Order
1. The second respondent's objection to jurisdiction is rejected.
2. However, the application for review is stayed pending resolution of the District Court proceedings brought by the second respondent against the insurers (matters numbered 2011/00292705, 2011/00301247, 2011/00304114).
3. The Registrar is to re-list the matter once the outcome of those proceedings is known. If the applicants wish to proceed with the application for review at that point, the Tribunal will hear them in relation to exercise of the discretion under s 55(3) of the ADT Act.
Decision last updated: 30 August 2013
0
4
2