Sambucco v Registrar of Births, Deaths and Marriages Victoria
[2020] VSC 889
•23 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02908
| ROBERT SAMBUCCO | Plaintiff |
| v | |
| REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES VICTORIA | First Defendant |
| and | |
| MARA SAMBUCCO | Second Defendant |
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JUDGE: | Quigley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2020 | |
DATE OF JUDGMENT: | 23 December 2020 | |
CASE MAY BE CITED AS: | Sambucco v Registrar of Births, Deaths and Marriages Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VSC 889 | First revision (21 January 2021): paras [29], [31] |
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ADMINISTRATIVE LAW – Judicial review – Order 56 – Births Deaths and Marriages Registration Act 1996 (Vic) ss 31-33, 46 – Certiorari to quash issuance of marriage certificate and entry of a marriage by the Registrar of Births, Deaths and Marriages on the Register – Application for extension of time to issue proceedings – Whether special circumstances exist – Extent of delay and strength of case – Whether injustice caused to the parties – Held – No special circumstances exist – Mann v Medical Practitioners Board of Victoria [2002] VSC 256 applied – Denysenko v Dessau [1996] 2 VR 221 considered – Marriage Act 1961 (Cth) ss 42, 45, 46, 48, 50 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.02(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr K Hanscombe QC Ms Dawson | Aitken Partners |
| For the First Defendant | Mr Brown | Victorian Government Solicitor’s Office |
| For the Second Defendant | Mr Greenberger | Collards Solicitors Pty Ltd |
HER HONOUR:
The Proceeding
The plaintiff, Robert Sambucco seeks an order[1] quashing the determination of the first defendant, the Registrar of Births Deaths and Marriages, to register a marriage and to issue a marriage certificate in respect of that marriage.
[1]Supreme Court (General Civil Procedure Rules) 2015 (Vic) (‘Supreme Court Rules’) r 56.01.
The marriage registration which is under challenge is that of his brother, Mark Sambucco[2] with the second defendant, Mara Sambucco. A wedding ceremony conducted by an authorised religious celebrant took place on 8 June 2019. Unfortunately, Mark Sambucco who was suffering from a terminal illness died on 9 September 2019. The registration of the marriage occurred on or about 10 December 2019.
[2]Mark Sambucco is also referred to as Marco Sambucco.
This proceeding was issued on 10 July 2020, outside of the 60 day time limit provided by the Supreme Court (General Civil Procedure Rules) 2015 (Vic). Therefore, the initial question to be answered is whether there are ‘special circumstances’ which warrant the grant of an extension of time to the plaintiff for the bringing the proceeding.[3]
[3]Supreme Court Rules (n 1) r 56.02(3).
The plaintiff argued that a central question in the proceeding was whether what occurred on 8 June 2019 constituted a solemnised marriage ceremony within the meaning of the Marriage Act 1961 (Cth) (Marriage Act) so as to render lawful in accordance with the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDM Act), the making of the entry of the marriage by the Registrar into the Register and the issuing of the marriage certificate.
The plaintiff seeks to raise several grounds for review. These include questions of the proper construction of the BDM Act, allegations of failure by the Registrar to accord him procedural fairness, failure of the Registrar to take into account relevant considerations and taking into account irrelevant considerations.
The first defendant has taken a Hardiman[4] position. The second defendant substantively opposes the making of any order in the plaintiff’s favour but also challenges the plaintiff’s standing to bring the proceeding.
[4]R v Australian Broadcasting Tribunal, Ex Parte Hardiman (1980) 144 CLR 13.
The context for the bringing of this proceeding by the plaintiff is the expectation of the plaintiff and members of his family that they were to inherit the estate of Mark Sambucco as they fell within the class of the residuary beneficiaries of the testamentary trust proposed under the Will made by Mark Sambucco in 2015.[5] As a consequence of the operation of s 13 of the Wills Act 1997 (Vic) (Wills Act), a Will is revoked by marriage. Letters of Administration were granted to Mara Sambucco as Mark’s widow on 31 January 2020.[6]
[5]Robert Sambucco, ‘Affidavit of Robert Sambucco in Support of Originating Motion’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 3 October 2020, Exhibit RS-1.
[6]Ibid Exhibit RS-4.
The underlying and motivating issue raised by the plaintiff is whether there is at law a marriage for the purposes of s 13 of the Wills Act. This proceeding seeks to review the administrative decision made by the Registrar to register the marriage pursuant to s 31 of the BDM Act and the consequent issuing of a certificate of marriage pursuant to s 46 of that Act.
The registration of a marriage under the BDM Act does not establish whether or not a marriage was validly solemnised under the Marriage Act, nor does a certificate issued by the Registrar with respect to the marriage provide conclusive proof that the marriage was solemnised. Further, even a certificate of marriage issued pursuant to s 50 of the Marriage Act does not make the issue of that certificate conclusive where the fact that the marriage ceremony took place is in issue.[7] Consequently, the registration of the marriage and issue of certificate by the Registrar does not provide conclusive evidence of whether or not a marriage occurred for purposes of s 13 of the Wills Act. This raises the question of utility of the proceeding.
[7]Marriage Act 1961 (Cth) s 45(4) (‘Marriage Act’).
For the reasons which follow, in particular the delay, reasons for delay and the merits of the proceeding, I have determined that the plaintiff has not established that there are ‘special circumstances’ sufficient to justify an extension of time to bring the proceeding.
Extension of time
Ordinarily an applicant for judicial review must make their application ‘within 60 days after the date when grounds for the grant of relief or remedy claimed first arose.’[8] Rule 3.02(1) gives the Court the power to extend any time fixed by the Rules however, r 56.02(3) provides that the time limit fixed for ord 56 applications may only be extended by the Court in ‘special circumstances’.
[8]Supreme Court Rules (n 1) r 56.02(1).
The term ‘special circumstances’ is necessarily broad, flexible and context dependent.[9] As such, the Court should not place a gloss on the words of the rule.[10] As Osborn J (as he then was) said in Mann v Medical Practitioners Board of Victoria (‘Mann No 1’):
It is not, in my view, appropriate to seek to judicially define the meaning of the phrase 'special circumstances' in the relevant Rule. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words…[11]
[9]Carra v Hamilton (2001) 3 VR 114, 119-21 [24] (‘Carra’); Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [19] (‘Mann No 1’); (upheld in Mann v Medical Practitioners Board of Victoria & Anor [2004] VSCA 148 [72], [74]) (‘Mann No 2’); Mokbel v DPP [2005] VSC 476 [57]; Minogue v Secretary to the Department of Justice and Community Safety [2020] VSC 355 [73] (‘Minogue’).
[10]But cf. Denysenko v Dessau [1996] 2 VR 221 (Denysenko) in which Beach J described the word ‘special’ as referring to ‘something unusual, uncommon, exceptional or extraordinary’ (at 224). In Carra, Balmford J referred to Denysenko and expressed reservations about the word ‘special’ as connoting something ‘exceptional or extraordinary’, the latter terms being, in her Honour’s consideration, a more stringent standard.
[11]Mann No 1 (n 9) [18].
His Honour then went on to make the following ‘preliminary observations’:
(a)Every case is special to the litigant concerned. The Rule requires the Court to be objectively satisfied that special circumstances exist.
(b)Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case.
(c)As Balmford J has observed in Carra v Hamilton the Rule does not in terms limit such circumstances to those connected with reasons for delay.
(d)In my opinion, the existence of a manifest or strongly arguable case of administrative or legal error may be a relevant consideration. Thus in my view a manifest excess of jurisdiction might in some cases amount to special circumstances.
(e)Conversely, I accept that the demonstration of an error does not automatically result in special circumstances for if it did then there would be little practical point to the time limit contained in the Rule. Thus, a defect of procedure may not amount in a particular case to special circumstances. In this regard, I refer to the decision of Beach J in Denysenko & Dessau & Anor. Although I would not, with respect, go as far as his Honour in discounting the existence of an apparent error of law as a potentially relevant consideration.[12] (citations omitted)
[12]Ibid [19].
His Honour’s decision was ultimately upheld by the Court of Appeal[13] and has been applied by the Trial Division of this Court on numerous occasions.[14]
[13]See Mann No 2 (n 9).
[14]Naik v Monash University [2018] VSC 605 (‘Naik’) (upheld in Naik v Monash University [2019] VSCA 72); Pulitano Pastoral Pty Ltd v Mansfield Shire Council 225 LGERA 58; [2017] VSC 421.
More recently, Derham AsJ considered the authorities on this point (including Mann No 1) and summarised the position as follows:
(a)[Rule 56.02(3)] requires the Court to be objectively satisfied that special circumstances exist;
(b)the existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)the factors relevant to the exercise of the discretion under Rule 56.03(2) [sic] include, but are not limited to:
(i) the period of the delay;
(ii) the reason for the delay;
(iii) whether the plaintiff has an arguable case;
(iv) the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.[15] (citations omitted)
[15]Lazarevic v Victoria Police [2014] VSC 497 [35] (‘Lazarevic’).
In upholding Derham AsJ’s decision on appeal, Forrest J described the passage above as ‘unimpeachable’.[16] Again, this summary of principles has been referred to favourably on many occasions.[17]
[16]Lazarevic v Victoria Police [2015] VSC 13 [36].
[17]See e.g. Minogue (n 9) (Lansdowne AsJ); Naik (n 14) (Richards J); Richards v Victorian Magistrates' Court (No 1) [2018] VSC 225 [16] (Keogh J).
Osborn J, in his summary of the applicable principles, refers to the decision of Denysenko v Dessau.[18] There, Beach J held that error in the decision under review could not constitute special circumstances for the purposes of r 56.02(3). Beach J’s decision reflects a competing line of Trial Division authorities that suggest that the ‘special circumstances’ must relate to the reasons for not bringing the application within the mandated timeframe.[19] That is, legal or factual errors in the decision sought to be reviewed were irrelevant to the question of an extension of time. A proposition in such absolute terms conflicts with Osborn J’s statement of principle in Mann No 1,[20] which expressly countenances the existence of a manifest or strongly arguable case as being a relevant consideration.
[18][1996] 2 VR 221.
[19]See David L Bailey and John K Arthur, Civil Procedure Victoria (LexisNexis Butterworths, 3rd ed, 2009) vol 1, 5238-5240 [I 56.01.40].
[20]Mann No 1 (n 9) [19].
Any conflict appears to be reconcilable by instead reading Denysenko as authority for the proposition that a mere error does not constitute special circumstances without something more. As Hansen AJA said in Mann v Medical Practitioners Board of Victoria & Anor (‘Mann No 2’):
[Justice Osborn’s] concluding observations on the application of the phrase concerned the question whether error in the decision under review could constitute a special circumstance. His observations were obiter in view of his conclusion that the decision of the Board was not affected by error. Nevertheless, as his observation conflicts with the absolute statement of Beach J in Denysenko, I should say something about the issue. There were two reasons for Beach J's conclusion. First, a holding that an erroneous decision constituted a special circumstance would result in an aggrieved party being able to ignore the 60 day requirement knowing that he or she could successfully apply for an extension of time when minded to do so. Secondly, error in decision making by a judicial officer, whether of fact or law, was not “special”. Neither of those factors can be denied, at least in the absence of other factors. It may however be considered that the generality of the phrase, for the evident purpose of comprehending an infinite and unforeseeable range of circumstances, would indicate that Beach J expressed the proposition in terms that were too absolute. In other words, in a particular case an approach that absolutely excluded error as a factor, no matter what the circumstances and nature of the error, may produce unintended injustice. I would leave the question open for consideration in an appropriate case.[21]
[21]Mann No 2 (n 9) [71] (Hansen AJA). See also Lazarevic (n 15) [36] (Derham AsJ).
It is clear that, in any event, the error in the decision below and the significance of that error are factors to be taken into account when considering whether an extension of time is warranted but that there may well be factors which in the Court’s assessment have greater weight in making the decision under r 56.02(3).
In the present case, the plaintiff submits that:
It is well established that in considering ‘special circumstances’, the Court will consider all of the circumstances of a particular case, including the circumstances relating to the failure to commence a proceeding within the prescribed 60 day period and the length of delay. The circumstances need not be unique, but must have a particular quality of unusualness that permits them to be described as special.[22] (citations omitted)
[22]Robert Sambucco, ‘Outline of Submissions for the Plaintiff’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 21 September 2020 [11].
This submission accords with the principles summarised above. The factors said to make the plaintiff’s circumstances ‘special’ are that he:
(a) had no knowledge of the Second Defendant’s application for registration of a marriage nor the Registrar’s decision to issue a marriage certificate until he obtained a copy of the court file in the probate matter;
(b) acted quickly once he had knowledge of the above; and
(c) has a strong case concerning a novel question of statutory construction.
These factors are relevant considerations to the exercise of discretion. Factor (a) goes to the reason for delay. Factor (b) goes to the question of justice to both parties and the extent of delay. Factor (c) goes to the strength of the case.
The question is whether those matters objectively satisfy the Court that ‘special circumstances’ exist.
For her part, the second defendant made no written submissions on the question of ‘special circumstances’ although it does not appear that any issue is taken with the principles relied upon by the plaintiff. Instead, she challenges the evidence upon which the plaintiff relies to support these principles. Specifically, challenge was made that the plaintiff lacked knowledge of the relevant decisions as he has asserted, as is apparent from counsel for the second defendant’s oral submissions.[23] The merits of the plaintiff’s case was also put in issue.
[23]Transcript of Proceedings, Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor (Supreme Court of Victoria, S ECI 2020 02908, Quigley J, 7 October 2020) 133-134 (Mr Greenberger) (‘Transcript of Proceedings’).
Knowledge and timely action
The evidence of the plaintiff and that of his sister Carol Sambucco was not persuasive or compelling in respect of the knowledge they had and the promptness of the action that was taken. Both Carol and Robert Sambucco were cross examined on this issue so the Court had the opportunity to form a view about their demeanour and their substantive answers.
The evidence of Carol Sambucco was that she and Robert sought legal advice on or about 2 December 2019 in respect of their brother’s estate. After this consultation Carol Sambucco had an email exchange with Mary Petsinis, the solicitor for the second defendant.[24] In this email exchange it is clear that Ms Petsinis confirmed that a marriage certificate had been issued and that the 2015 Will had been revoked. This email exchange occurred between 9 and 10 December 2019.
[24]Mary Petsinis ‘Affidavit of Mary Agatha Anne Petsinis’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 8 September 2020, Exhibit MP-13.
This exchange occurred well after a meeting on 9 October 2019 at which Robert, Carol, their sister Luisa and their parents attended at the Veneto Club in Bulleen together with Ms Petsinis, and the named executor of the 2015 Will, Mr Angelo Biviano and the second defendant at which the question of registration of the marriage and the need for an urgent grant of letters of administration to deal with the settlement of a sale of real estate, amongst other things was discussed.[25] Although there are inconsistencies in the different versions of the meeting, I am satisfied that these matters were raised.
[25]Mara Sambucco, ‘Second Affidavit of Mara Sambucco’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 23 September 2020, [6]-[12]; Mary Petsinis, ‘Affidavit of Mary Agatha Anne Petsinis’ (n 24) [13]-[22]; Mary Petsinis, ‘Second Affidavit of Mary Agatha Anne Petsinis’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 23 September 2020, [4]-[7], [11]-[12]; Angelo Biviano ‘Second Affidavit of Angelo Biviano’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 23 September 2020, [3]-[5], [8]-[10]; Luisa Sambucco, ‘Affidavit of Luisa Sambucco’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 16 September 2020, [8]-[13]; Carol Sambucco, ‘Affidavit of Carol Sambucco’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 16 September 2020, [4]-[10], [12]; Robert Sambucco ‘Second Affidavit of Robert Sambucco’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 3 October 2020, [4]-[6]; Arefat Abdela, ‘Affidavit of Arefat Abdela’, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 18 September 2020, [2]-[5].
There was also a meeting at Mr Biviano’s office on 23 November 2019 to attempt to explain to the Sambucco family members the situation with the estate, as Mr Biviano had had ‘many calls’ from the plaintiff and his sisters asking how the estate was to be split. The meeting was attended by the plaintiff, Luisa and Carol and for a short time, Mara. Mr Biviano told them that Mara was in the process of seeking a marriage certificate, and if she succeeded, the 2015 Will would be revoked. It was also proposed that she would seek letters of administration. Mr Biviano also explained that there were no specific instructions as to the distribution of the estate in the Will. By this date, I accept that a copy of the 2015 Will had been provided either by email on 15 October by Mr Biviano or earlier at the meeting at the Veneto Club by Ms Petsinis.[26] Mr Biviano was Mark Sambucco’s accountant and long-time trusted friend and financial adviser who had handled Mark’s personal affairs, companies and to act as accountant for the estate. He was not cross examined and thus not directly challenged on his version of events.[27]
[26]Angelo Biviano, ‘Affidavit of Angelo Biviano’ filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 8 September 2020, [7]-[8]; Angelo Biviano, ‘Second Affidavit of Angelo Biviano’ (n 25) [25]-[26].
[27]Mr Biviano swore two affidavits in this proceeding. Angelo Biviano, ‘Affidavit of Angelo Biviano’ (n 26); Angelo Biviano, ‘Second Affidavit of Angelo Biviano’ (n 25).
I find it implausible that after seeking legal advice, speaking with and having email correspondence with Ms Petsinis between 9 and 10 December 2019, Carol Sambucco did not communicate with her brother, the plaintiff in this proceeding. She asserted that she was motivated out of concern for her parents’ interests in the estate. That may well be the case, but that she did nothing about this information herself or on her parents behalf, and allegedly did not communicate this information in circumstances where she and the plaintiff had jointly sought legal advice, is significant. I do not accept this version of events.
The plaintiff denied that he was aware of the registration of the marriage or the attempt to have it registered and the action taken by Mara to seek letters of administration. However, in the context of all of the material before the Court, the value of the estate and the plaintiff’s family’s belief they were entitled to the estate, I find it inconceivable that action was not taken more promptly and that the plaintiff did not act in December 2019 after he sought and obtained legal advice with his sister. I do not find his denials plausible.
Carol Sambucco sought to impugn the veracity of the email exchange between herself and Mary Petsinis which occurred between 9 and 10 December 2019. I do not accept that Carol Sambucco had a different version of the email from Mary Petsinis[28] as she specifically refers to the email by exhibit reference in her own sworn affidavit.[29] No other version or alternative email was produced.
[28]Mary Petsinis, ‘Affidavit of Mary Agatha Anne Petsinis’ (n 24) Exhibit MP-13.
[29]Carol Sambucco, ‘Affidavit of Carol Sambucco’ (n 25) [15].
Both Carol and Robert were in attendance at the ceremony conducted on 8 June 2019. Carol Sambucco produced a transcript of part of a video recording which she took on 8 June 2019 after the ceremony in which what appears to be a short speech is being made by Mara and Mark. The Court was urged to conclude that the comment ‘this is a rehearsal but, but the vows are legit’ is evidence of an admission and recognition by the second defendant that the couple did not intend to marry at the ceremony on 8 June 2019.
I do not accept that this is the only reasonable conclusion to be drawn from this evidence. No doubt the couple would have preferred a much larger celebration of their union and this appears to be something that they hoped to do in the future. It is not conclusive that this ceremony was not intended to be a marriage nor accepted by them both as such. The more extensive transcript of the recording makes this patent.[30]
[30]Carol Sambucco, ‘Second Affidavit of Carol Sambucco’ filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 30 September 2020, Exhibit CS-5.
I do not accept the suggestion that the text message sent by the second defendant to Carol on 7 June 2019 was evidence contrary to a finding that they intended the ceremony to be a marriage.[31] Many an invitation has led to a surprise wedding being the feature of a planned or impromptu invitation to a gathering of family or friends.[32]
[31]Carol Sambucco, ‘Affidavit of Carol Sambucco’ (n 25) Exhibit CS-2.
[32]Mara Sambucco, Third Affidavit of Mara Sambucco filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 2 October 2020, [2]-[5].
It is important for timely access to justice that a party act promptly to take steps to protect their interests. I am not persuaded that there was insufficient information provided to the plaintiff and the other members of the family who serve to benefit from the proposed proceeding nor that they acted on it in a timely manner.
The knowledge and timeliness of action are factors to be taken into account. In this case, I am not persuaded that these factors favour an extension of time.
The strength of the plaintiff’s case
As I have previously set out, the existence of a manifest or strongly arguable case of administrative or legal error may be a relevant consideration. A manifest excess of jurisdiction can amount to special circumstances.
However, I am also not persuaded that the plaintiff has a strong case on the merits of the argument in any event.
There is a contested issue as to whether a plaintiff in these circumstances has standing to bring such an attack on the Registrar’s entry and issue of certificate. This is considered later in this judgment. I put that issue to one side at present for even if the plaintiff has standing, I am not persuaded that there is a strongly arguable case of administrative or legal error.
The real controversy raised by the plaintiff is the challenge to the lawful marriage between Mark Sambucco and the second defendant. It is the effect of a valid marriage on the 2015 Will as a consequence of the operation of s 13 of the Wills Act which is the motivating and key issue for the plaintiff. The attack on the registration of the marriage by the Registrar of Births, Deaths and Marriages is in essence a collateral attack.
The registration of a marriage under the BDM Act does not establish whether or not a marriage was validly solemnised under the Marriage Act, nor does a certificate issued by the Registrar in accordance with s 46(2) of the BDM Act provide conclusive proof that the marriage was solemnised. Consequently, the registration of the marriage and issue of certificate by the Registrar does not provide conclusive evidence of whether or not a marriage occurred for purposes of s 13 of the Wills Act. This raises the question of utility of the proceeding. Even if there were a certificate of marriage issued by the celebrant pursuant to s 50 of the Marriage Act, pursuant to s 45(4) of the Marriage Act that certificate is not conclusive that the marriage ceremony took place where that fact is put in issue. This circumstance is a factor which the Court is entitled to take into account in exercising discretion to extend time.
Even if this were not sufficient to undermine the strength of the plaintiff’s claim, I am not persuaded that the review of the Registrar’s determination ought to be considered beyond power when the BDM Act is considered as a whole.
The question of the proper ambit of the enquiry that this Court is to make in this review proceeding is an important initial consideration as it goes to the extent to which the evidence sought to be relied upon by the parties is open to the Court’s consideration.
Counsel for the Registrar presented the characterisation of the Court’s task on alternative bases. First, that the proceeding raised a fundamental doctrinal question, being whether a marriage is a jurisdictional fact that conditions the Registrar’s powers. Alternatively, that the question of marriage was not a jurisdictional fact but a question of the Registrar’s satisfaction that the marriage between Mark and the second defendant did occur – the distinction bearing upon the evidence that the Court may consider in completing its decision-making task. Whereas the former enables any evidence to be adduced, the latter confines the Court to material that was before the Registrar to determine whether there was some defect in the reasoning or the decision-making by the Registrar. Consistent with the Registrar’s position relative to the proceeding, no particular interpretation was urged.[33] However, recognition was given that notwithstanding the words of the BDM Act suggesting that the objective fact of a marriage having occurred appears to condition the Registrar’s power, that a strong opposing argument exists, flowing from a complete reading of the Act that in fact, the relevant task is not concerned with the objective reality of a marriage but rather, the satisfaction of the Registrar that a marriage has occurred.
[33]Transcript of Proceedings, (n 23) 69 (Mr Brown).
I am of the view that the task and legal obligation of the Registrar is the latter.
The task of the Registrar is to be reasonably satisfied of the happening of the event to be registered. This may be done by proof by way of the usual statutory documents, or when those documents are not available, by sufficient documentary or other proof.
I have formed this view by considering the legislative scheme and the powers available to the Registrar under the BDM Act.
The Registrar’s jurisdiction to register a marriage
A marriage solemnised in Victoria is required to be registered.[34] The same mandatory language is not used as to how this registration is to occur.
[34]Births, Deaths and Marriages Registration Act 1996 (Vic) s 31 (‘Births, Deaths and Marriages Registration Act’).
The registration ‘may’ occur upon the production of the marriage certificate issued pursuant to s 50 of the Marriage Act.[35] It is permissive, not compulsory. Clearly the production of the Marriage Act marriage certificate and the other documents completed in accordance with s 42 of the Marriage Act will make the task straight forward. There is in my view little doubt that it is also open to the Registrar to enter into the Register a registrable event on the basis of documents other than a Marriage Certificate. It is clear on the words used that the obligation is to register a registrable event. It is permissive however as to the evidence upon which that registrable event may occur.
[35]Ibid s 33.
The plaintiff submitted that the question of the jurisdiction of the Registrar was an important one, being one which affected the interests of the plaintiff and one which had general importance. It was submitted that it was necessary to consider the role and jurisdiction of the Registrar in order to resolve this proceeding.
The plaintiff argues that he has a strong case on a novel question of statutory construction. However, I am not persuaded that a case which might be unique and interesting is a factor overwhelmingly persuasive on its own, particularly in the context of the other relevant factors before me.
Whilst there may be a uniqueness in this case in that there has been no known interpretation of the task of the Registrar to enter a registrable event of the category in question here, and there is no known judicial exploration of the requirement or otherwise to afford a plaintiff who is a potential beneficiary under a will an opportunity to be heard so as to accord procedural fairness, this is not the vehicle to test those issues.
The plaintiff alleges that on the proper construction Part 5 of the BDM Act and in the circumstances the Registrar had no power to make the entry in the Register.
It was submitted that a fundamental factual issue and one necessarily anterior to the action of the Registrar was whether a solemnised marriage occurred on 8 June 2019. It was argued that a solemnised marriage is one which is conducted in compliance with the Marriage Act. Pursuant to s 45 if an authorised celebrant who is a Minister of religion conducts the wedding ceremony it must be conducted in accordance with the form and ceremony requirements recognised by that Minister’s religious body or organisation[36] and if the ceremony is not so conducted it does not give rise to a valid marriage at law[37] and that marriages which are invalid are void by reason of s 23B of the Marriage Act.
[36]Marriage Act (n 7) ss 41, 45.
[37]Ibid s 48(1).
It was said that there was no evidence before the Registrar of what was said by Rev Rock at the religious ceremony on 8 June 2019 and that his own affidavit demonstrated that the ceremony he performed did not conform with the rites of the Baptist church as required by s 45(1) of the Marriage Act.
Section 45(1) of the Marriage Act provides that where a marriage is solemnised by a Minister of religion it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he is a Minister. Allegations that a certain form of words were required to be said for the ceremony to be a valid commitment to marriage ignores the terms of s 46(2). Section 46 of the Marriage Act requires certain celebrants to explain the nature of the marriage relationship. However, in the case of a person authorised to solemnise marriage as a Minister of religion under s 46(2), that explicit statement as set out in s 46(1) is not required.
I do not consider that the plaintiff’s observation that he did not hear the Minister say anything such as he had heard at a wedding before including whether his brother took the second defendant to be his lawfully wedded wife or any pronouncement that they were now man and wife or anything other than general statements which might go to the nature of marriage[38] useful in making an assessment of whether the ceremony complied with the requirements of the Marriage Act. Section 46(2) demonstrates such statements are not always necessary where a Minister of religion officiates.
[38]Robert Sambucco, ‘Affidavit of Robert Sambucco in Support of Originating Motion’ (n 5) [49]; Carol Sambucco, ‘Affidavit of Carol Sambucco’ (n 25) [19]; Robert Sambucco, Outline of Submissions for the Plaintiff (n 22) [26].
I am not persuaded that there was no evidence before the Registrar is alleged. Rather, there was a statutory declaration signed by Rev Rock and a statutory declaration made by two witnesses.[39] There were also a number of other documents, including a chronology, a receipt for rings, photographs of the event, including a wedding cake and other material consistent with a wedding.[40]
[39]Mary Petsinis, ‘Affidavit of Mary Agatha Anne Petsinis’ (n 24) Exhibit MP-8. See also Reverend David Rock, ‘Affidavit of Reverend David Rock’ filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 8 September 2020.
[40]Mary Petsinis, ‘Affidavit of Mary Agatha Anne Petsinis’ (n 24) Exhibit MP-6.
Further, I disagree that any of the circumstances which are set out in s 23B(1) of the Marriage Act, which are the only grounds upon which marriages are void, have a prospect of being made out on the basis that there was no evidence of these matters before the Registrar.
I do not accept that it is the role of the Registrar, nor this Court on review to do more than establish that there are reasonable grounds to form the belief that a registrable event has taken place.
Nowhere in the BDM Act does it provide that the Registrar must take steps to categorically prove that a registrable event has taken place.
The obligation of the Registrar pursuant to s 41 is to maintain a register or registers of registrable events.
Where a marriage is solemnised in Victoria, the marriage must be registered under the BDM Act.[41]
[41]Births, Deaths and Marriages Registration Act (n 34) s 31.
A person may have a marriage registered by lodging with the Registrar a certificate of marriage under the Marriage Act[42] and the marriage may be registered by including the marriage certificate as part of the Register or including particulars of the marriage in the Register.[43]
[42]Ibid s 32.
[43]Ibid s 33.
Consequently, whilst the Registrar has an obligation to maintain the Register and a marriage solemnised in Victoria must be registered, the manner in which the marriage is registered may be by including the marriage certificate (being a document produced by reason of s 50 of the Marriage Act) or by including the particulars of the marriage. If the only manner in which registration of a marriage could occur was by production of a marriage certificate created pursuant to the Marriage Act there would be no reason to include s 33(b) in the legislation.
Consequently, the absence of a marriage certificate produced by a celebrant pursuant to s 50 of the Marriage Act does not preclude registration of a marriage by the Registrar where he has reasonable grounds to form the view that a registrable event has occurred.
The submission that the marriage is void because consent of the parties was not real as they were mistaken as to the nature of the ceremony involved[44] is not borne out by the evidence. Reliance is placed on the lack of the usual documentary evidence of procedural declarations as proof of this claim. However, as previously identified the lack of compliance with ss 42, 44 and 46 of the Marriage Act does not invalidate a marriage. Further, that registration of a marriage can occur by the entry of the particulars of the marriage, and not only by the production of a marriage certificate, demonstrates that this is inconclusive.
[44]Marriage Act (n 7) s 23B(1)(d)(iii).
The reference by Carol Sambucco in her evidence to the prospect of a later or larger wedding event is not conclusive of the effect of the 8 June 2019 ceremony as a marriage capable of being registered under the BDM Act.
One could pose the alternative proposition that in all of the circumstances what was the purpose of the ceremony conducted on 8 June 2019 if it were not a commitment made by Mark and Mara to each other to the exclusion of all others for life consistent with the definition of marriage under the Marriage Act. The documentary and other provisions under the Marriage Act are all capable of being forgiven and do not automatically operate to void a marriage.
It was conceded on behalf of the plaintiff that failure to comply with s 42 of the Marriage Act does not of itself invalidate a marriage.
Any misunderstanding by Rev Rock and the second defendant as to the compliance with the legal and technical requirements of the Marriage Act is understandable. Neither of them is a lawyer.
The submission made by the plaintiff that on the proper construction of Part 5 of the BDM Act the Registrar had no power to make an entry concerning a marriage which he could not have been satisfied was conducted in compliance with the Marriage Act is inconsistent with the definition of marriage in the Marriage Act,[45] and the obligation of the Registrar to register a registrable event.
[45]Marriage Act (n 7) s 5 defines marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life.’
Further, it is clear from the evidence of Rev Rock that he draws a distinction between a marriage pursuant to the documentary provisions of the Marriage Act and a marriage which makes a commitment to each other in the eyes of God. He is clearly aware that in the circumstances of Mark’s illness that the requisite notice and declarations could not be made in the time and in the documentary form usually required by the Marriage Act. However, he conducted a ceremony which committed Mark and the second defendant to each other in the presence of witnesses in accordance with the tenets of the Baptist faith.
The evidence of this was produced to the Registrar by way of the statutory declaration of Rev Rock.[46]
[46]Mary Petsinis, ‘Affidavit of Mary Agatha Anne Petsinis’ (n 24) [11], Exhibit MP-8.
The plaintiff contended that the correct legal construction of what occurred on 8 June 2019 must rest on an objective assessment of what was said and done in the ceremony together of evidence of contemporaneous intentions of the parties. For the reasons set out, I do not agree with this submission.
The Marriage Certificate issued by the Registrar
The VGSO acting on behalf of the Registrar noted that that the Marriage Certificate issued by the Registrar on 10 December 2019 ‘…merely certifies the particulars contained in the entry with respect to the marriage on the Register kept under the BDM Act’.[47]
[47]Affidavit of Jonathon Lean, filed in Sambucco v Registrar of Births, Deaths and Marriages Victoria and Anor, S ECI 2020 02908, 13 July 2020 [48].
This expression of the effect of the Marriage Certificate issued by the Registrar arises from s 46 of the BDM Act. Specifically, s 46(1)(a) refers to a certificate certifying particulars contained in an entry. Further, s 46(2) specifies that a certificate under s 46(1)(a) is admissible in legal proceedings as evidence of the entry to which the certificate relates and the facts recorded in the entry. It is not conclusive evidence of whether or not a marriage took place.
Further, a certificate prepared and signed in accordance with s 50 of the Marriage Act is conclusive evidence that the marriage was solemnised in accordance with s 45. However, nothing in s 45(3) of the Marriage Act makes a certificate conclusive as to the fact the marriage ceremony took place or the identity of a party to the marriage.[48]
[48]Marriage Act (n 7) s 45(4)(a)-(b).
The conclusion I draw from the operation of s 46 of the BDM Act and s 45 of the Marriage Act is that the question of whether or not there is a marriage is a question which is arguable in proceedings where the issue of the marital status of a person is in question, such as for proceedings brought in respect of a deceased’s estate.
Registrar’s powers of inquiry – procedural fairness
Section 42 provides that the Registrar may conduct an enquiry to find out whether a registrable event has happened, the particulars of a registrable event or whether particulars of a registrable event have been correctly recorded in the Register.[49] The Registrar may require a person to answer specified questions or provide information to him.[50]
[49]Births, Deaths and Marriages Registration Act (n 34) s 42(1)(a)-(c).
[50]Ibid s 42(2).
This provision applies to all types of registrable events which the Registrar is obliged to register not just in respect of marriage.
It is well established that in the absence of clear contrary legislative intention administrative decision makers must accord procedural fairness to those affected by their decisions.
I do not accept that the power of the Registrar to register a marriage or to issue a marriage certificate is a decision which is capable of affecting the rights of persons who are not parties to the marriage in the circumstances claimed here.
The ‘right’ said to be an issue in this proceeding is that of the plaintiff arising from his interest or expectation under the Will made by his brother in 2015. The plaintiff may be interested in whether or not there is a legal marriage between his brother and the second defendant which has the effect pursuant to s 13 of the Wills Act of invalidating the 2015 Will. I do not equate that interest as being equivalent to an interest in the decision of the Registrar to register the marriage under the BDM Act. As I have previously stated, the registration is not conclusive of the fact of the marriage but of the particulars contained in the entry with respect to the marriage. This does not prevent the plaintiff from challenging the validity of his brother’s Will or challenging the validity of the marriage in proceedings with respect to the Will.
Further, the fact that a certificate issued by the Registrar was used to support an application for a grant of Letters of Administration to the second defendant does not add weight to the plaintiff’s claim for procedural fairness to be afforded to him.
It is difficult to expand the operation of s 42(2) to be read so as to afford a third party an opportunity to be heard in respect of the Inquiry conducted by the Registrar, nor notice of the Registrar’s Inquiry to be given. The Inquiry is a power which is in the discretion of the Registrar and it is open to the Registrar to seek information relevant to an enquiry under that section.
Part 7 provides for the keeping of the Register,[51] the Registrar’s powers of Inquiry,[52] the correction and amendment of the Register,[53] and access and certification of Register entries.[54]
[51]Ibid s 41.
[52]Ibid s 42.
[53]Ibid s 43.
[54]Ibid ss 46, 48.
Part 7 Division 3 of the BDM Act provides that a person may apply to the Registrar for the addition, alteration or deletion of registrable information to an entry in the Register subject to payment of the prescribed fee. There is no provision for a third-party to require the Registrar to conduct an Inquiry. The only provision open to third parties is that in s 43(5).
If I am in error in this interpretation, on the evidence before me I would not be satisfied that the Registrar was in error in acting on the material he had before him in forming the view that a registrable event had taken place.
Failure to take into account relevant considerations
The plaintiff submitted that the Registrar was obliged but failed to consider whether or not the ceremony on 8 June 2019 was conducted in accordance with the Marriage Act. It was submitted that he had no evidence on this issue before him but determined to register the marriage and issue the marriage certificate.
Firstly, it is clear on the material provided to the Registrar that he did have information before him as to whether or not the marriage had been conducted in accordance with the Marriage Act and whether the provisions of s 42 of the Marriage Act had been complied with. As I have previously stated, the production of a Certificate of Marriage pursuant to s 50 of the Marriage Act would make the Registrar’s task relatively straightforward and commonplace. However, a marriage can be registered where such a certificate is not in existence. The evidence before the Registrar is evidence which allows the Registrar to form a view about whether a registrable event has taken place. I do not accept that the role of the Registrar on proper interpretation of Part 5 and Part 7 is that he makes a detailed and forensic enquiry as to whether without any doubt a marriage has taken place.
The submissions contained at paragraph 46 of the Outline of Submissions for the Plaintiff submitted that the Registrar was obliged but failed to consider whether or not:
(a) Mark and Mara intended to be lawfully married on 8 June 2019;
(b) whether the religious ceremony satisfied the formal requirements for lawful marriage;
(c) whether Mark and Mara understood what they were doing; and
(d) whether there were any persons who might be able to give evidence as to the events at the religious ceremony on 8 June 2019.
It was submitted that the Registrar had no evidence of any of these issues before him but determined to make the registration.
I disagree that this evidence was not before him. What is in effect being submitted is that there was the potential for contrary evidence to be placed before the Registrar. This is a different proposition to there being no evidence upon which the Registrar could register the event.[55]
[55]See Mary Petsinis, ‘Affidavit of Mary Agatha Anne Petsinis’ (n 24) Exhibits MP-6, MP-8, MP-10.
Irrelevant considerations
It was submitted on behalf of the plaintiff that irrelevant considerations have been taken into account by the Registrar. In particular, the statutory declarations of Nadia and Enio Centofanti were argued to be irrelevant as they could not rationally affect the Registrar’s assessment of whether what occurred on 8 June 2019 complied or otherwise with the Marriage Act. The submission on behalf of the plaintiff in this regard takes issue with the reliability of the statutory declarations based on the rules of evidence. There is no obligation on the Registrar to comply with the rules of evidence. He was entitled to take into account the material that he had requested and was provided to him.
Similarly, the irrelevance argument raised in respect of the Notice of Intended Marriage[56] is also based on evidentiary rules. It purports to give notice of an event which has already occurred and parts of the form designated for the celebrant’s use have only been completed by Mara, thus there is some force to the argument that there was no apparent reason for the Registrar to have requested it, save to have it apparently complete a documentary trail for the file. However, whilst the document is not completed in accordance with the Marriage Act, it does provide some of the particulars which are relevant to the Registrar’s decision. As failure to complete this document does not invalidate a marriage,[57] there is little weight in this submission.
[56]Ibid Exhibit MP-11.
[57]Marriage Act (n 7) s 48(2).
The Certificate of Commitment[58] was also argued to be irrelevant in that it did not comply in any material respects with the requirements for a Form 15 marriage certificate or an official certificate of marriage. Both of these documents are documents issued pursuant to the Marriage Act. Equally, as above the failure to complete these documents correctly or at all does not void a marriage. The Registrar would be entitled to take into account the Certificate of Commitment in making his assessment of whether a registrable event took place.
[58]Reverend David Rock, ‘Affidavit of Reverend David Rock’ (n 39) Exhibit DR-3.
I do not agree that the Registrar taking into account the documents impugn the determination to register the event as they all contribute to the circumstances which could reasonably lead to a conclusion that a marriage had taken place.
Justice to the parties
In the consideration of other matters such as the justice to the parties, I am not persuaded that there is an injustice to the plaintiff (or to the potential beneficiaries who are his family members) that an extension of time should be given. Even if the plaintiff was ultimately successful in persuading the Court that the Registrar was in error, the underlying and motivating issue is the dispute about the division of the estate.
There is no bar to the plaintiff or his family from seeking to prove the Will or challenge the letters granted to the second defendant and raising the issue of the validity of the marriage in those proceedings. The Marriage Act does not invalidate a marriage by reason of non-compliance with the documentary requirements set out in s 42.[59]
[59]Marriage Act (n 7) s 48(2).
Additionally, as already noted, the registration of the marriage by the Registrar is not conclusive proof of the marriage.[60]
[60]Births, Deaths and Marriages Registration Act (n 34) s 46(2).
In this sense the ‘justice’ to the parties does not lie in setting aside the entry in the Register and what might be seen as a punitive step in setting aside what no doubt the second defendant and a number of the witnesses believe was a marriage solely to access her partner’s estate.
I am not persuaded that there would be an injustice to the plaintiff as he has other litigation options available to him to challenge any entitlement to his brother’s estate.
Public interest in the finalisation of the litigation
The determination of this proceeding is highly unlikely to resolve the issue of the estate which is its motivating force. There is a public interest in the finality of litigation and the resolution of disputes in a timely way.
Time limits are set for a purpose. It is important that unless there are special circumstance established that there be prompt action and action which will resolve the real issues in dispute.
I am not persuaded that an extension of time to proceed further with this action is consistent with the public interest in finalisation of litigation and avoiding unnecessary litigation.
Standing
The second defendant challenged the plaintiff’s standing to bring the proceeding.
It was argued that the plaintiff’s asserted claim to have standing was misconceived as it was based on the decision of the Registrar to make an entry in the Register or to issue a marriage certificate as being a decision which is capable of affecting the rights of persons who are not a party to the marriage. The interest in the decision made by the Registrar was said to be the effect of s 13 of the Wills Act which can revoke a Will and thereby affect the rights of all beneficiaries of that Will.
It was argued by the second defendant that s 13 of the Wills Act is clear and unambiguous and that the act of marriage has the effect of revoking the Will of a testator. The registration of a marriage and the issuing of a marriage certificate did not have that effect at law.
There has been a grant of letters of administration in respect of the estate to the second defendant. The administration of the estate will not be affected by the cancellation of the entry of the marriage in the Register and the cancellation of the marriage certificate if those orders were to be made in this proceeding. The second defendant would still remain the administrator of the estate, the grant of letters of administration remain in place and the 2015 Will would still not be admitted to probate.
The plaintiff is not bound by the registration of the marriage in any proceeding by him against the second defendant to revoke the grant of letters of administration and to seek a grant of probate of the 2015 Will. Whether or not a valid marriage occurred, if that issue remains in dispute, could be examined before the Court in an appropriate proceeding.[61]
[61]In Thang v Lua [2019] FamCA 195 the Court analysed the circumstances of the wedding ceremony and declared that the marriage was void, and a decree of nullity was granted. There was no reference to the registration of the marriage.
Given my findings as to the strength of the merits of the claim, in particular that the registration of a marriage and the consequent issuing of a certificate of marriage are not conclusive of the fact of a marriage, I agree that the interest of the plaintiff in these decisions of the Registrar is misconceived. In these circumstances, standing cannot be properly established.
Conclusion
I am not satisfied that the plaintiff has established ‘special circumstances’ such as would justify an extension of time to bring the proceeding.
The setting aside of the determination by the Registrar to make an entry in the Register of the marriage between Mark and Mara and the issuing of a marriage certificate recording the fact of the entry in the Register does not achieve what the plaintiff seeks, which is to establish whether they were lawfully married.
I am not satisfied that there is sufficient merit in the claim nor that in the circumstances action was taken promptly and appropriately.
I refuse the application for extension of time.
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