ALQ March 2023 Supreme Court

Issue: March 2023

The Registrar of Births, Deaths and Marriages cannot “correct” a record of marriage inconsistently with the Marriage Act 1961 (Cth)

Attorney General for New South Wales v FJG [2023] NSWCA 34

The Attorney General intervened in an appeal before NCAT concerning the power of the Registrar of Births, Deaths and Marriages to “correct” an entry in the Register maintained under the Births, Deaths and Marriages Registration Act 1995 (“the BDMR Act”). The defendants sought to rely on s. 45(1)(b) (which authorises the Registrar to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event) to have the record of their marriage “corrected” to reflect a change of name and affirmation of sex by FJG, each of which occurred separately and subsequently to the defendants’ marriage in September 2009. The NCAT Appeal Panel referred questions of law to the Court of Appeal and the Attorney filed a summons seeking that the Court make declarations consistently with the referred questions.

The Attorney submitted that s. 45 of the BDMR Act is a limited power to “correct” the Register and that the BDMR Act and the Marriage Act 1961 (Cth) should be construed so as to give the scheme of registration of marriage an harmonious operation. The defendants submitted that material concerning FJG at the time of her marriage in September 2009 has emerged that corrects the (mis)understanding reflected by the entries in the Register. (It was common ground that, in September 2009, FJG was a “man” within the meaning of the Marriage Act 1961 (Cth) and that that particular and her former name were recorded on the official certificate of marriage issued under the Marriage Act 1961.

Beech-Jones JA (Bell CJ and Ward P agreeing) declared that s. 45 of the BDMR Act does not empower the Registrar to make the amendments sought, concluding that there is no power to vary the particulars of a marriage in a manner that is inconsistent with the “official certificate of marriage” produced under the Marriage Act 1961. His Honour also concluded that, in a merits review (such as the present case), there is no exercise of federal jurisdiction. so that NCAT is able to refer questions of law raising Commonwealth law or the Constitution to the Court under s. 54 of the Civil and Administrative Tribunal Act 2013.

The decision can be accessd here.

“Breed to race; race to breed”

Chief Commissioner of State Revenue v Godolphin Australia Pty Ltd [2023] NSWCA 44

At first instance, the Supreme Court held that the activities taking place on two of the four properties in NSW owned by the respondent fell within the statutory description of “land used for primary production” within the meaning of s 10AA(3)(b) of the Land Tax Management Act 1956, because they involved a dominant use of the land for “the maintenance of animals … for the purpose of selling them or their natural increase or bodily produce”.

On one property, stud activities took place on less than 10% of the total area. The remainder of the land was used to breed, train and rest or spell racehorses. The respondent’s motto was “breed to race; race to breed”. The Court held that the racing and breeding were an integrated operation with the overall or dominant purpose of increasing or maximising revenue from the nomination fees and sale of progeny, and this was the dominant use of the land.

The Court of Appeal upheld the appeal and confirmed the land tax assessments. It held that the racing operations dominated what occurred at the two properties, taking into account the activities on the land, the areas of land, the intensity and resources directed to the relevant purpose. On the evidence, the Court of Appeal came to a different view than the Court at first instance. Simpson AJA found that, while racing and breeding were intertwined activities or purposes, neither prevailed over the other and, on that basis, held that the respondent had failed to discharge its onus of proof.

The decision can be accessed here.

Suppression order lifted in relation to identity of party originally before MHRT

Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38

On 1 December 2015, the Court delivered judgment including a suppression order in relation to the identity of the applicant. Since that time, the applicant has been involved in various other proceedings in the Supreme and Federal Courts and in complaints to the Australian Human Rights Commission and the United Nations. The suppression order was variously said to be breached including by persons associated with the NSW Bar Council and the Attorney General (see Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131; “Z (No 2”)). As part of Z (No 2), the Court ordered that the suppression order be reviewed pursuant to s. 13(1) of the Court Suppression and Non-publication Orders Act 2010 (“the Court Suppression Act”).

Shortly prior to the review hearing, the applicant changed her position and sought the consent of the other parties to the suppression order being lifted. The decision of Kirk JA identified a number of “difficulties” with the suppression order, including the fact that the order could not be read literally, otherwise it would stop the publication of any information tending to reveal the identity of the applicant, not just in relation to the proceedings. Further, the order did not “specify the ground or grounds on which the order is made”, as required by s 8(2) of the Court Suppression Act, nor indicate its duration, as required by s 12(1) of that Act. Generally, circumstances had evolved since the making of the order.

Accordingly, the Court revoked the suppression order on the bases that: the suppression order was first made at the request of the applicant and the Attorney General, and the applicant no longer supported the order, whilst the Attorney General adopted a neutral stance; the applicant no longer perceived any benefit to maintaining the suppression order; there was a risk about the impact of the suppression order on the conduct of other proceedings, both ongoing and future; and, his Honour was not persuaded that the order was necessary to protect the applicant’s safety, the key consideration being s. 8(1)(e) of the Court Suppression Act, namely, whether it was “otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice”.

The decision can be accessed here.

No implied obligation to give reasons for ‘gateway’ function of the President of the Personal Injury Commission to refer medical assessment to review panel for further review

Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80

The plaintiff brought judicial review proceedings in relation to a decision by a delegate of the President of the Personal Injury Commission to refer a medical assessment to a review panel for further review, on the basis that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. Brief reasons for the decision were provided. The President appeared on a limited basis, to make submissions on the statutory construction question as to whether reasons were required for a ‘gateway’ decision under s. 7.26(5) of the Motor Vehicle Accidents Injuries Act 2017.

The plaintiff submitted that, given the nature of the function, there was an implied obligation to give reasons. The President contended that reasons were not required, relying on Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149, in which a similar function under s. 327(4) of the Workplace Injury Management and Workers Compensation Act was held not to attract an obligation to give reasons, at least where a matter is referred for further review.

The Court (Schmidt AJ) held that there was no implied obligation for the President to give reasons for a decision under s. 7.26(5), noting the existence of express requirements in respect of other decision-making functions under the Act and the Court of Appeal’s reasoning in Riverina Wines in respect of a similarly worded provision.

The decision can be accessed here.

Other decisions in this issue

• Constitutional Law
• GIPA
• Privacy
• Merits Review