Carr v Carr

1. [1]

   LEEMING JA: This is an application for judicial review of the decision by a delegate of the Secretary of the NSW Ministry of Health to decline to grant approval to two applications made by the plaintiff to exhume the remains of the late Thomas John Carr and the late Thomas Edward James Carr, who were buried in the same grave in a cemetery at Dubbo in 1966 and 1981. The plaintiff is the widow and mother, who for many years has applied to have the remains exhumed and buried in a cemetery at Wellington, where she herself intends to be buried. Her application is opposed by the five surviving children of the marriage, who want the grave of their father and their brother to remain undisturbed. The delegate’s essential reasoning was that approval should be withheld given the opposition from close family members. The proceedings were brought under s 69 of the Supreme Court Act 1970 (NSW), and were listed for hearing before me to hear and determine in the Common Law Division, exercising the powers of a Judge of this Court pursuant to s 31(3) of that Act.

2. [2]

   As will be seen below, an important aspect of the plaintiff’s claim is the distinction between the two applications to exhume remains from the same grave. Given that her deceased husband and child shared the same given name, I shall for clarity follow the approach taken in written and oral submissions and refer to the “Husband” and the “Son”.

3. [3]

   The ultimate issue underlying this litigation is of the utmost seriousness to all family members, who have been divided for many years. On the one hand, the plaintiff gave evidence of her Roman Catholic faith, of her husband’s conversion and the baptism of her children, and the trying circumstances when both her husband and son met their untimely deaths, in both cases unexpectedly. On the other hand, the oldest surviving son Paul, who was joined to the litigation on his own motion late last year (Carr v The Secretary of the NSW Ministry of Health [2021] NSWSC 1467), gave evidence that he and his siblings lived in Dubbo, and tended the grave, and of the cultural significance of his father and brother being buried in the country of their ancestors. In response, the plaintiff gave evidence that she too had tended the grave, and that she was a Wradjuri Elder, and that if the remains were removed to Wellington they would still be located on Wradjuri country. There was also conflicting evidence of the way the plaintiff had brought up her children, the reasons for the rift in the family, the plaintiff’s motivation for bringing her application, whether removal of remains was or was not contrary to traditional custom, and indeed whether, as a matter of traditional custom, the surviving children of the marriage had a right to be heard or whether it was the plaintiff’s exclusive decision (for example, the plaintiff adduced evidence that an Elder had told her “the cultural position is that your children have nothing to do with it”). Most of this evidence had not been placed before the Secretary’s delegate, and much was inadmissible at a final hearing. The inconsistencies (which are numerous) need not be summarised in any detail, let alone resolved, because the issue for determination is not what was the decision the Secretary’s delegate should have made, based on all the evidence now available. Nor is it what was the decision the Secretary’s delegate should have made based on the materials before her. The litigation in this Court is far removed from the merits of the case.

4. [4]

   This Court is not engaged in merits review of the delegate’s decision, or even an appeal from that decision. These proceedings require determining a much narrower question, namely, whether there is judicially reviewable error in the delegate’s decision to withhold approval. If so, the decision will be quashed and the plaintiff’s application remitted to the Secretary for determination in accordance with law. Without in any way deprecating its significance to the parties, the evidence referred to above is only marginally relevant to identifying jurisdictional error or error of law on the face of the record without which the plaintiff’s claim will fail. Accordingly, both sides agreed that it was appropriately admitted subject to a limiting order confining it to issues of materiality and futility in accordance with what has been said in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [2]-[4] and [45]-[50] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2].

5. [5]

   For the same reason, the submissions in this Court were in large measure focussed upon a narrow point based on what may seem to some to be a peculiarity of the legislative regime. The plaintiff’s central contention was based on the proposition that her children were not “nearest surviving relatives” in relation to the application relating to the Son, whilst she was. This contention gives rise to issues of fact and of law. It was said to have vitiated the delegate’s decision in a variety of ways, principally that it was irrational or unreasonable to have regard to the children’s opposition. It was also said to have been procedurally unfair to have accepted submissions from them without first giving the plaintiff notice of that.

Factual and procedural background

1. [6]

   In order to explain the operation of the legislative regime, the grounds of review and the issues arising for determination, it is necessary to say something about the family history. I do not regard anything in the section which follows, ultimately, to be controversial. A contention which had been prominent in the plaintiff’s affidavits, including her affidavit in reply, about whether the Son was the oldest or the youngest of her three sons was withdrawn after the discrepancy with the rest of the evidence including the Husband’s death certificate was raised during the hearing following a short adjournment for obtaining instructions (T20.27-30). There is a disputed issue concerning the location of the grave, which I shall address in due course separately.

2. [7]

   I am also conscious of the fallibility of human memory over time, and the fact that the burials took place more than 55 and 40 years ago. In what follows I have for the most part relied on contemporaneous documents, rather than testimonial evidence.

3. [8]

   Their marriage certificate discloses that the plaintiff, Ms Johanna Daley Carr and her husband married on 25 April 1959 in St Patrick’s (Roman Catholic) Church, Wellington. The plaintiff had been born in Wellington on 2 December 1940, and was baptised at the same church in 1944. Her husband had been born at Dubbo District Hospital on 13 January 1938 and his father had also been born in Dubbo, according to his birth certificate. Dubbo and Wellington are some 50km distant. Although the plaintiff stated that her husband had converted to Roman Catholicism, the marriage certificate described the marriage as “mixed”, and had occurred through dispensation.

4. [9]

   There were six children of the marriage: Johanne Gay, Elizabeth Margaret, Maryanne, Thomas Edward James (now deceased), Paul and George Stephen. There is nothing in the evidence to suggest that the marriage was anything other than happy. The plaintiff said that the family lived in different areas in central west New South Wales, including Dubbo, Wellington, Cobar and Nyngan, depending on where her husband, who was employed on the railways and by the Department of Main Roads, was working.

5. [10]

   Tragically, Thomas John died following being treated for cancer of the eye on 29 August 1966 in Royal Prince Alfred Hospital Camperdown. The death certificate stated his usual residence to be Dubbo. The plaintiff was left as a widow aged 25 with six children aged between 3 months and 7 years. Although the document was not in evidence, it was accepted that shortly after her husband’s death, the plaintiff at her mother in law’s request authorised her husband’s body to be buried in “Old Dubbo Cemetery”. The plaintiff’s affidavit refers to this as “the Church of England Cemetery in Dubbo (now the Old Dubbo Cemetery)” (affidavit 2 December 2021, para 12); I return to this below. It is accepted that the plaintiff’s mother in law contributed to the cost of the grave site; there is a dispute in the evidence as to whether the plaintiff paid for part of it herself. Nothing turns on this.

6. [11]

   The plaintiff and her family returned to live with her own family in Wellington for a few weeks, but she applied for housing in Dubbo and, when that became available, they moved to Dubbo where they lived for the next 24 years. In late 1967, the plaintiff commenced a relationship which resulted in three further children. That relationship ended in about 1975. The plaintiff never remarried.

7. [12]

   The death certificate of the fourth child and oldest son of the marriage, Thomas Edward James, states that he died of the effects of myocardial infarction due to coronary sclerosis on 23 March 1981, aged 17. He had been in Minda Remand Centre in Sydney for the previous fortnight. It is necessary to summarise some of the evidence bearing upon the Son’s final months of life, because it founds the plaintiff’s principal argument that her surviving children are not “nearest surviving relatives”.

8. [13]

   An extract of a report into the Son’s death carried out by the Royal Commission into Aboriginal Deaths in Custody described a series of relatively minor offences as a young teenager for illegally using motor vehicles, escalating to breaking and entering into premises in Dubbo, theft, and, finally, possession and discharge in a public place of a shortened firearm, the latter leading to his detention in Minda. Prior to being detained in Minda he had been committed to five months in Yawarra Training School near Maitland, from which he was discharged in September 1979. He left school at the end of 1979 after completing Year 10, but was convicted of taking and using a motor vehicle in April 1980, and spent four months in Mt Penang Training School near Gosford. The extract of a report prepared for the Royal Commission tendered in evidence concludes with a broken off sentence which from its context may refer to investigations into any underlying heart condition (“As Thomas had been admitted to Minda twice previously there were two medical cards for him. These noted that investigations had been made in 1977 at Royal ...”).

9. [14]

   The report also includes a verbatim extract of the Children’s Court notes for 9 March 1981, when bail was refused, as follows:

10. [15]

    One inference which may be drawn from those notes is that the Crown was urging against a further grant of bail to a person accused of discharging a shortened firearm whilst on bail for break, enter and steal, and that a matter bearing upon that was that he was not living with his mother, and that the Son or his legal representative had said that he was living with his mother and had never previously failed to appear.

11. [16]

    There was direct testimonial evidence from the plaintiff and Paul in this Court on the Son’s residence in late 1980 to the effect that from around October-November 1980 until around 9 March 1981, he lived with a girlfriend and her family in Dubbo. There was also evidence that Paul was also at that time living with Thomas’ girlfriend and her family. Neither deponent was cross-examined.

12. [17]

    Finally, I note that there is nothing in the evidence to suggest that any will made by the Husband or the Son was ever admitted to probate.

13. [18]

    The plaintiff’s evidence was that she had no financial means to purchase a burial plot in the Catholic section of Wellington Cemetery at the time of the sudden and unexpected death of the Son, and had no option but for him to be buried with the Husband.

14. [19]

    It is not in dispute that the gravestone names the Husband, but not the Son. There is evidence that the plaintiff offered to obtain a new headstone, but that it was expensive, and asked her youngest son (George, known as Stephen) whether he and his siblings could assist. The plaintiff said that Stephen called her not long after and said “We aren’t going to put money towards the headstone, you’ll take it and drink it”.

15. [20]

    There has been a long history of applications made by the plaintiff to exhume the remains of the Husband and Son over the last 15 years. The delay is not especially relevant to the outcome of this litigation, although it is important to the members of the Carr family. The position is as follows.

16. [21]

    The plaintiff made applications under cl 37 of the Public Health Regulation 1991 (NSW) in 2007 and 2008. There is some evidence that those applications were refused by a parliamentary secretary, although if so, the document constituting those decisions was not in evidence. There is also some evidence that an injunction was obtained, or threatened to be obtained, by the siblings preventing the exhumations, although there is also evidence that no formal order of the court was ever served. The only relevance of this is that the surviving children’s objections to the exhumation applications are long-standing.

17. [22]

    More recently, the plaintiff made applications in 2016 and 2018 pursuant to cl 70(2) of the Public Health Regulation 2012 for approval to exhume the remains, with the intention that they be re-interred in a burial plot in the Roman Catholic Cemetery at Wellington, where she herself intends to be buried. These were the applications which give rise to this litigation.

18. [23]

    A statutory declaration accompanying the 2016 application stated: “it is my intention to have my husband and son’s coffins transferred from the Old Dubbo Cemetery to the Wellington Lawn Catholic Cemetery”. The plaintiff has acquired a burial licence in respect of what is described in her affidavit as “Plot no 15, in row H3 at Wellington Lawn Catholic Cemetery”. A copy of the licence is annexed. Nothing turns on it, but I understand this to be a reference to the Roman Catholic section in Wellington Lawn Cemetery which is managed by the local council.

19. [24]

    Just as there is a very long history of applications by the plaintiff, so too there is a very long history of objection by the surviving five children of the marriage, or at least some of them. The plaintiff’s 2016 statutory declaration stated:

20. [25]

    A letter from the Greater Western Area Health Service dated 14 October 2008 advised Wellington Funeral Home that:

21. [26]

    The more recent applications by the plaintiff were accompanied by her statutory declaration made on 5 July 2018. She attached to that declaration the letter of 17 March 2008 recording some of her children’s objections. She said:

22. [27]

    The plaintiff said she was unaware of any injunction and that, following enquiries she believed no such injunction had been sought or made. She identified various enquiries she had made and stated that “my daughters and or son no longer dispute my decision and have not provided any formal objection in writing in 2018 or 2017 [sic]”. It would appear that statutory declarations by two children accompanied the letter, both of which stated that they withdrew their objection to the exhumation.

23. [28]

    The annexures included a page listing nine names, including the five surviving children of the marriage, with signatures against the names Johanne Gay, Elizabeth, Maryanne, and Geraldine. The page was otherwise blank.

24. [29]

    The materials also included a statutory declaration made by the plaintiff’s former solicitor, which included the following:

25. [30]

    The declaration gave an explanation for the breakdown in relations between mother and children. The solicitor stated that although Paul Carr had “direct knowledge” that the solicitor was assisting his mother in the exhumation process, he had not been informed of any further objections from the children. The declaration referred to the need for urgency given the plaintiff’s age, the fact that the conflict with her children was making her even more upset, that she had acquired a plot in the Wellington Lawn Cemetery and that “she is also open to [the] option of being cremated with her late husband and son” if her primary request for burial at Wellington with her not be granted.

26. [31]

    An application for exemption to the requirement for documentation for cremation to proceed, which was also before the decision maker, dated 4 January 2017, stated, in what appears to be the plaintiff’s hand:

27. [32]

    A separate document, seeking exemption in respect of the husband’s body, again in what appears to be the plaintiff’s hand, stated that “three children who are not next of kin” objected to the cremation, and added that they had “no valid reasoning” and “family dispute with the daughters Maryann Carr, Johanne Gay Carr and Elizabeth Carr”.

28. [33]

    Those materials were sent to the Western NSW Local Health District on 10 August 2019. On 15 August 2019, an officer in the department sought clarification concerning the page with the signatures for Johanne, Elizabeth, Maryanne and Geraldine, with the other rows left in blank. There was apparently no response, leading to a follow up email on 22 August 2019. The solicitor explained on 24 August 2019: “this document was in the context of who was not against Mrs Carr’s proposal to previously apply to exhume her late son and late husband’s human remains”.

29. [34]

    By email dated 5 September 2019, the relevant officer replied “at this point we cannot approve the application by Ms Carr unless we have statements from all the children (who originally objected) that state they [withdraw] their objection to the exhumations”.

30. [35]

    The next piece of correspondence appears to be an email from the former solicitor dated 6 February 2020 stating that the plaintiff was of the view that her five surviving children of her marriage “would no longer object to this exhumation as they have lost interest in challenging their mother for this application”. The solicitor asked whether it would be sufficient to write letters to the children and “if they failed to respond, then it would imply no objection to the exhumation application”.

31. [36]

    On 14 February 2020, the officer said he had followed up with the NSW legal branch and his manager and suggested letters be sent by registered post and that those letters and proof of their being sent be provided as part of the application process.

32. [37]

    The evidence does not disclose whether that occurred. However, by letter dated 2 February 2021, new solicitors acting for all five surviving children of the marriage wrote to the Western NSW Local Health District advising that they disputed and did not consent to any application relating to the exhumation of the remains of their late father and brother.

33. [38]

    On 26 May 2021, the plaintiff’s current solicitor wrote, relevantly, as follows:

34. [39]

    As requested, a decision was made promptly, by letter dated 2 June 2021, by the Secretary’s delegate, the Director Public Health for Western NSW/Far West Local Health Districts. No issue arises as to the validity of the delegation. The material paragraph of the decision was:

Proceedings in this Court

1. [40]

   Proceedings were commenced shortly thereafter. Reasons were provided in accordance with r 59.9(2) of the Uniform Civil Procedure Rules 2005 (NSW). The reasons identified the correspondence summarised above, the material attached to the letter dated 4 January 2017 and that contained as the “full and final complete, relevant documents required for an application for exhumation” supplied on 10 August 2019. It also referred to the subsequent correspondence with the plaintiff’s solicitor and with the solicitors retained by the five children. The statement of reasons annexed NSW Health Policy Directive PD2013_046 and stated that the delegate had had regard to it as well as to all the circumstances in the case. Under the heading “Reasons for Decision”, the delegate stated:

2. [41]

   As previously noted, the oldest surviving son Paul was joined as the first defendant to the proceedings, and the Secretary became the second defendant.

3. [42]

   Ultimately, the second further amended summons, leave for which was obtained without opposition at the hearing on 4 February 2022, advanced nine grounds of review. There was a deal of overlap in those grounds, and some were less than felicitously expressed. The central contentions advanced by the plaintiff were that the decision was unreasonable or irrational and had been made without according procedural fairness.

4. [43]

   The unreasonableness ground focussed upon what was said to be the public health purpose of the legislation. There being no suggestion of any risk to public health standing in the way of the plaintiff’s application, it was according to the plaintiff unreasonable or irrational for it not to have been granted. It was put thus in oral submissions:

5. [44]

   The plaintiff submitted that by identifying with precision the class of people entitled to apply to exhume the remains of a dead person’s body, coupled with the content of the application form and the purpose of the statute, the regulations should be understood as (a) evincing an intention that only members of that class of people were entitled to object, and (b) that the Secretary or the Secretary’s delegate would err by having regard to objections from any other person. It followed, according to the plaintiff, that no regard should be had to objections from persons who were not “nearest surviving relatives”. A further consequence was that the two applications should have been decided separately.

6. [45]

   The plaintiff also submitted that it was to be inferred that the delegate was swayed by the mere fact that the five surviving children of the marriage were more numerous than the plaintiff, and that this was unreasonable, arbitrary, irrational and not according to law.

7. [46]

   Still further, it was said that the adverse decision had been made without according procedural fairness to the applicant. This was put principally on the basis that if the delegate was not to accept the submission that the surviving children of the marriage were not “nearest surviving relatives” in relation to the application to exhume the remains of the Son and whose objections therefore were to be disregarded, then she should have been given notice of that possibility.

8. [47]

   Notwithstanding the variety of submissions ultimately advanced, Mr Crossland, who appeared for the plaintiff, fairly submitted at the close of the hearing that the principal point turned on the distinction advanced in the letter dated 26 May 2021 reproduced above that the five siblings were not “nearest surviving relatives” in relation to the application to exhume the remains of their deceased brother. As it was put:

9. [48]

   It is not necessary separately to summarise the submissions advanced in response by Mr Pulsford, who appeared for the Secretary and Mr Vuu, who appeared for Paul, which will be apparent from the analysis below. Before doing so, it is convenient to deal with a controversial matter, which arose after the hearing, and was addressed in written submissions provided pursuant to leave.

The location of the grave

1. [49]

   There is a discrepancy in the two death certificates. That of the father states that his body was buried in the “Church of England Cemetery, Dubbo”, and identifies the minister as “W H McAlister, Church of England”. That of the son states that he was buried at the “Old Catholic Cemetery, Dubbo”, and does not record who officiated at the ceremony. It was however common ground that both bodies were buried in the same grave, and I so find.

2. [50]

   Considerable importance was ascribed to the location of the grave in the plaintiff’s affidavits, where prominence was given to her Roman Catholicism (there was also some evidence of canon law). In particular, the plaintiff gave the following evidence:

3. [51]

   On 11 February 2022, my Associate sent a letter to the parties’ representatives including the following:

4. [52]

   Neither defendant made any submission to the contrary. However, on 16 February, the plaintiff drew attention to the inconsistencies in the death certificates, and submitted on the basis of the death certificate of the Father that:

5. [53]

   Although it is plain that “Old Dubbo Cemetery” is maintained today by the local council, I have considered what the reference to “the Church of England Cemetery in Dubbo (now the Old Dubbo Cemetery)” might connote. There is only one way in which, so far as I can see, this might be potentially relevant. That is whether the remains were buried on consecrated ground.

6. [54]

   In the United Kingdom, to this day, whether the remains of a body are on consecrated or unconsecrated ground is the starting point for analysis in a case such as this, notwithstanding the unfamiliarity of the concept. The Arches Court of Canterbury stated at the commencement of its analysis in Re Blagdon Cemetery [2002] Fam 299; [2002] 4 All ER 482 at [10] that “[t]he difference between consecrated and unconsecrated land is not widely known or understood”. The Court thereafter explained at [11]-[17] the nature of the dedication of land for a religious purpose involved in consecration, the difference in terms of jurisdiction (for the consistory court generally only has jurisdiction in respect of burials in consecrated ground) and in the test to be applied (traditionally, an application for a faculty authorising remains buried in consecrated ground to be reinterred in unconsecrated ground would be refused, for the reasons given by Dr Tristram QC Ch in Re Talbot [1901] P 1 at 5, namely, because this would be “sanctioning the removal of remains from a place of burial under the special protection of the Ecclesiastical Courts to a place of interment under the protection of no Court”).

7. [55]

   The history of church involvement in burials in this country is quite different from the position in the United Kingdom. For one thing, there are very few churches with attached burial grounds, for it was ordered at a very early stage, by local statute of 1825 (6 Geo IV c 21 s 10) that after 1 January 1826, “no Burial shall take place within the walls of any Church or Chapel of any denomination whatsoever nor within the limits of any town otherwise than in any Burial Ground which may be set apart for such purposes and which Burial Ground must be distant one mile at the least from any town or township”. For another, s 5 of the same statute recognised that an Archdeacon’s court had been established (to the Registrar of which records of baptisms, marriages and burials had to be sent annually). In fact it had been created by an Order in Council dated 2 October 1824, subordinate to the Bishop of Calcutta, with the Archdeacon holding an ex officio seat in the Legislative Council: see p 6 of the volume Legal Nexus which was admitted as evidence (over the objection of Kitto KC) in Wylde v Attorney-General (NSW) (1948) 78 CLR 224; [1948] HCA 39. The same volume describes how the Archdeacon (William Broughton) became Bishop of Australia when New South Wales and Van Dieman’s Land were severed from the Diocese of Calcutta and the Bishopric of Australia was created (by Letters Patent dated 13 June 1834 and 18 January 1836). Thus a local statute of 1839 (3 Vic No 23, s 2) recited “whereas the Archdeacon’s Court has been discontinued since the establishment of the Bishopric of Australia”. The early history is described by Dixon J in Wylde at 284-285, who then stated at 285 and 286 that while “an ecclesiastical jurisdiction did exist in New South Wales”, eventually “[t]he Ecclesiastical Court was disused and forgotten”. One explanation of how a jurisdiction may come to be obsolete was given by Goddard LJ in Blunt v Park Lane Hotel Ld [1942] 2 KB 253 at 257-259. While a court does not cease to exist merely because of decades or centuries of disuse (see Manchester Corporation v Manchester Palace of Varieties [1955] P 133 at 149) it seems that subsequent colonial statutes dealing with the Church of England and its property are to be regarded as inconsistent with the continued existence of that court. Even so, as Young J observed in Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 at 277, there is unresolved question as to whether, and if so, the means by which and the extent to which, ecclesiastical law was applicable in colonial New South Wales. But I do not need to address that question, in light of the evidence bearing upon the location of the grave.

8. [56]

   The most precise evidence of the location of the grave shared by the Husband and the Son is found in a letter to the relevant environmental health officer from the plaintiff’s former solicitor, who was involved in the matter for some years, dated 4 January 2017. The solicitor referred to the site “at Old Dubbo Cemetery in the GENERAL SECTION; R4(B) ROW 4”. The local council’s website has a downloadable map of “Old Dubbo Cemetery” (at https://www.dubbo.nsw.gov.au/households-residents/health-safety-and-education/cemeteries/cemetery-locations). The plan shows a cemetery of roughly rectangular shape, divided by a central main driveway, with separate areas to the left and right of the central driveway labelled “R1”, “L1”, “R2”, “L2” and so forth. L1 and R1 are Presbyterian or Methodist, L2 and R2 are Church of England or Episcopalian, L3 and R3 are Roman Catholic, and R4(b) is “General”. The document was not in evidence but it satisfies s 144(1)(b) of the Evidence Act 1995 (NSW), and it was drawn to the parties’ attention in the email from my Associate on 11 February 2022.

9. [57]

   The description “General Section; R4(B)” is in an affidavit prepared by a solicitor. The affidavit reads as if the solicitor had personal knowledge of the matters to which she deposed. She had acted pro bono for the plaintiff for at least the period May 2016 to May 2020 (Exhibit A, pp 42 and 78). It is corroborated by the cemetery plan.

10. [58]

    One historian, from whose work I have been considerably assisted in preparing this judgment, has described the shift from single denominational burial grounds to general cemeteries in the mid-nineteenth century, as “swift”, with the last single denominational burial ground being granted in 1867: L Murray, “Cemeteries in nineteenth-century New South Wales: Landscapes of Memory and Identity” (Ph D thesis submitted to University of Sydney, August 2001), p 86. The thesis readily falls within the class of “serious studies and inquiries and historical narratives” to which the Court may have regard: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196. It is extensively based on primary historical documents.

11. [59]

    Old Dubbo Cemetery conforms to “[t]he standard general cemetery design with a central avenue and seven denominational allotments, that was first circulated in 1859 [and which] was applied to nearly all rural general cemeteries surveyed in the late nineteenth century” to which Dr Murray refers at p 96 of her thesis. In cemetery after cemetery established in the second half of the nineteenth century, the largest area was allocated to Church of England, with substantial allocations to General and Roman Catholic, and much smaller areas for Presbyterians, Wesleyans, Independents and Jews. The thesis reproduces plans for cemeteries at Cudal (dedicated 1870), Jamberoo, Windsor and Condobolin (dedicated 1877) which conform to this pattern. This reflects the “two standard designs for general cemeteries” contained in the NSW Surveyor General’s Department Regulations for the employment of Licensed Surveyors 1882 (reproduced on p 88 of the thesis) and, ultimately, the calculations based on the 1856 census that, in an 8 acre cemetery, 2½ acres should be allocated to Church of England, 2½ acres to the General Cemetery, 1½ acres to Roman Catholic and much smaller areas for other denominations (p 88 of the thesis reproduced an 1859 circular from the NSW Surveyor General’s Office explaining this).

12. [60]

    Seven and a half acres of Crown land were dedicated as the “General Cemetery” at Dubbo on 15 August 1871, pursuant to s 5 of the Crown Lands Alienation Act 1861 (NSW): see Government Gazette, 15 August 1871, p 1779. Separate groups of men were appointed as trustees to the separate denominational areas, and to the non-denominational “general” area, by notice published in the Government Gazette on 12 October 1877 (p 3963):

13. [61]

    It is perfectly plain that, contrary to the plaintiff’s submission, there was no “Church of England cemetery” on the location of what is now known as Old Dubbo Cemetery in 1966 or 1981. Since 1877, there has been a general cemetery on that site.

14. [62]

    But there is and always has been a Church of England section within the general cemetery, and it would be quite understandable if that is how the plaintiff’s evidence is to be understood. There was ample scope for confusion here, between “the General Cemetery” which “applied to the total area set apart and subdivided for a Cemetery” and a “General Burial Ground” which was “that portion of the General Cemetery set apart for the public generally, without reference to creed”, as the Secretary for Lands explained in 1872 (New South Wales Legislative Assembly, Votes and Proceedings, 18 December 1872, p 80).

15. [63]

    However, I do not accept the plaintiff’s submission that the Husband’s and Son’s grave was in the Church of England section of the general cemetery, for these reasons. First, it is common ground that the grave is located in what is now the general section of the cemetery (in the section described as R4(B)). Secondly, there is no reason to doubt that there has been a general non-denominational burial ground within the general cemetery now known as Old Dubbo Cemetery since the appointment of trustees in 1877, just as there has been a Church of England denominational section within the same cemetery. Thirdly, there is no basis for inferring that what is now the general section was, in 1966 or 1981, part of the Church of England section, and every reason to think that there was continuity in the various denominational and non-denominational areas. Fourthly, against this the plaintiff proffers her longstanding and unchallenged understanding “that her Husband had been buried in a place inconsistent with the requirement of the religion to which he had converted”. But burial in the general section of what is now Old Dubbo Cemetery, as opposed to the Roman Catholic section, is consistent with that understanding. In any event, the plaintiff’s recollection is far from faultless. She is 82, and unwell. Further, despite Paul’s affidavit identifying the names and dates of birth of her six children, the plaintiff was permitted to make an affidavit in reply maintaining that the Son was her youngest child, a matter which was very properly withdrawn when raised during the hearing.

16. [64]

    I am comfortably satisfied that neither the Husband nor the Son was buried on consecrated ground. Their shared grave is not located within the Church of England section of what is now known as Old Dubbo Cemetery. Rather, it is and always has been located in the “General” section of that cemetery. I do not accept that that conclusion is altered by the absence of cross-examination. There is no difficulty in a case such as the present, where the plaintiff’s affidavit is inconsistent with the best evidence as to the location of the grave and where it may readily be inferred that there has been an unintentional error, in preferring the more reliable evidence even though the plaintiff was not cross-examined; in such cases courts are not obliged to accept uncross-examined evidence: see for example Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [69] and [71].

17. [65]

    I have considered whether it is necessary to draw to the plaintiff’s attention the gazettals relating to the dedication of the Crown land and appointment of trustees to separate areas of the cemetery. The plaintiff's submission that there was a “Church of England Cemetery” in 1966 which later became the general cemetery known as Old Dubbo Cemetery was made for the first time after judgment was reserved, in response to the email from my Associate. Before making that submission, it was open to the plaintiff to undertake a search for the dedication of Crown land or appointment of trustees to Crown land that would support or falsify the submission. The documents are readily and freely available. They attract the operation of s 153 of the Evidence Act 1995 (NSW). I infer that that did not occur. Even so, if this issue were dispositive of any aspect of the litigation, I would be inclined to raise it with the parties again, despite the additional delay and cost which would be incurred. It is however of minimal significance to the outcome of the litigation, carrying the consequence that it is unnecessary to address the impact (if any) which would flow from the applications for exhumation relating to consecrated ground, for there is no reason to conclude that the general (non-denominational) section of the cemetery was ever consecrated, and every reason to infer that it was unconsecrated.

18. [66]

    In short, the resolution of this litigation does not turn on the history of Old Dubbo Cemetery, but rather upon the construction of the contemporary legislative provisions.

Applicable legislative regime

1. [67]

   The Public Health Regulation 2012 (NSW) is made pursuant to a power conferred by s 134 of the Public Health Act 2010 (NSW). The objects of the statute are contained in s 3. They address public health. They are “(a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health, [and] (f) to monitor diseases and conditions affecting public health.” Consistently with this s 3(2) provides that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act”. The plaintiff prayed in aid this elaborate recitation of public health purposes, none of which was engaged in the exhumation applications, in support of her submission that wider considerations such as the opposition of her children were irrelevant.

2. [68]

   Part 8 of the regulations is titled “Disposal of bodies”. Clause 49 contains the following definition of “nearest surviving relative”:

3. [69]

   It may be noted that cl 71(1A) was inserted in 2018 (by the Public Health Amendment (Exhumations) Regulation 2018 (NSW)), with effect from 21 December 2018. At that time the plaintiff’s applications had been made but were undetermined, and thereafter there were continuing exchanges between the relevant officer and the parties’ solicitors. There seems to be nothing in the 2018 regulation expressly directed to whether new paragraph (1A) applied to undetermined applications which had been lodged beforehand. I incline to the view that as a procedural provision, directed to the Secretary, it applied to all decisions made after its commencement. That might be controversial, in light of the broad approach to “rights” which are taken as being accrued pursuant to s 30 of the Interpretation Act 1987 (NSW) and its counterparts, and the fine distinctions which may regularly be seen in questions of this nature (see for example Newell v The King (1936) 55 CLR 707 at 711-712; [1936] HCA 50 and Mathieson v Burton (1971) 124 CLR 1 at 24; [1971] HCA 4). On the view I take, nothing turns upon this.

4. [70]

   The plaintiff’s earlier applications were made under the previous regime. Division 4 of Part 5 of the Public Health Regulation 1991 was materially identical to Part 8 Division 4 of the current regime, although it lacked the power to dispense with aspects of the application and it lacked the obligation upon the Secretary to impose conditions considered necessary to ensure the remains were treated with dignity and respect now found in cl 71(1A).

5. [71]

   The plaintiff placed some weight on the content of the “approved form” mentioned in cl 70(2). The applications were in all cases made in handwriting on forms supplied by the department. The form was titled “Form C70”. The form required the applicant to identify whether he or she was the executor, the nearest surviving relative, or another proper person in the absence of an executor or nearest surviving relative, to attach a death certificate and a statutory declaration, which was required to explain the applicant’s relationship to the deceased, “the wishes of the deceased regarding the disposal of the body (if known)” and “the reasons why the Director-General may consider me the proper person in all the circumstances to make the application (if applicable)”. The form also required the applicant to give his or her reasons for seeking permission to exhume the remains.

6. [72]

   Most recently, s 66(1) of the Cemeteries and Crematoria Act 2013 (NSW) provides:

7. [73]

   Subsection (2) imposes further conditions upon the conduct of any exhumation. I do not see how s 66 takes the matter any further, save to confirm the primacy of Part 8 of the regulations.

8. [74]

   The crux of the plaintiff’s submissions in this Court reflected the contentions in the letter of 26 May 2021. It has never been in dispute that the plaintiff was a “nearest surviving relative” both as the spouse of her deceased husband and as a parent of her deceased son. It has also never been in dispute that the five siblings are “nearest surviving relatives” in relation to the application to exhume the remains of their deceased father. However, only if one or more of the siblings were residing with their brother when he died would they fall within the description of “nearest surviving relative” in respect of the application to exhume his remains. This gives rise to issues of fact and of law.

9. [75]

   I did not understand anyone to suggest that the Son should be regarded as residing at Minda, where he spent his final days. According to the report tendered by the plaintiff, he was admitted to Minda on 10 March 1981, and the death certificate states he died on 23 March 1981. Plainly he had no settled intention to live there, and he did not reside there of his own free will.

10. [76]

    The plaintiff’s primary submission was that the Son had, for the purposes of the regulation, been “residing” with his girlfriend and her family, in the weeks prior to his arrest and detention, and on that basis none of his siblings was a “nearest surviving relative”.

11. [77]

    If the Son was still regarded as residing at the family home in the second half of 1980, then it is likely that Paul would also be regarded as residing there, as well as the youngest son George, who was then aged around 13. It may be noted that the Son’s death certificate stated that his usual residence was the same residential address in Dubbo as that of his mother.

12. [78]

    Paul’s evidence was that he too had been living in the girlfriend’s family household, and thus was a nearest surviving relative. However, the quality of the Son’s residence with the family of his girlfriend may well have been quite distinct from the quality of Paul’s residence in the same dwelling.

13. [79]

    No party advanced submissions on the test for satisfying the “residing” limb of the definition. The word has a range of meanings, as may be seen from In re Cowan [1913] SALR 55, a decision on a provision cognate with s 76 of the Probate and Administration Act 1898 (NSW) authorising a grant of special letters of administration when an executor is residing out of the jurisdiction, which bears some resemblance to the issue posed by cl 70. Similar questions arise in a wide range of statutory contexts, sometimes where additional certainty is provided by references to “ordinary residence” or “habitual residence” (for example, Re Taylor; ex parte National Australia Bank Ltd (1992) 37 FCR 194 at 98 and LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 at [25]). The parties’ submissions proceeded on the basis that either the Son was “residing” with the family, or with his girlfriend’s family, and did not address the possibility (recognised by Lockhart J and the High Court in the passages cited above) that he might reside in both places simultaneously. I have summarised the evidence bearing upon this above; understandably it does not descend to this level of detail.

14. [80]

    The delegate did not purport to determine whether the surviving children of the marriage were or were not nearest surviving relatives of the Son. On the view I take, this litigation can be resolved without exploration of the factual and legal issues bearing upon “residing” in the final limb of the definition of “nearest surviving relative”.

15. [81]

    It is as well to mention immediately one textual aspect of the construction of cl 70. Clause 70(1)(a) and (b) distinguish between “an” executor of the dead person and “the” nearest surviving relative of the dead person.

16. [82]

    The shift from “an” executor to “the” nearest surviving relative may seem minor, but it is the sort of change which prima facie is unlikely to be legally insignificant. Legislation (including delegated legislation such as the Public Health Regulation 2012) is construed on the working assumption that the drafter is skilled and conscious of the possibility that this sort of change in language is apt to suggest a change in legal meaning. Similar considerations informed Nettle J’s judgment in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [108]; see also Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 at [28] and Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 at [18]. That said, the shift in language is minor, and syntactical analysis has its limits as a component of statutory construction, as Lord Diplock emphasised in Tolley v Morris [1979] 1 WLR 592 at 603.

17. [83]

    As it happens, the textual variation in cl 70(1) corresponds with a familiar legal hierarchy in a cognate area. The three limbs in cl 70(1) broadly correspond with the classes of persons with the right to dispose of a body.

18. [84]

    First, if a will appoints an executor, who is ready, willing and able to arrange for disposal of a body, then that executor has the right to do so (and notwithstanding the absence of a grant of probate). This was the first of Young J’s 15 propositions in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693. It is not free from controversy (especially where the executor’s preferences diverge from those of a spouse or close relative: see generally Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116), but it is well grounded in the United Kingdom and Australian authorities.

19. [85]

    Secondly, in the absence of an executor named in a valid will, then traditionally the right to dispose of the body devolves to the person with the strongest claim to letters of administration. This was Young J’s fourth proposition, although as explained in G Dal Pont, Law of Succession (3rd ed, LexisNexis 2021) pp 430-433 and K Falconer, “Australian Burial Law 25 Years on from Smith v Tamworth City Council” (2022) 96 Australian Law Journal, forthcoming, some inroads have been made into that rule in recent years.

20. [86]

    Thirdly, if there is no person within the first or second classes, then the householder where the death occurs has the responsibility for burying the body. This was Young J’s 7th principle in Smith v Tamworth City Council, sometimes associated with The Queen v Stewart (1840) 12 Ad & E 773; 113 ER 1007.

21. [87]

    Those three classes broadly speaking correspond with the three classes of persons identified in cl 70(1).

22. [88]

    The potential significance of this is that it may explain the use of the indefinite article in cl 70(1)(a) and the definite article in cl 70(1)(b). Broadly speaking, where there are co-executors, one can act separately from others: see Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44. Passing over the qualifications, it may be seen that that accords with the reference to “an” executor. However, where there are no executors but rather competing persons claiming a right to obtain letters of administration, then it is the claimant with the strongest claim who has the right to bury the body.

23. [89]

    On that view, the class of people identified in cl 70(1) might be regarded as not including all persons who are “nearest surviving relatives”, but rather “the” nearest surviving relative being the person best entitled to obtain letters of administration.

24. [90]

    During the course of the hearing, I drew attention to the contrast between the indefinite and definite articles in cl 70(1).

25. [91]

    The disavowal of any reliance upon the distinction between indefinite and definite articles was, notwithstanding what has been summarised above, the correct course.

26. [92]

    As counsel appreciated, there will be many circumstances where there are more than one “nearest surviving relatives”. All of the children of a deceased parent are nearest surviving relatives. Both of the parents of a child who predeceases them will be nearest surviving relatives. If an application were not able to be made by any person who is a nearest surviving relative, but rather had to be made by the person who is the nearest surviving relative with greatest claim to obtain letters of administration, then the Secretary’s delegate would in the case of many applications be confronted with a difficult, and possibly impossible determination as to the applicant’s standing. There is no occasion to construe the regulation in a way which would produce such needlessly arid disputation.

27. [93]

    The wording of the provision permitting application to be made by “an” executor or “the” nearest surviving relative” has remained unaltered for some decades. As previously noted, the predecessor regulation, cl 37 of the Public Health Regulation 1991 (published in Gazette No 159, 15 November 1991) was in identical form. Its predecessor was the Public Health (Funeral Industries) Regulation 1987 (NSW) (published in Gazette No 159 of 9 October 1987). Part 4 was headed “Exhumations” and was much more specific (and reflects some of the detail found in Beard v Baulkham Hills Shire Council; in particular, r 33(6) provided that if application was made more than 14 days after the original burial, approval was only possible if the application was made after more than 7 years had elapsed). The class of people who might apply was materially identical, save for the fact that “the nearest surviving relative” was not defined.

28. [94]

    Returning to the current legislative regime, it is clear that there will commonly be a number of people who answer the description “nearest surviving relative”. The position may, perhaps, have been different under the 1987 Regulation where there was no definition, but although it is somewhat awkwardly expressed, it is nonetheless difficult to see why a person who satisfies the defined term “nearest surviving relative” should be excluded from making an application on the basis that he or she is not “the” nearest surviving relative. Another way of making this point is that if the definite article in cl 70(1)(b) required identifying a single person, then that would be difficult to reconcile with the disjunctive text of the definition. It is not unusual when a definition is read into the substantive enactment in accordance with Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103] for there to be some “logical or grammatical infelicities”: see Commissioner of Police v Kennedy [2007] NSWCA 328 at [44] and Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [13], but that does not warrant curtailing the explicitly disjunctive limbs of the definition when they are read into cl 70(1)(b).

29. [95]

    In order to reflect the terms of the definition, and to avoid the need to make findings as to which close family member is “the” nearest surviving relative, cl 70(1)(a) should be construed in accordance with the plaintiff’s submission, so as to permit any “nearest surviving relative” as defined to make application.

30. [96]

    I do not accept that the materials to which the Secretary’s delegate may have regard are circumscribed in the way in which the plaintiff contends. Nor do I accept that the Secretary was obliged to accede to a valid application brought by a closest surviving relative which was not opposed by any other closest surviving relative and where there were no public health concerns.

31. [97]

    The question in each case is one of statutory construction. It is whether the discretion conferred by cl 71(1) to grant or refuse an approval is impliedly constrained by limitations not expressed on the face of the regulation. The issue whether restrictions are to be implied into a generally worded decision-making power is far from unfamiliar. As the Secretary submitted, Dixon CJ observed in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473; [1963] HCA 54 that where a discretion is conferred without defining the grounds on which it is to be exercised “the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case”. Those principles have often been applied, including in New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 at [3] and [53].

32. [98]

    The Secretary also relied upon Mason J’s statement in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 that:

33. [99]

    There is nothing express in the statute to circumscribe the matters to which the Secretary may have regard, once a valid application has been made. Nor is there anything in the statute to oblige the Secretary to accede to a valid application, or even to create a presumption that a valid, unopposed application will be acceded to.

34. [100]

    Contrary to the plaintiff’s submission, I do not accept that the Secretary is restricted to considerations which bear upon public health. Clause 72 makes it plain that public health considerations are relevant, by ensuring that a staff member or authorised officer of the Ministry is present and empowered to cause the exhumation to stop, but it does not sustain the implication that the matters which the Secretary may consider are thereby circumscribed.

35. [101]

    It turns out that there is authority on this point. The Court of Appeal of England and Wales considered the refusal to grant judicial review of a decision of the Secretary of State for Justice to grant a licence under s 25 of the Burial Act 1857 (UK) which would permit an exhumation in Rudewicz, R (on the application of) v Secretary of State for Justice [2013] QB 410; [2012] EWCA Civ 499. Section 25 provided that “(i) Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, (ii) it shall not be lawful to remove any body, or the remains of any body, … without licence under the hand of [a Secretary of State]”. Section 25(iii) made it an offence to remove a body contrary to this enactment. The similarities with cl 69 are clear, save that the British legislation has to deal with the possibility of the separate ecclesiastical jurisdiction in the case of exhumations involving consecrated land.

36. [102]

    Lord Neuberger, then Master of the Rolls, said with the agreement of the other members of the Court of Appeal at [30]-[31]:

37. [103]

    True it is that in that case judicial review was sought of the decision to grant an approval, and the appellant submitted that the Secretary had adopted a practice which all too readily acceded to such applications, with the Court rejecting that submission. But the reasoning on the approach to construction on a cognate statute is persuasive, and accords with the principles reproduced above.

38. [104]

    The plaintiff’s reliance on the form of the application takes the matter no further. Indeed, the form explicitly requests information which goes beyond considerations which bear upon public health, including the reasons for the application and the wishes of the deceased.

39. [105]

    It will be recalled that the subject matter was the first consideration mentioned in the passage from Peko-Wallsend reproduced above. The subject of the application is the exhumation of a dead body. The Secretary’s written and oral submissions referred to “the traditional hostility of the common law to the exhumation of bodies”, which was “informed by considerations of decency and human respect”: BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 at [113]. That was said in the context of reinstating an artificial person to the register, but Spigelman CJ referred to a series of cases including Beard v Baulkham Hills Shire Council, where Young J wrote to the same effect concerning the exhumation of the bodies of natural persons. His Honour there said that even though the burying of a body might be a breach of contract between the cemetery authority and the person with the exclusive right to burial, the court would not order its disinterment. His Honour added at 280:

40. [106]

    In Re Blagdon Cemetery at [18]-[19] it was said that whether the disposal of a dead body has been by burial or cremation, it has been a feature that “the disposal has had an aura of permanence about it”, that “the general concept of permanence is reflected in the fact that it is a criminal offence to disturb a dead body without lawful permission” and that the fact that there is no ownership of a dead body and no right to exhume a body or its cremated remains “reflects a culture in which the norm is that the remains of a dead person should not be disturbed once they have undergone the initial act of interment”. I respectfully agree. When the funerals of each of the Husband and the Son took place, it would likely have been understood by all present that this was to be the final resting place.

41. [107]

    The foregoing is also reflected in the fact that the plaintiff is seeking approval to do that which would otherwise be an offence. It was an offence at common law to exhume a dead body without lawful authority, however laudable the reason. “At common law it is an offence to take up a body, even if it be for the laudable object of dissection”: R v Feist (1858) Dears & B 590 at 598; 169 ER 1132 at 1135 (Willes J). It seems tolerably clear that the common law offence must be taken to have been supplanted by the statutory offence now found in cl 69 and its precursors, for how can an offence with an unlimited penalty at common law survive the creation of an offence with identical elements and a maximum penalty of 20 penalty units (cf Chung v R [2007] NSWCCA 231; 175 A Crim R 579). The same point was made in Rudewicz at [21], although it was unnecessary for the court to reach a concluded view in that appeal. But whether the source of the criminality of unauthorised exhumation be common law or statute, it tends to suggest that exhuming the remains of a dead person is to be regarded as exceptional.

42. [108]

    The applicant’s further submission is that in the case of the application for consent to exhume the remains of the Son, the views of the surviving children of the marriage are irrelevant. That would be a decidedly capricious result. It turns on the proposition that the Son had left home shortly before he died and is taken to have been residing with the family of his girlfriend. Not lightly would the Court accept a construction of the regulation which made the surviving children’s views relevant if the Son had not left home some months before his untimely death, but irrelevant if he had been residing at another location at the time of his death.

43. [109]

    It is also a result carrying with it the potential for consequences which ought not lightly to be accepted, in accordance with the obligation to seek to avoid improbable results in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321; [1981] HCA 26. Let it be assumed that the plaintiff is right, and the Secretary’s delegate is obliged to accede to the plaintiff’s application to exhume the remains of the Son, and to ignore the protests of the surviving children. The remains would then be exhumed and re-interred in Wellington. The plaintiff is highly likely to predecease some or all of the surviving children of her marriage. If and when that occurs, then those surviving children will become the sole “nearest surviving relatives” in respect of their deceased father, and in the absence of any nearest surviving relative of their deceased brother, they will also answer the description in cl 70(1)(c) in relation to an application to re-exhume his remains. Thus, if the plaintiff’s submissions are correct, then it would seem to follow that the surviving children would be entitled as of right to re-exhume the Son’s remains and return them to Dubbo. Not lightly would a court reach that result. This strengthens the conclusion that the objections of the surviving children were not irrelevant to either exhumation application.

44. [110]

    The delegate did not expressly decide whether the surviving children of the marriage were “nearest surviving relatives”. But it was not necessary for her to do so. The submissions made by the surviving children of the marriage were not irrelevant to the application for consent.

45. [111]

    There was no error in the delegate not deciding that issue, because nothing turns on it. It would be material if Paul were an applicant, but he and his siblings were objecting to the applications made by his mother who unquestionably was a “nearest surviving relative”. The delegate’s discretion was not circumscribed by the views of persons who were nearest surviving relatives.

46. [112]

    In accordance with principles in Klein v Domus Pty Ltd and Peko-Wallsend, there is no sound basis to imply an unstated restriction upon the matters to which the Secretary’s delegate may have regard in determining whether to approve an exhumation which, absent the Secretary’s approval, is an offence. The surviving children’s opposition was not irrelevant. There is nothing to suggest that the decision turned on the number of children who objected, as opposed to the fact that they objected.

47. [113]

    The plaintiff’s solicitor’s letter contended that each application “must be dealt with separately”. The same submission was advanced in this Court. I disagree.

48. [114]

    The applications were to exhume the remains of the Husband and the Son, buried in the same grave in 1966 and 1981, for the purpose of re-interring them in a different cemetery, once again in the same grave. The applications were made by the same applicant, on the same days, and for the same purpose. It was open to the delegate to consider them jointly, in circumstances where, for the reasons already given, the delegate was entitled to have regard to everything said in support of one application as bearing upon the other. I think this follows as a matter of course; why ever should the regulations be construed in a way that mandates an artificial separation of two applications so plainly linked? But in any event it is supported by the interpretative rule that references to the singular in an instrument include references to the same word in plural form: Interpretation Act 1987 (NSW), s 8(b); thus the power to “refuse the application” in cl 71(1)(b) extends to a power to refuse both applications made by the plaintiff.

49. [115]

    If the Secretary’s delegate’s decision was not constrained by reference to submissions from “nearest surviving relatives”, then it was said that it was procedurally unfair for the decision to have been made without first communicating that to the plaintiff. I disagree.

50. [116]

    The plaintiff knew that there were objections from her children, and indeed had repeatedly disclosed as much to the Delegate. There may be occasions where, during the course of considering an application, a fresh issue arises, with the result that procedural fairness requires notice of that issue to be given to the applicant and a further opportunity to be heard. But the general rule is that it is unnecessary for decision-makers to disclose their thinking processes or proposed conclusions: see M Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017), pp 561-568.

51. [117]

    In the present case, the plaintiff knew that her children had been objecting to her applications for more than a decade, knew that those objections appeared on the face of the material supplied by her to the Department, and must be taken to have known that there was a possibility that the decision-maker would not accept either or both of her submissions that (a) the two applications were required to be determined separately, and (b) the decision-maker was required to disregard the children’s objection when determining the application to exhume the remains of the Son. The tenor of the letter of 26 May 2021 is to indicate opposition to the taking into account submissions made on behalf of the surviving children of the marriage in determining the application to exhume the remains of the Son. That carries with it an appreciation that the Secretary’s delegate might proceed on that basis.

The individual grounds of review

1. [118]

   The precise grounds of review in the second further amended summons were as follows.

2. [119]

   These grounds were less than ideally drafted, although no objection was taken to their form. There are three aspects to this.

3. [120]

   First, from an evidentiary perspective, it is often important to know whether the ground amounts to jurisdictional error, or error of law on the face of the record. If the latter, the material which is relevant will be confined to the record. This has been repeatedly emphasised (see Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [26]). But it is difficult to see how any error of law by the Minister’s delegate, in the facts of this case, would not be jurisdictional. Nothing in the legislation suggests that the Secretary was “given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law”, to apply the language of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82], and thus for good reason the thrust of the plaintiff’s submissions were directed to jurisdictional error. It follows that (a) it is unnecessary to consider whether the deeming provision in s 69(4) of the Supreme Court Act that the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination, which applies to decisions of a “court or tribunal”, applies to the delegate’s decision, and (b) it is unnecessary separately to consider the plaintiff’s claim of error of law on the face of the record.

4. [121]

   Secondly, the requirement in the rules is to “state ... with specificity, the grounds on which the relief is sought”: UCPR r 59.4(c). The grounds appear to go out of their way to conflate distinct grounds of review. By way of example, ground 1A alleges Wednesbury unreasonableness and appropriately extends to embrace what has been said about illogicality and irrationality in decisions such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 including at [10]-[11], [59], [87]. However, by adding “not according to law or the decision involved a defective use of power which was ultra vires” the ground appears to be adding two separate grounds of review.

5. [122]

   Thirdly, the grounds should be clear on their face. Contrary to what an ordinary reader might understand on the face of grounds 1D and 1E, which complain that the decision was “not according to the law because the delegate failed to give consideration to whether or not the objecting siblings were the ‘nearest surviving relatives’ of the Son”, counsel for the plaintiff made it clear that it was not alleged that there was failure to have regard to a Peko-Wallsend mandatory relevant consideration (transcript, 4 February 2022, p 12).

6. [123]

   That said, the formulation of the grounds has not prejudiced the plaintiff in any way. I mention the above by way of explanation for why these reasons take the course of identifying the propositions of law which are central to the plaintiff’s case, rather than proceeding ground by ground.

Summary of conclusions

1. [124]

   It was open to the delegate to determine both applications simultaneously, having regard to the entirety of the material supplied by both the plaintiff and the children of the marriage. It was not necessary to determine whether one or more of the children of the marriage were the “nearest surviving relatives” of the Son because even if they were not, their views were relevant to both applications. I note that in Re Blagdon Cemetery it was stated at [36] under the heading “Local support” that “the views of close relatives are very significant”; it is open to decision makers under the New South Wales regime to follow the same approach. There was nothing unreasonable or irrational about determining that where the views of the surviving children were diametrically opposed to those of the plaintiff, her applications should be refused. There is nothing to sustain the inference that the decision was based on the number of children objecting, as opposed to the fact that they were objecting.

2. [125]

   It was not necessary to provide advance warning that the delegate might not accede to the plaintiff’s submission that the delegate could not have regard to the views of the surviving children for at least two reasons. The first is that it was not material, because the submission is wrong in law. The second is that the delegate was under no obligation to indicate in advance the approach she would take.

3. [126]

   It was open to the delegate to adopt as a general approach (from which departures might be made in any particular case) that:

Orders

1. [127]

   For those reasons, the plaintiff has failed to show judicially reviewable error in the decision of the Secretary’s delegate to refuse to grant approval for both of the applications. The second further amended summons must therefore be dismissed.

2. [128]

   Costs ordinarily follow the event. The Secretary did not seek costs. Paul sought his costs. However, I would depart from the usual rule in UCPR r 42.1. First, Paul only incurred costs because of his decision to intervene in the litigation. He was not joined when the proceedings were commenced, and I did not understand that he was (or even that he contended that he was) a necessary party. Secondly, Paul took the sensible approach of adopting and not repeating the submissions made by the Secretary, and making only short written and oral submissions. Thirdly, there is nothing to suggest that a costs order is worth anything. The plaintiff’s evidence is that she has been struggling to save funds to pay for a burial plot in Wellington. There is nothing to suggest she has any means to pay an adverse costs order, if indeed Paul has incurred a liability for what I understand to be his pro bono legal assistance. That fact may not itself carry any great weight. However, the notion that the plaintiff’s estranged children should be placed in a position to have a costs order assessed and ultimately executed upon their mother, in circumstances where Paul has disclosed in paragraphs 41 and 44 of his affidavit that his solicitors have been acting for him pro bono for the last year, and where the only defendant originally sued by the plaintiff did not seek costs, seems contrary to the proper exercise of the discretion as to costs.