Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2014] NSWCATAP 3
• Hearing dates: 23 December 2013
• Decision date: 14 February 2014
• Jurisdiction: Appeal Panel
• Before: M Chesterman, Principal Member; S Montgomery, Senior Member; Z Antonios, General Member

Decision

1.The appeal is dismissed.

2.The cross appeal is dismissed.

3.The Appellants' application is to be relisted in the Administrative and Equal Opportunity Division in the circumstances stated in Order 3 of the decision under appeal or on the application of any party giving three days' notice.

• Catchwords: Application for review of decision under Births, Deaths and Marriages Act 1995; - jurisdiction - concurrent proceedings in District Court - whether application should be stayed
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Births, Deaths and Marriages Act 1995; Civil and Administrative Tribunal Act 2013
• Cases Cited: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412; Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 121 ALR 373; Australian Building Construction Employees' and Builders Labourers' Federation v Master Builders' Association of New South Wales (1989) 69 ALR 515; Betta Industries Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 68; Briginshaw v Briginshaw (1938) 60 CLR 336; Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67; Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16; Dayeian v Davidson (2010) 76 NSWLR 512; [2010] NSWCA 42; McCallum v Federal Commissioner of Taxation (1997) 145 ALR 446; Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154; OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196; PC v University of New South Wales (GD) [2005] NSWADTAP 72
• Category: Principal judgment
• Parties: OnePath Life Ltd (First Appellant/First Cross Respondent); Allianz Australia Life Insurance Ltd (Second Appellant/Second Cross Respondent); Suncorp Life and Superannuation Ltd (Third Appellant/Third Cross Respondent); NSW Registry of Births, Deaths and Marriages (First Respondent/Fourth Cross Respondent); Sergy Gerasimov (Second Respondent/Cross Appellant)
• Representation: Counsel; S Walsh (Appellants/First, Second and Third Cross Respondents); P Bingham (Second Respondent/Cross Appellant); M Iacuzzi, Turks Legal (Appellants/First, Second and Third Cross Respondents); M Hill, Crown Solicitor's Office (First Respondent/Fourth Cross Respondent); T Cobban, Maurice Blackburn Lawyers (Second Respondent/Cross Appellant)
• File Number(s): 139037, 139040

Decision under appeal

• Citation: OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196
• Date of Decision: 2013-08-30 00:00:00
• Before: General Division
• File Number(s): 133166

reasons for decision

Introduction

1 These appeal proceedings have many unusual features and require extended consideration.

2 The decision under appeal ('the ADT's decision') was given in the General Division of the Administrative Decisions Tribunal ('ADT') by the President of the ADT, Judge Kevin O'Connor. It was published on 30 August 2013 and is reported as OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196. The principal orders made by the ADT comprised the rejection of an objection to jurisdiction and an order staying the proceedings pending resolution of concurrent proceedings in the District Court.

3 An appeal against the stay order and a cross appeal challenging the rejection of the objection to jurisdiction were heard by us, sitting as an Appeal Panel of the ADT, on 23 December 2013.

4 On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of an Appeal Panel of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

Outline of facts

5 The ensuing outline of relevant facts is based in part on the account given in paragraphs [1] to [9] and [18] to [21] of the ADT's decision.

6 The three Appellants/Cross Respondents are insurance companies. Henceforth, we will refer to them (as the ADT did) as 'the insurers'. The First Respondent/Fourth Cross Respondent is the Registrar of Births, Deaths and Marriages ('the Registrar'). The Second Respondent/Cross Appellant, Sergey Gerasimov, is the executor named in the will of Vladimir Ivanovich Safronov.

7 On 10 March 2011, the Registrar made an entry in the Births, Deaths and Marriages Register ('the Register'), recording the death of a person named as Vladimir Ivanovich Safronov. Mr Safronov was an Australian citizen of Russian origin. Having been resident in New South Wales for some time, he travelled to Russia in October 2009. The entry in the Register stated that on 7 March 2010 he died, aged 47 years, at Kharkov in the Ukraine.

8 Section 36(4) of the Births, Deaths and Marriages Registration Act 1995 ('the BDMR Act') authorises the Registrar to make an entry in the Register of a foreign death of a person ordinarily resident in New South Wales. But section 38(1)(d) stipulates that a foreign death may only be registered on the basis of one or more documents that the Registrar considers to be 'equivalent' to a notice (such as a doctor's certificate) of the type required when registering a death occurring in this State. The text of these and other relevant provisions of the BDMR Act is reproduced below.

9 In registering Mr Safronov's death, the Registrar relied on official documents, such as a Certificate of Death and a Crematorium Certificate, that had been issued in the Ukraine. These stated that a morgue in that country had received a corpse identified as that of Mr Safronov by a person, Oleg Zhirnoklev, who claimed to be a friend of his. Mr Gerasimov had provided these documents to the Registrar during February 2011.

10 On or about 24 February 2011, Mr Gerasimov applied to the Registrar for a death certificate relating to Mr Safronov. The Registrar issued a certificate bearing the standard certification that it was a true copy of particulars recorded on the Register. It was dated 19 March 2011.

11 Each of the insurers had issued a life policy to Mr Safronov during 2007. They were separate policies, each with a death benefit of $400,000.

12 In his capacity as executor, Mr Gerasimov claimed payment of the amount due under each of the policies. In letters written on 21 February, 1 March and 16 March 2011, the insurers declined his claims. They maintained that documentation that they themselves had obtained from the Ukraine included (a) a photograph of a deceased man that purported to be a photograph of Mr Safronov but clearly was of someone else and (b) material relating to this photograph that ascribed an incorrect date of birth to him. They enclosed copies of this photograph and accompanying documentation.

13 In letters dated 25 or 28 March 2011 to the insurers, Mr Gerasimov's solicitors agreed that the deceased man shown in the photograph was not Mr Safronov and that the date of birth was incorrect. They maintained, however, that the 'death certification material' of Mr Safronov, which the Ministry of Home Affairs in the Ukraine had provided to Mr Gerasimov, and the death certificate dated 19 March 2011 that the Registrar had issued in New South Wales confirmed 'unequivocally' that Mr Safronov had died. They enclosed copies of these documents.

14 It was stated in the ADT's decision at [22] that 'the material is not clear as to when the insurers first knew of either the decision to enter the death on the Register or the decision to issue the death certificate'. But as we have just indicated, the letters written to them on 25 or 28 March 2011 included a statement that a death certificate had been issued in New South Wales and enclosed a copy of this certificate, bearing the date 19 March 2011.

15 The insurers maintained their denial of Mr Gerasimov's claims under the life insurance policies. During September 2011, he instituted proceedings against them in the District Court. Those proceedings have been adjourned pending resolution of the insurers' application to the ADT for review of the Registrar's decision.

16 In a letter dated 22 November 2012 to the Registrar (a copy of which was sent to the executor's solicitors), the insurers' solicitors referred to Mr Gerasimov's application, made on or about 24 February 2011, for 'a Death Certificate in relation to the alleged death of Mr Vladimir Safronov'. They then stated as follows: 'A copy of the Death Certificate dated 23 May 2012 is enclosed for your reference'.

17 We note, however, that a copy of this letter annexed to an affidavit made by Mr Nicholas Olson, a member of the firm of solicitors acting for the insurers' solicitors, was accompanied by a copy of the death certificate dated 19 March 2011. We have not located in the evidence tendered to the ADT any copy of a certificate dated 23 May 2012.

18 In their letter dated 22 November 2012 to the Registrar, the insurers' solicitors also listed the documents that they understood Mr Gerasimov to have presented in support of the application for the death certificate. They maintained, however, that the findings made by the investigators whom they had retained cast doubt on the veracity of the evidence on which the Registrar had relied. They enclosed copies of the investigators' reports. One of the conclusions recorded in these reports was that the honesty of Mr Zhirnoklev was open to serious doubt.

19 This letter to the Registrar concluded as follows:-

Having regard to the significant inconsistencies in the evidence, the [insurers] are of the view that the evidence indicates that Mr Safronov is not deceased.

In light of the above, we have received instructions to inform the Registry of the inconsistencies in the evidence and to request a review of the decision to issue the Death Certificate pursuant to s 38 of the Births, Deaths and Marriages Registration Act 1995. We look forward to hearing from you in this regard.

20 Mr Gerasimov's solicitors subsequently wrote to the Registrar opposing any reopening of the matter.

21 After some delay and further requests for action by the insurers' solicitors, the Registrar replied as follows in a letter to them dated 26 April 2013:-

I refer to your letters dated 22 November 2012, 25 January 2013 and 20 February 2013.

I note you have requested a review of the Registrar's decision to issue a death certificate for Mr Safronov pursuant to s. 38 of the Births, Deaths and Marriages Registration Act 1995 ("the Act").

I understand that there are presently on foot District Court proceedings involving your clients and Mr Gerasimov. Mr Gerasimov, as executor of Mr Safronov's estate, is claiming death benefits under life insurance policies issued by your clients. I understand that relevant to the issues in dispute is whether Mr Safronov is in fact deceased. I would be pleased if you would inform me of the status of the District Court proceedings.

In light of the fact that the District Court will need to determine whether or not Mr Safronov is deceased, the Registrar does not propose, at this stage, to undertake a review of his decision. I note the Registrar may amend the Register to reflect any findings made by the District Court in due course, should that be required.

I look forward to hearing from you with respect to the current status of the District Court proceedings. Please contact me if you have any further questions...

The proceedings in the ADT

22 On 23 May 2013, the insurers applied to the ADT for review of the following decisions of the Registrar: (a) his decision to include particulars of Mr Safronov's death on the Register; (b) his decision not to conduct an internal review of this decision under section 53 of the ADT Act; (c) his decision not to conduct an inquiry into this decision under section 44 of the BDMR Act; and (d) (as an alternative to (c)) his failure to make a decision as to whether to conduct such an inquiry.

23 The form of application filed by the insurers specified 26 April 2013 as the 'date of decision for review'. It pleaded, inter alia, that on 23 May 2012 the Registrar issued a death certificate 'certifying the record of Safronov's death in the NSW Register'. It made no reference to the issue of any such certificate on 19 March 2011.

24 The hearing before the ADT commenced on 8 July 2013. Subsequently, the President advised the parties by a letter dated 19 July 2013 that he wished to hear further argument on a number of 'points of concern'. These were set out in his letter. A further hearing relating to them took place on 7 August 2013.

25 The Registrar appeared at these hearings and made submissions on certain points at the request of the ADT. He stated through his counsel that he would abide any decision that it reached.

26 Mr Gerasimov, who had successfully applied to join the proceedings as the second respondent, opposed the ADT's dealing with the insurers' application. He claimed that it was not competent and had no jurisdiction to entertain this application.

27 The insurers emphasised to the ADT that they were concerned about the probative effect of the death certificate, if it were allowed to stand, in the District Court proceedings instituted by Mr Gerasimov. They stated that in their belief the official documents from the Ukraine on which the Registrar relied when issuing the death certificate contained particulars as to the corpse that were inconsistent with certain physical features of Mr Safronov. They also referred to the investigations that they had commissioned in Russia and the Ukraine, leading them to suspect that the claims under the policies were in aid of a fraud.

Relevant statutory provisions

28 Before outlining the ADT's decision, we should reproduce a number of provisions of the BDMR Act and the ADT Act, in the form that they took at the time of the hearing by the ADT. The ADT's decision quoted at length from a number of them.

29 The relevant provisions of the BDMR Act are as follows:-

3 Objects of Act

The objects of this Act are to provide for:

(a) the registration of births, deaths and marriages in New South Wales, and...

(d) the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity, and

(e) access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State, and

(f) the issue of certified information from the registers...

6 Registrar's general functions

The Registrar's general functions are:

(a) to establish and maintain the registers necessary for the purposes of this Act and the Relationships Register Act 2010, and

(a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and

(b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and

(c) to ensure that this Act is administered in the way best calculated to achieve its objects.

36 Deaths to be registered under this Act

(1) If a person dies in the State, the death must be registered under this Act.

(2) If a court orders the registration of a death, the death must be registered under this Act.

(4) If a person who is domiciled or ordinarily resident in the State dies outside the Commonwealth, or a person dies outside the Commonwealth leaving property in the State, the death may be registered under this Act.

(5) However, the Registrar is not obliged to register a death under subsection (3) or (4) if the death is registered under a corresponding law.

(7) This section is subject to section 38.

37 Power to order registration of death

If a court (including any court of another State or the Commonwealth) finds that a person whose death is not registered under this Act died in the State, the court may order registration of the death.

38 Circumstances in which death must not be registered

(1) The Registrar must not register the death of a person unless the Registrar has been given one of the following:

(a) a notice given by a doctor under section 39 in relation to the death of the person,

(b) an order made by a coroner under section 101 of the Coroners Act 2009 that authorises the disposal of the remains of the deceased person,

(c) a notice given by a coroner under section 34 (1) or (2) of the Coroners Act 2009 for the purpose of effecting or completing registration of the death,

(d) a document issued, made or given in relation to the death under the law of another State or the Commonwealth or any other place, being a document which the Registrar is satisfied is equivalent to a notice or order referred to in paragraph (a), (b) or (c).

(2) Despite subsection (1), a death is to be registered if:

(a) a court orders the registration of the death, or

(b) the Registrar is of the opinion that, having regard to the circumstances of the case, it is proper that the death should be registered without any notice, order or document referred to in that subsection.

42 Registration

(1) The Registrar registers a death by making an entry about the death in the Register including the particulars required by the regulations.

(2) However, if the particulars available to the Registrar are incomplete the Registrar may register a death on the basis of incomplete particulars.

44 Registrar's powers of inquiry

(1) The Registrar may conduct an inquiry to find out:

(a) whether a registrable event has happened, or

(b) particulars of a registrable event, or

(c) whether particulars of a specific registrable event have been correctly recorded in the Register.

(2) The Registrar may, by notice given to a person who may be able to provide information relevant to an inquiry under this section, require the person to answer specified questions or to provide other information within a time and manner specified in the notice.

(3) A person who fails, without reasonable excuse, to comply with a notice under subsection (2) is guilty of an offence.

45 Correction of Register

(1) The Registrar may correct the Register:

(a) to reflect a finding made on inquiry under Division 2, or

(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.

(2) The Registrar must, if required by a court, correct the Register.

(3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.

49 Issue of certificate

(1) On completing a search of the Register, the Registrar may issue a certificate:

(a) certifying particulars contained in an entry, or

(b) certifying that no entry was located in the Register about the relevant registrable event.

(2) A certificate under subsection (1) (a) is admissible in legal proceedings as evidence of:

(a) the entry to which the certificate relates, and

(b) the facts recorded in the entry.

56 Review by the Administrative Decisions Tribunal

(1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Administrative Decisions Tribunal for a review of the decision.

30 The following sections and subsections of the now-repealed ADT Act should be quoted:-

3 Objects of Act

The objects of this Act are as follows:...

(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner...

(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

4 Definitions

In this Act:...

"interested person" means a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

38 Conferral of jurisdiction to review reviewable decisions

(1) Conferral of review jurisdiction

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

47 Summary of the review process for reviewable decision

(1) The following is a summary of the process involved in the review of a reviewable decision:

An administrator makes a reviewable decision and (where appropriate) gives notice to an interested person of the decision and of review rights in accordance with Division 1 of Part 2.

An interested person may seek either or both of the following:

(a) reasons for the decision under Division 2 of Part 2,

(b) an internal review of the decision under Division 3 of Part 2.

An interested person may (generally after an internal review) make an application to the Tribunal under Part 3 for a review of the decision...

(2) This section does not affect the provisions of this or any other Chapter that it summarises.

48 Notice of decision and review rights to be given by administrators

(1) An administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:

(a) the decision, and

(b) the right of the person to have the decision reviewed.

49 Duty of administrator to give reasons on request

(1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.

(2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons.

53 Internal reviews

(1) Who may apply for an internal review

If an administrator makes a reviewable decision, an interested person may apply for an internal review of that decision under this section.

(2) Requirements for an application

An application for an internal review is:

(a) to be in writing, and

(b) to be addressed to the administrator concerned, and

(c) to specify an address in Australia to which a notice under subsection (6) may be sent, and

(d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person:

(i) if the person has requested reasons under section 49-was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the person has not requested reasons under section 49-was notified of the making of the reviewable decision, and

(e) to comply with such other requirements as may be prescribed by the regulations in respect of the making of applications for internal reviews.

(6) Notice of result of review and appeal rights

Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of:

(a) the outcome of the internal review, and

(b) the reasons for the decision in the internal review, and

(c) the right of the person to have the decision reviewed by the Tribunal.

(9) When an internal review is finalised

An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

Section 55 provides that an interested person may apply for a review of a reviewable decision once an internal review of the decision is taken to be finalised under this subsection.

55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) where the person was entitled to seek an internal review of the decision-the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision.

Note. Section 4 defines "interested person" to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be)...

(2) The "default application period" for a reviewable decision is:

(a) in the case where the applicant has duly applied for an internal review of the reviewable decision-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or

(b) in any other case-the period of 28 days after:

(i) if the applicant has requested reasons under section 49 for the reviewable decision-the day on which the applicant was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the applicant has not requested reasons under section 49-the day on which the applicant was notified of the making of the reviewable decision.

(3) The Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned, or

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned.

(4) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (3), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (3) (a) applies-the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

65 Power to remit matters to administrator for further consideration

(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

Relevant aspects of the ADT's decision

31 In the opening paragraph of this decision, the ADT stated: 'Three insurance companies have applied to the Tribunal for review of the decision of the Registrar of Births, Deaths and Marriages to issue a death certificate on 23 May 2012 under the Births, Deaths and Marriages Registration Act 1995 (BDMR Act).'

32 As explained above, however, the insurers' application did not expressly seek review of a decision by the Registrar to issue a death certificate. It referred instead to the four other aspects of the Registrar's performance of his statutory functions that we have listed at [22].

33 At [6] and [17], the ADT qualified in an important way its description of the subject matter of the proceedings. In the earlier of these two paragraphs, it said:-

6 The issuance of a death certificate, it can be seen, is no more than an administrative act. It is cast as involving a discretion, but it seems to me that a Registrar could not properly refuse a request made in proper form. The real issue that the insurers seek to have addressed is the original decision to make the entry on the Register.

34 At [5], the ADT stated: 'As noted, the death certificate was issued on 23 May 2012...' At [18], it said of the letter dated 22 November 2012 from the insurers' solicitors to the Registrar that it was 'sent six months after the death certificate issued'. The assumption underlying these statements was clearly that, as this letter asserted, the Registrar issued a death certificate relating to Mr Safronov on 23 May 2012. But for reasons explained above at [17], there appears to be no evidence that this occurred. The only death certificate that we have located in the documentary evidence admitted by the ADT was the certificate dated 19 March 2011.

35 At [25], the ADT embarked on a discussion of some of the 'points of concern' which it had drawn to the parties' attention following the first day of hearing. It described the first of these concerns as being 'whether a person could enter the decision-making pyramid [i.e., the process established by the ADT Act for the review of reviewable decisions] for the first time at the internal review stage'. At 25] and 26], it answered this question as follows:-

25... Section 48 contemplates that an administrator will give an interested person notice of a decision, and notice of their rights to have the decision reviewed. The insurers were not known to be interested persons so that did not occur here. Section 49 seeks to cover the situation where an interested person is not given a statement of reasons, and, arguably, the situation where a person who can properly be regarded as an interested person wants an explanation for a decision. This provision may be important in cases (as the present may be seen to be) where the applicant for the primary decision gets the decision they seek, but there are other persons affected by it who may not think it is the best decision...

26 The right to apply for internal review under s 53 is given to 'interested persons'. The 'requirements' for an application for internal review address the situation where a person 'has not requested reasons under section 49'. They are obliged to state when they were 'notified of the making of the reviewable decision'. In my view, this provision is likely to have been intended to refer to people who were 'notified' of the decision by means of a notice from the administrator issued under s 48. However, I will adopt a beneficial construction, and treat 'notify' as embracing situations where interested persons find out about the decision by other means. I accept the insurers' submission that the 'making' of the reviewable decision, not the provision of written notice, is the foundation of the rights given by the ADT Act...

36 At [28 - 31], the ADT dealt with an argument, put by Mr Gerasimov, that the letter of 22 November 2012 from the insurers' solicitors to the Registrar was not such as would have 'led an administrator to conclude that s 53 of the ADT Act was being engaged'. The following extracts from this part of the ADT's decision sufficiently indicate its response to this argument:-

28... I see this matter as important as the responsibilities imposed on an administrator by s 53(3) and following can only be properly carried out if that is known, or should reasonably have been known. The parties drew attention to PC v University of New South Wales (GD) [2005] NSWADTAP 72 at [28]; which upheld my decision in PC v University of New South Wales [2005] NSWADT 157...

29 The Appeal Panel said at [28]:

28 In arriving at that factual determination, the Tribunal identified the correct test to be applied. In order to constitute an application for internal review, the document or documents relied upon by the applicant, must upon their face, reasonably convey to the respondent agency, that an application for internal review is sought. The letter from the appellant to the respondent of 28 November 2004, cannot, on its face, reasonably be interpreted as an application for internal review.

30 In this case the Registrar has indicated that he is happy to treat the letter of 22 November 2012 as an application for internal review. In my view, that is a generous stance, when there is nothing in the correspondence between the parties that either of them ever turned their mind to the ADT Act and its rights.

31 Further this is a circumstance where the Registrar had an independent statutory power to correct the register after inquiry. See BDMR Act, ss 44, 45. Further the BDMR Act provides, s 45(2) that the Registry is duty-bound to correct the Register if so ordered by a Court. In my view, the Registrar more likely had these provisions in mind when dealing with the representations. The reference to the powers of the Court in the Registrar's reply of 26 April 2013 reinforce that point.

37 At [32 - 36], the ADT held, however, that although in its opinion the letter of 22 November 2012 did not sufficiently 'engage' the operation of section 53 of the ADT Act, this did not necessarily mean that the insurers' application to it must fail. A further submission by Mr Gerasimov that it addressed in reaching this result was that certain time limits stipulated in sections 53 and 55 had not been complied with. The ADT's reasoning on these matters was as follows:-

32 However, it seems to me that the ADT Act is nonetheless tolerant of a situation where a person lodges an application for external review without having gone through the orthodox process, or has sent a letter which is not seen as engaging the internal review provisions.

33 [The decision then reproduced section 55(3) of the ADT Act.]

34 Of relevance to the present case is s 55(3)(b). This provision points to the conclusion that a failure to 'duly apply' for internal review is not fatal to proceeding in the Tribunal.

35 Mr Gerasimov also submitted that if the letter of 22 November 2012 can properly be regarded as an application for internal review, the application was not filed within 28 days of the application for internal review being finalised. On his calculations that date was 12 January 2013, being 28 clear days (s 55(2), s 55(1)(d)) after the application for internal review was finalised (s 53(9)), which in turn is 21 days after the application is made (s 53(6)).

36 I favour the insurers' and Registrar's submissions on these points. In my view it is apparent from the provisions of s 55(3) (set out above) and also s 55(4), (5) and s 57, which I will not set out here, that the Tribunal has wide powers to exercise discretion to allow out of time applications for internal reviews and to dispense with the requirement of internal review. These powers could be utilised in this case to meet the concerns raised by Mr Gerasimov, so these are not fundamental objections to entertaining an application for review.

38 The ADT then dealt as follows with another argument put by Mr Gerasimov:-

37 In response to another submission, I do not think that the reference in s 53(1) to an 'interested person' should be read down so as to confine its meaning to persons who were identified as applicants at the primary decision making stage or within the group of people who might have been known to the administrator at that stage to be 'interested' persons. Here the interested person is by dint of s 56 to be treated as any person 'dissatisfied' with the decision of the Registrar. While the meaning of this word may take on a different hue as between different statutory contexts, I see as equally applicable to this context the recent observations of the Court of Appeal attributing a wide natural meaning to the term when used in relation to the review right under State tax laws: Chief Commissioner of State Revenue v Print National Pty Ltd [2013] NSWCA 96.

39 The concluding paragraphs of the ADT's decision set out the reasons why, after dismissing Mr Gerasimov's claim that it lacked jurisdiction, it did not proceed to deal with the substantive issues raised by the insurers' application for review. The ADT stated:-

38 My conclusions therefore are: that there was no duly made application for internal review. However, this is not fatal to proceeding in the Tribunal by way of an application for review under s 55(1) because of the dispensing power given by s 55(3). I will not in this decision turn my mind to that question, because I am not satisfied (responding to another of Mr Gerasimov's points) that there is any utility in having the Tribunal proceed at this stage.

39 The Tribunal has a wide discretion under s 73 of the ADT Act to manage its business. Section 73(1) and (3) provide:...

40 In contrast to other administrative review jurisdictions vested in the Tribunal, the Registrar has as already noted at least three different facilities for ensuring that the Register is correct - opening of a s 44 inquiry, responding to an application for review made to the Tribunal or implementing a court order.

41 In this case all the relevant material will fall to be addressed by the District Court. I do not see the evidentiary effect given by s 49 to a death certificate to be so significant that the Tribunal should get involved at this point.

40 The orders made in the ADT's decision were in the following terms:-

1. The second respondent's objection to jurisdiction is rejected.

2. However, the application for review is stayed pending resolution of the District Court proceedings brought by the second respondent against the insurers (matters numbered 2011/00292705, 2011/00301247, 2011/00304114).

3. The Registrar [of the ADT] is to re-list the matter once the outcome of those proceedings is known. If the applicants wish to proceed with the application for review at that point, the Tribunal will hear them in relation to exercise of the discretion under s 55(3) of the ADT Act.

41 As noted earlier, this decision of the ADT was the subject of an appeal by the insurers and a cross appeal by Mr Gerasimov. It is convenient to deal first with the cross appeal, since if it were to succeed the questions raised by the insurers' appeal would not require resolution.

The cross appeal by mr gerasimov

The grounds of the cross appeal

42 The Notice of Cross Appeal asserted that the ADT had erred in law in three respects.

43 First, it misconstrued sections 53(1) and 55(1)(a) of the ADT Act so as to conclude that any person (such as the insurers) who was 'dissatisfied' with a decision of the Registrar was an 'interested person' within the meaning of those provisions and could therefore apply both for an internal review of the decision and for review by the ADT.

44 Secondly, it misconstrued section 55(1)(b) of this Act so as to conclude that the insurers could apply to the ADT for a review of the Registrar's decision even though, being entitled (in its opinion) to seek an internal review, they had not 'duly applied' for such a review.

45 Thirdly, it erred in deciding that by virtue of section 55(3)(b) it could entertain the insurers' application to it and should not dismiss this application, even though, being entitled (in its opinion) to seek an internal review, they had not 'duly applied' for such a review.

Mr Gerasimov's submissions

46 These submissions were principally concerned with the first of the three grounds of the cross appeal. Mr Bingham, counsel for Mr Gerasimov, argued in this connection that the ADT should have (a) construed the term 'interested person' in sections 53(1) and 55(1)(a) of the ADT Act as being confined to persons whose interests were immediately and directly affected by the relevant decision made by an administrator, (b) found that the insurers' interests were not affected in this specific way by the Registrar's decision and (c) held accordingly that they were not entitled to apply either for an internal review or for review by the ADT.

47 In developing this argument, Mr Bingham advanced the following propositions:-

1. Expressions such as 'person interested', 'person affected', 'person aggrieved' and 'person dissatisfied' are often used to delineate persons who have standing to sue: see e.g. McCallum v Federal Commissioner of Taxation (1997) 145 ALR 446 at 453.

2. The phrase 'interested person', when used in connection with a decision of an administrator, connotes a person having a legal interest relevant to the decision: see e.g. Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 426-427; Australian Building Construction Employees' and Builders Labourers' Federation v Master Builders' Association of New South Wales (1989) 69 ALR 515 at 517.

3. When construing the similar phrase 'a person whose interests are affected by the decision', the following statement by Brennan J in Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154 at 157 must be borne in mind:-

The interest of which section 27 (1) speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the demand whatever the outcome of a review might be.

4. It is important also to recognise that a person claiming to fall within this phrase must show that his or her interests are immediately and directly affected. It is insufficient merely to show that the relevant decision has had some kind of indirect effect: McHattan at 157; Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 121 ALR 373 at 383.

5. Also important is the following dictum of Gummow J in Alphapharm at 395:-

Like the expression "a person aggrieved", the phrase "a person whose interests are affected by the decision" and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the "interests" concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms "affect" and "interest" are to be seen in the light of the scope and purpose of the particular statute in issue.

48 Mr Bingham submitted that the facts in Alphapharm resembled those of the present proceedings, to the extent that it should be regarded as determining in the executor's favour the question whether the insurers were 'interested persons'. In that case, a drug company secured registration on the Therapeutic Drugs Register of a drug in relation to which it held the Australian patent. Competing drug companies sought review of the Minister's decision to grant registration, claiming to be 'persons whose interests are affected' by this decision. The Federal Court rejected this claim, on the ground that the competitors' interests, being purely commercial, were not relevant to the purpose of the registration statute. This was to ensure that drugs imported into Australia were safe and suitable for human use.

49 Referring specifically to sections 3, 38, 44 and 45 of the BDMR Act, Mr Bingham argued as follows: (a) the purpose of this Act was to provide a system of registration of certain information; (b) section 38 conferred on the Registrar a 'narrow registration function', not involving the resolution of disputed issues of fact; and (c) that the Act dealt with such issues only by empowering the Registrar to conduct an inquiry under section 44 and requiring him to correct the registrar if so ordered by a court under section 45.

50 Having regard to these matters, he maintained, it could not be said that the possible use by an executor of a death certificate as rebuttable evidence (pursuant to section 49) of the death described in it was sufficient to render insurers who had issued life policies 'persons interested' in the Registrar's decision to register the death. In fact, the insurers' purely commercial interest in the present proceedings was only in the outcome of the District Court proceedings that the executor had instituted, not in the Registrar's decision. According to the principles stated by Brennan J in McHattan, such an interest did not make them 'persons whose interests are affected' by this decision.

51 Finally, Mr Bingham argued that the category of 'interested persons' falling within sections 53(1) and 55(1)(a) of the ADT Act must necessarily be co-extensive with the category of 'interested persons' to whom an administrator, such as the Registrar, was required to give written notice of a decision under section 48(1). His reasoning involved the following propositions: (a) the status of 'interested person' under section 48(1) was a pre-requisite to being entitled to seek an internal review; (b) it could not be the case that a person who could not seek an internal review might be entitled to apply to the ADT for review of a decision; and (c) accordingly, recognition of an insurer as an 'interested person' under section 55(1)(a) would have the 'absurd' result of requiring the Registrar to notify every insurer of a deceased person of a decision to register that person's death.

52 With regard to the second and third grounds of the cross appeal, Mr Bingham contended that the insurers had not made any application for the ADT to exercise the 'dispensing power' conferred on it by section 55(3)(b) and that the ADT had made no finding as to any of the matters on which the exercise of this power depended (namely, that its dealing with their application for review was necessary to protect their interests and that their application was made within a reasonable time following the Registrar's decision). It followed, he said, that the ADT had no power to continue to deal with this application and was obliged to dismiss it.

The insurers' submissions

53 The submissions of Mr Walsh, who appeared as counsel for the insurers, contained two arguments bearing upon the first and most substantial ground of the cross appeal.

54 The first of these was that by virtue of the definition of 'interested person' in section 4 of the ADT Act, the question whether the insurers were 'interested persons' under section 55(1)(a) depended on whether under the relevant provision of the BDMR Act they were entitled to apply to the ADT for a review of the Registrar's decision to register the death of Mr Safronov. As had been held in the ADT's decision at [37], the relevant provision of the BDMR Act, section 56(1), conferred this entitlement on any person who was 'dissatisfied' with the decision. Clearly, the insurers fell within the range of 'dissatisfied' persons.

55 Secondly, Mr Walsh argued that the range of persons to whom an administrator, such as the Registrar, was obliged by section 48(1) of the ADT Act to give notice of a reviewable decision was not necessarily co-extensive with the range of persons who were 'interested' in the decision for the purposes of section 53(1) or section 55(1)(a). This followed from the simple consideration that an administrator was quite likely to be unaware of the full range of persons who were 'interested' in his or her decision. The language of section 48(1) took account of this consideration in so far as it required an administrator only to 'take such steps as are reasonable in the circumstances' to give notice to interested persons.

56 With regard to the second and third grounds of the cross appeal, Mr Walsh's contentions were that section 55(3)(b) did not stipulate that its dispensing power could only be exercised if the party seeking its exercise made an application to this effect and that the ADT, by granting a stay of the proceedings before it, had left unresolved the question whether it should exercise this power.

Discussion and conclusions

57 In our opinion, the cross appeal must be dismissed, for the reasons (broadly speaking) urged by Mr Walsh. We would add only the following brief observation.

58 The combined effect of section 4 of the ADT Act and section 56(1) of the BDMR Act was to substitute 'dissatisfied persons' for 'interested persons' as the category of people who could apply to the ADT under section 55(1)(a) of the ADT Act for review of decisions by the Registrar. But even if the relevant category were that of 'interested persons' - which for reasons set out in the decisions on standing cited by Mr Bingham would appear to be narrower than 'dissatisfied persons' - we believe that the insurers would still be entitled to apply for review. We do not see how an insurance company that is obliged to pay out money under a life insurance policy can be regarded as not 'interested' in a decision by a responsible state authority, having evidential consequences, that the policy holder has died and that his or her death should be entered on an official register.

59 For the foregoing reasons, the cross appeal must be dismissed.

the appeal by the insurers

The question of leave to appeal

60 Order 2 in the ADT's decision was a stay order. Because it involved the exercise of an 'interlocutory function' as defined in section 24A(1) of the ADT Act, the insurers accepted that by virtue of section 113(2A) of this Act leave to prosecute the appeal was required.

61 Mr Bingham's submissions included the proposition that the insurers did not identify any grounds for a grant of leave. He did not elaborate on this proposition.

62 The stay order purports to leave to the District Court the task of deciding whether or not the Register was correct in stating that Mr Safronov had died. If the Court performs this task, it will resolve the fundamental question raised in the insurers' application to the ADT. For these reasons, the stay order, although interlocutory, is of substantial significance for the determination of this application.

63 In these circumstances, we are satisfied that leave to appeal should be granted.

64 It is useful to record at this point that at interlocutory hearings in the District Court proceedings on 18 October 2013 and 23 December 2013 (the latter date being the date of the appeal hearing before us), the Court indicated that those proceedings would be held in abeyance pending our decision on the appeal and cross appeal.

The insurers' submissions

65 The fundamental proposition advanced by Mr Walsh on behalf of the insurers was that the making of the stay order constituted an erroneous exercise of the discretion conferred on the ADT by the provisions of the ADT Act (sections 73(1) and 73(3)) on which it relied.

66 He argued that the ADT's decision to grant the stay was apparently based on two grounds: (a) that there was no 'utility' in 'having the Tribunal proceed at this stage' (see the decision at [38]) and (b) that the evidentiary effect of the death certificate in the District Court proceedings was not significant enough to justify the ADT's getting 'involved' (see [41]).

67 He argued that these two grounds were inadequate, particularly because the practical effect of granting the stay would be to render 'nugatory' the insurers' application and deprive them of a remedy made available to them by the BDMR Act (namely, review by the ADT of the Registrar's decision to register Mr Safronov's death).

68 With specific reference to the first ground, he submitted that considerations of 'utility' should not have the effect of defeating a party's claim for relief. In addition, he claimed that, unlike the ADT, the District Court would have no power to order the Registrar to correct the register if, in the course of resolving the proceedings between Mr Gerasimov and the insurers, it found that Mr Safronov had not died as stated in the register. Although such a power appeared to be conferred on the Court by section 45(2) of the BDMR Act, this was not the case because (as was held by Campbell JA in Dayeian v Davidson (2010) 76 NSWLR 512 at 522; [2010] NSWCA 42 at [38]) this Court has no jurisdiction to make orders in the nature of prerogative relief.

69 As to the second ground, Mr Walsh's submissions were as follows: (i) the evidentiary effect given by section 49(2) of the BDMR Act to the death certificate was not a matter of which judicial notice could be taken; (ii) the executor should have adduced evidence as to the weight that would be attributed to the certificate; (iii) in the absence of such evidence, the ADT's finding was purely 'speculative'; and (iv) the ADT erred also in failing to give sufficient reasons for this finding.

70 A further argument made by Mr Walsh was that in making the stay order, the ADT denied procedural fairness to the insurers. This, he said, was because they had not been put on notice that a stay order was under consideration.

71 Two additional submissions put by Mr Walsh focused on the ADT's rulings relating to the requirement of internal review.

72 The first of these was that the ADT erred in ruling that the letter of 22 November 2012 from the insurers' solicitors to the Register did not constitute an application for internal review as required by section 55(1)b) of the ADT Act. Mr Walsh relied here particularly on the fact that the Registrar's reply dated 26 April 2013 included the phrase 'I note you have requested a review of the Registrar's decision...'

73 The second was that the ADT was obliged in the circumstances of the case to give effect to its stated opinion that it should exercise the 'dispensing power' granted to it by section 55(3) and allow the insurers' application to proceed even though it had found that they had not 'duly applied' for an internal review of the Registrar's decision under section 55(1)(b). It should then have heard this application on its merits and reached a decision with regard to it.

74 Finally, Mr Walsh submitted that the ADT had erred in failing to deal with a submission, made by the insurers in response to the President's letter to the parties dated 19 July 2013, that it should remit the matter to the Registrar (under section 63(3)(d) of the ADT Act) on the ground that he had not 'engaged with the substance of' the insurers' application'. This omission by the ADT to deal with an argument put to it amounted, according to Mr Walsh, to an error of law.

Mr Gerasimov's submissions

75 With reference to the ADT's power to stay or adjourn proceedings under section 73(1) and (3) of the ADT Act, Mr Bingham relied on two recent decisions of the ADT: Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67 and Betta Industries Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 68. The facts in these two cases were virtually identical. In both of them, the Tribunal, by consent, adjourned the hearing of an application for review of a decision on liability to payroll tax made by the respondent Commissioner, pending the delivery by the Court of Appeal of a judgment that would bear directly on the outcome of the proceedings.

76 In Complete Wardrobes at [47 - 48], after quoting extracts from the High Court's judgments in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 emphasising the importance of minimising delay in court proceedings, the ADT said:-

47 To grant an adjournment at this stage because there is a mere suggestion that the Tribunal will deliver a decision that turns out to be inconsistent with a subsequent Court of Appeal decision would not pay due regard to the important concepts the High Court emphasised in Aon... This is so despite the fact that both parties say they are not prejudiced by the adjournment and support it. It does not further the interests of justice to delay proceedings in the absence of clear grounds.

48 However, the combination of factors tips the balance in favour of granting the adjournment: there is a real prospect that the Second Issue [a question of law] will arise in the Tribunal; it is likely that the Second Issue will be determined by the Court of Appeal; there is an impact upon the evidence and the Applicant's burden; and finally the inconvenience to the Tribunal is minimal.

77 On the footing that these decisions sufficiently illustrated that the ADT's discretion was broad enough to support the stay order made in the present case, Mr Bingham argued, quoting from Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [34], that 'Appeal Panels should not lightly interfere with Tribunal decisions made after full consideration of all the evidence, especially where broad discretions are being exercised'.

78 As to the question of the 'utility' of the ADT proceedings, Mr Bingham argued that the ADT's finding was correct, for the following four reasons.

79 First, the evidence relating to the alleged death of Mr Safronov that would be put either before the Registrar (if the matter were remitted to him by the ADT, whether for an internal review of his decision or for the conduct of an inquiry under section 44 of the BDMR Act) or before the ADT itself (if it proceeded to review the Registrar's decision) would be less extensive than the evidence that (it could be anticipated) would be put before the District Court. The reasons for this include the following: (i) the Registrar's primary duty under section 36 of the BDMR Act is to register a death on the receipt of one or more of the documents specified in section 38(1); (ii) the Registrar's resources cannot permit more than a limited inquiry under section 44(1); (iii) his power to obtain evidence from relevant witnesses when conducting such an inquiry is restricted by section 44(2) to requiring them to 'answer specified questions or provide other information', whereas at the hearing in the District Court evidence can be given orally in chief and can be tested in cross-examination; and (iv) during interlocutory hearings in the Court, the insurers made it clear that aspects of their evidence in support of their claim of fraud would not be disclosed until cross-examination by their counsel of relevant witnesses at the substantive hearing.

80 Secondly, the question whether Mr Safronov died as stated in the entry on the Register was bound to be litigated in the District Court proceedings irrespective of whether the ADT heard and determined the insurers' application. Accordingly, the ADT's decision to stay its proceedings had the beneficial effects of avoiding significant delay, duplication of proceedings and an unnecessary escalation of costs.

81 Thirdly, if the ADT did not stay its proceedings, the undesirable possibility arose that its decision on this question might be inconsistent with that of the Court.

82 Fourthly, contrary to Mr Walsh's assertion, the statutory power conferred on courts by section 45(2) of the BDMR Act to require correction of the register was applicable to all courts. There was no express limitation of the power to courts possessing jurisdiction to make orders in the nature of prerogative relief and no reason why such a limitation should be implied.

83 Mr Bingham's submissions regarding the ADT's conclusion as to the evidentiary effect (under section 49(2) of the BDMR Act) of the death certificate were to the following effect.

84 First, this conclusion was not a finding of fact (which would have to fall within the principle of judicial notice or be supported by evidence), but a 'discretionary judgment' that the ADT was entitled to make.

85 Secondly, the insurers had given notice that the ground on which they would contend in the District Court that Mr Safronov's death should not have been registered was that registration, both in the Ukraine and in New South Wales, had been procured by fraud. Because they would be alleging and seeking to prove fraud, their evidence would have to be sufficiently cogent and compelling to satisfy well-known principles stemming from the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. If their evidence complied with these requirements, it would 'blow away' any presumption established by the registration of the death in New South Wales.

86 Thirdly, the situation as regards evidence of Mr Safronov's death in the District Court proceedings would not be substantially different even if, as sought by the insurers, the registration of this death in New South Wales were to be set aside by the Registrar or by order of the ADT. The documentary evidence on which the registration was based - notably, the official documents issued in the Ukraine - could still be tendered by the executor as prima facie evidence of the death.

87 In response to Mr Walsh's claim that his clients had not been put on notice that a stay order might be made, Mr Bingham referred to passages in Mr Gerasimov's submissions to the ADT arguing in favour of an adjournment of the ADT proceedings until after the hearing and determination of the District Court proceedings.

88 In contesting the argument that the solicitors' letter of 22 November 2012 constituted an application for internal review, Mr Bingham relied on the reasons set out in the ADT's decision at [28 - 31]. He also made the following points: (i) if the Registrar had recognised this letter as an application of this nature, he would have conducted a review and advised the insurers of its outcome of the review within 21 days, as required by section 53(6); (ii) in fact, he did not reply until 26 April 2013; and (iii) it was in any event for the ADT, not the Registrar, to determine whether such an application had been 'duly made'.

89 As to the insurers' reliance on the 'dispensing power' in section 55(3)(b), Mr Bingham maintained that since the insurers had never invoked this provision in their submissions to the ADT and since for this reason Mr Gerasimov had never had the opportunity to argue against its use, any claim that the ADT could or should have made an order under it in the insurers' favour was 'wholly unsustainable'. He added that the argument that would have been advanced by Mr Gerasimov would have included a claim that, because the 'fraud case' foreshadowed by them in the District Court proceedings would have 'overwhelmed the evidentiary effect' of the death certificate that the Registrar had issued, any exercise of the 'dispensing power' by the ADT would not have been 'necessary to protect the [insurers'] interests' as required by section 55(3)(b).

90 A further matter urged by Mr Bingham in this context was that the insurers' delay in communicating with the Registrar would count significantly against them. They had been notified of the issue of the death certificate in March 2011, but had not sought any form of review by the Registrar of his decision to register the death until twenty months later, in November 2012.

91 Finally, Mr Bingham's response to the claim that the ADT had erred by failing to deal with the insurers' submission that it should remit the matter to the Registrar was as follows. On account of the ADT's finding that they had not 'duly applied' for an internal review, there was no application before it that it could remit to the Registrar.

Discussion and conclusions

92 We are satisfied, broadly on account of the reasons advanced by Mr Bingham, that the ADT did not err in exercising its discretion to stay the proceedings before it pending resolution of the District Court proceedings. We add the following observations.

93 The decision in Complete Wardrobes provides sufficient authority for the proposition that, in appropriate circumstances, the ADT could stay or adjourn proceedings until a question on which their outcome was dependent had been authoritatively determined in proceedings already instituted in another forum. That decision did not, in our opinion, turn on the fact that the application for adjournment had the support of both parties.

94 No argument put by Mr Walsh was sufficient to counter Mr Bingham's contention that, in the circumstances that had arisen, continuation of the ADT proceedings would in all likelihood result in increased delay, duplication of proceedings and increased costs for all concerned (including the State). Any conclusion reached by the ADT as to the correctness of the registration of Mr Safronov's death would not be binding on the District Court. Unless matters took an unexpected turn, this question would be relitigated by the parties when the Court came to hear the proceedings between them.

95 Mr Bingham's submission that any court, not merely a court possessing jurisdiction to make orders in the nature of prerogative relief, may order correction of the Register under section 45(2) of the BDMR Act receives support from the conferment of comparable powers on 'a court' in sections 36(2), 37 and 38(2). It is noteworthy that in section 37 the range of courts specified includes 'any court of another State or the Commonwealth'. In none of these provisions is there any express or implied limitation such as Mr Walsh claimed to exist.

96 After careful consideration, we have formed the view that in the substantive hearing of the District Court proceedings, not a great deal would be likely to turn on the question whether Mr Gerasimov, in seeking to prove the death of Mr Safronov, came armed with documentation that he obtained from the Ukraine plus the death certificate issued in New South Wales or merely with the Ukraine documentation. It is possible - we can say no more than this - that he would feel obliged to call Mr Zhirnoklev as a witness and expose him to cross-examination if he could not make use of the NSW certificate, but could avoid doing so if this certificate remained available to him. But in either scenario, the insurers' case would, we understand, be based wholly or substantially on evidence of fraud that their investigators would provide. If that evidence were cogent and compelling (as required by Briginshaw) to the extent that it would override the evidentiary impact of the Ukrainian documentation, it would be sufficient also to override the combined evidentiary impact of this documentation and the NSW death certificate. We base this view substantially on the fact that the Registrar's decision to register Mr Safronov's death was based wholly or very substantially on the Ukraine documentation.

97 We do not agree with one proposition that Mr Bingham advanced with relation to the 'dispensing power' in section 55(3) of the ADT Act: namely, that it could not be exercised in the absence of any application for its exercise by a party to the proceedings. The subsection does not impose any such requirement. But we accept his argument that it should not be exercised unless a party who would or might oppose its exercise has been given the opportunity to make submissions on the matter.

98 In any event, it is clear to us, despite Mr Walsh's argument to the contrary, that the ADT did not indicate that it was disposed to make an order in the insurers' favour under section 55(3). It went no further than to draw attention to this provision. This follows from its use of the words 'I will not in this decision turn my mind to that question...' appearing at the commencement of the third sentence of paragraph [38]. The matter is put beyond doubt by the fact that Order 3 in the ADT's decision contemplates a possible hearing, after the outcome of the District Court proceedings has become known, 'in relation to the exercise of the discretion under s 55(3) of the ADT Act'.

Our orders

99 For the foregoing reasons, both the appeal and the cross appeal must be dismissed. These relate respectively to Orders 2 and 1 in the ADT's decision.

100 We see no reason to disturb Order 3 of this decision. Since 1 January 2014, the term 'Registrar' in this Order must be read as meaning the Registrar of the Civil and Administrative Tribunal of New South Wales and the term 'Tribunal' as the Administrative and Equal Opportunity Division of this Tribunal.

101 As we observed earlier in these reasons, the District Court has indicated at two interlocutory hearings since the publication of the ADT's decision (held on 18 October 2013 and 23 December 2013 respectively) that it awaits the outcome of the insurers' application to the ADT. We therefore think it advisable to permit relisting in circumstances other than those defined in Order 3. The simplest expedient is to grant liberty to the parties to apply on three days' notice.

 

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 17 February 2014