Carr v Carr [2022] NSWSC 166

Carr v Carr [2022] NSWSC 166

The Secretary's delegate was entitled to refuse approval for exhumation having regard to the opposition of surviving children, regardless of whether they were 'nearest surviving relatives' for the son, because the relevant statutory discretion is unconfined and the regulation does not prohibit consideration of such views. There was no legal error or denial of procedural fairness.

Jurisdiction
Australia
Judgment Date
25 February 2022
Procedural Posture
Application for Judicial Review / Final Judgment
Outcome
Plaintiff's application dismissed
Legal Topics
['judicial Review' 'exhumation of Remains' 'procedural Fairness' 'statutory Interpretation' 'public Health Regulation 2012 (nsw)' 'nearest Surviving Relative']
['administrative Law'] ['judicial Review' 'exhumation of Remains' 'procedural Fairness' 'statutory Interpretation' 'public Health Regulation 2012 (nsw)' 'nearest Surviving Relative']

Case Brief

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Procedural Posture

Application for Judicial Review / Final Judgment

Legal Issues

  1. 1 ["Whether the Secretary's delegate erred in refusing approval for exhumation on basis of children's objections" "Whether the surviving children were 'nearest surviving relatives' for the deceased son under the Public Health Regulation 2012 (NSW)" 'Whether the applications to exhume the husband and son required separate consideration' "Whether the Secretary's delegate could have regard to objections from the children with respect to the son" 'Whether the remains were buried on consecrated ground' 'Whether procedural fairness required advance notice to the plaintiff that objections from children would be considered']

Ratio Decidendi

The Secretary's delegate was entitled to refuse approval for exhumation having regard to the opposition of surviving children, regardless of whether they were 'nearest surviving relatives' for the son, because the relevant statutory discretion is unconfined and the regulation does not prohibit consideration of such views. There was no legal error or denial of procedural fairness.

Court Disposition

Plaintiff's application dismissed

Orders

  • ['Second further amended summons filed 4 February 2022 dismissed' 'No order as to costs in favour of the Secretary' 'No order as to costs for Paul Carr given his intervention and the circumstances described']