Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270 Hearing dates: 29 July 2022 Date of orders: 19 August 2022 Decision date: 19 August 2022 Jurisdiction: Appeal Panel Before: Armstrong J, President A Suthers, Principal Member Decision: 1 Pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW), the following questions of law are referred to the Supreme Court for its opinion: (1) On its proper construction, does s 45(1)(b) of the Births, Deaths and Marriages Registration Act 1995 (NSW) ("NSW Act") empower the Registrar of Births, Deaths and Marriages of New South Wales ("Registrar") to correct an entry in the Register about a marriage solemnised in New South Wales: (a) where the correction would cause the particulars contained in the entry to be inconsistent with those in the marriage certificates prepared and signed under s 50 of the Marriage Act 1961 (Cth) and an authorised officer has not certified to the Registrar that the correction is necessary pursuant to s 51(1) of the Marriage Act 1961 (Cth)? (b) to amend the particulars contained in the entry of the name of a party to the marriage where the name accords with that registered under the law of the State where the person was born as at the date of the marriage but, subsequent to the marriage, the name of that person has been changed by registration of the change under the law of that State? (c) to amend the particulars contained in the entry of the sex of a party to the marriage where the sex accords with that registered under the law of the State where the person was born as at the date of the marriage but, subsequent to the marriage, an interstate recognition certificate for the purposes of s 32I of the NSW Act has been issued stating that the person is of a different sex to that which was recorded at the time of the marriage? (d) to amend the particulars contained in the entry of the sex of a party to the marriage so that the marriage, as recorded in the Register, is between two persons of the same sex, if at the time the marriage occurred same sex marriage is not lawful under the Marriage Act 1961 (Cth)? 2 Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW): (a) the disclosure of the names of the respondents to the appeal, together with any information or material which could identify those persons, is prohibited, except that this order does not prevent disclosure to the parties; their legal advisors; any Court for the purpose of proceedings involving these parties; or any party intervening in such proceedings. (b) the names of the Respondents are to be anonymised, including in the listing of the appeal proceedings. Catchwords: APPEALS – referral of question of law to the Supreme Court – question of law arising in proceedings – Civil and Administrative Tribunal (NCAT) unable to refer question regarding federal constitutional law to the Supreme Court – Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 applied Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987 (NSW) The Constitution (Cth) Marriage Act 1961 (Cth) Cases Cited: ALZ v WorkCover NSW [2015] NSWCATAD 241 Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Attorney General For The State Of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 B & L Linings Pty Limited v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16 CTS v NSW Trustee and Guardian [2017] NSWCATAD 119 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116 Health Care Complaints Commission v Karasingham [2007] NSWCA 267 Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 263 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 Legal Services Commissioner v Bryden [2009] NSWADT 76 Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361; [2020] VSCA 30 Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Lewis; ex parte Attorney General [1991] 2 Qd R 294 Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 Sunol v Collier [2009] NSWADTAP 34 Texts Cited: None cited Category: Procedural rulings Parties: Registrar of Births, Deaths and Marriages (Appellant) FJG (First Respondent) FJH (Second Respondent) Attorney General for the State of New South Wales (Intervening Party) Representation: Counsel: P Herzfeld SC with S Murray (Appellant and Intervening Party) R McEwen (Respondents)