Conde v McCahon [2006] QDC 188

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2006] QDC 188 DISTRICT COURT CIVIL JURISDICTION JUDGE McGILL SC No 638 of 2006 MILTON ARNOLDO CONDE Applicant and CATHERINE McCAHON Respondent BRISBANE ..DATE 04/04/2006 ORDER -- 1 of 6 -- 04042006 T4/JNR3 M/T 1/2006 (McGill DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: Mr Conde has applied to the District Court under the Births Deaths and Marriages Registration Act 2003 for an order that I correct application information about a person's death in the Register of Deaths. Section 31(1) of that Act provides: "The District Court, on application by an interested person ... may order the Registrar to - ... (b) ... correct application information about a person's death in the Register of Deaths." The particular amendment which is sought relates to the death of the applicant's child who was stillborn on 22 December 1994. At the moment the cause of death which is registered in respect of that child is shown as "(a) Hypoxia (b) Cord Presentation". The applicant seeks that information to be corrected to "(a) Anoxia (b) Prolapsed Cord". ... HIS HONOUR: The application was served on the Registrar- General who has appeared and submitted that the Court does not have jurisdiction to make the particular correction sought by the applicant. The basis of this is that section 31(1)(a) gives the Court power to order the Registrar to correct "application information" which term is defined in a way which does not include the cause of death. The term "application information" appears in schedule 2 but only for the purpose of a reference to section 41. Section 41, which deals with the registering of a registrable event, -- 2 of 6 -- 04042006 T4/JNR3 M/T 1/2006 (McGill DCJ) 3 ORDER 1 10 20 30 40 50 60 provides that the Registrar must register a registrable event if, relevantly, the Registrar receives "an application for registration of the event that contains all the information prescribed under a regulation for the event (the 'application information')": section 41(1)(b)(i). Accordingly the "application information" is "the information prescribed under a regulation for the event." The Births Deaths and Marriages Registration Regulation 2003 prescribes in section 13(1) that: "For section 41(1)(b)(i) of the Act the following information is prescribed - ... (c) for an application to register a death - ... (ii) the information in schedule 1 part 3." I should mention that the provision of section 13(1)(c)(i) is not applicable because the death which has been registered was not registered pursuant to section 26(1)(b) or 27(3) of the Act. Accordingly, relevantly, "application information" means the information listed in schedule 1 part 3, which deals with deaths and lists a large amount of information dealing with the deceased person and the persons associated with the deceased person, but, significantly, it does not include the cause of death. I expect that the practical reason for that omission is that the information in the application information is obtained by the Registrar from an application for registration of the event whereas the cause of death is obtained from a doctor's certificate under section 30 of the Act, which is a separate thing from the application to register the death. -- 3 of 6 -- 04042006 T4/JNR3 M/T 1/2006 (McGill DCJ) 4 ORDER 1 10 20 30 40 50 60 In any event the Regulation makes it clear that "application information" does not include the cause of death. The jurisdiction under section 31(1)(b), to correct application information, therefore does not extend to jurisdiction to correct what is recorded as the cause of death in the Register. Accordingly the particular relief sought by the applicant in this application is not relief which the Court has jurisdiction to grant. Apart from the jurisdiction under section 31(1) the Court also has jurisdiction under section 49 to deal with an appeal from a decision of the Registrar. That section was not expressly relied on by the applicant and it does not appear that there has been any relevant decision of the Registrar from which an appeal could be brought. The Registrar has the power to conduct an inquiry to find out whether particulars of a particular registrable event have been correctly recorded in a register, under Section 43(1)(c). But counsel for the respondent submitted, and there is no evidence to the contrary, that the Registrar has never conducted an enquiry into whether the relevant particular of the relevant registrable event, namely the cause of death of the applicant's deceased son, was correctly recorded in a register. It would be open to the Registrar to conduct such an enquiry though I do not know that there would be any obligation on the Registrar to do so. -- 4 of 6 -- 04042006 T05/ALW4 M/T 1/2006 (McGill DCJ) 5 ORDER 1 10 20 30 40 50 60 But unless there has been a decision of the Registrar in response to such an enquiry then there would not be jurisdiction under Section 49 to appeal from that decision either, nor does any other relevant decision of the Registrar emerge which could be the basis of the Court's having jurisdiction to investigate the matter the applicant wants investigated. In those circumstances the position does appear to be as contended for by the respondent. The applicant is seeking relief that the Court does not have jurisdiction to grant and therefore the application must be dismissed. I should add that this is not a case where it would appropriate to transfer the proceeding to the Supreme Court under Section 85 of the District Court of Queensland Act as there is no reason to think the Supreme Court would have jurisdiction to grant the relief sought by the applicant either. ... HIS HONOUR: Yes, all right. Look, that may well be the case but the ordinary consequences are that costs follow the event and if an application is brought which is not appropriate and the respondent incurs legal costs as a result then the ordinary consequence is that there is an order for costs made. But it may be that the respondent will not be able to enforce those costs against you. -- 5 of 6 -- 04042006 T05/ALW4 M/T 1/2006 (McGill DCJ) 6 ORDER 1 10 20 30 40 50 60 But I will order the applicant, order you pay the respondent's costs of the application to be assessed. ... HIS HONOUR: I think there is no point in having the subpoenas standing. I do not have jurisdiction to entertain the application and I cannot hear any witnesses. So, in those circumstances, I will order that all the subpoena's issued in this matter be set aside. ... ----- -- 6 of 6 --