Avery v Registrar of Births, Deaths and Marriages - [2010] NSWCA 72

No judgment structure available for this case.

Appeal Outcome: Application dismissed by the High Court (S117/2010) 29 September 2010 [2010] HCASL 212.Application dismissed by the High Court (S119/2010) 29 September 2010 [2010] HCASL 213.

New South Wales

Court of Appeal

CITATION: Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 February 2010

JUDGMENT DATE:
13 April 2010

JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Young JA at 176

DECISION: 1 In matter 40015 of 2009:
Appeal dismissed with costs
2 In matter 40201 of 2009
1. Application for leave to appeal dismissed with costs.
2. Notice of motion filed 11 December 2009, insofar as it seeks the relief contained in prayer 6, dismissed with costs.
3. Direct that the name of the respondent in the court’s records concerning this matter be amended to “State of New South Wales”.

CATCHWORDS: STATUTES – construction – particular statutes – Births, Deaths and Marriages Registration Act 1995 and Regulation – whether change of name by registration is the exclusive method for a person to change name – whether a name that is not itself a registered name can be changed by registration of a new name – whether a “former name” must be one that was willingly adopted – whether a person can have more than one name at the one time – whether a shortened form of a person’s name is a different name – ADMINISTRATIVE LAW – appeals from administrative authorities – orders sought correcting or amending the Births, Deaths and Marriages Register and form of Change of Name Certificate – appeal relating to Registrar's decisions about information retained in the Births, Deaths and Marriages Register and the form of name change certificates – recognition of names in law – requirement of clause 8(d) to record “any other former names of the person” extends to “other former names” that are not registered names – departure from statutory requirements relating to name change would not automatically invalidate change of name – appeal dismissed – costs – CONSTITUTIONAL LAW – statutes – whether “Attorney-General’s Department” an entity capable of being sued – PROCEDURE – Supreme Court procedure – New South Wales – parties – whether correct name of party is ‘Attorney General’s Department’ or ‘State of NSW’ – ADMINISTRATIVE LAW – prerogative writs and orders – Mandamus sought concerning application to amend personal records under Freedom of Information Act 1989 – nature and appropriateness of remedy – prerogative writs can be refused if there is another equally convenient and effective remedy – leave to appeal from decision at trial to summarily dismiss matters refused because alternative remedy available – PROCEDURE – Supreme Court procedure – New South Wales –procedure under Rules of court – case management – ability of court to deal with applications for concurrent hearing of an application for leave to appeal and the appeal in the absence of the public and without attendance of any person under Uniform Civil Procedure Rules 51.14 – CONTRACTS – general contractual principles – existence of a contract – held at trial that no contract arose between government and citizen requiring government to provide effective services of types that legislation empowered government to provide – leave to appeal refused on basis of insufficient prospects of success

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Adoption Act 2000
Births, Deaths and Marriages Registration Act 1995
Births, Deaths and Marriages Registration Regulation 2006
Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Crown Proceedings Act 1988
Freedom of Information Act 1982
Public Sector Employment and Management Act 2002
Registration of Births, Deaths and Marriages Act 1899
Registration of Births, Deaths and Marriages Act 1973
Ritchie’s Uniform Civil Procedure NSW
State Records Act 1998
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Allen v Wood (1834) 1 Bing NC 8; 131 ER 1020
Application of O & P [2005] NSWSC 1297; (2005) 34 Fam LR 385
Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68
Avery v State of New South Wales (Attorney General’s Department) [2009] NSWSC 353
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187
Barlow v Bateman (1730) 3 Peere Williams 65; 24 ER 971
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Charles Barlow v Robert Bateman (1735) 2 Bro 272; 1 ER 939
Cowley (Earl) v Cowley (Countess) [1901] AC 450
Davies v Lowndes (1835) 1 Bing NC 597
Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268
Earl Cowley v Countess Cowley [1901] AC 450
Enever v The King (1906) 3 CLR 969
In Re Neeld Deceased; Carpenter v Inigo Jones [1962] Ch 643
In Re T (otherwise H) (an infant) [1963] Ch 238
Informal v The Chief Electoral Officer (Supreme Court of Tasmania, 18 February 1992, unreported)
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal [2001] NSWSC 494; (2001) 53 NSWLR 559
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R Billingshurst Inhabitants (1814) 3 M & S 25; 105 ER 603
R v St Faith’s Newton (Inhabitants) (1823) 2 Dow & Ry MC 34
Re H (2004) 62 NSWLR 245
Re KSE & The Adoption Act 2000 [2006] NSWSC 92
Re M (2004) 31 Fam LR 415
Ryder v Foley (1906) 4 CLR 422
Standard Property Investment plc v British Plastics Federation (1985) 53 P&CR 25

TEXTS CITED: Anthony Linell, The Law of Names: Public Private & Corporate, (Butterworths, London 1938)

PARTIES: Stephanie Tatiana Patricia Avery (Appellant in both matters)
Registrar of Births, Deaths and Marriages (Respondent in 40015/09)
Attorney General's Department (Respondent in 40201/09)

FILE NUMBER(S): CA 40015/09; 40201/09

COUNSEL: In person (Appellant)
C Spruce (Respondents)

SOLICITORS: In person (Appellant)
I V Knight, Crown Solicitor (Respondents)

LOWER COURT JURISDICTION: Administrative Decisions Tribunal & Supreme Court of NSW, Common Law Division

LOWER COURT FILE NUMBER(S): 089035 & 30125/08

LOWER COURT JUDICIAL OFFICER: Appeal Panel; Schmidt AJ

LOWER COURT DATE OF DECISION: 31/10/08; 6/5/09

LOWER COURT MEDIUM NEUTRAL CITATION: Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68; Avery v State of New South Wales (Attorney General's Department) [2009] NSWSC 353

CA 40015/09
CA 40201/09

TOBIAS JA
CAMPBELL JA
YOUNG JA
13 APRIL 2010

AVERY v BIRTHS DEATHS AND MARRIAGES REGISTRAR

AVERY v ATTORNEY GENERALS DEPARTMENT OF NSW

TABLE OF CONTENTS

Para No

**********

CA 40015/09
CA 40201/09

TOBIAS JA
CAMPBELL JA
YOUNG JA

AVERY v BIRTHS DEATHS AND MARRIAGES REGISTRAR

AVERY v ATTORNEY GENERALS DEPARTMENT OF NSW

Judgment

1 TOBIAS JA: I agree with Campbell JA.

:

3 Ms Avery, the moving party in all the matters to which this judgment relates, has been dissatisfied with the way in which the Registrar of Births, Deaths and Marriages has dealt with an application that she made in December 2007 to change her name. She was, and remains, of the view that the Registrar acted wrongly by including in the Register an entry that she had a particular former name. Her dissatisfaction led her to seek review in the Administrative Decisions Tribunal of the Registrar’s decision to include that entry. The Tribunal upheld the Registrar’s decision. Ms Avery then appealed against the Tribunal’s decision to the Appeal Panel of the Administrative Decisions Tribunal. That appeal was unsuccessful: Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68. I will refer to those proceedings as “the ADT Proceedings”. Matter 40015/09 in the Court of Appeal is an appeal against the Appeal Panel’s rejection of her appeal. Under section 119 Administrative Decisions Tribunal Act 1997 (“ADT Act”), that appeal is restricted to a matter of law.

4 Before the Appeal Panel had given its decision, Ms Avery began separate proceedings in the Common Law Division of the Supreme Court, against an entity named as the NSW Attorney General’s Department, seeking mandatory orders for the amendment of the Births, Deaths and Marriages Register in certain identified respects, for the issue to her of a Change of Name Certificate that reflected the Register as so corrected, and for damages. Schmidt AJ refused an application by Ms Avery to amend a Statement of Claim that she had filed in those proceedings, and gave summary judgment in the proceedings for the defendant: Avery v State of New South Wales (Attorney General’s Department) [2009] NSWSC 353. I will refer to those proceedings as “the Common Law Proceedings”. Ms Avery has instituted another proceeding in the Court of Appeal, number 40201/09, in which she seeks leave to appeal against those decisions of Schmidt AJ. In the documents she has filed in that proceeding she calls the respondent “Attorney-General’s Department”.

5 Directions have been given for the concurrent hearing of the application for leave to appeal and any appeal in the Common Law Proceedings, and for that matter to be heard together with the appeal in the ADT proceedings. This judgment relates to all those matters.

6 As well, five Notices of Motion that Ms Avery filed relating to procedural matters were either stood over to, or returnable on, the date fixed for the hearing of the appeal matters concerning the ADT Proceedings and the Common Law Proceedings. Those procedural motions were dealt with at the outset of the hearing on that day. Prayer for relief number 6 in a motion filed on 11 December 2009 in the appeal from the ADT Proceedings, was stood over to be dealt with in the final reasons for judgment. Otherwise, those Notices of Motion were dismissed with costs, on the basis that reasons would be provided in the Court’s reasons for judgment.

7 The following are the more significant issues which arise in this matter:

1. whether the obligation of the Registrar of Births, Deaths and Marriages to record “any other form of names” of a person who changes his or her name applies only to names of that person that have been registered;

2. whether that obligation applies only to names that a person has willingly adopted;

3. whether it is possible for a person to have two “names” within the meaning of the legislation governing registration of births, deaths and marriages at the one time; and

4. whether a name that differs from the full name that a person had only by omitting one of that person’s forenames is a different “name” within the meaning of that legislation.

8 The evidence in this matter contains numerous facts relevant to the identity of Ms Avery. It is not desirable for a judgment to place on the public record facts central to the personal identity of a litigant if that can be avoided. Hence, I propose to refer to some of the former names that Ms Avery has had by using pseudonyms, rather than the names she really had. For the purposes of this judgment I shall adopt, as her name at birth, Tatiana Isabella Yurovich. For her name upon marriage, I shall adopt Tatiana Isabella Orlov.

PART A – THE BACKGROUND

9 Ms Avery was born in 1958 in the USSR, and at birth received the name Tatiana Isabella Yurovich. She married in the USSR in 1982, and thereafter was known as Tatiana Isabella Orlov.

10 By 1997 she was living in Australia. On 24 December 1997 she made a statutory declaration, on a printed form provided by the NSW Registry of Births, Deaths and Marriages, for the change of name of an adult. The declaration that she made was “that the new name stated below will be used by me for all purposes in the future. The old name will not be used.” The “new name” that she nominated was Stephanie Tatiana Patricia Avery. In December 1997 the then Registrar under the Births, Deaths and Marriages Registration Act 1995 (“BDMR Act”) issued a Change of Name Certificate, recording that the change of name that she had requested had been registered on 29 December 1997.

11 On 10 December 2007, Ms Avery made a statutory declaration, in a form provided by the Registry. The body of the declaration included a statement that:

“… the new name stated below will be used by me for all purposes in the future and is not sought for fraudulent or improper purposes … My former name(s) will not be used and I understand that a further change of name can only be registered with any Registry in Australia in the next 12 months if there are exceptional circumstances.”

12 It identified Tatiana Isabella Orlov as the “new name you want to register to use for all purposes”. The reason given for changing the name was:

“Back to my previous name with which I have entered Australia in 1997. Relationship with my ex-husband looks as being re-newed at the moment.”

13 On 11 December 2007, the Registry issued her with a Change of Name Certificate. It related to an entry in the Register, registration number XXXX6/2007 made on 11 December 2007, whereby the name Tatiana Isabella Orlov was registered. The Certificate was evidently prepared by inserting details into the blanks on a printed form. The printed form included a box headed “FORMER NAME”, which made provision for the filling in of the following information:

14 That information was filled in on the certificate. The first name filled in purported to be her name at birth, but her birth surname was misspelt. The next name recorded was “AVERY, Stephanie Tatiana”. The next name recorded was her married name.

15 The form did not have provision for a person to whom it related to have more than three former names. However, there was a heading “ENDORSEMENTS”, under which the Registry had inserted:

“Former Family Nameas [sic]” AVERY

Former Given Name(s): Stephanie Tatiana Patricia”

16 On 11 December 2007 Ms Avery (using the name of Tatiana Isabella Orlov) lodged a form seeking to have the Register corrected so that her names were shown in the “correct” order namely, her name at birth, her name on marriage, the name she had adopted in December 1997, and finally her reversion to her married name. She had separately drawn the Registrar’s attention to the various spelling mistakes in the Certificate he had issued. Her application for the Register to be corrected was declined, also on 11 December 2007.

17 On 7 January 2008, an officer of the Attorney General’s Department wrote to Ms Avery referring to her request for amendments, and saying:

“The typographical errors have now been corrected and the order of your former names on the certificate has been changed to reflect the chronological order in which you were known by these names.

As the certificate currently reads, it includes both the name Stephanie Tatiana Avery and Stephanie Tatiana Patricia Avery as former names by which you were known. You are correct that the name Stephanie Tatiana Avery (without the name Patricia) was never a name registered by the Registry. However, some of the supporting documentation which you provided with your change of name application (your NSW Driver’s Licence and Medicare Care [sic]) refers to your name as Stephanie Tatiana Avery.

Therefore, the Registry has included this as a former name by which you were known. The Registry considers that the inclusion of both versions of your name (with and without the middle name Patricia) will help to avoid confusion. If both versions are not included, you may encounter difficulties in changing your NSW Drivers Licence and Medicare Card into your new name. Accordingly, the Registry has decided not to remove the name Stephanie Tatiana Avery from the change of name certificate.”

18 The identification documentation that Ms Avery had submitted with her Change of Name documentation included not only the driver’s licence in the name of “Stephanie Tatiana Avery” to which the letter referred, but also a Medicare card in the name “Stephanie T Avery”.

19 As well, it is appropriate at this stage to refer to the terms of two statutory declarations, each dated 10 December 2007, that appear in the blue book for the appeal in the ADT Proceedings. One of them was also annexed to the Statement of Claim that initiated the Common Law Proceedings. The statutory declaration was in a form that began:

I,

(full name presently being used)

of

(present residential address)

Suburb Postcode

Phone Number

declare

…”

20 She filled in the first line of that form by writing “Stephanie Tatiana Patricia Avery”. Another part of the form called for the provision of the following information:

“ Name you are using at present

Family Name

Given Name/s

21 She filled in the first line of that part of the form by writing “Avery”, and the second line by writing “Stephanie Tatiana”. Manifestly, that document involves her asserting that the full name she was presently using was Stephanie Tatiana Patricia Avery, but also representing that a name she was using at present (though not necessarily a full name) was Stephanie Tatiana Avery.

The Disputed Statutory Declaration of 10 December 2007

22 The evidence before the Tribunal (though not, I think, before Schmidt AJ) included a photocopy of a document that bears the appearance of a statutory declaration made on 10 December 2007. It purports to be made by Ms Avery, and opens with the words “I/we the undersigned Stephanie Tatiana Avery of [address] …”. Ms Avery made elaborate submissions to us that this document might not be admissible evidence. The original statutory declaration has apparently been destroyed, and the Registry has only an electronic image of the document. Ms Avery is concerned that the original has not been produced to her even though she requested it, and submits that the destruction of the original might contravene the State Records Act 1998. These points were not taken when the matter was before the Tribunal. As well, section 73(2) ADT Act provides that the Tribunal is not bound by the rules of evidence and may enquire to inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

23 In an appeal from the Appeal Panel under section 119 ADT Act, this Court is limited to the identification of an erroneous answer in respect of a question of law: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187. Thus, in circumstances where this Court has no jurisdiction to overturn factual findings of the Tribunal, it does not matter, for the purpose of the present applications, whether the Tribunal was mistaken in receiving this document or not. However, I should say that I see not the slightest reason to doubt its authenticity.

24 Some of the legislative provisions have changed recently. The form in which I quote them is the form they had at the times relevant to this litigation.

25 The BDMR Act contains the following provisions:

“The objects of this Act are to provide for:

…

(c) the registration of changes of name … and

(d) the keeping of registers for recording and preserving information about … changes of name … in perpetuity, and

…”

26 Section 4 defined “change of name” as including “an addition, omission, or substitution”. Section 4 also defined a “registrable event” as meaning:

“… a birth, adoption or discharge of adoption, change of name, death or marriage.”

27 Section 13

“ Cases in which registration of birth is required or authorised “

(1) If a child is born in the State, the birth must be registered under this Act.

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

(3) If a child is born:

(a) in an aircraft during a flight to an airport in the State, or

(b) on a ship during a voyage to a port in the State,

the birth may be registered under this Act.

(4) If a child is born outside the Commonwealth, but the child is to become (or in the case of a stillbirth, was to become) a resident of the State, the birth may be registered under this Act.

…”

28 Section 23(1)

“ Duty to register adoptions

If a State adoption order is made or an order is made for the discharge of such an order, the adoption or discharge of adoption must be registered under this Act.”

29 Part 5 of the BDMR Act (which runs from section 26 to section 32 inclusive) relates to the topic of change of name. It included the following provisions. Section 26:

“ Change of name by registration

A person’s name may be changed by registration of the change under this Part.”

30 Section 27

“ Application to register change of adult’s name

An adult person:

(a) who is domiciled or ordinarily resident in the State, or

(b) whose birth is registered in the State,

may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person’s name.”

31 Section 31(1)

“ Entries to be made in the Register

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

…”

32 Section 32

“ Change of name may still be established by repute or usage

This Part does not prevent a change of name by repute or usage.”

33 Other relevant provisions of the BDMR Act included: Section 33

“ Cases in which registration of marriage is required

If a marriage is solemnised in the State in accordance with law, the marriage must be registered under this Act.”

34 Section 36

“ Deaths to be registered under this Act

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

…

(3) If a person dies:

(a) in an aircraft during a flight to an airport in the State, or

(b) on a ship during a voyage to a port in the State,

the death may be registered under this Act.”

35 Section 43(1)

“ The Register

(1) The Registrar must maintain a register or registers of registrable events.

(2) The Register:

(a) must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register, and

(b) may contain such further information as the Registrar considers appropriate for inclusion.

(3) The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate.

…”

36 Sections 47 and 48 contain provision for the Registrar to search the Register, when application is made to him to do so by a person who has adequate reason for wanting the information, for an entry about a particular registrable event. Section 49 provided:

“ 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.

…”

37 Section 55A

“ Registrar may collect and maintain other information

(1) The Registrar may collect and maintain records of information, other than registrable information, relating to registrable events.

…”

“registrable information”

“information that must or may be included in the Register”

38 Section 56

“ Review by the Administrative Decisions Tribunal

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.”

39 The Births, Deaths and Marriages Registration Regulation 2006 (“BDMR Regulation”) provided, in clause 8:

“ Registration of change of name

(1) For the purposes of section 31 (Entries to be made in the Register) of the Act, the following particulars are required:

(a) the sex and date and place of birth of the person whose change of name is being registered,

(b) the name of the person immediately before the change of name,

(c) the name first given to the person after birth and any other name shown on the person’s birth registration,

(d) any other former names of the person,

(e) the new full name of the person,

(f) the full names of the parents of the person (as at the date of the person’s birth or registration of the person’s birth).”

PART B – APPEAL FROM ADT PROCEEDINGS

The ADT Proceedings

First Instance ADT Proceedings

40 The ADT Proceedings were begun on 21 December 2007. They were brought pursuant to section 56 of the BDMR Act. The application for review identified the decision the review of which Ms Avery was seeking, as one made on 11 December 2007. She identified it by the reference number of the entry in the Register that had effected the change of name. The decision was identified as:

“1/ In Change of Name Certificate # XXXX6/2007 Registry of BDM BDM entered under former name, name that had never being registered; Registry refuse to correct the inconsistency;

2/ the Registry verbally advised me about cancellation of the Certificate and then about it was not cancelled;

3/ the Registry invalidated previous Change of Name Certificate # XXXX7/1997 and new Certificate is invalid because of inconsistency the Registry refused to correct;

the public interest

41 Thus, the substantial issue of complaint was the inclusion of the name Stephanie Tatiana Avery. Her application asserted, “I do not get name Stephanie Tatiana Avery under common law or any other laws or by the court order.”

42 A judicial member of the Tribunal gave a decision on 6 March 2008. He rejected an argument “that regulation 8 should be read down to provide that the registration of a change of name should only record former registered or former names that an applicant wishes to have included.” He held that on the true construction of regulation 8 “any former name can be included, and it is not just registered names or names that an applicant wants to have included.”

43 Ms Avery had argued that the RTA’s recording of Stephanie Tatiana Avery as one of her former names was a mistake. However the Tribunal found:

“… the applicant has used that name for the best part of ten years. Not at all times, but at some times she has used the name Stephanie Tatiana Avery. That is clear from the statutory declaration that the applicant has made on 10 December 2007 where she states that the name she is using is Stephanie Tatiana Avery. There is also a statutory declaration made on 10 December 2007 independent of that application for the change of name, where the name Stephanie Tatiana Avery is used.

Director General, Department of Community Services v The Adoptive Parents

Williams v Bryant

That being the case I think Stephanie Tatiana Avery is a former name and is correctly recorded and therefore, I think the Registry has made the correct decision and it should be affirmed.”

Appeal Panel ADT Proceedings

44 She appealed to the Appeal Panel of the Tribunal pursuant to section 113(2) ADT Act. Such an appeal:

“(a) may be made on any question of law, and

(b) with the leave of the appeal panel, may extend to a review of the merits of the appealable decision.”

45 Her Notice of Appeal to the Appeal Panel, dated 28 April 2008 sought both leave to appeal on a question of law, and leave to extend the appeal to the merits.

46 She sought to extend the decision to the merits, essentially to question the finding that Stephanie Tatiana Avery was a former name.

47 The Appeal Panel gave its decision on 31 October 2008. It concluded, at [36]:

“… the Tribunal made an error of law by interpreting the phrase ‘any other former names of the person’ to include a name that a person has used on occasions. To be a ‘former name’ a person must use an alternative name consistently, not merely on a few occasions.”

48 As the Tribunal’s factual finding had been made by reference to what the Appeal Panel held was a legally incorrect test, the Appeal Panel gave leave to extend the appeal to the merits of the Tribunal’s decision on that question. It examined the evidence for itself, and also took into account some answers that Ms Avery had given to questions from the Tribunal. The evidence included a notification of electoral enrolment dated 1 March 2007 issued to Ms Avery in the name of Stephanie Tatiana Avery. The Appeal Panel’s findings, at [37]-[39], were:

“… The use of the name Stephanie Tatiana Avery appears to have begun in 1997 when the RTA issued Ms Avery with a driver’s licence in that name. Ms Avery maintains, and we accept for the purpose of these proceedings, that that was a mistake and that Ms Avery’s actual name was Stephanie Tatiana Patricia Avery. Ms Avery’s argument was that the name on her driver’s licence was not ‘lawfully acquired’, therefore it is not a former name. She changed the name on her driver’s licence in January 2008. Identification documents containing her full name include her citizenship certificate, her passport and her student card. Ms Avery’s Medicare card identifies her as Stephanie T Avery.

When Ms Avery applied to change her name on 10 December 2007 she needed to complete a statutory declaration. Under the heading ‘Name you are using at present’, Ms Avery wrote ‘Avery, Stephanie Tatiana’. On the same day she signed another statutory declaration giving her name as Stephanie Tatiana Avery. When questioned by the Tribunal about why she used that name on these forms she agreed (at paragraph 16 of the transcript) that it was a name by which she was known but did not agree that it was a legal name. She said she never intended to change her name to Stephanie Tatiana Avery and did not want it to be recorded as a former name.

Registration Regulation

49 Ms Avery submits that the Appeal Panel has erred in law in that

the expression “any other former names” in clause 8(d) BDMR Regulation applies only to names of a person that have been registered.

that expression applies only to names that a person has willingly adopted, and that she has never willingly adopted the name Stephanie Tatiana Avery.

it is not possible for a person to have two “names” within the meaning of the BDMR Regulation , at the one time.

“name”

“former name”

50 She accepts, accurately enough, that “provisions of legislation and enactments should be interpreted in context. Words are taken to have ordinary meaning where is no specific definition.”

Names in Ordinary Usage

51 There is no definition of “name”, “former name”, or “any other former name” in the BDMR Act. Thus, the consideration of the meaning of those expressions should start with a consideration of ordinary English usage, and then proceed to considering whether the language of the Act as a whole, and its purpose, shows that the meaning in the particular context is in some way different to the ordinary English usage.

52 In the ordinary course of English usage, a “name” is a word that refers to a person, thing, or type of people or things that is seen as being sufficiently important to justify individual singling out. It is in having this function that names – those words which grammarians call proper nouns – are distinguished from other nouns. Thus there can be names for individual people, animals, countries, cities, streets, natural geographical features like mountains oceans and rivers, buildings, companies and associations, to mention just a few of the sorts of things that can have individual names. Sometimes a name is applied to a type of thing, rather than an individual thing – eg a particular breed of sheep or dog, or the name is a “trademark” that indicates a particular make of car or other species of goods or services – but that is not the focus of our present concern.

53 In the ordinary usage of the term, it is not necessary for the name of a person to be used by all the people who wish to refer to a particular person, before that name is indeed the name of that person. Thus someone who is known at his workplace as Alexander Smith, or Alex Smith, might be called Sandy by family and close friends – all of those are his names.

54 In the ordinary usage of the term, it is not uncommon for the one person to have more than one name. William Shakespeare is sometimes called The Bard, but that does not mean that his name is not still William Shakespeare. Vladimir Ilyich Ulyanov is better known as Vladimir Lenin – but they are both his names.

55 In particular, there is nothing unusual about one person having two names at the one time. It is quite common for a woman who is known by a particular name in her business or profession, and who subsequently marries, to retain the name she has always had for business or professional purposes, even if (as frequently happens, particularly if she has children) she is also known by her husband’s surname in connection with family matters. The use of pen-names and stage names is widely understood – there can be no real doubt that if someone in nineteenth century England had left a legacy to Lewis Carroll, or to George Eliot, then Charles Dodgson and Mary Anne Evans respectively would have been entitled to receive those legacies, or that Boy George is better known by that name than by the name of George Alan O’Dowd. The use of nicknames or shortened names, at the same time as someone also uses their full name for certain business or formal purposes, is common. The difference in the names that a person can have at the one time can range from the comparatively small difference involved in a person being known as both Jim Smith and James Smith, to the large difference that occurs when one of a person’s names has no linguistic element in common with the other. (Nor is having more than one name at the one time confined to humans. TS Eliot has asserted that, “ … a cat must have THREE DIFFERENT NAMES”: “The Naming of Cats”, Old Possum’s Book of Practical Cats, Faber & Faber London 1939.)

Recognition of Names by Law

56 In some circumstances, an entity has a name only because the law gives it that name. A company provides one example. It comes into existence by the administrative act of registration. Section 119 Corporations Act 2001 (Cth) provides: “[t]he company’s name is the name specified in the Certificate of Registration.” Before registration, that name is merely a “proposed name” (section 117(2)(b) Corporations Act). Section 148 Corporations Act restricts the names that a company may have. Section 157 Corporations Act prescribes a particular method that a company must use to change its name. In this legislative scheme, a company has a particular name only because the law provides for it to have that name.

57 By contrast, natural people frequently (though not always) have a name independently of that name being conferred on them by some legal action. Frequently, that X in the name of some particular person is simply a fact about language use that does not depend upon there being any legal authority to confer or recognise the name.

58 That the name of a person is often a question of fact and not dependent on any legal authority has been recognised in this Court in Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268. That case involved the construction of section 101(5) Adoption Act 2000. That subsection provided that, on the making of an adoption order, the court:

“… must not approve a change in the given name or names of a child … unless there are special reasons, related to the best interests of the child, to do so.”

59 In construction of that statute, Giles JA held, at [25]:

not necessarily either officially conferred or recognised by the child as referring to him or her

60 At [33], Giles JA said:

in the sense of conferred on the child. What name or names have been conferred on the child is a question of fact

61 Before enactment of the BDMR Act, there were various different legal contexts in which the law recognised that it was possible for a person to come to have a name that was different to the name with which they started life, where that new name is acquired by repute or usage. However, for the law to recognise that a person has a name that has been acquired by repute or usage is not the same as saying that the name has been changed pursuant to the law.

62 However, the precise shade of meaning that a court attributes to the word “name” can depend on the litigious context in which the court is deciding what is a person’s “name”. Deciding that shade of meaning is a question of law, but whether a person has a name, in that shade of meaning, is then a question of fact. Director General v Adoptive Parents involved construction of “name” in the context of the Adoption Act 2000, and the construction held to apply was influenced by the purpose of that Act. Other cases have involved construction of “name” in the context of a provision of the legislation regulating marriage, that required a marriage be preceded by publication of banns that gave the names of the persons proposing to marry, where the construction adopted was influenced by the purpose of the legislative requirement, namely that people hearing the banns would be able to identify the people proposing to marry (eg R v St Faith’s Newton (Inhabitants) (1823) 2 Dow & Ry MC 34; R Billingshurst Inhabitants (1814) 3 M & S 25; 105 ER 603). Cases that have turned on construction of a clause in the will that made a gift dependent upon a person using a particular “name” have construed the word “name” bearing in mind the likely purpose of the testator in imposing such a condition on the gift (eg Davies v Lowndes (1835) 1 Bing NC 597; In Re Neeld Deceased; Carpenter v Inigo-Jones [1962] Ch 643). Standard Property Investment plc v British Plastics Federation (1985) 53 P&CR 25 involved construction of a statutory provision requiring a charge on old system land to be “registered in the name of the estate owner”, and it was considerations of practicality concerning how the registration system could work that led Walton J to hold that the “name of the estate owner” in that statutory provision was the name of that person as shown in the conveyance by which they had purchased the land, even if that name was a shortened version of their full name.

involved the construction of the will of a Mr Selby, which gave a gift to William Lowndes “on condition he changes his name to Selby”. Mr Lowndes came to refer to himself as William Lowndes Selby, and then later came to refer to himself as William Selby. At 618 Lord Tindall CJ said:

“… There is no necessity for any application for a royal sign manual to change the name. It is a mode which persons often have recourse to, because it gives a greater sanction to it, and makes it more notorious; but a man may, if he pleases, and it is not for any fraudulent purpose, take a new name and work his way in the world with his new name as well as he can.”

64 In Earl Cowley v Countess Cowley [1901] AC 450 at 460, Lord Lindley said:

Davies v Lowndes

Du Boulay v Du Boulay

allows

65 Many of the events that are registrable events, within the meaning of the BDMR Act, have occurred quite independently of registration under that Act. Thus, a birth, or a death, has occurred, even if it has not been registered. The provisions of the Act concerning change of name are different in this respect. Under section 26, it is registration that causes or constitutes the change of the name – the person’s name is “changed by registration of the change”. That Part 5 is concerned with registrations that themselves effect a change of name is also shown by section 30(1)(a) and (c), which refer to an applicant under that part as “the person whose name is to be changed”.

66 The facility for effecting a change of name by registration of the change enabled a person wishing to change his or her name to have greater certainty that the change had been effected than the facility for registration of a deed poll that had previously existed. In In Re T (otherwise H) (an infant) [1963] Ch 238, Buckley J said, at 240:

Informal v the Electoral Officer

67 Contrary to a submission that Ms Avery made, when the Tribunal found that she had had Stephanie Tatiana Avery as a name, in accordance with criteria that had been recognised under the common law, it was not exercising a legal function that was outside its jurisdiction – it was simply construing the BDMR Act, and finding a fact.

Must a “Name” or “Former Name” be a Registered Name?

68 There are numerous indications in the BDMR Act that a “name” or “former name” need not be a name that is registered under that Act.

69 First, sections 13 and 14 of the BDMR Act require that when a child is born in New South Wales, its birth be registered by the giving of a Birth Registration Statement to the Registrar. Section 21(1) provides:

“The birth registration statement must state the name of the child.”

“name”

70 Second, the BDMR Act specifically recognises, in section 32, that the provisions of the Act concerning change of name do not prevent a change of name by repute or usage. This necessarily means that, after a change of name by repute or usage, the person has something that the Act recognises as a “name”, but which is not registered.

71 Third, that a person can have a “name” within the meaning of the BDMR Act, which is not registered, is consistent with the way in which section 26 provides that a person’s name may be changed by registration of the change, and section 27 provides that an adult with a sufficient connection with New South Wales may apply to the Registrar for registration of a change of the person’s name. Similarly, concerning births or deaths that do not happen in the State, but that have some nexus with the State, sections 13(3) and (4), and 36(3) provide a facility for registration, without making it compulsory.

72 That permissive language is to be contrasted with the must contained in section 13(1) and (2) concerning registration of births, in section 23 concerning registration of the making or discharge of a State adoption order, in section 33 concerning marriages solemnised in New South Wales and in section 36 concerning registration of deaths that occur in New South Wales. It is also to be contrasted with the provisions of section 29, whereby:

“ Child’s consent to change of name

must

(a) the child consents to the change of name, or

(b) the child is unable to understand the meaning and implications of the change of name.” (emphasis added)

73 Fourth, section 43(1) obliges the Registrar to maintain a register or registers of “registrable events”, and a change of name is a “registrable event”. However, that does not mean that every “registrable event” must be registered. Rather, certain specific provisions of the BDMR Act (such as sections 13(1), 13(2), 23(1), 33, 36(1), and 36(2)) create an obligation to register certain specific types of registrable events. Other specific provisions of the BDMR Act confer a facility to register certain specific types of registrable events, without making registration compulsory. Thus, a “registrable event” is an event that is capable of being registered, but it is only for those events where some specific provision of the Act creates an obligation to register that it must it be registered. There is no provision of the Act that creates an obligation to register a change of name.

74 Fifth, some of the people who are entitled to change their name by registration under Part 5 of the Act would have no registered name. The people who can avail themselves of the facility to change their name by registration under Part 5 are identified by section 27 (quoted at para [30] above). Of those, any adult person whose birth is registered in the State would have a name that was contained in the Register. That is because:

The immediate predecessor of the BDMR Act , the Registration of Births, Deaths and Marriages Act 1973 (the “ 1973 Act ”) had provision in section 11(3) for recording the name of any child born in New South Wales;

The immediate predecessor of the 1973 Act, the Registration of Births, Deaths and Marriages Act 1899 (the “1899 Act ”) had provision, in sections 8 and 19 for the registration of the birth of any child in New South Wales, and section 23 proceeded on the basis that the registration will include (either at the time of the original registration, or later) the name of the child;

Schedule 3, clause 3 of the BDMR Act provides that a register kept under the 1973 Act forms part of the Register under the BDMR Act ;

1973 Act

75 However, it is inevitable that there would be people domiciled or ordinarily resident in the State, who had not been born, adopted, married or undergone a sex change here, and in relation to whom the facility sometimes available under the BDMR Act and its predecessors for a birth death or marriage to be registered here had not been availed of, for whom no name would appear anywhere in the Register. When section 27 clearly contemplates that those people may apply for registration of a change of name, it could not be the case that the only names that can be changed under Part 5 of the BDMR Act are names that are already registered. Indeed, when Ms Avery changed her name in 1997, pursuant to the BDMR Act, it is likely that she was changing a name that was not already registered.

76 Ms Avery, in some submissions, spoke as though section 3(d) said that one of the objects of the BDMR Act was to enable changes of name that had been made in perpetuity to be recorded and preserved. As I understood it, that reading of section 3(d) supported an argument that a “name”, within the meaning of the BDMR Act, was one that had been adopted through a formal process. However, in putting those submissions, Ms Avery is misreading the syntax of section 3(d). Rather, one of the objects of the Act is to make provision for information about births, adoptions, deaths, marriages, changes of name and changes of sex to be recorded and preserved in perpetuity in registers kept under the Act.

77 Clause 8 of the BDMR Regulation should be construed in a way that is consistent with the BDMR Act itself. When clause 8(b) requires the recording of “the name of the person immediately before the change of name”, and a person who has no name at all recorded in the Register is able to change their name, then a “name” within the meaning of clause 8 of the Regulation cannot be restricted to registered names. Thus, the requirement of clause 8(d) to record “any other former names of the person” extends to “other former names” that are not registered names.

Must a “Former Name” be one that was Willingly Adopted?

78 Clearly, the initial acquisition of a name by a child is not the result of any conscious decision on the part of the child. Sometimes, the name of a child can be changed, as can happen upon adoption, without any conscious decision on the part of the child. Those names acquired on birth or adoption can be changed under Part 5 of the BDMR Act. In my view, they are “former names” of the person who changes their name. In the present case, Ms Avery does not assert that the name given to her at birth is not a “former name” within the meaning of clause 8(d), even though that name was not one that she willingly adopted.

was a case about the validity of a deed poll that had been executed by a woman who was divorced from her first husband and had remarried. By the deed poll she purported to change the surname of the child of the first marriage, so that it became the same as her new married surname. At 240-1 Buckley J said:

“… a change of name on the part of an adult must, in my judgment, involve a conscious decision on the part of the adult that he wishes to change his name and be generally known by his new name.”

80 That remark, on which Ms Avery relies in the present case, was a dictum. The dictum was accepted by Slicer J in Informal v The Chief Electoral Officer (Supreme Court of Tasmania, 18 February 1992, unreported).

81 I do not agree that the dictum is correct, insofar as it contains a “must”. Even for an adult, it is possible, as a matter of ordinary usage, for a name to come to apply to a person without any conscious decision on the part of that person to adopt it. A migrant with a given name that his or her fellow workers deemed unpronounceable or inconvenient might be called by them by an Anglo-Celtic name that they found easier to use, and the migrant might come to respond to and use that name, at least at work, or possibly more widely. Acquiescence in the use of a name conferred by another can, as a matter of ordinary usage, be a way of acquiring a name. There is no reason to construe “name” in BDMR Act differently. When government officials gave Ms Avery means of identification that did not state her full name correctly, and she continued to use those means of identification for years, that can suffice for the name shown on those means of identification to be a “former name” that she had.

Can a Person have More Than One Name at One Time?

82 Section 16 BDMR Act requires a person responsible for having the birth of a child registered, to have that birth registered within 60 days after the date of the birth. As mentioned, the Birth Registration Statement “must state the name of the child”. Thus, the Act presupposes that the child has a name even before its birth is registered.

83 In a community in which, even in 1995, a significant proportion of children were not baptised at all, and many of those children who were baptised would be baptised more than 60 days after the date of their birth, the “name” that is required to be registered for the child cannot have been intended to be, or include, a “Christian name”, in the sense of a name that is conferred at baptism. Disputes about whether a “Christian name”, strictly so-called requires some particular formality for change (referred to in Director General v Adoptive Parents at [31]), and about whether a person can have more than one Christian name, can therefore be put to one side for the construction of the BDMR Act. However, as Giles JA said in Director General v Adoptive Parents at [31]:

R v Inhabitants of Billingshurst

Williams v Bryant

“Christian”

84 In Davies v Lowndes, Lord Tindall CJ accepted that, for the purpose of construing the will in front of him, it was not necessary for the name “Selby” to have been used on absolutely all occasions. He said, at 618:

“… though in some particular acts he might use the other name, it would not at all interfere with the general act of changing his name.”

does not cast doubt on it being possible for a person to have two names at the one time, within the meaning of the BDMR Act. In Re Neeld concerned a will under which the testator directed that any person becoming entitled to a particular gift under the will must:

“… take upon himself and use upon all occasions the surname of Inigo-Jones only and quarter the arms of Inigo-Jones with his or her own family arms and shall within the space of one year next after the period hereinbefore prescribed apply for and endeavour to obtain a proper licence from the Crown or take such other means as may be requisite to enable him or her to take use and bear the surname of Inigo-Jones only and arms of Inigo-Jones

“discontinue to take or use such surname and arms”

Re Howard's Will Trusts

It is important to note that the assumption of a new name in fact involves at the same time a discontinuance or disuse of the old name. When “X” has assumed the name “Y”, he has thereby discontinued or disused the name of “X”. He cannot sensibly either be nameless, on the one hand, or use two surnames (apart from a pen name or something of that sort), on the other. I do not think anyone could be under any misapprehension as to what he has to do if he is told in effect that if he desires to enjoy certain estates, he is to change his name from “X” to “Y”.”

86 In my view it is important to read these remarks in their context. The clause required the beneficiary to use “upon all occasions the surname of Inigo-Jones only” – manifestly that was inconsistent with having two surnames at the one time, and when Upjohn LJ said that to change a name, a person “must then use that name on all occasions” he was, it seems to me, reflecting the requirements of the particular clause he was construing. It is also important that the context was one where it was use of surnames that was involved, not whether a person had acquired as an additional name a shortened version of her forenames. The Respondent correctly submits:

“There is a significant qualitative difference between simply acquiring an alternative name and relinquishing one name for another. The latter may go to the heart of a person’s identity, where as the former means merely that a person may be validly identified by a name he or she has used and by which he or she has become known.”

The case does not provide authority against the possibility of a person simultaneously having two “names” , within the meaning of the BDMR Act .

Is a Shortened Name a “Different Name”?

87 The scope of the “former names”, within the meaning of clause 8(d) of the BDMR Regulation that must be registered will depend upon the purpose of the legislation. That purpose includes providing a means of proof (including in a court, under section 49(2) BDMR Act, but more generally in daily life as well) that two different names refer to the one person. It might be for the benefit of the person who is changing names to be in a position to establish that he or she was identical with the person of the former name (as would be the case if Ms Avery had been charged, on 12 December 2007, with driving a motor vehicle while unlicensed). It might be for the benefit of others that there be such a means of proof (as would be the case if someone who had a bad credit history and changed his or her name then applied for a loan using the new name). It well may be (though it is not necessary to decide) that a nickname that was applied to a person only in family or social situations would not be regarded as a separate “name” within the meaning of the BDMR Regulation, because it was not within the purpose of the legislation that such a former name be registered.

88 While it was implicit in the decision of the Appeal Panel that a person could have two names, within the meaning of the BDMR Regulation, at the one time, its actual decision was closely tied to the facts of the instant case. In this community, a driver’s licence is a very important, and probably the most important, means of identification that a person uses in everyday life. Being enrolled for voting under a particular name is socially a very significant usage of that name. The admission, in the statutory declaration that she submitted to the Registrar on 10 December 2007 that a name she was using at present was Stephanie Tatiana Avery (see [21] above) was an admission entitled to significant weight. The reason that the Registrar had for including Stephanie Tatiana Avery as a former name (namely, that she was known for some official purposes by that name, and could encounter difficulty in changing the name by which she was known for those purposes if the shortened form of her name was not included as a former name – see [17] above) is well within the purpose of requiring the registration of former names upon a change of name. I see no error of law in the Appeal Panel having implicitly found that she had two “names”, within the meaning of the BDMR Regulation, at the one time.

89 The Tribunal found that “to be a former name a person must use an alternative name consistently, not merely on a few occasions”. The word “consistently” there clearly was not intended to mean “exclusively”. The point that the Tribunal was making was that use of a name on a few occasions would not suffice. How much use of a name is needed for it to become the name of a person is a matter of fact and degree.

90 Ms Avery submitted to the Appeal Panel that the Registrar was acting outside his power in the recording of a former name under the heading “Endorsements” on a certificate that he issued. The Appeal Panel dealt with that point simply by saying that it accepted the Registrar's explanation that that was the only place on the form where there was room to include some of Ms Avery's former names. Ms Avery repeats the submission to us.

91 The information that the Registrar is obliged to record in the Register upon effecting a change of name is that identified in clause 8 of the BDMR Regulation. The form that he has adopted for effecting Ms Avery’s change of name in the Register includes the following headings:

1 Number: File Reference:
2 Reg Date:
3 Applicants Name:
4 Relationship:
5 Applicants Add:
6 NEW NAME
7 Family Name:
8 Given Names (s):
9 Birth Date: Sex:
10 Birth Place:
11 Mother/Parent:
12 Father/Parent:
13 FORMER NAME
14 Family Name at Birth:
15 Given Name (s) at Birth:
16 2 ^nd Former Family Name:
17 [2 ^nd ] Former Given Names:
18 3 ^rd Former Family Name:
19 [3 ^rd ] Former Given Names:
20 BIRTH VERIFICATION DETAILS
21 Documents Produced:
22 COURT ORDER
23 Court:
24 Reg Number:
25 Amendments:
26 Former Family Name:
27 Former Given Name (s):
28 The above name is the 4 ^th former family name of this person.

92 The sex and date and place of birth referred to in clause 8(a) are at lines 9 and 10. The “person whose change of name is being registered”, referred to in clause 8(a), and the “name of the person immediately before the change of name” referred to in clause 8(b) are at line 3. The details referred to in clause 8(c) are at lines 14 and 15. The details referred to in clause 8(d) are at lines 16 to 19, and 25 to 28. The detail referred to in clause 8(e) is at lines 6 to 8. The type of detail referred to in clause 8(f) is at lines 11 and 12. (The type of detail referred to in clause 8(f) has in fact been included, so there has been no issue about whether the Registrar in always obliged to include this information concerning people born overseas.)

93 Thus, the Register has had included all the types of information referred to in clause 8. Further, even though the Registrar has used the heading “Endorsements” in a certificate he has issued to Ms Avery, that heading does not appear in the detail recorded in the Register. It is the making of the entry in the Register that is critical for effecting a change of name, not the form of a certificate that might thereafter be issued.

94 If the Registrar issues a certificate that certifies the particulars that are contained in this entry relating to Ms Avery, he will have complied with his obligation under section 49 BDMR Act. That section says nothing about the form that he must adopt for any such certificate. Provided the certificate certifies particulars contained in the entry in the Register, it is a matter for the Registrar’s discretion what form the certificate takes. I do not see that recording in such a certificate one of her former names under a heading “Endorsements” is beyond that discretion of the Registrar. This ground of appeal fails.

95 Ms Avery’s submissions seemed to assume that if there had been any departure from the statutory requirements, her attempt to change her name in December 2007 would have been invalid. I have concluded that there has been no departure from the statutory requirements. However, even if there had been a departure from the statutory requirements, it would not automatically follow that the change of name was invalid. Rather a question would have arisen of whether it was the statutory intention that the particular departure from the requirements of the statute that had occurred would invalidate the change of name: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

96 Although it is the consequence of this decision that her change of name in December 2007 was effective, apart from in one letter to the Registrar in December 2007 she appears to have not actually used the name she then acquired. All her litigation about the change of name has been conducted under the former name. It may be that, by conducting litigation in that manner and through any other usage of the former name that she has made in the course of her daily life, she has re-acquired the former name by reputation and usage, but that is a matter beyond the scope of this decision.

97 In my view the appeal with respect to the ADT Proceedings should be dismissed with costs.

PART C – CONCURRENT HEARING RE COMMON LAW PROCEEDINGS

98 By August 2008 Ms Avery had obtained, pursuant to the Freedom Of Information Act1989 ("FOI Act"), copies of certain of the internal documents of the Births, Deaths and Marriages Registry relating to herself. On 19 August 2008 Ms Avery wrote to an officer of the Attorney General’s Department making what she described as an “application to correct records under Part V of Freedom of Information Act 1982”. She annexed copies of two documents, each described as “change of name data entry screen”, one of which related to the change of name that had been effected in December 1997, the other of which related to the change of name effected in December 2007. The first of those documents incorrectly showed her family name at birth as “Orlov”, and her “second former family name” as “Yurovich”. The second of those documents gave her family name at birth as being a misspelt version of Yurovich, said that her second former family name was Avery (with former given names Stephanie Tatiana), and that her third former family name was Orlov (with former given names of Tatiana Isabella). Under a heading “amendments” it said that she had a “former family nameas” (sic) of Avery and former given names of Stephanie Tatiana Patricia. In other words, this document closely mirrored the Change of Name Certificate that she had been given on 11 December 2007, and about which she had made complaint.

99 The letter of 19 August 2008 requested that her birth names on each of those certificates be corrected.

100 She also annexed a third document headed “change of name data entry screen”, dated 11 December 2007, that showed her as having a third former family name of Orlov, with former given names of Stephanie Tatiana Patricia. At no time had she had that combination of family names and given names. She asked for that incorrect entry to be removed from the Register.

101 Her fourth request in the letter was:

“(4) correct presentation of the change of Name Certificate so that on the face of Certificate appear in wording the particulars that require by Section 8 of Birth, Death and Marriages Registration Regulation 2008 as following:

New Name: STATE THE NAMES

The name of person immediately before change of name event: STATE THE NAMES

Name on birth registration: STATE THE NAMES

Other former names: STATE THE NAMES

Names of the parents at the date of the person’s birth registration or birth: STATE THE NAMES

102 Ms Avery’s application for correction of the Register was made pursuant to section 39 FOI Act, which provides:

“A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.”

103 A response from the Attorney General’s Department on 26 August 2008 recognised that the application was intended to be under the Freedom of Information Act 1989 (NSW). An officer of the Attorney General’s Department replied further to Ms Avery’s request on 15 September 2008. The letter said:

“ Point 1 – your concerns that the Register shows your birth name as being [Orlov, Tatiana Isabella].

A technical error in the BDM database has resulted in the Register showing the incorrect name at birth. The Registry is now investigating how this occurred with the Department’s IT representatives, and this will be rectified as soon as possible. The change of name certificate currently in your possession does not identify this name as your birth name, but as a former used name.

Point 2 – your concerns that your birth name is incorrectly recorded in respect of a Change of Name Certificate.

The same technical mistake has resulted in the same incorrect name at birth showing on registration XXXX6/2007. The Registry states that you have a voided Change of Name Certificate for this registration. The certificate was voided under orders made by the Administrative Decisions Tribunal (ADT). The corrections referred to by you were made on 11 December 2007.

Point 3 – your request to amend the Register by correcting the name ‘[Orlov, Stephanie Tatiana Patricia]’ to ‘Avery, Stephanie Tatiana Patricia’.

The name [Orlov, Stephanie Tatiana Patricia] appears in the Register because of the technical error referred to above. This will be rectified as soon as possible. However, no certificate can be issued from this registration until the ADT ruling.

Point 4 – your concerns over the accuracy of the records and information on the change of name certificate.

The BDM Register and a certificate are two separate entities. The Registrar has the power to decide the format of any certificate issued by the Registry, as well as the information that will appear on it. However, only information recorded in the Register can appear on a certificate. The information you refer to is recorded in the Register.

The Registry advises that your requests in this regard cannot be accommodated and that the current format for a change of name certificate and the information that appears will remain as it is.

The purpose of a Change of Name certificate is to certify that a person has registered a change of their name. It does not replace a birth certificate. The names of parents are not included on any change of name certificate, and the Registry cannot verify parental information of people who are born overseas. A change of name certificate should not be used in isolation as a proof of identity document, but rather in conjunction with the person’s birth certificate or other documentation.

The Registry notes that your comments about maintaining correct records and a history of a person’s legal identity are correct. The Registry maintains a person’s history of legal identity by recording all former names used by a person applying to register a change of name and confirms that there are currently proceedings between you and the Registry about this issue in the ADT.

Births Deaths and Marriages Act

The ADT ruled in favour of the Registry on this point, but the outcome of your appeal is awaited.”

104 Ms Avery regarded that letter as a Determination under the FOI Act, and as a deemed refusal of her application. Her contention that there had been a deemed refusal of her application for the Registry to amend its records was based in section 43 FOI Act, which provides:

“(1) An agency shall determine an application:

(a) by amending its records in accordance with the application, or

(b) by refusing to amend its records.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 47 and other provisions of this Act, be taken to have determined the application by refusing to amend its records in accordance with the application.”

105 By letter dated 2 October 2008 to the Director-General of the Attorney General’s Department she applied for internal review of the deemed Determination. Section 47(1) FOI Act entitles a person aggrieved by a determination made by an agency to apply for a review of that determination. Under section 47(6) an agency that fails to determine an application for such a review within 14 days after it was received by the agency was taken to have made a determination under section 43 of refusing to amend its records in accordance with the application.

106 On 16 October 2008 an officer of the Attorney General’s Department replied to her, returning the postal order that she had sent as the fee for an internal review, and saying:

FOI Act

107 On 19 August 2008, the same day as she had made application under Part V of the FOI Act for correction of her records, she also made an application to the ADT for leave to lodge additional documents and submissions in her appeal to the Appeal Panel. On 3 September 2008 the Registrar of the ADT wrote to Ms Avery saying:

“The solicitor for the respondent has submitted that your application raises new information and applies for orders which were not the subject of the decision under appeal and were not raised in the hearing of 30 July 2008. The respondent also submitted that if the Appeal Panel is minded to take this additional information into account, the respondent would wish to be heard on this material.

The Appeal Panel will make a determination in relation to your application. If that determination is that the new material should not be taken into account, and there is no need to hear further from the parties, reasons for that view will be provided in the final decision. If the Appeal Panel’s view is that it needs to hear further from the parties in relation to this application, you will be advised of a hearing date for that purpose.”

108 The Common Law Proceedings were begun on 22 October 2008 when Ms Avery filed a Statement of Claim in the Administrative Law List of the Common Law Division of the Supreme Court of NSW. Thus, as mentioned earlier, it was filed before the Appeal Panel had given its decision. It named as the defendant “NSW Attorney General’s Department”.

109 The Statement of Claim sought orders of two different types. First, it sought three orders in the nature of mandamus. One of them was that the Births, Deaths and Marriages Register be amended to comply with clause 8 of the BDMR Regulation. Another was that that Register be amended so as to alter some of the names that it showed Ms Avery as having. Another was that a Change of Name Certificate should be issued showing her correct particulars. The second type of order was for damages.

110 In the Statement of Facts and Circumstances said to justify that relief, Ms Avery made some allegations about the way in which the application that she had made under the FOI Act to the Legal Services Branch of the Attorney General’s Department had been dealt with. In substance, she said that the failure of the Department to deal with her application to correct records was a deemed refusal, and the Department was not entitled to refuse to grant an internal review of that deemed refusal on the basis of the decision of the ADT still being outstanding. She stated that both the Register, and the Change of Name Certificate, failed to comply with the requirements of the BDMR Regulation.

111 On 27 November 2008 the Crown Solicitor’s Office filed a Notice of Motion in the Common Law Proceedings. The cover page of that Notice of Motion identified the defendant in the matter as “State of New South Wales (named as the Attorney General’s Department)”. The Notice of Motion sought orders that the plaintiff’s proceedings commenced by Statement of Claim filed 22 October 2008 be summarily dismissed as against the defendant pursuant to Part 13, rule 13.4(1) of the Uniform Civil Procedure Rules, or alternatively, that the plaintiff’s pleading be struck out.

112 The Statement of Claim in the Common Law Proceeding was not amended at any time. By Notice of Motion filed 26 February 2009 Ms Avery sought leave to file an Amended Statement of Claim. She provided a copy of the Amended Statement of Claim that she wished to file. The amendments it made were all to the prayers for relief. The mandatory orders that it sought were identical with those that had been sought by the original Statement of Claim, save only that the order to amend the Register to comply with section 8 of the Regulation was stated that it should include certain identified details “by headings or otherwise”. The claim for damages was extensively redrafted, so that it read:

“4. Costs and damages for the amount $15,000. Damages included non-pecuniary damages for exposure to identity fraud, submitting to risk, uncertainty and insecurity, distress, loss of trust and confidence in personnel and actions of the Department, oppression, refusing rights under Freedom of Information Act, necessity of undertaking of court procedures to enforce the rights and distress related to the proceedings, inconvenience and difficulties of carrying the matter affecting quality of life, undertaking investigations in respect of personal information held by other government departments.

Costs of investigations in respect of personal information records held by other Departments (we suspect corrupted conduct)”

113 That amendment would have made clear that the facts and circumstances that she alleged in the body of the Statement of Claim, that in summary alleged that the Department had not complied with its legal obligations under the FOI Act in the way that it had responded to her application for correction of documents, were the basis of her claim for damages.

Judgment in the Common Law Proceedings

The Mandamus Applications

114 Insofar as summary judgment was given concerning the application for three orders in the nature of mandamus, the decision of her Honour was not based upon taking any view of the merits of Ms Avery’s contention that the Registrar had misconstrued and misapplied clause 8 of the BDMR Regulation. Rather, it was based upon a procedural consideration.

115 Ms Avery based the need to approach the Court for relief in the nature of mandamus upon the fact that she had applied to the BDMR Registry to have her records corrected, and had received no satisfaction. Section 53(1) FOI Act enables a person who is aggrieved by a determination made by an agency under section 43 to apply to the Tribunal for a review of the determination. Section 54 requires such a review application to be made (in the circumstances presently relevant) within 60 days after notice of the determination to which it relates.

116 Schmidt AJ held that section 53 of the FOI Act gave Ms Avery the right to appeal to the ADT against any deemed refusal of an application that she made for correction of records. Further, any complaint that she had about the manner in which the Registrar maintained the records was a complaint about decisions that the Registrar had made in the exercise of the statutory functions conferred by his office, and was amenable to review in the ADT, pursuant to section 56 BDMR Act. In any such review, the Tribunal had wide powers, under section 63 ADT Act:

“(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.”

117 Her Honour held that, apart from the dispute about whether “Stephanie Tatiana Avery” had been correctly included as a former name, her complaints related to the form of the Register, and the form of the Name Change Certificate that the Registrar was proposing to issue. Each of those matters, was a matter in relation to which Ms Avery could have applied for review to the ADT, but she had not done so. Her Honour referred to the well-established principle that relief by way of prerogative writs will be refused by the Supreme Court if there is another equally effective and convenient remedy: NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal [2001] NSWSC 494; (2001) 53 NSWLR 559; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. She took the view that, given that the Tribunal had power to review such decisions, and that power had not been invoked, summary dismissal of the applications for relief in the nature of mandamus was appropriate.

118 Leave to appeal from the judgment in the Common Law Proceedings is required pursuant to section 101(2)(l) Supreme Court Act 1970.

Breach of Procedural Fairness?

119 One ground on which leave to appeal is sought is that Ms Avery alleged that there was a breach of procedural fairness. She submits that no notice was given to her about the hearing of the whole case, only about the hearing of the Notice of Motion, and she should have been allowed to have time for research and preparation on the whole case.

120 I do not accept that that is so. Ms Avery made written submissions, dated 15 April 2009, containing 20 pages of submissions and 107 pages of annexures. They dealt specifically with both the application for summary dismissal, and the application to amend the Statement of Claim. They responded to written submissions of the Respondent, themselves 18 pages long, dated 2 April 2009 that also addressed both of the Notices of Motion.

Bias?

121 The second ground on which leave to appeal is sought is that there was a breach of procedural fairness, in that there is “evidence of bias in the text of the decision”. The alleged “evidence of bias” is not particularised, or argued for. I am not persuaded there is any substance in this ground.

Incorrect Naming of Defendant?

122 The next ground is that “the court has erred in law by making decision and order in respect of party which is not party on the applicant’s statement of claim”. In her judgment Schmidt AJ stated, at [4]:

“It was agreed at the hearing that the name of the defendant in the proceedings be corrected as ‘State of New South Wales (Attorney General’s Department)’. By consent, that change was ordered.’

123 Ms Avery disputes that she gave any such consent, and submits that “Attorney General’s Department” is the correct name of the defendant.

124 The transcript of the hearing before Schmidt AJ shows that counsel appearing for the defendant submitted that if the proceedings were to continue, the defendant should be correctly named, as “a department is not a legal person”. The following discussion then ensued between the judge and Ms Avery:

“HER HONOUR: … Ms Avery, what the defendant is saying is that you ought to give the defendant its correct title which is the State of New South Wales. The Attorney General’s Department is only one part of the State, it’s a very technical thing. It doesn’t I think have any practical consequences at the end of the day and if it was agreed I’m sure by consent leave could be given to correct the name specify that you’re pursuing the State of New South Wales. It’s been suggested in brackets (named as Attorney General’s Department). Would that be a convenient way to deal with this?

PLAINTIFF: I would accept it, however, I just wanted to refer the attention of your Honour that some numerous cases were brought by Attorney General’s Department or Attorney General’s Department all in relation of Freedom of Information Act.

HER HONOUR: I’m sure that’s right, Ms Avery, but it’s just the way in which the proceedings have been entitled. I don’t really [think] anything much turns on it.

PLAINTIFF: Yes, so I would accept it but the matter is, it was first statement on this problem and they said that proceedings should be dismissed summarily because against the correct agency.

HER HONOUR: I don’t think that’s being seriously pressed and I grant leave to make the name change that’s been agreed.

PLAINTIFF: Well, just I felt it was pressed. So, if it’s not correct I’ll have to move from this point.”

125 In my view, it is strongly arguable that Ms Avery consented to the change of name.

126 Usually a court does not decide, on an application for leave to appeal, that the decision below was actually correct. However, the present case is unusual, in that the question of the proper way of naming the defendant in the Common Law Proceedings arises under one of the notices of motion that Ms Avery has brought.

127 In my view Schmidt AJ was right to allow the change. Section 5 Crown Proceedings Act 1988 enables any person having a claim against the Crown (subject to a presently irrelevant exception) to bring civil proceedings against the Crown under the title “State of New South Wales” in any competent court. Section 3 of the Act provides that:

Crown

(a) the Government of New South Wales, and

(b) a Minister of the Crown in right of New South Wales, and

(c) a statutory corporation, or other body, representing the Crown in right of New South Wales.”

128 The “Government of New South Wales” in this definition includes the executive: Enever v The King (1906) 3 CLR 969; Ryder v Foley (1906) 4 CLR 422.

129 Under section 4A of the Public Sector Employment and Management Act 2002 the Government Service of New South Wales consists of those persons who are employed by the Government of New South Wales in the service of the Crown. Section 4C of that Act identifies various Divisions of the Government Service, by reference to Schedule 1 of the Act. In the version of the Act that was current when Schmidt AJ gave her decision (6 May 2009) one of the Divisions listed in Schedule 1 was “Attorney-General’s Department”.

130 Section 63(2) FOI Act provides:

“All proceedings against an agency (being proceedings arising under this Act) may be commenced and maintained against the principal officer of the agency, as nominal defendant for the agency, and may be continued until their final determination regardless of any change in the office of the principal officer during the course of the proceedings.

131 There may be room for argument (which was not pursued in these proceedings) about whether an application for an order in the nature of mandamus requiring government officials to carry out obligations under the FOI Act, combined with an action for damages for failure to carry out those obligations, were “proceedings arising under this Act”. Whatever the outcome of that argument, section 63(2) provides a possible way of suing, not a compulsory way of suing. Even if on its proper construction it could have been used to identify a defendant in the Common Law Proceedings, it was not used. The Attorney-General’s Department is not a legal entity capable of being sued. In that circumstance, substitution of a name by which an action could be brought was correct.

132 Ms Avery referred to a long list of cases in which it appeared, from the title of a reported case, that Attorney General’s Department was a party to a case concerning freedom of information legislation. That sort of material is an unreliable guide to what is legally correct, as a sensible litigant might not quibble about a misnomer. However, they do not assist at all in the present case, as not one of the cases relied on arose under the New South Wales version of the Freedom of Information Act.

133 In my view Schmidt AJ was correct in deciding that an appropriate way to name the defendant, in litigation alleging that an officer of the Attorney General’s Department had not complied with his public law obligations under the FOI Act, was as “State of New South Wales”.

134 In my view the alleged misnomer of the defendant provides no basis for granting leave to appeal.

Other Grounds for Leave?

135 Next, Ms Avery submits that leave to appeal should be granted because the order is “incomplete” and the decision does not state the applicable provision of the UCPR.

136 A reading of the decision of Schmidt AJ, and in particular paras 2, 15, 17, 44-47, 53 and 56 shows sufficiently clearly that her Honour regarded herself as excising the power under UCPR 13.4. A court order is not vitiated through not identifying specifically the provision pursuant to which it is made. This ground fails.

137 Ms Avery next contends that the basis for summary dismissal was not adequately made out. It is of no importance that the merits of her contention that the BDMR Act had been misconstrued and misapplied were not gone into. Her Honour took the view that, whatever those merits were, the failure of Ms Avery to exhaust other remedies was such a powerful reason for eventually refusing the relief claimed, that there was no point in having an argument about the merits.

138 I do not think it is necessary for this Court to examine the correctness of the procedural basis on which her Honour granted summary judgment. A decision about whether to grant leave to appeal concerning the application for mandamus-type orders should be made bearing in mind the decision I have come to concerning the appeal in the ADT Proceedings. That decision has the consequence that, now, continuance of the Common Law Proceedings would have no practical point.

The Damages Application

139 At the hearing before Schmidt AJ, Ms Avery quite clearly stated that her claim to damages was based on a breach of contract. In the written submissions that the relevant respondent had served before the hearing before Schmidt AJ, arguments were presented as to why damages for the torts of breach of statutory duty and misfeasance in public office would not be available. However, at the hearing Ms Avery disclaimed any reliance on such torts, and said her claim was based in contract. Before this Court, she continues to contend that the claim for damages is justified on a basis of breach of contract. Before Schmidt AJ, Ms Avery’s written submissions elaborated her claim of breach of contract as follow:

Constitution Act

Provide trustworthy, well-informed and committed to public service and justice system personnel; personnel that act ethically and professionally and maintain integrity;

Responsive service;

Timely and cost effective service;

Act within and uphold the law;

Equitable access to services;

Freedom of Information Act

Maintenance of correct, complete and non-misleading personal information;

Birth, Deaths and Marriages Registry Act

Integrity of Birth, Deaths and Marriages Register;

Prevention of fraud;

Peace, good government and peace of mind in respect of government procedures.

Nothing of the above was delivered.”

140 Schmidt AJ summarily dismissed Ms Avery’s claim insofar as it sought damages, and declined to permit repleading of the claim for damages, on the basis that there was no conceivable basis upon which either the FOI Act, or the request made to the defendant under that legislation could have resulted in any contractual relationship coming into existence between Ms Avery and the defendant.

141 In my view there are insufficient prospects of success in arguing that Schmidt AJ was mistaken in reaching that conclusion to warrant the grant of leave to appeal concerning it.

142 In my view, leave to appeal should be refused.

PART D – THE PROCEDURAL MOTIONS

143 The following sequence of events is relevant to the procedural motions that are referred to at para [6] above.

144 On 14 August 2009 Basten JA made an order in chambers in the appeal from the Common Law Proceedings “list for concurrent hearing plus together with appeal in 40015/09”.

145 On 17 August 2009 there was a directions hearing before the Registrar. The Registrar there informed the parties that there would be a concurrent hearing of the application for leave and any appeal in the Common Law Proceedings, and of the appeal in the ADT Proceedings.

146 On 2 November 2009 further directions were given in the appeal from the ADT Proceedings. By consent, the Appellant was to file and serve an Amended Notice of Appeal by 9 November 2009 and new submissions by 11 November 2009, and the Respondent was to file and serve submissions in reply by 18 November 2009.

147 The Appellant, in accordance with that direction, filed a new Notice of Appeal on 9 November 2009, and amended submissions on 11 November 2009. However, the Respondent has never filed any submissions that responded specifically to Ms Avery’s amended submission of 11 November 2009.

148 On 24 November 2009 the appeal in the ADT Proceedings, and the concurrent hearing concerning the Common Law Proceedings, were both listed for hearing. That hearing was adjourned when Ms Avery sent medical certificates to the Court indicating that she was not fit to appear at that time. Three notices of motion that Ms Avery had filed were returnable on that day, and were stood over to the adjourned hearing of the matters.

149 On 30 November 2009 the appeal in the ADT Proceedings was before the Registrar for directions. The court record shows that Ms Avery appeared in person, and that the Respondent to that appeal was represented. The record says, “no further directions required”. On 1 December 2009 Ms Avery filed a motion for directions returnable on 7 December 2009, seeking that the Respondent be directed to file a response to the new Notice of Appeal.

150 On 7 December 2009 the matter was before the Registrar again. The Registrar dismissed Ms Avery’s motion of 1 December 2009, with costs.

151 On 9 December 2009 Ms Avery filed another Notice of Motion, returnable on 1 February 2010, seeking a direction that the Respondent respond to the new Notice of Appeal.

152 On 10 December 2009 there was a directions hearing at which the parties were informed that the substantive matters would be fixed for hearing on 1 February 2010.

153 On 11 December 2009 Ms Avery filed a Notice of Motion, returnable on 1 February 2010.

154 Through this procedure, there were three Notices of Motion in the application for leave to appeal from the Common Law Proceedings that came before the Court on 1 February 2010. Those motions were filed on 1 September 2009, 9 October 2009, and 19 October 2009 respectively.

155 In substance, the first and third of these motions sought to challenge the directions of 14 and 17 August 2009 for a concurrent hearing. They were in part directed to there being concurrent hearings at all, and in part to the hearings being held on 24 November 2009. Insofar as they were directed to the hearings being held on 24 November 2009 they were overtaken by events, as that hearing did not proceed. Insofar as they objected to there being concurrent hearings at all, they remained to be dealt with.

156 UCPR 51.14 enables “the court” to deal with applications for concurrent hearing of an application for leave to appeal, and the appeal, in the absence of the public, and without attendance of any person. Pursuant to section 46 Supreme Court Act 1970 “the court” there includes a single Judge of Appeal.

157 I will consider first the source of the power to make the directions that are in dispute. UCPR 51.14 was the source of the power of Basten JA to give the direction of 14 August 2009 insofar as it related to the concurrent hearing of the application for leave to appeal, and the appeal, concerning the Common Law Proceedings. UCPR 2 enables the court to give such directions as are appropriate for the just, quick and cheap disposition of the proceedings. That latter rule conferred the power for Basten JA to order the hearing together of the appeal matters relating to the Common Law Proceedings and the ADT Proceedings. Insofar as the Registrar himself gave directions for hearing together the concurrent hearing that Basten JA had already ordered in the Common Law Proceedings, and the appeal in the ADT Proceedings, there was a separate source of power to make those directions. Under the delegation of court powers permitted by section 13 Civil Procedure Act, and actually effected by the Chief Justice on 9 April 2009 (Ritchie’s Uniform Civil Procedure NSW, para [17000], page 23,021 ff), Registrars have powers under rule 2, with no restriction presently relevant.

158 Ms Avery has some arguments about the procedure by which the directions for concurrent hearings were arrived at. She says that on 17 August 2009 she did not consent to the application for leave and the appeal being heard together. I have no reason to doubt that statement, taken literally. However, on 29 July 2009 she had filed amended written submissions on the application for leave to appeal in the Common Law Proceedings, in the manner required by Practice Note SC CA 1. Para 18 of that Practice Notice requires that, when leave to appeal is required, each party should indicate in the Summary of Argument whether (and if so why) the matter is thought appropriate for a concurrent hearing of the leave application and the appeal. The Applicant’s Summary of Argument said, in para 54:

“The application should be heard with the argument on the appeal to avoid misunderstanding of the issues. Decision of the case contains errors in finding, false statements and the redesigned issue that should not be transferred in the appeal decision.”

159 The Respondent’s Summary of Argument, filed 30 July 2009, opposed the concurrent hearing of the application for leave and the appeal. In accordance with the usual administrative practice of this Court, it was specifically in order to resolve that conflict that the papers were sent to Basten JA. His Honour upheld Ms Avery’s submission, and ruled that there ought to be a concurrent hearing.

160 Insofar as Ms Avery states, in her affidavit sworn 2 September 2009, that she has not applied for a concurrent hearing of the application for leave to appeal in the Common Law Proceedings, she is contradicted by the terms of her own Summary of Argument. Insofar as she contends that she has not applied for a concurrent hearing of the appeal proceedings relating to the ADT Proceedings and the Common Law Proceedings, her failure to make any such application is irrelevant. It is the Court’s prerogative to decide how its business will be arranged, and it can give directions about the arrangement of its business without anyone specifically applying for those directions. Even if she had not sought a concurrent hearing of the application for leave to appeal and any appeal in the Common Law Proceedings, the court’s power to organise its own business would have enabled it to order that there be such a concurrent hearing.

161 While the procedural basis for the application is not completely clear, I take it that, at least in part, it is an application to the Court to review the decision of Basten JA. In my respectful view, his Honour’s direction was correct. The factual basis of the decision in the Common Law Proceedings was not complex. No ultimate facts were disputed, and the argument on the leave application was likely to cover much of the same ground as the argument on the substantive appeal. So far as the concurrent hearing of the appeal proceedings relating to the ADT Proceedings and the Common Law Proceedings, the questions involved are closely related, comparatively narrow, and (as has happened) the outcome of the appeal in the ADT proceedings was capable of affecting the outcome of the application for leave to appeal in the Common Law Proceedings.

162 If the proper analysis is that the Registrar gave a separate direction for the hearing together of matters 40201 and 40015, and that an application to review lies from that direction, in my view the Registrar’s decision was correct, for the same reasons as Basten JA’s decision was correct, and I would not alter it. These are the reasons why I joined in the order dismissing the first and third of the motions filed concerning the Common Law Proceedings, with costs.

163 The second of the motions filed concerning the Common Law Proceedings was to vacate the hearing date fixed for 24 November 2009. It has now been overtaken by events. The basis on which the adjournment was sought was, in substance, the inappropriateness of the concurrent hearing. As that basis is not one that I accept, in my view it was correct for that motion to have been dismissed with costs.

164 Also before the Court on 1 February 2010 were another two motions.

165 The first of those motions, filed on 9 December 2009 in the appeal from the ADT Proceedings, sought to require the Respondent to file a submission in response to the new Notice of Appeal, as directed on 2 November 2009, or alternatively that there be (I take it at the Court’s own instigation) proceedings for contempt against the Respondent for not having filed such a document. The meaning of the Registrar’s direction of 2 November 2009 is that the Respondent was to file any additional submission it wished to file in response to the new Notice of Appeal by 18 November 2009. The Respondent did not seek to file any such submission, and relied on written submissions it had already filed. In deciding not to avail itself of the opportunity given to it by the directions, it has not acted in breach of the direction. Thus it was appropriate for the motion of 9 December 2009 to be dismissed with costs.

166 A Notice of Motion of 11 December 2009 in the application concerning the Common Law Proceedings sought to review and revoke what I take to be all directions whatever of the Registrar in respect of the hearing of the matters. In particular, it seeks to revoke the direction for the hearing of the appeal proceedings concerning the ADT Proceedings on the same day as the proceedings concerning the Common Law Proceedings. It also seeks reimbursement of the costs of filing Notices of Motion where those Notices of Motion have become futile through having been made returnable on the date that was also set for the hearing. Insofar as it seeks a revocation of the direction that the matters be fixed for hearing on 1 February 2010, it in effect sought an adjournment of the hearing on that day.

167 By prayer for relief numbered 6, the Notice of Motion seeks an order the effect of which is that all references to the Respondent in court documentation be corrected, so that the correct name of the Respondent appears there. That prayer for relief arises from the fact that there was disagreement about whether the Respondent should be identified as “Attorney General’s Department” (as Ms Avery contended), or State of New South Wales (as the Respondent, whatever its correct name might have been, contended). As there was no need for the availability of prayer for relief number 6 to be decided on 1 February 2010, the question of whether that order should be made was reserved to these reasons for judgment.

168 The first five prayers for relief seek to challenge yet again the directions for a concurrent hearing. That challenge may well be out of time as, pursuant to UCPR 49.20, a Notice of Motion seeking to have a judge review a decision of the Registrar must be filed within 28 days after the “material date” unless the time is extended. In the present case, the “material date” was the date of the decision sought to be reviewed. As the Notice of Motion was filed on 11 December 2009, it was only decisions of the Registrar made on or after 13 November 2009 that could be reviewed as of right pursuant to that provision. The direction for a concurrent hearing was made earlier than 13 November 2009.

169 More significantly, in my view, for the reasons already given, the directions of the Registrar relating to a concurrent hearing were correct.

170 An additional basis upon which Ms Avery sought the adjournment of the matter was that three hours of hearing time had been allowed, for three matters. Given the closely interrelated nature of the three matters, that the legal points involved are narrow, and that extensive written submissions have been filed, that was not in my view a ground for adjournment.

171 It is for these reasons that I joined in the order that the Notice of Motion of 11 December 2009 be dismissed with costs, insofar as the prayers for relief in paras 1-5 were concerned.

172 The reasons given earlier, about the correct way of naming the defendant in the Common Law Proceedings, show that the correct name is “State of New South Wales”. Thus prayer for relief number 6 should also be dismissed with costs. The record in this Court should be amended to name the defendant correctly.

PART E – ORDERS

173 I propose the following orders, additional to those made on 1 February 2010.

174 In matter 40015 of 2009:

175 In matter 40201 of 2009

1. Application for leave to appeal dismissed with costs.

2. Notice of motion filed 11 December 2009, insofar as it seeks the relief contained in prayer 6, dismissed with costs.

“State of New South Wales”.

176 YOUNG JA: The facts and relevant legislation are well covered in the judgment of Campbell JA making it unnecessary for me to repeat them.

177 I agree with what Campbell JA has said with respect to the appeal from the decision of Schmidt J and the various interlocutory motions that were before us. However, I regret that I cannot completely agree with Campbell JA on the issues that arise in the appeal from the Administrative Decisions Tribunal.

178 The essential matter in that appeal is the proper construction of Clause 8 of the Regulation coded BDMR in Campbell JA’s reasons. As far as concerns these appeals, that regulation requires particulars:

179 The word “name” is an awkward one. The leading textbook on the subject, Anthony Linell, The Law of Names: Public Private & Corporate, (Butterworths, London 1938) notes the problem in the first sentence on page 1:

“The first and possibly a fundamental difficulty in treating of the law of personal names is that there never has been and never can be a definition of a name that is at once exact and applicable in every case.”

180 It will be seen that the focus of the regulation is on change of name. Furthermore, it is clear that “change” does not include variation or modification or addition or subtraction of a name unless it can be said that there has been such a variation as to amount to a person having a new name and being in the position that the last previous name can truly now be said to be a former name, ie it has been abandoned (Vide In re Neeld [1962] Ch 643, 679).

181 Unless she continues to use her maiden name and to be known by that name in some aspect of her life, a woman abandons her maiden name on marriage as if she had never borne it, Allen v Wood (1834) 1 Bing NC 8; 131 ER 1020, where it was held that a widow who published banns on her remarriage in her maiden name without having reacquired it by reputation was not validly married. However, as Linell points out at p 24, abandonment is never total as many statutory obligations require a person to state all former names.

182 It is also interesting to note that the Regulation appears to distinguish between a name and a full name and also to assume that a person only has one name.

183 With the possible exception of a name conferred at baptism, any person in Australia is free to change his or her name as and when they wish (Linell, p 10). There is no need to have the change registered. The new name is obtained by reputation (Linell, p 19).

184 When that reputation is established is a question of fact. The mere fact that person registers a deed poll (under the former law) in which he or she states that a former name is abandoned and a new name adopted may well be insufficient. The new name is (apart from what I say below) obtained by reputation, not registration (Linell, p 37). However, a short period, perhaps only a matter of days, may suffice.

185 So, in Barlow v Bateman (1730) 3 Peere Williams 65; 24 ER 971 where a woman was given a legacy on her marriage to any man surnamed Barlow and she married a person whom she said had changed his name from Bateman to Barlow three days before the wedding, Jekyll MR allowed the legacy, though he was overruled in the House of Lords (see Charles Barlow v Robert Bateman (1735) 2 Bro 272; 1 ER 939).

186 However, s 26 of the Births Deaths and Marriages Registration Act 1995 now provides for registration of a change of name to effect the change. However, as Campbell JA points out, registration under s 26 is not the exclusive method of changing one’s name (see s 32).

187 Whilst a person may, unless acting for a fraudulent purpose, adopt any name he or she wishes (Cowley (Earl) v Cowley (Countess) [1901] AC 450, 460), there is no right to compel other people at once to recognise it, though it may be a person has some non-justiciable right to be called by the name he or she usually receives from friends and acquaintances (Linell, pp 27-8).

188 Thus, the mere fact that some government agency addresses a person by a name is only a peripheral piece of evidence as to whether the reputation has been established (Linell, p 37).

189 Although I have simply referred to Linell as authority, this is for convenience as most of the sources for his conclusions are ancient and obscure cases from the era when people delighted in inserting names and arms clauses in wills.

190 There have been few recent cases dealing with the law of names since Linell’s work in 1938. Thus the significance for Australia of the fact that much of the law pertaining to names was part of the King’s ecclesiastical law in England and so part of the law of the land there (but not necessarily here) has not been analysed except in cases dealing with adoption of young infants [vide Re M (2004) 31 Fam LR 415 (Campbell J); Re H (2004) 62 NSWLR 245 (which was substantially overruled as Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; 64 NSWLR 268); Application of O & P [2005] NSWSC 1297; (2005) 34 Fam LR 385; Re KSE & The Adoption Act 2000 [2006] NSWSC 92].

191 It is with these principles in mind, as well as those referred to by Campbell JA that I approach the present problem of interpretation.

192 My concern is that the Tribunal appears to have focussed on what the appellant did in and about acquiring a new name at common law and not, as I believe it should have done, as to the reputation with respect to the use of the former name in the community and particularly amongst the appellant’s friends and acquaintances.

193 The Tribunal’s treatment of the “admission” made to the Road Traffic Authority when applying for a renewed driver’s licence may be an admission, but is it admission of anything more than that the appellant was content to have her licence issued in a shortened version of her true name. It is quite common in modern day computerised Australia for people with multiple names (or in my case a long middle name) to put up with there being insufficient space on a computer generated form for a full name to be inscribed.

194 Any admission of the nature referred to above could not be of a change of name. There was no abandonment of the full name, merely a concession to the limits of computer data processing.

195 There was no evidence that I can see before the Tribunal that the community or the appellant’s friends ever used the name on her driver’s licence as a name which the appellant had acquired by reputation.

196 Indeed, although a person may be referred to by his or her acquaintances as Bob or Peg instead of the name on their birth certificate, Robert or Margaret, and even though friends might call them called Bluey or Shorty or Smithy or whatever, none of this involves a change of name as there is no abandonment of the original name. As there is no change of name, there is no work for the regulation to do. In the same way, use of a name without an abandonment of the previous name does not in my view constitute the coming into being of a former name which must be noted on the official certificate.

197 Thus, in my view, the Tribunal committed an error of law in its approach to its determination of fact that the shortened name of the appellant was a former name.

198 I agree with Campbell JA that, assuming I am correct on the question of error, such error would not vitiate the issue of the Change of Name certificate as proposed. However, I note that the form as proposed does not appear to state explicitly the name of the person concerned immediately before the change of name being recorded.

199 However, I am of the view that the issue on which I have focussed should be remitted to the Tribunal and that there be no order for costs of the appeal where the Registrar is the respondent.

200 I should conclude by acknowledging the assistance I found in the submissions of law as to the adoption and change of names made by Ms Spruce of counsel both in her written and her oral submissions.

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09/06/2011 - Full title of Act substituted for shortened version. - Paragraph(s) 98

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Citations

Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72

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Avery v Registry of Births Deaths and Marriages [2008] NSWADTAP 68

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CITATION:	Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 February 2010
JUDGMENT DATE:	13 April 2010
JUDGMENT OF:	Tobias JA at 1; Campbell JA at 2; Young JA at 176
DECISION:	1 In matter 40015 of 2009: Appeal dismissed with costs 2 In matter 40201 of 2009 1. Application for leave to appeal dismissed with costs. 2. Notice of motion filed 11 December 2009, insofar as it seeks the relief contained in prayer 6, dismissed with costs. 3. Direct that the name of the respondent in the court’s records concerning this matter be amended to “State of New South Wales”.
CATCHWORDS:	STATUTES – construction – particular statutes – Births, Deaths and Marriages Registration Act 1995 and Regulation – whether change of name by registration is the exclusive method for a person to change name – whether a name that is not itself a registered name can be changed by registration of a new name – whether a “former name” must be one that was willingly adopted – whether a person can have more than one name at the one time – whether a shortened form of a person’s name is a different name – ADMINISTRATIVE LAW – appeals from administrative authorities – orders sought correcting or amending the Births, Deaths and Marriages Register and form of Change of Name Certificate – appeal relating to Registrar's decisions about information retained in the Births, Deaths and Marriages Register and the form of name change certificates – recognition of names in law – requirement of clause 8(d) to record “any other former names of the person” extends to “other former names” that are not registered names – departure from statutory requirements relating to name change would not automatically invalidate change of name – appeal dismissed – costs – CONSTITUTIONAL LAW – statutes – whether “Attorney-General’s Department” an entity capable of being sued – PROCEDURE – Supreme Court procedure – New South Wales – parties – whether correct name of party is ‘Attorney General’s Department’ or ‘State of NSW’ – ADMINISTRATIVE LAW – prerogative writs and orders – Mandamus sought concerning application to amend personal records under Freedom of Information Act 1989 – nature and appropriateness of remedy – prerogative writs can be refused if there is another equally convenient and effective remedy – leave to appeal from decision at trial to summarily dismiss matters refused because alternative remedy available – PROCEDURE – Supreme Court procedure – New South Wales –procedure under Rules of court – case management – ability of court to deal with applications for concurrent hearing of an application for leave to appeal and the appeal in the absence of the public and without attendance of any person under Uniform Civil Procedure Rules 51.14 – CONTRACTS – general contractual principles – existence of a contract – held at trial that no contract arose between government and citizen requiring government to provide effective services of types that legislation empowered government to provide – leave to appeal refused on basis of insufficient prospects of success
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Adoption Act 2000 Births, Deaths and Marriages Registration Act 1995 Births, Deaths and Marriages Registration Regulation 2006 Civil Procedure Act 2005 Corporations Act 2001 (Cth) Crown Proceedings Act 1988 Freedom of Information Act 1982 Public Sector Employment and Management Act 2002 Registration of Births, Deaths and Marriages Act 1899 Registration of Births, Deaths and Marriages Act 1973 Ritchie’s Uniform Civil Procedure NSW State Records Act 1998 Supreme Court Act 1970 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Allen v Wood (1834) 1 Bing NC 8; 131 ER 1020 Application of O & P [2005] NSWSC 1297; (2005) 34 Fam LR 385 Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68 Avery v State of New South Wales (Attorney General’s Department) [2009] NSWSC 353 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Barlow v Bateman (1730) 3 Peere Williams 65; 24 ER 971 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Charles Barlow v Robert Bateman (1735) 2 Bro 272; 1 ER 939 Cowley (Earl) v Cowley (Countess) [1901] AC 450 Davies v Lowndes (1835) 1 Bing NC 597 Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268 Earl Cowley v Countess Cowley [1901] AC 450 Enever v The King (1906) 3 CLR 969 In Re Neeld Deceased; Carpenter v Inigo Jones [1962] Ch 643 In Re T (otherwise H) (an infant) [1963] Ch 238 Informal v The Chief Electoral Officer (Supreme Court of Tasmania, 18 February 1992, unreported) NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal [2001] NSWSC 494; (2001) 53 NSWLR 559 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R Billingshurst Inhabitants (1814) 3 M & S 25; 105 ER 603 R v St Faith’s Newton (Inhabitants) (1823) 2 Dow & Ry MC 34 Re H (2004) 62 NSWLR 245 Re KSE & The Adoption Act 2000 [2006] NSWSC 92 Re M (2004) 31 Fam LR 415 Ryder v Foley (1906) 4 CLR 422 Standard Property Investment plc v British Plastics Federation (1985) 53 P&CR 25
TEXTS CITED:	Anthony Linell, The Law of Names: Public Private & Corporate, (Butterworths, London 1938)
PARTIES:	Stephanie Tatiana Patricia Avery (Appellant in both matters) Registrar of Births, Deaths and Marriages (Respondent in 40015/09) Attorney General's Department (Respondent in 40201/09)
FILE NUMBER(S):	CA 40015/09; 40201/09
COUNSEL:	In person (Appellant) C Spruce (Respondents)
SOLICITORS:	In person (Appellant) I V Knight, Crown Solicitor (Respondents)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal & Supreme Court of NSW, Common Law Division
LOWER COURT FILE NUMBER(S):	089035 & 30125/08
LOWER COURT JUDICIAL OFFICER:	Appeal Panel; Schmidt AJ
LOWER COURT DATE OF DECISION:	31/10/08; 6/5/09
LOWER COURT MEDIUM NEUTRAL CITATION:	Avery v Registry of Births, Deaths and Marriages [2008] NSWADTAP 68; Avery v State of New South Wales (Attorney General's Department) [2009] NSWSC 353