Avery v Registrar of Births, Deaths and Marriages

The case of *Avery v Registrar of Births, Deaths and Marriages* involved an appeal to the New South Wales Court of Appeal concerning the Registrar's decisions regarding the amendment of the Births, Deaths and Marriages Register and the form of a Change of Name Certificate. The appellant, Mr. Avery, sought to have certain names removed from his birth record and to have a Change of Name Certificate issued in a specific format. The respondent was initially identified as the "Attorney-General's Department," but this was later amended to the "State of New South Wales."

The primary legal issues before the Court of Appeal were whether the registration of a name change under the *Births, Deaths and Marriages Registration Act 1995* (NSW) and its Regulation was the exclusive method for a person to change their name, and whether a name not previously registered could be changed by registration. The court also considered whether a "former name" for the purposes of the register had to be one willingly adopted, whether a person could possess more than one name concurrently, and whether a shortened form of a name constituted a different name. Furthermore, the court examined the scope of the requirement to record "any other former names of the person" and the appropriateness of prerogative writs, such as mandamus, when alternative remedies were available.

The Court of Appeal reasoned that a departure from the statutory requirements relating to name changes would not automatically invalidate a change of name. The court held that the requirement to record "other former names" extended to names that were not themselves registered names. Regarding the procedural aspects, the court found that prerogative writs could be refused if another equally convenient and effective remedy existed, and in this instance, alternative remedies were available, leading to the dismissal of applications for leave to appeal. The court also determined that the "Attorney-General's Department" was not the correct entity to be sued, and the respondent should be the "State of New South Wales."

The appeal in matter 40015 of 2009 was dismissed with costs. In matter 40201 of 2009, the application for leave to appeal was dismissed with costs, and a notice of motion seeking specific relief was also dismissed with costs. The court directed that the name of the respondent in the court's records for this matter be amended to "State of New South Wales."