Juchau v Registry of Births, Deaths and Marriages

[2009] NSWADT 260

CITATION:	Juchau v Registry of Births, Deaths and Marriages [2009] NSWADT 260
DIVISION:	General Division
PARTIES:	APPLICANT Todd Charles Juchau RESPONDENT Registry of Births Deaths and Marriages
FILE NUMBER:	093036
HEARING DATES:	11 May 2009
DATE OF DECISION:	6 October 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Birth, Deaths and Marriages Registration Act - amendment of register
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Births, Deaths and Marriages Registration Act 1995
CASES CITED:	Abolish Child Support and Family Court and Minister for Foreign Affairs and Trade [2001] AATA 159 Mr Prime Minister John Piss The Family Court And Legal Aid and Minister for Foreign Affairs and Trade [2000] AATA 1028 Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492
REPRESENTATION:	APPLICANT In person RESPONDENT M Dalla-Pozza, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 In October 2008 the Applicant applied to the Registrar of Births Deaths and Marriages (“the Registrar”), pursuant to section 30 of the Births Deaths and Marriages Registration Act 1995 (“the BDMR Act”), to change his name from Todd Charles Juchau to Prince Todd Charles Juchau.

2 The Applicant indicated that his reasons for the request were “change to my Royal Heraldic Identity (Birth Right). Religious reasons”.

3 In January 2009, a delegate of the Registrar refused to register the change of name. That refusal was affirmed on an internal review. The Applicant applied to this Tribunal for review of that decision.

4 His application to the Tribunal was accompanied by a letter which identified the reason for the name change as “for my Religious and Spiritual beliefs”. The sender's name and title are given as

“His Royal Highness
(Prince) Todd Charles JUCHAU
Protector of the Faithful
Defender of the Kingdom”

5 The sender's name and title are followed by what appears to be a coat of arms and the motto “Spes mea Deus”.

6 Section 27 of the BDMR Act empowers a person who is domiciled or ordinarily resident in New South Wales or whose birth is registered in this State to apply to the Registrar for the change of that person's name.

7 Section 30(3) of the BDMR Act provides:

30 Registration of change of name

...

(3) The Registrar may refuse to register a change of name if, as a result of the change, the name would become a prohibited name.

8 Section 4 of the BDMR Act defines a ‘prohibited name’ as a name that:

(a) is obscene or offensive, or

(b) could not practicably be established by repute or usage:

(i) because it is too long, or

(ii) because it consists of or includes symbols without phonetic significance, or

(iii) for some other reason, or

(c) includes or resembles an official title or rank, or

(d) is contrary to the public interest for some other reason.

The Applicant’s case

9 The Applicant contends that ‘Prince’ is recognised as a name, not just as an official title. He provided an extract from an Ancestry website to show that the name that he proposes has been previously used. He contends that ‘Prince’ has been used as a name since at least before 1918 and he referred to the use of the name ‘Prince Todd Juchau’ prior to 1929. He highlighted the fact that, more recently, the rock musician Prince Rogers Nelson performed under the mononym ‘Prince’ and made ‘Prince’ familiar as a given name. He also referred to fact that the artist Michael Jackson named his son ‘Prince’.

10 He contends that the official title is ‘His Royal Highness’ and that ‘Prince’ is merely a name. It is apparent from the Applicant’s correspondence that he considered that he has some right to use the title ‘His Royal Highness’. He points to correspondence from the Prime Minister, Premier and other government officers that have addressed him by both the title and name.

11 In essence, the Applicant’s argument is that ‘Prince’ is a legitimate name and is widely accepted as such and that he should be able to register it as his name.

The Respondent’s case

12 Mr Dalla-Pozza, solicitor for the Respondent, provided detailed submissions in support of the Respondent’s position that the application should be refused. The Respondent contends that the proposed name resembles an "official title or rank" and that it is therefore a "prohibited name" within the meaning of section 4(c) of the BDMR Act.

13 Mr Dalla-Pozza submits that there can be little doubt that the name ‘Prince’ resembles, and in fact is, an official title. He refers to the Macquarie dictionary definitions of ‘Prince’:

‘1. a non-reigning male member of a royal family 2. a sovereign or monarch; a king. 3. (in Britain) a son, or a grandson (if the child of a son), of a king or queen. 4. (in England) the holder of a title equivalent to certain titles of nobility of varying importance or rank in certain continental European (or other) countries.5. the ruler of a small state, as one actually or nominally subordinate to a suzerain.’

‘Title’ is defined in the Macquarie Dictionary as, relevantly, ‘a descriptive or distinctive appellation, especially one belonging to a person by right of rank, office, attainment, etc’. ‘Rank’ is defined as including ‘position or standing in the social scale or in any graded body. The word ‘official’ (which, the Respondent submits, qualifies both ‘title’ and ‘rank’) means, in the present context ‘formal or ceremonious’ (Macquarie Dictionary).

14 The Respondent contends that the name ‘Prince’ resembles an ‘official title’ and that it is commonly understood in the sense of the title given to the male offspring of a monarch. Therefore, the name Prince Todd Charles Juchau is liable to be misunderstood as referring to Todd Charles Juchau, as a person who is a prince. As the proposed new name would be ‘Prince Todd Charles Juchau’ the name would also ‘include’ an official title for the purposes of section 4(c) of the BDMR Act.

15 Mr Dalla-Pozza submits that section 30(3) of the BDMR Act provides that the Registrar has the discretion to refuse to register a change of name that might cause its bearer to be taken to be the holder of some official title or rank that the person does not possess. He says that it appears that the BDMR Act was concerned to preserve a distinction between a name and a rank or title. A name designates an individual whereas a title or rank is the recognition of the conferral of some public or official status or authority. For this reason, a person who holds a particular rank or title does not need to register this title as a name under the BDMR Act. He says that the discretion in section 30(3) should be exercised in a manner consistent with those objects: Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 per Dixon J.

16 Mr Dalla-Pozza submits that the Applicant's belief as to whether or not he or she holds a particular title and any indications as to whether the Applicant will use the change of name as a title or official rank are relevant considerations to be taken into account by the Tribunal. He says that a person who regards and holds him or herself out as holding a particular rank is more likely to use a prohibited name in a manner which would cause it to be taken as a title rather than as a name thereby offending the objects of the Act. He says that there is sufficient evidence before the Tribunal to be satisfied that this is the case.

Consideration

17 I agree with Mr Dalla-Pozza’s submission that ‘Prince’ resembles, and in fact is, an official title. That being the case, it is a ‘prohibited name’ for the purposes of the BDMR Act. However, I also accept the Applicant’s assertion that ‘Prince’ has been recognised as a name, as well as being a title.

18 Therefore the issue for determination is whether or not the change of name should be registered notwithstanding the fact that it is a ‘prohibited name’.

19 Mr Dalla-Pozza has referred me to two Commonwealth Administrative Appeals Tribunal cases in which an individual’s name was considered for the purposes of the Commonwealth Passports Act 1938. Under that Act an Authorised Officer has discretion not to accept for inclusion in a passport any name that, on reasonable grounds, may be considered offensive. That discretion may be applied to names that are considered offensive because they contain expletives or racial and/or ethnic slurs or implications, and to cases in which applicants purport to use Royal Titles or Titles of Nobility that have not been legitimately acquired.

20 In each of the matters Mr Prime Minister John Piss The Family Court And Legal Aid and Minister for Foreign Affairs and Trade [2000] AATA 1028 (“Mr Prime Minister John Piss The Family Court And Legal Aid”) and Abolish Child Support and Family Court and Minister for Foreign Affairs and Trade [2001] AATA 159 (“Abolish Child Support and Family Court”) the Tribunal was required to review a decision of the Australian Passport Office in which it considered whether it was appropriate to issue a passport in the name of the Applicant.

21 In Mr Prime Minister John Piss The Family CourtAnd Legal Aid the Tribunal (per Dwyer SM, Campbell and Ermert, Members) said at paragraph [39]:

‘The applicant's chosen name assumes a title which can only be given by the Australian democratic process. Some titles like 'King' or 'Queen' or derivatives of those names, are already accepted as names as the applicant demonstrated Thus the use of those names, particularly as surnames rather than names preceding a first name is not likely to be misleading or 'irritating' or 'highly annoying'.

22 However, the Tribunal went on to hold that in the circumstances of the case use of the name would be offensive, as it would mislead persons into considering that the applicant was the Prime Minister of Australia (at paragraphs [38] and [40]).

23 In the Abolish Child Support and Family Court matter the applicant sought a passport in the name ‘Justice Nevil Abolish Child Support and Family Court’. Members Elsum and Rodopoulos stated at paragraph [22]

22. We do not consider that the purpose of issuing passports is to disseminate political statements, as described by the Anti-Discrimination Tribunal, nor do we consider that it is appropriate to issue a passport that is misleading with regards to title, authority and status. In referring to Royal Titles or Titles of Nobility clearly the Manual exemplifies potential examples as to how the use of titles can mislead. "Justice" may be used in a conventional naming sense (paragraphs 44, 45 and 47), but in these circumstances it has the potential to mislead in terms of authority and status.

24 I accept that different considerations apply to the issue of a passport and the registration of a name. However, in my view, the potential to mislead also arises in this matter. It is apparent that the Applicant considers that he holds a royal title. It appears that the Applicant intends to use the name ‘Prince’ as an addition to the title ‘His Royal Highness’ rather than merely as a name. He refers to himself as ‘His Royal Highness’ and in doing so he has already held himself out as holding an official title. This, when coupled with the fact that the name ‘Prince’ is itself a royal title, would be likely to create confusion as to whether or not the name was a title. For that reason, it is my view that registration of the name ‘Prince’ should not be permitted.

25 It is unnecessary that I consider whether the use of the name ‘Prince’ in that circumstance may also offend some sectors of the community.

26 If the Applicant is of royal descent, he may have some entitlement to use the title ‘Prince’. If that is the case, he does not need to have the title registered as a name.

27 I am of the opinion that the use of the term ‘Prince’ in the context of the other words used by the Applicant could reasonably be mistaken for a title. That being the case, it is my view that the discretion under section 30(3) of the BDMR Act should not be exercised to permit the change of name sought.

28 For these reasons, the correct and preferable decision is to refuse to register the change of name.

Order

The decision under review is affirmed.