Lachmaiya v NSW Registry of Births, Deaths & Marriages

[2008] NSWADT 291

CITATION:	Lachmaiya v NSW Registry of Births, Deaths & Marriages [2008] NSWADT 291
DIVISION:	General Division
PARTIES:	APPLICANT Subramani Lachmaiya RESPONDENT NSW Registry of Births, Deaths & Marriages
FILE NUMBER:	083134
HEARING DATES:	11 August 2008
SUBMISSIONS CLOSED:	11 August 2008
DATE OF DECISION:	11 August 2008
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:	Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Hawke v Chief Executive Officer, WorkCover NSW (No.2) (GD) [2008] NSWADTAP 45 McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 119 Shi v Migration Agents Registration Authority [2008] HCA 31
REPRESENTATION:	APPLICANT G Butterfield, solicitor RESPONDENT G Butterfield, solicitor
ORDERS:	1.The decision under review is set aside 2. In its place, the decision is made that the Application dated 24 December 2007 made by Subramani Lachmaiya to the Respondent to change his name to Mani Subramani Lachmaiya is granted, and I direct that any and all steps that need to be taken to enter this change of name be taken within 30 days of 11 August 2008 3. No Order for costs.

1 This is an application by Mr Lachmaiya, under section 56 of the Births, Deaths and Marriages Registration Act 1995 (“the Act”) for a review of a decision of the Registrar of Births Deaths and Marriages (“the Registrar”). The decision was to refuse Mr Lachmaiya's application to change his name to Mani Subramani Lachmaiya.

Background

2 The facts in this matter are complex. The correspondence between the parties explains the relative positions and for that reason it is useful to quote from that material.

3 In the reasons given for the original refusal the Registrar’s delegate stated:

“You provided the Registrar with some information in your application of 24 December 2007. On 27 December 2007, 15 January 2008 and 11 February 2008 you provided further information in regard to concerns the Registry has that you have applied for previous changes of name.

In summary in your application, you say:

1. You are applying for a change of name because you use your first name as Mani being short for Subramani, which is your legal first name. Mani is a common name in your extended family. You would like to keep Subramani as a middle name. You did not wish to change your name but the RTA wants you to register Mani with the Registry of Births Deaths and Marriages.

2. You have not applied to register a change of name previously but have filled in many changes of name forms before in the names you would have used, to assist people from Fiji.

3. You recall helping to fill in an application for Mr Subramani and suggest the name of a justice of the peace who may have witnessed his signature. That person (Mr Subramani) visited you in the mid 1980's and again twenty years later at your current residential address. In 2004 he left your address and you have been told that his ANZ mail occasionally still arrives at your residential address.

4. You are the only person living at … with the date of birth …

5. The error in your date of birth that is recorded on your Drivers licence is a typing error.

6. You have never been to the Registry of Births Deaths and Marriages before making this application and you have never given your passport or citizenship certificate to anyone else.

7. You wish for any previous record that relates to your identity to be deleted.

The Registry holds a record of applications for registration of change of name that were made in May 2003 and December 2004 by Subramani … Subramani's father's name is recorded in these applications as Lachmaiyer Polaiya. These applications were signed in the presence of Registry Officers of the Chippendale office of the Registry of Births Deaths and Marriages.

On 27 December 2007 an officer of the Registry spoke to you by phone. In that conversation you stated it was your identical twin that had registered the previous changes of name. When you attended the Registry later that day you agreed you had completed the previous change of name applications for friends, and that other people had submitted them.

Your application to register a change of name has been refused.

The reason(s) for the refusal are;

1. From the information that you have provided and on examination of documents and records held by the Registry, the Registrar is not satisfied that you were not a party to the change of name applications made in 2003 and 2004.

In these circumstances, I am not satisfied that if I were to grant this change of name this would not contribute to you using it for an improper purpose.”

The internal review application

4 Mr Lachmaiya sought an internal review of the refusal. Submissions were provided on his behalf in relation to this application. These stated:

“Reasons for seeking an Internal Review Application are as follows: -

The Registry refused the Applicant's Change of Name Application and set out its reasons for such refusal in a letter to the Applicant dated 21 February 2008 ("the Registry's letter").

There are several errors in paragraph 3 of the Registry's letter which purports to summarise what the Applicant says in his Change of Name Application. The error is as follows: -

a. In point 2, the Registry states "You ... have filled in many changes of name forms before in the names you would have used, to assist people from Fiji." This is incorrect for the following reasons: -

i. Nowhere in the Application or the supporting Statutory Declaration does the Applicant say that he has filled in "changes of name forms". The reference is to "change of forms".

ii. Nowhere in the Application or the supporting Statutory Declaration does the Applicant say that such forms have been completed in the "names he would have used".

iii. The Applications that the Registry has referred to as having been made in 2003 and 2004 are made by persons seeking names that the Applicant is not seeking. For instance, the 2003 Application involves a person seeking the name of "Thaya Nand Mani" whilst the 2004 Application involves a person seeking the name of "Mavesh Mani Polaiya".

iv. The Applicant's statement about assisting people to complete forms was a statement that applied generally to assisting people from the Fijian community complete all types of documents if these persons do not have the required English language writing skills.

3. In the fourth paragraph of the Registry's letter, reference is made to applications for registration of a change of name made in May 2003 and December 2004 ("the earlier Applications"). Under cover of letter dated 3 March 2008, copies of the earlier Applications were furnished to the Applicant's Solicitor.

4. After making references to the contents in the earlier applications, the Registry states the reason for its refusal of the Application as follows: -

"From the information that you have provided and on examination of the documents and records held by the Registry, the Registrar is not satisfied that you were not a party to the change of name applications made in 2003 and 2004. "

5. It is respectfully submitted that the above reason is incorrect as: -

i. The Australian Citizenship document in support of both the 2003 and 2004 Application refer to a person by the name of "Subramani" and is a Certificate that referred to citizenship taking effect on and after 26 May, 2003. This Certificate is not the Citizenship paper of the Applicant who has submitted his Citizenship papers in Application No: 25405/07 and which Certificate has been issued in his name, namely "Subramani Lachmaiya" and which takes effect from 4 May, 1984.

ii. The person involved in the earlier Applications does not refer to his name as being "Subramani Lachmaiya".

iii. The person involved in the earlier Applications does not seek a name which corresponds with the name sought by the Applicant in his Application. It would be unreasonable to refer simply to the name of "Subramani" as providing any meaningful connection as this name is a common name in Fiji.

iv. The 2004 Application contains a photocopy of the Fijian passport of the person called "Subramani". This person bears no resemblance in appearance to the Applicant and in this respect a comparison can be made with the documents which the Applicant has submitted in his own Application. Included in this Application for Review is a colour photocopy of Subramani's Passport which the Applicant obtained from Subramani in 2003 after lending him $2,300.00 in relation to the purchase of a motor vehicle. The Applicant wanted to have some identification in the event that Subramani did not repay the loan and absconded. We also attach colour photocopies of our client's last three Passports. A comparison of the Applicant's documents with the colour photocopy of Subramani's Passport clearly shows that there is no resemblance between the two.

v. There is no demonstrated reason for the Applicant to be involved as a party to the change of name applications in 2003 and 2004. The Applicant has made it clear in his own Application that the reason he has sought to lodge a Change of Name Application is because of a request made of him by the RTA in the process of renewing his Driver's Licence. The Applicant has not had any reason to consider changing his name prior to the request given to him by the RTA in late 2007.

vi. The person who made the earlier Applications is clearly not the Applicant in this matter.

vii. There is no evidence to support a finding that the Applicant was a "party" to the Application in the sense that he was the person who made the earlier Applications. If the Registry is using the words "a party" broadly to connote a person involved in an enterprise as an accessory, if not as the principal, then again there is no evidence to support the Applicant's involvement in the earlier Applications in such an "accessorial" role. To assist someone to complete an application, without more, does not amount to being meaningfully involved as "a party" to the relevant conduct.

viii. At the time of assisting the person called "Subramani" who the Applicant knew as "Pujari" the Applicant had, as outlined in the letter of the Applicant's Solicitor dated 11 February, 2008, no reason to question or dispute that person's assertion that he was born on the same date as the Applicant, to the same father, but a different mother. This assistance was given to Subramani in 2003.

ix. At the time that our client assisted Subramani to complete the 2003 Application, he obtained details from Subramani sufficient to complete the first page. At the time, Subramani was residing with the Applicant and on that basis the Applicant utilised the address and contact details that appear on the front page of the Application. The Applicant did not complete the rest of the Application as Subramani told him that he would take the Application to the Registry and ask someone to assist him there as he had to sign the document before a Justice of the Peace in any event.

x. The Applicant had no involvement with the 2004 Application. He did not complete the document in any way and to the extent that it includes any particulars that relate to him, such particulars were included in this Application without his knowledge or consent.

xi. The earlier Applications and Subramani' s passport were signed "L S Mani". The said signature is not the signature of the Applicant.

6. The Registry further states that it is "not satisfied that if I were to grant this change of name that this would not contribute to you using it for an improper purpose". The Applicant submits that there is no evidence that gives rise to any suspicion that his Change of Name Application could be used for an improper purpose. The Applicant has made his purpose perfectly clear. It is to comply with a request that has been made of him by the RTA and for no other reason. The Applicant has had a NSW Driver's Licence since 1981.

7. The Applicant brought his Application to make it clear to the RTA that he was the person named Mani Subramani Lachmaiya, the name which has appeared on the Applicant's Driver's Licence since 1981.

8. This Application is not connected to the earlier Applications and if there is an improper purpose associated with the earlier Applications, then such purpose does not operate to characterise the purpose of the subsequent and unrelated Application filed by the Applicant.

9. It is also submitted that if an improper reason is being referred to as the basis upon which the Application is to be rejected, then such improper purpose ought to be identified.

10. The Applicant will be referring this matter to the Police and has, as outlined in the letter of the Applicant's Solicitor dated 11 February 2008, endeavoured to locate Pujari, or the person known as "Subramani" without success.

The internal review determination

5 The refusal was affirmed on internal review. The reasons for the internal review determination set out the findings of fact on which the decision was made. These were:

“On 28 May 2003, the Registry of Births, Deaths & Marriages registered a change of name for Mani Subramani to Thaya Nand Mani. Identity documents submitted with the application included a Fijian I birth certificate for Subramani (registration No 785220).

On 30 December 2004, the Registry received another application from Mani Subramani for a change of name to Mavesh Mani Polaiya. Identification documents submitted included a certified copy of the same birth certificate submitted with the change of name that was registered on 28 May 2003 (Registration No 785220). This application 1 was refused because the applicant used his original name in the application. It is a requirement of the statutory declaration signed with each change of name application that the new name will be used for all purposes. Both applications showed Killaloe Avenue, Pennant Hills NSW 2120 as the address of the applicant.

On 24 December 2007, the Registry received an application from Subramani Lachmaiya for a change of name to Mani Subramani Lachmaiya. This application was submitted with a citizenship document in the name of Subramani Lachmaiya dated 4 May 1984, and a passport in the name of Subramani Lachmaiya showing a date of birth 20 August 1949 in Fiji. Registry records confirmed two previous applications for change of name and is of the opinion that all three applications were made by the same person.

The statutory declaration included in your application signed by you on 27 December 2007 states:

- you have not previously applied to change your name with the Registry

- you have filled in many change of forms before to assist people from Fiji

- you have always used the surname Lachmaiya

- your first name is Subramani which is commonly known as Mani

- you are changing your name because of a request by the RTA

- previous applications to change your name were not made by you

- You request these records be deleted

- the statutory declaration has been initialled L.S. where an amendment has been made

On 19 February 2008 you provided the Registry with a copy of your birth certificate as requested (Registration No. 785220). This is the same birth certificate submitted with the first two change of name applications mentioned above.

Response to reasons for seeking an internal review as set out by Hancock Alldis & Roskov Lawyers

1. The statutory declaration signed by you on 27 December 2007 states:

"I have filled in many change of forms before and often have filled the names as I would have done to assist people from Fiji so they can fill in their own forms as I would do." The Compliance Officer understood this statement to mean that you have assisted many people to complete a change of name form.

2. The fact that the applicant is seeking a different name to those sought in previous applications is irrelevant. The name being sought is not the issue.

3. It is claimed that there is no evidence to support a finding that you were a party to the previous applications. It is also claimed that you are clearly not the applicant in the previous change of name applications.

However I am of the opinion that all three change of name applications have been signed by the same person for the following reasons:

- All three applications show the same address, date and place of birth, and all three were supported by the same Fijian birth certificate.

- The two previous change of name applications were signed by L.S. Mani. An alteration (signature L.S.) appears on the 2004 application under the family name. The same signature appears on page 2 of the current application where an alteration has been made. The same initials have been added to the statutory declaration made on 27 December 2007 where an amendment has been made.

- A certificate of marriage dated 29 January 1983, which your solicitors have confirmed in their letter dated 11 February 2008 is your marriage, states your name as Mani Subramani and is signed L.S. Mani. A copy of this Certificate of Marriage is enclosed with this letter.

- In your statutory declaration of 27 December 2007, you state that you have always used the name Lachmaiyer, yet your marriage is registered in the name Mani Subramani and is signed L.S. Mani.

Law

Under section 30 of the Births, Deaths and Marriages Registration Act 1995, the Registrar may decide not to register a change of name if not satisfied that the change of name is not sought for a fraudulent or other improper purpose.

When a person submits a statutory declaration to register a change of name, that person is obliged to abandon their old name and use their new name for all purposes in the future.

Conclusion

Hancock Alldis & Roskov Lawyers confirms in writing the marriage of Mani Subramani to Viopapa losefa dated 29 January 1983 is your marriage. The signature L.S. Mani on the Certificate of Marriage matches the signature on the 2003 and 2004 change of name application forms previously mentioned, as well as the alteration signature appearing on the 2007 change of name application form from you, and the statutory declaration made on 27 December 2007. This evidence confirms that all signatures have been made by the same person.

The birth certificates (No. 785220) provided in 2003 and 2004 are identical to the birth certificate provided recently. They are true copies of the same entry in the Registry of Births kept at the Registrar-General's Office, Suva, Fiji and extracted on 3 October 2003 and 5 February 2008.

I am satisfied that you are the same person who signed two change of name applications made in 2003 and 2004 as well as an application in 2007. Your application is refused on the grounds that you have not used your name, "Thaya Nand Mani", registered in 2003. ”

The application to the Tribunal

6 Mr Lachmaiya’s application for an external review of the determination came before me for hearing on 11 August 2008. At the conclusion of the hearing I determined that the decision under review should be set aside and I gave brief reasons for my decision. The Respondent has requested written reasons for my decision and these reasons are provided in response to that request.

The Applicable Law

7 Mr Lachmaiya’s application for the change of name has been refused pursuant to section 30 of the Act. That section provides:

30 Registration of change of name

(1) Before registering a change of name under this Part, the Registrar may require the applicant to provide evidence to establish to the Registrar’s satisfaction:

(a) the identity and age of the person whose name is to be changed, and

(b) that the change of name is not sought for a fraudulent or other improper purpose, and

(c) if the person whose name is to be changed is a child-that the child consents to the change of name or is unable to understand the meaning and implications of the change of name.

(2) If the Registrar is satisfied that the name of a person whose birth is registered in the State has been changed under another law (including a law of another State or the Commonwealth) or by order of a court (including any court of another State or the Commonwealth) the change of name may be registered under this Act.

(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 56 of the Act provides:

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.

9 Section 88(1) of the Administrative Decisions Tribunal Act 1987 (“the ADT Act”) provides:

88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

The evidence

10 Mr Lachmaiya contends that the Tribunal should be satisfied as to his identity and that he was not the applicant in the applications made in 2003 and 2004.

11 Mr Lachmaiya relied on an expert report by Mr Steven Dale. Mr Dale examined the documentation relating to Mr Lachmaiya’s change of name application and the applications made in 2003 and 2004. He reached conclusions that support Mr Lachmaiya’s contention that he was not the person who made the 2003 and 2004 applications.

12 Mr Lachmaiya also relied on his own evidence in which he set out his family background and explained the reasons for seeking the name change. His evidence is that he is seeking to rationalise all his identity documents into a single name. He says that there is no reason to believe that he is involved in any improper purpose. If that were the case, it makes no sense to arrange his affairs in a way that would make it easier for the authorities to locate him.

13 The Respondent’s case is essentially the same as that set out in the internal review reasons. The significant difference being that the Respondent conceded that the same person signed the change of name applications made in 2003 and 2004. Mr Della-Pozza also conceded that the evidence suggests that a different person made the 2007 application. However, the Respondent contends that there are several aspects to the application that give cause for concern. Mr Della-Pozza submits that the Tribunal could not be satisfied that Mr Lachmaiya was not a party to those applications. He says that the evidence suggests a closer relationship between Mr Lachmaiya and the other applicant than that which Mr Lachmaiya has conceded. He argues that it in the circumstances it is improbable that Mr Lachmaiya would not have been suspicious of the other applicant.

14 The Respondent contends that section 30(1)(b) of the Act requires that Mr Lachmaiya must satisfy the Tribunal that the change of name is not sought for a fraudulent or other improper purpose. Mr Della-Pozza submits that on the evidence before it, the Tribunal could not be satisfied that Mr Lachmaiya had discharged that burden.

Application for costs

15 Mr Butterfield made an application for an order for costs pursuant to section 88 of the ADT Act. He argued that special circumstances exist that warrants such an order. He says that those circumstances are that Respondent had sufficient material on which to conclude that the person who made the applications in 2003 and 2004 was not the same person who made the applications in 2007. He says that despite the existence of that material, no one gave appropriate consideration to the fact that these were two separate people. He says that the inescapable conclusion must be that they were two different people and that those circumstances are indeed special warranting an award of costs.

16 In the alternative, Mr Butterfield submitted that an award for the costs is warranted at least from 22 July 2008, the date that Mr Dale’s expert's report was served. He said that from the date of service of the report the Respondent was in no position to contest it’s conclusions.

17 Mr Della-Pozza submitted that because of the confusion in the documentation, it really was the expert report that cast light on the matter. He argued that there was a great deal of evidence supporting the position that there was something untoward about the applications. Therefore, he says, until Mr Dale’s report was served on it, the Respondent had reasonably assumed that the same person made the 2003 and 2004 and 2007 applications. Mr Della-Pozza further submitted that even after the expert report was served on it, the Respondent behaved in a way that was consistent with its responsibilities as a government department. He said that the Respondent was able to put forward a coherent basis for not acceding to the application at first instance. For that reason he says it falls short of the special circumstances that are required.

Findings

18 Section 63(1) of the ADT Act provides that in determining an application for a review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, taking account of any relevant material and any applicable written or unwritten law. See further Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 and most recently Shi v Migration Agents Registration Authority [2008] HCA 31. The decision of the Tribunal is taken to be the decision of the administrator and to have that effect.

19 Mr Lachmaiya's application for the change of name has been refused pursuant to section 30 of the Act. The issue as I understand it is whether the Tribunal can be satisfied as to Mr Lachmaiya’s identity and age and that the change of name is not sought for a fraudulent or other improper purpose. These require findings of fact.

20 I am satisfied that the evidence does establish that Mr Lachmaiya is the person who he claims to be. In my view the evidence is sufficient to satisfy the requirements of section 30(1)(a) of the Act.

21 Pursuant to section 30(1)(b) Mr Lachmaiya must provide evidence to satisfy the Tribunal that the change of name is not sought for a fraudulent or other improper purpose. While I agree with the Respondent’s contention that there are several aspects to Mr Lachmaiya’s application that appear to remain unexplained, it seems to me that it is improbable that this application was sought for a fraudulent or other improper purpose. Whether or not the change of name applications made in 2003 and 2004 were for a fraudulent or other improper purpose is a separate issue. That issue is correctly to be dealt with by the police.

22 Having formed this view, and reached these conclusions, the reasons for the determination to refuse the registration fall away. Therefore, the application should be granted.

23 With respect to the application for costs, section 88 of the ADT Act gives the Tribunal power to award costs where there are special circumstances that warrant an award. The Tribunal has considered the provisions of section 88 of the ADT Act in numerous matters, primarily in the Retail Leases Division. The Tribunal’s President recently considered the issue of ‘special circumstances’ in the Appeal Panel matter of Hawke v Chief Executive Officer, WorkCover NSW (No.2) (GD) [2008] NSWADTAP 45. In awarding costs against the appellant he stated:

10 What circumstances may amount to ‘special circumstances’ attracting a costs order has been the subject of numerous decisions in the Tribunal and at Appeal Panel level. There is also a Practice Note, No 12, giving guidance on the way the Tribunal might exercise the discretion.

11 The external merits review of administrative decisions by government agencies and decision-makers serves an important public purpose. The last of the objects listed in section 3 of the Act is:

‘(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.’

12 In keeping with this object, citizens should not be unduly deterred from applying to the Tribunal for review of adverse decisions affecting them. The costs rule in section 88(1) displaces the standard rule applying in the ordinary courts, of costs-follow-the-event.

13 It is rare in the merits review jurisdiction of the Tribunal to see government agencies apply for costs at the first instance level when a citizen fails in obtaining an order from the Tribunal varying or setting aside the challenged decision.

14 This is, as I see it, as it should be. The conduct of applicants for review would have to be quite extreme in the way in which they have presented their cases or in bringing the proceedings in the first place before any order for costs at first instance would be warranted. Some of the circumstances that might fit this description are dealt with in the Practice Note.

15 But, as I see it, there is a case for a less non-interventionist standard to be applied to appeals. If the losing party at first instance (whether citizen or administrator) brings forward an unmeritorious appeal, the other party should be given some protection from having to go around the course a second time. The Practice Note states:

‘Special circumstances that may justify a costs order

2. The following are some examples of special circumstances that may justify a costs order. …

- the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; …

24 In McGuirk v Commissioner of Police, NSW Police [2007] NSWADT 119 Judicial Member Higgins dealt with the issue in an application in the Tribunal’s General Division. She summaries the principles governing costs in the following way:

10 The Tribunal has no inherent power to award costs, however it has been given such a power under section 88 of the Administrative Decisions Tribunal Act 1997 (‘ADT Act’). It is a discretionary power that can only be exercised where the Tribunal is satisfied that there are ‘special circumstances’ warranting an award of costs. This means that in order to obtain a cost order an applicant has two hurdles to overcome. The first being able to identify ‘special circumstances’ and the second being able to show that the ‘special circumstances’ warrant an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29].

11 ‘Special circumstances’ have been defined as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’. It is well established that mere success in a review application does not constitute special circumstances: see Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. In Brooks the Tribunal noted that while the circumstances which would or would not warrant an award of costs could not be exhaustively listed, an award of costs may be warranted ‘… where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications’.

12 The power to order costs should not be used as ‘some kind of sanction to punish agencies for poor administration’, and the Tribunal should not embark on ‘a general enquiry into the way in which the agency dealt with the Applicant’: Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 at [56] – [58].

25 I can only exercise the discretionary power to award costs if I am satisfied that there are ‘special circumstances’ warranting an award of costs. In this matter Mr Lachmaiya has asserted that an award of costs is warranted. While I agree that the Respondent could have taken a different view on the material available to it, I am not of the view that that the Respondent's case was so without merit and futile and destined to fail that it should never have been conducted. That is the type of standard that would need to be met for me to be satisfied that special circumstances existed. I do not think that s the case in this matter. Without having met that standard I cannot say costs should follow.

26 I agree with the Respondent's submission that Mr Lachmaiya has not made out any special circumstances. Accordingly, it is my view that Mr Lachmaiya’s application for costs should be dismissed.

Orders

1. The decision under review is set aside.

2. In its place, the decision is made that the Application dated 24 December 2007 made by Subramani Lachmaiya to the Respondent to change his name to Mani Subramani Lachmaiya is granted, and I direct that any and all steps that need to be taken to enter this change of name be taken within 30 days of 11 August 2008.

3. No Order for costs.