Terzic v Registrar of Births, Deaths and Marriages

[2013] NSWADT 82

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Terzic v Registrar of Births, Deaths and Marriages [2013] NSWADT 82

Hearing dates:

7 February 2013

Decision date:

19 April 2013

Jurisdiction:

General Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

1. The decision of the respondent to refuse to change the applicant's name for a fourth time is set aside.

2. The matter is remitted to the respondent for reconsideration in accordance with the direction in the reasons for decision.

Catchwords:

MERITS REVIEW - decision of Registrar of Births, Deaths and Marriages not to register a change of name on a fourth application - meaning of exceptions to restrictions on registering name changes - no inflexible rule that name cannot be registered on a fourth or subsequent occasion if the reason for the application is personal preference - fresh evidence justifies name change

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995
Administrative Decisions Tribunal Act 1997

Cases Cited:

Ezekeil v Registrar [2011] NSWADT 137
AHH v Registrar [2011] NSWADT 267 Turkman v Registrar [2011] NSWADT 258 Mellini v Registry [2012] NSWADT 215
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150
Applicant S214 of 2002 v Attorney-General (Cth) (2004) 40 AAR 155
BY v Director General, Attorney General's Department [2002] NSWADT 79

Texts Cited:

Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed

Category:

Principal judgment

Parties:

Sarah Terzic (Applicant)
NSW Registry of Births, Deaths and Marriages (Respondent)

Representation:

S Terzic (Applicant in person)
Crown Solicitor (Respondent)

File Number(s):

123358

REASONS FOR DECISION

Introduction

1. Subject to certain exceptions, a person can have a name change registered three times. The Registrar of Births, Deaths and Marriages can register a fourth or subsequent name change if he or she is satisfied that the reason for the proposed change warrants the registration of the change. The Registrar refused the applicant's fourth application to register a change of her name because he regarded the reason for the change to be mere personal preference. While the Registrar must be satisfied that the reason for the application warrants registration of the name change, the exercise of the discretion should not be fettered by applying an inflexible rule.

1. Following the hearing, the applicant provided further evidence of her reasons for applying to change her name. The Registrar of Births, Deaths and Marriages accepted that evidence and noted that if that material had been lodged with the application, a different decision might have been made. The Registrar then invited the Tribunal to set aside the decision and remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal: Administrative Decisions Tribunal Act 1997, s 63(3)(d). I have acceded to that request but before doing so I wish to make a point about the scope of the exception in s 29C(2)(a) of the Births, Deaths and Marriages Registration Act 1995.

Background

1. The applicant's birth certificate records that she was born in 1967 and was given the name Gwendaline Sheridan. In 1989 she married a man with the surname Terzic. Since then the applicant has successfully applied to change her name three times:

(1)   to Hephzibah Beulah Nazarene in 2001

(2)   to Gwendaline Sheridan in 2003; and

(3)   to Sarah Eve Joshua in 2010.

1. On 16 January 2012 the applicant applied to register a change of name to Gwendaline Terzic. The reason given in a statutory declaration attached to the application was that, "I wish to revert to name given at birth and marriage because my husband is upset that I changed my surname."

1. The Registrar refused the application for the following reasons:

(1)   the applicant had previously registered three changes of name;

(2) the Registrar is not satisfied that the reason given for the proposed change of name warrants registration under s 29C of the Births, Deaths and Marriages Registration Act 1995.

1. My role is to decide what the "correct and preferable" decision is. In doing so I must have regard to the law and any relevant factual material: ADT Act, s 63. Finally I must apply the law to the facts and make a decision.

The law

1. The restriction on the Registrar registering a fourth or subsequent change of name is set out in s 29B(b) of the Births, Deaths and Marriages Registration Act 1995:

The Registrar is not to register a change of name of a person on application made under this Act if the Registrar is aware that:

(b) 3 or more changes of the person's name have been registered (whether in this State or in another State).

1. Section 29C(2) contains various exceptions to that general rule. The only exception on which the Registrar relied in this case was s 29C(2)(a)

The Registrar may register a change of name of a person despite any restriction imposed by section 27 (b) or 28 (1) (b) as to the period for which the person must be resident in the State, or any restriction imposed by section 29B, if:

(a) the Registrar is satisfied that the reason for the proposed change of name warrants the registration of the change of name

1. Section 29B and s 29C were part of a package of amendments in 2009 which made significant changes to Part 5 of the Act - the part concerned with change of name: Births, Deaths and Marriages Registration Amendment (Change of Name) Act 2009.

Tribunal's interpretation of s 29C(2)(a)

1. The Tribunal has determined several applications for review where the Registrar has refused to register a fourth change of name. The Tribunal has consistently said that "personal preference, likes or dislikes" are insufficient to enliven the discretion:

I agree with the Registrar's decision that personal preference, likes or dislikes, is insufficient to enliven the discretion. There must be some ground or circumstance over an above personal preference justifying a change for it to be warranted. To hold otherwise, would make the restrictions imposed by s 29B nugatory: Ezekeil v Registrar [2011] NSWADT 137 at [14].

.

1. That interpretation has been adopted and applied in subsequent cases: AHH v Registrar [2011] NSWADT 267, Turkman v Registrar [2011] NSWADT 258 and Mellini v Registry [2012] NSWADT 215. The Registrar submitted that I should follow this line of reasoning because it accords with previous decisions and it is correct.

1. The Registrar submitted that the Tribunal's interpretation of s 29C(2)(a) in Ezekeil v Registrar [2011] NSWADT is correct because it is the only construction which leaves of s 29B and s 29C with some work to do. It is a well-accepted principle of statutory interpretation that the legislature intends every section to have some work to do: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [71 per McHugh, Gummow, Kirby and Hayne JJ. A statutory provision giving a limited exemption to another provision should not be construed so broadly as to give the other provision no practical effect.

1. Putting the same argument another way, the Registrar submitted that by enacting s 29C, parliament provided that any registration of a change of name after a third change would be exceptional. The discretion in s 29C(2)(a) should be construed so as to give effect to that intention.

Consideration of the law

1. A person's name may be changed by registration in accordance with Part 5 of the Births, Deaths and Marriages Registration Act 1995. Certain individuals including inmates and forensic patients are classified as "restricted persons" and need permission from a supervising authority before applying to change their name: s 31A -31L. Otherwise, as long as the change of name is not sought for a "fraudulent or other improper purpose", there are very few restrictions on the Registrar's discretion to change an adult's name: s 30(1)(d). One such restriction is that a change of name cannot be registered if the person has changed his or her name three or more times in total. Another is where the person has changed his or her name in the previous 12 months.

1. There are both broad and narrow exceptions to these restrictions. Section 29C(2) provides that:

(1) The Registrar may register a change of name of a person despite any restriction imposed by section 27 (a) or 28 (1) (a) that the person's birth must be registered in the State if satisfied that an order has been made (whether in the State or elsewhere) for the protection of the person or the person's children from domestic violence.

(2) The Registrar may register a change of name of a person despite any restriction imposed by section 27 (b) or 28 (1) (b) as to the period for which the person must be resident in the State, or any restriction imposed by section 29B, if:

(a) the Registrar is satisfied that the reason for the proposed change of name warrants the registration of the change of name, or

(b) without limiting paragraph (a), the Registrar is satisfied that the proposed change of name is sought for the protection of the person, the person's children or anyone else associated with the person, or

(c) the proposed change of name is because of the marriage of the person, or

(d) the District Court has approved the proposed change of name on application under section 28 (4).

(3) Nothing in this Part limits or affects:

(a) any power that a court has under another Act or law (whether of this State, another State, the Commonwealth or New Zealand) to order that a change of name is to be registered or the ability of the Registrar to comply with such an order, or

(b) the operation of the Adoption Act 2000 , the Law Enforcement and National Security (Assumed Identities) Act 2010 , the Surrogacy Act 2010 or the Witness Protection Act 1995 .

1. The broadest exception is that the Registrar may register a change of name if he "is satisfied that the reason for the proposed change of name warrants the registration of the change of name": s 29C(2)(a). The second exception, which is more specific, arises where "the proposed change of name is sought for the protection of the person" or anyone else associated with the person: s 29C(2)(b). That exception is expressed to be without limitation to the broader exception in s 29C(2)(a). The other exception involving adults relates to change of name on marriage: s 29C(2)(c).

1. When the Registrar is considering whether to apply one of the exceptions in s 29C, he may require the applicant to provide a reason for the change of name: s 30(1)(d).

1. In this case, when determining whether to exercise the discretion under s 29C(2)(a), the Registrar applied the Tribunal's reasoning in Ezekeil v Registrar [2011] NSWADT 137. In my view, that was an error. Refusing to register a fourth or subsequent name change because the reason for the application is "personal preference likes or dislikes" puts a gloss on s 29C(2)(a) that is not consistent with the terms of the provision.

1. I do not agree with the Registrar's submission that s 29C(2)(a) has no work to do unless it is interpreted as the Tribunal did in Ezekeil v Registrar [2011] NSWADT 137. For first, second and third applications the Registrar does not have to be satisfied that the reason warrants registering the change of name. In general, as long as the change of name is not sought for a fraudulent or other improper purpose, it can be registered. That situation changes when there is an application to register a fourth or subsequent change. In those circumstances the Registrar must be satisfied that one of the exceptions in s 29C(2) applies. That is the "work" that s 29C(2)(a) does.

1. Guidance in relation to the circumstances in which the discretion is to be exercised is permissible as long as it is not inflexible: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed, p 311. It is impermissible for the Registrar to inflexibly fetter his discretion by requiring that it never be exercised in certain cases: Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150; Applicant S214 of 2002 v Attorney-General (Cth) (2004) 40 AAR 155. Ultimately, each application must be determined on its merits.

1. I accept that the Tribunal should be cautious in reopening prior considered rulings of the Tribunal such as that in Ezekeil v Registrar [2011] NSWADT 137: BY v Director General, Attorney General's Department [2002] NSWADT 79 at [22]. The well-accepted principles of comity suggest that it should be left to the Appeal Panel to modify a line of authority that has been consistently followed. But, in my view, the desirability for comity is outweighed in this case by the need to clarify the scope of the Registrar's discretion in s 29C(2)(a).

Remittal

1. On 4 March 2013, the applicant provided further evidence of the reasons for the application to change her name. The Registrar has indicated that he might have made a different decision had this material been before him when the original decision was made. Having read that material my view is that the reason for the proposed change warrants the registration of the change. In those circumstances I set aside the Registrar's decision to refuse to register the applicant's change of name and remit the matter for reconsideration in accordance with the direction that the Registrar register the applicant's change of name: ADT Act, s 63(3)(d).

Orders

1. The decision of the respondent to refuse to change the applicant's name for a fourth time is set aside.

2. The matter is remitted to the respondent for reconsideration in accordance with the directions in the reasons for decision.

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Decision last updated: 19 April 2013