Avery v Registrar, Births Deaths and Marriages

Application for disqualification for bias 1This matter was listed for hearing before an Appeal Panel of the Civil and Administrative Tribunal on 10 April 2014. Prior to the hearing the Appellant, Ms Avery, applied for certain members to be disqualified from hearing the appeal. Those members were the members who had constituted the Appeal Panel of the Administrative Decisions Tribunal in a previous proceeding where she and the Respondent were also parties: Avery v Registry of Births Deaths and Marriages [2008] NSWADTAP 68. The Panel in that case was N Hennessy LCM, Deputy President, R Handley, Judicial Member and M Bolt, Non-Judicial Member. Mr Handley is not a member of the NSW Civil and Administrative Tribunal and Ms Bolt was not assigned to sit on this appeal. Magistrate Hennessy was assigned to sit on the appeal. The Appellant's application will be considered in relation to that member only. 2In its written submissions dated 11 March 2014, the Respondent provided a brief chronology of the litigation between the two parties since 1997. One issue in the 2008 proceedings before the Appeal Panel was whether the Respondent should have included the name "Stephanie Tatiana Avery" as a "former name" on a Change of Name Certificate. In 2007 Ms Avery had applied to change her name to Tatiana Igorevna Orechkina. In accordance with legislative provisions, the Registrar was required to record certain particulars on the Change of Name Certificate including "any other former names of the person": Births, Deaths and Marriages Registration Regulation 2006, cl 8(d). Ms Avery said that she had mistakenly been issued with a driver's licence in the name of Stephanie Tatiana Avery and that is the only reason she had ever used the name. 3In the 2008 decision the Appeal Panel found that the Tribunal had made an error of law by interpreting the phrase "any other former name of the person" as including a name that a person had used on occasions. The Appeal Panel decided that to be a "former name" a person must use an alternative name consistently, not merely on a few occasions. The Appeal Panel granted leave for the appeal to extend to the merits of the Tribunal's decision. It then decided that "Stephanie Tatiana Avery" was a former name. The Appeal Panel concluded that: In our view, despite the fact that the name Stephanie Tatiana Avery was originally included on Ms Avery's driver's licence by mistake, she did not seek to alter the name on the licence for 10 years. In December 2007, she identified the name she was using at present as Stephanie Tatiana Avery. She also signed a document using that name at that time. In accordance with the common law principles on change of name by usage or reputation, Ms Avery assumed or acquired the name Stephanie Tatiana Avery in addition to the name, Stephanie Tatiana Patricia Avery. Proof of intention to assume or acquire a name is not required, nor is it relevant that original use of that name was mistaken 4The Court of Appeal dismissed an appeal by Ms Avery from the Appeal Panel's decision: Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72. One ground of appeal that was rejected at [121] was that there was evidence of bias in the text of the decision. 5The substantive issue in the current appeal is whether the Respondent has power to cancel a previous registration (24637/07) and issue a certificate in the same terms as an earlier registration (11367/97). The Tribunal decided that the Respondent did not have the power to cancel the registration. The Appellant has appealed against that decision. 6We have assumed that the Appellant is relying on both actual bias and apprehended bias on the basis of Hennessy LCM's involvement in the previous litigation. In her application for disqualification filed on 11 February 2014, the Appellant gives the following reasons for the application: "bias, impartiality, expected intention to cover up unlawful procedures in the NSW BDM Registry and fraud on the Register as it was so in previous litigations. Attitude to act in excess of powers in order to affirm unlawful procedures in the BDM Registry (law making exercises in the decision of the Appeal Panel in 2008 in the case of Avery v BDM Registrar, waving government policies etc) Illegal outcomes in previous decisions would most likely lead to cover up in relevant issues. 7She alleges that in the 2008 decision the Appeal Panel affirmed the Registrar's decision knowing that the disputed record was a fraud and that the Registrar provided to Ms Avery and the Tribunal false information. Ms Avery provides particulars of those allegations. Ms Avery also speculates that having agreed with the Registrar's decision on one occasion, Hennessy LCM is likely to agree with the Registrar's decision in this case. 8The basic principles in relation to applications for recusal for bias are set out (with references omitted) in JRS Forbes, Justice in Tribunals (3rd ed 2010, The Federation Press): [15.7] A charge of actual bias is tantamount to a plea of fraud, and accordingly cogent evidence is required. In court proceedings such an allegation must be clearly pleaded and particularised, and fairly put to any witness for the tribunal. Omission to do so 'must cast a real doubt over the genuineness of the claim'. [15.9] A finding of apprehended bias is enough to invalidate the decision of a statutory tribunal ... Even so, a finding of apprehended bias is a serious matter, and in deciding whether it has been established, the Briginshaw criteria must be kept in mind. 9The test for apprehended bias is that "... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at [6]. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, McColl JA (with whom Giles and Tobias JJA agreed) said; (citations omitted) A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be 'distinctly made and clearly proved. A finding of actual bias should not be made lightly; cogent evidence is needed; a finding of bias is a grave matter. 10A judicial officer should not lightly recuse herself in response to allegations of bias. Too readily acceding to such requests would subvert the judicial process by allowing litigants to, in effect, choose the person whom they feel would be most favourable to their case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 11The Appellant has provided no evidence, apart from her own assertion for the allegations of fraud, corruption and bias. In relation to a claim of apprehended bias, we accept that a decision-maker who makes findings of fact in particular proceedings may appear to be biased if called on to decide the same issues in subsequent litigation: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2. But if the same factual issue arises in this case, the Appellant would be prevented from re-litigating the matter by the principle of issue estoppel. 12The present appeal concerns the power of the Respondent to cancel the registration and the appropriateness of issuing a certificate recording the registration of a previously registered name. The present appeal does not require Hennessy LCM to make findings on factual matters that were considered in the previous litigation. The Appellant's application for Hennessy LCM to disqualify herself for bias is refused.