Avery v Registrar, Births Deaths and Marriages

Intention to change name 58On 10 December 2007 Ms Avery applied to register a change of name by signing a statutory declaration in the approved form. On that form she identified herself as Stephanie Tatiana Patricia Avery and declared that the new name she wanted to register and use for all purposes was Tatiana Isabella Orlov. She also declared that: I have read all the instructions contained in this document. I do solemnly and sincerely declare that the new name stated below will be used by me for all purposes in the future and is not sought for fraudulent or improper purposes. I understand it is a punishable offence to give false information in this application. 59The Registrar accepted and processed the application and recorded the registration in the Register. A "registrable event" is defined in s 6 to mean "a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage." 60Ms Avery submitted that the registrable event is not the statutory declaration of a change of name or the entry in the Register. Rather, it occurs when the person carries out their expressed intention to change their name. Because she did not actually use her new name, the registrable event did not occur and the 2007 entry is a nullity. The consequence of this conclusion, according to Ms Avery, is that the Registrar has a 'limited duty' to inquire as to whether the person has proceeded with the declaration of intention because that is a condition of registration. 61These submissions do not accord with the legislative scheme or with the observations of Campbell JA in Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72 at [65]: Many of the events that are registrable events, within the meaning of the BDMR Act, have occurred quite independently of registration under that Act. Thus, a birth, or a death, has occurred, even if it has not been registered. The provisions of the Act concerning change of name are different in this respect. Under section 26, it is registration that causes or constitutes the change of the name - the person's name is "changed by registration of the change". That Part 5 is concerned with registrations that themselves effect a change of name is also shown by section 30(1)(a) and (c), which refer to an applicant under that part as "the person whose name is to be changed". 62Ms Avery cited the case of Informal v Chief Electoral Officer (Supreme Court of Tasmania, 18 February 1992 unreported) as authority for the proposition that "pre-registration of intention to change the name is not change of name itself." We were unable to find any reference to that proposition in that judgment. 63It is the act of registration that causes or constitutes the change of name. The evidence that that event 'happened' is the fact that the change of name is recorded as an entry in the Register. The fact that the applicant begins to use the new name at some time in the future is not the registrable event. 64By completing the statutory declaration and writing that the new name she wanted to register was Tatiana Isabella Orlov, Ms Avery triggered the Registrar's power to consider whether to register the change of name. Regardless of whether Ms Avery adopted the new name, she does not deny that it was her intention to apply for her name to be changed. She signed the statutory declaration which was in the approved form. The validity of the subsequent registration of the change of name is not affected by the fact that she did not use the name Tatiana Isabella Orlov for all purposes. The Tribunal did not err in coming to the same conclusion. 65A related argument which we also reject was that the Tribunal should have found that the Registrar must not register a change of name if there is a dispute about the particulars in the entry. Rather, the Registrar should immediately cancel the entry. That contention is not supported by the terms of s 45 or the common law.

Breach of proof of identity policy 66Ms Avery also submitted that the 2007 entry was invalid because the Registrar breached its own Proof of Identity Policy when deciding to accept her application. 67Before registering a change of name, the Registrar "may require the applicant to provide evidence to establish to the Registrar's satisfaction, the identity and age of the person whose name is to be changed": s 30(1)(a). The Registrar has a "Proof of Identity (POI) Policy" which sets out the documents such as driver's licence and an Australian or foreign passport which are required for particular purposes. If the name on any of these documents is different from the name of the applicant, evidence of the change of name is required. Such evidence could be a marriage certificate, a change of name certificate or deed poll, for example. 68While Ms Avery has not provided details of the alleged breach of the POI Policy, we have assumed that Ms Avery contends that the Registrar should not have accepted her application because she did not produce sufficient identity documents or that she did not produce evidence of the changes of name from document to document. In addition, on the basis of the identity documents she did provide, the Registrar should not have been satisfied that she was who she said she was. 69The Registrar required Ms Avery to produce certain documents to prove her identity and was satisfied that she was who she said she was. Ms Avery has never contended that she is not the person who applied to register a change of name in 2007. There has been no breach of s 30 or the Registrar's POI policy that has been brought to our attention that would result in the 2007 entry being invalid. 70Ms Avery also referred to s 64 of the Administrative Decisions Tribunal Act. That provision states that, with some exceptions, when determining an application for an administrative review, the Tribunal must give effect to any relevant Government policy in force at the time. Government policy is defined to mean "a policy adopted by Cabinet or the Premier or any other Minister that is to be applied in the exercise of discretionary powers by the administrators": s 64(5). This provision has no application to these proceedings because there is no government policy in evidence which fits the description in s 64(5) and which relates to the Registrar's decision to refuse to cancel the 2007 entry or the refusal to issue a certificate certifying the 1997 entry.

Withdrawal of application 71Ms Avery does not dispute signing the statutory declaration which constituted the application for registration of a change of name. But, in an affidavit dated 9 April 2013, she states that: I have now withdrawn my intention to register new name (back to old name Tatiana Isabella Orlov ) in the NSW Births, Deaths and Marriages Registry. 72The Tribunal found at [31] that: Ms Avery's subsequent attempts to renounce her statutory declaration and disavow her stated intention, do not change the fact of what occurred i.e. that she provided evidence of her intention to change her name and acting on that intention the Registrar recorded a change of her name to Tatiana Isabella Yurovich (sic). The most reliable information available as to what occurred demonstrates that Ms Avery changed her name to Tatiana Isabella Yurovich (sic). 73As we have noted, the Tribunal inadvertently stated that Ms Avery changed her name to Tatiana Isabella Yurovich when in fact, she changed it to Tatiana Isabella Orlov. 74A person cannot withdraw an application for a change of name that has been registered. Registration has occurred and the only mechanism in the legislation for cancelling an entry is under s 45. The 2007 entry is not invalid or deemed to be cancelled because Ms Avery has subsequently withdrawn her intention to change her name. The Tribunal made no error of law in concluding that the registrable event had occurred and the 2007 entry was valid.

Tribunal's conclusion 75Several grounds of appeal relate to the Tribunal's finding at [29] - [30] that the Registrar does not have a general and unrestrained power to correct any entry in the Register by cancelling it. The Tribunal found that the Registrar's powers are limited to the three circumstances listed in s 45. The Tribunal held that none of those circumstances applies to this case. In particular, the Tribunal found that there had been no inquiry under s 44, that the statutory declaration which accompanied Ms Avery's change of name application was the most reliable information available to the Registrar of the registrable event and that a Court had not required the Registrar to correct the Register.

Misinterpreting s 45 76Ms Avery submits that the Tribunal misinterpreted s 45 in relation to the information that the Registrar needs in order to determine whether an entry should be cancelled. In particular, she submitted that the Tribunal erred when it found that the statutory declaration that Ms Avery signed when applying for a change of name was the most reliable information about whether or not the registrable event had happened. 77Ms Avery's submissions focus on what she refers to as the "declaration of intentions" in the statutory declaration to use the new name for all purposes in the future. That submission discloses a misunderstanding of the Tribunal's reasoning. At [31], the Tribunal stated that "the most reliable information available as to what occurred demonstrates that Ms Avery changed her name to Tatiana Isabella Yurovich (sic)." The information to which the Tribunal was referring was the entire statutory declaration that Ms Avery completed, not just the declaration that she would use the new name for all purposes. When the Tribunal referred to Ms Avery's 'intention' at [30] and [31], it was referring to her intention to apply for her name to be changed and to 'take up' the name Tatiana Isabella Orlov, not just to her intention to use that name for all purposes in the future. 78Ms Avery lists eleven documents or "facts" which she says are relevant to the decision about cancellation of the entry. The Tribunal was correct not to regard any of those matters as being "the most reliable information available to the Registrar of the registrable event." The registrable event in this case is the change of name. The person's name is changed by registration of the change. In this case, as the Tribunal found, the most reliable information available "of the registrable event" is the application that Ms Avery made for the change of name. There was no other information adduced by Ms Avery or available to the Registrar which is more reliable in relation to the correctness of the 2007 entry than her signed statutory declaration. 79Ms Avery submitted that she was never told that there was insufficient 'reliable information' to justify cancellation of the 2007 entry and that if she had known, she would have provided additional information. 80Ms Avery had a reasonable opportunity to present her case and to make submissions in relation to the issues in the proceedings: Administrative Decisions Tribunal Act, s 70 and s 73(4)(c).

Duty to conduct an inquiry under s 44 81Section 44 provides, in part, that the Registrar may correct the Register "to reflect a finding made on inquiry under Division 2." Ms Avery submits that the Registrar has a duty to conduct an inquiry as to whether the change of name occurred. While s 44 does give the Registrar power to conduct an inquiry, such an inquiry may only be made to find out: (a) whether a registrable event has happened, or (b) particulars of a registrable event, or (c) whether particulars of a specific registrable event have been correctly recorded in the Register. 82The Registrar was satisfied that a registrable event (the 2007 entry) had "happened" when the change of name was registered and that the particulars of that event were correctly recorded. The Tribunal agreed with those findings. There was no need for the Registrar to conduct an inquiry under s 44. 83The correctness of the particulars and whether they had been correctly recorded was the subject of previous proceedings.

Failing to explain why the registration could not be cancelled 84These grounds assert that the Tribunal did not explain why the registration could not be cancelled. The Tribunal did give reasons for that conclusion at [29] and [32] of the decision. The Tribunal considered the evidence, made findings of fact and applied those findings to s 45: Administrative Decisions Tribunal Act, 89. While those reasons were short, they were adequate.

Application of s 31G 85One of Ms Avery's grounds of appeal was that the Tribunal wrongly applied s 31G when that provision is not relevant to these proceedings. 86Section 31G does not apply to the circumstances of this case because it only gives the Registrar power to correct the Register under s 45 if a change of name has been registered in contravention of Division 2 of Part 5 of the Act. That Division relates to 'restricted persons'. Ms Avery is not a 'restricted person' so s 31G is not applicable. 87Ms Avery's contention that the Tribunal applied s 31G is incorrect. The Tribunal quoted several provisions including s 31G and s 45 when outlining the relevant legislation. But the Tribunal did not apply that provision to the facts of this case. The Tribunal made no error.

Cancellation decision 88At [33], the Tribunal made the point that the 1997 entry is "an historical change of name that has been supplanted" by the 2007 entry. The Tribunal accepted that the 2007 entry shows Ms Avery's present registered names as Tatiana Isabella Yurovich (sic) and her former names as Tatiana Isabella Yurovich, Tatiana Isabella Orlov, Stephanie Tatiana Avery and Stephanie Tatiana Patricia Avery." The Tribunal went on: The Register does not contain, and clause 8 of the Regulation does not require it to contain, information as to what names were changed in 1997, before the most recent name change. Therefore, any search of the Register conducted by the registrar since the 2007 change of name will not discover the information Ms Avery wants the Registrar to include in a certificate. 89The Tribunal's finding that the Register does not contain information about the 1997 entry must have been based on a finding that the Registrar had cancelled the 1997entry. Section 45 is the only statutory cancellation powers available to the Registrar. Ms Avery also believes that the Registrar has cancelled the entry, whereas the Registrar's submissions only refer to cancellation of the certificate. Because the Tribunal's finding that the Registrar had cancelled the 1997 entry is a mixed question of fact and law and was fundamental to its reasoning and decision, we have examined the evidence on which that finding was based. 90On 21 December 2007 Ms Avery commenced proceedings in the Administrative Decisions Tribunal seeking review of the form of the certificate that had been issued to her certifying the particulars contained in the 2007 entry. She also applied for a stay of the decision. The reason for seeking the stay was so that she could retain her prior change of name certificate (certifying the 1997 entry) pending the Tribunal's decision on the appropriate content of the certificate certifying the 2007 entry. On 9 January 2008, the Tribunal granted Ms Avery a conditional stay of the Registrar's decision in the following terms: Stay is granted on the condition that the Applicant return the certificate issued by the Respondent on 11 December 2007 so that it can be invalidated and the previously issued certificate can be re-validated. 91The Registrar submits that the stay "temporarily re-enlivened" the certificate recording the 1997 entry pending the Tribunal's decision. The effect of the stay was that it permitted Ms Avery to use the 1997 certificate and the name Stephanie Tatiana Patricia Avery, until the conclusion of the proceedings. 92After the Appeal Panel handed down its decision, the Registrar cancelled the certificate recording the 1997 entry because the stay ordered by the Tribunal at first instance had expired and the 2007 registration had come into effect. 93Ms Avery submitted in these proceedings that the Registrar not only cancelled the certificate, but also unlawfully cancelled the 1997 entry. Two documents she provided (Documents 6 and 86) tend to support that version. 94Document 6, headed "Change of Name Certificate" relates to the 1997 entry. In that certificate, under the heading "Endorsements" the following is written: CANCELLED REGISTRATION. Certificates are not to be issued from this registration. 95Under the heading "Remarks" is written: Further c/n XXXX6/2007 96We assume c/n is a reference to "Change of Name". It is not apparent from Document 6 when the Endorsement was or the Remarks were added. 97Document 86 apparently printed on 5 February 2009, is headed "Change of Name Date Entry Screen." It contains the following under the heading "Remarks" Further c/n XXX6/2007 See history This record cancelled in accordance with a decision of the ADT on 31/10/2008. XXXX6/2007 re-instated. 9831 October 2008 was the date the Appeal Panel handed down its decision. The reference to that date is explained in a letter dated 6 November 2008, from the Crown Solicitor, who was representing the Registrar, to Ms Avery: Now that both the hearing and appeal have concluded, the Tribunal's stay decision has expired. Therefore, the Registry will lift the suspension of the certificate XXXX7/2007 and cancel certificate XXXX7/1997 so as to give effect to your change of name application. 99Although the Tribunal at first instance and the Crown Solicitor consistently refer to the Registrar having cancelled certificates, rather than entries, Documents 6 and 86 speak for themselves. The Registrar purported to cancel the 1997 entry at least in part because he understood that the Appeal Panel's 31 October 2008 decision required him to do so. However, when Ms Avery applied for a certificate certifying the 1997 entry, the Registrar did not refuse that application on the basis that "no entry was located in the relevant register about the registrable event": s 49(1)(b). Rather, it was refused on a discretionary basis under s 47. 100Although Ms Avery did not seek leave to extend the appeal to the merits of the Tribunal's decision, it follows in this case, that the Appeal Panel should proceed to determine the merits of the Registrar's decision to refuse to issue a certificate. 101Whether or not the Registrar cancelled the entry and whether any such cancellation was carried out pursuant to s 45 are not matters which we need to finally determine. The ultimate question for the Tribunal was whether the Registrar made the correct and preferable decision by refusing to issue a certificate certifying the 1997 entry. We agree with the Tribunal's conclusion that it did, for the following reasons. 102According to Ms Avery, the Registrar is under a duty to provide a certificate on request and the only kind of discretion conferred by s 49 is as to the kind of certificate to issue. That submission is not supported by the relevant provisions. Section 47 gives the Registrar power, on application, to search for an entry about a particular registrable event and to reject an application if the applicant does not show an adequate reason for wanting the information. 47 Search of Register (1) The Registrar may, on application, search the Register for an entry about a particular registrable event. (2) The applicant must state the reason for the applicant's interest in the subject-matter of the search. (3) The Registrar may reject the application if the applicant does not show an adequate reason for wanting the information to which the application relates. (4) In deciding whether an applicant has an adequate reason for wanting information, the Registrar must have regard to: (a) the relationship (if any) between the applicant and the person to whom the information relates, and (b) the age of the entry, and (c) the contents of the entry, and (d) other relevant factors. 103Following an application, this provision requires the Registrar to determine whether to search the Register for an entry about a particular registrable event. In making that decision, the Registrar must take into account the applicant's reasons for wanting the information together with relevant factors such as the age of the entry and its contents. Paradoxically, the Registrar may have to search the Register and identify the registrable event to determine whether the applicant has an adequate reason for wanting the information. At that point, the decision has already been made to search the Register. 104On completing a search of the Register the Registrar "may" issue a certificate under s 49(1)(a) either "certifying particulars contained in an entry, or certifying that no entry was located in the Register about the relevant registrable event." 105Despite the paradox in s 47, it is apparent that one purpose of these provisions is to give the Registrar a discretion both to refuse to conduct a search or to refuse to issue a certificate after a search has been conducted. Section 49(1)(a) contains the word "may" which is generally taken as conferring a discretion unless there is anything in the context of the provision which indicates a contrary intention: Interpretation Act 1987 (NSW), s 9(1). Ms Avery relied on the judgment of Spigelman CJ in John Fairfax Publications Pty Ltd and 2 Ors v Ryde Local Court and 3 Ors [2005] NSWCA 101 at [55] as authority for the proposition that "may" does not confer a discretion in s 49. The statutory provision being interpreted in that case was s 562BA(1) of the Crimes Act 1900. That provision has no similarities with s 49 of the BDMR Act and anything the Chief Justice concluded about the word "may" in that context is irrelevant. 106Ms Avery's submission was that the certificate should be issued because it provides evidence of her "identity history". She says it creates a link between her former name and her current name. Although the certificate is not evidence of her current name it is evidence that she changed her name from Tatiana Isabella Orlov to Stephanie Tatiana Patricia Avery in December 1997. She says she needs the certificate to show to "overseas immigration offices" and "national verification services", for the purpose of legal proceedings and claiming entitlements which relate to the period when her registered name was Stephanie Tatiana Patricia Avery. In particular, Ms Avery says that "any person on immigration must provide evidence of lawful acquisition of all former names" including Stephanie Tatiana Patricia Avery and Stephanie Tatiana Avery." Ms Avery also asserts that she is not able to change her name in any government departments without the certificate. 107These assertions are vague and unconvincing. They do not satisfy us that there is a valid reason for Ms Avery to have a copy of the 1997 certificate other than her desire to have a record of her "identity history". 108The reasons the Registrar gave at first instance for not issuing Ms Avery with a certificate, were that it would be inappropriate to do so because it could lead to identity fraud. One of the Registrar's functions is "to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register.": BDMR Act, s 6(a1). 109A person can only have one registered name under the Act at any one time. Once the name Tatiana Isabella Orlov had been registered in 2007, her former name, Stephanie Tatiana Patricia Avery, was no longer her registered name. A certificate certifying the 1997 entry would show Ms Avery's name as Stephanie Tatiana Patricia Avery when, in fact, her current registered name is Tatiana Isabella Orlov. The Registrar submitted that she should not be issued with a document which could create the perception that her current registered name is Stephanie Tatiana Patricia Avery. 110That argument is supported by the Registrar's policies and practices. The Statutory Declaration that the Registrar requires an applicant to complete to register a change of name asks whether the applicant has previously registered a change of name with the NSW Registry of Births Deaths and Marriages. If the answer is 'yes' the form states that, 'you must return any NSW Change of Name Certificate you have in your possession.' 111Section 31(3) provides that where a change of name is registered, a birth certificate issued by the Registrar for the person must show the person's name as changed. That provision is also consistent with the conclusion that it is not appropriate in this case to issue a certificate in a former registered name. 112There is a further compelling reason not to issue a certificate in this case. A certificate is admissible in legal proceedings as evidence of both the entry to which the certificate relates, and the facts recorded in the entry. The fact as to the person's current registered name will no longer be accurate if a second change of name has been registered. 113We do not accept Ms Avery's submission that this conclusion is contrary to the public interest because it will lead to the risk of identity fraud. For the reasons we have given, the outcome Ms Avery seeks is more likely to lead to identity fraud than the Tribunal's conclusion. 114The correct decision is not to issue Ms Avery with a certificate certifying the 1997 entry. 115At [36] of the decision the Tribunal noted that "the Registrar has offered to provide Ms Avery with a letter outlining her change of name history." The Registrar explained that the letter was part of an offer to help Ms Avery establish a link between her various names. No letter has yet been provided. According to Ms Avery, the Tribunal's reference to this matter constitutes an error of law because the Tribunal has no power to review the letter, the letter cannot be corrected under the Act and the letter will not constitute evidence of the facts it states. Ms Avery also submitted that the Tribunal should have found that the Registrar could not issue a letter in the terms it had foreshadowed. 116The Tribunal did not purport to review the decision to offer to provide the letter. The Tribunal merely noted that the Registrar was prepared to provide such a letter. The validity or relevance of the letter was not an issue before the Tribunal.

Alleged bias by the Tribunal below 117Ms Avery also alleged that the Tribunal was biased because the Member maintained eye contact with Mr Della-Pozza from the Crown Solicitor's Office, that they smiled to one another for over an hour and that they thought that what she said was 'no more than funny'. Ms Avery's impression was that the Member and Mr Della-Pozza knew each other very well. 118These are allegations of actual bias. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, McColl JA (with whom Giles and Tobias JJA agreed) said (footnotes 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. 119In order to establish actual bias, Ms Avery would have to prove that: (1)the judicial member smiled at Mr Della-Pozza for over an hour during the hearing; that he maintained eye contact with Mr Della-Pozza and that he did something to indicate that he thought what Ms Avery said was 'funny'; (2)that this conduct evidenced prejudgment on his part; and (3)that, as a result of this prejudgment, the Tribunal was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." 120Ms Avery does not state what the Member did to indicate to her that he thought what she was saying was 'funny'. Making eye-contact cannot be regarded as indicating bias. The 'smiling' allegation is too general to give rise to an inference that the Member had prejudged the matter. Ms Avery does not particularise the nature of the alleged relationship between the Member and Mr Della-Pozza. Given that these are serious allegations, compelling evidence is required. The allegations do not satisfy us that the Tribunal was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." 121Nor are we satisfied that any of the allegations would give rise to a reasonable apprehension of bias. The relevant test is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. There will be a reasonable apprehension of bias: If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 122Their Honours emphasised that the test was "one of possibility (real and not remote) not probability." The application of the test involves a two stage process: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 123In our view, even if it could be proved that the member smiled at Mr Della-Pozza and made eye contact with him to the extent alleged by Ms Avery, a reasonable observer would not conclude that the Tribunal might not have brought an impartial mind to the issues it had to decide. There is no requirement for decision makers to be completely impassive or non-responsive during a hearing. In the words of Gleeson CJ, they are entitled to intervene in the conduct of cases rather than remaining "as inscrutable as the Sphinx": Johnson v Johnson [2000] HCA 48 at [13]. 124Nor is there any material which suggests a logical connection between the interactions between the Member and Mr Della-Pozza which would lead to the Tribunal failing to decide the case on its merits.

Orders 1)Time for the Registrar of Births Deaths and Marriages to file the notice of reply is extended to 29 January 2014. 2)Ms Avery is granted leave to file the supplementary grounds of appeal filed on 11 February 2014 and 5 March 2014 out of time. 3)The Tribunal's decision not to cancel the 2007 entry in the Register with respect to Ms Avery's change of name is affirmed. 4)The appeal is extended to the merits of the Tribunal's decision to refuse to issue a certificate relating to Ms Avery's 1997 change of name. 5)The Registrar's decision not to issue a certificate relating to Ms Avery's 1997 change of name is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2014