Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72

Appeal Outcome: Application dismissed by the High Court (S117/2010) 29 September 2010 [2010] HCASL 212.Application dismissed by the High Court (S119/2010) 29 September 2010 [2010] HCASL 213.

New South Wales Court of Appeal

CITATION: Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 February 2010

JUDGMENT DATE: 13 April 2010

JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Young JA at 176

1 In matter 40015 of 2009: Appeal dismissed with costs DECISION: 2 In matter 40201 of 2009 1. Application for leave to appeal dismissed with costs. 2. Notice of motion filed 11 December 2009, insofar as it seeks the relief contained in prayer 6, dismissed with costs. 3. Direct that the name of the respondent in the court's records concerning this matter be amended to "State of New South Wales".

CATCHWORDS: STATUTES – construction – particular statutes – Births, Deaths and Marriages Registration Act 1995 and Regulation – whether change of name by registration is the exclusive method for a person to change name – whether a name that is not itself a registered name can be changed by registration of a new name – whether a "former name" must be one that was willingly adopted – whether a person can have more than one name at the one time – whether a shortened form of a person's name is a different name – ADMINISTRATIVE LAW – appeals from administrative authorities – orders sought correcting or amending the Births, Deaths and Marriages Register and form of Change of Name Certificate – appeal relating to Registrar's decisions about information retained in the Births, Deaths and Marriages Register and the form of name change certificates – recognition of names in law – requirement of clause 8(d) to record "any other former names of the person" extends to "other former names" that are not registered names – departure from statutory requirements relating to name change would not automatically invalidate change of name – appeal dismissed – costs – CONSTITUTIONAL LAW – statutes – whether "Attorney-General's Department" an entity capable of being sued – PROCEDURE – Supreme Court procedure – New South Wales – parties – whether correct name of party is 'Attorney General's Department' or 'State of NSW' – ADMINISTRATIVE LAW – prerogative writs and orders – Mandamus sought concerning application to amend personal records under Freedom of Information Act 1989 – nature and appropriateness of remedy – prerogative writs can be refused if there is another equally convenient and effective remedy – leave to appeal from decision at trial to summarily dismiss matters refused because alternative remedy available – PROCEDURE – Supreme Court procedure – New South Wales –procedure under Rules of court – case management – ability of court to deal with applications for concurrent hearing of an application for leave to appeal and the appeal in the absence of the public and without attendance of any person under Uniform Civil Procedure Rules 51.14 – CONTRACTS – general contractual principles – existence of a contract – held at trial that no contract arose between government and citizen requiring government to provide effective services of types that legislation empowered government to provide – leave to appeal refused on basis of insufficient prospects of success