Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Avery v Registrar of Births, Deaths and Marriages [2014] NSWCA 303 Hearing dates: 22 August 2014 Decision date: 22 August 2014 Before: McColl JA (at [1], [30]), Basten JA (at [29]) Decision: Application for leave to appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - leave - interlocutory appeal - matter resolved by final orders - application based on bias and failure to grant oral hearing - application lacking utility - grounds, if relevant, available in challenge to final orders Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Births, Deaths and Marriages Regulation 2006 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Uniform Civil Procedure Rules (NSW) Cases Cited: Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72; (2010) 79 NSWLR 354 Avery v Registrar, Births Deaths and Marriages [2013] NSWADT 298 Avery v Registrar, Births Deaths and Marriages (No 2) [2014] NSWCATAP 43 Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Category: Principal judgment Parties: Stephanie Tatiana Patricia Avery - Applicant Registrar of Births, Deaths and Marriages Registry - First Respondent NSW Civil and Administrative Tribunal - Second Respondent Representation: Solicitors: Applicant in person Crown Solicitor - M Dalla-Pozza - First and Second Respondent File Number(s): 2014/179773 Publication restriction: No Decision under appeal Citation: [2014] NSWCATAP 19 Date of Decision: 2014-05-20 00:00:00 Before: Hennessy LCM Deputy President, S Frost, Senior Member, P Smith, General Member File Number(s): 1390051 Judgment 1McCOLL JA: The applicant, Stephanie Tatiana Patricia Avery, seeks leave to appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal pursuant to a further amended summons filed on 24 July 2014: Avery v Registrar, Births Deaths and Marriages [2014] NSWCATAP 19 (the "AP decision"). 2In that decision the Appeal Panel constituted by her Honour Local Court Magistrate Hennessy, who is the Deputy President of the Tribunal, and two others refused the applicant's application that the Deputy President recuse herself for bias, granted the applicant's application for an adjournment of a hearing on 10 April 2014 and determined that the issues on the appeal could adequately be dealt with in the absence of the parties. It also made directions as to the filing of submissions. 3The matter has a complex procedural history. In 2007 the applicant signed a statutory declaration which was, in form, an application to the respondent, the Registrar of Births, Deaths and Marriages, to change her name by registration under the Births, Deaths and Marriages Registration Act 1995 (NSW) ("BDMR Act") to "Tatiana Igorevna Orechkina". 4The respondent treated the statutory declaration as an application to change her name and granted the application, issuing a change of name certificate. However the respondent determined that the name "Stephanie Tatiana Avery" was a former name of the applicant and considered that he was required by a provision of the Births, Deaths and Marriages Regulation 2006 (NSW) ("BDMR") to include this name in the register he maintains and on the certificate. 5The applicant was dissatisfied with this decision. She claimed that she had mistakenly been issued with a driver's license in the name of "Stephanie Tatiana Avery" and that is the only reason she ever used that name. She commenced proceedings in the Administrative Decisions Tribunal (the "ADT") and, having been unsuccessful at first instance, appealed to the Appeal Panel of the Tribunal. The Appeal Panel dismissed that appeal holding that the name "Stephanie Tatiana Avery" was a name the applicant had acquired at common law and was therefore a former name of the applicant which the BDMR required the respondent to record. 6The Court of Appeal dismissed an appeal against that decision, one ground of which (which was rejected) was that there was evidence of bias in the text of the Appeal Panel's decision: Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72; (2010) 79 NSWLR 354 (at [121]) (the "CA proceedings"). 7In 2013 the applicant commenced fresh proceedings against the respondent in the ADT in which she asked the respondent to cancel the 2007 registration for change of name, arguing that the statutory declaration she signed in 2007 was not in fact an application by her to change her name. The respondent refused the application as he considered he lacked the power under the BDMR Act to cancel the registration. The Tribunal (P Molony) upheld the respondent's decision: Avery v Registrar, Births Deaths and Marriages [2013] NSWADT 298 (the "ADT Decision"). 8On 30 December 2013 the applicant appealed to an Appeal Panel of the ADT. On 1 January 2014 the ADT was abolished and replaced by the Civil and Administrative Tribunal ("NCAT"): Civil and Administrative Tribunal Act 2013 (NSW) (the "CAT Act"). Transitional provisions provided the applicant's appeal could be continued in the NCAT: Schedule 1, cl 7, CAT Act. 9One of the three people constituted to hear the appeal was Hennessy DP who had previously heard the applicant's case in the ADT referred to above (at [5]) and who was the subject of the claim of bias the applicant pursued unsuccessfully in her proceedings before the Court of Appeal. The AP decision 10In relation to the bias issue, the Appeal Panel assumed that the applicant was relying on both actual bias and apprehended bias on the basis of the Deputy President's involvement in the previous litigation. In dismissing that application the Appeal Panel noted that the applicant had provided no evidence, apart from her own assertion, for the allegations of fraud, corruption and bias and that her appeal concerned the power of the respondent to cancel the registration and the appropriateness of issuing a certificate and recording the registration of a previously registered name, therefore the Deputy President was not required to make findings on factual matters that were considered in the previous litigation. 11In relation to the adjournment issue the Tribunal adjourned the matters despite its recognition that evidence in support of it was inadequate. The applicant does not seek to challenge that decision. 12In relation to conducting the hearing on the papers the Appeal Panel said (at [22] and [23]): "[22] The principles of open justice do not always require an oral hearing. That is plain from the fact that the Tribunal has power to determine proceedings without conducting a hearing in certain circumstances. The appeal does not involve disputed questions of fact. The Appellant has not sought leave to challenge findings of fact or sought to lead further evidence. We agree with the Respondent that the legal issues are not complex and, to the extent that they require explanation, they have been comprehensively dealt with in the written material filed by each party. [23] English is not the Appellant's first language but she has provided detailed written submissions addressing the issues she wishes to raise. She would suffer no disadvantage in terms of the Appeal Panel understanding her submission if the proceedings are determined on the basis of written submissions,. We are satisfied that the issues for determination can be adequately determined in the absence of the parties." The leave application 13The application for leave to appeal is expressed to be brought pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) (the "ADT Act"). However, Mr Dalla-Pozza who appeared today for the respondent submitted, without any opposition on the applicant's part, that the provision which now governs appeals to this Court is s 83 of the CAT Act. In contrast to s 119 of the ADT Act, s 83(1) of the CAT Act requires leave to be obtained to appeal against any decision made by the Tribunal. 14The further amended summons identifies a number of issues the applicant seeks to canvass. The respondent conveniently categorised them as going to procedural irregularities, bias, wrong identification of issues and dispensation with the oral hearing. 15In the course of preparing to hear the application for leave to appeal the Court became aware that on 14 August 2014 the Appeal Panel determined the applicant's substantive application: Avery v Registrar, Births Deaths and Marriages (No 2) [2014] NSWCATAP 43 (the "final AP decision"). In the light of that matter the Court invited the applicant, when the hearing for application for leave commenced, to address the Court as to the utility of proceeding with her application for leave to appeal. 16The applicant requested that she be able to address all the matters the subject of her application for leave to appeal in addition to relying on her written submissions before the Court. The Court permitted her to pursue that course. As to the question of the utility of persisting with the application for leave to appeal, the applicant submitted that the matters determined by the AP decision were "separate" and that an appeal from the final AP decision could not correct all the matters in that decision. She expressed a concern also that if she did not pursue her application for leave to appeal from that decision, the Court of Appeal constituted to hear any appeal she might pursue from the final AP decision may not address the issues of bias she had sought to raise before the Appeal Panel in May 2014. 17Insofar as her application for leave to appeal was concerned, the oral matters the applicant addressed today concerned, first, the fact that the AP decision was expressed to be made in the Administrative and Equal Opportunity Division, which was in error. In fact the Appeal Panel dealt with that matter in the final AP decision (at [35] and [36]), acknowledged that the earlier decision had been incorrectly titled and noted that the coversheet to that decision had been corrected. 18The next matter the applicant raised was the fact that the respondent had failed to lodge written decisions pursuant to s 58 of the ADT Act. That matter was also addressed in the final AP decision (at [47] - [52]). It also was not a matter which was determined in the AP decision from which leave to appeal was sought. 19The applicant also agitated a number of matters concerning her complaint of bias on the part of the Deputy President. It is unnecessary to set out the detail of all those matters at this stage. Suffice it to say that in the course of hearing from Mr Dalla-Pozza, the Court asked him as to a concern the applicant had raised in her written submissions that if she did not seek leave to appeal in respect of her bias claim she might at some later stage be taken to have waived any right to do so. Mr Dalla-Pozza informed the Court that, should the applicant seek leave to appeal from the final AP decision, the respondent would not raise the point that any complaint of bias had been waived. 20The applicant also complained, particularly in relation to the allegation of bias, but also in relation to the complaint about the dispensation with an oral hearing, that the Appeal Panel had wrongly identified the issues. The issues to the extent that the Appeal Panel perceived them have of course now been dealt with in the final AP decision. 21The application for leave to appeal relates insofar as the dispensation with the oral hearing is concerned with a matter of practice and procedure in which the established principle is that a tight rein should be kept upon appellant interference: Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 (at [21]) per Macfarlan JA (Ward JA and Tobias AJA agreeing). 22The test may be somewhat different in the case of a bias complaint as the respondent acknowledges in his written submissions: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (at [86]). 23It is unnecessary to make any final decision upon either of those matters at this stage because, in my view, having regard to the fact that the Appeal Panel has now made a final decision, there would be no utility in granting leave to appeal when the matters which the applicant wishes to raise can, as is the case with interlocutory decisions which may have an effect upon a final decision (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478), be raised on an application for leave to appeal from the final AP decision. 24I should also add that I would not in any event be minded to grant leave to appeal in respect of the matters concerning s 58 of the ADT Act for the reason that that was not a matter which was the subject of the AP decision. 25Accordingly, I propose that the application for leave to appeal be dismissed. 26In the event that that was the Court's decision the Court asked to hear from Mr Dalla-Pozza on the issue of costs. He drew the Court's attention to the fact that on the day the final AP decision was delivered, he wrote to the applicant referring to that decision and advising that having regard to it, it appeared to the respondent that it would be inappropriate for this application to proceed, being a waste of the Court's time and resources. 27The letter invited the applicant to agree to today's hearing date being vacated and suggested directions which could take the matter forward as an appeal from the final AP decision. Mr Dalla-Pozza informed the Court, without disagreement by the applicant, that the following day he spoke to her by telephone in the course of which conversation she indicated that she would pursue the course she has today. 28In the course of today's hearing, as is apparent from these reasons, the question of the applicant not proceeding with her leave application was also discussed, but she indicated she was determined to pursue it. In the light of the letter to which I have referred, and in any event having regard to my proposed order that the application for leave to appeal be dismissed, I would also be of the view that it should be dismissed with costs. 29BASTEN JA: I agree. 30MCCOLL JA: The order of the Court is that the application for leave to appeal be dismissed with costs. 31THE COURT: After the Court made its orders, the applicant forwarded by facsimile a letter dated 22 August 2014 drawing attention to what she contended were two factual errors in the ex tempore reasons (and presumably asking that they be corrected) and also asking that the costs order be waived. It was not apparent from the face of the letter whether she forwarded a copy to the respondent. However as the Court formed the view that it should not accede to the application, it was unnecessary to require her to do so. 32Assuming that the first issue should be treated as an application under the slip rule (Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 36.17), neither of the factual matters to which the applicant drew attention were errors. The first, "that the statutory declaration she signed in 2007 was not in fact an application by her to change her name" (see [7] above) was extracted from the respondent's submissions and appears to be a fair summary of what Mr Molony said (ADT Decision at [31]). The second, that the Court of Appeal did not address the issue of bias in its 2010 decision is incorrect as is apparent from the paragraph of that decision referred to at [6] above. 33As to any application to vary the costs order pursuant to UCPR 36.16, the applicant complains that she could not be expected to discontinue the summons for leave to appeal and waive possible grounds of appeal. As appears above, that would not have been the consequence of her so acting. Nor is liability for costs dependent on an assessment that the unsuccessful party's conduct was unreasonable; liability will in the usual course flow from lack of success. ********** 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: 02 September 2014