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

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

The appeal was dismissed on the basis that the Registrar properly exercised statutory power to include as 'former name' a name by which the appellant had been known and used in identification documents, in line with statutory requirements and common law. The claim for leave to appeal on mandamus and damages was dismissed as alternative remedies were available and no contract existed.

Jurisdiction
Australia
Judgment Date
13 April 2010
Procedural Posture
Appeal / Judgment on Appeal and Application for Leave to Appeal
Outcome
Appeal and application for leave to appeal dismissed with costs.
Legal Topics
['change of Name' 'recognition of Names' 'administrative Review' 'foi Applications' 'naming of Parties' 'mandamus' 'summary Dismissal' 'prerogative Writs' 'damages Claims']
['administrative Law' 'statutory Interpretation' 'civil Procedure' 'constitutional Law' 'contracts'] ['change of Name' 'recognition of Names' 'administrative Review' 'foi Applications' 'naming of Parties' 'mandamus' 'summary Dismissal' 'prerogative Writs' 'damages Claims']

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Procedural Posture

Appeal / Judgment on Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether 'former names' under the Births, Deaths and Marriages Registration Act and Regulation must be registered names or may include names acquired by usage; whether a former name must be willingly adopted; whether a person can have more than one name at the same time; whether a shortened form of a name is a 'different name'; whether the Attorney-General's Department is a suable entity; whether mandamus should issue when other remedies available; validity of claim for damages based on asserted contract with government."]

Ratio Decidendi

The appeal was dismissed on the basis that the Registrar properly exercised statutory power to include as 'former name' a name by which the appellant had been known and used in identification documents, in line with statutory requirements and common law. The claim for leave to appeal on mandamus and damages was dismissed as alternative remedies were available and no contract existed.

Court Disposition

Appeal and application for leave to appeal dismissed with costs.

Orders

  • ['In matter 40015 of 2009: Appeal dismissed with costs.' "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...