Adelaide Building Consultants and Australian Securities and Investments Commission
[2021] AATA 3965
•21 October 2021
Adelaide Building Consultants and Australian Securities and Investments Commission [2021] AATA 3965 (21 October 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2021/0958
Re:Adelaide Building Consultants
APPLICANT
AndAustralian Securities and Investments Commission
RESPONDENT
DECISION
Tribunal:Senior Member Dr N A Manetta
Date:21 October 2021
Place:Adelaide
The application for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.
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Senior Member Dr N A Manetta
BUSINESS NAME REGISTRATION – applicant objects to registration of another’s business name – applicant seeks extension of time to seek review of registration decision under s 29(7) AAT Act – whether applicant has reasonable prospects of success – Business Names Registration (Availability of Names) Determination 2015 – section 5A - whether subsequently registered name is identical or nearly identical to applicant’s business name – names not identical or nearly identical after application of section 5A – application bound to fail on merits – extension of time refused
Cases
ReDecorative Imaging Pty Limited and ASIC [2018] AATA 4668
Legislation
Administrative Appeals Tribunal Act 1975, s 29(7)
Business Names Registration Act 2011, ss 24, 25, 57(4)(a), 57(5)
Secondary Materials
The Business Names Registration (Availability of Names) Determination 2015, s 5A
REASONS FOR DECISION
Senior Member Dr N A Manetta
21 October 2021
The applicant has applied for an extension of time in respect of the application he has filed in this Tribunal. The applicant is identified in the form filed in the Tribunal as “Adelaide Building Consultants”. This is, in fact, a business name only, which is used by a sole trader, Mr Paul Effingham, in connection with his longstanding occupation of providing building-consultancy services. Strictly speaking, it is Mr Effingham who has brought an application to the Tribunal. As I have said, he requires an extension of time within which to bring it.
Mr Effingham’s application for an extension of time occurs in the following circumstances. Mr Effingham has traded under the business name “Adelaide Building Consultants” for many years. The name was registered to him on 24 September 2013 according to paragraph [5] of his statutory declaration dated 17 February 2021, which was filed in support of his application for an extension of time. I accept that evidence.
Mr Effingham complains another company has registered “Adelaide Building Consulting SA” as a business name, and that the respondent, ASIC, ought not to have registered the name because it was too similar to his own.
Mr Effingham learned of the registration of the name only after the time within which an interested person might complain had elapsed. Section 57(4)(a) of the Business Names Registration Act 2011 provides, relevantly, for a 15-month time limit. Mr Effingham sought a review, but was informed by email on 25 September 2020 that as he was out of time, no review would be undertaken. The respondent did not, it would appear, appreciate that it had a discretion under s 57(5) to extend the 15-month time limit.
Mr Effingham did not file his application for review in this Tribunal until 18 February 2021. He is out of time in this Tribunal and requires an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 to pursue his application.
Mr Effingham wishes to pursue his complaint that the respondent did not exercise its discretion to allow him a longer period of time within which to file his application with it, and he wishes also to have the Tribunal rule in his favour concerning what he maintains is a disqualifying similarity between the two registered names.
In my opinion, it would not be appropriate for me to grant an extension of time to Mr Effingham if he has no reasonable prospect of success on the substantive question he wishes the Tribunal to consider. As I do not believe Mr Effingham has any reasonable prospect of success, I have decided not to grant him an extension of time.
My reasons for concluding that Mr Effingham has no reasonable prospect of success are as follows. Mr Effingham’s concern is that his registered name “Adelaide Building Consultants” is, in effect, nearly identical with the later registered name “Adelaide Building Consulting SA”. He makes the strong practical point that “SA” can hardly add anything to the registered name in a community member’s mind given the use of the word “Adelaide”. For all intents and purposes, the two registered names are identical.
The legal provisions may be summarised as follows. Under section 24 of the Business Names Registration Act 2011 (the Act), the respondent “must” register a business name if it is satisfied that the name “is available to the entity” (see section 24(1)(c)). There is no discretion: if the name is available, it must be registered.
Section 25 then provides that a business name “is available to an entity” if, amongst other things, the name is not identical or nearly identical to a business name registered to another entity. Section 26 then provides that the Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical to another name. The Minister issued such an instrument in 2015: The Business Names Registration (Availability of Names) Determination 2015 (the Determination). Section 5A of the Determination provides quite clearly that a business name is “identical or nearly identical” to another name (other than a company name) “if, and only if”…; and thereafter are specified the rules for determining the question.
The legal question for the Tribunal on a merits review would be whether the two business names are “identical or nearly identical”. I accept that, on a plain construction, s 5A is the sole basis upon which I may determine the issue of whether a name is “identical or nearly identical” to another name (other than with a company name).
I am required under section 5A to apply subs 6(1). Subsection 6(1) sets out in a schedule words and expressions that are taken to be the same. The entry numbered 260 provides, amongst other things, that the words consulting and consultants are to be treated as the same.
It follows that the only relevant difference between the two names in question is the addition of the abbreviation “SA”. I fully accept that this difference is trivial.
Nevertheless, I am also satisfied that the legal task of the respondent was to apply s 5A of the Determination and that the respondent (and this Tribunal on review) has no residual jurisdiction to ignore what are judged to be trivial differences. Read as a whole, the Determination is highly prescriptive, and it plainly intends by use of the expression “if, and only if” to be comprehensive.
As a matter of law, therefore, Mr Effingham would have to show on review that when s 5A(a) is applied, it leads to a finding that the two names are “the same” or that s 5A(b) applies. I have applied s 5A(a) carefully; but I cannot conclude that the two names are “the same” after disregarding the matters set out in subs 5(1) and after applying subsection 6(1), which is what I am required to do. These subsections do not allow me to ignore the fact that “SA” appears in one name, although I must ignore, as I have said, the difference between “Consulting” and “Consultants”. I note that s 5A(b) requires me to apply subs 6(2) but this subsection is irrelevant as it concerns the pronunciation of names only.
It follows that s 5A of the Determination does not lead to a finding that the names are identical or nearly identical.
I must say that one might query as a matter of policy why such apparent rigidity is embedded in the Determination: it allows for no flexibility other than that which is present in the Determination itself. One can understand why a premium might be placed on administrative certainty− after all, officers of the respondent have to apply the test routinely− but the inflexibility, so to speak of, the Determination will lead sometimes to regrettable results.
Having said that, I am satisfied that, as a matter of law, the Tribunal on review would be bound to apply the Determination and would lack any residual discretion in the matter. In my opinion, once it is clear that the names are not deemed to be identical or nearly identical after s 5A of the Determination is applied, it must follow that s 24 of the Act required the respondent to register the name that was submitted to it. Mr Effingham’s application would be bound to fail even if it were allowed to proceed.
This being the clear effect of the law, there would be no point in allowing the matter to proceed to a hearing. It may be of some comfort to Mr Effingham to know that I have, in effect, considered the merits of his application. He does not have in my opinion an arguable case to put as the law stands: the respondent was bound to register the name. I also note that my reasons are consistent with the Tribunal’s decision in ReDecorative Imaging Pty Limited and ASIC [2018] AATA 4668, to which I was referred.
My formal decision will be to refuse the application for an extension of time.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.
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Administrative Assistant LegalDated: 21 October 2021
Date of hearing: 29 March 2021 Advocates for the Applicant: Tiffany Irving, Adco Legal Pty Ltd
Advocate for the Respondent: Tim Farhall, Counsel
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