Alzheimer's Association of Queensland Inc and Australian Securities and Investments Commission

The Alzheimer's Association of Queensland Inc (the Applicant) sought judicial review of a decision by the Australian Securities and Investments Commission (ASIC) concerning the registration of the business name "Dementia Australia". The Applicant had registered this name in 2001. Subsequently, Alzheimer’s Association (South Australia) Inc (AASA) also registered the same name in 2006. Following the implementation of a national business names scheme, both entities automatically held the registered name "Dementia Australia". In 2016, AASA applied to cancel its registration of the name and transfer it to Alzheimer’s Australia Ltd (the Other Party). ASIC cancelled AASA's registration and subsequently registered the name to the Other Party. The Applicant contended that the name was not available for re-registration by the Other Party because it was already registered to the Applicant.

The court was required to determine three legal issues: first, whether the business name "Dementia Australia" was available for registration on the Business Names Register at the time of the application by the Other Party; second, if the relevant statutory conditions for transfer were met, whether ASIC possessed a discretion to refuse the transfer or re-registration of the business name; and third, if such a discretion existed, whether it ought to have been exercised in this instance. The Applicant argued that a simultaneous cancellation and re-registration process was necessary for an effective transfer, and that the name was not available to the Other Party as it remained registered to the Applicant.

The court rejected the Applicant's submission that a simultaneous cancellation and re-registration was required. It found that the relevant provisions of the Act contemplated and provided for a two-step process involving consent and then transfer. The court also considered that upon cancellation of a business name, the name is held in escrow for a review period, during which it is not available for registration by a new entity. The court accepted ASIC's submission that the Act does not mandate simultaneous cancellation and re-registration, but rather allows for a two-part transfer process. The court found that the Applicant's interpretation of the availability of a business name was inconsistent with the overall scheme of the Act.

The court affirmed the decision under review, finding that the business name "Dementia Australia" was available for registration by the Other Party. The court concluded that the Act did not require simultaneous cancellation and re-registration, and that the process undertaken by ASIC was consistent with the legislative framework.