Australian Appaloosa Association Ltd v Australian Securities and Investments Commission - [2018] AATA 3173

Australian Appaloosa Association Ltd and Australian Securities and Investments Commission [2018] AATA 3173 (31 August 2018)
Division:GENERAL DIVISION
File Number(s):2017/7183
Re:Australian Appaloosa Association Ltd
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:31 August 2018
Place:Sydney

The time for applying for a review of the decisions will be extended to close of business on the twenty-first day after the publication of this decision.
............[sgd]............................................................
J W Constance
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – prejudice – whether substantive matter has merit – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Business Names Registration Act 2011 (Cth)
Business Names Registration (Availability of Names) Determination 2015 (Cth)
CASES
Comcare v A’Hearn (1993) 45 FCR 441
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Re Appleton and Telstra Corporation Ltd (1993) 32 ALD 357
REASONS FOR DECISION
Deputy President J W Constance
31 August 2018
INTRODUCTION

The Applicant, Australian Appaloosa Association Ltd, is an incorporated company.
The Respondent is the registration authority under the Business Names Registration Act 2011 (Cth) and maintains the Business Names Register under that Act.
In early April 2017, a dispute arose between two groups of members of the Applicant’s Board concerning the constitution of the Board.
On 3 April 2017, the Respondent registered two business names, Appaloosa Association of Australia and Appaloosa Australia. The Applicant was not the applicant for registration of these names nor did it consent to their registration.
Under the provisions of the Business Names Registration Act 2011 (Cth), the Applicant is entitled to apply to this Tribunal to review the Respondent’s decisions to register the business names. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) requires an application for review to be lodged within 28 days of the Applicant being given a document setting out the decision and the reasons for it, or within such further time as the Tribunal allows. The Applicant did not apply to the Tribunal within the 28 day period.
The Applicant has applied for an extension of time in which an application for review may be made. The Respondent opposes the granting of the extension sought.
For the reasons which follow, the time for applying for a review of the decisions will be extended to close of business on the twenty-first day after the publication of the decision to extend time.
BACKGROUND
On 3 April 2017, Ms Ebbett applied to the Respondent to register the business name Appaloosa Association of Australia. On the same day she also applied for registration of the business name Appaloosa Australia.
On 3 April 2017, the Respondent registered both business names.
On 27 June 2017, the Applicant applied to the Respondent to review its decisions to register the names.
On 28 and 29 June 2017, there was an exchange of emails between Ms Duin (on behalf of the Applicant) and the Respondent concerning requests by the Respondent for further information as to the Applicant’s objection to the registration of the names.
On 19 July 2017, the Respondent sent an email to Ms Duin attaching the decisions of the Respondent affirming the decisions to register the business names. The email also advised Ms Duin of the Applicant’s right of appeal to the Tribunal.
On the basis of the evidence of Ms Duin, to which I shall refer later in these reasons, I am satisfied that she did not become aware of the email of 19 July 2017 until 2 August 2017 when it was re-sent to her by the Respondent. The reason for this is not apparent.
On 5 December 2017, the Applicant applied to the Tribunal for an extension of the time in which it could apply for a review of the Respondent’s decisions to register the business names.
EVIDENCE OF MS DUIN
Ms Duin is the President and a Board Member of the Applicant. She provided a statement dated 26 April 2018 and gave evidence before the Tribunal.
The Applicant is a non-profit organisation which has been operating for over 46 years. It maintains the National Stud Book Registry for the Appaloosa breed of horses, organises shows and events, secures sponsorship, and arranges insurance for riders and horses. There are affiliated Appaloosa Clubs in each of the Australian States.
Ms Duin has been a member of the Applicant for 12 years and a Director for four years. Since March 2017 she has been the President.
In April 2017, following the Annual General Meeting of the Applicant, a group of individuals which had been associated with the Applicant formed a separate Appaloosa association.
Ms Duin became aware of the registration of the business names, Appaloosa Association of Australia and Appaloosa Australia, through social media. She then lodged an objection to the registrations with the Respondent.
When the Applicant provided further information to the Respondent in late June 2017, Ms Duin was advised by the Respondent that it would respond to her within 21 days. Ms Duin was overseas for most of July 2017. She checked her emails daily but did not receive any communication from the Respondent.
On 2 August 2017, Ms Duin contacted the Respondent and was forwarded a copy of the Respondent’s email of 19 July 2017 which, according to the Respondent’s records, was forwarded to her email address.
Ms Duin’s explanation for the Applicant’s failure to seek a review of the Respondent’s decisions until 5 December 2017 is as follows:
Upon my return I made enquiries to ASIC and was provided with a document dated 19 July 2017. I had not seen this document before and there is no record of receipt on my system whatsoever. Consequently, this only gave me a few days to communicate with board members and try to submit a further appeal for an extension of time to appeal.
As we considered that we were passed the deadlines we were advised that we could not appeal. Under notice we decided to seek legal advice but our financial position in mid-2017 impeded our ability to progress quickly.
During this time, AAA was significantly challenged because of member confusion over the similar names of this new association and members receiving incorrect information when they inadvertently contacted the other association, believing they were in contact with ourselves.
…
I have suffered with depression since mid to late 2015. I was hospitalised in September 2016 and currently take medication that addresses my depressive symptoms…
This medical condition contributed significantly to my ability to lodge an appeal against the original ASIC decision or to seek an extension of time to lodge an appeal exacerbated by a medical episode in July/August 2017.[1]
[1] Exhibit A1 at tab A.
Ms Duin was extremely ill in August 2017. She did not advise the Board of the Respondent’s decision until the end of August 2017. The matter was considered by the Board at its meeting in mid-September 2017. She felt that during August 2017 she did not have the capacity to decide what to do in relation to the Respondent’s decisions.
The Applicant did not obtain legal representation until November 2017 as prior to this time it was not in a financial position to do so.
LEGISLATION
Subsections 29(7) and 29(8) of the Administrative Appeals Tribunal Act 1975 (Cth) provide:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
ISSUES FOR DETERMINATION
The Tribunal is given a broad discretion to decide whether an extension of time should be granted. The factors which may be considered are not restricted by the Act which requires a consideration of “all the circumstances”.
The following issues arise for consideration in this application:
·     Is there an explanation for the delay in making the application for review?
·     What are the Applicant’s prospects of success should an extension of time be granted?
·     Is there any prejudice to the Respondent and/or others occasioned by the delay?
·     Has the Applicant rested on its rights?
DISCUSSION
Is there an explanation for the delay in making the application for review?
The application to the Tribunal was made on 5 December 2017. I accept Ms Duin’s evidence that she did not become aware of the reviewable decisions until 2 August 2017. On this basis the application to the Tribunal was made just over three months after the expiry of the 28 day period set out in subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth). If the Applicant was found to have been given notice of the decisions on 19 July 2017, 14 days earlier, it would make no difference to the outcome of this application.
Whilst it is clear that the time limit in subsection 29(2) is not to be ignored, I take into account that the delay in this matter was not particularly long. Nevertheless, the Applicant could, and should, have acted with greater urgency than it did, particularly as the matter came to the attention of the Board members in mid-September 2017, over two months before the application to the Tribunal was made.
The finding that there was an acceptable explanation for the delay is not a pre-condition to the granting of an extension of time. The explanation given is a relevant matter for consideration.[2]
[2] Comcare v A’Hearn (1993) 45 FCR 441 at [15].
What are the Applicant’s prospects of success should an extension of time be granted?
It is not my role in this application to embark upon a determination of the merits of the arguments the Applicant may advance if the matter proceeds to a final hearing, nor is it essential that the Applicant satisfy me that it has reasonable prospects of success. The requirement of the Act is that the Tribunal be satisfied “that it is reasonable in all the circumstances” to extend the time for making an application for review. In assessing what is reasonable, the Tribunal is less likely to grant an extension of time if the Applicant’s prospects of success at a final hearing are low.
Subsection 24(1) of the Business Names Registration Act 2011 (Cth) provides:
(1) ASIC must register the business name to the entity if ASIC is satisfied that:
(a) the entity has an ABN; and
(b) the registration fee has been paid; and
(c) the name is available to the entity; and
(d) the entity is not disqualified.
The only provision of the above subsection which will be in issue on a final hearing is whether the two names (or either of them) are available to the person to whom they are presently registered.
Subsection 25 provides in part:
A business name is available to an entity if:
(a) the name is not identical or nearly identical to:
…
(i) a name that is reserved or registered under the Corporations Act 2001 for another body;
Subsection 4(1) of the Business Names Registration (Availability of Names) Determination 2015 (Cth) sets out the rules for determining whether a business name is “identical or nearly identical” to another name.
Section 7 of the Determination provides:
A business name is identical or nearly identical to a company name if, and only if, the names are the same after comparing the business name with the company name by applying the rules in Part 1 of Schedule 6 to the Corporations Regulations 2001 (Rules for ascertaining whether names are identical) as if they had been made for subparagraph 25 (a) (ii) of the Act.
Part 1 of Schedule 6 of the Corporations Regulations provides a list of matters to be disregarded when comparing names. Relevantly, “Ltd” is to be disregarded.
On the material before me it appears that there is a reasonable argument available to the Applicant that the registered business names are nearly identical to the Applicant’s name once the word “Ltd” is disregarded. The differences may turn on the Tribunal’s assessment of the difference between the word “Australian” and “of Australia” in one case and the difference between “Australia” and “Australian” in the other.
Is there any prejudice to the Commission and/or others occasioned by the delay?
The Respondent did not argue that it was prejudiced by the delay and there is no evidence before me that there was any such prejudice.
The Respondent argued that to grant the extension of time would be unfair and prejudicial to the registered owner of the business names in question. As there is no evidence to support this contention I cannot be satisfied that there will be any prejudice to Ms Ebbett.
Has the Applicant rested on its rights?
While the Applicant did not act as quickly as it could once the Board became aware of the registration of the names, there is an explanation for the delay. To the extent that the Applicant could be said to have rested on its rights, I take into account that the Applicant is a very small organisation which had very limited resources at the relevant time.
CONCLUSION
I am satisfied that in this matter there are “genuine issues [which] ought to be litigated [and which] … can be done with fairness to all concerned”.[3] In addition to determining the dispute between the parties, the determination of this matter may assist the Respondent and other applicants in resolving similar questions when they arise.
[3] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30; Re Appleton and Telstra Corporation Ltd (1993) 32 ALD 357.
In all the circumstances, I am satisfied that it is reasonable that the Applicant be granted an extension of time in which to make an application for a review of the decisions under consideration.
The time in which the Applicant may apply to the Tribunal for a review of the decisions made by the Australian Securities and Investments Commission on 19 July 2017 to register the business names Appaloosa Australia and Appaloosa Association of Australia will be extended to close of business on the twenty-first day after publication of the Tribunal’s decision on this application.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 31 August 2018

Date of interlocutory hearing: 26 April 2018

Solicitors for the Applicant: Myers & Associates Solicitors & Barristers

Counsel for the Respondent: Ms T Power

Solicitors for the Respondent: Australian Securities & Investments Commission

Date of interlocutory hearing:	26 April 2018
Solicitors for the Applicant:	Myers & Associates Solicitors & Barristers
Counsel for the Respondent:	Ms T Power
Solicitors for the Respondent:	Australian Securities & Investments Commission