Bon Ventre v Corporate Affairs Commission - [2010] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Business Names Act 1996)
In the Matter of AN APPEAL UNDER S16 OF THE BUSINESS NAMES ACT 1996
BON VENTRE v CORPORATE AFFAIRS COMMISSION & ORS
[2010] SADC 30
Judgment of His Honour Judge Chivell
12 March 2010
TRADE AND COMMERCE
Business Names Act 1996 (SA) – cancellation of registration of business name – whether registration the result of “deficient application or some other mistake or inadvertence” – whether name “likely to be confused with or mistaken for” another name.
Business Names Act 1996 (SA) s 8, s 14(4), s 16; District Court Act 1991 (SA) s 42E(3); District Court Rules (SA) r 286(2), referred to.
Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368; Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [1998] HCA 28; Allen v Emmerson [1944] KB 362; Lake Macquarie Shire Council v Ades [1977] 1 NSWLR 126; Bond v Foran (1934) 52 CLR 364; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; Drake v Commissioner for Corporate Affairs WA Supreme Court, unreported, 19 April 1999; Cardell Insurance Agencies Pty Ltd v Corporate Affairs Commission [2003] SADC 137; Nero Noctis Private Wealth Pty Ltd v Corporate Affairs Commission South Australian District Court, unreported, 28 August 2008); Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, considered.

BON VENTRE v CORPORATE AFFAIRS COMMISSION & ORS
[2010] SADC 30
Introduction

This is an appeal by Mr Bon Ventre pursuant to s 16 of the Business Names Act, 1996 (“the Act”). Initially the only respondent was the Corporate Affairs Commission (“the Commission”). Adelaide Marble Specialists Pty Ltd and Adelaide Granite Pty Ltd were joined as second and third respondents at the hearing of the appeal pursuant to Rule 286(2) of the District Court Civil Rules.
The appeal is from the decision made on 25 May 2009 by the Commission to cancel the registration of the business name “Adelaide Granite Kitchens”.
The Legislation
The relevant parts of the Act are ss 8(4)(b) and 14(4).
s 8(4)(b) states:
(4)            However, the Commission—
…
(b)            must not, subject to any directions of the Minister, register a business name that is the same as, or that is, in the Commission's opinion, likely to be confused with or mistaken for—
(i)             a registered business name; or
(ii)            a business name the registration of which has expired during the preceding two months; or
(iii)    the name of a body corporate;
…
s 14(4) states:
(4)     If the Commission is satisfied that a business name has been registered on a deficient application or through some other mistake or inadvertence, the Commission may, by notice in writing served on the proprietor of the business name, cancel the registration of the business name for the reasons set out in the notice with effect from a date specified in the notice (being not less than 28 days from the date of the notice).
Background
At the hearing of the appeal, there was no dispute as to the relevant background facts.
The appellant applied to register the name at the Commission on 2 April 2009. When he attended at the office, he presented his application to Ms Stephanie Monterosso, a Client Services Officer in the Commission’s Registration Unit. Ms Monterosso was a delegate of the Commission for the purpose of registering business names pursuant to the Act.
In her affidavit, Ms Monterosso deposed that the appellant’s application form, when presented to her, had his first preference for the name “Adelaide Granite & Stone”, and his second preference “Adelaide Granite and Stone” already crossed out. His next preference was for “Adelaide Granite Group”. Ms Monterosso assessed that last name in the appropriate manner by consulting two computer databases, firstly one called South Australia Business Names (“SABN”), and a national database maintained by the Australian Securities and Investments Commission called National Names Index (“NNI”).
The result of this search was that there was already a registered business name “Adelaide Granite”. This had been registered on 4 March 2009, a month or so earlier, by Adelaide Marble Specialists Pty Ltd.
Having regard to s 8(4)(b) of the Act, Ms Monterosso declined to register the name Adelaide Granite Group. Mr Bon Ventre thereupon amended the form again, seeking approval to register the name Adelaide Granite Kitchens. The form, with these various alterations, is annexed to Ms Monterosso’s affidavit and marked “SJM-1”.
Ms Monterosso discussed the application with her supervisor Mr Adam Baehnisch. Together they came to the opinion that the addition of the word “Kitchens” was sufficient to avoid confusion with the existing name Adelaide Granite. Accordingly, Ms Monterosso proceeded to register the business name Adelaide Granite Kitchens to Mr Bon Ventre pursuant to s 8(3)(b) of the Act.
The business name Adelaide Granite was originally registered in July 2007 by a Mr and Mrs Longo. This registration was transferred to Adelaide Marble Specialists Pty Ltd on 4 March 2009. There is also a company called Adelaide Granite Pty Ltd, which Mr and Mrs Longo incorporated in August 2007. The name of the company was changed to ACN 127 092 157 Pty Ltd on 5 March 2009, and the company went into liquidation on 13 March 2009.
On 8 April 2009, another company associated with Adelaide Marble Specialists Pty Ltd called AMS Granite and Quartz Pty Ltd changed its name to Adelaide Granite Pty Ltd. This was 6 days after Adelaide Granite Kitchens was registered.
The Process towards Cancellation
Ms Mary Carapetis is a supervisor in the first respondent’s Registration Unit. The Commission received a letter from Adelaide Marble Specialists Pty Ltd on 1 May 2009 objecting to the registration of Adelaide Granite Kitchens. The letter is exhibit MC-1 to Ms Carapetis’ affidavit. In summary, the letter asserted that Adelaide Granite Kitchens was likely to be confused with their name Adelaide Granite. Upon checking the databases, Ms Carapetis established, in summary:
Adelaide Granite was first registered on 24 July 2007, and the name was transferred to AMS Pty Ltd, a company associated with Adelaide Marble Specialists Pty Ltd, on 4 March 2009;
Adelaide Granite Kitchens was registered to the appellant on 2 April 2009;
The previous company did not change its name to Adelaide Granite Pty Ltd until 8 April 2009.
This series of events indicates that the only entity with which a new name might be mistaken for, or confused with, at the time the appellant’s business name was registered on 2 April 2009, was “Adelaide Granite”. Ms Carapetis concluded that Ms Monterosso had made a mistake when she registered Adelaide Granite Kitchens, because, in her opinion, it had been registered contrary to s 8 (4)(b). She formed the view that the name was likely to be confused with Adelaide Granite (see her affidavit, para 15).
As a delegate of the Commission, and purporting to exercise the power in s 14(4), Ms Carapetis decided to cancel the registration of Adelaide Granite Kitchens. The decision was notified to Mr Bon Ventre by letter dated 25 May 2009.[1]
[1] Exhibit MC-7 to Ms Carapetis’ affidavit
The appeal is from that decision, pursuant to s 16 of the Act.
Submissions
In her detailed and very helpful summary of argument, counsel for the Commission, Ms Nikoloff, conceded that it could not be said that Adelaide Granite Kitchens was registered through “inadvertence”. Ms Nikoloff correctly pointed out that Ms Monterosso specifically considered whether Adelaide Granite Kitchens was likely to be confused with Adelaide Granite, and decided that it was not.
As to whether Adelaide Granite Kitchens was registered through a “mistake”, counsel for the appellant, Mr Tredrea, submitted that the word takes its colour from the rest of the subsection. I note that s 14(4) of the Act provides that the power to cancel arises where the registration was made “on a deficient application or some other mistake or inadvertence”.
The question arises whether, in accordance with the ejusdem generis rule of statutory construction, the general words “other mistake or inadvertence” are limited by the specific words “deficient application”, so that the “mistake or inadvertence” referred to is confined to mistakes or inadvertence of a merely procedural nature.
The application of the ejusdem generis rule has been judicially criticized – see Mattinson v Multiplo Incubators Pty Ltd[2], and Brewarrana Pty Ltd v Commissioner of Highways (No 2)[3].
[2] [1977] 1 NSWLR 368 at 373
[3] (1973) 6 SASR 541 at 587
Fundamental to the application of the rule is that the specific matters in the phrase under consideration must establish a genus. This is seldom the case where there is only one specific item appearing before the general items. Thus, in Allen v Emmerson[4], the phrase being considered was “theatre or other place of public entertainment”. It was held that the word “theatre” did not establish a genus which limited the words “other place of public entertainment” to entertainment within a building. Similarly, the word ‘building” was held not to limit the general words in “building or other place”[5], whereas the words “house, office, room” were held to constitute a genus so that they limited the general expression in the phrase “house, office, room, or other place”[6].
[4] [1944] KB 362
[5] Lake Macquarie Shire Council v Ades [1977] 1 NSWLR 126
[6] Bond v Foran (1934) 52 CLR 364 at 376 per Dixon CJ
In Project Blue Sky Inc v Australian Broadcasting Authority[7], the joint judgment of McHugh, Gummow, Kirby and Hayne JJ contains the following passages:
[69] The primary object of statutory instruction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.
…
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was a “known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause sentence or word that prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.
(references omitted).
[7] (1998) 194 CLR 355, [1998] HCA 28
It might be argued on the basis of that reasoning that if the words “other mistake or inadvertence” are not limited by the word “deficient application”, then those words become “superfluous, void or insignificant”. If, however, they are words of limitation, then they have some work to do in the statute. This was an argument rejected by Mahoney JA in Mattinson (supra), and by Wells J in Brewarrana (supra). Mahoney JA described surplusage and overlapping in statutory draughtsmanship as “the rule rather than the exception”.
Dr DC Pearce in Statutory Interpretation in Australia[8] observed, however,[9] that “any draughtsman worthy of the name writes with the ejusdem generis rule in mind”, and that the rule should not be “lightly cast aside.”
[8] 2^nd Edn, 1981
[9] at 44
In Gedeon v Commissioner of the NSW Crime Commission[10], the High Court said, when considering a submission that a phrase in a statute should be read ejusdem generis with a particular word:
The question of construction of par (b) of s 7(1) is not resolved by the application of any particular maxim or canon of statutory construction selected from among those which may jostle for acceptance. The preferable starting point appears from what was said by Dixon J in Cody v J H Nelson Pty Ltd:
"In the modern search for a real intention covering each particular situation litigated, however much help and guidance may be obtained from the principles and rules of construction, their controlling force in determining the conclusion is likely to be confined to cases where the real meaning is undiscoverable or where the court of construction, sceptical of the foresight of the draftsman or of his appreciation of the situation presented, is better content to supply the meaning by a legal presumption than subjectively."
[10] [2008] HCA 43 at [51]
Having regard to these principles, I conclude that the phrase “deficient application” is not sufficient to establish a genus such that the meaning of “other mistake or inadvertence” is limited to procedural matters.
In her outline of argument, Ms Nikoloff suggested that the section might create only a “slip rule”, and that it only creates a power to correct a mistake when the error is “blatantly and manifestly wrong”. Mr Tredrea did not argue in favour of such a narrow construction.
Mr Duggan, counsel for the second and third respondents, argued that s 14(4) created a power to correct a “mistake” upon the Commission being satisfied that a mistake had occurred. He suggested that the only relevant view about that was the view of the Commission, and that provided there was evidence that the Commission reached that view, the decision to correct the mistake was unassailable.
With respect, that cannot be right. Section 16(1) of the Act gives a right of appeal to “a person aggrieved by an act or decision of the Commission”. Section 42E(3) of the District Court Act 1991 requires me to “give due weight to the decision being appealed against” and “not depart from the decision except for cogent reasons”. If cogent reasons exist, such as, for example, that the Commission proceeded upon an incorrect interpretation of the relevant section, then clearly I have power to depart from its decision.
Mr Duggan argued further that the provisions of s 14(4) were wide enough to give power to correct a “mistake” of the type under discussion.
Whatever are the precise limits of the power created by s 14(4), I agree with the submissions of counsel for the appellant and first respondent that Parliament could not have intended that the Commission would be empowered to “endlessly revisit” its decisions, since, as Ms Nikoloff pointed out:[11]
Such a power could be productive of great uncertainty and could have serious financial consequences for a person who is permitted to register a name but is then informed at some indeterminate time in the future that the name is to be cancelled because of new evidence and/or because the Commission has taken a different view.
[11] at para 15
In Drake v Minister for Immigration and Ethnic Affairs[12]Brennan J said:
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice … inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.
[12] [1979] AATA 179
In my view, that observation is apposite to this case. The words “other mistake or inadvertence” in s 14(4) are not so wide that they empowered the Commission in this case to revisit Ms Monterosso’s original decision simply on the basis that Ms Carapetis took a different view.
Conclusion
For these reasons, I conclude that the Commission was not empowered by s 14(4) to cancel the business name. There was no mistake or inadvertence of the type contemplated by the section which led to the registration. The appeal will therefore be allowed and the decision of the Commission to cancel the registration will be set aside.
In my opinion, the appropriate response to the letter from Mr Miteloudis was to advise him of his company’s right to appeal the decision to register the business name, a right created by s 16(1). Although s 16(2) limits the time for appeal to 21 days, this Court has power to extend the limitation period in appropriate cases[13].
[13] see District Court Act, s 42C
I was urged by Ms Nikoloff and Mr Tredrea to express a view about the substantive issue in the case, namely whether registration of “Adelaide Granite Kitchens” was contrary to s 8(4) of the Act. Mr Duggan opposed that course arguing that his clients may be prejudiced if they appeal.
I have given careful consideration to the issue, and have decided, on balance, to refrain from further comment.
To express an opinion on the subject is not necessary for the purpose of disposing of the appeal, and is unlikely, in view of the positions taken by the parties, to be of any utility. If an appeal is lodged, then the arguments based upon Drake v Commissioner for Corporate Affairs[14], Cardell Insurance Agencies Pty Ltd v Corporate Affairs Commission[15], and Nero Noctis Private Wealth Pty Ltd v Corporate Affairs Commission[16] can be properly ventilated by the parties to the appeal.
[14] WA Supreme Court, unreported, 19 April 1999
[15] [2003] SADC 137
[16] South Australian District Court, unreported, 28 August 2008)
The appeal is allowed, the decision of the Commission on 25 May 2009 to cancel the registration of Adelaide Granite Kitchens is set aside.
I will hear the parties as to any consequential orders.