De Quincey Company Ltd v Commissioner for Fair Trading, New South Wales Office of Fair Trading

[2008] NSWADT 152

CITATION:	De Quincey Company Ltd v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 152
DIVISION:	General Division
PARTIES:	APPLICANT De Quincey Company Ltd RESPONDENT Commissioner for Fair Trading, New South Wales Office of Fair Trading
FILE NUMBER:	083048
HEARING DATES:	5 May 2008
SUBMISSIONS CLOSED:	5 May 2008
DATE OF DECISION:	26 May 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Business name - refusal of registration
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Business Names Act 2002 Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth) Licensing and Registration (Uniform Procedures) Act 2002
CASES CITED:	Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1
REPRESENTATION:	APPLICANT T De Quincey, agent RESPONDENT B Mauro, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 This is a review of a decision of the Commissioner for Fair Trading (‘the Commissioner’) to refuse an application by the De Quincey Company Ltd for the registration of a business name.

Background

2 The De Quincey Company Ltd (‘the Company’) is a company limited by guarantee, which attracts financial support from both Commonwealth and State bodies. It is a dance performance company based in Sydney whose work is founded in the ‘Body Weather’ contemporary dance discipline first developed in Japan and melding Asian and Western practices and philosophy. Tess De Quincey, who is a director of the Company, is a choreographer and dancer who first brought the discipline to Australia.

3 On 7 August 2007, the Company applied for the registration of the business name “The Weather Bureau” (‘the name’). On that day, a delegate of the Commissioner wrote to Ms De Quincey notifying her that the Company’s application had been refused on the ground that the name was capable of suggesting a connection with the Commonwealth or State Government.

4 On 15 August 2007, Ms De Quincey wrote to the Minister for Fair Trading requesting the Minister’s consent to the registration of the name. On 10 January 2008, the Minister declined to direct that the name be registered as a business name. The Office of Fair Trading also treated Ms De Quincey’s letter of 15 August 2005 as an application for internal review.

5 By letter dated 21 January 2008, another delegate of the Commissioner notified Ms De Quincey that, having conducted an internal review, he had affirmed the decision of 7 August 2007, referring in his statement of reasons to an order prohibiting the registration of names suggesting connection with a Commonwealth, State or Territory department, authority or instrumentality. On 12 February 2008, the Company filed an application for a review of this decision by the Tribunal.

Relevant Legislation

6 Section 5(1) of the Business Names Act 2002 provides that the Commissioner may grant registration of a business name. Pursuant to section 6(2), unless the Minister so directs, a business name is not to be registered if “(a) registration is prohibited by an order in force under section 21”. Section 21 provides that the Minister, by order published in the NSW Government Gazette, “may prohibit the registration as a business name of any name or class of names specified in the order”.

7 A relevant order was ‘gazetted’ on 15 April 2005. The Minister prohibited the registration as a business name of specified names or classes of name set out in the order, including those in clause 10:

“10. Names which, in the context in which they are proposed to be used, are capable of suggesting connection with a department, authority or instrumentality of the Government of the Commonwealth of Australia or of a State or Territory or with a municipal or other local authority.”
The Company’s Case

8 Ms De Quincey provided written submissions filed on 31 March 2008 and gave evidence and made further oral submissions at the hearing. Peter Fraser, a member of the Company’s ‘ensemble’, also gave oral evidence.

9 Ms De Quincey said she telephoned the Australian Securities and Investment Commission (‘ASIC’) to ascertain whether ‘The Weather Bureau’ could be registered under federal legislation. During the course of two telephone conversations with ASIC’s call/service centre, lasting about two hours in total, she was advised that neither ‘The Weather Bureau’ nor ‘Bureau’ were restricted names, and could, therefore, be registered.

10 Ms De Quincey submitted that the use of the word ‘Bureau’ is appropriate in this case because the Company is promoting people with a professional interest in the Body Weather approach to dance and is documenting its methodology for the use of that approach. Mr Fraser described the Body Weather approach as being very aware of the use of the body in its environment. Ms De Quincey said the word ‘Bureau’ is widely used throughout Australia and there are many such name entries in ASIC registrations and de-registrations.

11 In her written submissions, Ms De Quincey said the Company proposes to use the name:

“as an umbrella, which shelters and develops a community of emerging artists who share engagement through communication and common Bodyweather methodology. Envisaged activities include training, research, workshops, performances, video installations and other artworks ...”
12 Ms De Quincey submitted that because of the context in which the name would be used, the public would not be misled. It is not in the Company’s interests to mislead the public, and the Company would make clear in any promotional material used that its focus is dance and that there is no connection with any Commonwealth or State agency. Those who have been aware of the proposed name have been amused, and the name is one which people remember.

13 In cross-examination, Ms De Quincey was asked why the name “The Body Weather Bureau” had not been proposed. She said it is important to distinguish between the Body Weather discipline – which is also practised by people in Japan, Europe and elsewhere, and works presented by Body Weather artists. Registration of ‘The Body Weather Bureau’ would suggest corporate ownership of what has become an internationally practised discipline.

14 Mr Fraser contended that the Commissioner’s interpretation of ‘connection’ is too wide and catches almost anything, including where any connection is tenuous and remote. Ms De Quincey submitted that what is important is the context in which a name is used. The Company’s use of the name would, by virtue of the context in which it is used, clearly point to an activity and practice within the Arts.

15 Ms De Quincey submitted that the decision in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 (‘Pozzolanic’), relied upon by the Commissioner, is distinguishable on its facts, being about the use of trade names.

The Commissioner’s Case

16 The Commissioner provided written submissions dated 2 May 2008 and Ms Mauro, for the Commissioner, made further oral submissions at the hearing.

17 With regard to the Tribunal’s jurisdiction, the Commissioner submits that the Tribunal has no jurisdiction to review the Minister’s decision not to direct the registration of the name either under the Business Names Act 2002 or the Licensing and Registration (Uniform Procedures)Act 2002. The Tribunal’s jurisdiction to review a decision of the Commissioner derives from section 52 of the latter Act.

18 With regard to the substantive issue, whether the proposed name ‘The Weather Bureau’ falls within clause 10 of the prohibition order, in Pozzolanic, at 10, the Federal Court interpreted the words “connected with” as meaning “capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote”. The Commissioner submits that if the name “is susceptible to prompting or calling up an idea or association with the Bureau of Meteorology, however tenuous or remote, its registration as a business name is prohibited by clause 10 of the Prohibition Order”. The Commissioner submits that the name ‘The Weather Bureau’ is synonymous with the Bureau of Meteorology, a Commonwealth authority or instrumentality, and is thereby prohibited by clause 10.

19 With regard to the context in which the words are used, the Commissioner submits that the fact that the name will be used in the context of performing arts does not remove the name’s capability of suggesting a connection with the Bureau of Meteorology, because the association between the words ‘The Weather Bureau’ and the Bureau of Meteorology is such a strong one. Moreover, the connection between the arts and government may not be too remote in people’s minds since it is not uncommon for government to support the arts financially. The Commissioner states that it is not the use of the word ‘Bureau’ that is objected to, but the combination of the words ‘Weather’ and ‘Bureau’ which is considered to be caught by clause 10. The Commissioner does not suggest that the Company is seeking to mislead the public, which, in any event, is not relevant to the issue. It is a matter of the applicability of the legislation: is the proposed name capable of suggesting a connection?

20 With regard to Ms De Quincey’s telephone conversations with ASIC, Ms Mauro submitted that ASIC’s call centre may just have been providing general information. It is not until someone applies his or her mind to the relevant facts, that the connection becomes clear. Ms Mauro provided examples of the results of her ‘google’ search against ‘The Weather Bureau’, which indicate an immediate connection with the Bureau of Meteorology.

Discussion

21 There are two issues for the Tribunal to determine. First, what is the Tribunal’s jurisdiction in this matter? Second, is the proposed business name prohibited by clause 10 of the order gazetted on 15 April 2005?

22 With regard to jurisdiction, in my view, the Tribunal does not have jurisdiction to review the decision of the Minister. The Tribunal’s jurisdiction derives from the Licensing and Registration (Uniform Procedures)Act 2002, which applies in respect of the registration of business names. Section 52(1) provides “[a]n applicant who is aggrieved by the relevant registration authority’s decision to refuse the application” with a right to apply to the Tribunal for a review of that decision. The term “registration authority” is defined in section 33 as meaning “the person or body that, under the relevant registration legislation, is authorised to grant registration”. In the case of the Business Names Act 2002, that person is the Commissioner, and the Tribunal’s jurisdiction does not extend to the power of the Minister under section 6(2) of the Act to direct the registration of a business name notwithstanding that the registration of the name is prohibited by an order in force under section 21, or the Commissioner is of the opinion that the name is undesirable.

23 I note the Commissioner has treated Ms De Quincey’s letter dated 15 August 2007 as an application for internal review and has made an internal decision, the decision in respect of which the Company seeks a review by the Tribunal. In my view, an internal review having been finalised in accordance with section 53(9) of the Administrative Decisions Tribunal Act 1997, the Tribunal has jurisdiction to review the Commissioner’s decision under section 52(1) of the Licensing and Registration (Uniform Procedures)Act 2002.

24 Turning to the second issue, whether the proposed business name is prohibited by clause 10 of the order gazetted on 15 April 2005, I note the decision of the Full Federal Court in Pozzolanic. In my view, notwithstanding that the material facts of that case are different from those of the present matter, the Court’s interpretation of the words ‘connected with’ is a relevant matter. The Court recognised that whether something is connected with something else is a matter of judgement about the range of the application of the law. The Court said, at 10:

“The words ‘connected with’ are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v Collector of Customs (SA) at FCR 378, the meaning of the word ‘connection’ is wide and imprecise, one of its common meanings being ‘relation between things one of which is bound up with, or involved in, another’: Shorter Oxford English Dictionary .”
25 In this case, the relevant words are those in clause 10 of the order gazetted on 15 April 2005, which states:
“10. Names which, in the context in which they are proposed to be used, are capable of suggesting connection with a department, authority or instrumentality of the Government of the Commonwealth of Australia or of a State or Territory or with a municipal or other local authority.”
26 The issue, therefore, is whether, in the context in which the name ‘The Weather Bureau’ is proposed to be used, that of the performing arts, the name is capable of suggesting a connection or relationship with a governmental authority. In my view, this is an objective test – what would be suggested by the use of the proposed name in that context to the reasonable person? If the name is capable of suggesting a connection with a governmental authority, then that name is prohibited.

27 In my view, use of the proposed name ‘The Weather Bureau’ would suggest connection with the Commonwealth Bureau of Meteorology, notwithstanding that the context is that of the performing arts. I agree with the Commissioner’s submission that the association between the proposed name and the Bureau of Meteorology is such a strong one – as evidenced by the results of Ms Mauro’s ‘google’ search, that it makes little difference that the context here is that of the performing arts and not that of the weather or climate.

28 Even if the Company’s promotional material makes clear that its focus is dance, an ordinary person would still immediately make a connection with the Bureau of Meteorology, knowing that governmental authorities do provide financial support for the arts, even if perhaps unlikely in the case of the Bureau of Meteorology. Ms De Quincey said ‘The Weather Bureau’ is a name that people remember. It seems likely to me that the reason for this is the association of the name with the Bureau of Meteorology. The fact that the Company has no intention to mislead is not a relevant matter.

29 With regard to Ms De Quincey’s evidence about her telephone conversations with ASIC over use of the name, I note that these conversations were of a relatively informal nature, with an ASIC call or service centre, and not in any way definitive in terms of how an application for registration of the proposed name under the provisions of the Corporations Act 2001 (Cth) might be determined.

30 I note that while use of the name ‘The Weather Bureau’ does not appear to be specifically “unacceptable for registration” under the Corporations Regulations 2001 (Cth), paragraph (d) of Rule 6203 provides that a name is unacceptable for registration if, “in the context in which it is proposed to be used”, the name “suggests a connection with” the Crown, the Commonwealth Government, or a department, authority, instrumentality of the Commonwealth Government or of the Government of a State or Territory. Thus, in my view, an application for registration of the name ‘The Weather Bureau’ under the terms of the Corporations Regulations 2001 might achieve a similar result to that in the decision under review in the present matter.

Orders

Thus, in refusing registration of the name ‘The Weather Bureau’, the Commissioner applied clause 10 of the order correctly, and the decision under review must be affirmed.