Elevate Education Pty Ltd and Australian Securities and Investments Commission - [2023] AATA 84

Elevate Education Pty Ltd and Australian Securities and Investments Commission [2023] AATA 84 (1 February 2023)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2022/0778
Re:Elevate Education Pty Ltd
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

AndElevated Learning Pty Ltd
OTHER PARTY

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:1 February 2023
Place:Sydney

The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................................[SGD]......................................
Senior Member Dr Linda Kirk
Catchwords
BUSINESS NAME REGISTRATION – Business Names Registration Act 2011 (Cth) – Applicant objects to registration of another’s business name – Whether subsequently registered name is ‘identical’ or ‘nearly identical’ to Applicant’s business name – Business names not ‘identical’ or ‘nearly identical’ – Whether business name is available for registration – Tribunal’s jurisdiction to review the application – Decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Business Names Registration Act 2011 (Cth)
Corporations Act 2001 (Cth)
Cases
Adelaide Building Consultants and ASIC [2021] AATA 3965
Australian Appaloosa Association Ltd and Australian Securities & Investments Commission [2019] AATA 2195
B & L Whittaker Pty Ltd v Australian Securities and Investments Commission [2014] AATA 302
Boyce and Australian Securities and Investment Commission [2015] AATA 768
Citta Hobart Proprietary Limited v Cawthorn [2022] HCA 16
Decorative Imaging Pty Limited v Australian Securities and Investments Commission [2018] AATA 4668
Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 151
George and Australian Securities and Investments Commission [2021] AATA 3615
Hazeldine and ASIC [2019] AATA 366
Marjorie Grace Jenkin and Repatriation Commission [1997] AATA 50
Perth Martial Arts Academy v Australian Securities and Investments Commission [2018] AATA 3664
Re Adams v the Tax Agents Board (1976) 1 ALD 251
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
Smith v Australian Securities and Investments Commission [2014] AATA 192
South Australia v Tanner [1989] HCA 3
Stasiw v ASIC [2015] AATA 328
Swinburne & Macfarlane and Australian Securities and Investments Commission [2014] AATA 602
Williams v Melbourne Corp [1933] HCA 56
Secondary Materials
Business Names Registration (Availability of Names) Determination 2012
Business Names Registration (Availability of Names) Determination 2015
REASONS FOR DECISION
Senior Member Dr Linda Kirk
1 February 2023

Elevate Education Pty Limited (‘the Applicant’), is a company carrying on business providing study skills programs and tutoring services through agreements between itself and more than 1500 schools in each State and Territory in Australia.[1] Its services involve the provision of written resource materials to teachers to support the implementation of its methodologies into classrooms and online, and also the provision of in-person training seminars to teachers.[2] It employs approximately 20 full-time staff and more than 350 casual employees as presenters.[3]
[1] Exhibit A1, [3].
[2] Ibid, [4].
[3] Ibid, [5].
On 14 December 2015, the Applicant was registered as an Australian proprietary company under the Corporations Act 2001 (Cth) (‘the Corporations Act’).[4]
[4] Exhibit R1, T8, 26-30.
On 13 May 2021, the Australian Securities and Investments Commission (‘the Respondent’) received an application for registration of the business name ‘Elevated Education’ (‘the Disputed Business Name’) under the Business Names Registration Act 2011 (Cth) (‘the BNR Act’).
The application satisfied the requirements of the BNR Act, and the Respondent registered the Disputed Business Name on the same day to sole trader Kereth Margaret Harris (ABN 32 997 476 769).[5]
[5] Ibid, T9, 31-32.
On 16 June 2021, the Respondent received a request to cancel and transfer the Disputed Business Name to another entity.[6]
[6] Ibid, T2, 8.
On 17 June 2021, the Respondent received an application for the registration of the Business Name together with a consent to transfer form.[7]
[7] Ibid, 9.
On 23 June 2021, the Respondent determined that the application satisfied the requirements of the BNR Act, and it registered the Disputed Business Name to Elevated Learning Pty Ltd (ACN 651 080 527).[8]
[8] Ibid, T10, 33-34.
On 22 December 2021, the Applicant filed with the Respondent an application for an internal review of its decision to register the Disputed Business Name.[9]
[9] Ibid, T3, 13-14.
On 10 January 2022, a delegate of the Respondent affirmed the decision to register the Disputed Business Name (‘the Reviewable Decision’).[10]
[10]Ibid, T7, 22-25.
On 1 February 2022, the Applicant lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’).[11]
[11] Ibid, T1, 1-6.
The review application was heard by the Tribunal at a video-conference hearing on 15 September 2022.
The following witness gave oral evidence and was cross examined at the hearing:
·Ms Amanda Jane McInnes
The following documents are before the Tribunal:
·Applicant’s Statement of Facts, Issues, and Contentions (‘ASFIC’) filed 26 April 2022;
·Applicant’s Supplementary Statement of Contentions (‘ASSC’) dated 2 September 2022;
·Respondent’s Statement of Facts, Issues, and Contentions (‘RSFIC’) dated 17 May 2022
·Respondent’s Submissions in Reply (‘RSR’) dated 14 September 2022;
·Section 37 T-Documents (T1-T13, pages 1-180) filed 3 March 2022 (Exhibit R1);
·Affidavit of Amanda McInnes dated 17 May 2022 (Exhibit R2);
·Statement of John Varvarigos dated 26 May 2022 (Exhibit A1); and
·Statement of Stephen Blanks dated 24 April 2022 (Exhibit A2).
LEGISLATIVE FRAMEWORK
On 2 July 2009, the Commonwealth, the States and Territories signed the Intergovernmental Agreement for Business Names Agreement, agreeing to establish a national system for business name registration to be implemented by Commonwealth legislation.[12] To give effect to the new national business name scheme, the Commonwealth implemented the National Business Names Registration Package, which included the BNR Act and the Business Names Registration (Availability of Names) Determination 2012 (‘the 2012 Determination’), which was later replaced by the Business Names Registration (Availability of Names) Determination 2015 (‘the 2015 Determination’). The Appendix to this decision contains a table which compares the text of the 2012 and 2015 Determinations.
[12] Exhibit R2, [7].
On 28 May 2012, the new national business name scheme commenced, and the Respondent assumed responsibility for the national administration of business names from the previous State and Territory agencies.
Business Names Registration Act 2011 (Cth)
The objects of the BNR Act are set out in section 16:
Objects of this Act
(1)The objects of this Act are:
(a)to ensure that if an entity carries on a business under a business name, those who engage or propose to engage with that business can identify the entity and how the entity may be contacted; and
(b)to remove the inconvenience caused by the registration of business names under the law of more than one jurisdiction within Australia.
(2)These objects are achieved by requiring an entity that intends to carry on a business under a business name to register the business name on a nationally established and maintained register of business names.
(3)The objects of the Act are also:
(a)to avoid confusion by ensuring that business names that are identical or nearly identical are not registered; and
(b)to ensure that business names that are undesirable (for example, because they are offensive) are not registered; an
(c)to ensure that business names that should be restricted for any other reason (for example, because they might mislead consumers) are not registered.
(4)The objects mentioned in subsection (3) are achieved by rules dealing with the availability of business names.
Section 17(1) states that the registration of a business name does not affect the rights of any entity in relation to the business name, or a word or expression that constitutes, or is included in it, while section 17(2) relevantly provides that an entity does not acquire property in a business name, or in a word or expression that constitutes or is included in a business name, because it is registered under the BNR Act.
The BNR Act makes it an offence to carry on business under a name which is not registered. However, exemptions apply where an individual carries on business in his or her own name, or where a corporation carries on business under its name.[13]
[13] The BNR Act, s 18.
Section 18 makes it an offence for an entity to carry on a business under a name, and the name is not registered to the entity as a business name on the Business Names Register (‘the BNR’).
The provisions dealing with registration of business names are in contained in sections 24-26 of the BNR Act. Under section 22, the Respondent is charged with the responsibility for establishing and maintaining the BNR, which may be kept ‘in any form that ASIC considers appropriate’. Section 23 provides that an entity that intends to carry on a business under a name can apply to the Respondent for the business name to be registered.
Section 24 of the BNR Act relevantly provides:
Decision to register a business name to an entity
(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.
Section 25 prescribes the circumstances in which a business name is ‘available’ to an entity for the purposes of section 24(1)(c). Section 25(a) of the BNR Act relevantly provides:
Is a business name available to an entity?
A business name is available to an entity if:
(a)the name is not identical or nearly identical to:
(i)…
(ii)a name that is reserved or registered under the Corporations Act 2001 for another body; or
(iii)…
Section 26 of the BNR Act provides that the Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical to another name.
Section 3 of the BNR Act defines the terms identical and nearly identical as follows:
identical: means identical under rules made by the Minister under section 26.
nearly identical: means nearly identical under rules made by the Minister under section 26.
Business Names Registration (Availability of Names) Determination 2015
The rules referred to in section 26, and in the definitions of ‘identical’ and ‘nearly identical’, are contained in the Business Names Registration (Availability of Names) Determination 2015 (‘2015 Determination’).
Section 4(1) of the 2015 Determination provides that, for section 26 of the BNR Act, the rules for determining whether a business name is identical or nearly identical to another name are set out in Part 2. Part 2 of the 2015 Determination has two Divisions, the application of which depends on whether the business name in question is to be compared with another name other than a company name (Division 1), or with a company name (Division 2).
Section 7 of Division 2 relevantly provides:
Division 2 Rules for determining whether business names are identical or nearly identical to company names
Determining if business names are identical or nearly identical to company names
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.
Note Part 1 of Schedule 6 to the Corporations Regulations 2001 sets out matters to be disregarded in comparing one name with another for the purposes of paragraph 147 (1) (a) or (b) or 601DC (1) (a) or (b) of the Corporations Act 2001.
As set out in section 7 of the 2015 Determination, the rules in Part 1 of Schedule 6 to the Corporations Regulations 2001 (‘the Regulations’) also need to be applied in determining whether names are identical or nearly identical. The Regulations relevantly provide that, when comparing one name with another, the following matters are to be disregarded:
(a)the use of the definite or indefinite article as the first word in one or both of those names;
(b)the use of 'Proprietary', 'Pty', 'Limited', 'Ltd', 'No Liability' or 'NL' in one or both of the names;
(c)whether a word is in the plural or singular number in one or both names;
(d)the type, size and case of letters, the size of any numbers or other characters, and any accents, spaces between letters, numbers or characters, and punctuation marks, used in one or both names;
(e)the fact that one name contains a word or expression in column 2 of the following table and the other name contains an alternative for that word or expression in column 3:

Column 1
Item Column 2
Word or expression Column 3
Alternative

1

Australian

Aust

2

Company

Co or Coy

3

Co

Company or Coy

4

Coy

Company or Co

5

Number

No

6

And

&

7

Incorporated

Inc

8

Corporation

Corp

9

Australian Company Number

ACN

Applications for Registration of Business Names

Section 66 of the BNR Act provides that the Respondent can use computer programs for any purposes for which it may make decisions under the BNR Act, and a decision made by a computer program is taken to be a decision made by the Respondent:
ASIC may arrange for use of computer programs to make decisions
(1)ASIC may arrange for the use, under ASIC's control, of computer programs for any purposes for which ASIC may make decisions under this Act or the Transitional Act, other than a decision under subsection 57(6) of this Act …
(2)A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by ASIC.
Review of decisions to register a business name
If the Respondent registers a business name to an entity, an entity ‘in relation to whom there is a real risk of substantial detriment because of’ such registration may seek review of that decision (section 56, Item 1 in column 1 of the table). Such a reviewable decision is then the subject of internal review by the Respondent under section 57 of the BNR Act. Upon such review, the Respondent must either affirm or vary the decision or set it aside and make a substituted decision under section 57(6) of the BNR Act.
Section 58 provides for an application for review by the Tribunal of decisions made or taken to have been made by the Respondent under section 57 of the BNR Act:
(1)An application may be made to the Administrative Appeals Tribunal for review of a decision made or taken to have been made by ASIC or the Minister under section 57.
(2)The application may be made by any entity that could have lodged an application under subsection 57(1) in relation to the decision in relation to which the decision under section 57 was made or taken to have been made.
(3)An application may be made to the Administrative Appeals Tribunal for review of one of the following decisions made personally by the Minister:
(a)a refusal to determine under subsection 27(2) that a business name of a kind that is undesirable is available to an entity;
(b)the revocation of a determination made under subsection 27(2) that a business name of a kind that is undesirable is available to an entity;
a determination made under subsection 28(2) that a word or expression specified in the determination is restricted in relation to a specified entity or specified business unless a condition or conditions specified in the determination are met.
ISSUE FOR DETERMINATION
The issue to be determined is whether the Disputed Business Name is ‘identical or nearly identical’ (within the meaning of the BNR Act and the 2015 Determination) to the company name “Elevate Education Pty Ltd” registered to the Applicant (‘the Company Name’) and therefore not relevantly ‘available’ for the purposes of section 24(1)(c) of the BNR Act.
EVIDENCE BEFORE THE TRIBUNAL
The Respondent provided evidence in the form of an affidavit sworn by Amanda McInnes, an EL1 Analyst, Program Delivery, Australian Business Registry Service, of the Australian Taxation Office.[14]
[14] On 4 April 2021, the Commissioner of Taxation was appointed as the Commonwealth Registrar (the Registrar) of the Australian Business Registry Services (ABRS) under the BNR Act and other registry related legislation. The ABRS, once fully established, will bring together ASIC's 31 business registers and the ATO's Australian Business Register onto a new modern registry system, to be managed by the ATO: Exhibit R2, [2].
The Respondent has established an online application process through which entities can apply to register a business name. Entities can use the Australian Government Business Registration Service (‘the Business Registration Service’), the Respondent’s online portal ‘ASIC Connect’ or private service providers. The Business Registration Service, ASIC Connect and private service providers link to the Respondent's computer systems.[15]
[15] Ibid, [12].
The Respondent has developed 14 programmed system rules that apply the business name availability rules set out in the BNR Act and the 2015 Determination. The Respondent’s computer systems perform the task of determining the availability of a proposed business name by applying the 14 programmed system rules.[16]
[16] Ibid, [15]. These system rules are published on ASIC's website, entitled "Business name availability tests". This information was last updated on 30 April 2014.
The Respondent has developed and published on its website a ‘check business name availability’ search function. A person seeking to register a business name can check the availability of the proposed name using this search function on ASIC Connect. When a search is completed, the system shows the availability of a proposed business name by the mechanism of a green, amber or red result, accompanied by text explaining the outcome. A green result means that the business name is available for registration. An amber result indicates that a decision on availability is required by an officer of the Respondent. A red result means that the business name is unavailable.[17]
[17] Ibid, [17].
The ‘check business name availability’ function also appears in the online business name application process with the same green, amber or red result. When a proposed name is identical or nearly identical to another registered business name or company name, or is otherwise not available, the programmed system rules provide for the automatic rejection of the name. The applicant receives a red result and the application for registration cannot progress any further. Of the applications which are not automatically rejected at this stage, the programmed rules are applied to obtain a conclusive green result for approximately 90% of the remaining applications for registration.[18]
CONTENTIONS
[18] Ibid, [18].
Applicant
The Disputed Business Name is confusingly similar to the Company Name. It is a name that might mislead consumers, because of its similarity with the Company Name, particularly taking into account that the target market for both the Applicant’s business and Elevated Learning’s business is the school sector of the education industry. Indeed, it has led to actual confusion with at least one of the Applicant’s customers being confused as to the source of a marketing email from the third party.[19]
[19] ASFIC, [4].

While the BNR Act was drafted to facilitate a high level of online service delivery, nowhere in the Explanatory Memorandum does it suggest that automated decision-making by computer be the sole means of determining registration of business names. Indeed, the Explanatory Memorandum expressly contemplates that there will be occasions when decisions will not be the result of an automated process.[20]
[20] Ibid, [7].
In interpreting a provision of the BNR Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.[21] The Explanatory Memorandum may be referred to in undertaking this task.[22]
1) The Disputed Business Name is ‘nearly identical’ to the Applicant’s name
[21] Ibid, [9]; Acts Interpretation Act 1901 (Cth) s15AA.
[22] Ibid; Ibid, s15AB.
The terms ‘identical’ and ‘nearly identical’ are separate concepts and the term ‘nearly identical’ should be interpreted having regard to the stated objects of the BNR Act.[23]
[23] Ibid, [10]; Swinburne & Macfarlane and Australian Securities and Investments Commission [2014] AATA 602; [2014] 144 ALD 397 at [124]; Stasiw v ASIC [2015] AATA 328 at [48]; George and Australian Securities and Investments Commission [2021] AATA 3615 at [105].
The question of what is ‘nearly identical’ is a question of fact to be informed by the objects of the BNR Act, particularly that which relates to the avoidance of confusion.[24]
[24] ASFIC, [11]; Stasiw v ASIC [2015] AATA 328 at [50].
The meaning of the term ‘nearly identical’ is not constrained by the 2015 Determination. Schedule 6 of the 2015 Determination is concerned only with ‘identical’ names and is not concerned with ‘nearly identical’ names.[25]
[25] Ibid, [12]; George and Australian Securities and Investments Commission [2021] AATA 3615 at [101]; A helpful analysis of the term ‘nearly identical’ is in Swinburne & Macfarlane and Australian Securities and Investments Commission [2014] AATA 602; [2014] 144 ALD 397 at [118] – [124].
Circumstances relevant to the consideration of the two names include:[26]
(a)the Applicant’s business and the Other party’s business are each in the education sector, and their target market is schools, and each business involves engagement with teachers;
(b)the Applicant has a well-established and extensive business reputation with trademark protection for its brand; and
(c)use of the Disputed Business Name by the Other party may involve breaches of section 18 of the Australian Consumer Law.
[26] Ibid, [14].
The similarity of the two names is likely to result in confusion for those who seek to deal with the businesses.[27]
[27] Ibid, [15].
Accordingly, the Respondent should have determined that the Disputed Business Name is ‘nearly identical’ to the Company Name, and the Disputed Business Name should not have been treated as being ‘available’ for the purposes of section 25 of the BNR Act.[28]
[28] Ibid, [16].
There are a number of Tribunal decisions concerning the operation of the BNR Act in relation to identical and nearly identical business names, and in particular the extent to which the Respondent may implement automated decision-making processes for determining whether names are available for registration under the BNR Act. The most recent decision is George and Australian Securities and Investments Commission (‘George’).’[29] Senior Member O’Connell was satisfied that the terms ‘identical’ and ‘nearly identical’ are separate concepts and that the term ‘nearly identical’ should be interpreted having regard to the stated objects of the BNR Act.[30] What is ‘nearly identical’ is a question of fact to be informed by the objectives of the BNR Act, especially avoiding confusion.[31] The Applicant contends that the approach taken in George is the correct approach and should be followed by the Tribunal.[32] The Respondent should have determined that the Disputed Business Name is ‘nearly identical’ to the Applicant’s name and that the Disputed Business Name should not have been treated as being ‘available’ for the purposes of section 25 of the BNR Act.[33]
2) The 2015 Determination is ultra vires and invalid
[29] [2021] AATA 3615.
[30] Ibid, [104].
[31] Ibid, [98].
[32] ASFIC, [17].
[33] Transcript of proceedings, 15 September 2022, 24.
In the alternative, the Applicant contends that the 2015 Determination is ultra vires as it purports to exhaustively define what is ‘nearly identical’ because:[34]
a)The 2015 Determination does not separately define ‘identical’ and ‘nearly identical’, which is what the empowering provision in the BNR Act authorises the Minister to make rules in relation to; or
b)The 2015 Determination is unreasonable as it produces absurd results.
[34] ASSC, [2].
The 2015 Determination, therefore, does not govern the Respondent’s assessment of whether the Disputed Business Name and the Company Name are nearly identical.[35]
[35] Ibid, [3].
As the two names are nearly identical on an ordinary reading of that phrase, the Disputed Business Name was not ‘available’, and the Respondent should not have registered it.[36]
[36] Ibid, [4].
a) The 2015 Determination’s definition of ‘identical or nearly identical’ is not authorised
The BNR Act empowers the Minister to make rules defining ‘identical’ and to make rules defining ‘nearly identical’. It does not empower the Minister to make rules defining ‘identical’ or ‘nearly identical’. By conflating two distinct concepts and purporting to make rules defining that composite phrase, the 2015 Determination does something that is not authorised by the BNR Act. That is ultra vires and invalid.[37]
[37] Ibid, [5].
The terms of the BNR Act make it clear that the descriptors ‘identical’ and ‘nearly identical’ are distinct concepts for three reasons.[38] First, the two terms are separately defined. There are separate entries for ‘identical’ and ‘nearly identical’ in the Dictionary to the BNR Act contained in section 3. According to the Dictionary, ‘identical’ ‘means identical under rules made by the Minister under section 26.’ ‘Nearly identical’ ‘means nearly identical under rules made by the Minister under section 26.’ There is no definition for the term ‘identical or nearly identical’.[39]
[38] Ibid, [7].
[39] Ibid, [8].
Secondly, section 26 of the BNR Act which empowers the Minister to make delegated legislation guiding the determination of what is ‘identical’ or ‘nearly identical’ treats the two as distinct terms. The two terms are separated by a conjunction that is not in bold italics. This indicates that these are two separate concepts, not a single bundled-up concept or composite phrase.[40]
[40] Ibid, [10].
Thirdly, if the legislature had intended there to be a single set of rules disqualifying a business name from registration on the grounds of similarity, it would have been unnecessary to include the words ‘or nearly identical’ in section 25, or to define the concept of ‘nearly identical’. It could have simply used the word ‘identical’ and allowed the Minister to create rules defining what that word meant.[41] This is the approach taken in section 147 of the Corporations Act. Section 147(1)(a) provides:
(1)A name is available to a company unless the name is:
(a)identical (under rules set out in the regulations) to a name that’s reserved or registered under this Act for another body.
[41] Ibid, [11].
Part 1 of Schedule 6 to the Regulations then provides a set of rules for ascertaining whether names are identical.[42] The fact that the BNR Act, which was introduced after the Corporations Act, does not take the same approach and instead adds the phrase ‘nearly identical’, and the conjunction ‘or’, strongly suggests that what the legislature contemplated was not a single set of rules, but instead two sets of rules for each distinct concept of ‘identical’ and ‘nearly identical’.[43]
[42] Ibid. [12]. These are the rules the 2015 Determination purports to apply to a comparison of a business name and a company name to ascertain whether they are “identical or nearly identical”.
[43] Ibid, [13].
The 2015 Determination does not include rules defining ‘identical’ or defining ‘nearly identical’, as authorised by section 26 of the BNR Act. The concepts are not dealt with separately. Instead, the 2015 Determination purports to identify a third concept, the composite phrase ‘identical or nearly identical’.[44] The BNR Act does not permit the Minister to create rules defining what is ‘identical or nearly identical’. Part 2 of the 2015 Determination therefore does something that is not contemplated or permitted by the BNR Act. It is therefore ultra vires and invalid.[45]
[44] Ibid, [14].
[45] Ibid,[15].
b)The 2015 Determination is unreasonable
Even if the 2015 Determination were taken to define ‘nearly identical’ in a manner that was within the scope of what is authorised by the BNR Act, it would nevertheless be ultra vires because the rules it purports to create are unreasonable.[46]
[46] Ibid, [16].
Read literally, the 2015 Determination leads to absurd results. On any common-sense view, the names ‘Elevate Education’ and ‘Elevated Education’ are nearly identical. Only one letter distinguishes the names. Spoken aloud, the two names are even harder to distinguish. The absurdity of allowing them to co-exist in the face of legislation, which prevents the registration of names which are identical or nearly identical, to avoid confusion, is only further highlighted by the fact that the two businesses operate in the same sector.[47]
[47] Ibid, [17].
The fact that the rules in Part 2 of the 2015 Determination lead to results that clearly depart from a common-sense understanding of the phrase ‘nearly identical’ has repeatedly been remarked upon by the Tribunal.[48]
[48] Ibid, [18] citing Smith v Australian Securities and Investments Commission [2014] AATA 192; B & L Whittaker Pty Ltd v Australian Securities and Investments Commission [2014] AATA 302 at [16]; Decorative Imaging Pty Limited v Australian Securities and Investments Commission [2018] AATA 4668 at [21].
There is no textual indication in the BNR Act to suggest that the legislature contemplated that the Minister could create rules leading to absurd results.[49]
[49] Ibid, [19].
By section 66, the BNR Act does contemplate that the Respondent may use computer programs to make decisions under the Act. However, that permissive provision falls far short of authorising the Minister to write a formula for determining what is identical or nearly identical that produces absurd results. The 2015 Determination privileges convenience over reason.[50]
[50] Ibid, [20].
Creating a set of rules to define when two names are nearly identical, that does not encompass many instances of names that are nearly identical, is unreasonable. The 2015 Determination’s unreasonableness is such that it cannot have been intended to be within the scope of the empowering provision, section 26 of the BNR Act.[51]
[51] Ibid, [21].
One of the objects of section 16(3) of the BNR Act is to avoid confusion by ensuring that business names that are identical or nearly identical are not registered and ensuring that business names that might mislead are not registered. Subsection 16(4) states that the objects of subsection (3) are achieved by rules dealing with the availability of business names. The rules are meant to further those objects, but they do not do so: Williams v Melbourne Corporation[52] per Dixon J. If the 2015 Determination operates in such an absurd and unreasonable way that it does not further the purposes of the Act, then it is taken to be outside power.[53] The reasonableness enquiry is into the connection between the affect and terms of the subordinate legislation and its relationship with the purpose of the empowering legislation: South Australia v Tanner.[54] If it is so unreasonable and so disproportionate to the object of the Act and the empowering provision, then it is not something that the Parliament can be taken to have intended to authorise.[55]
[52] (1933) 49 CLR 142.
[53] Transcript of proceedings, 15 September 2022, 31.
[54] (1989) 166 CLR 161 at [12]; Transcript of proceedings, 15 September 2022, 32.
[55] Transcript of proceedings, 15 September 2022, 32.
The Executive has been on a mission to automate as much as it can and to achieve efficiency. It has done so by writing a set of rules that can be applied by computer. These rules depart from what the BNR Act is trying to achieve, including the avoidance of confusion and the avoidance of registering nearly identical names. Accordingly, the rules cannot be taken to be authorised by the empowering provision of the BNR Act.[56]
[56] Ibid.
The Applicant contends that the 2015 Determination as a whole is invalid or that it can be read down so that the rules in section 7 only apply to the situation of ‘identical’ and not to ‘nearly identical’ names, achieving a similar result as George. If the 2015 Determination does not define ‘nearly identical’, then the approach in George to the question of nearly identical should be adopted, namely that it is a question of fact informed by the objectives of the Act. The names ‘Elevate Education’ and ‘Elevated Education’ are nearly identical, and accordingly the name was not ‘available’, and should not have been registered.[57]
3) The Tribunal is not required to exercise judicial power or conduct judicial review of the 2015 Determination
[57] Transcript of proceedings, 15 September 2022, 33.
In determining what is the correct decision, the Tribunal must determine the relevant law to be applied. One of the legal questions it must decide it is whether the 2015 Determination was validly made pursuant to section 26 of the BNR Act. It is not controversial that the Tribunal can consider the validity of delegated legislation for the purposes of guiding itself as to the legally correct decision.[58] The validity of subordinate legislation is a question of law and only a court can rule upon it authoritatively. The Applicant is not seeking a declaration overturning the 2015 Determination. It contends that the Tribunal must consider, without authoritatively determining, the validity of the 2015 Determination as a step in its reasoning in making the correct decision on review.[59] This is not a binding legal conclusion, but it is a matter that arises for the Tribunal to decide when it is determining by what rules it is bound when it is deciding the question of whether the Disputed Business Name should have been registered or not.[60]
Respondent
[58] Transcript of proceedings, 15 September 2022, 24-25.
[59] Transcript of proceedings, 15 September 2022, 25; Re Adams v the Tax Agents Board (1976) 1 ALD 251 at 257 Brennan J; Saitta at [103] Weinberg J.
[60] Transcript of proceedings, 15 September 2022, 28.
1) The Respondent correctly registered the Disputed Business Name
The Respondent submits that it was required to register the Disputed Business Name because the requirements set out in section 24(1) were satisfied. In particular, at the time the application was made with the Respondent, the Disputed Business Name was ‘available’ to be registered. The test applied to determine whether a business name is ‘available’ is whether the proposed name is “identical or nearly identical” to other registered business, company or other names. The rules set out in the 2015 Determination establisha clear prescriptive process that must be applied when undertaking the assessment of whether a business name is ‘identical or nearly identical’. In the present case, when the test is applied and the assessment prescribed by the rules is completed, it is clear that the Disputed Business Name is not ‘identical or nearly identical’ to the Company Name, and therefore it was ‘available’ to be registered.[61]
[61] RSFIC, [38].
The plain words of the 2015 Determination and previous Tribunal decisions make clear that the ‘identical or nearly identical’ test is highly prescriptive and exhaustive and does not leave room for discretion or application of the ordinary meaning of the terms ‘identical’ and ‘nearly identical’. The Applicant’s attempt to import a test of whether a business name is misleading or confusingly similar to a company name should not be accepted, as it has no support in the plain words of the BNR Act and the 2015 Determination.[62]
[62] Ibid, [55].
The Respondent submits that the 2015 Determination applies as follows:[63]
[63] Ibid, [39].
1)The first step is to compare the two names in accordance with the rules for determining whether a business name is “identical or nearly identical” to a company name is set out in section 7 of the Determination. It states:
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. (emphasis added).
2)The second step – is to disregard matters set out in Part 1, paragraph 6101 of Schedule 6 of the Corporations Regulations when comparing one name with another. Disregard:
a)    the use of the definite or indefinite article as the first word in one or both of those names;
b)    the use of 'Proprietary', 'Pty', 'Limited', 'Ltd', 'No Liability' or 'NL' in one or both of the names;
c)    whether a word is in the plural or singular number in one or both names;
d)    the type, size and case of letters, the size of any numbers or other characters, and any accents, spaces between letters, numbers or characters, and punctuation marks, used in one or both names;
e)    the fact that one name contains a word or expression in column 2 of the following table and the other name contains an alternative for that word or expression in column 3:

Column 1 Item
Column 2

Word or expression
Column 3 Alternative

1 Australian Aust

2 Company Co or Coy

3 Co Company or Coy

4 Coy Company or Co

5 Number No

6 And &

7 Incorporated Inc

8 Corporation Corp

9 Australian Company Number ACN
3)The third step after applying the elements set out in the rules of Part 1, Paragraph 6101 of Schedule 6 requires the decision maker to compare the business name with the company name:

Elevated Education

Elevate Education

After disregarding the use of ‘Pty Ltd’, also after crossing out the word ’Education’, which is an identical word used in both names, there remain two words ‘Elevated’ and ‘Elevate’.
Neither the rules under section 7 of the 2015 Determination, nor the rules set out under Part 1, paragraph 6101 of Schedule 6 require any further assessment. The two words, ‘Elevated’ and ‘Elevate’, while only slightly different, are not the same. Accordingly, the Disputed Business Name is not ‘identical or nearly identical’ to the Company Name.[64]
[64] Ibid, [39.5].
Due to the prescriptive application of the BNR Act and the 2015 Determination, there are instances where registration of business names occur that would (if common sense applied) be deemed similar. However, as other differently constituted Tribunals have determined, the relevant test is whether the proposed business name is ‘identical or nearly identical’ as determined by applying the Act and the 2015 Determination.[65]
[65] Ibid, [40].
The terms ‘identical’ and ‘nearly identical’ appear as separate concepts in so far as they are both defined in section 3 of the Act. However, the Act is clear that the 2015 Determination sets out how the terms should be interpreted. The Applicant’s assertion that the terms are separate concepts and should be interpreted by having regard to the objects of the Act and not constrained by the rules of the 2015 Determination is misguided.[66]
[66] Ibid, [41].

In response to the Applicant’s contention that the terms are not to be constrained by the 2015 Determination, the Respondent asserts that Part 2 of the 2015 Determination provides a prescriptive and complete approach as to how both terms are to be interpreted and applied. The prescriptive application of the rules is clear from the wording of section 7 of the 2015 Determination. The terms of ‘identical’ and ‘nearly identical’ are not informed by any further extraneous consideration.[67]
[67] Ibid, [42],
The Applicant’s contention that the Disputed Business Name is misleading or causes confusion seeks to import a test that is not borne out by the statutory language. One cannot supplant the words of the Act and 2015 Determination by reference to an objects clause, or to extrinsic material such as the Explanatory Memorandum.[68]
[68] Ibid, [47]; ASFIC, [4]-[8].
The objectives of the Act are set out under section 16. One of these objects is to avoid confusion by ensuring that business names that are ‘identical or nearly identical’ are not registered.[69] Subsection 16(4) makes clear that the objectives in subsection (3) are achieved by the prescriptive application of the rules in the 2015 Determination dealing with the availability of business names.[70] The objective to prevent confusion is achieved and constrained by the rules applied in the 2015 Determination.[71]
[69] The BNR Act, s 16(3)(a).
[70] That includes stepping through the requirements of ss 24, 25 and 26 of the Act.
[71] RSFIC, [48].
The Tribunal’s decision in George should not be followed. The Tribunal’s reliance upon the ‘alternative approach’ in Swinburne & Macfarlane and Australian Securities and Investments Commission[72] and Stasiw and ASIC[73] ignores the amendments to the 2012 Determination.[74] In coming to its conclusion, the Tribunal incorrectly conflated the objects of the statute with the correct statutory test that it should have applied. The task of interpretation should have started and ended with the language of the statute and the 2015 Determination.[75]
[72] (‘Swinburne’) [2014] AATA 602; [2014] 144 ALD 397.
[73] (‘Stasiw’) [2015] AATA 328.
[74] Transcript of proceedings, 15 September 2022, 45.
[75] RSFIC, [53].
2) The Tribunal has no jurisdiction to review the 2015 Determination
The Applicant’s contention that the 2015 Determination is ultra vires has no proper foundation in law.[76]
[76] RSR, [2].
The Tribunal has no jurisdiction to review the 2015 Determination for the following reasons:[77]
[77] Ibid, [3].
a)There is no enactment which gives the Tribunal the power to review the 2015 Determination;
b)The application before the Tribunal is to review a discrete decision of the Respondent, not a decision of the Minister to make a legislative instrument;
c)The 2015 Determination is a legislative instrument. The Tribunal has no jurisdiction to review a legislative instrument. That is a judicial review function and would be an exercise of judicial power, not administrative power, which is beyond the Tribunal’s jurisdiction.
a) There is no enactment which gives the Tribunal the power to review the 2015 Determination
The Tribunal has no inherent jurisdiction. The limits of its jurisdiction are prescribed by section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).[78]
[78] Ibid, [5].
Section 58 of the BNR Act is the source of the Tribunal’s power to review a decision made under that Act. It does not refer to a decision of the Minister to make a legislative instrument under section 26 as being a decision the Tribunal has jurisdiction to review.[79]
[79] Ibid, [11].
Accordingly, the decision to make the 2015 Determination is not a ‘reviewable decision’ and the Tribunal does not have the power to review it under section 58 of the BNR Act. As there is no enactment giving the Tribunal such power of review, it does not have jurisdiction to review the 2015 Determination.[80]
[80] Ibid, [12].
b) The application before the Tribunal is limited to a review of the Reviewable Decision
Section 29 of the AAT Act permits an application to be made to the Tribunal for review of ‘a decision’ and requires that application to meet certain conditions, including that it must contain a statement of the reasons for the application.
The Applicant’s application was for a review only of the Respondent’s decision to register the Disputed Business Name. It did not seek a review of the Minister’s decision to exercise the power under section 26 of the BNR Act to make the 2015 Determination. Consequently, there is no application before the Tribunal to review the decision to make the 2015 Determination and the Tribunal has no jurisdiction to review ‘a decision’ when no application to review such a decision has been made.[81]
[81] Ibid, [15].
c) The Tribunal has no power to review a legislative instrument
The making of the 2015 Determination was a legislative act, not an administrative act.[82] It constituted delegated legislation made by Parliament delegating its power to the Minister.[83]
[82] Ibid, [17]; for example, Marjorie Grace Jenkin and Repatriation Commission [1997] AATA 50 at [42].
[83] Ibid.
Being of a legislative character, not an administrative character, the Tribunal has no jurisdiction to review the validity of the 2015 Determination. As a merits review body, not a Chapter III court, the Tribunal cannot exercise judicial review powers.[84] Consequently, the Tribunal has no jurisdiction to review the 2015 Determination.[85]
3) The Tribunal cannot give effect to a legal opinion it may form as to the validity of the Determination
[84] Ibid, [20]; for example, Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 151 at [12]-[16]; Shi v Migration Agents Registration Authority (2007) 158 FCR 525 at [35].
[85] Ibid, [21].
The Tribunal can form an opinion for the purposes of determining whether it has jurisdiction and for the purposes of ensuring that it acts within its jurisdictional parameters. However, it cannot give legal effect to its opinion.[86] The Applicant asks the Tribunal to come to a legal conclusion as to the validity of the 2015 Determination and give it substantive legal effect through setting aside the Respondent’s decision that the Disputed Business Name be registered.[87] This is seeking to determine not only the bounds of the Tribunal’s jurisdiction or to ensure it acts within the law, but to ask it to form an opinion about the validity of the 2015 Determination for the purpose of quelling a legal controversy between the parties.[88] To do so would be an unconstitutional exercise of judicial power.
[86] Re Adams, Brennan J.
[87] Transcript of proceedings, 15 September 2022, 50.
[88] Citta Hobart Proprietary Limited v Cawthorn [2022] HCA 16 at [24].
If the 2015 Determination is invalid, it is unclear what consequences will follow. If there are no valid rules due to the invalidity of the 2015 Determination, then the names cannot be ‘identical or nearly identical’ because it is the rules which prescribe when names are so. There is no other definition that would import some other rule-based regime to determine whether names are ‘identical or nearly identical.’[89] As the definitions are exhaustive, the decision would have to be affirmed because there would be no rules to determine whether the names are “identical or nearly identical.”[90]
[89] Transcript of proceedings, 15 September 2022, 46-47.
[90] Transcript of proceedings, 15 September 2022, 47.
The Tribunal should affirm the decision under review as each of the statutory preconditions for registration of a business name under section 24 of the Act are satisfied.
CONSIDERATION AND REASONS
1) Is the Disputed Business Name ‘identical or nearly identical’ to the Company Name such that it was not ‘available’ to be registered on the BNR?
The Applicant’s primary contention is that this Tribunal should apply the decision in George and find that the Disputed Business Name and the Company Name are ‘nearly identical’, and that the Respondent should not have registered the Disputed Business Name. The Respondent contends that the reasoning in George should not be followed because the Tribunal incorrectly concluded that ‘identical’ and ‘nearly identical’ are separate concepts and should be determined as questions of fact, relying on the reasoning in Swinburne and Stasiw that were concerned with the interpretation of the 2012 Determination.[91]
[91] Transcript of proceedings, 15 September 2022, 45.
For the reasons that follow, the Tribunal accepts the Respondent’s contention that the reasoning in George should not be followed. The application of the statutory test in the BNR Act and the rules contained in the 2015 Determination support a finding that the Disputed Business Name was ‘available’, and it was therefore correctly registered by the Respondent on the BNR.
In the following paragraphs, the Tribunal has reviewed the authorities in relation to the interpretation and application of the statutory test in the BNR Act and the rules in the 2015 Determination for assessing whether two names are “identical or nearly identical”. It finds that the weight of authority supports a finding that the BNR Act and the rules in the 2015 Determination establish a prescriptive regime, and the Respondent has no discretion to refuse registration of a business name if it meets the legislative requirements in section 24, including that the name is ‘available’ having applied the relevant rules in the 2015 Determination for assessing whether the names are ‘identical or nearly identical’. As rule 7 of the 2015 Determination prescribes that business names and company names will only be ‘identical or nearly identical’ when they are exactly the same after comparing the two in accordance with the Regulations, then it is only in these circumstances that a name is not ‘available’ to be registered. Whereas this may result in the registration of a business name that is so similar to another registered name that it might confuse or mislead, this is not the test that is prescribed by the BNR Act and the 2015 Determination.
Authorities involving the application of the 2012 Determination
Swinburne
The Applicant relies on the Tribunal’s analysis in Swinburne and Stasiw, the reasoning of which was adopted by the Tribunal in George. Both Swinburne and Stasiw involved the application of the 2012 Determination.
In Swinburne, the issue for the determination by the Tribunal was whether the business names ‘Melbourne Child Psychology’ and ‘Melbourne Child Psychology Services’ were properly registered by ASIC. Deputy President Alpins considered the legislative context and the wording of rules 5(1) and 6(1) of the 2012 Determination. She determined that although these Rules were ‘prescriptive’, they were not ‘exhaustively determinative’, and merely required that certain matters be taken into account in making the requisite comparison:[92]
‘However, the definitions beg the question – what do the rules provide? It is important to have regard to the prefatory words employed in both s 5(1) and s 6(1) of the Determination:
“When comparing a business name with another name ... to determine whether the names are identical or nearly identical”. [Emphasis added.]
In my opinion, those prefatory words (see also s 26) indicate that the determination of whether a business name is identical or nearly identical to another name for the purposes of s 25(a) of the Act requires, as would be understood according to ordinary usage, that an exercise of comparison be undertaken. It is necessary to ascertain the points of sameness, similarity and difference between the two names in order to determine whether the names in question are identical or nearly identical. The verb “compare” is relevantly defined in the Macquarie Dictionary to mean “to note the similarities and differences of” and “to bring together for the purpose of noting points of likeness and difference” and in the Shorter Oxford English Dictionary to mean, amongst other things “consider or estimate the similarity or dissimilarity of (one thing or person to another esp. in quality or detailed nature, two things or persons)”.
Furthermore, and more significantly, in my opinion it is clear from the express terms of ss 5(1) and 6(1) that those rules are of a prescriptive nature and are not, as ASIC contends, exhaustively determinative of the question of whether names are “identical or nearly identical”. The rules merely require that certain matters be taken into account in making the requisite comparison.’
[92] Ibid, [58]-[59].
Based on this reasoning, the Deputy President rejected ASIC’s contention that ‘identical or nearly identical’ was a composite phrase,[93] and found that the terms ‘identical’ and ‘nearly identical’ had different meanings based on their ordinary usage:[94]
‘I accept the applicants’ submission that the rules retain the ordinary meaning of the terms “identical” and “nearly identical”, read in context, and reject ASIC’s submission that the dictionary meanings of those terms are irrelevant. The express terms of the rules do not operate so as to displace those meanings (see Manly Council v Malouf (2004) 61 NSWLR 394 at 396-7). It therefore remains necessary to consider the meaning of the terms “identical” and “nearly identical” in the context in which they are used …’
[93] Ibid, [64].
[94] Ibid, [62].
The Deputy President however accepted that the language of rule 6(2) of the 2012 Determination which stated that a ‘business name is identical or nearly identical to another name if… it may be pronounced the same as the other name’ by contrast showed an intention that the Rule was intended to be exhaustively determinative:[95]
By way of contradistinction, the terms of s 6(2) of the Determination, which provides that “[a] business name is identical or nearly identical to another name if ... it may be pronounced the same as the other name” (emphasis added), evinces an intention that the existence of such aural identity be exhaustively determinative of the question of whether names are identical or nearly identical. In my view, if the legislature had intended that ss 5(1) and 6(1) should be similarly determinative, their terms would have been expressed accordingly.
[95] Ibid, [63].
Stasiw
In Stasiw, the applicant registered the company name Solar Repairs Pty Ltd in 2003. In 2013, an application was made to ASIC to register the business name ‘Solar Repairs Perth’ and it was registered on 9 October 2013. A company controlled by the applicant then registered the business name ‘Solar Repairs’ on 13 October 2013. The issue for the Tribunal was whether this business name was ‘identical or nearly identical’ with the company name registered some 10 years previously.
In concluding that the business name should not have been registered, Deputy President Nicholson relied upon the opening words in rule 7 of the 2012 Determination, ‘when comparing a business name…’, to find that a comparison must be made between the two:[96]
‘It is apparent from both section 7 in Division 2 of the Determination and the opening words of Part 1 of Schedule 6 of the Corporations Regulations that what is required is a comparison to be made between the Disputed Business Name and the Company Name. However, in the case of a company name there is no statutory provision in relation to the matters to be taken into account in that comparison.
What is apparent, however, is that a comparison must be made. This appears from the opening words of s 7 of Division 2 of the Determination (‘when comparing a business name with a company name…’) and of Part 1 of Schedule 6 of the Corporation Rules (‘in comparing one name with another…). I am left in no doubt by these provisions that it is expected that there will be a comparison of the business name in issue with the company name in issue. This is simply an application of the statutory language used in those provisions. It is not an application of any subjectively derived purpose applicable to the legislation and rules.’
[96] Stasiw, [41]-[42].
The Deputy President considered that the terms ‘identical’ and ’nearly identical’ were separate concepts,[97] and applied the ordinary meaning of those terms based on the reasoning adopted in Swinburne.[98]
[97] Ibid, [48].
[98] Ibid, [50].
Boyce
In Boyce and Australian Securities and Investment Commission (‘Boyce’),[99] the Tribunal considered whether the business name ‘Rainbow Beach Plumbing’ is ‘identical, or nearly identical’ to the company name ‘Rainbow Beach Plumbing Services Pty Ltd’. Senior Member Cotter considered whether the rules set out in Part 2 of the 2012 Determination provide an exclusive and exhaustive code for determining whether names are ‘identical or nearly identical’, or whether there remains some residual scope to consider that question. Having considered the legislative intent, derived from a reading of the legislation as a whole, and the way in which the rules in the 2012 Determination are drafted, he concluded that ‘the rules are both exclusive and exhaustive, such that it is unnecessary, and unwarranted, to make inquiries beyond their scope’.[100] In relation to whether there is any residual scope outside the rules to consider whether names are ‘identical or nearly identical’, the Senior Member stated:[101]
‘[I]s there any residual scope, apart from the rules, for determining whether names are identical or nearly identical? I do not think so. The comparison envisaged by s 25(a) is to be undertaken by reference to the rules as set out in Part 2 of the Determination. Those rules are exclusive (by reason of the legislative intent signalled by s 16(4)) and exhaustive (by reason of the definitions in s 3 and the drafting of the rules, with their deliberate inclusion and exclusion of matters to be considered in undertaking the comparison)’
[99] [2015] AATA 768.
[100] Ibid, [34].
[101] Ibid, [47].
The Senior Member remarked that the approach adopted by the Tribunal in Swinburne ‘conflates the quite separate and discrete objects of the legislation’ and ‘introduces additional, unwarranted and unnecessary considerations to the comparison process provided for by the legislation.’[102] Furthermore, by widening the test to deal with matters beyond the rules in the 2012 Determination, the approach in Swinburne ‘diminishes the efficacy and efficiency of the automated online systems that ASIC has put in place to administer the scheme.’[103]
[102] Ibid, [54]-[55].
[103] Ibid, [56].
Authorities involving the application of the 2015 Determination
In July 2015, the Minister introduced the 2015 Determination which replaced the 2012 Determination. The 2015 Determination inserted a new rule 5A and made amendments to other rules. Significantly, the words ‘when comparing’ were removed from the text of rules 5(1), 6(1) and 7 (see Appendix).
Perth Martial Arts
In Perth Martial Arts Academy v Australian Securities and Investments Commission (‘Perth Martial Arts’),[104] the Applicant contended that the business name ‘Perth Martial Arts Centre’ was identical or nearly identical to the business name it held, being ‘Perth Martial Arts Academy’. The Tribunal held that it was not. Senior Member Evans commenced her consideration by observing:[105]
‘Unfortunately for the Applicant, whether the two business names are identical or nearly identical is not simply a matter of common sense based on a simple comparison of the extent of the similarities between two business names. If one were to ask a person on the street whether the business names Perth Martial Arts Academy and Perth Martial Arts Centre were identical or nearly identical, they may very well agree that they were. The approach that is required to be taken when comparing business names under the BNR Act and the Determination is substantially narrower than such a common sense approach and is constrained by ASIC having a lack of discretion under the BNR Act and the Determination.’
[104] [2018] AATA 3664.
[105] Ibid, [31]-[32].

Senior Member Evans accepted the Respondent’s submission that the correct approach to interpreting the BNR Act and the 2015 Determination was that adopted in Boyce: that the rules set out in the Determination were ‘both exclusive and exhaustive, such that it is unnecessary, and unwarranted, to make enquiries beyond their scope’.[106] In her opinion, this approach is most ‘consistent with the language and purpose of all the provisions of the statute’.[107]
[106] Ibid, [33].
[107] Ibid, [36].
Decorative Imaging
In Decorative Imaging Pty Limited and ASIC (‘Decorative Imaging’),[108] the applicant sought to register with ASIC the business names ‘Deco’ and ‘Deco Australia’. ASIC refused to register the proposed business name ‘Deco’ on the basis that the name is identical or nearly identical to the name of a registered company ‘De.Co Pty Ltd’. It also refused to register the proposed business name ‘Deco Australia’ on the basis that the name is identical or nearly identical to the registered business name ‘Aus Deco’. Deputy President Hanger identified the issue for the Tribunal’s determination as whether the legislative regime creates a prescriptive code for deciding when names are ‘identical or nearly identical’, or whether the decision maker has a discretion to undertake a common-sense comparison of the similarities between the two names. He found that the regime does not permit this exercise of discretion:[109]
‘The issue in this case is whether the decision maker in determining whether two business names are identical or nearly identical has a discretion to apply common-sense based on a simple comparison of the extent of the similarities between the two business names or whether the legislative scheme provides a code for such a determination to be made.
The BNR Act does not appear to encourage discretion. It is prescriptive. Under section 24(1) ASIC must register the business name if the business name is available and certain other formalities are complied with.
The term “identical” is defined as meaning “identical under rules made by the Minister”. The Minister has made the rules. The rules are prescriptive. Section 5A of [the 2015 Determination] provides that the name is identical or nearly identical “if, and only if…”. Section 5 of [the 2015 Determination] specifies that matters “are to be disregarded”. It does not use the word “may”. Section 6 of the [the 2015 Determination] uses the phrase “a word ... is to be taken to be the same ...”.
These are not words that give a decision maker a discretion. […]
While the approach that I have adopted will at times lead to results that a decision maker, if not bound by the prescriptive provisions of the BNR Act would not make, it cannot be said to breach rules of statutory construction as explained by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28 at [69]. The rigid and prescriptive provisions of the Act are clear and are consistent with the clear intention of establishing an automatic system of registration to simplify and unify registration of business names.’
[108] [2018] AATA 4668.
[109] Ibid, [16]-[21] (emphasis in original).
Hazeldine
In Hazeldine and ASIC (‘Hazeldine’),[110] the applicant contended that ASIC should not have registered the disputed business name ‘Northern Beaches Tutoring Services’ because it was similar to the business name she held ‘Northern Beaches Private Tutoring Service’. The Tribunal found that the business names were not identical and therefore the disputed business name was ‘available’ for registration.
[110] [2019] AATA 366.
Deputy President Cowdroy reviewed the Tribunal’s decisions to that point in relation to the operation of legislative regime. He concluded that it constitutes a code which does not permit the exercise of discretion in relation to whether names are ‘identical or nearly identical’.[111]
‘The legislative framework established by the BNR Act constitutes a complete code with respect to applications for registration of business names. Once the program has determined the availability of a new business name, and, provided the entity has an ABN and has paid the registration fee, it follows that the name is available to the entity making the application and ASIC has no discretion to refuse registration. This conclusion follows from the objects of the Act, from s 23, s 24 and s 26 therein, and from the rules set out in the Determination.’
[111] Ibid, [41].
The Deputy President referred to criticisms that have been directed at this approach, and stated that these were based on a misunderstanding of the purpose of the legislative regime:
‘Such criticism, it is respectfully suggested, is predicated upon a misunderstanding of the purpose of the legislation. The legislative scheme introduced by the BNR Act was intended by Parliament to displace, as far as possible, subjective considerations as to the identity or near identity of names, and to introduce instead an objective, computer-driven system for the registration of business names, regardless of anomalies that may result. The legislation was introduced to achieve nationwide uniformity and to cope with the anticipated large volume of applications for registration of business names. The use of computer programs is essential to the operation of the system introduced by the BNR Act, a fact clearly envisaged by its proponents.’[112]
[112] Ibid, [43].
Australian Appaloosa
In Australian Appaloosa Association Ltd and Australian Securities & Investments Commission (‘Australian Appaloosa’),[113] a member of the Australian Appaloosa Association Ltd, applied to register two business names ‘Appaloosa Association of Australia’ and ‘Appaloosa Australia’. Both names were registered by ASIC. The Tribunal found that on the proper application of the legislative regime, the two names were not ‘identical or nearly identical’ to the company name and were available to be registered. Member Frost considered the Tribunal decisions to that date and concluded that there is no discretion or consideration in determining an application for the registration of a business name outside of the strict legislative regime established under the BNR Act. He noted that this is consistent with the approach in Boyce, followed by subsequent decisions of the Tribunal.[114]
Member Frost observed that a business name that meets the requirements must be registered by the Respondent, notwithstanding that its registration may mislead or confuse:
‘Having regard to the line of authorities from the Tribunal, it is clear that the BNR Act is a prescriptive regime and ASIC has no discretion to refuse registration of a proposed business name if it is determined to be available by the Business Names Register maintained by ASIC and has met all of the legislative requirements, including not having the exact same name as another entity. Accordingly, business names that might mislead and confuse, given the existence of similar business or company names, can be registered by ASIC pursuant to the BNR Act.[115]
…
The terms of the BNR Act and the Determination are highly prescriptive and provide ASIC with no discretion to refuse registration of a business name if all of the legislative requirements are met. Although one of the business names the subject of this review……plainly had the potential to mislead and confuse people regarding its standing in the equine industry and, as a consequence, the standing of the Applicant, under the legislative regime the Tribunal must apply, the Business Names are not ‘identical or nearly identical’ to the Applicant’s Company Name. Therefore, the Tribunal must affirm ASIC’s decisions to register both of the Business Names.’[116]
[113] [2019] AATA 2195.
[114] Ibid, [28].
[115] Ibid, [42].
[116] Ibid, [53].
George and ASIC
In George, the applicant was the manager of a community choir in the City of Casey in Victoria. She registered the business name, ‘Voices of Casey’, on 12 September 2018. In July 2020, a new choir was formed. On 5 August 2020, the business name ‘Voices of Casey Choir’ was registered with ASIC by a company associated with the former musical director of the Voices of Casey. The applicant lodged an application with ASIC seeking review of the decision to register the business name ‘Voices of Casey Choir’. ASIC affirmed the decision and the applicant sought review of the decision by the Tribunal.
Senior Member O’Connell reviewed the authorities to date in relation to the operation of the legislative scheme,[117] and observed:
‘The cases that have been decided by the Tribunal to date demonstrate a difference of view about the objects of the BNR Act. The cases that have decided that ASIC has no discretion under the BNR Act focus on the use of computers and the need to register a large volume of business names every year. The two cases that have decided that ASIC (and so the Tribunal on review) has some discretion are more concerned with the object of avoiding confusion by the registration of business names that are nearly identical.’
[117] Smith v Australian Securities and Investments Commission [2014] AATA 192 considered in George at [32]; B & L Whittaker Pty Ltd v Australian Securities and Investments Commission [2014] AATA 302 considered in George at [33]-[35]; Swinburne considered in George at [36]-[37, Stasiw considered in George at [38]-[41], Boyce considered in George at [43]-[45]; Perth Martial Arts considered in George at [46]-[48]; Hazeldine considered in George at [49]-[50] and Appaloosa considered in George at [51]-[53].
Before ‘considering which approach is the correct one’[118] the Senior Member considered the evidence in relation to how ASIC makes decisions to register business names.
[118] Ibid, [55].
The key paragraphs of the Tribunal’s decision are as follows:[119]
[119] Ibid, [101] and [105].
‘The statutory scheme sets out the objectives of the BNR Act. This includes providing a registration system so that those who engage or propose to engage with a business can identify the entity carrying on that business and how the entity may be contacted; but also to avoid confusion by ensuring that business names that are identical or nearly identical are not registered. The scheme also includes separate definitions of ‘identical’ and ‘nearly identical’ that refer to rules made under the Determination. But the Determination itself only indicates when names are identical, i.e. the same or deemed to be the same by s 6(1) or where it may be pronounced in the same way (s 6(2)). The Determination does not address the situation where names may be nearly identical. As noted by Deputy President Hack in B & L Whittaker Pty Ltd:
The Act, by s 25, introduces the notion of nearly identical but the Determination renders it otiose. One possibility is that the application of a value judgment is called for once the process of substituting the deemed identical expressions has taken place.
Although he declined to adopt such an approach, the exercise of such judgment is clearly a possibility although it is likely to be required in fairly limited circumstances. The way in which the rules have been applied by ASIC indicates that value judgments are in fact made. I also accept the statement by Deputy President Nicholson in Stasiw v ASIC that the terms ‘identical’ and ‘nearly identical’ are separate concepts and that ‘the question of what is ‘nearly identical’ is a question of fact to be informed by the objects of the BNR Act, particularly that which relates to the avoidance of confusion’.
…
…
…
In considering the application of the BNR Act and the Determination, I am persuaded that the terms ‘identical’ and ‘nearly identical’ are separate concepts and that the term ‘nearly identical’ should be interpreted having regard to the stated objects of the BNR Act. I am also persuaded that the intention of the legislative scheme, and the way in which it currently operates is that decisions will be made by humans and not computers in more complicated assessments.’
It is apparent from these passages, that the Senior Member was not satisfied that the 2015 Determination provides a prescriptive and exhaustive code for determining when two names are ‘identical or nearly identical’. Whereas ‘nearly identical’ is recognised as a separate concept in the BNR Act, it is not ascribed its own separate meaning in the 2015 Determination which references only ‘identical or nearly identical’. To address this, the Senior Member adopted the ‘alternative approach’ of Deputy President Alpins in Swinburne and Deputy President Nicholson in Stasiw, who sought to give meaning to the concept of ‘nearly identical’ according to the ordinary meaning of that term having regard to its context and legislative purpose expressed in the stated objects of the BNR Act.
With respect, the analyses of the Tribunal in Swinburne and Stasiw are of no relevance to the 2015 Determination as they involved the interpretation of the differently worded 2012 Determination. As outlined in [94] above, in Swinburne, Deputy President Alpins placed great weight on the words ‘when comparing’ in rules 5(1) and 6(1) of the 2012 Determination to support her finding that the decision-maker was required to engage in a comparison of the names with reference to the ordinary meaning of the terms ‘identical’ and ‘nearly identical’. The Deputy President found that rules 5(1) and 6(1) of the 2012 Determination were prescriptive, but not exhaustively determinative, because they merely required certain matters to be taken into account when undertaking the comparison of the names.
The words ‘when comparing’ are no longer included in rules 5(1) and 6(1) of the 2015 Determination (see Appendix). This indicates a legislative intention that the decision-maker is not required to compare names or engage in an independent assessment of whether names are identical or nearly identical and need only follow the prescriptive and exhaustive rules in the 2015 Determination to make this assessment. The different language in the 2015 Determination does not permit the exercise of discretion by the decision-maker to have regard to matters extrinsic to the rules, including the ordinary meaning of ‘nearly identical’ or a meaning that may be attributed to it with reference to the objectives of the BNR Act.
In Stasiw, Deputy President Nicholson relied on the opening words in rule 7 of the 2012 Determination ‘when comparing a business name …’ to find that a comparison was required to be made between the business name and the company name, and that ‘identical’ and ‘nearly identical’ were separate concepts which, as had been recognised in Swinburne, were to be attributed their ordinary meaning.
Rule 7 of the 2012 Determination stated:
When comparing a business name with a company name to determine whether the names are identical or nearly identical, the rules in Part 1 of Schedule 6 to the Corporations Regulations 2001.
(emphasis added)
Rule 7 of the 2015 Determination states:
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.
(emphases added)
The removal of the words ‘when comparing’ and the inclusion of the words ‘if, and only if’ in rule 7 indicate a legislative intention that the test in the 2015 Determination for whether a name ‘is identical or nearly identical’ is exhaustive, and it does not permit the importation of any other external considerations in making this assessment. The removal from the 2015 Determination of the discretion embodied in the words ‘when comparing’ and the insertion of the words ‘if and only if’ make it clear that the 2015 Determination is a prescriptive and exhaustive source of the test to determine whether a name is ‘identical or nearly identical’. It follows that the reasoning in Swinburne in relation to rules 5(1) and 6(1), and the reasoning in Stasiw in relation to rule 7 of the 2012 Determination, have no relevance to the application of the 2015 Determination.
Further, the ‘identical or nearly identical’ test in rule 7 of the 2015 Determination is only met if the business name is the same (not almost the same or very similar) after applying the Regulations. The prescriptive language of the 2015 Determination makes clear an intention that ‘identical or nearly identical’ is a composite phrase, and there is no differentiation to be made between the terms ‘identical’ and ‘nearly identical’ based on their literal or common-sense understanding.
The Tribunal’s finding that the language of the 2015 Determination is prescriptive and provides an exclusive and exhaustive code which does not permit the exercise by the decision-maker of a residual discretion to consider whether the names are ‘nearly identical’ is consistent with the weight of the authority as outlined in Boyce, Perth Martial Arts, Decorative Imaging, Hazeldine, and Australian Appaloosa. In the Tribunal’s most recent decision addressing this question, Adelaide Building Consultants and ASIC,[120] in refusing to grant an extension of time, Senior Member Dr Manetta observed that ‘[r]ead as a whole, the Determination is highly prescriptive, and it plainly intends by use of the expression “if, and only if” to be comprehensive’,[121] and the Tribunal on review ‘would be bound to apply the Determination and would lack any residual discretion in the matter.’[122]
[120] [2021] AATA 3965.
[121] Ibid, [14].
[122] Ibid, [18].
The Tribunal finds that following the application of rule 7 of the 2015 Determination (including the Regulations set out under Part 1, paragraph 6101 of Schedule 6), there remain two words: ‘Elevated’ and ‘Elevate’. These two words, while only slightly different, are not the same. Accordingly, the Disputed Name is not ‘identical or nearly identical’ to the Company Name and the Disputed Business Name was ‘available’ to be registered. As each of the statutory preconditions for registration of a business name under section 24 are satisfied, the Respondent correctly registered the Disputed Business Name.
2) The validity of the 2015 Determination
The Applicant contends that the 2015 Determination is ultra vires and invalid for reason that either the BNR Act does not empower the Minister to make rules defining ‘identical or nearly identical’, or because the rules of the 2015 Determination purport to create are unreasonable and lead to absurd results. The Respondent submits that the Applicant’s contention has no proper foundation in law.
For the reasons that follow, the Tribunal finds that it has no jurisdiction to review the 2015 Determination, and accordingly it is unable to consider the Applicant’s contention that the 2015 Determination is ultra vires.
The Tribunal has no inherent jurisdiction to review administrative action. The limits of its jurisdiction are prescribed by section 25 of the AAT Act. Section 25(1) states that an enactment may permit an application to be made to the Tribunal for review of a decision made in the exercise of powers under the enactment. [123]
[123] An “enactment” includes an Act or an instrument (including rules, regulations or by-laws) made under an Act: s 3(1) AAT Act; A “decision” is defined in s 3(3) of the AAT Act.
Section 58 is the source of the Tribunal’s power to review a decision made under the BNR Act. Section 58(1) gives the Tribunal the power to review decisions of the Respondent or the Minister if there has been an internal review under section 57. Section 57, in turn, allows an internal review of ‘reviewable decisions’ made by the Respondent or the Minister. Section 56 provides that decisions made by the Respondent or the Minister under certain specified sections are ‘reviewable decisions’. Section 58 itself does not refer to a decision of the Minister to make a legislative instrument under section 26 as being a decision the Tribunal has jurisdiction to review. Accordingly, the making of the 2015 Determination is not a ‘reviewable decision’ and the Tribunal does not have the power to review it under section 58 of the BNR Act. As there is no enactment giving the Tribunal such power of review, it does not have jurisdiction to review the 2015 Determination.

Both parties agree that the Tribunal can form an opinion as to the validity of the 2015 Determination for the purposes of determining whether it has jurisdiction and to ensure that it acts within jurisdictional parameters. The Applicant contends that the Tribunal must form an opinion as to the legal validity of the 2015 Determination as a step of reasoning along the way to deciding the ultimate issue as to whether the Disputed Business Name was ‘available’ to be registered on the BNR.
While accepting that a conclusive determination in relation to the validity of the 2015 Determination can only be made by a Chapter III court in the exercise of judicial power, the Tribunal is satisfied that the prescriptive code in the 2015 Determination which details the exhaustive and exclusive circumstances in which a name will be ‘identical or nearly identical’ for the purposes of section 25(a) of the Act is authorised by section 26 of the Act. The Tribunal makes this finding having regard to the objects of the BNR Act, specifically section 16(4), which recognises that the objects in section 16(3) are achieved by the dealing with the availability of business names. Parliament’s intent in introducing the legislative scheme for the registration of business names and divesting the power to make rules in relation to names which are identical or nearly identical to the executive was ‘to displace, as far as possible, subjective considerations as to the identity or near identity of names, and to introduce instead an objective, computer-driven system … regardless of anomalies that may result.’[124] In relation to when a business name will be considered ‘identical or nearly identical’ to a company name (rule 7), the Minister has limited this to when the two names are identical after applying the Regulations. The Tribunal is satisfied that the making of this rule is within the bounds of the power conferred on the Minister by section 26 of the BNR Act and accordingly is of the opinion that rule 7 of the 2015 Determination is valid.
[124] Hazeldine, [43].
CONCLUSION
The Disputed Business Name is not ‘identical or nearly identical’ to the Company Name for the purposes of section 25(a) of the BNR Act, and it is therefore ‘available’ in accordance with section 24(1)(c) of the Act to be registered by the Respondent on the BNR.
DECISION
The Reviewable Decision is affirmed.
APPENDIX

Rule No. 2012 Determination 2015 Determination

5A None
A business name is identical or nearly identical to another name (other than a company name) if, and only if:

(a) after comparing the business name with the other name by:

(i)    disregarding the matters set out in subsection 5(1); and

(ii)   applying subsection 6(1);

the names are the same; or

(b) subsection 6(2) applies.

5
(1) When comparing a business name with another name (other than a company name) to determine whether the names are identical or nearly identical, the following matters are to be disregarded:

(a) the use of the definite or indefinite article unless it is the whole name;

(b) the use of ‘Association’, ‘Co-operative’, ‘Incorporated’, ‘Limited’, ‘Ltd’, ‘No Liability’, ‘NL’, ‘Proprietary’ or ‘Pty’ in one or both names;

(c)   whether a word is in the plural or singular number in one or both names;

(d) the size of characters, and the type and case of letters, any accents, spaces between characters and punctuation marks, used in one or both names;

(e) the order of words in the names;

(f)    whether one or both names includes a host name such as ‘www’ or a domain extension such as ‘net’, ‘org’ or ‘com’.

(2) For paragraph (1) (e), each of the following is to be treated as a word:

(a) a character separated by spaces;

(b) a group of characters separated by spaces;

(c)   an abbreviation;

(d) an acronym.

Examples for paragraph (b)

1 XYZ123 is a word.

2 XYZ123 is 2 words.

(1) The following matters are to be disregarded:

(a)the use of the definite or indefinite article unless it is the whole name;

(b)the use of ‘Association’, ‘Co-operative’, ‘Incorporated’, ‘Limited’, ‘Ltd’, ‘No Liability’, ‘NL’, ‘Proprietary’ or ‘Pty’ in one or both names;

(c) whether a word is in the plural or singular number in one or both names;

(d)the size of characters, and the type and case of letters, any accents, spaces between characters and punctuation marks, used in one or both names;

(e)the order of words in the names;

(f) whether one or both names includes a host name such as ‘www’ or a domain extension such as ‘net’, ‘org’ or ‘com’.

(2) For paragraph (1) (e), each of the following is to be treated as a word:

(a) a character separated by spaces;

(b) a group of characters separated by spaces;

(c)   an abbreviation;

(d) an acronym.

Examples for paragraph (b)

1 XYZ123 is a word.

2 XYZ123 is 2 words,

6
(1) When comparing a business name with another name (other than a company name) to determine whether the names are identical or nearly identical, a word or expression in an item in Schedule 1 is to be taken to be the same as each other word or expression in the item.

(2) A business name is identical or nearly identical to another name if, despite the characters used in the name, it may be pronounced the same as the other name.

Examples

1 ‘Creative@Work’ is the same as ‘Kre8tive at Work’.

2 ‘100% Cats’ is the same as ‘100 percent Kats’.

3 ‘Dollar Shop’ is the same as ‘$ Shop’.

(3) For subsection (1), each of the following is to be treated as a word:

(a) a character separated by spaces;

(b) a group of characters separated by spaces;

(c) an abbreviation.

(1) A word or expression in an item in Schedule 1 is to be taken to be the same as each other word or expression in the item.

(2) A business name is identical or nearly identical to another name if, despite the characters used in the name, it may be pronounced the same as the other name.

Examples

1 ‘Creative@Work’ is the same as ‘Kre8tive at Work’.

2 ‘100% Cats’ is the same as ‘100 percent Kats’.

3 ‘Dollar Shop’ is the same as ‘$ Shop’.

(3) For subsection (1), each of the following is to be treated as a word:

(a) a character separated by spaces;

(b) a group of characters separated by spaces;

(c) an abbreviation.

7
When comparing a business name with a company name to determine whether the names are identical or nearly identical, the rules in Part 1 of Schedule 6 to the Corporations Regulations 2001 (Rules for ascertaining whether names are identical) apply as if they had been made for subparagraph 25 (a) (ii) of the Act.

Note Part 1 of Schedule 6 to the Corporations Regulations 2001 sets out matters to be disregarded in comparing one name with another for the purposes of paragraph 147 (1) (a) or (b) or 601DC (1) (a) or (b) of the Corporations Act 2001.

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.

Note Part 1 of Schedule 6 to the Corporations Regulations 2001 sets out matters to be disregarded in comparing one name with another for the purposes of paragraph 147 (1) (a) or (b) or 601DC (1) (a) or (b) of the Corporations Act 2001.

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk.

..................................[SGD]......................................
Associate
Dated: 1 February 2023

Date(s) of hearing: 15 September 2022

Counsel for the Applicant: H. Ryan of Eleven Wentworth

Solicitors for the Applicant: S. Blanks of SBA Lawyers

Counsel for the Respondent: P. Bender of List A Barristers

Advocate for the Respondent: A. Paciocco

Advocate for the Other Party: A. Harris of Elevated Learning Pty Limited

Rule No.	2012 Determination	2015 Determination
5A	None	A business name is identical or nearly identical to another name (other than a company name) if, and only if: (a) after comparing the business name with the other name by: (i) disregarding the matters set out in subsection 5(1); and (ii) applying subsection 6(1); the names are the same; or (b) subsection 6(2) applies.
5	(1) When comparing a business name with another name (other than a company name) to determine whether the names are identical or nearly identical, the following matters are to be disregarded: (a) the use of the definite or indefinite article unless it is the whole name; (b) the use of ‘Association’, ‘Co-operative’, ‘Incorporated’, ‘Limited’, ‘Ltd’, ‘No Liability’, ‘NL’, ‘Proprietary’ or ‘Pty’ in one or both names; (c) whether a word is in the plural or singular number in one or both names; (d) the size of characters, and the type and case of letters, any accents, spaces between characters and punctuation marks, used in one or both names; (e) the order of words in the names; (f) whether one or both names includes a host name such as ‘www’ or a domain extension such as ‘net’, ‘org’ or ‘com’. (2) For paragraph (1) (e), each of the following is to be treated as a word: (a) a character separated by spaces; (b) a group of characters separated by spaces; (c) an abbreviation; (d) an acronym. Examples for paragraph (b) 1 XYZ123 is a word. 2 XYZ123 is 2 words.	(1) The following matters are to be disregarded: (a)the use of the definite or indefinite article unless it is the whole name; (b)the use of ‘Association’, ‘Co-operative’, ‘Incorporated’, ‘Limited’, ‘Ltd’, ‘No Liability’, ‘NL’, ‘Proprietary’ or ‘Pty’ in one or both names; (c) whether a word is in the plural or singular number in one or both names; (d)the size of characters, and the type and case of letters, any accents, spaces between characters and punctuation marks, used in one or both names; (e)the order of words in the names; (f) whether one or both names includes a host name such as ‘www’ or a domain extension such as ‘net’, ‘org’ or ‘com’. (2) For paragraph (1) (e), each of the following is to be treated as a word: (a) a character separated by spaces; (b) a group of characters separated by spaces; (c) an abbreviation; (d) an acronym. Examples for paragraph (b) 1 XYZ123 is a word. 2 XYZ123 is 2 words,
6	(1) When comparing a business name with another name (other than a company name) to determine whether the names are identical or nearly identical, a word or expression in an item in Schedule 1 is to be taken to be the same as each other word or expression in the item. (2) A business name is identical or nearly identical to another name if, despite the characters used in the name, it may be pronounced the same as the other name. Examples 1 ‘Creative@Work’ is the same as ‘Kre8tive at Work’. 2 ‘100% Cats’ is the same as ‘100 percent Kats’. 3 ‘Dollar Shop’ is the same as ‘$ Shop’. (3) For subsection (1), each of the following is to be treated as a word: (a) a character separated by spaces; (b) a group of characters separated by spaces; (c) an abbreviation.	(1) A word or expression in an item in Schedule 1 is to be taken to be the same as each other word or expression in the item. (2) A business name is identical or nearly identical to another name if, despite the characters used in the name, it may be pronounced the same as the other name. Examples 1 ‘Creative@Work’ is the same as ‘Kre8tive at Work’. 2 ‘100% Cats’ is the same as ‘100 percent Kats’. 3 ‘Dollar Shop’ is the same as ‘$ Shop’. (3) For subsection (1), each of the following is to be treated as a word: (a) a character separated by spaces; (b) a group of characters separated by spaces; (c) an abbreviation.
7	When comparing a business name with a company name to determine whether the names are identical or nearly identical, the rules in Part 1 of Schedule 6 to the Corporations Regulations 2001 (Rules for ascertaining whether names are identical) apply as if they had been made for subparagraph 25 (a) (ii) of the Act. Note Part 1 of Schedule 6 to the Corporations Regulations 2001 sets out matters to be disregarded in comparing one name with another for the purposes of paragraph 147 (1) (a) or (b) or 601DC (1) (a) or (b) of the Corporations Act 2001.	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. Note Part 1 of Schedule 6 to the Corporations Regulations 2001 sets out matters to be disregarded in comparing one name with another for the purposes of paragraph 147 (1) (a) or (b) or 601DC (1) (a) or (b) of the Corporations Act 2001.

*Column 1* *Item*	*Column 2* *Word or expression*	*Column 3* *Alternative*
1	Australian	Aust
2	Company	Co or Coy
3	Co	Company or Coy
4	Coy	Company or Co
5	Number	No
6	And	&
7	Incorporated	Inc
8	Corporation	Corp
9	Australian Company Number	ACN

*Column 1 Item*	*Column 2* *Word or expression*	*Column 3 Alternative*
1	Australian	Aust
2	Company	Co or Coy
3	Co	Company or Coy
4	Coy	Company or Co
5	Number	No
6	And	&
7	Incorporated	Inc
8	Corporation	Corp
9	Australian Company Number	ACN

Date(s) of hearing:	15 September 2022
Counsel for the Applicant:	H. Ryan of Eleven Wentworth
Solicitors for the Applicant:	S. Blanks of SBA Lawyers
Counsel for the Respondent:	P. Bender of List A Barristers
Advocate for the Respondent:	A. Paciocco
Advocate for the Other Party:	A. Harris of Elevated Learning Pty Limited