Ellis and Australian Securities and Investments Commission

The matter before the Administrative Appeals Tribunal concerned an application by Mr Ellis, as the proposed director of a yet-to-be-incorporated company, to register the company with a proposed name that included the word "trustee". Because the word "trustee" is a restricted word under the Corporations Regulations 2001 (Cth), Ministerial consent was required for its use. The Australian Securities and Investments Commission (ASIC) had refused the application, and Mr Ellis sought review of that decision.

The Tribunal was required to determine whether the proposed company name, which included the word "trustee", should be permitted. This involved considering the application of the Guidelines for Ministerial Consent to Body Corporate Names under the Corporations Act 2001, which set out the criteria for granting consent to names not otherwise available. Specifically, the Tribunal had to ascertain who constituted the "applicant" for the purposes of these Guidelines and whether the proposed company, at its pre-incorporation stage, met any of the specified criteria for the use of the word "trustee".

The Tribunal reasoned that the application was premature because the company had not yet been incorporated. The Guidelines for Ministerial Consent stipulate that consent will normally be granted for the use of "trustee" where the applicant is authorised by specific legislation to act as a trustee, is an administrator of a public or charitable trust, or is a trustee of a trust demonstrated by trust deeds. As the proposed company did not yet exist, it could not satisfy these criteria, nor could it demonstrate the necessary authorisations or documentation. Consequently, the Tribunal affirmed the decision under review.