Fry and Australian Securities & Investments Commission

This matter concerned an application by Mr Fry to re-register a business name that had previously been cancelled due to non-renewal. The Australian Securities and Investments Commission (ASIC) refused the application, asserting that the proposed business name was identical or nearly identical to an existing company name. The dispute thus centred on whether ASIC was statutorily prohibited from registering the proposed business name.

The primary legal issue before the Tribunal was to determine whether the proposed business name was "identical or nearly identical" to a registered company name, as defined by section 7 of the Determination and Part 1 of Schedule 6 to the Corporations Regulations 2001. This involved assessing whether ASIC had any discretion in the matter, given the automated systems used for name availability checks under section 66 of the Business Names Registration Act 2011.

Member Lee Benjamin reasoned that the proposed business name was indeed identical or nearly identical to the registered company name. The Tribunal noted that ASIC's decision-making process for business name registration is largely automated, with computer programs applying specific rules to determine availability. Consequently, ASIC has no discretion to register a name if it is found to be unavailable under these rules. The applicant's ownership of a trade mark was found to be irrelevant to this determination.

The Tribunal affirmed ASIC's decision, finding that the proposed business name was not available for registration and that ASIC was therefore statutorily prohibited from registering it.