Hazeldine and Australian Securities and Investments Commission
[2019] AATA 366
•12 March 2019
Hazeldine and Australian Securities and Investments Commission [2019] AATA 366 (12 March 2019)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2018/0261
Re:Lindy Hazeldine
APPLICANT
AndAustralian Securities and Investments Commission
RESPONDENT
AndNorthern Beaches Tutoring Services
OTHER PARTY
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:12 March 2019
Place:Sydney
The Tribunal affirms the decision under review.
............................[sgd]............................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
BUSINESS NAMES REGISTRATION - objection to registration of business name - name only available for registration if not “identical” or “nearly identical” to existing business name - whether "Northern Beaches Private Tutoring Service" and "Northern Beaches Tutoring Services" "identical" or "nearly identical" - whether business name available for registration – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Australian Securities and Investments Commission Act 2001
Business Names Registration Act 2011Business Names Registration (Availability of Names) Determination 2015
CASES
Alzheimer's Association of Queensland Inc and Australian Securities and Investments Commission [2018] AATA 2403
Boyce and Australian Securities and Investments Commission [2015] AATA 768
B & L Whittaker Pty Ltd and Australian Securities and Investments Commission and Anor [2014] AATA 302
Decorative Imaging Pty Limited and Australian Securities and Investment [sic] Commission [2018] AATA 4668
G C Swinburne and F J McFarlane and Australian Securities and Investments Commission and Child Psychology Services Pty Ltd (Joined Party) [2014] AATA 602
Perth Martial Arts Academy and Australian Securities and Investments Commission [2018] AATA 3664
Smith and Australian Securities and Investments Commission and Amee Donohoe trading as Central Coast Surf Academy (Joined Party) [2014] AATA 192Stasiw and Australian Securities and Investments Commission and Anor [2015] AATA 328
SECONDARY MATERIALS
Explanatory Memorandum, Business Names Registration Bill 2011
“Proposed National Business Name Registration System: Frequently Asked Questions" (March 2011)
Regulatory Guide 235: “Registering your business name” (August 2013)
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
12 March 2019
The Applicant is the holder of the business name “Northern Beaches Private Tutoring Service” (“the first name”), which has been registered since 8 September 2011. On 15 July 2017, the Respondent registered the business name “Northern Beaches Tutoring Services” (“the second name”).
In early 2018, the Applicant first became aware of the registration of the second name. The Applicant thereupon lodged an application with the Australian Securities and Investments Commission (“ASIC”) on 3 January 2018 seeking review of the decision to register the second name. By letter dated 10 January 2018, ASIC affirmed the decision under review, namely to register the second name. The review officer reasoned that the second name satisfied the requirements of s 24(1) of the Business Names Registration Act 2011 (“the BNR Act”), and, accordingly, ASIC was required to register such name.
By her Application for Review of Decision lodged with the Tribunal on 14 January 2018, the Applicant applies for review of ASIC’s review decision of 10 January 2018. The holder of the second name has taken no part in these proceedings.
FACTS
The Applicant, through her business, provides tutoring services to primary school-aged children, generally in the range of 5 to 12 years old. She specialises in tutoring pupils who wish to gain entry to selective state high schools and win scholarships for entry to independent private schools. The Applicant holds a Bachelor of Primary Education Studies from Charles Sturt University. Following voluntary redundancy of her employment at the Parliament of New South Wales, she embarked upon her business of tutoring as a means of supporting herself. The Applicant expresses concern that the first and second names, as registered by ASIC, are so similar that her business will be detrimentally affected.
RELEVANT LEGISLATION
The BNR Act makes provision for the registration of business names. It specifically anticipated that an entity may apply for registration of a business name that is identical, or nearly identical, to an existing registered business name. The Dictionary contained in s 3 of the BNR Act includes the following definitions:
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.
Section 24 of the BNR Act relevantly provides:
(1) ASIC must register the business name to the entity if ASIC is satisfied that:
…
(c) the name is available to the entity …
Section 25 of the BNR Act relevantly provides:
A business name is available to an entity if:
(a) the name is not identical or nearly identical to:
(i) a business name registered to another entity…
Section 26 of the BNR Act provides:
The Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical to another name.
By Part 9 – Administration, the BNR Act empowers ASIC to exercise its functions and powers conferred thereunder. Section 63 provides:
(1) ASIC has the functions and powers conferred on it by or under this Act and the Transitional Act.
(2) ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions under this Act and the Transitional Act.
(3) Subject to the ASIC Act, ASIC has the general administration of this Act and the Transitional Act.
Section 66 of the BNR Act relevantly provides:
(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 …
(2) A decision made by the operation of a computer program under arrangement made under subsection (1) is taken to be a decision made by ASIC.
THE DETERMINATION
In accordance with s 26 of the BNR Act, the Business Names Registration (Availability of Names) Determination 2015 (“the Determination”) was made on 14 July 2015.
Part 2 of the Determination comprises “Rules for determining whether business names are identical or nearly identical to other names”. Division 1 thereof is entitled “Rules for determining whether business names identical or nearly identical to names other than company names”.
Section 5A of the Determination provides:
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.
Section 5 of the Determination itemises matters which are to be disregarded in making the comparison under s 5A(a). Relevantly, for present purposes, s 5(1)c includes:
(c) whether a word is in the plural or singular number in one or both names…
Section 6 relevantly provides:
(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.
…
Schedule 1 is entitled “Words and expressions taken to be the same”. It is not relevant for present purposes.
EVIDENCE
An affidavit has been provided by Ruben Johannes Witte, sworn on 22 June 2018. The deponent is employed by ASIC as an analyst. Relevantly, the deponent states as follows:
16. ASIC has established an online application process via a web portal set up by ASIC called “ASIC Connect”. Persons can apply to register a business name online through ASIC Connect or through private service providers. ASIC Connect and private service providers link to ASIC’s computer systems.
…
21. A person seeking to register a business name can check the availability of the proposed name using the “check business name availability” search function on ASIC Connect. ASIC publishes on its website information about the “check business name availability” function. This advises that the system shows the availability of a proposed business name by the mechanism of a green, amber or red result. A green result means that the business name is available for registration. An amber result means that a decision on availability is required by an ASIC officer. A red result means that the business name is unavailable.
…
The annexures to the deponent’s affidavit establish that, in 2012, the new national business name regime commenced. It included, inter alia, a new business name registration procedure that would be made available by the Australian government in the form of a single, integrated online registration process. Such system resulted from an Intergovernmental Agreement for Business Names Agreement signed by the Commonwealth, the states and territories on 2 July 2009. That system is implemented by operation of what became the BNR Act and of the Determination made pursuant to s 26 of the Act.
On 11 March 2011, the Department of Innovation, Industry, Science and Research (as it was then known) issued a publication entitled “Proposed National Business Name Registration System: Frequently Asked Questions”. In answer to question 15, “How will ASIC determine if a business name can be registered?”, it stated:
Proposed business names that are identical to names already on the register will not be available for registration. A name will not be registered if it is inappropriate, or likely to offend, mislead or deceive consumers and traders.
An online and automated test will be used to determine registrable names, hence allowing the process to be fast, objective and repeatable …
Regulatory Guide 235, issued by ASIC in August 2013 and entitled “Registering your business name”, explains the manner in which ASIC administers the new procedure of applying for registration of a business name, which includes the completion of an online form. It advises that checks will be undertaken by ASIC to determine the availability of names, and indicates that an applicant will be advised whether a name can or cannot be registered and in cases of doubt, that the application will be referred to an officer for review.
The BNR Act reposed in ASIC powers to administer the new regime. This was, and is, a central component of the new system. ASIC may determine whether a proposed business name is available for registration with the assistance of a computer program. If an application for registration of a business name is accepted, such will be signified by a “green result” generated by the program; if the availability of a name is doubtful, an “amber result” will be returned, thereby requiring the intervention of an officer. If the name is regarded as identical or nearly identical, the program will return a “red result”, indicating its unavailability. Accordingly, the system is computer driven for the determination of business name availability, and thus registration. An officer only becomes involved if there is doubt concerning availability as flagged by the computer program.
In its Statement of Reasons for Decision provided under s 37(1) of the Administrative Appeals Tribunal Act 1975, ASIC relevantly stated:
Relevant Law
3.7. Section 24 of the Act sets out the requirements for ASIC to register a business name to an entity. It provides:
(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.
Registered Australian Business Number (ABN) and Payment of Registration Fee
3.8. The Applicant for the Business Name satisfied the requirements of payment of the registration fee and has a registered ABN.
Availability of a name
3.9. Section 25 of the Act sets out the circumstances in which a business name is available to an entity. Among other matters, a business name is available if the name is not identical or nearly identical to a business name registered to another entity.
3.10. The rules for determining whether a business name is identical or nearly identical to another business name are contained in the Business Names Registration (Availability of Names) Determination 2015 (the Determination). A copy of the Determination is attached at T8.
3.11. Section 5(1) of the Determination provides that the following matters among others are to be disregarded when comparing a business name with another name:
(a) the use of the definite or indefinite article unless it is the whole name…;
(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; and
(e) the order of words in the names…
3.12. Section 6(1) of the Determination provides that:
(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.
3.13. In comparing the Business Name ‘Northern Beaches Tutoring Services’ to the business name ‘Northern Beaches Private Tutoring Service’, the words, ‘Northern’, ‘Beaches’, ‘Tutoring’, and ‘Service’ are used in both names. The element that differentiates the names is the word, ‘Private’ in one of the names, which is not used in the other name..
3.14. Section 6(2) of the Determination provides that:
(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.
3.15. Under the rules of section 6(2) of the Determination, ‘Northern Beaches Tutoring Services’ and ‘Northern Beaches Private Tutoring Services’ are not pronounced the same.
3.16. Accordingly, under the rules for determining identical or nearly identical names, the Business Name, ‘Northern Beaches Tutoring Services’ is not identical or nearly identical to the registered business name ‘Northern Beaches Private Tutoring Services’. Therefore, the Business Name, ‘Northern Beaches Tutoring Services’ was available for registration
Entity is not disqualified
3.17. An entity is not eligible to hold a business name if the entity is disqualified under section 32 of the Act. An applicant for a business name must declare that the entity is not disqualified. The applicant for the Business Name completed the declaration eligibility on the application to register the Business Name.
CONSIDERATION
The objects of the legislation introduced as part of the new scheme of registration, as contained in the BNR Act, are significant. They are contained in s 16 of the BNR Act. Relevantly, s 16(3) and s (16)(4) provide:
(3) The objects of this 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; and
(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.
By virtue of s 16(4), the rules are to determine the manner in which registration is to be effected. The test of whether a business name is identical or nearly identical to another name, as provided by s 6(2) of the Determination, is satisfied if the proposed name “may be pronounced the same as the other name”.
Whether the pronunciation of the proposed name is identical or nearly identical to an already registered business name is, by virtue of the power invested in ASIC by s 63 and s 66 the BNR Act, determined by computer programs in accordance with the rules laid down in s 5A, s 5 and s 6 of the Determination. The issue for determination in the present application is whether, taking into account the similarity of the first name to the second name, the second name should have been registered by ASIC.
The Respondent refers to several decisions of the Tribunal, differently constituted, in which the same issue as in the present application has arisen, albeit in respect of different names. In G C Swinburne and F J McFarlane and Australian Securities and Investments Commission and Child Psychology Services Pty Ltd (Joined Party) [2014] AATA 602, the Tribunal considered the similarity of the name “Melbourne Children’s Psychology Clinic” to two names, “Melbourne Child Psychology” and “Melbourne Child Psychology Services”. At [118], the Tribunal accepted the Applicant’s submission that the words “identical” and “nearly identical” bear their ordinary meaning. This interpretation was then applied to the object in s 16(3)(a) of the BNR Act to conclude that, by comparing the names, the new names were not “available” for the purposes of s 24(1)(c) of the Act. The Tribunal, at [58], had regard to the comparison envisaged in s 5(1) and s 6(1) of the Determination. At [89], the Tribunal said:
… there is no warrant for construing the modificatory rules in ss 5(1) and 6(1) as exhaustively determinative of whether names are “identical or nearly identical” on the basis of an imputed intention that all such determinations must be capable of being made automatically by a computer program upon online application.
In Stasiw and Australian Securities and Investments Commission and Anor [2015] AATA 328, the Tribunal adopted the reasoning in Swinburne, and quoted, at [50], a portion of the decision in Swinburne as follows:
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. I agree with Deputy President Alpins when she stated in Swinburne [at [123]]:
‘A name is “nearly identical” to another name if it almost, but not quite, achieves a state of identity with that name...The collocation “identical or nearly identical” therefore, by operation of ss 24(1) and 25(a)(i) of the Act, precludes registration if a name is either precisely the same as a registered name or is close to being so. It follows that the fact a name is merely similar to a registered name will not preclude registration.’
However, this Tribunal has made contrary decisions. In Boyce and Australian Securities and Investments Commission [2015] AATA 768 at [34], the Tribunal concluded that the rules set out in the Determination are both “exclusive and exhaustive, such that it is unnecessary, and unwarranted, to make inquiries beyond the scope”. The Tribunal observed, at [43]-[44] (footnotes omitted):
As mentioned already, the rules for determining whether a business name is identical or nearly identical to another name are set out in Part 2 of the Determination. While they vary in their substance, the opening words of each of ss 5(1), 6(1) and 7 in the Part adopt the same formula of words in their openings:
When comparing a business name with [another name] to determine whether the names are identical or nearly identical...
Each of those provisions contemplates a comparison being undertaken. There is nothing to suggest that the reference to identical or nearly identical is to anything other than their ordinary and plain meanings. The words are not defined in the Determination (even though there is a Definitions section), nor is there any suggestion that when used in that context they are to be given the meanings ascribed to them in the Act. The opening words serve as the link between s 25 as the operative provision, and the substantive rules which are set out in the Determination. The comparison between names is to be undertaken in accordance with the rules. Using those rules alone, a decision is then made as to whether the names are identical, or nearly identical; there is no other room for comparison.
In B & L Whittaker Pty Ltd and Australian Securities and Investments Commission and Anor [2014] AATA 302, the Tribunal came to the same conclusion as was later arrived at in Boyce. In its reasons, the Tribunal was critical of the drafting of the Determination, stating relevantly at [16]:
I have to say that the result which the legislation and the Determination dictate is quite absurd. Absent the statutory test I regard the two names as nearly identical and likely to produce confusion in the mind of consumers. The difficulties, as it seems to me, arise from the terms of the Determination.
In Smith and Australian Securities and Investments Commission and Amee Donohoe trading as Central Coast Surf Academy (Joined Party) [2014] AATA 192, the Tribunal followed the same approach as in Boyce and Whittaker. At [14], the Tribunal said:
It seems one of the motivations for constructing the law in this way is to make it easier to automate the process of applying for a business name. Computers do not do well with examples: while they work more quickly (and presumably more cheaply) than the registry clerks of fond memory, they do not yet have the capacity to analogise from a list of examples. They prefer clear instructions capable of certain application. Computers don’t ‘do’ nuance, and they are not open to persuasion.
In Perth Martial Arts Academy and Australian Securities and Investments Commission [2018] AATA 3664, the contention arose out of the registration of the name “Perth Martial Arts Centre” when the Applicant held the name “Perth Martial Arts Academy”. The Tribunal reached the same conclusion as that in Boyce. The Tribunal made the following observations, at [31]-[32]:
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. Indeed, in Smith and ASIC and Amee Donohoe Trading as Central Coast Surf Academy [2014] AATA 192 (Smith), Senior Member McCabe (now Deputy President McCabe) was required to consider whether the names “Central Coast Surf School” and “Central Coast Surf Academy” were identical or nearly identical. He stated, at [3] of Smith:
3. While I accept the two names are so similar they might confuse or mislead, that is not the test. For reasons I will explain, I am satisfied the two names are not identical or even nearly identical for the purposes of the Act. The name Central Coast Surf Academy is available to be registered by Ms Donohoe.
The Tribunal observed, at [36], that: in seeking registration of a business name, an application must be made under s 23 (1) of the BNR Act in the prescribed form; pursuant to s 24(1) of the BNR Act, ASIC must register the business name if it is satisfied that it is available, that the entity has an ABN, that the registration fee has been paid, and that the entity is not disqualified. The Tribunal noted that the use of the word “must” indicated that ASIC has no discretion if the requirements of s 24(1) are satisfied.
The Tribunal further observed, at [36(d)]:
(d) A business name will not be available if it falls within any of the subsections in
s 25 of the BNR Act, including s 25(a)(i) – if it is identical or nearly identical to a business name that is already registered. “Identical” or “nearly identical” are narrowly defined in s 3 of the BNR Act - as meaning “identical under rules made by the Minister...” or “...nearly identical under rules made by the Minister...” The Minister has made “rules” under s 26 of the BNR Act to determine whether a business name is identical or nearly identical to another business name. These are contained in the Determination. The words “identical under rules” or “nearly identical under rules” in s 3 of the BNR Act indicate that the rules are the exclusive means by which to determine whether a name is identical or nearly identical. As the BNR Act has clearly defined these terms, it is not necessary to look at the plain or ordinary meaning of “identical” or “nearly identical”. In this regard, the Tribunal respectfully disagrees with the approach taken by Deputy President Alpins in Swinburne & McFarlane and Australian Securities and Investments Commission [2014] AATA 602 (Swinburne) and Deputy President The Hon. R Nicholson in Stasiw and Australian Securities and Investments Commission [2015] AATA 328 (Stasiw).In Alzheimer's Association of Queensland Inc and Australian Securities and Investments Commission [2018] AATA 2403, the Tribunal came to the same conclusion as that in Boyce, namely that there exists no discretion exercisable by ASIC to refuse to register a business name if it is determined that it is “available”. The Tribunal said, relevantly, at [52] (footnotes omitted):
To regard ASIC as having a broad discretion to be exercised in every application would be to frustrate the purpose of the Act. The evidence before me indicates that there are roughly 2.24 million business names on the [Business Names Register] at present. If there was a discretion available in relation to each application, the burden imposed on ASIC would be oppressive… Such a construction would oblige ASIC to undertake complex investigations as to which party is better entitled to a Business Name and it would make the Tribunal a forum for ventilating misleading and deceptive conduct, trademarks, branding and passing off actions. As mentioned previously, the Explanatory Memorandum explicitly states that the Act is not a mechanism under which proprietary rights to a name can be conferred.
In Decorative Imaging Pty Limited and Australian Securities and Investment [sic] Commission [2018] AATA 4668, the Tribunal, consistently with the decision in Boyce, found that there is no discretion once a name has been found to be available.
FINDING
It was Parliament’s intention to provide exhaustively for the registration of business names in Australia, and the BNR Act was enacted to achieve this purpose. It was specifically envisaged by the BNR Act that rules would be made to achieve the objects set out in s 16(3). Those rules are enshrined in the Determination.
The BNR Act provides comprehensive power to ASIC to do whatever is necessary in the performance of its functions (s 63), and gives express power to ASIC to use computer programs to make decisions under the BNR Act (s 66(1)). By virtue of s 66(2), it is clear that a decision made by the operation of a computer program is taken to be a decision made by ASIC.
The Explanatory Memorandum (EM), which accompanied the Business Names Registration Bill 2011, contains a clear indication of the purpose of the Bill. At [10.5] of the EM it is stated:
10.5. Section 66 provides that other than for the decisions relating to the review of any decisions, ASIC may arrange for the use of computer programs under ASIC’s control to make decisions. For example, it is intended that decisions regarding whether a proposed business name is identical or nearly identical to any of the hundreds of thousands of existing business name [sic] expected to be on the Register will be largely automated.
In fulfilment of such purpose, ASIC has established an online application process via a web portal called “ASIC Connect”. Persons applying for registration of a business name may use the portal, which in turn links ASIC’s computer systems.
ASIC’s computer systems, and the programs used by them, perform the task of determining the availability of proposed business names by applying 14 programmed system rules. The results generated by such determinations are summarised at [21] of the affidavit of Mr Witte.
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.
The authorisation of ASIC to perform its statutory functions in the manner it considers appropriate has been clearly expressed by the legislature. By s 12A(1)(k) of the Australian Securities and Investments Commission Act 2001, ASIC has the powers and functions conferred on it by the BNR Act. By virtue of s 12A(6), ASIC has power to do whatever is necessary for, or in connection with, or reasonably incidental to, the performance of its statutory functions.
In Whittaker, criticism was expressed of the apparently anomalous results that might be achieved when names are adjudged to be “identical” or “nearly identical” according to the statutory test, as opposed to when those terms are considered outside the statutory framework in which they appear. 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.
DECISION
The Tribunal is precluded by the relevant, aforementioned provisions of the BNR Act and of the Determination from finding that the business names Northern Beaches Private Tutoring Service and Northern Beaches Tutoring Services are identical or nearly identical.
The second name was thus available to be registered by ASIC. Accordingly, the Tribunal affirms the decision under review.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
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Associate
Dated: 12 March 2019
Date of hearing: 4 February 2019 Date final submissions received: 5 February 2019 Applicant: In person Counsel for the Respondent: Ms M Ellicott Solicitors for the Respondent: Australian Securities and Investments Commission
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