Perth Martial Arts Academy and Australian Securities and Investments Commission - [2018] AATA 3664

Perth Martial Arts Academy and Australian Securities and Investments Commission [2018] AATA 3664 (28 September 2018)
Division:TAXATION & COMMERCIAL DIVISION
File Number: 2017/5156
Re:Perth Martial Arts Academy
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans

Date:28 September 2018
Place:Perth

The Reviewable Decision is affirmed.
..............[sgd]..........................................................
Senior Member Dr M Evans
CATCHWORDS
BUSINESS NAME REGISTRATION – objection to registration of business name – whether business names are “identical” or “nearly identical” – whether business name available for registration – whether Perth Martial Arts Academy and Perth Martial Arts Centre identical or nearly identical – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 15AA
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1), s 29(2), s 43AA(1)
Business Names Registration Act 2011 (Cth) – s 3, s 16(3), s 16(4), s 23(1), s 23(2),
s 23(3), s 23(4), s 24(6), s 24(1), s 25, s 25(a)(i) s 26, s 56, s 57, s 66
Corporations Act 2001 (Cth) – s 1317B
CASES
Alzheimer’s Association of Queensland Inc v Australian Securities and Investments Commission & Anor [2018] AATA 2403
Boyce and Australian Securities and Investments Commission [2015] AATA 768
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Smith and Australian Securities and Investments Commission and Amee Donohoe Trading as Central Coast Surf Academy [2014] AATA 192
Stasiw and Australian Securities and Investments Commission [2015] AATA 328
Swinburne & McFarlane and Australian Securities and Investments Commission [2014] AATA 602
SECONDARY MATERIALS
Business Names Registration (Availability of Names) Determination 2015 (Cth), s 5,
s 5(1), s 5(1)(d), s 5A, s 6, s 6(1) Schedule 1
REASONS FOR DECISION
Senior Member Dr M Evans
28 September 2018
THE APPLICATION

On 9 November 2006, Mr Victor Stuart registered the business name “PERTH MARTIAL ARTS ACADEMY” (Perth Martial Arts Academy) (Exhibit R2, Annexure 1).
Brazilian Combat Pty Ltd made an application to the Respondent (ASIC) to register the business name “perth martial arts centre” (Perth Martial Arts Centre) which ASIC registered on 29 July 2016 (Exhibit R2, Annexure 2).
On 7 July 2017, Mr Stuart lodged an application with ASIC seeking review of the decision to register the business name Perth Martial Arts Centre (Exhibit R1, T1). In the “Details of request” section of the application he provided the following details:
2006, we registered Perth Martial Arts Academy. Operate near Perth CBD. Brazilian Combat (BC), another school in Malaga, open 2012. In 2016, BC registered: Perth Martial Arts Centre. BC playing on name/reputation & affecting business of PMAA.
On 10 July 2017, ASIC emailed Mr Stuart in reference to his request seeking a review of ASIC’s decision to register the business name Perth Martial Arts Centre (Exhibit R1, T2). In this email, ASIC stated that:
Under the Business Names Registration Act 2011 (the Act), an entity may seek a review of ASIC’s decision to register a business name, if there is a real risk of substantial detriment to the entity because of the registration. A real risk of substantial detriment by the registration of the Business Name does not form part of the review of the decision. It only refers to your eligibility to seek a review regarding the original decision to register the Business Name. (Original emphasis.)
On 21 July 2017, Mr Stuart emailed a detailed letter to ASIC in response. In this letter, he summarised his concerns as follows (Exhibit R1, T3, page 6, para [5]):
·     Perth Martial Arts Centre is identical in meaning and almost identical in term.
·     They are too close to us by region to use this name.
·     They are too far from Perth to utilise the term Perth.
·     Perth Martial Arts Centre is Profiting from our hard fought reputation and online presence.
·     Perth Martial Arts Centre appears to be ‘Passing Off’ as Perth Martial Arts Academy
·     Perth Martial Arts Centre name is Confusing Everyone – including current and potential clients.
·     Perth Martial Arts Centre name registration and conduct is misleading to the public and they also operate under many other names.
·     Perth Martial Arts Centre name registration and associations is damaging to our reputation.
·     The registration of Perth Martial Arts Centre as a business name in opposition of our name conflicts with the objects of the Business Names Registration act (sic) 2011.
On 1 August 2017, a delegate of ASIC affirmed the decision to register the business name “Perth Martial Arts Centre” on the basis that the application for the business name satisfied the requirements of s 24(1) of the Business Names Registration Act 2011 (Cth) (the BNR Act), and therefore ASIC was required to register the business name (Exhibit R1, T4) (the Reviewable Decision).
On 28 August 2017, Mr Stuart applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.
ISSUE
The issue for determination by the Tribunal is whether or not the business name Perth Martial Arts Centre is, for the purpose of the BNR Act and the Determination, “identical or nearly identical” to the name Perth Martial Arts Academy.
JURISDICTION
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant the Tribunal jurisdiction to review certain decisions made under those enactments:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Counsel for the Respondent submitted in her opening submissions (Exhibit R4, para [6]) that the application for review is made pursuant to s 1317B of the Corporations Act 2001 (Cth) (the Corporations Act), which states:
(1)Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:
(a)the Minister; or
(b)ASIC; or
(c)the Companies Auditors Disciplinary Board; or
(d)a committee convened under Part 2 of Schedule 2.
However, the Reviewable Decision was made under the BNR Act, not the Corporations Act, and so the source of the Tribunal’s jurisdiction must be found elsewhere.
The Table contained in s 56 of the BNR Act states that a decision under s 24 of the BNR Act regarding “registration of a business name to an entity” is a “reviewable decision”. Column 3, “Who may seek review”, refers to “an entity in relation to whom there is a real risk of substantial detriment because of the registration of the business name”. Based on the representations made by Mr Stuart in his letter to ASIC detailed in paragraph [5], including potential reputational damage and client confusion, the Tribunal considers that there is a “real risk of detriment” to the business of “Perth Martial Arts Academy” in this regard.
Section 57 of the BNR Act, “Internal review of certain decisions”, provides:
(1)If a reviewable decision is made by ASIC other than as a delegate of the Minister, an entity on whose application the decision is reviewable may lodge an application with ASIC (the review body ) for review of the decision. (original emphasis)
The Tribunal has jurisdiction to review decisions under s 57 of the BNR Act. This jurisdiction is conferred by s 58 of the BNR Act which provides:
(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.
ASIC made the Reviewable Decision under s 57 of the BNR Act on 1 August 2017 (Exhibit R1, T4), and accordingly the Tribunal has jurisdiction. The application for review was lodged by the Applicant with the Tribunal on 28 August 2017. Thus it was within the 28 day prescribed time for making an application to the Tribunal (s 29(2) AAT Act).
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 26 July 2018. Mr Stuart appeared in person, and was accompanied by a support person, Mr Hayden Warren. The Respondent was represented by legal counsel, Ms Tamasin Jonker.
The following material was admitted into evidence at the hearing:
(a)the Respondent’s s 37 documents, numbered T1 to T8 (Exhibit R1);
(b)the Respondent’s Statement of Facts, Issues and Contentions, dated 20 March 2018 (Exhibit R2);
(c)an email from the Respondent withdrawing paragraph [1.8] of its Statement of Facts, Issues and Contentions, dated 20 April 2018 (Exhibit R3);
(d)the Respondent’s outline of its written Opening Submissions, dated 20 July 2018 (Exhibit R4); and
(e)an email from the Respondent to the AAT Queensland Registry seeking clarification on the wording of the decision Alzheimer’s Association of Queensland Inc v Australian Securities and Investments Commission & Anor [2018] AATA 2403 (Alzheimer’s Association) (20 July 2018) (Exhibit R5). The Tribunal notes that the wording in question has now been corrected by the inclusion of a statement made pursuant to s 43AA(1) of the AAT Act at the beginning of the decision.
The Applicant did not submit a Statement of Facts, Issues and Contentions or any further evidence to the Tribunal. At the hearing, the Tribunal heard submissions from the parties, with the Applicant’s submissions also comprising of some evidence, which is common for self-represented applicants.
The Tribunal has considered all of the material and evidence before it and is satisfied that the parties had an adequate opportunity to present their case and to be heard by the Tribunal.
LEGISLATION
The objects of the BNR Act are set out in s 16 of the BNR Act which provides:
(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 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.
Section 17 of the BNR Act sets out the “[c]onsequences of registration of a business name”:
(1)The registration of a business name does not affect the rights of any entity in relation to the business name, or a word or an expression that constitutes or is included in the business name, under the law of the Commonwealth or of a State or Territory, or under the general law.
(2)An entity does not acquire property in a business name, or in a word or an expression that constitutes or is included in a business name, because the name is registered to the entity under this Act or the Transitional Act.
Part 3 of the BNR Act is titled, “Registering a business name”. Section 23(1), which is contained within this Part, provides:
(1)An entity that intends to carry on a business under a name may lodge with ASIC an application for the name to be registered to the entity as a business name.
Section 24 in Part 3 of the BNR Act 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.
(2)ASIC may request the entity in writing to give ASIC, within the period specified in the request, information or a document that is of a kind specified in the request and that ASIC needs to be satisfied of the matters mentioned in subsection (1).
Section 25 of the BNR Act provides, in part:
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; or…
(Original emphasis.)
Section 3 of the BNR Act defines “available” as follows:
available: a business name is available to an entity in the circumstances set out in:
(a)section 25 and subsection 31(3) of this Act;…
(Original emphasis.)
“Identical” and “nearly identical” are defined in s 3 of the BNR Act 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.
Further, s 26 of the BNR Act provides that “[t]he Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical to another name”. (Original emphasis.)
The Minister has made a legislative instrument, pursuant to s 26 of the BNR Act, namely the Business Names Registration (Availability of Names) Determination 2015 (Cth) (the Determination). Division 1 of Part 2 of the Determination is titled “Rules for determining whether business names are 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 provides:
(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’.
The “Matters to be considered” are provided for in s 6 of the Determination:
(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.
As referred to in s 6(1) of the Determination, Schedule 1 of the Determination contains a list of “Words and expressions taken to be the same”.
CONSIDERATION
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 agrees with the Respondent’s submission that the correct approach to interpreting the BNR Act and the Determination is the one adopted by Senior Member Cotter in Boyce and Australian Securities and Investments Commission [2015] AATA 768 (Boyce). In Boyce, the Senior Member considered 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” (at para [34]).
The Tribunal agrees with the following statement from Senior Member Cotter in Boyce:
35. The starting point for this discussion is s 25(a), which relevantly provides that a business name is available if it is not identical, or nearly identical, to a business name registered to another entity, or a company name. It is clear that it anticipates a comparison being made between the respective names.
36. Section 25(a) gives effect to the object stated in s 16(3)(a), by ensuring that, in order to avoid confusion, identical and nearly identical names are not registered.
37. Section 26 then introduces the means by which the comparison under s 25 is to be carried out, by providing that the Minister may, by legislative instrument, make rules for determining whether a name is identical or nearly identical (as those terms are defined) to another name.
38. Section 16(4) completes the circle by providing that the objects in s 16(3) are ‘achieved’ by such rules. Interestingly, the section does not speak of the rules, for example, assisting, facilitating or furthering the objects. Rather, the word ‘achieved’ signifies that the relevant objects are being accomplished, carried through or brought about by the rules. That deliberate and definitive statement by the legislature, in my view, signals its intention - that the rules are the means, the exclusive means, by which the relevant object, namely the avoidance of confusion by ensuring that identical or nearly identical names are not registered, is to be effected.
39. In coming to that conclusion, I am acutely aware of the warnings that general statements of purpose or object in legislation need to be treated with caution. However, the specificity of the objects and the means by which they are to be achieved, and the clear and unequivocal language in which they are expressed, allay any concerns which I had in that regard.
40. In Stasiw and ASIC, the Tribunal did not read s 16(4) as ‘precluding the application of objects in areas of law lying beyond the provisions in the rules’. With respect, I do not share that view; the clear and unequivocal language and the specificity of the object and its means of being effected, do not warrant a further exploration of the ‘mischief’ to be addressed. While the plurality of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue acknowledged that the meaning of the text of legislation may require consideration of the context (including the general purpose and policy of a provision and in particular, the mischief it is seeking to remedy), they observed:
Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.
41. In the present context, subsections 16(3)(a) and 16(4) provide that guide to legislative intention; it is unnecessary to look any further. (Footnotes omitted.)

In Boyce, the Senior Member further stated, at [47]:
…is 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 (sic) 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).
For the sake of clarity, it is worthwhile pausing here to summarise these observations, with further reference to relevant provisions of the BNR Act, the Determination and other relevant decisions. In this regard, the Tribunal makes the following observations about the process of registration of a business name under the BNR Act and Determination:
(a)An entity (in this case, Perth Martial Arts Centre) that intends to carry on a business under a name make an application to ASIC for registration of that business name under s 23(1) of the BNR Act. The application must be in the prescribed form, must include certain information and the applicant must pay a registration fee (see s 23(2), (3), (4) and (6) of the BNR Act). As contemplated by s 17(2) of the BNR Act, registration does not create any proprietary right to the business name.
(b)Pursuant to s 24(1) of the BNR Act, ASIC must register the business name if it is satisfied that the business name is available, that the entity has an ABN, the registration fee has been paid, and the entity is not disqualified. The word “must” indicates that ASIC has no discretion - if s 24(1) is satisfied, it must register the business name. This was discussed by Deputy President Hanger in Alzheimer’s Association, at [48]:
Occasionally the word ‘must’ means ‘may’ but that is rare. The High Court has held that the test for distinguishing between whether a legislative requirement is directive or mandatory is to ask whether it was a purpose of the legislation that an act done in breach of the provision is to be invalid. The Court directed regard to be had to the language of the relevant provision and the scope and object of the whole statute, however ultimately accepted that there is no decisive rule. ‘Must’ and ‘may’ are used repeatedly and deliberately throughout this Act and bear their ordinary grammatical meaning (see for example sections 22, 27 and 47 where both ‘may’ and ‘must’ are used). Before one strains the language of section 24 to infer the word ‘may’ in the place of ‘must’, there should be a clear indication as such in the provision or the legislation as a whole. There is not. (As corrected by
s 43AA(1) statement, footnotes omitted.)
(c)The lack of discretion indicated by the use of the word “must” in s 24(1) of the BNR Act is supported by s 66 of the BNR Act which provides that ASIC may use computer programs to make decisions under the BNR Act. Such an automated form of decision-making necessarily involves a lack of discretion. As noted by Deputy President Hanger in Alzheimer’s Association at [52]:
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 BNR at present. If there was a discretion available in relation to each application, the burden imposed on ASIC would be oppressive…Furthermore, such a discretion would undermine Parliament’s intention of using an automated system to manage this register. 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. (Footnotes omitted.)
(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).
(e)Additionally, s 16(4) of the objects section of the BNR Act states that the objects in s 16(3) of the BNR Act “are achieved by rules dealing with the availability of business names”. As Senior Member Cotter indicated in Boyce at [38], the wording, “are achieved by rules”, is a further indication of the exhaustive and exclusive nature of the rules contained in the Determination.
(f)Section 5A of the Determination states that a business name is identical or nearly identical “if and only if” having disregarded the matters in s 5(1) of the Determination (none of which apply in this matter) and applying s 6(1) of the Determination, “the names are the same”. Again, the words “if and only if” indicate a lack of discretion in that only the matters in s 5(1) and s 6(1) of the Determination (which incorporates Schedule 1) are relevant. The Tribunal notes that the business name of Perth Martial Arts Academy was registered in capital letters, and that Perth Martial Arts Centre was registered in lower case letters, however, s 5(1) of the Determination provides that the size of the characters is to be disregarded.
(g)Section 6(1) of the Determination provides that a word or expression in an item in Schedule 1 is taken to be the same as each other word or expression in the item. As identified by Senior Member Cotter, Schedule 1 of the Determination contains an “exclusive and exhaustive list” of items that are to be taken to be the same. If a word or expression is not listed in an item in Schedule 1 as being the same, then it is not the same, and therefore not identical or nearly identical. This was explained by Senior Member McCabe in Smith, when he stated, at [15], “…the words of s 6 of the Determination make it clear the decision-maker must have regard to the words in Schedule 1 as they are written there in the course of considering whether a name is identical or nearly identical” (emphasis in original).
(h)Finally, although the BNR Act and rules contained in the Determination are expressed somewhat narrowly and inflexibly in terms of their prescriptive nature and lack of discretion, as Senior Member Cotter states, there is no “ambiguity” or “mischief” to be resolved by looking for meaning outside of the BNR Act and Determination. This means that the plain and ordinary meaning of the terms “academy” and “centre” do not need to be considered, and in fact cannot be considered. In making this observation, the Tribunal is guided by s 15AA of the Acts Interpretation Act 1901 (Cth) and the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, which are reproduced at paragraphs [54] and [55] of the decision in Alzheimers Association:
54. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides as follows:
‘In interpreting a provision of an 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.’
55. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ said:
‘[69] the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole.’’
As noted above, the objects of the BNR Act and specifically, how they are to be achieved, are clearly stated in s 16(3) and (4) of the BNR Act. Further, the approach adopted by the Tribunal in Smith, Boyce and Alzheimers Association, for the reasons outlined above, is the approach that is most “consistent with the language and purpose of all the provisions of the statute”.
With respect to the Applicant’s application, the relevant item in Schedule 1 of the Determination is item 263. This item lists the words “institute, academy, school, college” as words which are taken to be the same, and does not include “centre”. As the Tribunal, standing in the shoes of the original decision maker (ASIC), is required to treat this list and item as exclusive and exhaustive, the Tribunal therefore cannot find that “academy” and “centre” are identical or nearly identical. As explained above, the Tribunal cannot look outside of the parameters of Schedule 1 of the Determination by considering, for example, the plain and ordinary meanings of the words, “centre” and “academy” to determine whether their meanings are identical or nearly identical.
It is perhaps also relevant at this point to discuss the inclusion of the words, “academy” and “centre” in item 142 of Schedule 1 of the Determination as their inclusion together in this item may cause some confusion for the Applicant. This item is specific to “dance” and reads “142 academy of dance, dance academy, dance centre, dance studio, school of dance, dance, dance school”. Item 142 was discussed by Senior Member McCabe in Smith at [12]:
It is not clear why dance academies merit special protection, for example, when any other sort of entity in the business of providing instruction – in languages, hobbies, sports or even surfing – will be forced to rely on costly remedies at common law or under other statutes to protect their names and avoid confusion. Mr Rosewarne [counsel for the Respondent] acknowledged that anomaly, but suggested it was open to any business to lobby the Minister to have words or names added to Schedule 1.
A similar comment can be made about the present application. The teaching and practise of martial arts is an identifiable industry. It could even be regarded as a popular industry like dance, and yet, it has not been included in Schedule 1 of the Determination. The Applicant may wish to consider, as identified by Senior Member McCabe in Smith lobbying the Minister to have martial arts similarly added to Schedule 1 of the Determination. Additionally, as contemplated by s 17(1) of the BNR Act, there are other legal remedies available to the Applicant to remedy the use of a similar business name by a third party, including consumer law and passing off.
DECISION
For the reasons set out above, the Tribunal is precluded by the relevant provisions of the BNR Act and the Determination from finding that the business names, Perth Martial Arts Academy and Perth Martial Arts Centre are identical or nearly identical.
Accordingly, the business name was available to be registered by ASIC and the Tribunal must affirm the Reviewable Decision.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.................[sgd].......................................................
Administrative Assistant - Legal
Dated: 28 September 2018

Date of hearing: 26 July 2018

Applicant: In person

Instructing solicitor for the Respondent: Nicholas Goodstone

Counsel for the Respondent: Ms Tamasin Jonker

Date of hearing:	26 July 2018
Applicant:	In person
Instructing solicitor for the Respondent:	Nicholas Goodstone
Counsel for the Respondent:	Ms Tamasin Jonker