Subiaco's Past Players and Officials Association Incorporated and Commissioner For Consumer Protection

[2009] WASAT 2

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: ASSOCIATIONS INCORPORATION ACT 1987 (WA)

CITATION:   SUBIACO'S PAST PLAYERS AND OFFICIALS ASSOCIATION INCORPORATED and COMMISSIONER FOR CONSUMER PROTECTION [2009] WASAT 2

MEMBER:   MR P McNAB (MEMBER)

HEARD:   7 OCTOBER 2008

DELIVERED          :   13 JANUARY 2009

FILE NO/S:   CC 481 of 2008

BETWEEN:   SUBIACO'S PAST PLAYERS AND OFFICIALS ASSOCIATION INCORPORATED

Applicant

AND

COMMISSIONER FOR CONSUMER PROTECTION
Respondent

Catchwords:

Voluntary associations - Associations and clubs - Formation of association - Incorporated associations - Proposed incorporation under Associations Incorporation Act 1987 (WA) - Name of association - Objection to proposed incorporation - Objector club already incorporated - Rival clubs associated with football club - Whether names resembled one another - Names found to be similar - Whether likelihood of confusion - Whether likelihood of public being misled - Objects and purposes of association - Commissioner refused applicant club's request not to incorporate rival - Tribunal upholding Commissioner's decision - Name did not relevantly mislead the public - Words and phrases: 'likely'; 'mislead'; 'resemble'

Legislation:

Associations Incorporation Act 1987 (WA), s 7, s 8, s 9, s 35, s 35(2)(b)

Result:

Application for review dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr W McDonald

Respondent:     Mr J Garas and Ms H Kerr

Solicitors:

Applicant:     Dwyer Durack

Respondent:     Department of Commerce

Case(s) referred to in decision(s):

Cardell Insurance Agencies Pty Ltd v Corporate Affairs Commission [2003] SADC 137

Catholic Church of Diocese of Darwin Property Trust v Monteiro (1987) 87 FLR 427

Drake v Commissioner for Corporate Affairs (unreported, Supreme Court of Western Australia, 19 April 1999, [BC9901808])

Re Woollard and Australian Electoral Commission [2001] AATA 166; (2001) 32 AAR 492

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. A split in a supporters' and past players' club associated with a local football club led to the eventual dissolution of the supporters' club, and to the formation of two rival successor clubs.  One of these became incorporated under the Associations Incorporation Act 1987 (WA) and thereafter maintained an objection to the incorporation of the other.

2. The principal ground of objection to incorporation related to the similarity of the names of the respective rivals.  It was suggested that the public might be misled or confused by second club's name.

3. The Commissioner for Consumer Protection refused the club's request not to incorporate the second club under the Act and the incorporated club then sought a review of that decision in the Tribunal.

4. The Tribunal agreed with the Commissioner.  When regard was had to the purposes of the Act and the particular language used, the possibility of mere confusion as between the two bodies was insufficient to deny the second club corporate status under the Act.

5. The application for review was dismissed and the decision under review was affirmed.

Introduction

1. On 2 April 2008, Mr Ross Carson, who is the secretary of a club known as 'Subiaco's Past Players and Officials Association' (SPPOA, now incorporated) which purports to be the successor organisation to the 'Subiaco Football Club Past Players and Officials Association Inc' (SFCPPOA), sought a review of the respondent Commissioner for Consumer Protection's (Commissioner) decision to incorporate a rival organisation (the 'SFC Lions Past Players and Supporters Association' - SFCLPPSA) notwithstanding his club's objection to that course of action.

2. In summary, the grounds of the objection originally made to the Commissioner (and reiterated in this Tribunal) were the similarity of the two clubs' names and their objectives, and the existence of a long standing club (then awaiting incorporation), namely Mr Carson's SPPOA, as 'true' successor to SFCPPOA.  It would also be alleged that the second club (SFCLPPSA) was 'being set up for the purpose of confusing the public'.

3. This dispute is part of a wider rift between the two clubs or factions, the second club (SFCLPPSA) having been formed, it appears, by a breakaway faction of the original SFCPPOA. 

4. Mediation organised by the Tribunal did not resolve the parties' disputes.

5. The Commissioner concluded that the proposed name was 'sufficiently different to any currently incorporated association' and that the proposed name was 'not likely to confuse or mislead the public either as to its objects or purpose or at all'.  Further, the Commissioner was of the view that there was no evidence that the SFCLPPSA was set up to confuse the public.  The Commissioner therefore proposed to incorporate SFCLPPSA.

6. The Commissioner has delayed implementation of the decision to incorporate SFCLPPSA pending this review.

7. The review is governed by the provisions of the Associations Incorporation Act 1987 (WA) (Act), the material parts of which are set out below.

The background to the objection

1. The Commissioner has been involved in resolving a number of internecine disputes stemming from the unravelling of the SFCPPOA.  It is unnecessary to record all of these interventions (or requests for intervention), except to note this summary of the main events relevant to the current proceedings:

   1)SFCPPOA had its incorporation cancelled by the Commissioner on 30 June 2008: see s 35 of the Act. Formal notice of that event was given in writing on 9 April 2008. This was a result of the Commissioner reaching the view that the organisation had ceased to be operative 'for the preceding 12 months' principally because 'two Committees have each purported to run SFCPPOA'. In addition, the organisation's funds had been frozen in a bank account.

   2)Although foreshadowed as a possibility by the applicant, in the event no proceedings for a review of the cancellation in the Supreme Court were brought by the applicant (see s 35(2)(b) of the Act). No review of the Commissioner's decision on cancellation is possible in this Tribunal.

   3)The Commissioner saw no objection to the incorporation of the SPPOA after the cancellation of the incorporation of the SFCPPOA.  The Commissioner took the view that there would be no incorporation of SPPOA until that event as the name '[was] considered to be too similar to [SFCPPOA] and would likely confuse the public'.  Incorporation of SPPOA accordingly took place on 4 July 2008.  As we shall see, this fact is relied upon by the applicant to assist with an argument that the two competing clubs (that is, SPPOA and SFCLPPSA) also resemble one another.

   4)The Commissioner has declined to refuse the incorporation of the SFCLPPSA.  The review relates to the SPPOA which since the original application to the Tribunal has, as is discussed above, now been incorporated.

The legislative framework

1. So far as is relevant, the Act provides as follows:

   6.Advertisement of intended application

   (1)An applicant for incorporation must cause an advertisement in the prescribed form to be published once in a newspaper circulating in the area where the association is situated or conducts its affairs.

   (2)…

   7.Request for refusal of incorporation

   (1)Any person may, within one month after the publication of the advertisement referred to in section 6, request the Commissioner to decline to incorporate the association under this Act and such a request must include the reasons for the request.

   (2)If the Commissioner refuses a request made under subsection (1), the person who made the request may, within 14 days of receiving notice of the refusal, apply to the State Administrative Tribunal for a review of the decision of the Commissioner.

   8.Name of association

   (1)The Commissioner shall not incorporate an association under this Act by a name that in the opinion of the Commissioner is -

   (a)offensive or undesirable;

   (b)likely to mislead the public as to the object or purpose of the association;

   (c)identical with the name by which an association in existence is already incorporated under this Act or the repealed Act or which resembles any such name in a manner likely to mislead the public; or

   (d)identical with or likely to be confused with the name of any other body corporate or any registered business name.

   (2)If the Commissioner refuses to incorporate an association under this Act by a name that in his opinion is not appropriate having regard to subsection (1), the applicant for incorporation may apply to the State Administrative Tribunal for a review of the decision of the Commissioner.

   9.Incorporation of association

   (1)If upon an application duly made in accordance with this Part the Commissioner is of the opinion -

   (a)that the association is eligible to be incorporated under this Act;

   (b)that the rules of the association lodged with the Commissioner conform to the requirements of this Act;

   (c)that the name of the association is appropriate having regard to section 8; and

   (d)that the time during which any request might be made under section 7 has expired and any request made under that section has been finally refused,

   the Commissioner shall, subject to subsection (2), incorporate the association by the issue to the association of a certificate of incorporation.

   (2)The Commissioner shall not incorporate an association under this Act if in his opinion -

   (a)it is more appropriate for the activities of the association to be carried on by a body corporate incorporated under some other law; or

   (b)the incorporation of the association is against the public interest.

   (3)If the Commissioner refuses an application for incorporation under subsection (2), the applicant for incorporation may apply to the State Administrative Tribunal for a review of the decision of the Commissioner.

The issues to be decided

1. During an earlier directions hearing in the Tribunal, the Tribunal raised with Mr D Creedon (then counsel for the Commissioner) the question of the scope of the review; that is to say, how is an objection (a 'request' upon specified grounds) received by the Commissioner under s 7 of the Act to be assessed? In particular, is such a request limited to the matters specified in s 8 and s 9, or can other grounds of objection be raised as well? This inquiry to counsel was driven, in part, by the long detailed list of written accusations made by Mr Carson and filed with the Tribunal concerning the conduct, behaviour and affairs of the other faction.

2. In the event, the Commissioner's case initially proceeded upon the premise that the Commissioner (and therefore, on review, the Tribunal) needed to be satisfied as to each of the matters specified in s 8(1)(a) to (d), and the additional 'public interest' test in s 9(2)(b) before making a decision to incorporate. At the final hearing, the Commissioner's then counsel in effect submitted that the matter had been reduced to issues solely reflected in s 8(1)(b) to (d) of the Act. As I understand the applicant's case, this approach is largely common ground, although the applicant sought to lead evidence showing that Mr A Cochrane (from the rival faction) had allegedly made misleading statements on a web site. However, most of the fact-related arguments before the Tribunal were about the extent to which the 'competing' organisations were similar to each other in name or object, and how relevant third parties might perceive any difference.

3. The Tribunal has proceeded upon the basis that the scope of the review is as has been indicated by the parties.

The respondent's case

1. Mr J Garas, who appeared for the Commissioner at the final hearing, argued that the proper approach to s 8 of the Act was to be found in the purpose and scope of the Act reflected in, for example, the Act's long title:

   An Act to provide for the incorporation of associations, [and] for the regulation of the affairs of incorporated associations …

2. There is nothing in the Act that suggests that the grant of monopoly rights to a name is an object of the Act; rather, incorporation of relevant bodies is the goal.  In short, provided the statutory tests are met, competing bodies of and in civil society can have overlapping membership and pursue similar goals.  It would not be up to the Commissioner (or, on review, this Tribunal) to make, in effect, judgments about the respective worth of such bodies, provided that the public, generally speaking, is not relevantly misled.

3. Thus, it is argued that the written objects of the SFCLPPSA (see cl 2 of its constitution), which broadly deal with football in its local, social and cultural context for past players, officials and supporters, is entirely consistent with the name of the proposed association ('represents the truth', as Mr Garas put it). Thus, s 8(1)(b) of the Act is satisfied in that the name is not 'likely to mislead the public as to the object or purpose of the association'.

4. As to the first limb of s 8(1)(c) of the Act (that is, having an identical name), it is suggested that this invites relatively simple side-by-side comparison. It is submitted that this test is not offended on the facts here. On the second limb of s 8(1)(c) ('resembles any such name in a manner likely to mislead the public'), it is suggested that:

   First, the Commissioner [or Tribunal] must compare the names by looking at similarities and differences.  The Commissioner must assess the importance of those similarities and differences having regard to the essential features of the names and the total impression of resemblance or dissimilarity that emerges from the comparison.

   If the total impression is one of resemblance then the Commissioner must assess whether the public is likely to be mislead [sic].  In determining whether the public is likely to be mislead [sic], there must be a misrepresentation conveyed by the proposed name.

5. Here, it is submitted that the alternative names 'are descriptive and are not distinctive of either association'; that none of the essential terms in either of the names 'resemble each other'; that 'Subiaco' is a 'geographical location that is very commonly used in [the] names of businesses and associations'; however 'SFC Lions' can be, when considered by itself, seen as 'distinctive'; and '[o]bjectively, having regard to the essential features, the total impression from the comparison is one of dissimilarity not resemblance'.

6. On the question of misleading the public, it is submitted that members are past players and supporters of 'SFC Lions' which 'represents the truth' and is therefore not misleading.  Further, the proposed name 'does not suggest any association or affiliation with [SPPOA]'.  Finally, it is submitted that:

   Any number of associations made up of past players of the same football club may co-exist.  Members of the public might wonder whether they are connected, but if their names only represent the truth, none of them can be said to mislead the public.

7. On the remaining issue raised by s 8(1)(d) of the Act ('identical with or likely to be confused with the name of any other body corporate or any registered business name'), the respondent submits as follows:

   Section 8(1)(d) of the Act must be considered in context. Two points emerge.

   First, the reference to 'any other body corporate' means any other body corporate other than the incorporated associations considered for the purposes of s 8(1)(c).

   Secondly, (and even if, contrary to the first point, s 8(1)(d) involves a comparison with the names of incorporated associations), the test is one of visual comparison. It precludes incorporation where:

   a)a proposed name is identical to the name of a body corporate or business (which the [a]pplicant concedes is not the case here); or

   b)the proposed name is so similar in wording and appearance to the name of a body corporate or business that only a careful and discerning observer would distinguish between them and not confuse or mistake them as being one and the same name.

   'SFC Lions Past Players and Supporters Association' could not be confused with or mistaken for 'Subiaco's Past Players and Officials Association'.  The difference, especially, between 'Subiaco's' and 'SFC Lions' is obvious and would be distinguishable even on a cursory glance.

The applicant's case

1. Mr W McDonald, who appeared for the applicant, submitted as follows:

   1)By reference to the constitution of an interested third party, namely the 'West Australian Football League Combined Past Players and Officials Association Inc' (WAFLCPPOA), which contemplates one representative of past players and officials for each relevant football club, the public are likely to be misled as to the object or purpose of the proposed association in that it is or could be affiliated to WAFLCPPOA in place of the applicant club: s 8(1)(b) of the Act. The Secretary of WAFLCPPOA (Mr B Hughes) gave evidence that only one such affiliate would be permitted, and that SPPOA's application for that position (the only application so far) had been suspended until the decision of the Tribunal was known.

   2)If the Commissioner considered 'Subiaco' and 'Subiaco Football Club' as too similar (see above, in relation to the delay in incorporation of SPPOA until after the cancellation of the incorporation of the SFCPPOA), it followed as a matter of logic that the only real difference of substance between the two rival organisations was the inclusion of 'Supporters' in one name and 'Officials' in the other. Thus, it is submitted, as a matter of ordinary English, the proposed clubs do 'resemble' each other in name in a manner likely to mislead the public: see s 8(1)(c) of the Act.

   3)The proposed association (SFCLPPSA) would be likely to be confused with the name of the SPPOA, within the meaning of s 8(1)(d) of the Act, as 'all past players and officials must necessarily [also] be supporters'.

2. As has been mentioned, the applicant also sought to lead evidence showing that Mr A Cochrane (from the rival faction, which is the proposed association) had allegedly made incorrect or misleading statements on a football club web site concerning the SPPOA and its incorporation.  It is unnecessary to go into these matters as in the Tribunal's view such matters are beyond the scope of the review.  What Mr Cochrane is alleged to have said or done, while useful perhaps to explain some of the context of the current dispute, is irrelevant to the statutory task related to incorporation given to the Commissioner and, on review, to this Tribunal.

The relevant case law

1. Both parties made submissions on the relevance of Re Woollard and Australian Electoral Commission [2001] AATA 166; (2001) 32 AAR 492 (Re Woollard), a Commonwealth electoral case in the Administrative Appeals Tribunal (AAT) which dealt with the registration of political parties.

2. There, the relevant electoral law provided that parties with certain names were not to be registered.  This included the case where the name,

   so nearly resembles the name, or an abbreviation or acronym of the name, of another political party (not being a political party that is related to the party to which the application relates) that is a Parliamentary party or a registered political party that it is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be.  (Emphasis added.)

3. The AAT was constituted by Gray, French and Nicholson JJ.  Their Honours overturned a decision not to register 'liberals for forests' as a political party.  In the course of their reasons, they said, at [44]:

   In summary, the [Electoral] Commission, forming its opinion … must determine:

   •whether there is a resemblance between the proposed name, abbreviation or acronym and one already entered in the Register;

   •if so, whether there is a real chance, flowing from that resemblance, that the proposed name, abbreviation or acronym will be mistaken for one already entered in the Register in the sense that an elector intending to vote for the political party with prior registration marks a vote for the newcomer because he or she thinks its name is the name of the party which is intended to receive the vote;

   •alternatively, whether there is a real chance that the proposed name, abbreviation or acronym will cause electors to think that it is the same as the name of the pre-registered party or to be left in such uncertainty as to which name attaches to which organisation that no informed vote can be cast without some additional information.

1. Their Honours went on to conclude as follows (at [45] - [46], emphasis added):

   The relevant resemblance in this case must be found between the proposed name 'liberals for forests' and the name of the Liberal Party of Australia or any of its State divisions or the registered abbreviation 'Liberal'.  There is a resemblance deriving from the use of the word 'liberals'.  This resemblance is limited.  It is entirely related to the generic term 'liberal' used in each party's name and, in the case of the Liberal Party of Australia, and its State Divisions, in their registered abbreviations.

   The term 'liberals for forests' is a combination of words emphasising a specific issue and describing a party by a name different from that of the Liberal Party of Australia or any of its State divisions.  It may be that some persons will draw the inference that members of 'liberals for forests' are former members or have some affiliation with the Liberal Party of Australia or one of its State divisions.  It is unlikely that any elector, seeing the two names on a ballot paper, will draw the conclusion that 'liberals for forests' is a political party related to the Liberal Party of Australia or any of its State divisions.  In this case, the possibility that the name 'liberals for forests' could be mistaken for the registered name 'Liberal Party of Australia (WA Division) or the abbreviation 'Liberal' is, in the opinion of the Tribunal, not such as is 'likely' to occur in the sense explained earlier, namely that there is a real chance that it will occur.  Similarly, the possibility that an elector confronted with the two names on a ballot paper would be in a state of uncertainty as to whether one was the other is not such as to amount to a likelihood.  It is not accepted that there is any real risk that the name 'liberals for forests' will be confused with or mistaken for the name 'Liberal Party of Australia' or the name 'Liberal'.

2. Although the context and statutory language are different from the case here, the AAT's approach is nevertheless instructive.  In particular, Re Woollard has a useful exegesis on the words 'resemble', 'confusion' and 'likely' as applied to the particular statutory context:  see [37] - [39].  The following passages are helpful:

   The first subject of consideration … is the question of resemblance.  For one thing to 'resemble' another does not require identity of appearance.  The relevant meaning from the Oxford English Dictionary is:

   '1.to be like, to have likeness or similarity to, to have some feature or property in common with (another person or thing).'

   The other key elements are 'confusion' and 'mistake'.  The relevant meanings of the word 'confuse' are:

   '2.To discomfit in mind or feelings; to abash; to bewilder.

   …

   3.To throw into disorder or confusion.

   …

   5.To mix up in the mind, fail to distinguish.'

   …

   The word 'mistake' as a verb is relevantly defined thus:

   '1.To take wrongfully, wrongfully or in error.

   …

   3.To err in the choice of.

   …

   8.To mistake (a person or thing) for (another):  to suppose erroneously the former to be the latter;

   …

   9.To take to be somebody or something else'.

   …

   The resemblance to be determined is between the name, abbreviation or acronym of the party seeking registration and the name, abbreviation or acronym of a registered party.  If of the opinion that there is a relevant resemblance, the Commission must then consider whether it is 'likely' to have either or both the disqualifying consequences.  In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 339, Bowen CJ said:

   The word 'likely' is one which has various shades of meaning.  It may mean 'probable' in the sense of 'more probable than not' - 'more than a fifty per cent chance'.  It may mean 'material risk' as seen by a reasonable man 'such as might happen'.  It may mean 'some possibility' - more than a remote or bare chance.  Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

   It would be too limited a view of the protection provided by [under the relevant legislation] to say that it operates only against relevant confusion or mistake which is more likely than not to occur if registration proceeds.  The term 'likely', in this setting, is a direction to the Commission to make an assessment of the risk that registration will have the consequences referred to.  That risk will not be remote or fanciful but, within the limits imposed by the language of the paragraph, will be relevant to the integrity of the voting process.  It may be a risk seen as affecting all electors or it may be seen as affecting a proportion of that population.  The assessment will have regard to the fact that not all electors are equally knowledgeable of political parties, nor equally intelligent in discriminating between different terms used on a ballot paper, nor equally literate in appreciating that terms do differ.  The task of assessment involves a practical judgment.  It is the kind of judgment which courts are frequently called on to make and one which administrators with the appropriate expertise are also required to make from time to time.

3. So too, here, I think, where 'likely' would not mean 'more likely than not' but would require a 'practical judgment' to be made as regards the risk, not being a 'remote or fanciful' risk, as to either confusion or being misled in respect of the two names, in the context of the Act's purposes.

4. In Drake v Commissioner for Corporate Affairs (unreported, Supreme Court of Western Australia, 19 April 1999, [BC9901808]) (Drake), the Full Court of the Supreme Court of Western Australia dealt with an application for judicial review in relation to the registration of two similar business names.  The regulatory standard was a prohibition on names 'that are likely to be confused with or mistaken for a business name registered in Western Australia'.  Drake was mentioned in passing in Re Woollard, but not relied upon (see: [28] and [36]).

5. Owen J (with whom Kennedy J and White J agreed) said (emphasis added):

   The question is not one to be determined by reference to evidence of actual confusion or mistake but by reference only to the likelihood of confusion or mistake.  This is an objective test.  Of course, evidence of actual confusion is a factor to be taken into account but it is not determinative.  Here, the names are quite different.  One has two words, the other has four ['Drake's Engineering Inspection Services' and 'Drake Engineering'].  I do not accept the proposition that they relate to the same core business.  The business of the intervener is primarily that of staff placement and related human resources activities.  As appears from the letter of 27 November 1996 the corporate entity, Drake Personnel Ltd, carries on business under a number of different business names.  Different names are employed with respect to different industries, trades, callings or professions.  The name 'Drake Engineering' is utilised by the intervener in its activities in the engineering industry.  The business carried on by the applicant is quite different.  There is nothing to suggest that it is involved in personnel placement.  As I read the documents it provides a specialised service for testing and maintaining equipment used in industrial activities.

6. Drake was applied by the Court in Cardell Insurance Agencies Pty Ltd v Corporate Affairs Commission [2003] SADC 137 (Cardell).  Robertson DCJ was hearing an administrative appeal from a decision by the Corporate Affairs Commission,

   refusing to register the business name 'Australian Seniors Insurance Agency' under the Business Names Act 1996 [SA] … The Commission considered that the name was very similar to the name of Australian Pensioners Insurance Agency Pty Ltd, which is a registered company. The Commission formed the view that because of the similarity in name this could result in an increased chance of confusion or mistake being made by consumers. (At [1].)

7. The regulatory standard there was whether the registration of the business name was 'likely to be confused with or mistaken for the name of' Australian Pensioners Insurance Agency Pty Ltd.  His Honour said (at [15] and [22], emphasis added):

   There are significant similarities between the two names.  As the Commission noted the only difference between the two names are the words 'Pensioners' and 'Seniors'.  The Commission interpreted those two words to mean the same thing.  In my opinion, they were not entitled to do so.  The word 'Pensioner' in ordinary Australian language is understood to mean a class of people who receive some form of pension, including an Aged pension.  I think I am entitled to take into account that the word 'Seniors' has a meaning in Australian contemporary language as being somebody of quite mature age.  In other words a person whose age was beyond what would be recognised as 'middle aged'.  The word can include people who are of mature age and who also are in receipt of a pension of some form or another.  It can also be taken to mean people who are of mature age who are not receiving a pension.  In my opinion the meaning of the word 'Seniors', is of wider import than the word 'Pensioners'. …

   In my opinion, whilst the names are similar the central word in each of them, namely, 'Pensioner' and 'Senior' have different meanings.  Added to this, is the evidence of absence of confusion or mistake between the two names over a period of approximately five years in the context that both organizations have substantial business operations in the Australian market place.  Taking all these factors into account, and applying the test objectively the conclusion is reached that it is not likely there will be confusion or mistake with Australian Pensioners Insurance Agency Pty Ltd if the Commission registers the business name 'Australian Seniors Insurance Agency'.

8. The Encyclopaedic Australian Legal Dictionary (LexisNexis Butterworths) gives the following analysis of the concept of '[m]isleading or deceptive conduct' which appears in a variety of statutory consumer protection and common law forms (statutory and case citations have been omitted, emphasis added):

   Conduct [engaged] in by a corporation, which tends to lead a consumer into error as to its meaning.  The most appropriate meaning for 'deceive' is to cause to believe what is false, to mislead as to a matter of fact, to lead into error, to impose upon, delude, or take in; the most appropriate meaning for 'mislead' is to lead astray in action or conduct, to lead into error, or to cause to err.  In determining whether conduct is misleading or deceptive the court will consider how such conduct is likely to be interpreted by the public, and people of varying mental capacities and levels of education.  Conduct likely to confuse the consumer may or may not be misleading or deceptive.  A statement that is literally true may none the less be misleading and deceptive.  The provision has been interpreted widely by the courts, and liability is analogous to liability in tort …

9. In contrast, the term '[m]ere confusion' is discussed in the same work as follows (emphasis added):

   In consumer protection law, [the term means] uncertainty, misunderstanding or puzzlement.  The courts have drawn a distinction between conduct which merely confuses a consumer, and conduct which misleads or deceives or is likely to mislead or deceive a consumer and therefore contravenes the consumer protection legislation.

10. The choice of the Legislature when enacting s 8(1)(c) of the Act to use 'mislead' as the relevant regulatory standard suggests attention to the use of the term in the contrasting ways discussed immediately above.

Discussion of the case

1. It is convenient first to deal with s 8(1)(d) of the Act. In my view, the reference to 'any other body corporate' there appearing cannot be understood as a reference to bodies incorporated under the Act itself. This is because s 8 of the Act consistently refers to (and thus clearly distinguishes between) an association incorporated under the Act and 'any other body corporate' as appears solely in s 8(1)(d). Section 8(1)(d) thus has no relevance to this review.

2. In my view, the term 'SFC Lions', when understood in its context but in its popular sense by persons of ordinary intelligence in this State (cf the reference above to 'Australian contemporary language' in Cardell), would be likely to be assigned a meaning by reference to or in connection with the 'Subiaco Football Club'.  Thus, whilst they are not identical, applying the ordinary meaning of 'resemble' (see above) I think that the two clubs do resemble one another in name (s 8(1)(c)).  However, neither is likely to mislead the public as to their objects or purposes (s 8(1)(b)) as, to adopt Mr Garas' analysis, both are in fact clearly 'true' as regards their respective objects or purposes; hence the rivalry between them.

3. This leaves only one issue to be decided:  does the SFCLPPSA resemble 'any such name [that is, SPPOA] in a manner likely to mislead the public' (s 8(1)(c))?  This question must be answered with the Act's underlying purpose in mind.  This is to facilitate the incorporation of associations and thereafter to regulate their affairs.

4. In my view, while a member of the public might approach the two organisations with some 'uncertainty, misunderstanding or [even] puzzlement' (or with similar doubts) as to, say, the differences between them, there is no likelihood that they would relevantly 'err' or be '[led] astray in action or conduct' towards such organisations sufficient to deny the proposed body corporate status under the Act.  Thus, to take a practical example of immediate relevance, the WAFLCPPOA - even apart from any knowledge that it might have gleaned from its involvement in these proceedings - is unlikely to be led astray in the judgment it has to make as to affiliation by the mere incorporation of a rival club with a similar name.

5. I am conscious of the fact that this conclusion appears to depart from earlier suggestions by some Judges that appear to rely upon avoiding any confusion as a regulatory value in itself.  See, for example, Nader J in the Supreme Court of the Northern Territory and the authorities His Honour discusses in Catholic Church of Diocese of Darwin Property Trust v Monteiro (1987) 87 FLR 427 at 445 - 446, albeit in a regulatory context where names could not be 'undesirable'. However that may be, and with great respect, Re Woollard suggests that a more nuanced analysis is required, one that pays particular attention to the underlying purposes of the relevant statute taken as a whole, rather than perhaps over­emphasising questions of mere confusion.  This is what I have attempted to do in this review.

6. Resemblance in name of the proposed association does not in this case relevantly mislead the public. The Commissioner was therefore correct to refuse the applicant's request made under s 7 of the Act.

7. The application for review will therefore be dismissed.

Orders

1. For the reasons given above the Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision under review is affirmed.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR P McNAB, MEMBER