Swinburne & McFarlane and Australian Securities and Investments Commission
[2014] AATA 602
[2014] AATA 602
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3664, 2014/0980
Re
G C Swinburne & F J McFarlane
APPLICANTS
And
Australian Securities and Investments Commission
RESPONDENT
And
Child Psychology Services Pty Ltd
JOINED PARTY
DECISION
Tribunal Deputy President F J Alpins
Date 26 August 2014 Place Melbourne 1. In application 3664 of 2013:
(a) the decision under review is set aside;
(b) in substitution, the Tribunal decides to set aside the decision to register the business name “Melbourne Child Psychology” to Child Psychology Services Pty Ltd; and
(c) the Tribunal decides that the application for registration of the business name “Melbourne Child Psychology” to Child Psychology Services Pty Ltd is refused.
2. In application 0980 of 2014:
(a) the decision under review is set aside;
(b) in substitution, the Tribunal decides to set aside the decision to register the business name “Melbourne Child Psychology Services” to Child Psychology Services Pty Ltd; and
(c) the Tribunal decides that the application for registration of the business name “Melbourne Child Psychology Services” to Child Psychology Services Pty Ltd is refused.
.........................[sgd]...............................................
Deputy President F J Alpins
REGISTRATION OF BUSINESS NAMES – Business Names Registration Act 2011 (Cth) - whether business names “available” for registration – whether business names “identical or nearly identical” to business name registered to another entity – meaning of “nearly identical” – construction of legislative instrument made under Act - effect of provision granting power to use computer programs to make decisions on construction of Act and legislative instrument
Legislation
Business Names Registration Act 2011 (Cth) ss 3, 4, 5, 16, 18, 22, 23, 24, 25, 26, 27, 28, 34, 56, 57, 58, 66
Legislative Instruments Act 2003 (Cth) ss 5, 13
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB, 33(2A)
Business Names Registration (Availability of Names) Determination 2012 (Cth) ss 2, 4, 5, 6, 7, Sch 1
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398
Australian Tea Tree Oil Research Institute v Industry Research & Development Board (2002) 124 FCR 316
Baini v R [2012] HCA 59
Brennan v Comcare (1994) 50 FCR 555
Carr v Western Australia (2007) 232 CLR 138
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511
Falconer v Pederson [1974] VR 185
Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100
Gill v Donald Umberstone & Co Ltd [1963] 3 All ER 180
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488
Manly Council v Malouf (2004) 61 NSWLR 394
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101
MelbournePathology Pty Ltd & Ors v Minister For Human Services & Health & Ors (1996) 40 ALD 565
Minister for Immigration & Citizenship v Anochie (2012) 209 FCR 497
National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation (Cth) (2008) 74 ATR 173
One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125
Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 309 ALR 225
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Re B & L Whittaker Pty Ltd & Australian Securities and Investments Commission [2014] AATA 302
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fishing Party and Australian Electoral Commission (2009) 100 ALD 172
Re Smith & Australian Securities and Investments Commission [2014] AATA 192
Re Woollard v Australian Electoral Commission [2001] AATA 166
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Sea Shepherd Australia Limited v Commissioner of Taxation (2013) 212 FCR 252
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Thiess v Collector of Customs (2014) 306 ALR 594
Whittaker v Comcare (1998) 86 FCR 532
Secondary Materials
Business Names Registration Bill 2011 Explanatory Memorandum
Automated Assistance in Administrative Decision Making, Report to the Attorney-General, ARC Report No. 46 (November 2004)
Macquarie Dictionary (6th ed, Macquarie Library, 2013)
Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007)
REASONS FOR DECISION
Deputy President F J Alpins
26 August 2014
INTRODUCTION
The respondent, the Australian Securities & Investments Commission (“ASIC”), maintains a statutory register of business names, known as the Business Names Register, under the Business Names Registration Act 2011 (Cth) (the “Act”).
The business name “Melbourne Children’s Psychology Clinic” has been registered to the applicants, Dr Swinburne & Dr McFarlane, for some time. In 2012, the name “Melbourne Child Psychology” was entered in the Register. Last year, the name “Melbourne Child Psychology Services” was also registered. Those two names were entered in the Register upon application by a different party, Child Psychology Services Pty Ltd, which has been joined to these proceedings.
As is customary, the two subsequent business names were registered upon online application, using ASIC’s online portal, called “ASIC Connect”.
The applicants contend that those two names should not have been registered. ASIC maintains that it was required to register them. The joined party supports ASIC’s position.
A business name must be “available”, according to the statutory meaning of that term, in order to be registered. That is only so if, amongst other things, the business name is not “identical or nearly identical” to a business name registered to another entity. In these proceedings, the essential issue is whether the subsequently registered names are “nearly identical” to the applicants’ registered name for the purposes of the Act. It is also necessary to consider whether, and if so how, the use by ASIC of computers to make decisions about the registration of business names affects the resolution of that issue.
FACTS AND PROCEDURAL HISTORY
Since 2009, the business name “Melbourne Children’s Psychology Clinic” has been registered to the applicants as partners.
In 2012, the joined party successfully applied online, through ASIC’s online portal, for registration of the business name “Melbourne Child Psychology”. In 2013, the joined party successfully applied, in the same manner, for registration of the business name “Melbourne Child Psychology Services”.
The applicants applied to ASIC for review of each of the decisions to register those names to the joined party. On each occasion, ASIC affirmed the decision under review. These proceedings are applications for review of ASIC’s decisions to affirm its decisions to register each of the subsequently registered names.
LEGISLATION
The Act
As I have indicated, the registration of business names is governed by the Act. ASIC is required to maintain a Business Names Register (s 22(1) of the Act), the purpose of which “is to enable those who engage or propose to engage with a business carried on under a business name to identify the entity carrying on the business and how the entity may be contacted” (s 22(2)). A “business” is defined to mean an “activity, or series of activities, done” in various forms including “in the form of a profession” (s 4(1) of the Act). A “business name” is defined to mean “a name used, or to be used, in relation to one or more businesses” (s 3). An “entity” includes a body corporate and a partnership (see s 5(1)).
The objects of the Act are set out in s 16. The first stated object is “to ensure that if an entity carries on a business under a business name, those who engage or propose to engage with the business can identify the entity and how the entity may be contacted” (s 16(1)(a)). That object is said to be “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” (s 16(2)) and therefore accords with the purpose of the register specified in s 22(2).
Section 16(3)(a) provides that another object of the Act is “to avoid confusion by ensuring that business names that are identical or nearly identical are not registered”. The other objects set out in s 16(3) are to ensure that “undesirable” names and “names that should be restricted for any other reason” are not registered. Section 16(4) provides that the objects mentioned in s 16(3) “are achieved by rules dealing with the availability of business names”.
It is an offence for an entity to carry on business under a name which is not registered to it as a business name on the Business Names Register (s 18(1) of the Act).
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 (s 23(1) of the Act). The application must be in the prescribed form and must be lodged in the prescribed manner (s 23(3)).
Section 24 of the Act provides that ASIC must register the business name to the entity upon such application if ASIC is satisfied, amongst other things, that “the name is available to the entity” (s 24(1)(c)).
Section 25 of the Act governs the availability of business names for the purposes of s 24(1)(c). Relevantly, it provides that a business names is available to an entity if “the name is not identical or nearly identical to ... a business name registered to another entity” (s 25(a)(i)). I note in passing that the collocation “identical or nearly identical” is employed in other provisions of s 25, so that the name the subject of the application must not be “identical or nearly identical” to certain other names (s 25(a)) and certain names must not be “identical or nearly identical” to the name the subject of the application (ss 25(b), 25(c)).
For a name to be available to an entity, further provisions under s 25 must be satisfied. The name must not be “of a kind that is undesirable” or alternatively must have nevertheless been the subject of a determination made by the Minister (under s 27(2)) that it is available to the entity (s 25(d)). Furthermore, the name must not be constituted by, nor include, a “restricted word or expression” or alternatively the entity must satisfy a relevant condition (s 25(e)).
It is convenient at this point to note certain other provisions of the Act. Provision is made for circumstances where an application for registration of a business name is lodged with ASIC by post (s 23(5)). Also, ASIC may request in writing that an entity applying for registration for a name give it within a specified period information or a document that ASIC needs to be satisfied of matters including the availability of the name (see s 24(2)). Furthermore, if ASIC refuses an application for registration of a business name, it must give written notice to the applicant of the refusal and the reasons for the refusal (s 34(1)). If ASIC has not decided an application within 28 days, the entity may lodge with ASIC notice that it wishes to treat the application as having been refused (s 34(2)).
I turn now to the provisions of s 66 of the Act, which empower ASIC to use computer programs in making most decisions under the Act, including decisions about the registration of business names. Section 66(1) provides that ASIC “may arrange for the use, under ASIC’s control, of computer programs for any purposes for which ASIC may make decisions” under the Act. Section 66(2) provides that “[a] decision made by the operation of a computer program under an arrangement made under [s 66(1)] is taken to be a decision made by ASIC”.
If ASIC decides to register a business name to an entity, an entity “in relation to whom there is a real risk of substantial detriment because of” such registration may seek review of that decision (ss 57(1), 56 (Item 1 in column 1 of the table)). Such a “reviewable decision” is then the subject of internal review by ASIC under s 57. Upon such review, ASIC must either affirm or vary the decision or set it aside and make a substituted decision (s 57(6)). ASIC is not permitted to use computer programs to make decisions under s 57(6) - such decisions are expressly excluded from the compass of s 66(1).
An application may be made to the Tribunal for review of decisions made by ASIC under s 57 (s 58(1) of the Act).
The Determination
Section 26 of the 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” for the purposes of the Act. Consonantly, the term “identical” is defined to mean “identical under rules made by the Minister under section 26”, while the term “nearly identical” is defined to mean “nearly identical under” such rules (s 3).
Given the terms of ss 24(1), 25(a), 26 and also s 16(4) of the Act, and the definitions of the terms “identical” and “nearly identical” in s 3, as I have indicated, the rules for determining whether a name is identical or nearly identical to another name are therefore critically important to the question of the availability of a business name for registration.
Those rules are the subject of a legislative instrument taking the form of a single determination made pursuant to s 26, s 27 (which concerns undesirable names) and s 28(1) (which concerns restricted words and expressions)), being the Business Names Registration (Availability of Names) Determination 2012 (Cth) (the “Determination”). The Determination commenced operation on the commencement of Part 2 of the Act (s 2 of the Determination).
The rules for determining whether a business name is identical or nearly identical to another name (other than a company name) are set out in Division 1 (ss 5 and 6) of Part 2 of the Determination (see s 4(1) of the Determination). Section 5(1) provides that “[w]hen comparing a business name with another name ... to determine whether the names are identical or nearly identical”, the enumerated matters that follow “are to be disregarded”. Those matters include certain features which might be present in the names being compared, being grammatical, syntactic or typographical in nature. Relevantly, punctuation marks used in one or both names are to be disregarded (s 5(1)(d)). Furthermore, whether a word is in the plural or the singular number in one or both names is to be disregarded (s 5(1)(c)).
While s 5 prescribes matters to be disregarded when comparing business names, s 6 of the Determination prescribes matters to be considered for that purpose. Section 6(1) provides that, “[w]hen comparing a business name with another name ... to determine whether the names are identical or nearly identical, 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”. Schedule 1 to the Determination comprises 248 items, each of which specifies two or more words or expressions for the purposes of s 6(1). I note that the words and expressions “clinic, health care, medical centre, medical practice, medical services, medicine, medicine centre, practice [and] surgery” are to be taken to be the same as each other (Item 199), as are the words “nurses” and “nursing” (Item 200); so too are “naturopath, naturopathic clinic [and] naturopathy” (Item 207).
It is relevant to note the terms of s 6(2) of the Determination, which concerns aural identity of business names. Section 6(2) provides that “[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”.
CONSIDERATION
Parties’ contentions
ASIC contended that it was required to register the business names “Melbourne Child Psychology” and “Melbourne Child Psychology Services” because it was properly satisfied for the purposes of s 24(1)(c) of the Act that each of those names was “available” to the joined party, despite the prior registration of the applicants’ business name “Melbourne Children’s Psychology Clinic”.
It was common ground between ASIC and the applicants that the subsequently registered business names are not “identical” to the applicants’ business name for the purposes of the Act. As I have said, the issue before the Tribunal is whether the names are “nearly identical” for such purposes.
ASIC contended that the modificatory aspects of ss 5 and 6 of the Determination are exhaustively determinative of the question of whether business names are “identical or nearly identical” for the purposes of the Act. That is to say that if, after any relevant matters enumerated in s 5 are disregarded and any relevant words or expressions in the names included in Sch 1 are taken to be the same for the purposes of s 6, upon comparison there remains any difference between the names, it follows that the names are not “identical or nearly identical”. Conversely, if the names are, or are upon application of those modifications, the same, it follows that they are “identical or nearly identical” and accordingly registration of the subsequent name to another entity is precluded.
ASIC’s contended construction was advanced as the ineluctable corollary of its contention that the Act and the Explanatory Memorandum to the relevant Bill, being the Business Names Registration Bill 2011, evinced a legislative intention that decisions concerning the registration of business names are to be made by the operation of a computer program, upon online application. ASIC submitted that its contended construction must necessarily be accepted because the adoption of a contrary construction requiring the exercise of any evaluative judgment, at least in respect of the question of whether names are “identical or nearly identical”, would mean that the intended mode of decision making for such decisions would, as counsel for ASIC put it in oral submissions, be “likely to be rendered otiose”.
Given its contended construction of ss 5 and 6 of the Determination, ASIC submitted further that the Tribunal, upon review, is accordingly precluded from exercising any judgment as to whether names are “nearly identical” for the purposes of the Act.
ASIC emphasised the exhaustive nature of the definitions of “identical” and “nearly identical” in s 3 indicated by the use of the word “means”. Furthermore, ASIC submitted that the defined meanings of those terms rendered the ordinary or dictionary meaning of those terms irrelevant. ASIC also submitted that the collocation “identical or nearly identical” must necessarily be read as a single composite phrase.
ASIC relied also on the terms of ss 16(4) and 66 of the Act. Furthermore, ASIC relied to a significant degree on references in the Explanatory Memorandum to the online registration of business names. Lastly, ASIC relied upon decisions of the Tribunal handed down after the hearing of these proceedings – that of Senior Member McCabe in Re Smith & Australian Securities and Investments Commission [2014] AATA 192, which was cited with approval by Deputy President Hack S.C. in Re B & L Whittaker Pty Ltd & Australian Securities and Investments Commission [2014] AATA 302.
The applicants contended that relevant rules in the Determination should be construed in a significantly different way. The applicants contended that the application of the modificatory aspects of ss 5(1) and 6(1) was merely part of the required analysis. After taking into account those matters, it remains necessary to determine whether the names are either “identical”, that is to say the same, or “nearly identical”. The applicants contended that the determination of the question of whether names are “nearly identical” is a question of fact and necessarily involves the exercise of judgment.
In that regard, the applicants submitted that the expression “nearly identical” should be read according to its ordinary meaning and in the context of the stated legislative objects in s 16 of the Act, particularly the object of “avoid[ing] confusion by ensuring that business names that are identical or nearly identical are not registered” (s 16(3)(a)). The applicants contended that upon proper analysis both of the subsequently registered names are “nearly identical” to their registered business name and accordingly neither was “available” for registration to the joined party.
The applicants submitted that ASIC’s contended construction resulted, particularly in the case of names such as those in issue which contained words or expressions of equivalent similarity to those in items in Sch 1 yet which happened to have been omitted therefrom, in absurd outcomes and frustrated the achievement of the object stated in s 16(3)(a) of the Act.
There was no dispute in these proceedings that if ASIC’s contended construction of the rules in ss 5(1) and 6(1) of the Determination were to be adopted, each of the subsequently registered names in issue in these proceedings is not “identical or nearly identical” to the applicants’ registered business name, as there was no dispute about the application of the modificatory aspects of those provisions.After relevant matters are disregarded and considered for the purposes of ss 5(1) and 6(1) respectively, there remain differences between each subsequently registered name and the prior registered name. In this case, the rules require that one disregard the fact that the applicants’ name includes the word “child” in the plural while the subsequent names include that word in the singular, and also require that one disregard the apostrophe (being punctuation) used in the word “Children’s” in the applicants’ name. It was common ground that there is no item in Sch 1 to the Determination applicable to the names being compared.
Before turning to consider the parties’ submissions, I note that I have had regard to written submissions lodged by the joined party (which did not appear at the hearing), although those written submissions largely concerned allegations and other matters which are not relevant to the issue before the Tribunal.
Applicable principles of statutory interpretation
It is convenient to refer at this point to general principles of statutory interpretation to be applied in construing the Act and the Determination. The Determination is a form of delegated legislation. It has been established as a matter of common law that “[t]he general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation” (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398, applying King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195 per Dixon J; Whittaker v Comcare (1998) 86 FCR 532 at 543). I note that I address a possible qualification to that principle later in these reasons.
Significantly, the Determination constitutes a “legislative instrument” for the purposes of the Legislative Instruments Act 2003 (Cth) (the “Instruments Act”). The Determination is included in the Federal Register of Legislative Instruments and otherwise satisfies the defined meaning of the term “legislative instrument” given in s 5 of the Instruments Act.
Section 13 of the Instruments Act concerns the construction of such legislative instruments and by its operation gives statutory force to aspects of the common law principle to which I have referred. Consequently, the Acts Interpretation Act 1901 (Cth) (the “Interpretation Act”) applies to the Determination as if it were an Act and as if each provision of the Determination were a section of a statute (s 13(1)(a)). Also, expressions used in the Determination have the same meaning as in the Act (s 13(1)(b)). Moreover, the Determination is to be read and construed subject to the Act (s 13(1)(c)).
Given the terms of s 13(1)(a) of the Instruments Act, it follows that ss 15AA of the Interpretation Act, which requires that preference be given to the interpretation of a provision “that would best achieve the purpose or object of the Act”, arises for consideration not only in construing the Act but also in construing the Determination. So too does s 15AB of the Interpretation Act, which concerns the use of extrinsic material in statutory interpretation and, amongst other things, requires that regard be had in that context to “the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act” (s 15AB(3)).
Turning back to the common law, the following general principles of statutory interpretation therefore govern the construction of both the Act and the Determination. The task of statutory construction begins with careful consideration of the text of their provisions (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [4]-[5], [47]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [25], [92]). One must discern “the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose” (Alcan at [4]-[5] per French CJ), context being taken to include, amongst other things, “the mischief which the statute was intended to remedy” (Alcan at [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408).
The context in which delegated legislation such as the Determination is to be construed includes the Act, being the legislation under which it is enacted (see Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at [19]).
More recently, the High Court emphasised that the task of statutory construction must also end with a consideration of the statutory text. Accordingly, “[u]nderstanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text” (Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at [39], cited with approval in Thiess v Collector of Customs (2014) 306 ALR 594 at [22]).
Given the paramountcy of the statutory text, legislative history and extrinsic materials, which also form part of the context in which the text must be considered, cannot displace the meaning of the statutory text (ibid; Alcan at [47]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [31]-[33]). Furthermore, “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction” (ibid at [33]).
As the High Court has stated, ss 15AA and 15AB of the Interpretation Act reflect common law principles of statutory interpretation (with respect to the latter provision, see Alcan at [5] per French CJ). Section 15AA is “a particular statutory reflection of a general systemic principle” that “[o]bjective discernment of statutory purpose is integral to contextual construction” (Theiss at [23]).
Section 15AA mandates that general provisions of a statute not be construed in a way which is inconsistent with the special purpose reflected by express provisions of the Act (Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 309 ALR 225 at [37]-[38]).
I advert to other applicable principles of statutory interpretation later in these reasons as they arise for consideration.
Automated decision making
Section 66 of the Act, which contemplates that decisions under the Act may be made by the operation, or with the assistance, of computer programs, forms part of the wider statutory context in which the provisions of the Determination are to be construed. It is instructive in that respect to refer, by way of background explanation, to aspects of the report of the Administrative Review Council (“ARC”), Automated Assistance in Administrative Decision Making, Report to the Attorney-General, ARC Report No. 46 (November 2004).
In its report, the ARC drew two distinctions which are germane to the issue before the Tribunal. The first concerned the extent to which the making of an administrative decision might be automated. The second concerned the kinds of administrative decisions that might properly be automated.
As the ARC stated, there is a distinction between a decision made by a computer (which it took to include such decisions legislatively deemed to have been made by a decision maker) and a decision made with the assistance of a computer (but made by a decision maker). The terms of s 66 reflect this distinction.
The ARC found that computer programs used in administrative decision making can be used for both purposes. They can be automated to make a decision. Alternatively, they can be used in various ways to assist the decision maker in making a decision.
I note that the ARC opined that the extent to which the making of a particular decision might properly be automated depends upon the nature of the decision to be made. A distinction was drawn between “non-discretionary” and, broadly-termed “discretionary” decisions – the latter encompassing not only decisions involving the exercise of discretion as ordinarily understood but also decisions involving the exercise of judgment by the decision maker.
The ARC recommended that computer programs used in making decisions “should not automate the exercise of discretion” (as broadly defined). On the other hand, the ARC expressed the view that they “can be used as an administrative tool to assist an officer in exercising his or her discretion”, but in such cases should be designed so that they do not fetter the decision-maker in the exercise of their power. It is apparent from the report that the ARC’s view concerned not only wholly discretionary decisions but also decisions involving discretionary elements.
Construction of rules in Determination
I turn now to address the construction of the provisions in issue. It is clear from the express terms of the Act that the rules in the Determination play an imperative part both in the ascertainment of the availability of business names and also in the attainment of the objects stated in s 16(3) of the Act. As I have said, each of those objects, which concern not only “identical or nearly identical” names but also “undesirable” names and names which should be “restricted”, are said to be “achieved by rules dealing with the availability of business names” (s 16(4)). Although the Determination commenced operation contemporaneously with Part 2 of the Act, s 16(4) by its terms prospectively encompasses rules as they might exist from time to time.
The role of the rules in ascertaining the availability of business names is clear also from the provisions empowering the Minister to make such rules for that purpose, most relevantly in this case being s 26 of the Act (see also ss 27 and 28). I accept ASIC’s submission that the definitions of the terms “identical” and “nearly identical” in s 3 of the Act are exhaustive, in the sense that one must look to those rules, and only to those rules, in determining whether names are “identical” or “nearly identical”. The word “under”, which is used in those definitions, is relevantly defined in the Macquarie Dictionary (6th edition) and the Shorter Oxford English Dictionary (6th edition) as meaning, amongst other things, “in accordance with”; see also Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249.In my view, the word “under”, in the context in which it appears, including the terms being defined in part in a self-referential manner, should be taken to mean that the meaning of those terms is governed by the rules.
However, the definitions beg the question – what do the rules provide? It is important to have regard to the prefatory words employed in both s 5(1) and s 6(1) of the Determination:
“When comparing a business name with another name ... to determine whether the names are identical or nearly identical”. [Emphasis added.]
In my opinion, those prefatory words (see also s 26) indicate that the determination of whether a business name is identical or nearly identical to another name for the purposes of s 25(a) of the Act requires, as would be understood according to ordinary usage, that an exercise of comparison be undertaken.It is necessary to ascertain the points of sameness, similarity and difference between the two names in order to determine whether the names in question are identical or nearly identical. The verb “compare” is relevantly defined in the Macquarie Dictionary to mean “to note the similarities and differences of” and “to bring together for the purpose of noting points of likeness and difference” and in the Shorter Oxford English Dictionary to mean, amongst other things “consider or estimate the similarity or dissimilarity of (one thing or person to another esp. in quality or detailed nature, two things or persons)”.
Furthermore, and more significantly, in my opinion it is clear from the express terms of ss 5(1) and 6(1) that those rules are of a prescriptive nature and are not, as ASIC contends, exhaustively determinative of the question of whether names are “identical or nearly identical”. The rules merely require that certain matters be taken into account in making the requisite comparison.
The elliptical clause “when comparing”, by use of the present participle, evinces an intention that the undertaking of the exercise of comparison be the occasion upon which the enumerated matters are to be disregarded for the purposes of s 5(1) and consonantly be the occasion upon which words or expression in any applicable items in Sch 1 are to be taken to be the same for the purposes of s 6(1). The word “when” is relevantly defined in the Macquarie Dictionary to mean “at any time, or whenever” and in the Shorter Oxford English Dictionary to mean, relevantly, “[a]t the time that, on the occasion that; in the circumstances which; gen. at any time that, on any or every occasion that.”
Once matters to be disregarded and items in Sch 1 are taken into account, if any are applicable, the questions of whether the names are either “identical” or “nearly identical” are to be determined. As I explain later in these reasons, in some cases, the modificatory aspects of s 5(1) and s 6(1) might have the consequence that the answers to those questions are different from what they would otherwise have been.
I accept the applicants’ submission that the rules retain the ordinary meaning of the terms “identical” and “nearly identical”, read in context, and reject ASIC’s submission that the dictionary meanings of those terms are irrelevant. The express terms of the rules do not operate so as to displace those meanings (see Manly Council v Malouf (2004) 61 NSWLR 394 at 396-7). It therefore remains necessary to consider the meaning of the terms “identical” and “nearly identical” in the context in which they are used – I do so later in these reasons.
By way of contradistinction, the terms of s 6(2) of the Determination, which provides that “[a] business name is identical or nearly identical to another name if ... it may be pronounced the same as the other name” (emphasis added), evinces an intention that the existence of such aural identity be exhaustively determinative of the question of whether names are identical or nearly identical. In my view, if the legislature had intended that ss 5(1) and 6(1) should be similarly determinative, their terms would have been expressed accordingly.
As I have said, ASIC submitted in support of its contention that ss 5(1) and 6(1) of the rules are exhaustively determinative that the collocation “identical or nearly identical” must be read as a single composite phrase. I do not accept that submission. First, the terms “identical” and “nearly identical” are separately defined in s 3 of the Act. Secondly, they are referred to disjunctively as alternatives, as indicated by the use of the word “or”.
ASIC’s contended construction would therefore necessarily require that no meaning or effect be given to the words “or nearly identical”, despite “nearly identical” being a defined term. Furthermore, although ASIC accepted that ss 5(1) and 6(1) require that an exercise of comparison be undertaken, it seems to me that its contended construction necessarily requires that the first word of each of those rules - “[w]hen” – also be allowed little if any import.
However, “[t]he presumption is that words are used in a statute for a reason; they should be given their meaning and effect (Saeed at [39]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]). As a textual matter and as a contextual matter, there is no indication that that presumption is displaced in the circumstances in which those words are used in the Act and the Determination. As I explain later in these reasons, the collocation “identical or nearly identical” serves to meet the object of the Act stated in s 16(3)(a), being the avoidance of confusion, by ensuring that not only business names that are identical to registered business names but also business names that are nearly identical to registered business names are not registered.
In that regard, I note that the rules in Part 1 of Sch 6 to the Corporations Regulations 2001 (Cth), which enumerate matters to be disregarded in comparing names to ascertain whether they are identical and therefore whether they are available (see ss 147(1)(a) & (b), 601DC(1)(a) & (b) of the Corporations Act 2001 (Cth)), are adopted in s 7 of the Determination for the purpose of determining whether business names and company names are either identical or nearly identical. Section 25(a)(ii) of the Act provides that a business name is available to an entity if the name is not identical or nearly identical to a name that is reserved or registered under the Corporations Act 2001 for another body. It seems to me that the adoption of those rules in, but for the purposes of, the Act and the Determination serves as further indication that the words “nearly identical” have been used for a reason in the Act and the Determination and should be given their meaning and effect.
Moreover, the expression “nearly identical” encapsulates the same state or quality as “identical”, but to a lesser extent. The disjunctive use of the same term but in a qualified form evinces an intention that the relevant provisions of the Act should apply in wider circumstances than would be the case if the term “identical” were used alone; that is to say, not only in the case of names that are “identical” but also in the case of names not quite attaining that state (see Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 94). In my view it is therefore necessary that the satisfaction of each expression be considered, each having discrete and alternative application.
Although the rule concerning aural identity (s 6(2) of the Determination) would tend to suggest that the collocation “identical or nearly identical” is intended to operate as a single composite phrase, in my view the rule is so expressed so as to operate in a wholly determinative manner, that is to say with respect both to the question of whether names are “identical” and the question of whether they are “nearly identical”.
It is stated in the Explanatory Memorandum that s 25(1) of the Act “provides that a business name is available to an entity if the name is not identical or, in some cases, nearly identical to a name that is in one of the categories set out in paragraphs 25(a)(i) to (vii) or (b)” (clause 4.12; emphasis added). Given that the question of whether a name is “identical or nearly identical” for the purposes of s 25(a) pertains to each of the sub-paragraphs that follows, that extrinsic material tends to confirm that the expression “nearly identical” is intended to have its own meaning (see s 15AB(1)(a) of the Interpretation Act).
Context and purpose of rules
I return now to ASIC’s argument. As I have indicated, ASIC’s contention that the modificatory aspects of ss 5(1) and 6(1) must be read as exhaustively determinative of the question of whether a name is “identical or nearly identical” to a registered name for the purposes of s 25(a)(i) is founded on an imputed legislative intention that decisions concerning the registration of business names, particularly as to ASIC’s satisfaction that a name is “available” for the purposes of s 24(1)(c) of the Act, or at least the aspect of such decisions concerning whether names are “identical or nearly identical”, be made by computer upon online application. ASIC submits that the expression “nearly identical”, read in that context, therefore permits no exercise of judgment by ASIC in determining the availability of a name.
Put in terms of s 66 of the Act, it is apparent that ASIC’s contention is founded on the premise that it is intended that such decisions are to be “made by the operation of a computer program” (see s 66(2)), rather than by ASIC using such a program to make the decision itself. One might say that ASIC contends not only that such decisions must be automated but also that they must be automatic.
As I shall explain, it may be accepted that decisions concerning the registration of business names, and particularly the determination of whether names are identical or nearly identical and therefore available for registration, are in many if not most cases amenable to being made by a computer automatically upon online application. However, it is quite another thing to say that the legislative intention is that such decisions or at least, as ASIC contended, determinations concerning such aspects of the availability of a name, are to be made on all occasions in that way. It seems to me that ASIC’s contentions are necessarily founded on the latter premise, which is not well-founded.
As I explain later in these reasons, s 25(a) of the Act not only permits but requires the exercise of judgment in determining whether names are “nearly identical”, given the statutory meaning of that expression.
That meaning cannot properly be subverted in the manner contended by ASIC. There is nothing in the express terms of the Act nor the Determination which supports ASIC’s argument that the legislature intended all determinations of whether names are identical or nearly identical under the rules to be made by operation of a computer program.
As I also explain later in these reasons, as a conceptual and practical matter the modificatory aspects of the rules will very often, if not usually, operate so as to eliminate the need to exercise that judgment and thus enable the making of an automatic decision upon online application, but not always. In certain circumstances it might only be possible for that aspect of a decision about registration of a business name to be made by ASIC with the assistance of a computer program.
As I have said, ASIC sought to rely upon the definitions of the terms “identical” and “nearly identical’ in s 3 and also on ss 16 and 66 of the Act in support of its argument. In my view, ASIC’s argument erroneously conflates the nature of the definitions of “identical” and “nearly identical” with the nature of the rules for determining whether those definitions are satisfied. The fact that the definitions exhaustively define those terms by reference to the rules does not mean that the rules are exhaustively determinative of the questions of whether names are “identical” or “nearly identical”.
Furthermore, s 16(4) of the Act does not support ASIC’s contended construction of the rules. That provision, which provides that the objects mentioned in s 16(3) are achieved by rules dealing with the availability of business names, makes it clear that the availability of business names is governed by rules as they exist from time to time, including the rules in the Determination. However, as I have indicated, those objects include not only avoiding confusion by ensuring that identical or nearly identical names are not registered, but also ensuring that undesirable names and other names that should be restricted are not registered. In each instance, like the definitions of “identical” and “nearly identical”, s 16(4) again begs the question of what those rules provide.
Indeed, it is clear from the Act and other provisions of the Determination that some decisions about the registration of business names are not suited to being made by computer, although they may perhaps be made with the assistance of a computer program. Particularly, other factors governing availability of a business name necessarily require that people exercise judgment in certain circumstances. It is apparent from ss 25(d) and 27(2) of the Act and the terms of Part 3 of the Determination that the question of whether a business name is undesirable requires, at least in some circumstances, that the Minister turn his mind to the question or that ASIC exercise its judgment about the question. It is similarly apparent from s 28(2) of the Act and the terms of Part 4 of the Determination that the question of whether a business name is restricted requires, at least in some circumstances, that the relevant Minister, public authority or agency consider the giving of written consent.
Furthermore, s 23(5) of the Act envisages applications for registration of business names being lodged by post and therefore evinces an intention that not all registration decisions will be made automatically by a computer upon online application. Sections 24(2) and 34(2) also envisage decisions not being made in such a manner.
I turn now to consider s 66 of the Act. In my view it would be erroneous to impute a statutory intention that decisions about registration of business names, even merely in so far as they involve the determination of whether names are identical or nearly identical, are to be made by operation of a computer program according to the terms of that provision.
Section 66 of the Act is a facultative provision of a general nature. The use of the word “may” is “presumptively permissive”, given the ordinary meaning of the word and s 33(2A) of the Interpretation Act, which provides that where an Act provides that a person “may do a particular act or things, and the word may is used, the act or thing may be done at the discretion of the person” (Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398 at [42] per Edmonds J).
Section 66 empowers ASIC to employ computer programs “for any purposes for which ASIC may make decisions under” the Act, including, in the terms described by the ARC in its report, to assist ASIC in making its decisions or to make such decisions, the latter indicated by s 66(2). The broad terms upon which the power is granted and the broad range of decisions to which it pertains, evinces an intention that ASIC as the repository of the power is to decide when and to what extent computer programs are to be used in making decisions under the Act (see ibid).
As the ARC opined in its report, the appropriate degree of automation will depend upon the nature of the decision to be made. As the applicant submitted, s 66 encompasses not only decisions about the registration of business names but also a variety of other decisions. Some decisions under the Act will be suited to being made by a computer, at least in some cases, while others might only be suited to being made with the assistance of a computer, particularly those involving, at least to some extent, the exercise of judgment. By way of example, decisions about the deletion, refusal to include, correction or annotation of information in relation to a business name on the register (see ss 37(6), 37(7) and 56 (Item 11)) would not seem suited to being made by operation of a computer program, given that they require ASIC to hold a reasonable belief.
It must be remembered that the determination of the question of whether names are identical or nearly identical for the purposes of s 25(a) of the Act is not an abstract exercise undertaken for its own sake. While the preclusion of registration of business names that are undesirable or that should be restricted for any other reason is expressed in ss 16(3)(b) and 16(3)(c) of the Act respectively as objects in themselves, in the case of names that are “identical or nearly identical”, the preclusion of their registration is stated in the context of serving the object of avoiding confusion expressed in s 16(3)(a).
The rules in ss 5 and 6 of the Determination serve to achieve the object of avoiding confusion and are to be read in a way that would best achieve that object (s 15AA of the Interpretation Act; CIC Insurance at 408; Alcan at [4]-[5], [47]; Thiess at [22]-[23]). That is confirmed by s 16(4) of the Act. Section 66, being a general provision of the Act, should not be construed in a manner which is inconsistent with that object; there is nothing in its text requiring such a construction (Plaintiff M150 of 2013 at [37]-[38]). It would be erroneous to subvert the meaning and effect of the clearly expressed provisions in ss 5(1) and 6(1) of the Determination by reference to the general power granted to ASIC under s 66. ASIC’s preferred mode of decision-making cannot prevail over the true statutory questions raised by the decision to be made. Put another way, the means must serve the end, not the other way around.
As I have said, ASIC relied upon the Explanatory Memorandum, particularly references made in it to online registration, in support of its contended construction of the rules in the Determination. While extrinsic material cannot supplant the meaning of the text of those provisions, it can serve “to confirm that the meaning of [a] provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act” (s 15AB(1)(a) of the Interpretation Act).
On closer examination, the Explanatory Memorandum does not assist ASIC’s argument. It is stated in the prefatory outline in the Explanatory Memorandum that “[w]hile the Bill does not mandate any particular service delivery channel, it is drafted to facilitate a high degree of online service delivery” (emphasis added). More particularly, the following is said in relation to s 66:
“Section 66 provides that other than for the decisions relating to the review of any decision, 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.” [Emphasis added.]
In my view, that extrinsic material confirms that 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.
I therefore do not accept ASIC’s contention that its contended construction must be accepted so as to prevent the intended mode of decision-making being rendered otiose. The extrinsic material demonstrates that the legislature intended the consequence that not all determinations as to whether names are identical or nearly identical to registered business names will be able to be made automatically upon online application (see Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 518-9).
As I explain shortly in these reasons, it may be accepted that on many, if not most, occasions an automatic response to an online application for registration of a name can be given. However, on some occasions an ASIC officer will be required to exercise judgment in determining whether names are “nearly identical”, in which case an automatic response from the computer will not be possible. Such a decision about registration will therefore be able to be made by ASIC with the assistance of a computer program, but not by the computer program.
Put properly at its highest, ASIC’s argument is that it would be inconvenient if its contended construction were not adopted, given that it would follow that ASIC might not on all occasions be able to make decisions about the registration of business names, at least in so far as they concern the determination of whether names are identical or nearly identical, by operation of a computer program. However, mere inconvenience is not enough. It cannot support a construction which does not conform with the legislative intention evinced by the text of the rules in the Determination and the Act, including the object expressly stated in s 16(3)(a) of the Act (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at [169] – [170]).
Furthermore, the desire to avoid an inconvenient result cannot prevail over the absurdity of a result which would allow names that are nearly identical to registered names, according to the ordinary meaning of that expression read in context, to be registered merely because they are not made identical to registered names upon operation of the modificatory aspects of ss 5(1) and 6(1) of the Determination (see One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125 at [64] per Hill J).
For example, absurd outcomes can arise in the case of names including words reaching the same degree of similarity as those contained in items in Sch 1 of the Determination but which happen not to have been included there. Particularly in the case of lengthy names, for example, the operation of the modificatory aspects of the rules might not serve to eliminate all differences between the names, yet on comparison they would properly be said to be nearly identical according to the ordinary meaning of that term read in context. ASIC’s contended construction would frustrate the achievement of the object of avoiding confusion.
Automation of registration decisions
As I have said, in these proceedings, the Tribunal is reviewing the decision made by ASIC upon internal review (under s 57(6) of the Act) to affirm the decisions made under s 24 to register the names in issue. Although those decisions were made by the operation of a computer program, upon online application, ASIC is deemed to have made them by operation of s 66(2) of the Act.
Although the Tribunal’s role upon review is not to review the manner in which the decisions to register the names in issue were made, given ASIC’s submissions about the intended mode of decision making under s 24, I think it is apt to make some observations about the conceptual design and practical operation of the relevant rules in the Determination.
My comments concern the extent to which ss 5 and 6 of the Determination are apparently designed so as to enable the automation of decisions about registration of business names with respect to the determination of whether names are identical or nearly identical to registered names, in so far as that is reasonably possible. The modificatory aspects of the rules serve to automate many, if not most, determinations as to whether names are identical or nearly identical to other names and therefore significantly reduce the number of such determinations that must be made by an ASIC officer.
I think that it is helpful to categorise names in respect of which registration might be sought. First, there are names which have already been registered – that is to say, names which are precisely the same as registered names. A computer program will be able to “match” such names and determine that they are identical and therefore not available for registration.
The next category are names which, upon application of one or more of the enumerated modifications in s 5(1) of the Determination, or upon one or more modifications made pursuant to s 6(1) arising from an applicable item or items in Sch 1 to the Determination (or both), are rendered the same as a registered name. A computer will be able to apply the relevant modifications to the names and “match” the modificands and thus determine that they are “identical”. A name that differs from a registered name only by reason of one or more of the matters the subject of the modificatory rules will on that basis therefore not be available for registration.
It seems to me that the modificatory aspects of the rules are designed to automate, to the extent that can reasonably be foreseen, the exercise of ASIC’s “discretion”, to use the looser meaning of that word adopted by the ARC in its report. That is to say, they are drafted so as to exercise prospectively ASIC’s judgment as to whether a name is “nearly identical” to a registered name, by incorporating as many possible permutations as have been anticipated, particularly in Sch 1, of differences between names not considered of themselves to be significant or distinctive enough to permit registration of the unregistered name.
As a conceptual matter, the application of the modifications serves to take a name which might be said to be “nearly identical” to a registered name and transform it so that they are made precisely the same and therefore “identical”, thus precluding registration of the unregistered name. However, the modificatory rules are not perfectly comprehensive, nor do they have to be, given that the Act does not require that all decisions about registration be made automatically upon online application.
In the case of names which may be pronounced the same for the purposes of s 6(2) of the Determination, presumably a computer program, by using a form of computer speech recognition software, will also be able to “match” the names and determine that they are not available for registration.
How then should names which are not “identical” or alternatively made “identical” to registered names by operation of the rules be dealt with? For the reasons I have stated, the question remains as to whether they are “nearly identical” to registered names. As I have said, the ARC in its report opined that the automation of the exercise of such judgment is not advisable. As a practical matter, upon online application an automatic decision would not be made; rather, an ASIC officer would then be required to make the decision, with the assistance of the computer program in applying any relevant modifications under the rules. As I have indicated, the ARC in its report expressed the view that the design of the automated system should not fetter the exercise of “discretion”, which it defined to include the exercise of any judgment involved in a decision. That view would appear to apply to the making of the judgment required to determine whether names are “nearly identical” according to the statutory meaning of that expression.
However, it seems to me that some determinations about such names might perhaps be able to be automated. An algorithm might perhaps be used in the computer program to identify, by noting the extent of similarities and differences, names which after applicable modifications (if any) are made, bear insufficient resemblance to any registered name to raise a real question as to whether they are “nearly identical” to a registered name. In such cases, an automatic determination that the name is neither identical nor nearly identical to a registered name, and therefore available for registration, could be made by the computer program upon online application.
As I have said, if a review is sought of a decision to register or to refuse to register a business name, s 66(1) precludes ASIC from using a computer program for the purpose of making its decision under s 57(6) upon internal review. Upon internal review, ASIC is therefore required to apply any relevant modifications itself and to compare the names to ascertain whether they are identical or nearly identical according to the ordinary meaning of those terms read in context.
Other comments
Before turning to consider the meaning of the expression “nearly identical”, it is appropriate to address two other issues. First, there is an issue I raised earlier in these reasons, being whether there is a possible qualification to the general principle that delegated legislation is to be interpreted in the same manner as Acts of Parliament. In my view, if such a qualification exists under Australian law, which has recently been doubted, it does not apply with respect to the Determination, given that it is a legislative instrument for the purposes of the Instruments Act and given its terms, including the audience to which it is addressed.
In Gill v Donald Umberstone & Co Ltd [1963] 3 All ER 180, Lord Reid observed that regulations addressed to practical people skilled in a particular trade or industry should be construed in the light of practical considerations, so that in the case of language capable of more than one interpretation, an interpretation which leads to a “reasonably practicable result” ought to be adopted in place of an interpretation leading to an “unreasonable result”.
That decision was followed by Sundberg J in MelbournePathology Pty Ltd & Ors v Minister For Human Services & Health & Ors (1996) 40 ALD 565 at 580-581 and by Stone J in Australian Tea Tree Oil Research Institute v Industry Research & Development Board (2002) 124 FCR 316 at [37]-[38]. It was considered, but not followed, by Perram J in Minister for Immigration & Citizenship v Anochie (2012) 209 FCR 497 at [25]-[27].
In Melbourne Pathology, Sundberg J relied on Lord Reid’s observations as showing that, in the case of “regulations intended to have a practical application” it is appropriate to adopt “a more liberal approach than that applied to an Act of Parliament” (at 581). At the same time, Sundberg J acknowledged that Lord Reid’s observations accorded with the modern approach to statutory interpretation according to general principles in any event.
At first glance, it might perhaps be said that Lord Reid’s statement supports a more liberal approach to construction of the provisions of the Determination, on the basis that it is delegated legislation the provisions of which envisage the use of computers in making decisions with which it is concerned.
As Perram J observed in Anochie, being a more recent decision, assuming that Lord Reid’s statement forms part of Australian law, there may be a reason in the future to doubt its on-going relevance, although His Honour makes that point by reference to legislation enacted (shortly) after the Act commenced. In my view, Lord Reid’s statement does not apply to legislative instruments that are governed by the provisions of the Instruments Act. The construction of such legislative instruments, including the Determination, is governed by s 13 of the Instrument Act and therefore by ss 15AA and 15AB of the Interpretation Act. In any event, as Sundberg J observed, Lord Reid’s statement is reflected in common law principles of statutory interpretation, which have evolved in the context of ss 15AA and 15AB. The decisions in Melbourne Pathology and Australian Tea Tree Oil Research Institute both preceded the enactment of the Instruments Act.
Even if Lord Reid’s statement had any prima facie relevance to the interpretation of the Determination, in my view it should not govern nor affect the approach to be taken to its interpretation. First, its “intended readership” consists of ASIC, various Ministers, public authorities and agencies and also the Tribunal reviewing decisions made by reference to the Determination and the Federal Court on any appeal (see Anochie at [26] per Perram J). The fact that ASIC may arrange for the use, under its control, of computer programs for the purposes of making decisions governed by the Determination pursuant to s 66 of the Act does not alter the fact that such decisions are either made or deemed to be made by ASIC.
Moreover, for the reasons I have given, in my view the meaning of ss 5(1) and 6(1) is clear and does not lead to an “unreasonable result” in the terms described by Lord Reid in any event and therefore, even if Lord Reid’s statement could justify some more liberal approach to interpretation, which is doubtful, there is no cause to depart from general principles of statutory interpretation under common law in any event (see also s 15AB(b)(ii) of the Interpretation Act).
As I have said, there is another issue which it is convenient to address at this point. I regret that my view as to the correct construction of the Act and the Determination differs from the construction recently adopted by two fellow members of the Tribunal in reviewing decisions concerning the registration of business names, being the decisions of the Tribunal relied upon by ASIC to which I have referred earlier in these reasons – that of Senior Member McCabe in Re Smith & Australian Securities and Investments Commission [2014] AATA 192, and the subsequent decision of Deputy President Hack S.C. in Re B & L Whittaker Pty Ltd & Australian Securities and Investments Commission [2014] AATA 302.
Both Deputy President Hack S.C. and Senior Member McCabe accepted ASIC’s submission that the modificatory aspects of ss 5(1) and 6(1) are exhaustively determinative of the question of whether a name is “identical or nearly identical” to a registered name, given ASIC’s use of automated decision making.
While I acknowledge the desirability of quasi-judicial comity (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J), it seems to me that the approach I have taken, construing those aspects of the rules as prescriptive rather than exhaustively determinative, avoids the kind of interpretative peculiarities and absurd outcomes which Deputy President Hack S.C. and Senior Member McCabe rightly identified and criticised.
The “surest guide to legislative intention” is to be found in the “language which has actually been employed in the text” of the Act and the Determination (Alcan at [47]), which is clearly expressed and reflects the object stated in s 16(3)(a) of avoiding confusion. As I have said, in my view the general facultative terms of s 66 cannot properly be construed so as to alter the nature of the statutory questions to be answered in making decisions about the registration of business names.
Meaning of “nearly identical”
The question therefore remains – what do the terms “identical” and “nearly identical” mean in the context in which they are used? As I have said, I accept the applicants’ submission that they bear their ordinary meaning, taking into account the context in, and purpose for, which they are employed in the Act (Alcan at [5], [47]; Consolidated Media Holdings Ltd at [39]; see also ss 15AA and 15AB(3)(a) of the Interpretation Act).
In my view, the expression “nearly identical” should be read confluently, that is to say as a whole (see Sea Shepherd Australia Limited v Commissioner of Taxation (2013) 212 FCR 252 at [34] and the cases referred to therein). However, in ascertaining the ordinary meaning of that expression, it is important not to engage in a paraphrasing exercise by reference to dictionary definitions. Such definitions cannot properly be substituted for words used in that expression (Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 at 493 per Tamberlin J), nor can synonyms be used in place of the statutory language. While dictionary definitions are a useful reference in statutory interpretation, they should not restrict the undertaking of that exercise (National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation (Cth) (2008) 74 ATR 173 at [51], citing Falconer v Pederson [1974] VR 185 at 187).
Bearing those principles in mind, it is useful to note that the word “identical” is defined in the Macquarie Dictionary to mean, amongst other things, “corresponding exactly in nature, appearance, manner, etc.” and “the very same”. It is relevantly defined in the Shorter Oxford English Dictionary to mean “[o]f two or more separate things: agreeing in every detail”.
It is also useful to note that the word “nearly” is defined in the Macquarie Dictionary to mean, amongst other things, “all but; almost”, “with close approximation” and “with close agreement or resemblance”. It is relevantly defined in the Shorter Oxford English Dictionary to mean “[w]ith a close degree of agreement or similarity; with close approximation or near approach to a specified state or condition” and “[w]ithin a (very) little; almost, all but, virtually”.
It seems to me that the word “identical” in the context in which it appears, being whether a name is “identical” to a registered name, means that it is exactly the same. As Latham CJ observed in Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 at 115, “strictly, anything can be identical only with itself”.
The expression “nearly identical”, having regard to the above principles and upon reference to dictionary definitions means, in its ordinary sense, essentially just what it says. A name is “nearly identical” to another name if it almost, but not quite, achieves a state of identity with that name. As I have indicated, the expression “nearly identical” is used in contradistinction to, yet is a qualified form of, the term “identical”. 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 that a name is merely similar to a registered name will not preclude registration.
As I have said, the terms “identical” and “nearly identical” are to be read in the context of the object expressed in s 16(3)(a) of the Act of avoiding confusion by ensuring that names answering those descriptions are not registered. That “confusion” is the “mischief” that s 25(a)(i) of the Act and ss 5 and 6 of the Determination are “seeking to remedy” (Alcan at [47]; CIC Insurance at [408])
I note, by way of contradistinction, that the provisions of the Commonwealth Electoral Act 1918 (Cth) considered by this Tribunal in Re Woollard v Australian Electoral Commission [2001] AATA 166 (Presidential Members Gray, French (as His Honour then was) and Nicholson JJ) prescribed a test governing the registration of names of political parties which expressly specified the degree of “resemblance” between names, precluding the registration of a name which “so nearly resembles” a registered name “that it is likely to be confused with or mistaken for that name” (emphasis added).
This Act is to be construed according to its own terms and in its own context and so care must be taken in referring to authorities concerning other legislation (Baini v R [2012] HCA 59 at [14]); see also Woollard at [36]). Section 25(a)(i) and other provisions employing the term “nearly identical” do not prescribe a test as to how near to identical a name must be for registration to be precluded, whether in terms of the likelihood of confusion or otherwise. If such a question arises, it could only be in a subsumed form, in the context of the exercise of judgment in any given case as to whether a particular name is “nearly identical” to another according to the statutory meaning of that expression.
Nevertheless, there are aspects of the reasoning in Woollard which serve to confirm the kinds of questions which necessarily arise in considering the context in which the term “nearly identical” is employed for the purposes of this Act (see Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J, as his Honour then was). The object of the avoidance of confusion expressed in s 16(3)(a) of the Act necessarily raises questions which bear upon the meaning of the expression “nearly identical”.
First, what is the nature of the confusion contemplated by s 16(3)(a) which is intended to be avoided in the manner provided? In my view the object is to avoid confusion on the part of persons falling in the class referred to in 16(1)(a) of the Act. Particularly, the object is to avoid confusion amongst “those who engage or propose to engage with” a business carried on under a registered business name and “those who engage or propose to engage with” a business carried on by an entity which has applied to register a name that is identical or nearly identical to that registered name.
As I have said, an entity that intends to carry on a business under a business name is required to register the business name. An entity that carries on a business under a name that is not registered to the entity as a business name will be committing an offence pursuant to s 18 of the Act.
As I have said, the requirement to register a business name is stated in s 16(2) of the Act to achieve the object stated in s 16(1)(a) of ensuring 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” (see also s 22(2) of the Act). For a name to be registrable, it must be “available” and, amongst other things, must not be “identical or nearly identical” to a registered name.
In my view, the requirement to register a business name is not intended to protect the interests of entities that have “already secured registration, although that may be a by-product of the refusal of registration”. Rather, it serves to protect the interests of those who engage or propose to engage with businesses (Woollard at [20]).
Furthermore in my view, given the requirement that a business intending to carry on a business must register that name, the confusion encompassed by s 16(3)(a) is therefore not confined to confusion on the part of those who search the register. Rather, it extends to confusion arising from an entity’s activities in carrying on a business (cf. Woollard at [22]-[23], [39]).
I note that in the Macquarie Dictionary the word “confusion” is relevantly defined to mean “the state of being confused” and also “perplexity; bewilderment”, while the verb “confuse” is relevantly defined to mean “to fail to distinguish between; associate by mistake; confound” and “to perplex, bewilder”. In the Shorter Oxford English Dictionary, the word “confusion” is defined to mean, amongst other things, “[f]ailure to distinguish” and “[t]he quality of being confused, indistinct or obscure” and the verb “confuse” is relevantly defined to mean “[d]iscomfort in mind or feelings; abash, bewilder, perplex”, “[t]hrow into disorder or confusion” and “[m]ix up in the mind; fail to distinguish”.
In my view, the relevant confusion which is intended to be avoided by the refusal of registration of names that are identical or nearly identical to registered names is confusion first in the sense of a failure to distinguish between the business carried on by the entity carrying on business under a registered name and that carried on by another entity applying for registration of an identical or nearly identical name, either by mistaking one business for the other, mistakenly believing that they are both the same business or mistakenly believing that they are both carried on by the same entity. It also encompasses confusion in the sense of being uncertain as to which business one is engaging with or proposing to engage with or the identity of the entity carrying on such a business (see s 16(1)(a) of the Act).
It is important to note in that regard that the context in which relevant confusion might arise for the purposes of s 16(3)(a) of the Act is significantly different from that considered in Woollard. In that case, the likelihood of confusion (or mistake) was to be assessed in the context of a voter viewing a ballot paper on which the names of two registered political parties both appear, particularly as to whether some relationship exists between those two parties (see at [41]; also Re Fishing Party and Australian Electoral Commission (2009) 100 ALD 172 at [40]). In my view, the relevant confusion on the part of those who engage or propose to engage with businesses, one having a registered name and one having an identical or nearly identical name, is not limited in such a way to circumstances in which both names might appear together.
I consider that the class of persons within s 16(1)(a) to which I have referred comprises the full range of persons who might reasonably be expected to engage or propose to engage with the businesses in question. That class would comprise people of varying “age, linguistic ability, literacy, intelligence ... and other factors” (Woollard at [23]). In my view it would include not only natural persons but bodies corporate and the like.
Accordingly, the question which arises in determining upon comparison whether a name is “nearly identical” to a registered name is whether the name is nearly identical according to the ordinary meaning of that expression, but taking into account that it is employed so as to avoid relevant confusion amongst the relevant class I have described.
I accept the applicants’ submission that the question of whether a name is “nearly identical” to a registered name is, like the question of whether it is “identical” to a registered name, one of fact (see Fraser Henleins at 114-5 per Latham CJ) and is also a question requiring the exercise of judgment (ibid; see Woollard at [38]). In my view, grammatical, syntactical and typographical features of the names being compared are to be taken into account, given the object of avoiding relevant confusion. The relevance of such features would appear to be confirmed by the modificatory aspects of the rules in ss 5(1) and 6(1). In my view aural features of the names should also be taken into account, given that object; the determinative effect of s 6(2) of the Determination with respect to names which may be pronounced the same should not be taken as suggesting that aural features of names are otherwise irrelevant to whether names are “nearly identical” according to the statutory meaning of that term.
Furthermore, I accept the applicants’ submission that some words used in the names being compared might be of greater import than others in forming that judgment, according to the relative significance of their meaning in the context of each name, considered holistically. That also reflects the context in which the term “nearly identical” is used and would appear to be confirmed by the terms of Sch 1 to the Determination.
Are the names “nearly identical” to the applicants’ registered name?
Once relevant matters enumerated in s 5(1) of the Determination are disregarded, is the name “Melbourne Child Psychology” “nearly identical” to the applicants’ registered business name “Melbourne Children’s Psychology Clinic” for the purposes of s 25(a)(i) of the Act? Once such matters are disregarded, is the business name “Melbourne Child Psychology Services” “nearly identical” to the applicants’ business name?
As I have said, there is no dispute that when comparing each subsequently registered name with the applicants’ name, in each case s 5(1) of the Determination requires that one disregard the fact that the applicants’ name includes the word “child” in the plural while the subsequent names include that word in the singular, and also requires that one disregard the apostrophe (being punctuation) used in the word “Children’s” in the applicants’ name. Furthermore, as I have said, it was common ground that there is no item in Sch 1 to the Determination applicable pursuant to s 6(1) of the Determination to the names being compared.
I find that both names in issue are “nearly identical” to the applicants’ registered name for the purposes of s 25(a)(i) of the Act according to the ordinary meaning of that term having regard to its context and the legislative purpose.
In the case of the comparison of the names “Melbourne Child Psychology” and “Melbourne Children’s Psychology Clinic”, I consider that they are “nearly identical” once the relevant matters in s 5(1) of the Determination are disregarded, despite the remaining difference between the second word in each name and the presence of the word “Clinic” in the latter name. In my view those features are not sufficient to distinguish the two names so as to avoid confusion of the kind I have described amongst relevant persons, which would include parents of patients or prospective patients, such patients, referring doctors, other psychologists, relevant agencies, suppliers of the businesses and other entities with which they contract, as to whether the businesses carried on under each name are the same business, one business is the other business or as to whether they are both carried on by the same entity.
I note that some of the words and expressions the subject of Item 199 in Sch 1 to the Determination are perhaps explained in similar terms (although as will be apparent from my reasoning, I am not purporting to read words into that Schedule, whether on the basis that they have been inadvertently omitted or otherwise). The remaining difference between the second word in each name is not aurally distinctive given the word that follows in each name.
In the case of the comparison of the names “Melbourne Child Psychology Services” and “Melbourne Children’s Psychology Clinic”, once the same relevant matters are disregarded in accordance with s 5(1) of the Determination, the inclusion of the word “Services” in the former name and the inclusion of the word “Clinic” in the latter name do not, in my view, constitute a sufficient difference between the names so as to avoid confusion of the kind I have described amongst those in the relevant class as to whether the businesses carried on under each name are the same business, one business is the other business or as to whether they are both carried on by the same entity, given the similar meaning of those words in the context in which they are used in each name. Again, I note that some of the words and expressions the subject of Item 199 in Sch 1 to the Determination are perhaps explained in similar terms (see also, for example, Items 113 and 142). Again, the remaining difference between the second word in each name is not aurally distinctive given the word that follows in each name.
CONCLUSION
As each of the names “Melbourne Child Psychology” and “Melbourne Child Psychology Services” is “nearly identical” to the business name “Melbourne Children’s Psychology Clinic”, which is registered to the applicants, it follows that both names in issue are not “available” to the joined party for the purposes of s 24(1)(c) of the Act.
Accordingly, in the case of each of the names, the Tribunal will set aside the decision under review, being ASIC’s decision made under s 57(6) of the Act to affirm the decision made under s 24 to register the name to the joined party. In substitution for the decision under review, the Tribunal will set aside the decision to register the name to the joined party and will, in substitution for that decision, refuse to register the name to the joined party.
I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins. ..........................[sgd]..............................................
Associate
Dated 26 August 2014
Date of hearing 11 March 2014 Date final submissions received 16 May 2014 Counsel for the Applicants Mr T P Mitchell Solicitors for the Applicants Mr T H Swinburne Counsel for the Respondent Mr S Rosewarne Solicitors for the Respondent
Advocates for Joined Party
ASIC Legal
Ms D Jepsen and Mr A Lion (directors)
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