VARADI and DEPARTMENT OF CONSUMER AND PROTECTION AGENCY - [2007] WASAT 172

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUSINESS NAMES ACT 1962 (WA)

CITATION: VARADI and COMMISSIONER FOR CONSUMER PROTECTION [2007] WASAT 172

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD :30 MARCH 2007
DELIVERED : Oral reasons delivered extemporaneously in response to a request dated 19 April 2007 on
3 JULY 2007

FILE NO/S: CC 28 of 2007

BETWEEN: FRANK EMERICH VARADI
Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

Catchwords:

Business Names Act 1962 (WA) - True nature of business carried on - No discrete business under names used

Legislation:

Business Names Act 1962 (WA), s 4, s 7, s 9(2), s 19(4), s 20(b)
State Administrative Tribunal Act 2004 (WA), s 27
State Administrative Tribunal Rules 2004 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr Dworcan

Solicitors:

Applicant: Self-represented
Respondent: Department of Consumer and Employment Protection

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied for the review of a decision cancelling the registration of a business name, Northam Motorcycles, which had been registered in his favour under the Business Names Act 1962 (WA).
The Tribunal found that the applicant was not carrying on a business under the name Northern Motorcycles but was endeavouring to carry on a single business under two names, both of which were registered. The Tribunal found that a proper description of the business carried on, which the applicant was required to provide when applying for registration, would disclose that the business to be conducted was the business under the other business name. The Tribunal found that the applicant was not carrying on business under the name Northam Motorcycles. Accordingly, the application was dismissed. The respondent's application for costs was also dismissed.

Introduction

This matter was heard on 30 March 2007 and oral reasons for decision were given immediately after the hearing.
On 19 April 2007, the respondent requested that written reasons for decision be published. Those reasons follow and have been prepared from a transcript of the oral reasons, subject only to minor editing for the purposes of clarity.

The application and evidence

In this matter the applicant applied by an application lodged on 8 January 2007 for the review of a decision of the respondent made on 30 November 2006 to cancel the registration of a business name registered in favour of the applicant under the Business Names Act 1962 (WA) (Act) and sought an order re‑instating that registration.
The State Administrative Tribunal Act 2004 (WA) (SAT Act) read with the State Administrative Tribunal Rules 2004 (Rules) requires that an application for review be lodged within 21 days. However, s 19(4) of the Act provides that the time within which the application may be made is unlimited. Where there is an inconsistency between the SAT Act and the enabling act the provisions of the enabling act apply. For that reason, it was not necessary for the applicant to apply for any extension of time for the making of the application.
The grounds for the application are stated as follows:
"Northam Motorcycles have been registered in my name since 28 November 1985. Every invoice written out has [my] name on it (copy enclosed). Please find enclosed proof of advertising as listed in local directory for 2005 and 2006. Letter received from Department of Consumer and Employment Protection (copy enclosed). As business name renewal was due copy of invoice showing Northam Motorcycles was included. New certificate was received (copy enclosed)."
The essential steps that have occurred in this matter are set out in a response which was filed on 22 January 2007. Evidence was also adduced during the hearing by Phillip Godfrey Payne and Julianna Perpetua Doranthe Perera, both of the Department of Consumer and Employment Protection, which supports the response to which reference has been made. I will not repeat the entire contents of that response but the essential aspects of it are summarised as follows.
On 8 November 1982, the applicant registered the business name JEF Sales and Services under the Act. On 20 November 1985, the applicant registered the business name Northam Motorcycles. In about September 2006, the Commissioner for Consumer Protection (Commissioner) received a complaint that the applicant was not carrying on business under the name of Northam Motorcycles. As a result of that, a letter was sent by the Commissioner to the applicant on about 18 October 2006 pursuant to the provisions of s 18 of the Act.
The applicant says that on or about 31 October 2006, he had received a renewal form for the business name which was sent back to the Commissioner. It is admitted for the Commissioner that the renewal form was received. The applicant's evidence is that accompanying the renewal form which he sent in was an invoice which he provided in response to the letter to which I have referred dated 18 October 2006. It is patently obvious that the applicant has misconstrued that letter. There is no conceivable way in which it can be properly read as indicating that by sending in one invoice that would be capable of satisfying the Commissioner that the applicant was, indeed, carrying on business. The letter relevantly states:
"If you are carrying [on] business under the name please provide some documentary evidence such as copies of advertising, receipts, invoices, accounts, [etc] displaying the name Northam Motorcycles to support that you are carrying on business under the name in accordance with the Act."
In any event, the Commissioner does not admit having received the invoice which the applicant says was attached, that being an invoice dated 12 October 2006 addressed to Peter Bartlett for a total amount of $112.33. The invoice reflects a number of names. Three of them are product names in relation to which the applicant deals in his business. There are also three business names – JEF Sales and Service, Northam Chainsaw Centre and Northam Motorcycles. It is common cause that the name Northam Chainsaw Centre is also registered as a business name by the applicant.
The way in which the respondent has dealt with the issue is to say that even if the invoice had been attached, which is not admitted, it would not have been sufficient to satisfy the Commissioner that the business was being carried out by the applicant under the name Northam Motorcycles. I am satisfied that the decision which the Commissioner made on or about 30 November 2006 cancelling the registration was justified on the information provided.
Pursuant to s 27 of the SAT Act, this is a review de novo and it, therefore, does not really matter whether the Commissioner was justified or not in making the decision which he did at the relevant time. This Tribunal is now obliged, effectively, to sit in the position of the Commissioner and arrive at what is the correct and preferable decision as at the date of review.
In any event, the facts as outlined in the response and the evidence to which I have referred go on to relate that on or about 11 December 2006 the Commissioner registered the business name Northam Motorcycle Repairs in favour of Maxwell Cultham Hubble and Stephanie Peta Hubble. The response raises that in the event that the Tribunal finds that the Commissioner erred in cancelling the registration of the business name Northam Motorcycles then, in any event, the registration should not be reinstated without ministerial consent. That is said to flow from a direction by the Minister for Consumer and Employment Protection, dated 29 April 2002, made pursuant to s 9(2) of the Act.
I should add that Mr Hubble was given leave to attend the hearing and to make submissions which he did, on the basis that he was not joined as a party and his involvement would be restricted to that extent.
I turn then to look at the additional evidence which has been provided in these proceedings. The applicant has filed a number of documents, including additional invoices and brochures reflecting various motocross events over a period of time. As a result of questions raised by the Tribunal, the directory known as the Local Link, which is a business directory relating to the Northam community, was tendered for the year 2005 and 2006.

Considerations

The definition set out in s 4 of the Act for "carrying on business" is:
"'carrying on business' includes establishing a place of business in the State, and soliciting or procuring any order from a person in the State and 'to carry on business' has a corresponding meaning;"
I am satisfied on the evidence which has been provided that the applicant is carrying on business within the sense of that dictionary definition. However, I do not think that is conclusive of the matter. Section 7 of the Act deals with the process of applying for registration. It requires that a prescribed form be lodged and that certain stipulated information be set out.
Part of that information is a concise description of the true nature of the business carried on or proposed to be carried on under the proposed business name by the applicant. That, in my view, raises a real issue in this case. A photograph which was tendered of the applicant's place of business at the time when the notice of 18 October 2006 was issued, shows that – and this is admitted by the applicant – there is no provision of the business name, Northam Motorcycles, which, by s 20(b) of the Act, must be displayed in a conspicuous position on the outside of every place at which business is carried out under that name. The photograph shows, similar to the invoice to which I have referred, a number of product names with which the applicant deals. The name which prominently stands out is JEF Motorcycles. Of course, the applicant does not have a registered name in that form. The registered names relevantly, excluding references to the chainsaw related business name, were JEF Sales and Service and Northam Motorcycles.
The evidence shows that there is no discrete business run as either JEF Sales and Service or Northam Motorcycles. There was then – and, indeed, at the new location of the applicant's business, there is even now ‑ effectively ‑ one business premises with no distinction drawn, or any physical demarcation showing one business being conducted in one area and one or others in a different area of the premises.
Further, the evidence shows that the bank accounts for the business are in the name of JEF Sales and Service. That is explained on the basis that JEF Sales and Service was the first registered business name under which the applicant first operated and that it was simply convenient to proceed on that basis. The applicant contends that although there is only one business, it operates using two business names.
The advertising which has been referred to in evidence, and I refer here in particular to exhibits 2 and 3, which are the Local Link publications, show that prominence is given in the advertisement to JEF Sales and Service. That name is set out at the heading of the entry, and below it, in front of a blue background, is the words "Northam Motor Sales". That appears in a prominent advertisement which also depicts two motorcycles. Below what I might describe as the pictorial entry, there are separate entries for JEF Sales and Service Northam and Northam Motorcycle Centre Northam, both at the same telephone number. The advertisement in both the 2005 and 2006 editions of that publication are in identical form.
The only documentation which has been presented to the Tribunal in which any dominance has been given to the name Northam Motorcycles is by way of brochures which advertise motocross events that were sponsored by the applicant. The first of those is document No 11 in the applicant's bundle of documents. It refers to a championship event conducted in 2000 and it has a large, one-page advertisement which has the bold heading at the top "Northam Motorcycles" but immediately below it "JEF Sales and Service" appears in brackets. The next brochure was also in the year 2000. It looks as if this is all part of document No 11 but it seems to relate to two different publications. The first publication relates to "Round 3" of the championship and the date is given of 25 June 2000. The second document, which bears a handwritten No 12 on it, is clearly a separate document, refers to an event headed "Motaul", and advertises four rounds – commencing on 21 May 2000 and thereafter on 18 June 2000, 16 July 2000 and 13 August 2000. That can be discerned from a subtitle "2000 Natural Terrain Motocross Series". The event was, as I have said, sponsored by the applicant and the form of advertisement which appears as part of the brochure is in exactly the same form as that which I have just related in respect of document No 11. In all other respects, every document which has been tendered gives prominence to JEF Sales and Service.
When one takes that into account, together with the fact that the display of the business names, or business name, on the facade of the building in which the applicant carried on business made no reference at all to Northam Motorcycles, and the fact that there was, in reality, one business operated with one banking account kept under the name of JEF Sales and Service, it leads the Tribunal to conclude that a proper description of the true nature of the business would disclose that JEF Sales and Service is the business which is being conducted. There is an overlap in the actual business carried out between JEF Sales and Service and Northam Motor Sales in that it is clear that both names have been used in relation to the motor sales business. The entries in the Local Link support that conclusion.
What the applicant is doing in this case is not really operating under the name JEF Sales and Service as the name of the business, but endeavouring to operate under two names within what, in reality, should have been one registration. In those circumstances, I do not think it can be said that the applicant is carrying on the business of selling or servicing motorcycles under the name Northam Motorcycles. In truth, the applicant is endeavouring to operate under two names, which he should not be doing.
I record that the applicant initially applied for costs. After some debate and as a result of the Tribunal expressing its view that the respondent genuinely attempted to enable the respondent to arrive at the decision under review, although he was misguided in the way he did so, the application for costs was not pursued.

Order

For the above reasons, the Tribunal ordered:
1.The application is dismissed.
2.The respondent's application for costs is refused.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER