WKNH and Australian Securities and Investments Commission

[2018] AATA 1325

WKNH and Australian Securities and Investments Commission [2018] AATA 1325 (22 May 2018) [2018] AATA 1325 (22 May 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/5830
TAXATION AND COMMERCIAL DIVISION            )

Re: WKNH
Applicant

And: Australian Securities & Investments Commission
Respondent

And: Hoi Ming Cheong
Other Party

CORRIGENDUM

TRIBUNAL:              Deputy President S A Forgie

DATE:   19 July 2018

PLACE:                    Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows..

1.Under the Secondary Materials heading Chambers 21st Century Dictionary is listed as ‘Chambers 21^st Century Dictionary, 1999, reprinted 2004’

2.In paragraph 28 in the third line of the quoted text ‘or’ is changed to ‘nor’

3.In paragraph 29 ‘The DS Human Child’ is changed to ‘The DisHuman Child’

4.In paragraph 29 quoted text is changed from ‘equally object to fight ‘to disable’ is changed to ‘equally objectify the ‘disabled’

5.In paragraph 31 ‘in recent years’ is changed to ‘in recent use’

6.In paragraph 31, dictionary definition from Chambers 21st Century Dictionary is changed from ‘a person, animal or plant of the normal shape or form’ to ‘a person, animal or plant of abnormal shape or form’

...................................................................

S A Forgie

Division:TAXATION AND COMMERCIAL DIVISION

File Number:          2017/5830

Re:WKNH

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

AndHoi Ming Cheong

JOINED PARTY

DECISION

Tribunal:Egon Fice, Senior Member

Date:22 May 2018  

Place:Melbourne

The Tribunal affirms the decision under review.

........................................................................

Egon Fice, Senior Member

BUSINESS NAME REGISTRATION – availability of business name for registration – proposed business name of ‘Fruit Freaks Eastland’ – whether business name unavailable due to being of a kind that is undesirable – whether a real, not remote, chance that business name would be offensive to members of the public or members of a section of the public – decision affirmed

Legislation

Business Names Registration Act 2011 ss. 16, 22, 24, 25, 27, 28
Acts Interpretation Act 1901 s. 15AA
Legislative Instruments Act 2003 s. 13

Cases

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424
Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union

(1979)
27 ALR 367

Boughey v The Queen (1986) 161 CLR 10
Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363

Secondary Materials

Macquarie Dictionary Online
Macquarie Dictionary, 5^th edition
Shorter Oxford English Dictionary
The Australian Concise Oxford Dictionary, 3^rd edition
Chambers 21^st Century Dictionary
Business Names Registration (Availability of Names) Determination 2015

REASONS FOR DECISION

Egon Fice, Senior Member

22 May 2018

1. The business name “Fruit Freaks Eastland” was registered by the Australian Securities & Investments Commission (ASIC) on 6 February 2017. The holder of that business name is a corporate entity called Mr Juicer Pty Ltd.  Mr Hoi Ming Cheong described himself as the owner of Mr Juicer Pty Ltd. I understood that to mean he was a director of that entity as well being a shareholder.

2. The Applicant wrote to The Honourable Kelly O’Dwyer MP on 27 June 2017 objecting to the use of Fruit Freaks as a business name on the ground that it was offensive to persons with disabilities. The Applicant’s complaint was passed on to ASIC who reviewed its decision to register that business name. In a letter dated 31 August 2017 ASIC informed the Applicant that it had decided to affirm the decision to register the business name. It was satisfied that the business name satisfied the requirements of s. 24(1) of the Business Names Registration Act 2011 (the Registration Act).

3. Section 57 of the Registration Act provides for an internal review of certain decisions. The review conducted by ASIC was such a review.  Accordingly, the provisions set out in s. 58 providing for a review by the Tribunal of the decision made under s. 57 were enlivened. The Applicant lodged an application with the Tribunal on 27 September 2017. The Applicant claimed that the registered business name Fruit Freaks Eastland was likely to be offensive to members of the public, particularly people with disabilities.

   REGISTRATION OF BUSINESS NAMES UNDER THE REGISTRATION ACT

4. Division 5 of the Act deals with the objects of the Act and consequences of registration.  Relevantly, the objects of the Act are set out in s. 16 as follows:

   (1)  The objects of this Act are:

   (a)to ensure that if an entity carries on a business under a business name, those who engage or propose to engage with that business can identify the entity and how the entity may be contacted; and

   (b)to remove the inconvenience caused by the registration of business names under the law of more than one jurisdiction within Australia.

   (2)…

   (3) The objects of this Act are also:

   (a)to avoid confusion by ensuring that business names that are identical or nearly identical are not registered; and

   (b)to ensure that business names that are undesirable (for example, because they are offensive) are not registered; and

   (c)to ensure that business names that should be restricted for any other reason (for example, because they might mislead consumers) are not registered.

   (4) The objects mentioned in subsection (3) are achieved by rules dealing with the availability of business names.

5. Section 22 of the Registration Act provides:

   (1)  ASIC must establish and maintain a Business Names Register.

   (2)  The purpose of the Business Names Register is to enable those who engage or propose to engage with the business carried on under a business name to identify the entity carrying on the business and how the entity may be contacted.

   (3)  The Business Names Register may be kept in any form that ASIC considers appropriate.

   (4)  The Business Names Register is not a legislative instrument.

6. Section 24 of the Registration Act deals with the decision to register a business name to an entity. It provides:

   (1)  ASIC must register the business same to the entity if  ASIC is satisfied that:

   (d)the entity has an ABN; and

   (e)the registration fee has been paid; and

   (f)the name is available to the entity; and

   (g)the entity is not disqualified.

   (2)  ASIC may request the entity in writing to give ASIC, within the period specified in the request, information or a document that is of a kind in the request that ASIC needs to be satisfied of the matters mentioned in subsection (1).

   (3)  If the entity does not comply with the request within the time specified, ASIC may refuse the application.

   (4)  Subsection (3) does not limit the ground on which ASIC may refuse an application to register a business name to an entity.

7. Whether a business name is available to an entity depends on matters set out in s. 25 of the Registration Act. The relevant provisions as far as this matter is concerned are set out in subsections (d) and (e) which provide:

   A business name is available to an entity if:

   …

   (d)either:

   (i)     the name is not of a kind that is undesirable; or

   (ii)    the names of a kind that is undesirable but the Minister has determined under subsection 27 (2) that the name is available to the entity; and

   (e)either:

   (i)     the name is not constituted by, and does not include, a restricted word or expression; or

   (ii)    the name is constituted by all includes a word or expression that is restricted unless a condition is satisfied, and the entity satisfies the condition.

8. Section 27 deals with undesirable names and it provides:

   (1)  The Minister may, by legislative instrument, determine the kinds of names that are undesirable for the purposes of this Act.

   (2)  The Minister may determine in writing that a business name specified in the determination is to be available to an entity specified in the determination, even though the names of the kind that is undesirable.

   (3)  A determination under subsection (2) is not a legislative instrument.

   (4)  The Minister must, at least 28 days before revoking a determination made under subsection (2), give notice in writing to the entity specified in the determination:

   (f)informing the entity of the Minister’s intention to revoke the determination; and

   (g)setting out the Minister’s reasons for revoking the determination.

9. Restricted words and expressions are dealt with in s. 28 in the following way:

   (1)The Minister may, by legislative instrument, determine that a word or expression specified in the determination:

   (a)is restricted; or

   (b)is restricted in relation to a specified class of entity or business unless a conditional condition specified in the determination are met.

   (2)the Minister may determine in writing that a word or expression specified in the determination is restricted in relation to a specified entity or a specified business unless the conditional conditions specified in the determination are met.

   (3)A determination under subsection (2) is not a legislative instrument.

10. The current legislative instrument dealing with the availability of business names for registration is titled Business Names Registration (Availability of Names) Determination 2015 (the Determination). It was made on 14 July 2015. Part 3 deals with the kinds of names that are undesirable. Section 8 of the Determination relevantly provides:

    (1)A business name is undesirable if the name has one or more of the characteristics in the table.

    Item                Characteristic  

    1In the opinion of ASIC, it is likely to be offensive to:

    (a)     members of the public; or

    (b)     members of any section of the public

    …

11. Restricted words and expressions are set out in Part 2 and 3 of Schedule 2.  None of the words set out in those Parts apply in this case. The only issue before me in this case is whether the registered business name, that is, Fruit Freaks Eastland, is likely to be offensive to members of the public or members of any section of the public.

    STATUTORY CONSTRUCTION

12. The phrase in the opinion of ASIC, it is likely to be offensive to… set out in s. 8 of the Determination must be construed according to the principles applied to any legislation. This is explained in s. 13 of the Legislation Act 2003 in the following way:

    13 Construction of legislative instruments and notifiable instruments

    (1)  If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears:

    (a)the Acts Interpretation Act 1901 applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and

    (b)expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and

    (c)any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument.          

13. In particular, I should be mindful of the provisions set out in section 15AA of the Acts Interpretation Act 1901 which provides:

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

14. In this case, I am concerned particularly with the words likely and offensive.  Neither of those words is defined in the legislative instrument and therefore they must be given their ordinary meaning having regard to the context in which they appear in that document. This aspect is particularly important in this case.

15. I am mindful of what the High Court of Australia (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) said in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389. It said this about dealing with individual words in a phrase, at 396 – 397:

    The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question.  In R v Brown (31), a recent House of Lords decision, Lord Hoffmann said:

    “The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence… This is not the way language works.  The unit of communication by means of language is the sentence and not the parts of which it is composed.  The significance of individual words is affected by other words and the syntax of the whole.”

16. More recently, the correct approach to the statutory construction of a phrase was dealt with by the Full Court of the Federal Court of Australia (Emmett, Stone and Perram JJ) in St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424 where Stone J said, at 431:

    The long-standing tension in the construction of statutes (and other legal documents) between giving words their “literal” meaning and construing them in the context of the document in which they appear is well-known.  However, this way of articulating the problem is somewhat misleading.  While words may have a stand-alone meaning or meanings which may be found in a dictionary, generally oral or verbal communication does not proceed by way of individual words but by language; by words used in conjunction with one another to express propositions or sentiments or otherwise communicate meaning.  The task of a court in construing a statute is to construe the language of the statute, not the individual words.

17. I should also heed the caution expressed by Rares J in Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876 (17 August 2010) where he said, at [38]:

    The meaning of a word used in ordinary speech or writing is a question of fact.  Dictionaries provide a useful and often important source or aid from which the answer to that question of fact can be determined.  However, it is not legitimate to defer to one particular usage in one dictionary as the only meaning for a word.

18. The starting point of this analysis necessarily needs to be examination of dictionary definitions of the words in question, having regard to the context in which they appear in the legislative instrument.  The word likely is defined as follows in the Macquarie Dictionary Online:

    1.probably or apparently going or destined (to do, be, etc.): likely to happen.    

    2.seeming like truth, fact, or certainty, or reasonably to be believed or expected; probable: a likely story.

19. The Shorter Oxford English Dictionary defines the word likely in the following relevant way (p. 1213):

    2.Having an appearance of truth or fact; seeming as if it would happen, or prove to be as stated; probable

20. The courts have also made a number of statements about the meaning of the word likely. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979)

    
    

    27 ALR 367, a trade practices case, the Full Court of the Federal Court (Bowen CJ, Evatt and Deane JJ) was required to determine whether certain conduct had the likely effect of causing substantial loss or damage. Deane J said, at 382:

    The conclusion which I have reached is that, in the context of s 45D(1), the preferable view is that the word ‘likely’ is not synonymous with “more likely than not” and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage.

21. The Tillmanns Butcheries case was referred to by the High Court of Australia in

    
    Boughey v The Queen

    (1986) 161 CLR 10. Gibbs CJ said, at 14:

    It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word ‘likely’ in ss. 156 and 157 of the Criminal Code Act means ‘probable’ and not ‘possible’. That is its natural meaning.

22. However, Mason, Wilson and Deane JJ said, when referring to Tillmanns Butcheries,

    
    

    said at 21:

    In our view, the word ‘likely’ is used in both ss. 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial – a “real and not remote” – chance regardless of whether it is less or more than 50 per cent…

23. In an interlocutory decision dealing with the Trade Practices Act 1974, the Federal Court of Australia (Gummow J) in Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363 said, at 371:

    The phrase ‘likely to’ is susceptible of various meanings, and takes its colour from the statutory context.  It may indicate a degree of contingency falling short of probability.…

    As matters stand on the present motion, I accept the submission by the applicant that there is a real chance or possibility that the unit holders are likely to suffer loss or damage by the conduct complained of against the respondents.  It may be that some lesser degree of contingency will suffice for s 87(1A) and for s 45D.  But that is a question for another day.

24. In my opinion, in the context in which the word likely appears in the Business Names Registration Determination, it should be given the meaning which conveys the notion of a substantial and a real, not remote, chance that members of the public or members of a section of the public would be offended if the name in question were registered.  That is because, when dealing with words which may cause offence, it seems logical to accept a lesser degree of certainty, particularly as it may apply to a section of members of the public.

25. Perhaps more difficult is the meaning which should be attributed to the word offensive.  The Macquarie Dictionary Online relevantly defines the word offensive as:

    1.    causing offence or displeasure; irritating; highly annoying.

    …

    3.    Repugnant to the moral sense, good taste, or the like; insulting.

26. The Shorter Oxford English Dictionary defines offensive in the following way (p. 1439):

    2.  Hurtful, injurious.

    3.    Giving, or of a nature to give, offence; displeasing; annoying; insulting.

27. In the context of the matter before me, it seems to me that the word offensive should be understood as being repugnant to the moral sense, good taste or the like, or insulting. That is the nature of the complaint made by the Applicant against this particular registered business name.

    THE REASONS FOR OFFENCE

28. The essence of the Applicant’s complaint lies in the use of the word Freaks in the business name. The Applicant put it this way in her application for review:

    I believe this matter is not about the intention of the person who applied to register the business name, as he/she might be ignorant of how “Freaks” was used and is used for people with disabilities, and might not have thought or cared about how hurtful using the word in a business name is for any person with a disability, especially those called this in the past and, fears for the pain of any person with a disability being called it in the future. The word Freak is about “otherness”, being shut out.

29. The Applicant is a person with a disability and she has a daughter who also has a disability. She said she had been called a freak and her daughter had been called a monster. That is the source of her sensitivity to the use of the word freak, without regard to the context in which it might appear. The Applicant resorted to numerous dictionary definitions of the word freak in support of her claim. She also referred in particular to an article titled The DS Human child, Discourse: Studies in the Cultural Politics of Education, (2016) 37:5, 770 – 784, the authors being Dan Goodley, Katherine Runswick-Cole & Kirsty Liddiard. The article deals specifically with the relationship between people and disability with a special focus on the lives of disabled children and young people. The applicant relied particularly on the following passage, at 771:

    The killing of ‘monstrous’ babies born with ‘deformities’ has been traced back as far as the time of Aristotle (Rieser, 2006). In more recent times, monstrosity was justification for the “euthanasia programs’ that systematically killed hundreds of thousands of disabled children, and adults, from 1939 to 1945 in Nazi Germany (Evans, 2004). While we might hope to comfort ourselves by imagining that the image of the monstrous/disabled child is now no more than a historical relic, a contemporary Google search for ‘disabled child’ and ‘monster’ reveals, within the first two pages, the story of a father who describes being in a restaurant with his disabled son who is branded a ‘monster’ by another diner (Lee, 2010) and an anonymous mother’s blog entitled To the monster inside my son in which the mother describes her disabled child as a violent monster (Anon, 2009). Add to this the well-worn narrative of disabled person as freak – and the disabled object at the heart of the freak shows of Victorian England and contemporary reality TV programs that equally object to fight ‘to disable’ as subject of cultural curiosity – and it would seem that disabled children continue to exist as dustbins of disavowal (Hevey, 1992).

1. Understandably, the Applicant’s focus in the multiple dictionaries which she consulted was on the derogatory meaning of the word freak. However, particularly in more recent times, the word freak has often been used in a positive sense. While no purpose is served in examining every dictionary definition, examples both positive and negative are set out below.

2. The Shorter Oxford English Dictionary defines freak in the following negative way: 4.… b. a monstrosity of any species; in recent years, a living curiosity exhibited in a show 1847. 5. quasi-adj. Denoting something abnormal or capriciously irregular 1898. The Australian Concise Oxford Dictionary, 3^rd edition, has the following negative meanings: 1 a monstrosity; an abnormally developed individual or thing. The Macquarie Dictionary, Fifth Edition provides the following negative meanings: 2. Any abnormal product or curiously unusual object; monstrosity. 3. a person or animal on exhibition as an example of some strange deviation from nature. Chambers 21^st Century Dictionary gives the following negative definitions: 1. a person, animal or plant of the normal shape or form. 2. someone or something odd or unusual.

3. Positive definitions include the following: a person with the specified enthusiasm or interest (health freak); colloquial – a person who isn’t used about a particular thing; to have an extreme reaction, either favourable or adverse, to something; and someone highly enthusiastic about a specified thing (health freak, film freak).

4. The word freak in more recent times is used as a colloquial expression to describe athletes or even animals with exceptional abilities. Hence recently in the Commonwealth Games, some athletes were described as having produced a freak performance. The mare Winx, in recording its 25^th win in a horse race, was described by a commentator as a freak. Used in that sense, the word is clearly not derogatory. In fact the opposite can be said of it. It can be very high form of praise.

5. The Applicant, in written submissions forming part of her application documents, said that in May 2017 when shopping at Eastland shopping centre with her daughter, when she saw the sign Fruit Freaks, she was hurt, offended, shocked, upset, distressed and highly annoyed. The Applicant also referred to the caricatures of the fruit depicted with the sign disclosing, in her opinion, fruit characterised as monsters. Even if that were the case, as I pointed out to the Applicant in the course of the hearing, it is not relevant for my consideration which is solely the registered business name. Signage on a retail store is quite a different matter.

   EVIDENCE OF OFFENCE TO MEMBERS OF THE PUBLIC OR TO MEMBERS OF A SECTION OF THE PUBLIC

6. I did not have any evidence before me that members of the public generally were offended by the registered business name Fruit Freaks Eastland. Other than the Applicant, one further person, to whom I shall refer as the Witness, gave evidence of being offended.

7. The offence was caused by the large signage at the front of the store which retailed fruit drinks. The name comprised simply the two words, Fruit Freaks. The word Fruit was in smaller letters then the word Freaks which, on one of the signs, was also lit. I had photographs of those signs in evidence and they are large and conspicuous. In fact one of those signs has in the background caricatures of fruit with faces showing distortions being symbolic of some kind of monster. The applicant also produced in evidence a plastic cup with similar signage and caricatures on it.

8. The Witness made a very brief written statement stating that she was a regular shopper at Eastland and that she found the Fruit Freaks shop offensive. The Witness said she also had disabilities and it was for that reason she found the expression offensive. However, the reference was, as for the Applicant, solely to the word Freaks. Neither the Applicant nor the Witness believed that the context in which the word Freaks was used altered its offensive nature.

9. With respect to the Witness, I found her evidence to be confusing and inconsistent. In cross-examination by Ms A Haban-Beer of counsel, who appeared on behalf of ASIC, the Witness said that she first came across the Fruit Freaks store at the Eastland shopping centre about five months ago when she went inside and bought a fruit juice. When I asked her why she went into the store having seen the sign which she found offensive, she said she did not notice the sign at that time. With respect to the Witness, the signs are so conspicuous as to be unavoidable. Furthermore, her evidence did not explain why a shopper would go into a shop and buy fruit juice without knowing the nature of the business. The Witness also said that she only found out about the application of the Applicant about two months prior to the hearing and agreed to give evidence to support her. It is difficult not to draw the conclusion that the Witness only became conscious of the perceived offensive nature of the signage after discussions with the Applicant. There was no evidence that she took any independent steps to complain about the signage.

10. In her documents the Applicant enclosed an extract from what appears to be an online version of the Oxford English Dictionary. She downloaded the meaning of the word freak, when used as a noun. However, she referred only the negative description of an abnormally developed individual of any species and in recent use, a living curiosity exhibited in a show (especially in the U.S.). I then directed her attention to the meaning attributed to the word freak where it appeared with a qualifying word or phrase. The definition provided was: d. With qualifying word or phrase: one who shows great enthusiasm for the activity, person, or thing specified, as health freak, train freak, etc; an aficionado. Regardless, the Applicant said it made no difference to her whatsoever. If it had the word freak in it, it was unacceptable.

11. With respect to the Applicant, the word freak, on its own, is not an offensive word. Its meaning, as with many words in the English language, continues to evolve and develop new meanings. The use of the word in the negative context is not one which predominates in the public arena. It is more frequently now used in conjunction with a qualifying word or phrase and is complimentary. I readily accept that if the word is directed at a person with a mental or physical disability, it could be highly offensive to that person. However that is not the way in which I must assess the words used in a registered business name. I must take into account the context and, in this case, in particular the qualifying word which accompanies the word Freak, which is the word Fruit. The words read together would, in my opinion, ordinarily convey the meaning that the business of the store was to provide fruit juice drinks for those persons who showed great enthusiasm for such drinks. It might also convey the meaning that the store itself specialised in particular forms of fruit drinks for discerning customers who enjoyed fruit juice.

12. The issue then is whether, putting aside for the time being the location description in the registered business name, the words Fruit Freaks was likely to be offensive to members of the public or to members of any section of the public. It is reasonably clear, although by no means universal, that in this case we are concerned with members of a section of the public, in particular that section which has a disability.

13. The Applicant put into evidence (D4) a letter from Mr Stephen Kilkeary from a group calling itself People with Disability Australia. In his letter, Mr Kilkeary said:

    I agree with you that the trading name, ‘Fruit Freaks’ may be offensive to some people with disability, particularly since the word ‘freaks’ has historically been used as a disparaging term against people with disability.

14. I agree with that statement from Mr Kilkeary. It accords with the evidence. That is, there may be some persons with disability who would find the expression, even with a qualifying word attached, to be offensive. However, that is not to say that members of a section are likely to be offended. The evidence before me does not support the claim made by the Applicant that there is a real and not remote chance that members of the public or members of a section of the public would be offended by the registered business name. The only evidence other than the Applicant’s evidence of offence was that of the Witness. As I have already said, I found her evidence to be confusing and illogical. There was no evidence that she was immediately offended by the signs on and in the store, otherwise she certainly would not have gone inside and purchased fruit drink. I cannot accept her evidence that she did not see the sign prior to entering the store. Her evidence more likely supports what Mr Kilkeary said in his letter, which is that some people may be offended by those words.

15. For the reasons I have set out above, I find that the Applicant has not established by evidence that the registered business name, Fruit Freaks Eastland, is likely to offend members of the public or members of any section of the public.

    CONCLUSION

16. I have found that the evidence in this case does not support the claim made by the Applicant that the registered business name, Fruit Freaks Eastland, is likely to be offensive to members of the public or members of any section of the public such that the name should be considered to be undesirable and therefore not available for registration by ASIC.

17. It necessarily follows that I find the decision made by ASIC on 31 August 2017 affirming the decision to register the business name Fruit Freaks Eastland was the correct decision. I affirm that decision.

47.     I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice

.....................[sgd]...................................................

Associate

Dated: 22 May 2018

Date of hearing:	3 April 2017
Applicant:	In person
Counsel for the Respondent:	Ms A Haban-Beer
Solicitors for the Respondent:	ASIC Administrative Law, Chief Legal Office