Tribunal: Deputy President Richard Hanger AM QC
This case was about the transfer of a business name on the national register from one entity to another when the name was identical to an existing business name. This situation arose because of a national scheme established in 2008 for registering business names. Before the establishment of this scheme, each state and territory had its own system for registering business names. The national scheme meant businesses would only have to register their names once with the national body rather than having to register it in each State.
The applicant in the case was Alzheimer’s Association of Queensland. In 2001, they registered the name “Dementia Australia” in Queensland. In 2006, Alzheimer’s Association of South Australia registered the same business name, “Dementia Australia”, in South Australia. When the national scheme was established the name “Dementia Australia” was automatically registered to both organisations.
In 2015 a third organisation was incorporated, Alzheimer’s Australia Ltd. The Alzheimer’s Association of South Australia applied to cancel the registration of the name “Dementia Australia” and to transfer it to Alzheimer’s Australia. This was accepted and the name “Dementia Australia” was registered to Alzheimer’s Australia Ltd. The applicant requested an internal review of that decision and the decision was not changed. The applicant applied to the AAT for a review of this decision.
The issue in this case was whether the name “Dementia Australia” was “available” to be registered to Alzheimer’s Australia under the Business Names Registration Act 2011 (The Act), given it was still registered to the applicant.
Two sections in the Act that define if a business name is “available”, section 25 and subsection 31(3). The sections provide different standards that need to be met for a business name to be deemed “available” for registration. Section 25 broadly states that a business name is not “available” for registration if it is already registered to another entity.
The applicant argued they were the only body in Australia holding the registered name “Dementia Australia” once Alzheimer’s Queensland cancelled their registration of the name and so the name was not “available” to Alzheimer’s Australia because they would be breaching section 25 of the Act.
The respondent argued that the Act does not require simultaneous cancellation and new registration but allows for a two-party transfer process, which would allow consent to be lodged, and then for the name to be transferred, otherwise known as a consent application. The AAT accepted the respondent’s argument.
The applicant also argued that the business name needs to be deemed “available” under both section 25 and subsection 31(3). The AAT concluded that this was inconsistent with the scheme of the Act and that Parliament intended to create two pathways in which a business name can be “available”. Section 25 applied to new business names not already on the national register. Section 31 applied to business names already on the national register and that are subject of a consent application. The application in question was a consent application and there was no dispute that Alzheimer’s Australia and Alzheimer’s Association South Australia complied with section 31 so the AAT concluded that Dementia Australia was “available” under the Act.
The applicant’s last argument was that section 24 of the Act gave ASIC the discretion to refuse the registration of the business name. The AAT found that no discretion existed and that ASIC had no choice but to register the name after the relevant criteria were met.
The AAT affirmed the decision under review.
Read the full written decision on AustLII.