Business Names Act 1962 (WA)

Western Australia Business Names Act 1962 Western Australia Business Names Act 1962 Contents 1. Short title 1 2. Commencement 1 3. Repeal, savings and transitional provisions 1 3A. Expiry of Act 3 4. Terms used 3 4AA. Commissioner 5 4A. Arrangements for administration of this Act 5 4B. Commissioner may act for purposes of national business names legislation 6 4C. Outstanding matters 8 5. Certain business names to be registered 9 5A. Leave of District Court required in certain cases before using business name 11 6. Register of business names 13 7. Registration of business names 14 9. Restriction on registration of business names that are undesirable etc. 16 10. Power to cancel registration of business names that are undesirable etc. 17 11. Renewal of registration 19 12. Notification of changes of particulars relating to registered business names, cessation of business etc. 21 13. Duty to furnish information 24 14. Certain proceedings may be stayed or subject to undertaking 25 15. Signing of statements 26 16. Verification of particulars 27 17. Penalty for false statement 27 18. Notice of proposed cancellation 27 19. Cancellation of registration 28 20. Use and exhibition of business name 30 21. Commissioner may correct errors in register etc. 31 22. Inspection of statements 32 23. Certificate of registration or non‑registration 32 24. Evidence of registration or non‑registration 33 26. Invitations to the public to make deposits or loans 33 27. General penalty provisions 34 28. Default penalty 35 29. Offences committed by corporations 35 30. Evidentiary provisions 36 31. Service of notices by Commissioner 36 31A. Delegation by Commissioner 37 31B. Information officially obtained to be confidential 38 31C. Protection from liability for wrongdoing 38 31D. Powers of investigation 39 32. Regulations 39 Schedule — Acts repealed Notes Compilation table 42 Defined terms Western Australia Business Names Act 1962 An Act to consolidate and amend the law relating to business names and for other purposes. 1. Short title This Act may be cited as the Business Names Act 1962 1. 2. Commencement This Act shall come into operation on a day to be fixed by proclamation 1. 3. Repeal, savings and transitional provisions (1) The Acts mentioned in the Schedule to this Act to the extent to which they are therein expressed to be repealed, are hereby repealed accordingly. (2) Without prejudice to the operation of the Interpretation Act 1918 2, except as in this Act expressly or by necessary implication otherwise provided — (a) all persons, things and circumstances appointed or created by or under the repealed Act or existing or continuing under the repealed Act immediately before the coming into operation of this Act shall, under and subject to this Act, continue to have the same status, operation and effect as they respectively would have had if the repealed Act had not been repealed; and (b) in particular and without affecting the generality of paragraph (a) — (i) such repeal shall not disturb the continuity of status, operation or effect of any regulation, order, registration, certificate, notice, statement, declaration, application, requirement, consent, obligation, liability or right made, effected, issued, granted, given, presented, passed, fixed, accrued, incurred or acquired or existing or continuing by or under the repealed Act, before the coming into operation of this Act; and (ii) any right of action or power of prosecution had by or against a firm, individual or corporation, registered or deemed to be registered or required to have been registered under the repealed Act immediately before the coming into operation of this Act, shall continue to be had and may be enforced, as if this Act had not come into operation; and (iii) all penalties incurred under the repealed Act before the commencement of this Act are enforceable and may be enforced as if this Act had not come into operation. (3) A reference in any Act, order, regulation, instrument or document to a firm, individual or corporation registered under the repealed Act or any corresponding previous enactment, shall unless the context otherwise requires be construed as referring also to a firm, the members of which, to an individual who or to a corporation that, as the case may be, is carrying on business under a business name registered under this Act. (4) A business name in respect of which a firm, individual or corporation was, immediately before the coming into operation of this Act, registered or deemed to be registered under the repealed Act, shall subject to this Act, upon the coming into operation of this Act, be deemed to be registered under this Act in relation to each member of the firm, in relation to the individual or in relation to the corporation, as the case may be, and this Act applies to and in relation to the business name accordingly. 3A. Expiry of Act (1) This Act expires on a day fixed by proclamation. (2) A proclamation cannot be made under subsection (1) unless the Commissioner has given the Minister a certificate signed by the Commissioner stating that the operation of this Act is no longer necessary. [Section 3A inserted: No. 6 of 2012 s. 15.] 4. Terms used (1) In this Act unless the contrary intention appears — ASIC means the Australian Securities and Investments Commission of the Commonwealth; business includes trade and profession; business name means a name, style, title or designation under which a business is carried on; 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; change‑over day has the meaning given in the Commonwealth Transitional Act section 4(1); christian name includes any forename; Commissioner means the person for the time being designated as the Commissioner under section 4AA; Commonwealth Transitional Act means the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Commonwealth); corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth, other than an exempt body within the meaning of section 66A of that Act; Department means the department of the Public Service principally assisting in the administration of this Act; director in relation to a corporation, includes any person occupying the position of director of the corporation by whatever name called; firm means an unincorporated body of persons (whether consisting of individuals or of corporations or partly of individuals and partly of corporations) associated together for the purpose of carrying on business; individual means a natural person and does not include a corporation; initial includes a recognised abbreviation of a christian name; national business names legislation means — (a) the Business Names Registration Act 2011 (Commonwealth); and (b) the Commonwealth Transitional Act; register means the register of business names kept under this Act or under any corresponding previous enactment; repealed Act means the Business Names Act 1942; secretary, includes — (a) any person performing the duties of secretary of the corporation; and (b) the local agent of a foreign corporation within the meaning of the Corporations Act 2001 of the Commonwealth; section means section of this Act. (2) For the purposes of this Act, a person shall not be regarded as carrying on business within the State for the reason only that within the State he — (a) is or becomes a party to any action or suit or any administrative or arbitration proceeding, or effects settlement of an action, suit or proceeding or of any claim or dispute; or (b) maintains any bank account; or (c) effects any sale through an independent contractor; or (d) creates evidence of any debt or creates a charge on real or personal property; or (e) secures or collects any of his debts or enforces his rights in regard to any securities relating to those debts; or (f) conducts an isolated transaction that is completed within a period of 31 days, but not being one of a number of similar transactions repeated from time to time; or (g) invests any of his funds or holds any property. (3) For the purposes of this Act, a business name shall be deemed to be registered under this Act in relation to a person, if it appears from the register that the person either alone or together with other persons is carrying on business under that name. [Section 4 amended: No. 40 of 1976 s. 12; No. 10 of 1982 s. 28; No. 10 of 1998 s. 21; No. 20 of 2003 s. 7; No. 28 of 2006 s. 55; No. 6 of 2012 s. 16.] 4AA. Commissioner (1) The Minister is required, by notice published in the Gazette, to designate a person who is an executive officer of the Department as the Commissioner for the purposes of this Act. (2) The Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette. (3) In this section — executive officer has the meaning given by section 3(1) of the Public Sector Management Act 1994. [Section 4AA inserted: No. 28 of 2006 s. 56.] 4A. Arrangements for administration of this Act (1) The Commissioner may make an arrangement with ASIC about any matter connected with the administration of this Act. (2) In particular, an arrangement may provide — (a) for the performance of functions and the exercise of powers conferred by subsection (3) by ASIC; or (b) for the performance of functions or the exercise of powers of the Commissioner under this Act by staff members of ASIC. (3) Subject to subsection (4), ASIC has the functions and powers of the Commissioner under this Act. (4) ASIC must not perform a function or exercise a power conferred by subsection (3) except in accordance with an arrangement under this section. [Section 4A inserted: No. 105 of 1990 s. 98; amended: No. 26 of 1999 s. 64; No. 6 of 2012 s. 17.] 4B. Commissioner may act for purposes of national business names legislation (1) In this section — business names information means information obtained by the Commissioner in connection with the administration or enforcement of this Act. (2) The Commissioner may, on behalf of the State — (a) give ASIC notifications under the Commonwealth Transitional Act Schedule 1; and (b) do any other thing that is required to be done by the State to facilitate the transition to the national business names legislation. (3) Without limiting subsection (2), the Commissioner may, under the Commonwealth Transitional Act Schedule 1 Part 2 — (a) give ASIC notification that a business name is to be held for the purposes of resolving outstanding matters in relation to the business name; and (b) if the Commissioner is satisfied that all outstanding matters in relation to the business name have been finally resolved, give the appropriate notification to ASIC. (4) Without limiting subsection (2) or (3), the Commissioner may — (a) disclose to ASIC business names information; and (b) give to ASIC copies of records, containing business names information, that are in the Commissioner's possession or under the Commissioner's control. (5) The Commissioner may — (a) give notifications under subsection (2) or (3); or (b) disclose business names information, or give a copy of a record, under subsection (4), in whatever form the Commissioner considers appropriate (which may include by means of electronic data or in a form appropriate for the purposes of the national business names legislation). (6) If anything that this section authorises the Commissioner to do would be contrary to any enactment relating to secrecy or confidentiality, this section prevails. (7) Without limiting section 31C, the doing of anything in good faith under this section — (a) does not result in any person incurring civil or criminal liability; and (b) is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and (c) is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct. (8) In this section, a reference to the doing of anything includes a reference to an omission to do anything. [Section 4B inserted: No. 6 of 2012 s. 18.] 4C. Outstanding matters The outstanding matters for the purposes of which the Commissioner may give ASIC notification under section 4B(3) to hold a business name include, but are not limited to, the following — (a) an application for the registration of a business name that is made under section 7(1), but not finally dealt with by the Commissioner, before the change‑over day; (b) an application for the consent of the Minister to the registration of a business name that is made under section 9(1), but not finally dealt with by the Minister, before the change‑over day; (c) a statement in respect of the renewal of the registration of a business name that is lodged under section 11(1), but not finally dealt with by the Commissioner, before the change‑over day; (d) a statement that is lodged under section 12, but not finally dealt with by the Commissioner, before the change‑over day; (e) a notice sent by the Commissioner under section 10(1) before the change‑over day that specifies a period that expires on or after the change‑over day; (f) a notice sent by the Commissioner under section 18(1) or (2) before the change‑over day in respect of which the one month period referred to in section 19(1)(b) or (c) expires on or after the change‑over day; (g) an application for leave of the District Court that is made under section 5A(3), but not finally dealt with by the Court, before the change‑over day; (h) an application to the State Administrative Tribunal that is made under section 19(3), but not finally dealt with by the Tribunal, before the change‑over day; (i) the right of a person to make an application under section 9(1), for the consent of the Minister to the registration of a business name, on or after the change‑over day; (j) the right of a person to lodge a statement under section 11(1), in respect of the renewal of the registration of a business name, on or after the change‑over day; (k) the right of a person to make an application to the State Administrative Tribunal under section 19(3) on or after the change‑over day. [Section 4C inserted: No. 6 of 2012 s. 18.] 5. Certain business names to be registered (1A) Subsection (1) does not apply to an act or omission that occurs on or after the change‑over day. (1B) Despite subsection (1A) and The Criminal Code section 11, a person may be punished on or after the change‑over day for an offence committed under subsection (1) before the change‑over day. (1) A person shall not either alone or in association with other persons, carry on business in the State under a business name unless — (a) the business name consists of the name of that person and the name of each other person, if any, in association with whom that person is so carrying on business without any addition; or (b) the business name is registered under this Act in relation to that person and each other person, if any, in association with whom that person is so carrying on business, and where the business name is so registered unless such of the provisions of section 12 as are required to be complied with by or on behalf of the person or persons in relation to whom the name is registered have been complied with. Penalty: $200. Default penalty. (2) For the purposes of subsection (1) and of section 5A(2) the name of a person consists of — (a) in the case of an individual, his full name or his surname together with — (i) his christian name or names; or (ii) the initial or initials of his christian name or names; or (iii) a combination of one or more of his christian names and the initial or initials of his remaining christian name or names; or (iv) the christian name or names by which he is commonly known or the initial or initials by which he is commonly known or any combination of one or more of those names and those initials; (b) in the case of a corporation, the corporate name of the corporation. (3) The addition to a business name of words indicating that the business is carried on in succession to a former owner of the business shall, for the purposes of subsection (1) and of section 5A(2), be deemed not to be an addition to the business name. (4) Where a business is carried on by an official receiver, a trustee in bankruptcy or a trustee under a deed or scheme of arrangement entered into under a law of the Commonwealth relating to bankruptcy, or by a receiver, manager or other person appointed by a court or under the powers contained in any instrument to carry on that business, the business shall, for the purposes of this Act, be deemed to be carried on by the person who carried on the business immediately before the appointment of the receiver, trustee, manager or other person. (5) Notwithstanding anything in this Act, a contravention of or failure to comply with any provision of this Act does not operate to avoid any agreement, transaction, act or matter. [Section 5 amended: No. 113 of 1965 s. 8; No. 40 of 1976 s. 3; No. 6 of 2012 s. 19.] 5A. Leave of District Court required in certain cases before using business name (1) This section applies to a person convicted whether before or after the commencement of this section, and whether within or without the State — (a) on indictment of an offence in connection with the promotion, formation or management of a corporation; or (b) of an offence involving fraud or dishonesty punishable on conviction with imprisonment for 3 months or more; or (c) of an offence under — (i) section 108, 229, 554, 555, 556, 559 or 560 of the Companies (Western Australia) Code 3, section 44 of the Companies (Acquisition of Shares) (Western Australia) Code 3 or section 129 of the Securities Industry (Western Australia) Code 3; or (ii) any provision of an equivalent law of another State or of a Territory of the Commonwealth that corresponds with any of the provisions in subparagraph (i); or (iii) any provision of a law of the State, of another State or of a Territory of the Commonwealth that was in effect before the provisions in subparagraph (i) and that corresponds with any of the provisions in subparagraph (i); or (iv) any provision of the Corporations Law that corresponds with any of the provisions in subparagraph (i); or (v) any provision of the Corporations Act 2001 of the Commonwealth that corresponds with any of the provisions in subparagraph (i). (2A) Subsection (2) does not apply to the carrying on of business on or after the change‑over day. (2B) Despite subsection (2A) and The Criminal Code section 11, a person may be punished on or after the change‑over day for an offence committed under subsection (2) before the change‑over day. (2) A person to whom this section applies shall not, within the period of 5 years next succeeding any occasion on which he is convicted as referred to in subsection (1) or, where he has served a term of imprisonment imposed pursuant to any such conviction, within the period of 5 years next succeeding his release from that imprisonment, carry on business in the State under a business name unless — (a) the business name under which he so carries on business — (i) consists of his name; or (ii) where he carries on business in association with another person or other persons, consists of his name and the name or names of the person or persons in association with whom he carries on business, without any addition; or (b) he has obtained the leave of The District Court of Western Australia upon application made as provided by subsection (3) so to carry on business. Penalty: $400. (3) An application for leave of the District Court shall not be made unless the Minister has been given not less than 28 days' notice of the proposed application. (4A) An application cannot be made under subsection (3) on or after the change‑over day. (4B) If an application made under subsection (3) is not finally dealt with by the District Court before the change‑over day, on or after the change‑over day the Court may decide whether, had the application been finally dealt with by the Court before the change‑over day, the Court would have granted leave under this section. (4) The Minister may be represented at the hearing of, and may oppose, the application. (5) Nothing in this section shall be construed as affecting the operation of section 5. (6) Nothing in this section shall make it an offence for any person to carry on business under a business name which immediately before the commencement of this section and at all times thereafter has been a business name registered under this Act under which that person was carrying on business in the State. [Section 5A inserted: No. 40 of 1976 s. 4; amended: No. 10 of 1982 s. 28; No. 20 of 2003 s. 8; No. 50 of 2003 s. 41(2); No. 6 of 2012 s. 20.] 6. Register of business names (1A) This section does not apply on or after the change‑over day. (1) The Commissioner shall keep a register of business names registered under this Act, in such form as he thinks fit. (2) A statement lodged under this Act in relation to a business name registered under this Act, whether lodged before or after the registration, shall for the purposes of this Act be deemed to be incorporated with and to form part of the register. (3) The register of the business names of firms, individuals and corporations registered or deemed to be registered under the repealed Act shall be deemed to be incorporated with and to form part of the register kept under this Act. [Section 6 amended: No. 40 of 1976 s. 12; No. 6 of 2012 s. 21.] 7. Registration of business names (1A) An application cannot be made under subsection (1) on or after the change‑over day. (1) An application for the registration of a business name shall be made by lodging with the Commissioner a statement in the prescribed form, which shall be signed by the person or persons carrying on or proposing to carry on business in the State under that name, shall be accompanied by the prescribed fee, and shall set out — (a) the business name; and (b) a concise description of the true nature of the business carried on or proposed to be carried on under that name by the applicant or applicants; and (c) the address of each place in the State where the business is or is proposed to be carried on showing, if the business is or is proposed to be carried on at more than one place in the State, which of those places is the principal place of business; and (ca) the address of the place in the State where a notice given under this Act may be served; and (d) the christian names and surname and any former christian names or surname and the usual place of residence of each applicant who is an individual and the corporate name and the place of the registered office of each applicant that is a corporation; and (e) the date or proposed date of commencement of the carrying on of business in the State under the business name by the applicant or applicants; and (f) where the business name is a name adopted by the applicant or applicants in substitution for another name, that other name. (2) If an applicant is an infant, he shall be so described in the statement and the date of his birth shall be set out in the statement. (3) Subject to this Act, the Commissioner shall, upon the lodging of a statement under subsection (1) in relation to a business name, if the statement is finally dealt with by the Commissioner before the change‑over day, register the business name. (4A) If an application made under subsection (1) for the registration of a business name is not finally dealt with by the Commissioner before the change‑over day, the Commissioner may, on or after the change‑over day, decide whether, had the application been finally dealt with before the change‑over day, the Commissioner would have registered the business name. (4) The Commissioner shall, upon registering a business name before the change‑over day, issue a certificate of registration in the prescribed form signed by the Commissioner. (5)(a) The Commissioner may, before the change‑over day, upon payment of the prescribed fee issue a further certificate of registration. (b) Where the Commissioner is duly notified in accordance with section 12(1) of particulars of a change occurring in relation to the place or places in the State at which a business is carried on under a business name registered under this Act or in the address of any such place and the statement lodged under section 12(1) is finally dealt with by the Commissioner before the change‑over day, the Commissioner shall, before the change‑over day, issue, without any fee being payable therefor, a certificate of registration including those particulars in substitution for the previous certificate of registration. (6) A business name shall not be registered under this Act if the statement referred to in subsection (1) is lodged with the Commissioner on a date preceding by more than 2 months the date shown in the statement as the proposed date of commencement of carrying on business. (7) The Commissioner may refuse to register a business name, if he is not satisfied that the particulars set out in the statement lodged under subsection (1) are correct. [Section 7 amended: No. 40 of 1976 s. 12; No. 74 of 2003 s. 31(2) and (3); No. 6 of 2012 s. 22.] [8. Deleted: No. 74 of 2003 s. 31(4).] 9. Restriction on registration of business names that are undesirable etc. (1A) An application for the consent of the Minister under subsection (1) to the registration of a business name cannot be made — (a) in the case of a decision of the Commissioner, made before the change‑over day, that the business name may be registered only with the consent of the Minister — after the end of 2 months after the change‑over day; or (b) in the case of a decision of the Commissioner, made on or after the change‑over day as provided for by section 7(4A), that before the change‑over day the Commissioner would have registered the business name only with the consent of the Minister — more than 28 days after the Commissioner's decision. (1) Except with the consent of the Minister, a business name shall not be registered under this Act if the business name is a name that is, in the opinion of the Commissioner, undesirable or is a name or a name of a kind that the Minister has, for the purposes of this Act, directed the Commissioner not to accept for registration. (2A) Subsection (2B) applies if — (a) an application is made under subsection (1), but not finally dealt with by the Minister, before the change‑over day; or (b) an application is made under subsection (1) on or after the change‑over day in accordance with subsection (1A). (2B) On or after the change‑over day, the Minister may decide whether, had the application for consent under subsection (1) been made and finally dealt with by the Minister before the change‑over day, the Minister would have consented to the registration of the business name to which the application relates. (2) The Minister shall cause a direction given by him under subsection (1) to be published in the Government Gazette and a copy of the direction to be forwarded to the Minister of the Commonwealth, the Minister of each State other than this State and the Minister of a Territory, responsible for the administration of an Act that relates to the registration of business names. [Section 9 amended: No. 40 of 1976 s. 12; No. 74 of 2003 s. 31(5); No. 6 of 2012 s. 23.] 10. Power to cancel registration of business names that are undesirable etc. (1) If a business name, that could not be registered under this Act without contravention of section 9(1), is registered through inadvertence or otherwise, the Commissioner may, before the change‑over day, send by post a notice addressed to the person or persons in relation to whom the name is so registered, at the place shown in the register as the place where business is carried on under that name — (a) stating that he proposes to cancel the registration of that name upon the expiration of such period (being a period of not less than 28 days) as is specified in the notice; and (b) setting out his reasons for the proposed cancellation, and, if the period specified in the notice expires before the change‑over day, upon the expiration of that period the Commissioner may cancel the registration of that name. (2A) Subsection (2B) applies if, before the change‑over day, the Commissioner sends a notice under subsection (1), in respect of a business name, that specifies a period that expires on or after the change‑over day. (2B) Upon the expiration of the period specified in the notice, the Commissioner may decide whether, had the period specified in the notice expired before the change‑over day, the Commissioner would have cancelled the registration of the business name under subsection (1). (2) The Commissioner shall not, except with the approval of the Minister, exercise his powers under subsection (1) or (2B) with respect to a business name that is deemed to be registered under this Act by virtue of section 3(4). (3) The Minister may at any time before the expiration of the period specified in a notice given by the Commissioner under subsection (1) annul the notice. (4) The Commissioner may remit any fee payable in respect of an application for the registration of a new business name the registration of which is cancelled under subsection (1) or would have been cancelled under subsection (2B). [Section 10 amended: No. 40 of 1976 s. 12; No. 6 of 2012 s. 24.] 11. Renewal of registration (1A) A statement cannot be lodged under subsection (1) in respect of the registration of a business name that expires on or after the change‑over day. (1B) If the registration of a business name expires before the change‑over day, the fact that the period of one month after the expiry of the registration ends on or after the change‑over day does not prevent a statement being lodged under subsection (1) at any time within that period. (1) The registration of a business name remains in force for a period of 3 years, but the registration may from time to time be renewed by lodging with the Commissioner, at any time within the period of one month before or after the expiry of the registration or within such further time as the Commissioner allows, a statement in the prescribed form, signed by the person or one of the persons in relation to whom the name is registered, together with the prescribed fee. (1a) If, and to the extent that, the fee referred to in subsection (1) is a tax, this subsection imposes the tax. (2A) Subsection (2B) applies if — (a) a statement is lodged under subsection (1), but not finally dealt with by the Commissioner, before the change‑over day; or (b) a statement is lodged under subsection (1) on or after the change‑over day. (2B) The Commissioner may, on or after the change‑over day, decide whether, had the statement been lodged and finally dealt with before the change‑over day, the Commissioner would have renewed the registration of the business name under subsection (1). (2) If a statement lodged under subsection (1) is finally dealt with by the Commissioner before the change‑over day, the renewal of a registration shall be deemed to have been effected for a further period of 3 years as from the day on which the previous registration expires or has expired, as the case may be. (3A) If a statement lodged under subsection (1) is dealt with in accordance with subsection (2B), the previous registration of the business name to which the statement relates is to be taken to have remained in force in respect of the period between when the previous registration expired and the change‑over day. (3) In respect of the registration of a business name that expires before the change‑over day, the Commissioner shall before or after the expiration of the registration of the business name, but not earlier than one month before the expiration (and in any case, before the change‑over day), send by post to the person or persons in relation to whom the business name is or was registered, at the place shown in the register as the place where business is carried on under that name, a notice of the date on which the registration is due to expire or has expired, as the case may be. (4) Where the registration of a business name has expired the Commissioner shall not, except where he is of the opinion that owing to the nature of the business and the locality in which it is carried on the public are not likely to be misled, accept for registration from any person or persons other than the person or persons in relation to whom the business name was registered any business name that