The Secretary, Home and Territories Department, forwards the following case for advice:

I attach papers relative to the question of whether or not the Northern Standard newspaper should be registered under the Registration of Firms Act, which has been raised with the Registrar of Firms by Mr Alfred Pain of Darwin.

In a recent action brought by an ex-editor against the proprietary of the paper, it was held by the Supreme Court that the proprietary being a trade union could not be sued and the same line of argument is used as against registration and, if this is sound, it means in effect that the ordinary individual has no rights, as against the newspaper, which he can enforce at law. I should be glad to be advised on the following points:

1. Should the paper be registered under the Registration of Firms Act?
2. If the answer to (1) is 'yes', what person or persons should be called upon to register and proceeded against in default of so doing?

Section 4 of the Registration of Firms Act 1899 (an Act of the State of South Australia continued in force in the Territory) provides as follows:

From and after the commencement of this Act-

1. Every firm carrying on business or having any place of business in South Australia under a firm-name which does not consist of the full or the usual names of all the partners or all the acting partners without any addition:
2. Every person carrying on business or having any place of business in South Australia under any firm-name consisting of or containing any name or addition other than the full or the usual name of that person:

shall register, in the manner directed by this Act, the name under which their or his business is or is intended to be carried on.

The manner of registration is provided for by section 5, which reads as follows:

Registration under this Act shall be effected by sending by post or delivering to the Registrar a statement in writing containing the following particulars-

1. The firm-name:
2. The nature of the business:
3. The place or places of the business:
4. The full name, usual residence, and other occupation (if any) of the person or persons carrying on or intending to carry on the business:
5. If the business is commenced or any new place of business is established after the commencement of this Act, the date of the commencement of the business or establishment of the place of business.

'Firm' is denned in section 3 as follows:

'Firm' shall mean any two or more persons lawfully associated for the purpose of carrying on any business, but shall not include a company incorporated by or in pursuance of any Act of Parliament, Letters Patent, or Royal Charter.

There is no definition of 'business' in the Act and therefore the word must be presumed to be used in its ordinary sense. According to Halsbury, Laws of England, Vol.27, p. 511-

'Business' is a wider term, not synonymous with 'trade', and means practically anything which is an occupation as distinguished from a pleasure. Profit or the intent to make profit is not an essential part of the legal definition of a trade or business . . .

It would appear, therefore, that the persons carrying on the business of publishing the Northern Standard are bound to register unless they are incorporated as a company. The paper bears on the front page the statement that it is printed and published for the Australian Workers' Union (Darwin branch), which is presumably not incorporated as a company.

The Trade Union Act 1876, an Act of the State of South Australia continued in force in the Territory, contains provisions relating to the legal status of trade unions in the Northern Territory. This Act provides for the registration of trade unions and enables them to hold property in the name of the trustees for the time being and to sue and be sued in the name of those trustees.

If, therefore, the Darwin branch of the Australian Workers' Union is registered under the Trade Union Act 1876 the proper persons to be registered and sued are the trustees for the time being.

If, however, the branch is not so registered it would, I think, occupy a similar legal position to that of an unincorporated club, and could only sue and be sued in a representative action. In this case it would apparently be necessary for the individual members of the branch to register and proceedings for failure to register would have to be taken against one or more members of the branch on behalf of them all.

[Vol. 18, p. 377]