Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd
[2015] ACTSC 288
•21 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd |
Citation: | [2015] ACTSC 288 |
Hearing Date: | 16 September 2015 |
DecisionDate: | 21 September 2015 |
Before: | Mossop AsJ |
Decision: | The proceedings are dismissed |
Category: | Principal judgment |
Catchwords: | CORPORATIONS – winding up by Court – statutory demand – application to set aside demand – plaintiff served copy of application and affidavits on the defendant to set aside the statutory demand – copy of application served within 21 day period included return date inserted by plaintiff’s solicitor but no court seal, court stamp, proceeding number, registrar’s signature or other mark indicating that documents had been accepted by the Court and that proceedings were on foot – plaintiff subsequently served sealed and stamped copy of application and affidavits outside 21 day period – whether plaintiff had served a “copy” of the application and affidavit within the meaning of s 459G(3) Corporations Act 2001 (Cth) within 21 days – documents not a “copy” – proceedings dismissed |
Legislation Cited: | Corporations Act 2001 (Cth) s 459G Court Procedures (Fees) Determination 2015 (ACT) Federal Court Rules 2011 (Cth) rr 2.21, 2.25 |
Cases Cited: | Accommodation West Pty Ltd v Innis [2009] WASC 337 Australian Foods Company Pty Ltd v O’Donnell [2002] WASC 129 Universal Trade Exchange Pty Ltd v Westpac Banking Corporation (2002) 20 ACLC 1302 |
Parties: | Adhesive Pro Pty Ltd (Plaintiff) Blackrock Supplies Pty Ltd (Defendant) |
Representation: | Counsel Ms H Robinson (Plaintiff) Mr G Blank (Defendant) |
| Solicitors Colquhoun Murphy (Plaintiff) Goodman Law (Defendant) | |
File Number: | SC 309 of 2015 |
Introduction
The unfortunate circumstances faced by the plaintiff in this case arise as a result of defective administrative processes adopted in the registry of the Court. Since the decision in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 it has been universally known that there is no capacity to extend the time in which proceedings may be commenced in order to set aside a statutory demand. It is commonplace for plaintiffs to seek to commence such proceedings close to the end of the 21 day period and it is therefore necessary to file the application and affidavit in support and then serve copies of those documents upon the defendant before that period ends.
Notwithstanding the passage of 20 years since the decision in David Grant and the universal understanding of the decisive nature of the 21 day period, the administrative processes in the registry of the Court do not reasonably accommodate the need for the Court to promptly record the filing of documents and provide sealed or stamped service copies of the documents so filed to a plaintiff so that the plaintiff may serve the application and affidavit in support within the inflexible period set by the Corporations Act 2001 (Cth) (the Act). Rather, as illustrated by this case, notwithstanding the protestations of urgency on behalf of the party seeking to file them, the documents may disappear into the registry so that they may be scrutinised for defects, only to reappear after the time by which the law says that they must be served.
In the present case the plaintiff lodged documents for filing in the registry on the 20th day after service of the statutory demand. Notwithstanding that the counter staff were informed that the documents needed to be processed urgently, the documents were only released by the registry, and hence only became available for service, on the 24th day after service of the statutory demand, well outside the statutory time period. Notwithstanding the failures within the registry, the plaintiff argues that all is not lost because, in an attempt to avoid disaster, being unable to extract from the registry copies of the documents marked in some way so as to show that they had been filed, it served copies of its application and affidavits in support upon the defendant that had a return date inserted by the plaintiff’s solicitors but were not stamped, signed or otherwise marked by the registry to show that they had been accepted by the Court.
The parties have asked me to determine, as a preliminary question, whether the service of documents that occurred is sufficient to satisfy the statutory requirement in s 459G(3) of the Act to serve copies of the application and affidavits in support and hence give the Court jurisdiction to consider the substance of the plaintiff’s application. If the requirements of s 459G(3) have not been satisfied then the proceedings must be dismissed.
The facts
The statutory demand was served on the plaintiff on 7 August 2015. Therefore the 21 day period expired at the end of 28 August 2015 (a Friday).
On 27 August 2015 (a Thursday) Mr Osborne, a solicitor employed by the solicitors for the plaintiff, attended the Supreme Court registry and filed the originating application and the affidavits of Emanuela Sonia Ciancio and Bruno Ciancio with “a young male staff member” at the registry counter. The staff member processed the cheque for the filing fee of $3,088. There was then a conversation between the staff member and Mr Osborne as follows:
Staff member: “Okay that’s all been entered into the system and you can collect those sealed copies in a few days.”
Solicitor: “Is it possible to get a service copy of these documents now?”
Staff member: “No, sorry, it needs to be processed. They’ll be ready in a few days.”
Solicitor: “I really need to serve the documents today under the requirements of the Corporations Act. Is there any way you can give me a sealed copy to serve today?”
Staff member: “No, I can’t guarantee anything. I can send it out the back straight away, but they need to process it and it needs to be approved by the Registry before it can be sealed and return to you. We are really busy at the moment, so there’s no guarantees.”
Solicitor: “Right.”
The solicitor then waited a short period until the staff member indicated that he should leave.
Mr Osborne then contacted the solicitor with carriage of the matter and informed her that the registry had not returned a sealed copy of the originating application despite a request to do so.
I infer that he was then instructed to serve what he could on the defendant. At 3.28 pm he attended the registered office of the defendant and served an unsealed copy of the documents on a person at the premises who declined to properly identify himself. The documents so served were copies of the originating application signed by the solicitor for the plaintiff and two supporting affidavits. The application included a return date, namely, 7 September 2015 at 11.00 am. That return date was not a return date inserted by any member of staff in the registry but rather a return date included in the document by the solicitors for the plaintiff on the basis of their understanding of the practice of the Court. The application included no mark, stamp or signature that would indicate that the documents had in fact been filed with the Court or that proceedings had been commenced. Specifically they did not include the signature of the Registrar, any proceeding number, any Court seal or any stamp indicating that the documents had been filed with the Court.
On 31 August 2015 Ms Easdale, the solicitor with carriage of the plaintiff’s case, attended the registry at about 10.00 am and was told by a staff member that the application had not been reviewed but was “at the top of the pile”. She was advised to return that afternoon to collect the application. At 2.00 pm she instructed the firm’s clerk to attend the registry and collect the originating application and affidavits. She received them at about 4.45 pm. At 5.00 pm she sent an email to the solicitors for the defendant attaching the sealed copies of the originating application and affidavits. On 2 September 2015 Ms Easdale served the originating application and affidavits on the defendant at the registered office of the company. The originating application on the Court file bears a stamp indicating that it was “lodged” and “filed” on 27 August 2015.
In summary:
(a)the originating application and affidavits were filed on 27 August 2015 (day 20);
(b)the registry staff declined the request of a solicitor for the plaintiff to provide service copies of the documents that indicated that they had been accepted on that day;
(c)copies of the originating application and affidavits were served on 27 August 2015 (day 20) but those copies had no signature of the Registrar, proceeding number or any Court seal, stamp or other mark that indicated that they had been filed in court although they did bear a return date that had been included in the document by the solicitors for the plaintiff (rather than by the Registrar) which was in fact the return date for the proceedings;
(d)the originating application and affidavits were only processed by the registry staff on 31 August 2015 (day 24) and made available to the solicitors for the plaintiff on that date;
(e)sealed and stamped copies of the originating application and affidavit were sent by email to the solicitors for the defendant on that day;
(f)sealed and stamped copies of the originating application and affidavits were served on the registered office of the defendant on 2 September 2015 (day 26).
Statutory provisions
Section 459G of the Corporations Act provides:
459G Company may apply
(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2) An application may only be made within 21 days after the demand is so served.
(3) An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
Schedule 6 of the Court Procedures Rules 2006 (ACT) (the Rules) relates to proceedings under the Act. Rule 2.2 in Schedule 6 requires that proceedings be commenced by originating process or interlocutory process. Rule 2.3 provides:
2.3 Setting of hearing
On receiving an originating process or interlocutory process, the registrar—
(a) must set a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and
(b) may seal a sufficient number of copies for service and proof of service.
There is an approved form for an originating process for proceedings under the Act. The plaintiff in fact used the wrong form and commenced by originating application. Notwithstanding that defect, the application was recorded as filed by the registry. The approved form for an originating process (Form 2) has provision for signature by the Registrar. The originating application used by the plaintiff (Form 2.7) did not.
The balance of the Rules apply to proceedings under the Corporations Act to the extent to which they are not inconsistent with the rules in Schedule 6 of the Rules. Rule 1.3 of Schedule 6 provides:
1.3 Application of sch 6 and provisions of these rules
(1) Unless the Supreme Court otherwise orders—
(a) this schedule applies to a proceeding in the court under the Corporations Act, or the ASIC Act, that is started on or after 12 November 2003; and
…
(2) The other provisions of these rules apply, as far as they are relevant and not inconsistent with this schedule—
(a) to a proceeding in the Supreme Court under the Corporations Act, or the ASIC Act, that is started on or after 12 November 2003; and
…
The provisions of the Rules relevant to filing, sealing and stamping of documents are as follows.
70 Originating process to be sealed
The registrar must seal the original and filed copies of an originating process.
Note The registrar may reject an originating process that is filed (see r 6140 (Rejecting documents—noncompliance with rules etc) and r 6142 (Rejecting documents—abuse of process etc).
71 Numbering etc of proceedings
(1) When an originating process is sealed, the registrar must give a distinguishing number or other unique identifier to the proceeding started by the process.
(2) The registrar must ensure that the original and each copy sealed under rule 70 is endorsed with—
(a) the distinguishing number or other unique identifier given to the proceeding; and
(b) the date when—
(i) the process was filed in the court; or
(ii) if the proceeding was started by an oral originating application—the application was made.
Note See r 37 (When oral originating application may be made in Supreme Court).
…
Division 6.3.2 Filing documents
6120 Filing documents—number of copies
When filing a document in the court, a person must file—
(a) the original; and
(b) enough copies for service and proof of service, if required by a territory law or an order of the court.
Note A territory law includes these rules (see Legislation Act, s 98).
6121 How documents may be filed
A document may be filed in the court by—
(a) delivering it to the registry personally; or
…
6122 Filing documents personally
(1) This rule applies to a document filed in the court by personal delivery to the registry.
(2) However, this rule does not apply to an exhibit or another document that does not require sealing or stamping.
(3) The registrar may—
(a) record the filing of the document and, if appropriate, seal or stamp the document; or
(b) reject the document under division 6.3.3 (Rejecting filed documents).
(4) If the registrar records the filing of the document, the registrar must return any copies of the document filed with the document for sealing or stamping.
…
6126 Date of filing
(1) The registrar must record the date of filing in the court of each filed document.
(2) For these rules, the date of filing is the date of—
(a) for a document filed in the court by personal delivery to the registry—the day it is delivered to the registry; or
…
Note See also r 6145 (Filed documents initially rejected).
…
(5) For this rule, it does not matter when the registrar records the date of filing.
(6) The date of filing must be written on the filed document.
Division 6.3.3 Rejecting filed documents
6140 Rejecting documents—noncompliance with rules etc
The registrar may reject a document that is filed in the court if—
(a) the document does not comply with division 6.3.1 (General provisions about documents for filing) as far as the document can comply; or
(b) there is an approved form for the document and the document is not properly completed; or
Note See r 6101 (Documents—compliance with approved form).
(c) a fee determined under the Court Procedures Act 2004, section 13 is payable for filing the document and the fee has not been paid; or
Note The Legislation Act, s 54 requires a filing fee to be paid before filing.
(d) the document does not otherwise comply with these rules.
6143 Rejecting document—registrar to give notice etc
(1) If the registrar rejects a document under this division—
(a) the registrar must give notice of the rejection, and of the grounds of the rejection, to the person who filed the document in the court; and
(b) the registrar must return the document and copies of the document filed with the document; and
(c) the document is taken not to have been filed.
(2) Subrule (1) (c) is subject to rule 6145 (Filed documents initially rejected).
Note See r 6144 in relation to costs incurred by a party in relation to a rejected document.
6145 Filed documents initially rejected
(1) This rule applies to a document if—
(a) the registrar rejects the document under this division; but
(b) either—
(i) the registrar subsequently accepts the document; or
(ii) the court or a judicial officer subsequently directs the registrar to accept the document.
(2) The registrar must record the filing of the document in the court and, if appropriate, seal or stamp the document.
(3) If the registrar records the filing of the document, the registrar must return any copies of the document filed with the document for sealing or stamping.
(4) The document is taken to have been filed in the court on the day it would have been filed if the registrar had not rejected the document.
Note Rule 6126 (2) (Date of filing) deals with the date of filing.
(5) If the document is rejected by the registrar (whether or not more than once), the document is taken to have been filed in the court on the day it was first filed.
…
6303 Registrar to keep seals
(1) The registrar of the Supreme Court must keep the following seals:
(a) the seal of the Court of Appeal;
(b) the seal of the Supreme Court.
…
6304 Documents—sealing and stamping
(1) A document must be sealed if the document is—
(a) issued by the court; and
(b) required to be sealed under these rules.
(2) The registrar may stamp a copy of a document to indicate that it is a copy of a filed document if—
(a) the document has been filed by a party; and
(b) a copy of the document must or may be served on another party.
6401 Service of filed documents
(1) If a party files a document in a proceeding, the party must serve sealed or stamped copies of the document on each other active party.
(2) This rule does not apply to an application allowed under a territory law to be filed in the court without being served on another party.
Note A territory law includes these rules (see Legislation Act, s 98).
…
6405 How document is personally served
(1) To serve a document personally on a person, the person serving the document must give the person—
(a) if the original of the document is sealed—a sealed copy of the document; or
(b) in any other case—a stamped copy of the document.
…
6420 Ordinary service—address for service
If a document is not required by these rules to be served personally on a person, the document may be served on the person—
(a) by serving it personally on the person; or
(b) by leaving a sealed or stamped copy at the person’s address for service; or
…
6432 Service on corporations—additional ways for all corporations
(1) A document may be served on a corporation under these rules by leaving it at, or sending it by post to, the corporation’s registered office.
(2) This rule does not affect the operation of any other law that authorises or requires service of a document otherwise than as provided under this rule.
Note The note to r 6431 (1) sets out other applicable laws.
(3) In this rule:
registered office, for a corporation, includes—
(a) if the corporation has a registered office under the Corporations Act—that office; and
(b) if under a territory law or a law of the Commonwealth a document may be served on the corporation by leaving it at, or sending it by post to, a place—that place; and
(c) if paragraphs (a) and (b) do not apply in relation to the corporation but it has an office or place of business in the ACT—that office or place.
The Dictionary to the Rules provides the following relevant definitions:
filed—a document is filed in the court if—
(a) the document is lodged at the registry for filing by the court; or
(b) filing of the document in the court by electronic communication is allowed under a practice note and the document is filed in accordance with the practice note.
originating process—
(a) for these rules generally—means an originating claim, originating application or application for arbitration; and
(b) for schedule 6 (Corporations Rules)—see schedule 6, rule 1.5.
sealed, for a document, means stamped with the court’s seal.
stamped, for a document, means stamped under rule 6304.
Schedule 6 rule 1.5 provides:
originating process means an originating process in a proceeding.
The effect of the Rules set out above appears to be that a document is filed when it is, relevantly, delivered to the registry personally: r 6121(a). Once filed, the Registrar then has a choice – to “record the filing of the document and, if appropriate, seal or stamp the document” or “reject the document under division 6.3.3”: r 6122(3). Thus a document may be filed but, until it is recorded as filed, the filing has not been effective because the document will not be sealed or stamped and may still be rejected. If recorded as filed then copies of the document filed for sealing or stamping must be returned: r 6122(4). If it is rejected then although actually filed, “the document is taken not to be filed”: r 6143(1)(c). The filing date is the date that the document was originally delivered to the registry even though the recording of that fact may only occur on a later date either by reason of there being administrative delays in the registry: r 6126(2)(a), 6126(5) or because the document was initially rejected but then subsequently accepted: r 6145(4).
It should be noted that, unlike the position in the Federal Court, the Rules do not incorporate a distinction between “lodging” and “filing” a document (cf Federal Court Rules 2011 (Cth) rr 2.21, 2.25). Rather any distinction is between actual filing (in a case like this, personal delivery to the registry) and being recorded as filed as a result of not being rejected by the Registrar.
Once an originating process is recorded as filed then the original and other filed copies must be sealed and a distinguishing number or other unique identifier endorsed on them: rr 70-71. The date of filing must also be endorsed on them: r 71(2)(b).
Submissions
The defendant contended that the authorities require that there must be some evidence on the served documents of acceptance by the Court of the documents commencing the proceedings in order that they be a “copy” for the purposes of the Act. Because there was not any such evidence the defendant contended that s 459G(3) was not complied with and hence that the Court had no jurisdiction.
The plaintiff recognised that there is a long line of authority which establishes that s 459G is not complied with by the service of copies of the application and affidavits if the originating application does not include some indication that it has been filed in the registry. The plaintiff contended that, in circumstances where the Rules do not contemplate a distinction between “lodging” and “filing” a document, it is sufficient that the copy of the originating process that was served correctly identified the return date for the application and that there was no requirement that the served copy of the application include the proceedings number, any seal of the Court or any other marking that would indicate that the document was a copy of a document that had been filed in the Court.
Authorities on what is required to be a “copy” for the purposes of s 459G(3)
In order to assess the plaintiff’s argument it is necessary to review the authorities referred to by the parties in their submissions.
In Elite Motor Campers Australia v Leisureport Pty Ltd (1996) 22 ACSR 235 a company sought an injunction to restrain the defendant from making a winding up application. The applicant company had failed to commence proceedings to set aside the statutory demand within the 21 day period. In dismissing the application for an injunction Spender J said:
It should be said that it appears that the failure by Leisureport to serve the application to set aside the demand is not something for which Leisureport was responsible, but was for reasons outside Leisureport's control, being delay by the court in processing the filing of the demand. That circumstance, however, and regrettably, cannot prevail over the absolute nature of the requirements of s 459G of the Corporations Law.
In Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181, Santow J, in an ex tempore decision, dealt with a matter in which the application that was served on the defendant omitted the return date. Santow J held that this was not service in accordance with s 459G(3)(b), observing (at [6]):
5 The Plaintiff contends that, consistent with the approach of Young J in Howship Holdings Pty Limited v Leslie (1996) 41 NSWLR 542 at 544, following amongst other decisions Hope v Hope 43 ER 534 at 539 service should be understood in the terms stated by Lord Cranworth:
"the object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the court may feel perfectly confident that service has reached him, everything has been done that is required."
6 But there lies the answer to the Plaintiff's argument. For how can the party who is served have received proper notice of the proceedings for which attendance is required within the twenty-one days when that party is not told of the important fact of the return date for the application to set aside the statutory demand till after the twenty-one days.
7 Had the copy been served in advance of the filing of the identical application but with a notation of the return date written thereon in some fashion, assuming that that information could be obtained in advance of filing, I might have concluded that the Plaintiff had done what it needed to do to conform to s459G of the Corporations Law -- on the basis that there is no magic in the order of the events that have to take place within the twenty-one days, though the argument is still open that the Defendant needs to know for certain it has been filed and not simply rely on an anticipated return date that turns out to be correct. But regrettably not even that occurred. That is not altered by the fact that the Defendant was apprised of the return date later, since that was some six days after the twenty-one days and that is too late.
The plaintiff in the present case places reliance upon Santow J’s indication that if the return date had been inserted then his Honour might have concluded that service was effective for the purposes of s 459G. However it is notable that this remark must be obiter because in that case the return date had not been included. The obiter comment as to the significance of a return date was qualified by the recognition of the contrary argument, namely, that the defendant needs to know for certain that the application has been filed and not simply rely upon an anticipated return date which turns out to be correct.
In Chelring Pty Ltd v Coombs [2000] WASC 60, Master Sanderson dealt with a matter in which the application that was served did not have the action number on the top right-hand corner of the document, did not have the date and time at which the application would be heard, and did not bear the seal of the Supreme Court. It was not contended that there was any prejudice to the respondent arising from the failure. The respondent’s solicitors were notified of the return date and did in fact appear on that date. Master Sanderson held that the application had not been served in accordance with the requirements of s 459G(3)(b) and hence found that an application was not on foot. The Master said:
The section does not say that what must be served is an "exact copy". It may then be the case that if the copy served does not contain the seal of the Supreme Court or it does not contain the action number, such omissions may be excused. But a copy of the application must, I think, by implication, require the important information to be included on the served document. In particular, that must mean that the return date of the application and the date upon which the application was filed should be included. Without these two vital pieces of information a respondent is put at a disadvantage. In the one case, it needs to know the date of filing to ensure that the procedure for setting aside a statutory demand has been followed. In the other the respondent needs to know when it should appear in court to answer the application.
The Full Court of the Supreme Court of Western Australian dealt with the same issue in Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338. In that case, the only deficiency in the documents as served was that four pages had been omitted from an annexure to the affidavit in support. The Full Court held that, as what was required to be served was a copy of the supporting affidavit (including annexures), there had not been compliance with the requirements of s 459G(3)(b).
Australian Foods Company Pty Ltd v O’Donnell [2002] WASC 129, a decision of Master Bredmeyer, was a case with some similarity to the present in that the responsibility for the failure to serve the application and affidavit within time lay with the registry staff. The registry staff had taken the documents for filing saying that they would be available on a later date. In order to deal within this adversity the applicant had persuaded the registry staff to provide copies with the Court’s stamp but not with the return date. The applicant’s solicitor took the view, correctly in the Master’s opinion, that these could not be served because of the absence of a return date. Master Bredmeyer said (at [3]):
The application will be dismissed because the applicant failed to serve the application on the respondent within the 21-day limit. The mistake was caused by the court staff, which I regret. I have spoken to the Officer-in-Charge of the Registry and he assured me that proper procedures were in place for the handling of s 459G applications, but, in this case, those proper procedures were not observed. I hope that the mistake will not happen again. In the circumstances, I will order a refund of the filing fee paid.
In Universal Trade Exchange Pty Ltd v Westpac Banking Corporation (2002) 20 ACLC 1302 Master Sanderson followed Robowash, Benonyx and Chelring and found that the absence of a return date on the application that was served meant, despite the absence of any prejudice to the respondent, the application was incompetent. The Master said that “the use of the word “copy” in subpar (3)(b) means an exact copy”. This reference to “exact” copy must, however, be read in context. The Master said that this point was decided by Robowash – the case involving four missing pages. Notwithstanding his Honour’s reference to “exact copy” his Honour was not saying that any difference in the markings upon the served documents when compared with the filed documents will be fatal. Rather, he was repeating the Robowash point.
In LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134, Holmes J dealt with a matter in which an unsealed copy of an application bearing no return date or file number was sent be facsimile on the last day for service. Focussing on the absence of the return date, her Honour followed Benonyx and found that there was no effective service for the purposes of s 459G(3)(b).
In Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2005] 1 Qd R 12, Chesterman J dealt with a matter in which the application as served did not contain an application number, the date on which the application would be heard, the seal of the Court or the signature of the Registrar. Consistently with the earlier decisions, which Chesterman J reviewed, his Honour said (at [34]-[35]):
[34] As with other line of authorities I should follow these cases unless convinced that they are wrong. I do not think they are. The opinion they express is a justifiable exposition of s 459G. The copy of the application which the section requires to be served must show that an application has been filed and when the respondent is required to attend and answer it. It will not perform these functions if it is not sealed and does not show the action number allocated by the court. The inclusion of the return date is obviously necessary.
[35] The authorities establish that the copy of the application served on the respondent must be such as to show that it is a replication of the application which has been filed in the court. To do that it must show the action number given it by the court and it must show the return date for the hearing of the application. It must, also, I think, show the seal of the court to indicate that there are curial proceedings on foot. The document in question did not exhibit those attributes. It was not therefore a copy of the application.
His Honour therefore found that each of the action number, return date and the seal of the Court were mandatory requirements for the documents served to be a copy for the purposes of the Act.
In Accommodation West Pty Ltd v Innis [2009] WASC 337, the application as served did bear an action number, the date of filing and the signature of the principal Registrar. The only thing it lacked was a return date. The return date was in fact notified to the defendant’s solicitor within the 21 day period. Master Sanderson, however, reviewed the earlier authorities and (at [7]) said that:
I think all of these cases indicate there must be strict compliance with the requirements of s 459G. In this case, there has not been strict compliance with the requirements of the section and the application to set aside the demand is not properly on foot.
Bluechip Development Corporation (Cairns) Pty Ltd v PNP Realty Pty Ltd [2009] ACTSC 33 was a case in which the originating process and affidavit were returned by the registry with a requisition and only re-lodged, recorded as filed and served after the expiry of the 21 day period. In the course of his reasons Master Harper referred to the decision in Cooloola as authority for the proposition that the served application must bear a court seal, show the court file number and the return date for the hearing of the application.
In Bache Business & Printing Services Pty Ltd v SA Hub Productions Pty Ltd [2009] SASC 369 Judge Lunn, a Master of the Supreme Court, dealt with a case in which the served copy of the application had a “Court Received” stamp on it but did not have:
(a)the name of the judicial officer who was to hear the application (required by the approved form)
(b)the time and date of the hearing
(c)the date of the filing
(d)the signature of the Registrar
(e)the seal of the Court.
The date of filing, the Registrar’s signature (both required by the approved form) were never completed on the original originating process on the Court file. His Honour said (at [7]):
The authorities are clear cut that a failure to serve a copy of the originating process giving notice of the time and place of the hearing of the application, let alone any other significant omissions from the Form 2, within the 21 day period is fatal to the application to set aside the statutory demand succeeding.
His Honour also said that in the light of the authorities concerning the operation of the Act it would not matter if the failure to insert the information was because of defaults of the Registrar.
In Opensoft Australia Pty Ltd v Miller Street Pty Ltd [2011] FCA 653 Jagot J addressed a situation where the served copies of the documents did not bear:
(a)the Court’s seal;
(b)a proceeding number;
(c)a return date.
Her Honour reviewed the authorities and said (at [41]-[42]):
On the ordinary meaning of these provisions, it is difficult to see how the application and supporting affidavit can be other than the application as filed and the supporting affidavit as filed.
As a matter of purpose, moreover, compliance with s 459G, as the authorities make clear, requires that the documents as served inform the recipient that the proceeding has in fact been commenced through acceptance by the Court of the originating process. They must also inform the recipient of what Santow J described in Benonyx as the “important fact” of the return date for the application.
In Craneford Nominees Pty Ltd v VGC Co-Operative Ltd (2012) 262 FLR 283 Stanley J was dealing with the service of an application which omitted the signature of the Registrar and the filing date, both of which appeared on the application filed in the court. The Master had found that, in the absence of the Court seal, the only indication of the authenticity of the copy of the originating process was the presence of the Registrar’s signature. The Master had followed the decision in Cooloola and held that in the absence of the signature and filing date what was served was not a copy for the purposes of s 459G(3). Stanley J overturned that decision, recording his conclusions as follows:
The requirement in s 459G(3)(b) for service of a copy of the application and the supporting affidavit on the person who served the statutory demand exists to ensure that person has proper notice that curial proceedings have been commenced by the person subject to the statutory demand, the basis upon which that person asserts that a genuine dispute exists in relation to the debt constituting the statutory demand, and the date upon which those proceedings are to be heard by the court.
Identification of Parliament’s purpose in imposing the requirement for service of a copy of the application and the supporting affidavit on the person who served the statutory demand, does not require that the copy of the application required to be served pursuant to s 459G(3)(b) is in all respects an exact copy of the application filed in the court. To construe the provision in that way is unnecessary for the purposes of fulfilling the underlying purpose and policy of the Act. Worse than that, to impose such a requirement might frustrate the operation of the Act in circumstances, not unlike the present case, where a party has served the copy of the application returned to it by the court registry, ignorant of marks or notations that may have been made on the filed document by the registry staff, only to find that by reason of this fact alone, it has failed to invoke the court’s jurisdiction to obtain a determination of whether proper grounds exist to set aside the statutory demand. In my view, this is not what Parliament intended by the requirement to serve a copy of the application.
Moreover, to adopt a construction that requires service of an exact replica of the document filed in court will, in some circumstances, prove unworkable for the same reason. A party cannot know precisely every mark or notation that may be made on a document filed in court by the registry staff.
An analysis of the authorities demonstrates that a document will satisfy the definition of a “copy of the application” where:
(1) the copy document reflects the form of the originating process accepted by the court within the 21 day period;
(2) the copy document evidences the fact of the court’s acceptance, and hence, the fact that proceedings have been commenced, by some mark, whether it is the seal of the court, the Registrar’s signature, or some other authenticating mark such as the court stamp or action number; and
(3) the copy document records the important fact of the return date of the application.
His Honour rejected a submission that there was nothing on the copy that evidenced acceptance by the Court of the originating process, saying:
The authenticity of the copy application which was served, which evidenced the acceptance of the originating process by the court, is found from two matters, namely, the action number, and the Supreme Court “Received” stamp both appearing on the copy application. These marks, even in the absence of the court’s seal or the Registrar’s signature, evidence the authenticity of the document as a copy of the application accepted by the court for filing.
Application of authorities to the present circumstances
The application in the present case had a return date which, although it was inserted by the plaintiff’s solicitors, happened to be the return date later fixed by the registry. It had no feature otherwise identifying it as having been filed or authentic such as:
(a)a proceedings number;
(b)the Registrar’s signature;
(c)the Court seal;
(d)any other Court stamp indicating it had been filed in the sense of having been accepted by the registry.
The decisions in Benonyx, Chelring, Australian Foods, Universal Trade Exchange, LJAW Enterprises, Cooloola, Accommodation West, Bache, Opensoft and Craneford have found that the return date is essential in order that the served application be a copy of the application made to the Court. However, I agree with the reasoning of Stanley J in Craneford that in order to be a copy of the application the document must also bear some evidence that it has been accepted by the Court. If the Rules (including the approved form) are applied, then the originating process should bear:
(a)a proceedings number (r 71(2)(a));
(b)the Registrar’s signature (Form 2);
(c)the Court seal (r 70);
(d)a marking indicating when it was filed (r 71(2)(b)).
In the present case it is not necessary to decide whether all of these are required in addition to the hearing date in order that the served application be a copy of the application. Thus it is not necessary to resolve the difference that exists between:
(a)the decision of Stanley J in Craneford, who considered that it was enough that “the copy document evidences the fact of the court’s acceptance, and hence, the fact that proceedings have been commenced, by some mark, whether it is the seal of the court, the Registrar’s signature, or some other authenticating mark such as the court stamp or action number” (see also the decision of Master Sanderson in Chelring); and
(b)the decision of Chesterman J in Cooloola who considered that the court seal and proceedings number were essential.
It is unnecessary to resolve that issue because the application in the present case had only the return date. That was because, as at the time of service it had not been recorded by the Registrar as having been filed and hence none of the steps required by the approved form and Rules had been taken.
Had it been necessary to decide the issue, my inclination would be to adopt the approach of Stanley J in Craneford even though that may leave room for argument about precisely what marks or combination of marks are sufficient. I do not consider that the approving reference to the decision in Cooloola, in so far as it made reference to the requirement for the court seal and proceedings number, by Master Harper in Bluechip was essential to his Honour’s conclusion in that case.
Finally, although in Benonyx Santow J was prepared to contemplate the argument that service of a copy of the application annotated with a return date other than as a result of filing in the registry may be sufficient, in the light of the subsequent authority it does not appear to me to be open to hold that an application bearing a correct return date, inserted by the solicitor for the plaintiff, but without any evidence of filing recorded by the registry on the document is sufficient to constitute a copy for the purposes of s 459G(3).
Conclusion
As I have made clear, the result is in some respects an unsatisfactory one. The delay by the staff within the registry of the Court in providing properly sealed and stamped copies of the application and affidavits in support has led to the plaintiff losing its right to contest the validity of the statutory demand. While the contentions put forward by the plaintiff are attractive in the sense that they would permit, in circumstances where no prejudice to the defendant exists, the plaintiff’s application to proceed notwithstanding the defective administrative processes, such a result is, in my view, inconsistent with the requirements of the Act and cannot be accepted.
For these reasons the Court does not have jurisdiction and the proceedings must be dismissed. I will hear the parties as to costs.
It appears that under the Court Procedures (Fees) Determination 2015 (ACT) it is the Registrar of the Court who has the power to refund the filing fee paid by the plaintiff in the present case if satisfied that the circumstances warrant and it is in the interests of justice to do so. Had I had that power I would, like Master Bredmeyer in Australian Foods, have ordered the repayment of the fee.
The order of the Court is:
1. The proceedings are dismissed.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 21 September 2015 |
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