Craneford Nominees Pty Ltd v VGC Co-Operative Ltd - [2012] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
CRANEFORD NOMINEES P/L v VGC CO-OPERATIVE LTD
[2012] SASC 74
Judgment of The Honourable Justice Stanley
9 May 2012
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - OTHER MATTERS
CORPORATIONS - GENERALLY - CORPORATIONS LEGISLATION
Appeal from a master of the Supreme Court dismissing action to set aside statutory demand – master held court lacked jurisdiction because appellant had not served copy of application on respondent in accordance with s 459G(3)(b) of Corporations Act 2001 (Cth) – whether master erred in finding document was not ‘copy of the application’ within the meaning of s 459G(3)(b) – whether omission of Registrar’s signature and filing date render document not a copy within meaning of s 459G – whether master erred in dismissing the action.
Held: Appeal allowed. Document reflected form of originating process – document evidenced court’s acceptance by court’s ‘Received’ stamp and action number – document recorded return date of application – document served by appellant satisfied description of ‘copy of the application’ in s 489G – court has jurisdiction to set aside statutory demand – matter remitted to master.
Corporations Act 2001 (Cth) s 459E, s 459F, s 459G; Supreme Court Civil Rules 2006 (SA) r 50, r 51, referred to.
Craneford Nominees Pty Ltd v VGC Co-Operative Ltd [2012] SASC 59; Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338; Cooloola Dairys Pty Ltd v National Foods Milk Ltd & Ors (2004) 184 FLR 86; Opensoft Australia Pty Ltd v Miller Street Pty Ltd (2011) 29 ACLC 11-040; Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; Hope v Hope (1854) 43 ER 534, discussed.
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

CRANEFORD NOMINEES P/L v VGC CO-OPERATIVE LTD
[2012] SASC 74
Appeal from a Master
STANLEY J:
Introduction

This is an appeal from the order of a master dismissing an action to set aside a statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) (“the Act”).
The master dismissed the action because the court lacked jurisdiction to set aside the statutory demand on the basis that the court’s jurisdiction could only be invoked where the appellant had, in accordance with s 459G(3)(b), served a copy of the application to set aside the statutory demand on the respondent, being the person who had served the demand on the appellant.
Section 459G(3)(b) provides:
(3) An application is made in accordance with this section only if, within those 21 days:
…
(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.
At issue before the master was whether the document, which had been served within the 21 day period stipulated in s 459G, was “a copy of the application” within the meaning of that provision.
The learned master found the document served on the respondent by the appellant was not a copy of the application because the document omitted the signature of the Registrar and the filing date, both of which appeared on the application filed in the court.
The reasons of the master
The master identified that the sole question to be determined on the jurisdictional issue was whether the version of the originating process which was served by the appellant on the respondent could properly be characterised as “a copy of the application” for the purposes of s 459G(3)(b). His reasons for concluding that it could not were as follows:[1]
[1] Craneford Nominees Pty Ltd v VGC Co-Operative Ltd [2012] SASC 59 at [6] - [12].
… the only relevant respects in which the copy served did not replicate the Originating Process was in the omissions of the Registrar’s signature and the date of filing. Regrettably, the authorities do not provide a clear-cut answer on whether the omissions of this signature and date mean that the copy served was not a copy of the application for the purposes of s 459G(3)(b). In Robowash Pty Ltd v Robowash Finance Pty Ltd the Full Court of the Supreme Court of Western Australia, on the corresponding requirement in s 459G(3)(b) for the service of a copy of the supporting affidavit, held the omission of four pages of the annexures to the affidavit in the copy served meant that a sufficient copy of the affidavit had not been served and thus sub-s (3) was not satisfied. The Court said at [24]-[28] that strict conformity was required between the original and the copy served.
In Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd Miller J, with whom the other members of the Full Court agreed, in commenting on the Robowash case said:
The requirement for the provision of copies of documents under the Rules of Court is extremely strict and substantial compliance with the requirement for service with a copy of the affidavit and its annexures may be insufficient, (though how far this should be pressed, where the defect in compliance is slight, may be questionable) the document from which four pages was missing in that case was an essential annexure to the affidavit.
In Medeco Group Pty Ltd v Cripps White J of the Supreme Court of New South Wales said the word “copy” used in s 459G(3)(b) did not mean it had to be a photocopy, and he held that a missing line in a copied affidavit was made good by sending another copy within the 21 day period.
There are a number of authorities that the omissions from the copy served of the action number, the return date and time for the hearing, the Court seal and the Registrar’s signature, meant they were not copies of the application for the purposes of sub-s 459G(3)(b). They applied what was said in the Robo Wash case, but in a context where their omissions were significant for the defendant in responding to the Originating Process.
I considered these authorities in my decision Bolivar Road Pty Ltd v Stefren Pty Ltd where there were also far more substantial omissions than those in the present case. At [9] I said:
I accept that it is likely that some minor inconsequential omission to replicate every part of the Originating Process in the document served would not mean that s 459G(3)(b) had not been satisfied and the de minimus principle could be applied. Precisely where omissions from the form cease to be de minimus, and mean that s 459G(3)(b) has not been satisfied, is unclear.
I do not consider that the omissions of the Registrar’s signature and the date of filing can be regarded as de minimus. Particularly in the absence of the Court’s seal, the only indication of the authenticity of the copy of the Originating Process was the presence of the Registrar’s signature. In Form 2 to the Corporations Rules, which is the form for the Originating Process, the date of filing in Part D appears immediately before the provision for the Registrar’s signature. That indicates that the signature at least verifies the date of filing. In applications under s 459G(1) that date of filing is of considerable significance, but prima facie the Registrar’s statement of it can be relied upon.
Like Chesterman J in the Cooloola Dairys case at [34], I consider that I should follow the line of strict authorities and hold that the omissions of the Registrar’s signature and the filing date from the copy served mean that that copy was not a sufficient copy of the application to satisfy s 459G(3) of the Act. I reach this decision reluctantly as it is not shown that the defendant was prejudiced by it and it produces substantial adverse consequences for the plaintiff for what was a minor slip. However, it is for a Court higher than myself to determine whether the authorities which I have applied are correct or not.
[Footnotes omitted].
Submissions of the parties
Mr Roberts, counsel for the appellant, submitted that the learned master fell into error in concluding that the authorities cited compelled the conclusion that the copy document served on the respondent was not a copy of the application within the meaning of s 459G(3) because the omission of the Registrar’s signature and the filing date from the document meant there was not strict conformity between the original and the copy served. He contended that on the proper construction of the authorities, in order to meet the description of a “copy of the application” in s 459G(3), the document must show that the content of the application conformed to the process accepted by the court, must inform the recipient that the proceedings have in fact been commenced by the court and inform the recipient of the return date of the application. He submitted that the document served on the respondent by the appellant met this test.
Mr Thomas, counsel for the respondent, submitted that the authorities establish that in order to satisfy the description of a “copy of the application” pursuant to s 459G(3), the document served must inform the recipient that the proceedings have in fact commenced through acceptance by the court of the originating process and inform the recipient of the return date. He submitted that the conclusion reached by the learned master was correct because absent the court’s seal, the only indication of the authenticity of the copy of the originating process was the presence of the Registrar’s signature. As the Registrar’s signature did not appear on the document that was served on the respondent, there was no evidence the recipient could rely upon that the originating process had been accepted by the court.
Consideration
The learned master was correct in observing that the authorities he relied upon did not provide a clear cut answer on whether the omission of the Registrar’s signature and the filing date meant that the copy served was not a copy of the application for the purpose of s 459G(3)(b).
Robowash Pty Ltd v Robowash Finance Pty Ltd,[2] a decision of the Full Court of the Supreme Court of Western Australia, was concerned with the corresponding requirement in s 459G(3)(b) for the service of a copy of the supporting affidavit. There the court held the omission of four pages of the annexures to the affidavit in the copy served meant that a sufficient copy of the affidavit had not been served and thus subsection (3) was not satisfied.
[2] (2000) 158 FLR 338.
The other authorities relied upon by the learned master concerned circumstances where what was served was a draft of the originating process which had not yet been filed in court such that the service copy of the application did not include an action number, nor a return date, nor any other evidence of the document having been filed in court. In each instance the court found that these documents did not meet the description of a “copy of the application” within the meaning of s 459G(3).
In Cooloola Dairys Pty Ltd v National Foods Milk Ltd & Ors,[3] Chesterman J, in the Supreme Court of Queensland, analysed these authorities and concluded that they expressed a justifiable exposition of s 459G. His Honour said:[4]
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.
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.
[3] (2004) 184 FLR 86.
[4] (2004) 184 FLR 86 at [34] - [35].
To similar effect, in Opensoft Australia Pty Ltd v Miller Street Pty Ltd,[5] Jagot J said:[6]
The requirements of s 459G are clear. Section 459G(1) enables an application to be made to a Court to set aside a statutory demand. An application is made to a Court once it has been accepted by that Court. Under s 459G(2), an application may only be made within the 21-day period specified. Section 459G(3) also specifies that an application is made in accordance with s 459G(1) only if within the same 21 days two things occur: namely, an affidavit supporting the application is filed with the Court; and a copy of the application and of the supporting affidavit are served on the person who served the demand on the company. 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.
[5] (2011) 29 (ACLC) 11-040.
[6] (2011) 29 (ACLC) 11-040 at [41] - [42].
At issue in this appeal is a question of statutory construction. What is the meaning of the expression “a copy of the application” in s 459G(3)(b) of the Act? The literal meaning of the expression does little to elucidate the requirement of the provision. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute. As the High Court has frequently observed, the context, the general purpose and policy of a provision and its consistency and fairness is a surer guide to its meaning than the logic with which it is constructed.[7]
[7] Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.
Section 459E of the Act enables a statutory demand to be served on a company. Section 459F prescribes the period for compliance with the statutory demand. Section 459G permits a company served with a statutory demand to apply to the court for an order setting aside the demand. It requires that such application may only be made within 21 days after the demand has been served. Importantly, s 459G(3) provides that application is made only if, within those 21 days, an affidavit supporting the application is filed with the court and a copy of the application and a copy of the supporting affidavit are served on the person who served the demand on the company.
Accordingly, it can be seen that the underlying purpose and policy of s 459G(3) is to permit a company to dispute the debt which constitutes the basis of the statutory demand only by instituting proceedings for that purpose within a confined time period and by alerting the person making the statutory demand, by service on that person, of copies of the application and the supporting affidavit, setting out the basis upon which the company asserts it has a genuine dispute in relation to the debt.
The importance of the requirement for service was explained by Young J in Howship Holdings Pty Ltd v Leslie,[8] following amongst other decisions, Hope v Hope,[9] that service should be understood in the terms stated by Lord Cranworth:[10]
The object of all service is of course only to give notice to the party on whom it is made, so that he 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.
[8] (1996) 41 NSWLR 542 at 544.
[9] (1854) 43 ER 534.
[10] (1854) 43 ER 534 at 539.
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.
I am reinforced in this view by the terms of 6SCR 50. It provides:
50—Filing of documents
(1)A document is filed—
(a) if filed in the form of a written document—when it is accepted for filing by an officer of the Court at a Court registry;
(b) if filed in electronic form—at the time shown in the receipt issued by the Registrar as the time of receipt of the document.
(2) If a document is received in electronic form for filing at a registry, it will be presumed, in the absence of proof to the contrary, that the registered user whose electronic authentication code was used for transmission of the document authorised the filing of the document in the form in which it is received at the registry.
(3) A registered user who files a document by transmitting it, in electronic form, to the Registrar's email address undertakes to the Court, by so doing, that the requirements of these rules with regard to the document have been, and will be, complied with.
Example—
A registered user who files an affidavit by transmitting it to the Registrar's email address undertakes that a hard copy of the affidavit has been duly sworn by the deponent and will be preserved by the registered user as required under these rules.
(4)If a document is filed in electronic form and is to be served on another party, time for service of a document will not begin to run until the next business day after receipt or, if the document is received on a day that is not a business day, until the second business day after its receipt.
[Subrule 50(5) inserted by Supreme Court Civil Rules 2006 (Amendment No. 8)]
(5)When a document is required for a hearing which is to take place within two business days after the document is filed, the document must have noted prominently on or near the top of its Form 1: “Urgent: This document is required for use before [insert name of Judge] on [insert date and time].

6SCR 50 does not require the fixation of the court’s seal on the originating process as proof it has been filed in court. As the learned master observed,[11] a document is filed once it is accepted for filing by an officer of the court at the registry. While 6SCR 51 provides for the issue of a sealed copy for the purposes of service, that does not detract from the proposition. An originating process invoking the court’s jurisdiction is filed when it is accepted for filing by an officer of the court, not when a proper officer of the court subsequently affixes the court seal or issues a sealed copy of the originating process.[12]
[11] [2012] SASC 59 at [5].
[12] The Corporations Rules 2003 (SA) do not require that the court’s seal is affixed to an originating process before service. See Corporations Rules 2003 (SA) r 2.3(b).
Mr Thomas submitted that it is a requirement of s 459G(3)(b) that the copy application which is to be served must evidence acceptance by the court of the originating process, and the document served in this matter failed to meet this test.
This submission echoes the reasoning of the learned master who held that in the absence of the court’s seal, the only indication of the authenticity of the copy of the originating process to be served, is the presence of the Registrar’s signature.
I do not accept this proposition. 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.
In all other respects, the document served by the appellant met the test set out above for satisfying the description of a “copy of the application” in s 459G(3)(b). It reflected the form of the originating process accepted by the court within the 21 day period and it recorded the return date of the application.
Accordingly, I do not consider that the omission of the Registrar’s signature and the filing date from the copy application served, mean that the copy was not a sufficient copy of the application to satisfy s 459G(3)(b) of the Act. The authorities relied on by the master did not compel this conclusion. In my view, the learned master erred in concluding otherwise. It follows that the court did have jurisdiction to set aside the statutory demand. The court erred in dismissing the action.
Conclusion
I allow the appeal. I order that the matter be remitted to the learned master to hear and determine the merits of the application.