Gerblich v Adplan Pty Ltd - [2012] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
GERBLICH v ADPLAN PTY LTD
[2012] SASCFC 79
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Stanley)
3 July 2012
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
Applicant sought review of decisions of Registrar of the Supreme Court refusing to accept for filing an originating process to wind up the defendant, and refusing to remit filing fee - application made pursuant to s 459P of the Corporations Act 2001 (Cth) - whether an application should be taken to have been made on the day the originating process was presented at the Registry in acceptable form, accompanied by a meritorious request for remission of filing fee.
Held: originating process to be taken to have been issued on the day the application was made at the Registry - remission of filing fee was appropriate in the circumstances - no fault of the applicant that the originating process was not accepted for filing immediately upon presentation.
Supreme Court Civil Rules 2006 r 21, r 50; Corporations Act 2001 s 459A, s 459B, s 459C, s 459P; Supreme Court Act 1935 s 62H, s 130; Corporations Rules 2003 r 2.2; Judiciary Act 1903 (Cth) s 79; Supreme Court Regulations 2005 reg 5, Schedule 1; Customs Act 1901 (Cth) s 273GA; Administrative Appeals Tribunal Act 1975 (Cth) s 29, referred to.
Purden Pty Ltd v Registrar in Bankruptcy (1982) 64 FLR 306; Ursula Riniker v University College London 1999 WL 477711; Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372, applied.
Tytler v Corbett (2005) 238 LSJS 179, distinguished.
Angus Fire Armour v Collector of Customs (NSW) (1987) 17 FCR 473; Angus Fire Armour v Collector of Customs (NSW) (1988) 19 FCR 477, discussed.
Davies v Lewis (2001) 165 FLR 324, considered.

GERBLICH v ADPLAN PTY LTD
[2012] SASCFC 79
Full Court: Vanstone, Peek and Stanley JJ

VANSTONE J: The applicant, Mr Gerblich, applies for review of two decisions made by the Registrar of this Court on 12 July 2011. The application was referred to the Full Court by a single judge of this Court.
The main question for decision is as to the day when an application should be seen to have been made; whether on the day the originating process was presented at the Registry in acceptable form, along with a meritorious request for remission, or on the day of the order remitting the fee. The answer to this question will determine whether Mr Gerblich’s application to wind up the defendant company in insolvency was made in time to enable him to take advantage of the presumed insolvency provisions of the Corporations Act 2001 (Cth).
Background
The application for review is made pursuant to r 21 of the Supreme Court Civil Rules 2006 (SA) (the Civil Rules). It was made on 13 February 2012 and so is substantially out of time. The relevant orders sought in the application include:
2.That the decision of the Registrar on 12 July 2011, to not accept for filing the originating process for winding up of the Defendant pursuant to s 459P of the Corporations Act 2001 (Cth), be reviewed.
3That the decision of the Registrar on 12 July 2011, to not remit the fee due upon the filing of the originating process for winding up of the Defendant pursuant to s 459P of the Corporations Act 2001 (Cth), be reviewed.
An order extending time for the filing of the application is also sought. At the hearing it was sought to amend the application to add another paragraph as follows:
8.That the Court declare that the originating process was properly filed on 12 July 2011.
The amendment was opposed due to lack of notice of it and the Court indicated it would receive written submissions going to the issues it raised and would rule on the amendment in the course of its decision.
The originating process presented by Mr Gerblich on 12 July 2011 proceeded under Part 5.4 of the Corporations Act. Relevant sections are as follows:
SECTION 459A ORDER THAT INSOLVENT COMPANY BE WOUND UP IN INSOLVENCY
459AOn an application under section 459P, the Court may order that an insolvent company be wound up in insolvency.
SECTION 459B ORDER MADE ON APPLICATION UNDER SECTION 234, 462 OR 464
459BWhere, on an application under section 234, 462 or 464, the Court is satisfied that the company is insolvent, the Court may order that the company be wound up in insolvency.
Mr Gerblich was entitled to make the application, being a creditor of the defendant company: s 459P Corporations Act.
Section 459C(2) provides for a presumption that the company is insolvent which takes effect in circumstances which include the defendant having failed to comply with a statutory demand during the previous three months.
Section 62H of the Supreme Court Act 1935 (SA) provides that rules of court may be made regulating the practice and procedure of the Court, including in respect of jurisdiction conferred on the Court by statutes other than the Supreme Court Act. The Corporations Rules 2003 (SA) are such rules. By s 79 of the Judiciary Act 1903 (Cth) the procedure of a court exercising federal jurisdiction is applicable when state courts exercise federal jurisdiction.
Rule 2.2(1)(a) of the Corporations Rules requires the application to be made by filing an originating process. It is in these terms:
2.2 Originating process and interlocutory process — Forms 2 and 3
(1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court:
(a)if the application is not made in a proceeding already commenced in the Court — by filing an originating process; and
…
Rule 50 of the Civil Rules deals with what is meant by “filing”. 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;
…
The Supreme Court Regulations 2005 (SA) provide what fee is payable on filing of a document. By reg 5 and Schedule 1, Part 1, cl 2(b) a fee of $2,126 was payable by Mr Gerblich upon his “filing a document by which a proceeding in the Court is commenced”.
The three month period referred to in s 459C(2)(a) of the Corporations Act ended on 12 July 2011. On that day Mr Gerblich handed an originating process to staff of the Supreme Court Registry. Earlier that day he had applied to the Registrar for waiver of the applicable fee pursuant to s 130 Supreme Court Act. Mr Gerblich told the Registry staff that if his application for remission of fees was not successful he would use a credit card made available to him by his parents-in-law to pay the filing fee. Mr Gerblich stressed to Registry staff that it was essential the application be filed on 12 July.
At the time the Registry closed on 12 July no decision had been made by the Registrar as to whether the fee would be remitted. At about 4.51 pm the Registrar advised Mr Gerblich’s solicitors that the originating process was in an acceptable form, but that the filing fee would not be waived. Consequently, later that evening Mr Gerblich sent the details of the credit card to the Registry by email. On the following morning, 13 July, the originating process was stamped and entered into the Court records as being filed.
It is now necessary to set out something about the various hearings which have taken place before masters of the Court since the originating process was filed.
On 30 August 2011 Judge Burley, a master of the Court, dealt with several preliminary points arising out of the application for an order for winding up, by consent of both parties. One of the points concerned what day it was that the application was made, the answer determining whether the plaintiff could rely on the deemed insolvency provisions.
In reasons delivered on 2 September 2011, Judge Burley noted that there was no dispute that the originating process was presented at the Registry on 12 July by the plaintiff; that earlier in the day the plaintiff had sought a remission of fees – an application generally dealt with by the Registrar – and had explained the urgency of the matter; that at 4.51 pm the Registrar communicated with the plaintiff’s solicitors, advising that the documents were in an acceptable form, but that the fee would not be remitted; and, that on the following day the credit card details provided by the respondent overnight were used to pay the fee, and the originating process was date stamped 13 July.
In his decision, Judge Burley relied on Davies v Lewis (2001) 165 FLR 324, a decision of Thomas J in the Supreme Court of the Northern Territory. There it was held that a writ and statement of claim were filed on the day that they were accepted by an officer of the Court, notwithstanding the appropriate fee did not accompany them. The late payment was held only to delay the processing and sealing of the writ. Judge Burley found that the application had been made on 12 July. He said at [11]:
In my opinion, acceptance for filing and payment of a fee are two different things and the former is not dependent upon the latter. It was clear that on 12 July the Registrar regarded the documents as acceptable, but required the payment of the relevant fee. If authority is needed to justify that conclusion, Davies v Lewis (2001) 165 FLR 324 supports that conclusion. In construing Rules which were similar but not the same as the South Australian provisions, Thomas J came to the conclusion that the action the subject of that decision was commenced when the papers were delivered to the Registry, even though at the time there was no accompanying fee, which was paid at a subsequent time.
An order was made reflecting the finding that the proceedings had been commenced within the relevant three month period.
The judge further stated that since the originating process had been incorrectly stamped 13 July, he proposed to direct the Registrar to amend both original and duplicate to provide for an endorsement as to receipt and date of filing of 12 July. (Such an alteration does not appear on the originating process.)
On 12 September the plaintiff sought a review of the Registrar’s refusal to remit the filing fee, and a refund of it. The application was made pursuant to s 130(2) of the Supreme Court Act and r 21(3) of the Civil Rules. It was not served on the defendant, and complaint is made about the fact that it proceeded on an ex parte basis. Rule 21 provides that such an application must be made within seven days after the applicant receives notice of the Registrar’s refusal. Therefore, the application was, on my calculation, 62 days late. There is a general power to dispense with compliance with a rule in r 117 of the Civil Rules, but no application for such dispensation was made on 12 September.
The application came before Judge Withers, a master of the Court, on 23 September. The only order he made was “that the filing fee of $2126 be remitted to the plaintiff”, but he also made remarks recorded on the fiat which in my mind, make clear that he had conducted a review pursuant to r 21; the review he conducted was in the nature of an appeal de novo; he noted the Registrar had remitted another filing fee for the plaintiff in a different action; and he was satisfied that the order remitting the fee should be made. We were told that following the order, the amount of the fee was refunded to the plaintiff. It is plain that s 130 speaks of remitting or reducing the fee, rather than refunding it, but nothing turns on that difference for present purposes.
The matter next came before another master, Judge Lunn. He heard submissions from the parties on several occasions. It is not necessary to recount the history of those hearings. It is sufficient to say that, in reasons published on 21 November, Judge Lunn called into question the status of Judge Burley’s orders and reasons. Judge Lunn noted that Judge Burley had not been referred to Tytler v Corbett (2005) 238 LSJS 179, a decision of Bleby J holding that an appeal under the Equal Opportunities Act 1984 had not been “filed” where the originating process had been presented without the filing fee and the appellant’s application for waiver of the fee had not been determined. Bleby J said in that case, at [22]:
The regulations prescribing the fees payable on the filing of various Court documents prescribe the fees to be paid “on filing” the particular document. The registry therefore cannot accept a document for filing unless the appropriate fee is paid, unless appropriate arrangements with a solicitor are in place for the payment of the fee or unless and until an order is made for the remission or reduction of the fee pursuant to s 130(2) of the Supreme Court Act. See also Angus Fire Armour v Collector of Customs (1987) 17 FCR 473.
Judge Lunn queried whether Judge Burley’s decision was per incuriam because no reference had ostensibly been made to the decision. Judge Lunn made no orders arising from the reasons he gave.
On 9 December Judge Lunn published further reasons, this time directed to the status and effect of Judge Withers’ dealings with the matter on 23 September. In short, he did not accept that Judge Withers had reversed the decision of the Registrar made on 12 July refusing to remit the fee. It seems that he saw Judge Withers as having entertained a new application for a refund of the fee. He drew support for this from the fact that no extension of time for a review was expressly sought or considered. Therefore, the order of 23 September had no impact, he said, in terms of when the originating process should be considered to have been filed. Judge Lunn opined that it would still be open to the plaintiff to seek a review of the Registrar’s refusal, provided an extension of time were secured. (This observation seems to have led to the current application in its original form.) No orders were made consequent upon Judge Lunn’s reasons. In those circumstances the plaintiff could not have sought to challenge the reasoning on an appeal, at least at this stage of the proceedings.
Arguments going to the current application
In effect, the applicant wishes by this application to affirm the correctness of the decisions of Judge Burley and Judge Withers and, if necessary, to have confirmation that Judge Withers’ decision was a review of the Registrar’s decision and takes effect as if the decision were made by the Registrar on 12 July. The addition of the eighth order sought was designed to overcome the perceived difficulty that Judge Withers made no order extending time and expressed his order in terms of the filing fee being remitted to the applicant.
Mr S McNamara, who has appeared for the defendant in most, if not all, of the hearings, resisted the proposed expansion of the orders sought, as well as the application as filed. He argued that no notice of the amendment had been given. The Court indicated that it would accept written submissions going both to whether the proposed amendment should be allowed and whether a declaration should be made. (Submissions were duly received). He further argued that the application amounted to a de facto appeal against the opinions expressed by Judge Lunn, in circumstances where Judge Lunn had made no orders reflecting those opinions. He suggested that the matter should be allowed to proceed to trial before Judge Lunn and an appeal taken by the applicant, if advised, against the final orders. He suggested that Judge Burley’s judgment on the preliminary issue was per incuriam by reason of the failure to refer to Tytler (presumably Mr McNamara’s failure) and that the originating process was not “filed” until 13 July. In respect of Judge Withers’ orders, he characterised them as a determination by Judge Withers on new material that a refund should be made; an order having no impact on the Registrar’s refusal of the waiver application, or on the date of filing.
Analysis
There are sound reasons why this Court should entertain this application in its amended form. The matter seems to have lost its way somewhat and it is appropriate that this Court take steps to reset its course. I think it appropriate to make an order extending time so that this can be done. Whether or not the deemed insolvency provisions apply will have a marked effect on the way the trial proceeds and on its length. It was for that reason that the parties agreed that Judge Burley should determine that issue as a preliminary point.
I consider Judge Burley’s decision was correct and that the absence of reference to Tytler has no bearing on that fact. Indeed Tytler is distinguishable, not least because the application for waiver of fees there had not been determined at the time of Bleby J’s decision. Furthermore, the case relied on by Bleby J – Angus Fire Armour v Collector of Customs (NSW) (1987) 17 FCR 473 – assists the applicant. There, Angus Fire had proceeded under s 273GA(1) of the Customs Act 1901 (Cth) to review a decision of the Collector. The “application” to the Tribunal had to be “made” within the specified time: s 273GA(3). Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) required that the application had to be “lodged” with the Tribunal within the prescribed time. The Administrative Appeals Tribunal Regulations 1976 (Cth), which required payment of a fee, used similar verbiage. Apart from the absence of the fee, the application met all requirements.
At first instance, although it was held that the Registrar was entitled to insist on payment of the prescribed fee at the time the application was lodged, the judge went on to say that, if the Registrar’s refusal to accept the process was misconceived, a court could treat the process as having been lodged on the day it was presented. But even further, that decision was reversed on appeal, the Full Federal Court holding, by majority, in Angus Fire Armour v Collector of Customs (NSW) (1988) 19 FCR 477 that the application was lodged when accepted and should not have been returned. Sweeney J (at 480) could find no legislative intention that the payment of the prescribed fee was a condition precedent to the lodging of an application. Northrop J, agreeing in the result, found that the word “lodge” comprehended a document posted and received at the Registry and a document taken by an officer or received by that officer (at 489). The absence of the fee meant only that the review would not, at that stage, proceed. Both judges relied on an earlier decision of the Full Federal Court, to which I now turn.
In Purden Pty Ltd v Registrar in Bankruptcy (1982) 64 FLR 306 the plaintiff’s representative had attended at the Bankruptcy Registry and tendered to staff a creditor’s petition, affidavits in support and a cheque to cover the filing fee. The representative was told that the petition could not be processed that day and that it should be presented again in the morning. The Bankruptcy Act 1924 (Cth), s 41(1) provided that a creditor’s petition could not be “presented” against a debtor unless the act of bankruptcy relied on occurred within six months prior to the presentation of the petition. By the following day, the six month period had passed.
In holding that the relevant date was that on which the documents were first tendered and that the plaintiff was not out of time, the Court examined the meaning of the verb “to present”. A distinction was drawn between the presentation and the filing of the petition, the former affecting rights and obligations under the Act and the latter being an act internal to the Registry.

There is English authority which also tends to support the approach Judge Burley took. In Ursula Riniker v University College London 1999 WL 477711 a writ was posted to the Court within the relevant time period. It was returned to the plaintiff with the advice – wrong, as it turned out – that the heading was inappropriate. By the time the suggested amendment was made and it was issued, the action was out of time. When the matter came to the Court of Appeal, it held that the writ could and should have been issued on the day it was first received. The error was that of the court officer. The Court had inherent power to direct that the writ be treated for all purposes as if issued on the day it was first received.
In Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372 a solicitor presented a claim form on the last day of the limitation period, but due to industrial action, it was not processed until the following day. The question was whether the claim was “brought” within three years as required by the Limitations Act 1980, in circumstances where it was clear that the proceedings were “started”, in terms of the relevant practice direction, on the next day when issued by the Court. Tuckey LJ, within whom Arden and Lloyd LJJ agreed, found that the Act and the practice direction contemplated two different events. He said (at 883):
I start simply by looking at the words used in the statute and the Rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant “brings” his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way, one act is unilateral and the other is transactional. Looked at in this way I do not agree with the judge or Mr Norman that in this context the verb “to bring” has the same meaning as the verb “to start”. The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant’s request for the issue of a claim form (together with the court fee) is delivered to the court office.
Consequently the proceedings were brought within time.
I draw from all these authorities that in the present case the plaintiff’s s 459A application was made on 12 July. On that day the originating process was received by the Registry staff along with a meritorious application for remission of fees. It was through no fault of the plaintiff that the originating process was not accepted for filing immediately. Even if the Registrar was unable to consider and determine the application for remission on that day, once it was granted the originating process should have been issued bearing the date 12 July.
I have said that the application for remission of fees was meritorious. It is not necessary to resort to the additional materials presented to Judge Withers in order to reach that position. It follows that I agree with Judge Withers’ decision. I would have been inclined to imply that the failure of Judge Withers to expressly grant an extension of time within which to review the Registrar’s decision was an oversight. It would have been perverse not to grant a remission having regard to the reasons put forward by the plaintiff, and that in turn would have had an impact on the decision to extend time. I do not agree that the defendant should have had notice of the application for review or that he had the right to be heard in relation to it. I note that, in light of Judge Burley’s orders already made, there would have been no adverse impact on the defendant. However, since the application for an extension of time was not sought, nor expressly adverted to, I propose an order in terms of the fourth order now sought by the plaintiff, being the declaration.
Conclusion
For the foregoing reasons, I would make these orders:
1.the time for the filing of the application for review is extended to 13 February 2012;
2.permission is granted to amend the application to add under orders sought a further order in terms of paragraph 8 as earlier set out;
3.the order of the Registrar refusing to remit the filing fee payable in respect of the originating process herein is reversed;
4.the Court declares that the originating process is to be taken for all purposes as having been filed on 12 July 2011.
PEEK J: I agree with the orders proposed by Vanstone J and with her reasons.
STANLEY J: I agree with the reasons and orders of Vanstone J.