Gerblich v Adplan Pty Ltd (No 3)

[2011] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

GERBLICH  v  ADPLAN PTY LTD (No 3)

[2011] SASC 225

Reasons of Judge Lunn a Master of the Supreme Court

9 December 2011

PROCEDURE

Date of filing of originating process - held, following Tytler v Corbett (Bleby J, [2005] SASC 26), a document could not be filed unless the filing fee was first paid or waived - held subsequent order remitting to the plaintiff the filing fee paid by him was not a review of the Registrar's refusal to waive the fee, but a decision to remit the fee to the plaintiff - what constitutes acceptance for filing under 6R 50(1)(a) - effect to be given to filing date endorsed by the Registrar on the document - held document was filed on 13 July 2011 as endorsed by Registrar and not on 12 July 2011 when delivered to the Registry.

GERBLICH  v  ADPLAN PTY LTD (No 3)
[2011] SASC 225

JUDGE LUNN:

Reasons on effect of subsequent remission of the filing fee

1. In my reasons (No 2) delivered on 21 November 2011 (FDN18) I said as follows:

   Background

   1 By his Originating Process the plaintiff seeks an order for the winding up of the defendant under s 459P of the Corporations Act 2001 (“the Act”) on the grounds of its presumed insolvency under s 459C(2)(a) of the Act by reason of it not having complied with a statutory demand for payment of $2072. A principal point in issue is whether the Originating Process was issued on Tuesday 12 or Wednesday 13 July 2011. If it was not issued until 13 July, it is common ground that the plaintiff cannot rely upon any presumed insolvency of the defendant under s 459C(2)(a) of the Act.

   2 On 16 August 2011 Judge Burley ordered the matter proceed to a hearing on a preliminary point of whether there was presumed insolvency of the defendant pursuant to s 459C(2)(a) of the Act.[1]  On 2 September 2011 Judge Burley made a fiat, “Preliminary points determined that the plaintiff has commenced this action within the relevant three month period”.  He published reasons for that decision (FDN10).

   [1]    He also directed the hearing of another preliminary point, but that is of no relevance at present. 

   …

   6      Judge Burley was not referred to, and did not consider, the decision of Bleby J in Tytler v Corbett.[2]There, Bleby J considered whether an appeal had been filed where the appellant had not paid the prescribed fee.  At paragraph [22] of his reasons he said:

   [2] 21 January 2005, Judgment No [2005] SASC 26.

   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.

   7      Bleby J did not consider the Northern Territory decision of Davies v Lewis, which was cited by Judge Burley in his reasons, or the other two cases mentioned in footnote 2 of the reasons of Judge Burley.  However, it is not for a Master of this Court to follow interstate authorities which are in conflict with pronouncements by single Judges of this Court. 

   8      The regulations apparently referred to by Bleby J in his reasons were the Supreme Court (Fees) Regulations 1999.  In this matter, the relevant regulations were the Supreme Court Regulations 2005 which superseded the 1999 regulations.  However, the relevant wording of the two sets of regulations do not differ in any material respect.   The words “on filing”, which were cited by Bleby J, are at the beginning of Part 1 of the Schedule in both sets of regulations.

   9      At the time of the decision in Tytler v Corbett the now repealed 87R 107.04(1) provided:

   All fees … chargable by the Court under section 130 of the Act and the Regulations made thereunder should be paid by the practitioner or the party as the case may be before any process … or document is issued from, or filed in the Registry …

   There is no equivalent rule in the Supreme Court Civil Rules 2006.  However, Bleby J did not cite that Rule as authority for what he decided, but apparently relied upon his interpretation of the Fees Regulations. 

   10    Unless what Bleby J said in [22] of Tytler v Corbett can be distinguished on the facts of this case, I consider that as a Master of this Court I am obliged in deciding this action to follow and apply what he said.

   11    Counsel for the plaintiff sought to distinguish Tytler v Corbett on the ground that on the facts of this matter there were “appropriate arrangements with a solicitor … in place for the payment of the fee” and that such arrangement meant that the Registrar had accepted the Originating Process for filing on 12 July. 

   [I then dealt with the facts relating to this argument.]

   16    Hence, I do not find that there was any appropriate arrangement with the plaintiff in place for the payment of the filing fee on 12 July.[3]  Accordingly, I do not find that the filing fee for the Originating Process was paid on 12 July.  The plaintiff did not do enough on 12 July to ensure that the steps for payment were completed on that day.  If his failure to do so was in part due to any default of the Registry, about which I make no finding, that does not enable the Court to backdate the filing of the document from 13 July to 12 July.  Hence, in my view, I am bound by Tytler v Corbett to hold that the Originating Process was not filed on 12 July, but only on 13 July.  Insofar as Judge Burley found to the contrary, this was done per incuriam, and is not to be acted upon.

   17 I leave it open for the plaintiff, if he so wishes, to pursue any submission based on an order of Judge Withers of 23 September 2011 remitting the filing fee to the plaintiff. However, if that point is to be pursued, I will need to be persuaded that s 130(2) of the Supreme Court Act, or some other head of power, gives the Court power to order the repayment of a filing fee once it has been paid.

   [3]    For the application of what was said by Bleby J in [22] of Tytler v Corbett I accept that the reference to a solicitor can extend to a litigant in person who is not then legally represented.

2. On the resumed hearing the plaintiff pursued the issue which I had referred to in paragraph [17] of my reasons (No 2).

3. By an application of 12 September 2011 (FDN11), the plaintiff, acting in person, had sought an order that “the whole of the $2126 filing fee paid to the Higher Courts Registry on 13 July 2011 be remitted and refunded to the Plaintiff”. The application did not expressly seek a review of the order of the Registrar made in response to the plaintiff’s administrative application of 12 July 2011 to remit the filing fee. The application stated it was made pursuant to s 130(2) of the Supreme Court Act 1935, Rule 21 and other rules. It was supported by an affidavit of the plaintiff which exhibited substantial material about his financial position.

4. This application was heard on 23 September 2011 by Judge Withers.  It was apparently heard  ex parte without reference to the defendant.  The fiat of Judge Withers on the application was as follows:

   Remarks

   This is an application for review of a Registrar's refusal to remit to reduce a fee for the institution of proceedings. The Registrar has power to make that determination pursuant to a delegation from the Chief Justice under s 82(3a) of the Supreme Court Act. Rule 21 of the Supreme Court Rules empowers the Court review any decision of the Registrar or any administrative officer. The review is to be treated as an appeal de novo and will generally be conducted by a Master. I have considered the application of the ptf and its supporting affidavit. I am advised by the ptf that he has instituted another set of proceedings in this Court in Action No 1403 of 2011 in which remission of fees has been granted by the Registrar. On the basis of the material now before the Court I am satisfied that an order should be made remitting the fee in this matter. However, I am not satisfied on the material that it is appropriate to make any orders as to confidentiality of the material filed in support of the application.

   23.09.2011   Order

   1.     That the filing fee of $2,126.00 be remitted to the ptf in this matter.

   The order was subsequently sealed (FDN13), but it merely stated “The filing fee of $2,126.00 paid to institute the proceedings in this matter be remitted to the plaintiff Simon Wayne Gerblich”.

5. The thrust of the plaintiff’s argument was that that Order of 23 September 2011 took effect nunc pro tunc as from the date of the Registrar declining to grant the remission of the filing fee, ie 12 July, and that therefore all the conditions necessary for the acceptance of the Originating Process for filing had occurred on 12 July.  Hence, I should find that the Originating Process was filed on that day. 

6. The plaintiff’s argument was predicated upon the Order of 23 September 2011 having reversed the decision of the Registrar on the application for the remission of fees.  Although it is not clear-cut, I do not accept that this was the effect of this Order.

7. Although the first sentence of the Remarks refers to a review of the Registrar’s refusal, that was not the plaintiff’s application as set out in FDN11, and the fiat (and the sealed Order) do not expressly reverse or vary any decision of the Registrar.  Under 6R 21(3) FDN11 should have been issued within seven days of the plaintiff receiving the Registrar’s decision, but it was not.  The fiat does not grant any extension of time.  Neither the remarks nor the fiat avert to there being considerably more material about the plaintiff’s financial position in the affidavit FDN12 than was contained in the administrative application for the remission of fees.[4] The preferable view of the Order of 23 September 2011 is that Judge Withers himself exercised the power of the Court under s 130(2) of the Supreme Court Act to remit the fee and to order its refund.[5]  This interpretation of the Order of 23 September 2011 is more consistent with how the fiat, and the sealed Order, are worded, and overcomes any problems about the time limit under 6R 21(3) and reliance on evidence which was not before the Registrar.

   [4]    I have not compared the affidavit with the application in any detail, but there is clearly more material exhibited to the affidavit.

   [5]    I need not explore the vexed question of whether s 130(2) does give the Court power to order a refund of a fee which has already been paid.

8. This view of the Order of 23 September 2011 is also more consistent with the terms of the Registrar’s refusal.  On 13 July 2011 the Registry sent a letter to the plaintiff in response to the application for the waiver of the fee which stated:

   … I advise that your application has been refused due to the following reasons:

   ·The waiver of fees was not deemed appropriate to be issued by the Registrar …[6]

   Thus, the Registrar did not apparently refuse the application on its merits, but rather deemed it was not an appropriate waiver of fees to be made by him.  This left it open for a Judge or Master to deal with the application, which is what I conclude Judge Withers did on 23 September.

   [6]    There had been some oral communication from the Registry late on 12 July advising that the application had been refused, but its precise terms are not in evidence.  This document was the formal response of the Registrar.

9. In my view, all that Judge Withers did on 23 September was to order a refund of the filing fee to the plaintiff. The use of “remitted” in the fiat, and in the sealed Order, is ambiguous. Section 130(2) of the Act provides “The Court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason”. “Remit” in that context[7] means to waive the fee which is otherwise payable pursuant to Supreme Court Regulations 2005.  However, the term “remitted to” in the fiat of 23 September, and in the sealed Order, has a different meaning of it being paid back to the original payer.  The word “to” in the fiat is inconsistent with “remitted” being used in the sense in which it is used in s 130(2),[8] as it is unnecessary in that context to speak of the fee being remitted “to” the party liable to pay it.  If, as I find to be the case, the Order of 23 September 2011 was no more than an order that the fee previously paid be refunded to the plaintiff, it has no retrospective operation and cannot affect what had occurred on 12 and 13 July 2011.

   [7]    There is no judicial exposition of the term.

   [8]    In Carter & Anor v Makris, 12 July 2011, [2011] SASC 109, I had held that the object of “remit” was not necessarily the party who was seeking to file the document and thus any remission under sub-s (2) could be in respect of another party who was shown to be in poverty.

10. Hence the plaintiff’s argument fails in limine.

11. I also accept a variant on the defendant’s submission that any Order of 23 September 2011 about the remission of the filing fee cannot mean that the Originating Process was filed on 12 July. 

12. 6R 50(1)(a) provides:

    (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;

    There are no definitions of “accept” or “file”.[9]  I have not been able to find any judicial authority on the meaning of “accept” in an analogous context.  In my view, it requires some positive and unequivocal act of the Registry staff which sets in train the processing of the document by it being duly entered into the records of the Court, it being signed by or on behalf of the Registrar[10] and its sealing.  It is not sufficient that the Registry staff might merely intimate an intention to accept the document: an actual acceptance is required.   The entry, signing and/or sealing of the document are not in themselves its acceptance for the purpose of 6R 50(1)(a), but they would usually be expected to follow immediately after the acceptance.  If they occur, they are evidence that the document has been accepted by an officer of the Court, but it is possible for other acts of the officer to constitute an acceptance or evidence of it.

    [9]    There was previously a definition of “file” in 6R 4, but that was repealed in 2008.

    [10]   As is set out below, this is part of the necessary processing of an Originating Process under the Corporation Rules 2003 (South Australia).

13. Many other jurisdictions have less stringent requirements for the filing of documents and do not require acceptance by the Registrar as a pre-condition of it.  They operate upon the lodgement or receipt of the documents at the Registry.[11]  Authorities on such definitions of filing do not assist here.

    [11]   As to the position in England, under such a definition see Van Aken v Camdem LBC [2003] 1 All ER 552.

14. On the affidavit evidence before me, there is no evidence that there was such an acceptance by the Registrar or his staff which could constitute the filing of the Originating Process on 12 July. [12]  In my view, it is not sufficient to show that the documents were in order and that the fee was either paid or waived unless there was also some further act by the Registrar or his staff which constituted an express or implied acceptance of them for the purposes of 6R 50(1)(a).  The mere fact that the Registry had custody of the documents and had intimated that they appeared to be in order was not sufficient to constitute their acceptance on 12 July.

    [12]   In dealing with the actions of the Registry staff on 12 and 13 July in my reasons (No 2) I had only referred to the plaintiff’s affidavit FDN7, but in researching these reasons I have ascertained there is also some additional evidence on the topic in his affidavit FDN12.  In particular, that affidavit exhibits a copy of the email which he sent at 10.44pm that night.  However, nothing in FDN12 causes me to conclude that there was a sufficient act of acceptance on 12 July.

15. Rule 2.3 of the Corporations Rules 2003 (South Australia) provides:

    2.3     Fixing of hearing

    On receiving an originating process or interlocutory process, the Registrar:

    (a)     must fix 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.

    It was not suggested that the reference to “receiving” in this Rule ousted the operation of the general Rule 6R 50(1)(a).  Sub-rule 2.2(3)(a) of those Rules provided that an originating process should be in accordance with Form 2.  Section D of Form 2 provided:

    D.    FILING

    Date of filing:  [date of filing to be entered by Registrar [or other Court officer]]

    ………………………

    
      

    Registrar [or other Court officer]

    This originating process is filed by [name] for the plaintiff.

16. Section D of the Originating Process in this action is filled in with the date of “13 JUL 2011” and a signature of a court officer appears in the appropriate place.  This is a formal record of the Court stating that the date of filing was 13 July 2011.[13]   As this statement of the filing date of 13 July is part of the formal record of the Court, I should not act contrary to it.

    [13]   While Judge Burley stated in his reasons FDN10 at [12] that he proposed to direct the Registrar to amend it to 12 July, this was not part of his fiat and it has not occurred.

17. In order to obtain the benefit of s 459C(2)(a) of the Corporations Act 2001 what the plaintiff needs to do is to show that the endorsement of the Registrar on the Originating Process of its filing on 13 July is incorrect and is to be varied to 12 July by virtue of its acceptance on that date.  It would still be open to the plaintiff to seek a review under 6R 21 of this act of the Registrar, provided he could obtain an extension of the time to do so under 6R 21(3).  If in support of any such application the plaintiff relies upon the conclusion of Judge Burley in his reasons FDN10, I would be disposed to refer the matter to a Justice for determination as I would be conducting a de facto appeal against what was decided by Judge Burley.  However, if it was agreed that I should determine the matter without reference to what might have been said by Judge Burley on the topic, I do not see why I should not determine any such application.

18. The argument on the winding up application is adjourned to Tuesday 20 December 2011 at 10.15am.