Robowash Pty Ltd v Robowash Finance Pty Ltd - [2000] WASCA 409

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: ROBOWASH PTY LTD -v- ROBOWASH FINANCE PTY LTD [2000] WASCA 409

CORAM: KENNEDY J
WALLWORK J
ANDERSON J

HEARD: 11 NOVEMBER 1999

DELIVERED : 19 DECEMBER 2000

FILE NO/S: FUL 136 of 1999

BETWEEN: ROBOWASH PTY LTD (ACN 051 785 203)
Appellant
AND
ROBOWASH FINANCE PTY LTD (ACN 062 596 203)
Respondent

Catchwords:

Corporations law - Application to set aside statutory demand - Whether application properly made - Whether a failure to serve a complete copy of the annexures to the supporting affidavit a failure to serve a copy of the affidavit

Legislation:

Corporations Law, s459G

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr D H Solomon
Respondent: Mr B S Dodd

Solicitors:

Appellant: Solomon Brothers
Respondent: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Bailey v Hinch [1989] VR 78
Carter v Roberts [1903] 2 Ch 312
Cooke v Vaughan (1838) 4 M&W 69; 150 ER 1346
Crombie v Uniting Church Trust (1997) 17 WAR 291
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331
Hassle v Commissioner of Patents (1987) 9 IPR 565
Re Hinchliffe [1895] 1 Ch 117
Re Koscot Interplanetary (UK) Ltd [1972] 3 All ER 829
Re Timberworld Pty Ltd, unreported; SCt of Tas; 15 May 1991
Spice v Bacon (1877) 2 Ex D 463
Tebbutt v Ambler (1839) 7 Dowl 674
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Case(s) also cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454
Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Carstairs v Carstairs, unreported; SCt of WA (Templeman J); Library No 960625; 3 October 1996
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
Re Commercial Trade Finance Pty Ltd (1995) 19 ACSR 188
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Crowe, In the Marriage of (1988) 12 FamLR 696
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Jones v Dunkel (1959) 101 CLR 298
Manning v Talgarth Enterprises Pty Ltd, unreported; SCt of WA (Malcolm CJ); Library No 960374; 18 July 1996
Manson v Ponninghaus [1911] VLR 239
National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400
Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49
Niemann v Electronic Industries Ltd [1978] VR 431
Pacific Capital Ltd v BBC Hardware Ltd (1995) 13 ACLC 1652
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Pearce (1992) 7 WAR 395
The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (1997) 36 ATR 51
Salemi v MacKellar (No 2) (1977) 137 CLR 396
71 Paisley Street Footscray Pty Ltd v Vineyard Estate Pty Ltd, unreported; Federal Court (Olney J); 18 August 1995
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 24 ACSR 353
Thackray v Hardcastle, unreported; FCt SCt of WA; Library No 980669; 17 November 1998
Vicbar Pty Ltd v Development Constructions (Newcastle) Pty Ltd (1995) 13 ACLC 1220

KENNEDY J: The respondent applied to a Master of this Court to set aside a creditor's statutory demand made by the appellant pursuant to s 459E of the Corporations Law. Section 459G(1) enables a company to apply to the Supreme Court for an order setting aside a statutory demand which has been served upon it. By s 459G(2), an application may only be made within 21 days after the demand has been served. Section 459G(3) goes on to provide:
"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."
Before the learned Master, the appellant argued that the application had not been made in accordance with s 459G(3) on the ground that four pages of the annexures to the affidavit supporting the application were missing from the service copy, those pages being numbered 58, 59, 60 and 63.
The necessity for strict compliance with the provisions of s 459G(3) was confirmed by Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed, in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 where, at 276 ‑ 277, his Honour said:
"In providing that an application to the court for an order setting aside a statutory demand "may only" be made within the twenty-one day period there specified and that an application is made in accordance with s 459G only if, within those twenty-one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense …. Here, the phrase "[a]n application may only be made within twenty-one days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil [(1922) 31 CLR 76 at 100-101], it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3)."
His Honour went on to hold, at 278, that the requirement in s 459G that the application to the court for which it provides be made only within 21 days after service of the demand should not be treated as supplemented or qualified by the operation of s 1322(4), which confers on the court a power to make orders extending the period for doing an act.
The learned Master reached the conclusion that s 459G(3)(b) of the Corporations Law required the service on the person who served the statutory demand of a copy of the supporting affidavit itself, and that the requirement did not extend to the service of a copy of the annexures to the affidavit. He therefore held that the application under s 459G was properly on foot.
The appellant sought leave to appeal against the decision of the learned Master on the following grounds:
"1.The learned Master erred in fact and law in not finding that the respondent (applicant) failed to serve 4 pages of the annexures to the affidavit of Mr E L Bolto within the 21 day period required by s 459G(3) of the Corporations Law.
2.The learned Master erred in law in not holding that an annexure to an affidavit is incorporated in and part of the affidavit, and not a separate document.
3.The learned Master further erred in law in not holding that an affidavit and all annexures must be filed and served within 21 days to meet the requirements of a valid application under s 459G of the Corporations Law."
Section 51(1) of the Corporations (Western Australia) Act 1990 applied provisions of laws of the Commonwealth relating to corporations, the securities industry and the futures industry as laws of Western Australia, and empowered the Judges of the Supreme Court to make rules of court, not inconsistent with the Corporations Law of Western Australia, with respect to proceedings and the practice and procedure of the court under that Law. Pursuant to that power, O 81G was gazetted on 28 June 1994. A new order was later substituted on 8 May 2000, but it has no application to the present proceedings. By r 1(2) of O 81G, the other Rules of the Supreme Court apply to a proceeding in the court under the Corporations Law so far as they are relevant and not inconsistent with O 81G
Order 37 of the Rules of the Supreme Court deals with affidavits. Order 37 r 2 details the form which they are to take. Sub‑rules (6) to (9) of O 37 r 2 provide:
"(6)Where an affidavit -
(a)consists of more than one page; or
(b)has annexures,
each page of the affidavit and annexures must be numbered consecutively in the upper right hand corner.
(7)Where an affidavit has one or more annexures, an index listing the affidavit and the annexures and their respective page numbers must be bound with the affidavit.
(8)Subject to Rule 9(1), a document that is to be used in conjunction with an affidavit must be annexed to the affidavit and be referred to in the affidavit as being annexed.
(9)Subject to Rule 9(1), annexures to an affidavit must be bound with it in one or more volumes as may be necessary."
Rule 9(1) provides:
"A bound register, an account book or other book or any document of an unusual size must not be annexed to the affidavit or referred to therein as being annexed, but must be referred to as an exhibit."
There is a clear distinction between a document which has been annexed to an affidavit and a document or object referred to as an exhibit, a distinction which is not infrequently overlooked. It appears that the earlier English practice was to annex documents to affidavits, to the extent that this was practical. Then, in the early 19th century, the practice changed to merely exhibiting documents.
In Tebbutt v Ambler (1839) 7 Dowl 674, at 675, Coleridge J said:
"The question is, under what circumstances is the defendant in possession of this document? He brought it to the Chambers of a Judge, and there it was exhibited to him. According to the old practice, it would have been annexed to his affidavit, and filed with it. When filed, either party might have reference to it. But, for the convenience of the party to whom the document belongs, he is not by the modern practice compelled to annex it to his affidavit. He is allowed to take it away, as he may want it for various purposes. But of course he takes it away clogged with the same conditions as it was at the Chambers."
Daniells Chancery Forms, 4th edn (1885), at 14 ‑ 15, states:
"A document may be referred to in an affidavit either as an exhibit, thus: 'produced and shown to me at the time of swearing this my affidavit, and marked with the letter A' (or, briefly and usually, 'now produced and shown to me, and marked A.'); or as 'hereunto annexed'.
In the former case, the person before whom the affidavit is sworn must inquire whether the deponent has seen the document and is aware of the contents thereof : in the latter, the document should be annexed to the affidavit at the time it is sworn; and the affidavit cannot be filed without it."
In the 7th edn (1932) of Daniells Chancery Forms, at 13, it was stated:
"A document referred to in an affidavit should not, except when required by rule or statutory form, as in the case of a distringas notice, be annexed to the affidavit, but should where necessary be referred to as an exhibit."
Reliance was placed upon Re Hinchliffe [1895] 1 Ch 117 for the proposition expressed in the latter edition of Daniells Chancery Forms that an exhibit is part of an affidavit and that a party entitled to inspect the affidavit has a right to inspection of the exhibits referred to. In Re Hinchliffe, at 120, Lord Herschell LC had said of the exhibits in that case: "They form as much part of the affidavit as if they had been actually annexed to and filed with it". Lindley LJ, at 120, agreed with the Lord Chancellor and pointed out that it was only as a matter of convenience that exhibits were not lodged in the Master's office with the affidavit. He went on to indicate that, in his opinion, anyone who had a right to see an affidavit had also a right to see an exhibit referred to in the affidavit so as to be made part of it, just as if it were annexed to the affidavit. A L Smith LJ, also as 120, said: "When a person makes an affidavit, and states therein that he refers to a document marked with the letter A, the effect is just the same as if he had copied it out in the affidavit. It is only made an exhibit to save expense. Therefore any person who is entitled to see the affidavit is equally entitled to see the document referred to therein."
In Carter v Roberts [1903] 2 Ch 312, Byrne J, at 316, observed that, for some purposes in the rules, exhibits are to be regarded and treated as part of the affidavit. Undoubtedly, he said, in other respects and for other purposes, they are not part of the affidavit. He subsequently referred to O XXXVIII r 10 of the English Rules requiring the filing of affidavits, and said: "It is quite clear that what is to be filed, the affidavit, there, does not include the exhibits. The exhibits are not filed. The exhibits remain with the persons to whom they belong, they are not filed. So in O XXXVIII, r 23: 'Accounts, extracts from parish registers, particulars of creditors' debts, and other documents referred to by affidavit, shall not be annexed to the affidavit or referred to in the affidavit as annexed, but shall be referred to as exhibits'."
He went on to say, at 317:
"It has been pointed out in the course of the argument, and with great justice, that it would be perfectly impossible in the case of some exhibits to serve copies. For example, there might be a motion to attach in respect of some breach of an order to restrain infringement, involving the necessity, in order to bring strict proof, to exhibit an iron safe weighing a ton. Mr Levitt suggested it might be the case of selling a box of cigars. How could you give a copy of the safe or a copy of the box of cigars? It is obvious that it would be impossible to comply with such a rule in certain cases."
In Re Koscot Interplanetary (UK) Ltd [1972] 3 All ER 829, at 835, Megarry J held that the statement in Re Hinchliffe, that an exhibit is a part of the affidavit and that a party entitled to inspect the affidavit has a right to demand inspection of the exhibits referred to in it must be read in its context, and that the Court of Appeal was merely holding that anyone who had a right to inspect and copy an affidavit had also the right to inspect and copy any exhibit to that affidavit.
Although reliance was sought to be placed by the respondent upon Re Hinchliffe, Carter v Roberts and Re Koscot Interplanetary (UK) Ltd, each of these cases dealt with exhibits. They have no necessary application to annexures, and, indeed, in ReHinchliffe, Lord Herschell LC and Lindley LJ both indicated that annexures to an affidavit formed part of that affidavit. Importantly, for the present purposes, subject to r 9, a document that is to be used in conjunction with an affidavit, pursuant to O 37 r 2(8), must be annexed to the affidavit and be referred to in the affidavit as being annexed.
There is a certain lack of consistency in the treatment in the Supreme Court Rules of annexures to affidavits, some rules expressly requiring service of annexures with affidavits, for example, O 16 r 1(4), and some impliedly requiring service of annexures, for example, O 14 r 2(3), O 64 r 4(3) and O 81G r 59.
The respondent contended that O 37 r 2(8) of the Rules of the Supreme Court, which refers to a document that is to be used in conjunction with an affidavit is describing separate things, that is, an affidavit on the one hand, and annexures and exhibits on the other, rather than a single thing, that is, an affidavit incorporating annexures and exhibits. This submission overlooks the distinction between annexures and exhibits. It is accepted that an exhibit is not a part of an affidavit. This is not to say, however, that annexures are not to be regarded as a part of an affidavit for the purpose of service.
The definition of "annex" in the Shorter Oxford English Dictionary is: To join; To unite materially, as an accessory; To append. The same dictionary defines the word "conjunction", which appears in O 37 r 2(8), as: The action of conjoining, while "conjoin" is defined as: To join together; to connect, unite. Cox J, in Re Timberworld Pty Ltd, unreported; SCt of Tas; 15 May 1991, acknowledged that the ordinary meaning of the word "annex" in the present context is to physically bind or join documents together with a staple, cord, pin or other device.
In this case, putting on one side the required index of three pages, Mr Bolto's affidavit consisted of six pages, of which a substantial portion concerned only the identification of the annexures. If the respondent's argument were to be upheld, all that was necessary was for it to serve the six page affidavit, leaving it to the appellant itself to obtain a copy of the 91 pages of annexures. On this basis, the appellant was not required to be served with a true copy of the document containing 97 pages and an index which had been filed in the Registry, the pages having been numbered consecutively, and the affidavit having been bound with the annexures to it.
In my opinion, the respondent was required to serve, within the time limited, a copy of the affidavit, including the annexures to it. This view is in accord with the decision of Young J in the Supreme Court of New South Wales in Hassle v Commissioner of Patents (1987) 9 IPR 565, in which his Honour said, at 566 ‑ 567:
"Part 38 r 4 provides that a document to be used in conjunction with an affidavit shall where convenient be annexed to the affidavit. If it is annexed to the affidavit then it must form part of the affidavit, which pursuant to r 7 is to be served on the opponent not later than a reasonable time before the occasion for using it arises. If the affidavit is served then the recipient may in the normal course of events photocopy it."
The approach of the Courts to the fulfilment of a requirement for the provision of copies of documents under statutes or rules of court has been extremely strict. In Cooke v Vaughan (1838) 4 M&W 69; 150 ER 1346, a writ of capias described the defendant by the addition of "gentleman", but the addition was omitted in the copy served. It was held that this was not "a copy of the writ", in compliance with the statute. At 69; 1346 ‑ 1347, Parke B said:
"In Sutton v Burgess, the objection was not to the copy but to the indorsement upon it, which contained words not required by Rule II.Hil.T. 2W. 4. I remember feeling considerable doubt whether the form prescribed by that rule was correct, and whether the very words there objected to should not have been contained in it. But the objection in the present case arises upon an alleged non‑compliance with the statute, which requires a copy of the writ to be served, and I think this cannot be called a copy of the writ itself. The insertion of the word "gentleman," though not required by the act, does not vitiate the writ, and the copy must contain all that the writ does."
Alderson B, at 69; 1347 said:
"The nearest case to this seems to be that of Smith v Pennell (2 Dowl. P. C. 654), where a writ was set aside for the omission of the word "London" in the indorsement. The addition cannot be rejected as surplusage, and it ought to be inserted in the copy. If it were otherwise, you might insert some other word in lieu of the word "gentleman," and contend that it was still a copy."
In Spice v Bacon (1877) 2 Ex D 463, the Court of Appeal again took a strict view of the meaning of "copy" as used in the Innkeepers Liability Act.
In Bailey v Hinch [1989] VR 78, Gobbo J discussed the meaning of the word "copy". He adopted the common or ordinary meaning of the word as being "a reproduction" of the original.

There is no suggestion that substantial compliance with the requirement for service of a copy of the affidavit and its annexures is sufficient. Accordingly, in these circumstances, it is necessary to resolve the factual issue as to whether copies of four pages in the documents annexed to the original affidavit were omitted from the papers which were served upon the appellant by the respondent on 28 May 1999. If they were, then, in my opinion, it follows that the requirements of s 459G(2) were not complied with.
A number of affidavits have been sworn as to whether the four pages were missing from the annexures when the supporting affidavit was served upon the appellant. The first of these affidavits was that of Mr M T Williams, the operations manager of the appellant. He deposed that, at approximately 4.00 pm on the afternoon of Friday, 28 May 1999, he was served with a copy of an application to set aside the statutory demand, together with a copy of the affidavit, which he described as a bulky document punched with a hole in every page at the top left corner and held together by a steel pin. Mr Williams claimed that he was cautious about being served with the documents and asked the person who handed them to him for his business card. A card in the name of Stuart Baldwin and containing the name of the respondent's solicitors was given to him. The office manageress of the appellant, Ms L E Oudin, was not at the premises at the time Mr Williams received the documents, so he placed them on her desk, together with the business card. He did not deal with the documents in any way and he specifically stated that he did not unstaple or unpin the application or the affidavit.
In her affidavit, Ms L E Oudin deposed that, when she returned to the office of the appellant at about 5.00 pm on 28 May 1999, she noted, sitting on her desk, the business card of Stuart Baldwin, an application to set aside a creditors' statutory demand concerning the respondent, and a copy of the affidavit of Mr Bolto in support of the application to set aside the demand, both documents being dated 28 May 1999. Ms Oudin noted that the copy affidavit was held together by a steel pin through a hole punched in the top left corner of each page. She said that she flicked through the affidavit, but that she did not read it in any detail, nor did she check the number of pages in the affidavit. She said that, as she knew from the face of the documents that they concerned the statutory demand which she had previously deposed to, she dealt with the documents carefully. She made a photocopy of each of the two documents. When she photocopied the [copy] affidavit, she said she simply removed the steel pin temporarily and fed the entire document through the photocopier in her office. It was, she said, a photocopier of a kind that took a document of the bulk of the [copy] affidavit without any need to split it into smaller parts. The document was copied in the usual manner and she confirmed that there had been no hitches, no paper jam and no pause in the copying process.
Ms Oudin said that, as soon as the copy had been produced by the machine, she put the [copy] affidavit, which she identified as "the document as punched", back on the same steel pin and clipped the photocopy she had made with a bulldog clip. She then placed both sets of the two documents, together with the business card, in her filing cabinet, which she locked. The documents were left in the cabinet while the office was closed over the weekend.
On the morning of Monday, 31 May 1999, Ms Oudin was telephoned by Mr M Blundell from the solicitors for the appellant, who asked her about the documents. He asked her to courier them to him. She retained the photocopy she had made of the copies of the application and the affidavit, contacted a courier and arranged for the application, the affidavit and the business card to be couriered to Mr Blundell's firm. She placed the business card, the application and the pinned [copy] affidavit in an envelope which she addressed to Mr Blundell. The envelope was collected for delivery to the appellant's solicitors on the same day. She stated that she was certain that the pinned [copy] affidavit left her office by courier in exactly the same state that it was in when she had picked it up from her desk on the previous Friday.
Ms Oudin said that on Wednesday, 2 July 1999, she checked at the offices of the appellant's solicitors the photocopy she had retained against the "pinned" [copy] affidavit. They were, she said, identical, with neither having any greater or lesser number of pages than the other. Accordingly, there could have been no defect in the process of photocopying.
Mr Blundell swore an affidavit in which he said that, having calculated that the 21 days within which the respondent could file any application to set aside the statutory demand would expire at the end of Friday, 28 May 1999, and not having received the documents by early in the morning of Monday, 31 May, he telephoned the appellant to check whether or not it had received any such documents. He spoke to Ms Oudin, who informed him that the relevant documents had been received on Friday, 28 May, at the premises of the respondent - no doubt it was intended to refer to the appellant's, and not to the respondent's premises. He asked her to identify them to him, which she did, and he then asked her to courier all of them to him. Shortly afterwards, he received, marked to his attention, an envelope from Ms Oudin containing an original business card of Mr Baldwin, which was stapled to a copy of an application to set aside the creditors' statutory demand, and a pinned copy affidavit of Mr Bolto in support of the application. He said that the affidavit was punched with a hole in each page at the top left corner and held by a steel pin. There were no staples in the document, but he noted that there were staple marks in the affidavit proper only, that is, not through any of the annexures to the affidavit. He stated that after he had started to peruse the affidavit, he noticed that there appeared to be some pages of the annexures missing. The missing pages were pages 58, 59, 60 and 63. The page between those numbered 57 and 62 did not appear to contain a page number but rather a "murky black patch" in the top right corner. From his perusal of that page in the original affidavit filed at the Registry of the Supreme Court, he indicated that he believed it to be page 61. It is to be observed that the pages of the annexures were not separately numbered. In accordance with O 37 r 37.2(6) of the Rules of the Supreme Court, putting on one side the missing pages, each page of the affidavit and of the annexures which had been filed had been numbered consecutively.
The affidavit evidence on behalf of the appellant dealt thoroughly with the manner in which the copy affidavit was handled between the time it was served upon the appellant and the time when the missing pages were discovered. The affidavit evidence on behalf of the respondent was less satisfactory.
Mr J V O'Dea, a senior associate employed by the respondent's solicitors, deposed that, on 27 May 1999, he had completed drafting the application to set aside the statutory demand and the supporting affidavit to be sworn by Mr Bolto. In preparing the annexures to the affidavit, he said he wrote the numbers appearing at the top right hand corner of the pages of the annexures. He indicated that there was a dark smudge at the top right corner of page 61 of those annexures. Mr O'Dea stated that, between pages 74 and 86 (sic), he had repeated some numbers and he subsequently altered the numbers on pages 73 to 83 by adding 2 to each of them. He said that he then sent the annexures to the firm's document copying staff with instructions to provide four photocopies. The person undertaking the photocopying was not identified. On the return of the annexures, he checked the original bundle and found it correct as to the number and sequence of the pages. He left the original bundle and the four copies in his office overnight. It is not suggested that he checked the copies. On the following day, Mr Bolto swore his affidavit. Mr O'Dea said he had three (sic) copies of the application and affidavit made and placed each with a bundle of annexures and secured each bundle with a bulldog clip. Later on the same day, he gave the original and copy applications, affidavits and annexures to Mr Baldwin, with instructions to file the original and serve a copy on the respondent. He instructed Mr Baldwin to "offer the Court sealed copy of the application and affidavit to the person served for checking against the service copy". As counsel for the appellant pointed out, it is not the practice of the Registry to "seal" copies of affidavits filed in the Registry. The only reference to "sealing" in O 81G is to the sealing of applications or summonses under r 10(2).
On or about 4 June 1999, Mr O'Dea said that he received a telephone call from the appellant's solicitor, Mr Blundell, asking if he could check the sequence of pages of the annexures of the affidavit between pages 57 and 63. Mr O'Dea said that he looked at the "sealed" copy of the affidavit and read out the number sequence of its annexures from 57 to 63, being pages numbered 58, 59, 60, 61 and 62. Mr Blundell, he deposed, said there was a page with a smudge at the top right hand corner and the number was not showing. Upon checking the "sealed" copy, Mr O'Dea said he told Mr Baldwin that the number was 61.
Mr Baldwin deposed that he was an articled clerk employed by the respondent's solicitors. His evidence was that he was asked to serve the documents on the appellant. He was handed four sets of the documents, which he took to the photocopying room. After some discussion between himself and Mr Manalac, a member of the document staff, as to whether the affidavits should be pinned or bound along the spine, he ascertained from Mr O'Dea that the rules required that court documents should be fastened at the top left hand corner. In the meantime, however, Mr Manalac had begun binding the service and spare copies of the affidavits by using a machine to make holes along the left hand side of the pages. Mr Baldwin told Mr Manalac not to bind the affidavit. Mr Baldwin then watched him drilling the left corner of the four affidavits with a mechanical drill which was attached to a flat metal plate on which the document rests. The documents were held in place with a clamp, but because the entire affidavit could not fit under the clamp, it was split in half and then recombined after drilling. He did not see any pages removed from the affidavits during the process. Nor did he see any loose pages lying on the bench after the affidavits had been drilled and secured. Four spikes were stuck through each affidavit and bent. A bulldog clip was used to attach each application to its corresponding affidavit.
Mr Baldwin said he filed the original affidavit at the Court and took the service and sealed copies to the appellant's registered office. He said he placed the sealed copy of the application and affidavit next to the service copy and told Mr Williams that he could check if the service copy was the same document. He acknowledged that he did not check the number of pages of the service copy of the affidavit or their sequence before effecting service. He has since inspected the original affidavit and the three copies of the affidavit possessed by his firm and he has found that the original and each copy of the affidavit was complete, comprising the application to set aside the demand (pages 1 to 2), a face sheet and index (pages 1 to 3) and the affidavit (pages 1 to 97) (sic). On 9 June 1999, he inspected the filed copy of the affidavit at the Supreme Court Registry and found it to be complete. Mr Manalac told Mr Baldwin that no loose pages had been found in the photocopying room during the relevant period. It is noted that, in Mr Baldwin's affidavit, there is not to be found any reference to the "annexures". It would appear that throughout his affidavit he is treating the annexures as part of the affidavit and his affidavit must be read accordingly.
The issue is whether the four pages were omitted from the document served or whether the four pages went astray following service. In the normal course, it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit - see, for example, Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331, at 341. In this case,

neither party has sought to cross-examine any of the deponents of the affidavits filed on behalf of the other party. It would have been highly desirable for them to have done so. In this case, however, the appellant has carefully accounted for the handling of the affidavit and its annexures. The respondent's affidavit is deficient in this respect. What is clear is that at no time did the respondent check the document which was ultimately served upon the appellant. Furthermore, in the photocopying process, and in the "binding" of the affidavit and its annexures, the papers were interfered with. In particular, Mr Manalac had been making holes along the left hand side of a number of pages (which were not identified) for the purpose of binding the affidavit and its annexures. According to Mr Baldwin's affidavit, instead of photocopying a copy of the affidavit and annexures which had not had holes made in them, the copies which had been holed were photocopied. What happened to those pages does not appear. Unlike the position at the respondent's office, it was also necessary to split "the entire affidavit" in half to photocopy it. It is said that no loose pages were lying on the bench after the affidavits had been drilled and secured, but no explanation is given as to the fate of the copies which had been partially prepared for binding down the left hand side of the documents. Mr Manalac, who undertook the photocopying, did not swear an affidavit, although Mr Baldwin was not present at all times while the documents were being prepared.

In my opinion, the appellant has established, on the balance of probabilities, that the service copy of the affidavit and its annexures was deficient, as claimed by it.
The respondent contended that the appellant should not be granted leave to appeal in this matter, on the basis that it was simply a matter of practice and procedure; but, as Malcolm CJ confirmed in The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, there are no rigid or exhaustive criteria for the granting or refusing of leave to appeal. And see also Crombie v Uniting Church Trust (1997) 17 WAR 291, at 303. This application raised a significant issue under s 459G of the Corporations Law, and it is in my view an appropriate case for the granting of leave. I would therefore grant the necessary leave and I would allow the appeal. I would set aside the order of the learned Master and, in lieu thereof, I would declare that the respondent's application to set aside the creditors' statutory demand, dated 28 May 1999, is not a valid application.
WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the orders proposed by his Honour.

ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Kennedy J. I agree with them and there is nothing I wish to add.