Sherwood v The Owners of Mount Bakewell Strata Plan 18228
[2015] WADC 99
•21 AUGUST 2015
SHERWOOD -v- THE OWNERS OF MOUNT BAKEWELL STRATA PLAN 18228 [2015] WADC 99
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 99 | |
| Case No: | APP:34/2015 | 1 JULY 2015 | |
| Coram: | SWEENEY DCJ | 21/08/15 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ELIZABETH ANNE SHERWOOD THE OWNERS OF MOUNT BAKEWELL STRATA PLAN 18228 |
Catchwords: | Affidavits Procedure for swearing Must annexures be signed |
Legislation: | Oaths, Affidavits and Statutory Declarations Act 2005 s 9 |
Case References: | David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299 Glew v White [2012] WASCA 138 Hassle v Commissioner of Patents (1987) 9 IPR 565 Hockey v Owners of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64 Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kipp Building Services [2001] NSWSC 73 Robowash Pty Ltd v Robwash Finance Pty Ltd [2000] WASCA 409 Shilkin v Taylor [2011] WASCA 255 Warrigal Developments Pty Ltd v Midstyle Nominees Pty Ltd [2013] WASC 19 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE OWNERS OF MOUNT BAKEWELL STRATA PLAN 18228
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE COCKRAM
Citation : GCLM 7992 of 2014
Catchwords:
Affidavits - Procedure for swearing - Must annexures be signed
Legislation:
Oaths, Affidavits and Statutory Declarations Act 2005 s 9
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondents : Mr M A Atkinson
Solicitors:
Appellant : Not applicable
Respondents : Atkinson Legal
Case(s) referred to in judgment(s):
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299
Glew v White [2012] WASCA 138
Hassle v Commissioner of Patents (1987) 9 IPR 565
Hockey v Owners of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64
Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722
Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kipp Building Services [2001] NSWSC 73
Robowash Pty Ltd v Robwash Finance Pty Ltd [2000] WASCA 409
Shilkin v Taylor [2011] WASCA 255
Warrigal Developments Pty Ltd v Midstyle Nominees Pty Ltd [2013] WASC 19
- SWEENEY DCJ:
Introduction
1 This is an appeal from the decision of a magistrate dismissing the appellant's application to set aside summary judgment given against her (and her partner) in a claim for unpaid strata company contributions of $65,709.35.
2 The appellant and her partner, Mr Murphy, are the owners of Lot 1 in Strata Plan 18228 situated in York. The respondent is the strata company. The parcel of land within the strata scheme comprises 13 lots, of which Lot 1 is by far the largest. It is run as a caravan park.
3 This appeal raises a rather narrow point concerning the use that was made in the court below of an affidavit sworn by Mr Atkinson for the respondent. The contention is that the affidavit ought to have been disregarded entirely, it being asserted that it was not properly sworn and was therefore invalid. There is also an allegation of bias against the learned magistrate arising out of the same point.
4 For the reasons which appear below, the appeal is dismissed.
The proceedings in the Magistrates Court
5 By way of background, on 15 April 2014 the respondent lodged a general procedure claim in the Magistrates Court for the sum of $65,709.35, being unpaid contributions levied on the appellant and Mr Murphy, together with interest on those contributions. Subsequently the respondent filed an application for summary judgment supported by two affidavits, and the matter was listed for hearing on 6 October 2014.
6 When the matter came on for hearing on that date, there was no appearance by the appellant or Mr Murphy. An affidavit of service of the application was before the court. The court proceeded with the hearing, which resulted in summary judgment being given against the appellant and her partner.
7 On 12 November 2014 the appellant and her partner filed an application seeking to set aside the summary judgment, and substitute summary judgment in their favour. Logically they had to succeed in setting aside the judgment before there could be any question of moving to summary judgment in their favour. Their application was filed out of time by a few days.
8 The matter first came on for hearing before Mr Cockram SM on 27 February 2015. The appellant and Mr Murphy were not legally represented, although they were 'assisted' by a friend with no legal training.
9 The appellant made two complaints at that time. Firstly, she asserted that she had not known of the application for summary judgment. No details were given over and above that simple assertion. Secondly, she asserted that the respondent's conduct in seeking summary judgment, instead of listing the matter for a trial listings hearing, amounted to an abuse of process.
10 His Honour informed the appellant and her partner that:
Before the court would consider setting aside the summary judgment it would have to be satisfied on affidavit from yourselves that you actually have a defence to the claim. So it's not enough for you to suggest that there has been an abuse of process … Courts don't set aside judgments unless there is a defence.
11 That advice was undoubtedly correct. Section 18(2) of the Magistrates Court (Civil Proceedings) Act 2004 provides that:
The court may give judgment in favour of a claim without a trial if the party defending the claim does not satisfy the court that the defence has a reasonable prospect of succeeding.
12 It follows that, in any application to set aside summary judgment entered in favour of a claim, no purpose would be served in setting aside judgment where the defendant is unable to satisfy the court that the defence has a reasonable prospect of succeeding: see Shilkin v Taylor [2011] WASCA 255 [25] (Newnes JA).
13 His Honour then informed the appellant and Mr Murphy that, on the evidence then before the court, he would dismiss their application. Over the respondent's opposition, his Honour adjourned the matter to 17 April 2015 in order to give the appellant and Mr Murphy the opportunity to file an affidavit raising an arguable defence.
14 They subsequently filed a further joint affidavit which contained a number of bald allegations against various persons, asserting fraud and extortion, including claims of false documentation and 'attempts to steal land by extortion'. There was even a claim of 'deprivation of liberty by extortion'. These claims were supported by bare assertions such as 'We have large amounts of proof'.
15 A number of allegations were levelled at the court-appointed administrator of the strata scheme and the other individual lot owners, but they were certainly not the only ones to be the subject of allegations. The affidavit asserted that the alleged fraud commenced when the original surveyor of Strata Plan 18228 advised one John and Daphne Murphy (perhaps a relation to Mr Murphy) to start the strata company, which dates back to 1989. The allegations of fraud continued from there, alleging fraud in relation to the setting up of the strata company, the building of chalets on the land, the taking up of permanent residence in those chalets contrary to the zoning of the land, the failure to obtain shire council approval for various structures and alleged fraud on the part of the local shire. The State Administrative Tribunal was accused of fraud in unlawfully acting as a court. There followed allegations of fraud in relation to the establishment of a budget for the strata company, the levying of contributions and the commencement of the current action to recover those unpaid contributions. There was also an allegation that the Magistrates Court was sitting in violation of the Commonwealth Constitution 1901. The affidavit was peppered with the sort of misconceived constitutional arguments that have been dealt with multiple times by the Supreme Court, and dismissed, in cases such as Glew v White [2012] WASCA 138.
16 The respondent filed a brief affidavit in response sworn by Mr Atkinson on 14 April 2015. Mr Atkinson is a lawyer who practises in the field of strata titles. He is also the administrator of the respondent strata company, appointed by the State Administrative Tribunal on 2 May 2013: Hockey & Anor v Owners of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64. The purpose of his affidavit was to deal with some of the allegations raised.
17 At the return hearing of 17 April 2015, again before Mr Cockram SM, his Honour again correctly informed the appellant and her partner that the onus was upon them to persuade the court that the summary judgment should be set aside which, he said, would involve providing an explanation for failing to attend the summary judgment hearing, providing an explanation as to the failure to lodge their application within the 21-day period and persuading the court that there was an arguable defence to the claim.
18 In the submissions that followed, the appellant objected to the court having regard to the affidavit of Mr Atkinson, on the basis that it was 'invalid'.
19 It was said to be invalid on the basis that the Oaths, Affidavits and Statutory Declarations Act 2005 (the OASD Act) requires every page to be signed by the deponent and the authorised witness and, in this case, neither the deponent nor the authorised witness had signed the annexures to the affidavit.
20 The one-page affidavit was signed by both on the first page at the jurat provision. The respondents' counsel submitted that there is no requirement for annexures to be signed by the deponent or the authorised witness.
21 No advance notice had been given of this objection to the affidavit, either to counsel or the court. The learned magistrate adjourned for a short time to conduct his own research. Upon his return, having regard to the decision of the Full Court in Robowash Pty Ltd v Robwash Finance Pty Ltd [2000] WASCA 409, the learned magistrate concluded that the annexures to the affidavit formed part of the affidavit itself and therefore needed to be signed. His Honour also rejected the suggestion that the validity of the affidavit was saved by s 16(2) of the OASD Act on the basis that it 'substantially' complied with the required procedure, on the basis that the failure to sign any of the annexures amounted to complete non-compliance.
22 While the learned magistrate was very willing for the matter to be adjourned to enable Mr Atkinson to re-swear his affidavit, he indicated that his other court commitments that day would necessitate the matter being adjourned outright for that purpose. In those circumstances, the respondents' counsel submitted that the affidavit itself (the first sworn page) still contained evidence and that he wished to proceed. The learned magistrate indicated that he was prepared to have regard to the single page of the affidavit which was deposed to and signed, but that he would not have regard to the unsigned annexures. On that understanding, the respondents' counsel confirmed his desire to proceed. The hearing proceeded and the learned magistrate dismissed the application to set aside the summary judgment.
23 In his reasons, the learned magistrate relied upon the first page of Mr Atkinson's affidavit and accepted that Mr Atkinson had been validly appointed the administrator of the respondent by the State Administrative Tribunal on 3 May 2013. Indeed a copy of the Tribunal's order to that effect was annexed to the appellant's own affidavit. The effect was that Mr Atkinson was the administrator on 9 July 2013 when it was resolved at a general meeting to levy contributions from the various lot owners to contribute to the administrative fund.
24 His Honour also drew from Mr Atkinson's affidavit that his appointment as administrator had been extended until 23 May 2014 as asserted in par 3 of the affidavit. He was the administrator on 15 April 2014 when the action in the Magistrates Court was initiated.
25 His Honour then referred to the original affidavits in support of the summary judgment application to the effect that, the appellant and her partner being the lot owners of Lot 1, they were liable to pay the contributions levied against them in the sum claimed.
26 His Honour referred to the appellant and her partner's seven affidavits including the last and found that, while the affidavit material raised 'numerous issues', some of which 'may well be required to be dealt with in other jurisdictions':
… there is nothing, in my view, in their affidavits, which gives them a defence to that claim.
Whether or not the strata body was appropriately formed, that is not a matter for this jurisdiction. It's clear, from the defendants' own affidavit, by inclusion of the order from the State Administrative Tribunal, that the State Administrative Tribunal was of the view that there was a valid strata title in place and that the company was the claimant in these matters. But at the risk of repeating myself, the affidavits lodged by the defendants do not, in this jurisdiction, demonstrate any defence to the claim which has been made. Therefore, their application is dismissed.
The grounds of appeal
27 The grounds of appeal are narrow in scope and are as follows:
1. The magistrate was wrong in law and fact when he ignored the provisions of the Oaths, Affidavits and Statutory Declarations Act 2005, at sec 9 SS B [sic].
2. The magistrate was wrong in law and fact when he showed bias towards the defendants/appellant, by using the first (2) two pages [sic] of the unlawful Mark Andrew Atkinson affidavit against the defendants application to dismiss the unlawful irregularly obtained summary judgment.
3. The magistrate was wrong in law and fact when he reinstated the first (2) two pages [sic] being the Mark Andrew Atkinson invalid affidavit, after he had dismissed the full affidavit.
Did the annexures to the affidavit need to be signed?
28 The starting point is to determine the statute or rules that govern affidavits in the Magistrates Court.
29 There is no provision in the Magistrates Court Act 2004 or the Magistrates Court (Civil Proceedings) Act 2004 which incorporates the rules as to practice and procedure contained in the Rules of the Supreme Court1971. I conclude then that O 37, which deals with affidavits, has no application to civil proceedings in the Magistrates Court.
30 The Magistrates Court (Civil Proceedings) Act 2004 sets out the general procedure to be followed in civil proceedings in that court. Section 14(1) provides that the procedure to be followed in the Magistrates Court in a civil case is that set out in the rules of court, unless another written law provides otherwise. The court has made rules governing its practice and procedure. As to affidavits, r 115 provides:
115. Content of affidavits
(1) Except as provided in subrule (2), an affidavit must be confined to facts to which the person making the affidavit is able to depose from his or her own knowledge.
(2) An affidavit may contain statements based on information received by the person making the affidavit, and believed by that person to be true, if the affidavit also contains the sources or grounds of that information or belief.
(3) Any addition, alteration or erasure in an affidavit must be initialled by the person making the affidavit and the person before whom the affidavit was sworn or affirmed.
9. Affidavits, how made
(1) Unless another written law provides otherwise, an affidavit for any purpose in this State must be made in accordance with this section.
(2) The affidavit must conclude with a statement that says —
(a) it is sworn or affirmed, as the case requires, by the person making it in the presence of an authorised witness; and
(b) where and when it is sworn or affirmed.
(3) The person who is making the affidavit must —
(a) sign or personally mark the statement required by subsection (2) and each other page of the affidavit;
(b) sign or initial any alteration, such as an insertion or erasure, that has been made to the affidavit; and
(c) in the presence of an authorised witness, say orally on oath or orally affirm —
(i) that he or she is the person named as the maker of the affidavit;
(ii) that the contents of the affidavit are true;
(iii) that the signature or mark is his or hers; and
(iv) if necessary, that any attachment to the affidavit is the attachment referred to in it.
(5) After the maker has complied with subsection (3)(c), the authorised witness must —
(a) under or near the statement required by subsection (2) —
(i) sign or personally mark the affidavit; and
(ii) imprint or clearly write his or her name and qualification as an authorised witness;
(b) sign or personally mark each other page of the affidavit; and
(c) sign or initial any alteration in the affidavit that has been signed or initialled by the maker.
(6) ….
(7) ….
(8) …
(9) …
33 His affidavit, that is the sworn component of his affidavit, consisted of a single page, page 1, consisting of five paragraphs. At the foot of those five paragraphs appeared the jurat provision which provided that Mr Atkinson swore the affidavit at Perth on 14 April 2015 in the presence of an authorised witness. Both Mr Atkinson and the authorised witness signed that page.
34 Attached to the affidavit were three annexures, described in the affidavit as Annexures MAA1 – MAA3. Each annexure had been marked with its identifying initials and number at the top of the first page of the annexure.
35 Annexure MAA1 was a copy of reasons for decision of the State Administrative Tribunal on 2 May 2013 in Hockey & Anor v Owners of Mount Bakewell Resort Strata Plan 18228, the last two pages of which set out the orders which the tribunal intended to make.
36 Annexure MAA2 was a copy of those extracted orders of 2 May 2013, together with a copy of the further orders made 21 October 2013 extending Mr Atkinson's appointment.
37 Annexure MAA3 was an extract of the shire of York Local Planning Scheme in relation to the parcel of land the subject of Strata Plan 18228.
38 Section 9(3)(c) draws a clear distinction between the affidavit itself and any attachment to it, by providing a requirement that, when swearing the affidavit, the deponent must 'say orally on oath or orally affirm' 'that any attachment to the affidavit is the attachment referred to in it'.
39 The necessity for the deponent to swear or affirm that the attachment to the affidavit is the attachment referred to in the affidavit inevitably suggests that the annexure is a thing apart from the affidavit itself. Indeed, from a practical perspective, if there was a requirement for an annexure to be signed and incorporated into the affidavit prior to the jurat provision, it is hard to see how it could be anything other than the attachment referred to in the affidavit, rendering completely unnecessary the need to so swear.
40 Consistent with that distinction, the jurat provision in Mr Atkinson's affidavit (and indeed in affidavits generally) appears at the conclusion of those paragraphs which are actually deposed to, rather than at the conclusion of the annexures.
41 An annexure to an affidavit need not be authored by the deponent himself, and need not contain any statements made by the deponent of the affidavit at all. While their provenance may be deposed to, it may be that their contents are not being sworn to at all. Indeed in some cases a deponent might properly annex a document said by him to be a false document.
42 The deponent in this case was not purporting to depose to the truth of the reasons for decision of the State Administrative Tribunal and the orders made by that tribunal, but the fact of its decision and orders appointing him the administrator. Similarly he was not and could not depose to the truth of any fact underlying the Shire Council plan, but was simply annexing the plan itself depicting the registered parcel of land.
43 While it might be sensible for a deponent to sign every page of an annexure, so as to place beyond doubt, in the event that the annexure should become displaced from the affidavit, that the annexure is that referred to in the affidavit, s 9 of the Act is not ambiguous in its requirements and does not require the annexures to be signed, either by the deponent or by the authorised witness.
44 The learned magistrate placed reliance upon the decision in Robowash Pty Ltd v Robowash Finance Pty Ltd before concluding that the annexures had to be signed. That decision was clearly binding upon the learned magistrate and is equally binding upon this court. The question is whether it amounts to authority for the proposition cited.
45 Robowash concerned an application to set aside a creditor's statutory demand upon a company. Section 459G of the Corporations Law enables a company to apply to the Supreme Court for such an order, but such an application 'may only' be made within 21 days after service of the statutory demand. Section 459G(3) provides:
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.
46 By the time Robowash was decided, it had already been held in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 that strict compliance with s 459G was required, because it attached limitations or conditions upon the authority of the court to set aside the demand.
47 In Robowash, the service copy of the supporting affidavit was missing four pages of its annexures. The applicant argued that it was only obliged to serve the affidavit and not its annexures. At first instance, the learned master agreed.
48 The Rules of the Supreme Court were applicable to such an application. Order 37 r 2(6) to r 2(9) 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 of 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.
49 Rule 9(1) provides:
(1) 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.
(2) An exhibit to an affidavit must be identified by a certificate of a person before whom the affidavit is sworn or taken, and a certificate must have endorsed on it the short title of the cause or matter and its number, if any.
50 A distinction is drawn in both rules between an affidavit, an annexure and an exhibit. An annexure must, however, be physically bound with an affidavit.
51 On appeal, Kennedy J, having reviewed a number of authorities and learned texts upon the distinction between an annexure and an exhibit, concluded that:
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 [18].
52 His Honour continued:
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. That is not to say, however, that annexures are not to be regarded as a part of an affidavit for the purpose of service [20]. (emphasis added to final sentence).
53 After considering the ordinary meaning of the word 'annex', Kennedy J commented on the obvious undesirability of an applicant being obliged to serve the six-page affidavit only, leaving the company the subject of the application to set aside the statutory demand to its own devices to obtain the annexures.
54 His Honour also referred to 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.
55 Kennedy J also commented:
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 [24].
56 Kennedy J concluded that compliance with s 459G required the applicant to serve, within the time limit, a copy of the affidavit including the annexures and that, several pages of the annexures having been missing from the service copy, the respondent had failed to comply with s 459G, so that the application to set aside the creditor's statutory demand was invalid. The case was essentially about disclosure and the requirement of a party to strictly comply with its obligations of service of the documents, upon which it intended to rely, upon its opponent. Hassle was a similar case.
57 Kennedy J did not strictly deal with the submission to the effect that the language of O 37 r 2(8) appears to describe an affidavit as a separate thing from the annexures and exhibits. Rather, his Honour focused on whether annexures were to be regarded as part of an affidavit for the purpose of service.
58 That was highlighted in a decision of the Federal Court in Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722, a case which again dealt with an application to set aside a statutory demand by way of an application pursuant to s 459G. The applicant had served a draft affidavit in support with 'exhibits', which were in fact attached and might more properly have been described as annexures. Once the affidavit was sworn and lodged with the court, it was then served by facsimile with a note: 'We note that you have previously been served with the exhibits to the enclosed affidavit'. The applicant's contention was that the failure to serve the three exhibits to the affidavit after the affidavit had been lodged with the court was fatal to the application.
59 There was some discussion in the case about the distinction between an annexure and an exhibit and the method by which the deponent had treated the documents, before Greenwood J continued:
For the purposes of each of these rules and as a matter of principle, documents marked as an exhibit to an affidavit do not form part of the affidavit.
Section 459G(3) requires a plaintiff to serve the supporting affidavit within the relevant time frame. Notwithstanding the distinctions between an exhibit and an annexure to an affidavit, it would seem an odd result in relation to an application to set aside a statutory demand that a Defendant to such an application must be served with any supporting affidavit and any annexures to and thus incorporated within such an affidavit (Robowash Pty Ltd v Robowash Finance Pty Ltd (supra) at [23]), yet no obligation arises to serve documents marked as an exhibit. If the true purpose of s 459G is to cast an obligation upon a Plaintiff to provide the Defendant with a copy of the material relied upon by the Plaintiff so that the Defendant might understand, test and respond before the forum to that material in a way which addresses the merits of the application in the interest of justice, it would be an odd result if that purpose might be defeated by crafting an affidavit in such a way that documents probative of a fact in issue are produced to the deponent, marked as an exhibit and not served upon the Defendant. It seems to me that the reference to 'an affidavit' in s 459G(3) contemplates an affidavit and all documents annexed or exhibited to the affidavit and thus relied upon by the Plaintiff in support of the merits said to be persuasive of the court making an order in favour of the Plaintiff.
Accordingly, in the ordinary course, a Plaintiff would be required to file an application seeking the relevant relief and serve a copy of the application, a copy of the supporting affidavit and a copy of any exhibit or annexure to the affidavit within the time limited by s 459G(3) [29] - [31].
60 While finding that the served copy of the application document itself must be a copy of the filed and sealed version, Greenwood J commented:
It seems to me that it is not correct to say that there must necessarily be in all cases a strict linear sequence in the filing of the affidavit and any exhibits or annexures to the affidavit and then service of that material. In circumstances where the Plaintiff has provided the Defendant with the affidavit material (including any exhibits or annexures to the affidavit) in the immediacy of a foreshadowed application and has then filed material entirely consistent with that material, that is, a copy of that material, and has confirmed the filing, in fact, of the affidavit material, s 459G(3) is satisfied [36].
61 His Honour found that there was no disjunction between the documents as filed and the documents served and, therefore, one was truly characterised as a copy of the other, 'unlike the circumstances before the court in Robowash'.
62 That decision re-enforces my view that the decision in Robowash was concerned with disclosure and a strict compliance with the particular statutory provision of s 459(3) of the Corporations Law. The courts in Robowash, Hassle and Kortz were concerned with the provision by the applicant, to the other party, of an accurate copy of the material to be relied upon before the court.
63 Indeed in Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kipp Building Services [2001] NSWSC 73 (referred to by Greenwood J) the court upheld the validity of an application made pursuant to s 459G(3) where the material filed before the court and the material served upon the defendant was missing pages, but both were missing the same pages, so that the material served upon the defendant was the same material filed with the court.
64 Those decisions were not concerned with the distinction between an affidavit and an annexure or an exhibit for the purposes of the procedure for swearing an affidavit. In Robowash, after all, Kennedy J made it plain exhibits were not part of the affidavit at all and yet, in Kortz, Greenwood J found they were required to be served with the affidavit just the same for the application to be valid, while still acknowledging the distinction between an exhibit and an annexure.
65 Order 37, similarly to s 9 of the OASD Act, does appear to draw a distinction between the affidavit and the attachments but, unlike s 9, does not deal with the procedure for swearing an affidavit. Order 37 is expressed, by r 16, to be additional to the OASD Act.
66 While those decisions make it plain that annexures and even, for that matter, exhibits, must be regarded as being part of an affidavit for the purposes of service in order to comply with s 459G of the Corporations Law, they have nothing to say as to whether each page of an annexure must be signed by the deponent and the authorised witness, that issue being irrelevant to both decisions. They do not detract from the obvious distinction made in s 9 OASD Act between the affidavit and the attachment referred to in it.
67 With respect to the learned magistrate, who considered this issue with no prior notice and no real submissions to assist the court, I conclude he did err in finding that the pages of the annexures had to be signed by the deponent and the authorised witness. The affidavit complied with the requirements of s 9 OASD Act. On that basis, it follows that every ground of this appeal is dismissed.
Saving provision: S 16(2) OASD Act
68 In case I am wrong in my analysis above, I turn now briefly to consider s 16(2) of the OASD Act which provides:
The validity of an … affidavit … is not affected by the fact that the required procedure for taking or making it is not followed exactly as long as the procedure actually followed substantially complies with the required procedure.
69 The respondent submits that, given that the single page of the affidavit did comply with the requirements of the Act, the required procedure for making the affidavit was substantially complied with.
70 The respondent relies upon a decision of Master Sanderson in Warrigal Developments Pty Ltd v Midstyle Nominees Pty Ltd [2013] WASC 19. That was yet another case in which the applicant sought to set aside a statutory demand pursuant to the Corporations Law. The applicant asserted that the affidavit in support was invalid because the authorised witness had failed to sign the first page of the affidavit in support. Having referred to s 16(2) the learned master concluded:
In my view there has in this case been substantial compliance with the requirements of the OASD Act. There is no suggestion the deponent was not aware of his duty to state matters honestly. There appears to have been an oversight – nothing more. To uphold the plaintiff's objection would be to adopt an altogether too technical approach to what is intended to be a simple and straightforward procedure [12].
71 The respondents contend this decision was binding upon the learned magistrate. It was not.
72 An appeal from a decision of a magistrate in a civil case which is not a minor case lies to the District Court: Magistrates Court (Civil Proceedings) Act 2004 s 40. An appeal from that decision lies to the Court of Appeal: Magistrates Court (Civil Proceedings) Act, s 42.
73 Unlike the General Division of the Supreme Court, which consists of the Chief Justice, judges, acting and auxiliary judges and masters, the Court of Appeal consists of the Chief Justice, the President, the judges of appeal and any other judge or acting or auxiliary judge who is authorised to act as a judge of appeal: Supreme Court Act1935, s 7. A decision of a master is therefore not a decision of a superior court in the same hierarchy as a magistrate presiding over a civil matter which is not a minor case.
74 The decision was therefore not binding upon the learned magistrate. It was not brought to the learned magistrate's attention in any event during the course of argument and, had it been binding, it could only be binding as to the essential decision, to the effect that failure of an authorised witness to sign the first page of an affidavit amounts to substantial compliance where there is no suggestion that the deponent was not aware of his duty to state matters honestly. The learned magistrate was not bound to apply that decision to a different factual scenario. Section 16(2) calls for a qualitative assessment of the facts at hand.
75 Nevertheless I am persuaded that failure to apply s 16(2) in favour of upholding the validity of the affidavit was an error.
76 The learned magistrate remarked in discussions with counsel that he considered 'there's no compliance here … so s 16(2) doesn't, in my view, take you anywhere'. In making that finding, the learned magistrate failed to consider the affidavit as a whole.
77 What must be done in the presence of the authorised witness is for the deponent to say orally on oath or affirmation that he is the person named as the maker of the affidavit, that the content are true and that the signature is his and, if necessary, that any attachment to the affidavit is the attachment referred to in the affidavit. There is no suggestion that that procedure was not followed.
78 Significantly, the requirement to sign each page of the affidavit (whether that includes the annexures or not) need not be complied with in the presence of an authorised witness: s 9(4) OASD Act. The most significant requirements plainly pertain to the identity of the deponent and the truth of the contents of the affidavit, and the identity of the annexures, rather than the witnessing of the signature of the annexures.
79 The attachments to the affidavit were labelled so as to identify them as being the attachments referred to in the affidavit and they were also adequately described in the first page of the affidavit so that the reader may readily discern that they are in fact the attachments described.
80 There is no suggestion that the deponent did not swear or affirm the affidavit before the authorised witness in the usual form. Given that the annexures are identified individually by label, match the description referred to in the affidavit, and that the content of the affidavit the subject of the oath or affirmation was sworn to in accordance with the correct procedure, I find that there was substantial compliance with s 9 of the OASD Actand that, therefore, the validity of the affidavit was not affected by the failure to sign each page of the annexures. If there was a requirement to sign the annexures, then the failure to do so was nothing more than a misunderstanding of the procedural requirement set out in s 9 OASD Act, when the majority of that section, and the most significant requirements, had been complied with.
81 It is also relevant to note that the exhibits attached were known to the appellant. The first annexure, being the decision by the State Administrative Tribunal, is a matter of public record: Hockey & Anorv Owners of Mount Bakewell Resort. The appellant was aware of those proceedings. As the Tribunal stated therein:
The owners of Lot 1, Mr Michael Murphy and Ms Elizabeth Sherwood have elected not to participate in the proceedings but oppose the appointment of an administrator …
The Lot 1 owners have refused to participate in the proceedings of the tribunal on the basis that they challenge the constitutional standing of the Tribunal to exercise any jurisdiction to appoint an administrator or over them. While maintaining that objection they have filed submissions …
82 In any event, I do not consider it was necessary for the deponent to have annexed the text of that decision before the court could have regard to it. All that was required was for the deponent of the affidavit to make reference to that judgment and provide a citation to the court: Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299.
83 The second annexure to the affidavit was a copy of the orders made by the Tribunal. Those orders were foreshadowed in the final page of the reasons for decision in any event, but they were also annexed to the joint affidavit of the appellant and her partner Mr Murphy dated 1 April 2015 insofar as the orders of 2 May 2013 were concerned. The later order of the Tribunal was not, but, again, was presumably known to the appellant given the subject matter.
84 I consider that the learned magistrate was entitled to have regard to the decision of the State Administrative Tribunal made on 2 May 2013 and the accompanying orders on that date in any event, being a matter of public record. There is no suggestion the decision and orders annexed were not what they purported to be.
85 The third annexure was an extract of the Shire of York local planning scheme depicting the registered parcel of land the subject of the strata scheme. It too was a public document. It was highly likely to be within the knowledge of the appellant, given the many allegations and complaints made against the shire council in her joint affidavit but, in any event, was only sought to be put before the learned magistrate to respond to largely irrelevant allegations made in the appellant's affidavit. Nothing turned upon it.
86 It follows from my reasons above that I consider the affidavit was properly before the court, including its annexures, and if I am wrong in finding the affidavit complied with the requirements of s 9 OASD Act, then I find its validity was preserved by s 16(2) of that Act.
Could the learned magistrate have regard to the first page of the affidavit?
87 Complaint is made that, the learned magistrate having found that the required procedure for making the affidavit had not been substantially complied with, his Honour erred by having regard to the first sworn page of the affidavit in his reasons for decision. Given my findings above, this ground of appeal falls away. But in case I am wrong, I will comment on it briefly.
88 The learned magistrate remarked in discussions with counsel that he considered 'there's no compliance here … so s 16(2) doesn't, in my view, take you anywhere'.
89 With respect to the learned magistrate, if he was correct in his view that there was no compliance with the procedure for swearing the affidavit, then it followed from that that the affidavit was invalidly sworn and was not properly before the court.
90 While a court has the power to disregard irrelevant or inadmissible evidence, I do not accept the respondent's submission that the court had power to have regard to the first page of the affidavit and simply sever the various annexures as inadmissible, if in fact the swearing of the affidavit had miscarried and the affidavit was invalid. The affidavit was either validly sworn, or it was not. That is in essence the third ground of appeal.
91 For the reasons I have stated above, however, this ground of appeal must fail, because I do not accept that the swearing of this affidavit did miscarry by reason of the annexures not being signed.
Was the affidavit critical in any event?
92 The substance of the annexures in Mr Atkinson's affidavit were not, in any event, the basis of the learned magistrate's finding that the appellant had failed to discharge the onus of establishing that she had a reasonably arguable defence to the claim.
93 It is readily apparent from the materials contained in the appellant's own lengthy affidavit of 14 April 2015 that there are numerous problems and issues with this strata development. The annexures to that affidavit include a copy of a PowerPoint presentation given by Mr Atkinson to the lot owners of the strata plan after he was appointed administrator. He listed a number of disputes that were on foot and proposed a number of means by which the various disputes could be worked through and ultimately resolved.
94 None of those matters, however, amount to defences to the claim for unpaid levies. A strata company has obligations, including an obligation to insure, and must establish a budget and levy contributions according to the lot entitlement of the respective lot owners. Lot 1 is run as a caravan park and the appellant's unit entitlement (together with her partner) eclipses the unit entitlement of all other lot owners and so the contributions are substantially greater for Lot 1.
95 The appellant deposed that she could not afford to pay the sum, which is not a defence. There were many unsubstantiated assertions of fraud going right back to the establishment of the strata company, but no matter was raised in any of the affidavits supported by any substantive or credible evidence challenging the legality of the levied contributions, nor the fact that they have not been paid.
96 Indeed, the grounds of appeal do not challenge his Honour's finding that the appellant and her partner had not discharged the onus of proving that they have an arguable defence. In those circumstances, it would be quite pointless to uphold this appeal for want of signatures on the annexures to Mr Atkinson's affidavit.
Allegation of bias and conclusion
97 Finally, I should say something about the second ground of appeal, which alleged bias on the part of the learned magistrate, in that he had regard to the first page of Mr Atkinson's affidavit. The allegation of bias is utterly meritless and ought not to have been made. More is required to establish bias than the fact that a decision went against the appellant.
98 In fact, the learned magistrate went to considerable lengths to ensure that the appellant and her partner had a proper hearing, including adjourning the hearing of 27 February 2015 to give them an opportunity to place further material before the court.
99 Accordingly, the appeal is dismissed.
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