SPNZT Limited and Steelpipe Australia (WA) Pty Ltd (in Liquidation) v Trecap Pty Ltd - [2016] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SPNZT LIMITED AND STEELPIPE AUSTRALIA (WA) PTY LTD (IN LIQUIDATION) -v- TRECAP PTY LTD [2016] WADC 75

CORAM: SCHOOMBEE DCJ

HEARD: 29 APRIL 2016

DELIVERED : 20 MAY 2016

FILE NO/S: CIV 2359 of 2015

BETWEEN: SPNZT LIMITED AND STEELPIPE AUSTRALIA (WA) PTY LTD (IN LIQUIDATION)
Appellant (First-named Defendant)
AND
TRECAP PTY LTD
Respondent (Plaintiff)

Catchwords:

Appeal from decision of registrar of District Court - Application for summary judgment by defendant - Defendant has onus to show that it has a good defence and that there is no serious question to be tried - Defendant relying on it being a limited partner upon registration of a limited partnership under s 5 of the Limited Partnerships Act 1909 - Plaintiff alleging that the limited partnership was not validly registered under s 8 of the Act - Whether defendant has good defence and plaintiff's allegations not fairly arguable

Legislation:

Limited Partnerships Act 1909 s 5, s 8, s 12, s 13, s 14, s 16

Result:

Application for summary judgment granted

Representation:

Counsel:

Appellant (First-named Defendant) : Mr G M Abbott
Respondent (Plaintiff) : Mr T O Coyle

Solicitors:

Appellant (First-named Defendant) : Tottle Partners
Respondent (Plaintiff) : Lavan Legal

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

Accident Compensation Commission v Murphy [1988] VR 444
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Anderson v Effexseven (1999) 10 ANZ Ins Cases 61‑424
Astor Theatre WA Pty Ltd v Zimmerman Investments Pty Ltd [2014] WASC 329
Casella v Hewitt [2008] WASCA 13
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33
Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568
Muir v Morton [1984] WAR 254
Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352; 175 ALR 548
Norbis v Norbis (1986) 65 ALR 12
Posner v Collector for Inter‑State Destitute Persons (Victoria) (1946) 74 CLR 461
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Cotton Crops Pty Ltd [1986] 2 Qd R 328
Re Dunsborough Districts Country Club Inc [1982] WAR 321
Rex v Haynes [1916] NZLR 407
Sutton v Sautter (1891) 17 VLR 371
Swann v The Queen [1999] WASCA 106
SZOFE v Minister for Immigration and Citizenship (2010) 185 FLR 129; (2010) 115 ALD 519
Tasker v Fullwood [1978] 1 NSWLR 20
Theseus Exploration NL v Foyster (1972) 126 CLR 507
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 9189, 13 December 1991) 10
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513

SCHOOMBEE DCJ: This matter concerns an appeal from a decision by the learned registrar who dismissed the application for summary judgment brought by SPNZT Limited, the appellant (first‑named defendant).
An appeal from a decision of a registrar of the District Court to a judge of the same court is a hearing de novo and the judge must decide the case before it afresh: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.
SPNZT and Steelpipe Australia (WA) Pty Ltd (In Liquidation), the second-named defendant, entered into a limited partnership agreement on 7 September 2004. SPNZT was then known as The Shooting Box Limited as Trustee of Steelpipe Australia Trust. At a later stage SPNZT changed its name to SP Trust Limited as Trustee of Steelpipe Australia Trust and finally to SPNZT Limited. The changes in name are not relevant to the issues in this application.
The limited partnership was to be known as the Steelpipe Australia Partnership and the intention was that it would establish a business of manufacture and sale of steel pipe in Western Australia. Both partners were companies registered in New Zealand.
The limited partnership agreement recorded that Steelpipe Australia (WA) Pty Ltd would be a general partner while SPNZT would be a limited partner. Under s 4 of the Limited Partnerships Act 1909 (the Act) a partnership may be registered as a limited partnership and any partner registered as a limited partner will not be liable for the debts or obligations of the limited partnership in excess of a specified sum or value that the limited partner contributes as capital or property to the partnership. In exchange the limited partner is not allowed to take part in the management of the partnership.
On the same date that the limited partnership deed was signed, Steelpipe Australia (WA) Pty Ltd as the general partner and SPNZT as the limited partner filed an application for the registration of the limited partnership with the Registrar for Consumer Protection. On 11 October 2004 the registrar issued a certificate of registration of a limited partnership to the Steelpipe Australia Partnership.
On the same date a business in the name of the Steelpipe Australia Limited Partnership was registered with the Australian Taxation Office and given the ABN 35 120 649 935. The ACN of Steelpipe Australia (WA) Pty Ltd was ACN 110 791 412.
On 24 January 2007 Steelpipe Australia (WA) Pty Ltd on behalf of the Steelpipe Australia Partnership entered into a lease with Trecap Pty Ltd, the plaintiff and landlord. The lease did not indicate that the Steelpipe Australia Partnership was a limited partnership, but described the tenant as 'Steelpipe Australia Pty Ltd (ACN 110 791 412) … and The SP Trust Limited as Trustee of Steelpipe Australia Trust … trading together as Steelpipe Australia (ABN 35 120 649 936)'. The lease was signed by Steelpipe Australia Pty Ltd (ACN 110 791 412) 'as General Partner to the Steelpipe Australia Partnership'.
It is not in dispute between the parties that the general partner, Steelpipe Australia (WA) Pty Ltd was placed in liquidation and that the limited partnership defaulted in certain payments and other obligations under the lease. Some of the damages suffered by Trecap as a result of these breaches were made good by a bank guarantee in the total amount of $300,000 provided by the Commonwealth Bank to Trecap on behalf of Steelpipe Australia (WA) Pty Ltd. The guarantee was issued on 20 December 2005 and made it clear that Steelpipe Australia was a limited partnership registered under the Act and that Steelpipe Australia (WA) Pty Ltd was the customer 'as general partner of Steelpipe Australia (ABN 35 120 649 936)'.
It is not in dispute that Trecap knew at all material times that SPNZT Limited held itself out to be a limited partner under the Steelpipe Australia Partnership and Trecap previously addressed its invoices to Steelpipe Australia (WA) Pty Ltd. However, Trecap now places the validity of the registration of the limited partnership in issue. It claims the further damages it has suffered, which were not met by the guarantee, in an amount of at least $115,147 plus other damages from SPNZT Limited.
The only issue in dispute is whether the Steelpipe Australia Partnership was properly registered as a limited partnership under the Act. It is accepted by Trecap that if the limited partnership was validly registered, SPNZT is absolved from liability for any debts owed by the partnership to Trecap.

The pleadings

In its statement of claim filed on 26 June 2015 Trecap stated that a written lease had been entered into between Trecap and 'the defendants'. In answer to this SPNZT pleaded in its defence filed in July 2015 that it had not signed the lease and was not a party to the lease. It pleaded that the parties to the lease were Trecap and Steelpipe Australia (WA) Pty Limited 'as general partner of the limited partnership, then in the name of Steelpipe Australia'. SPNZT did not specifically say that it was the limited partner of the partnership, but it seems common cause between the parties that if a limited partnership was validly registered, SPNZT is the limited partner.
In its further re‑amended statement of claim, dated September 2015, Trecap alleged that the lease was entered into between it as landlord and Steelpipe Australia (WA) Pty Ltd and SPNZT 'as partners trading as Steelpipe Australia … and executed by Steelpipe Australia (WA) Pty Ltd as a partner'. The statement of claim impliedly relies on the usual principles applying to partnerships whereby one partner may bind the remaining partners of the partnership by entering into a contract. SPNZT has not filed a defence in answer to the further re‑amended statement of claim, but it is common cause that it is relying on being a limited partner.
The affidavits filed by SPNZT in support of its application for summary judgment rely on the application made by both partners to the registrar in September 2004 and the certificate issued by the registrar in October 2004 indicating that the Steelpipe Australia Partnership had been registered as a limited partnership.
Trecap alleged in its submissions in opposition to the application for summary judgment that the registration of the Steelpipe Australia Partnership as a limited partnership was invalid because the statement filed in support of the application did not contain all of the particulars required by s 8 of the Act. Trecap has not pleaded these matters in a reply. However, it is well established law that in opposing a summary judgment application by a plaintiff, a defendant should not file a defence and it is sufficient if an arguably good defence is set out on affidavit: Sutton v Sautter (1891) 17 VLR 371, 372; Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 9189, 13 December 1991) 10 (Seaman J with whom Malcolm CJ and Wallwork J agreed).
Similarly, a plaintiff opposing a defendant's application for summary judgment is not required to file a reply prior to the hearing of the application, but may set out the facts that it relies upon on affidavit or argue matters of law without having raised them on the pleadings. This is particularly so where the defendant has raised an additional matter in its defence, in the nature of an admission and avoidance. In this case SPNZT admitted that Steelpipe Australia (WA) Pty Ltd had entered into the lease on behalf of the partnership, but raised the issue that the partnership was a limited partnership and, by implication, that it was the limited partner. In such a case the plaintiff may show by affidavit or by relying on matters of law that the issue of avoidance raised in the defence does not present a good or conclusive defence.
The present application should be distinguished from a situation where a defendant has brought an application for summary judgment on the basis that the plaintiff has not pleaded a sustainable cause of action and that the plaintiff's case is frivolous or vexatious. Thus the Full Court of the Supreme Court of Western Australia held in Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994) that where a defendant upon its application for summary judgment alleged that the plaintiff's case was not fairly triable or arguable, the plaintiff was limited by the causes of action that it had pleaded. It was not for the judge to identify or accept some other cause which the evidence might support but which was not pleaded. In this case SPNZT has not argued that Trecap does not have a cause of action. It has raised a defence which it says is a conclusive defence in law.

The issue to be decided and whether it should be decided on an application for summary judgment

The main issue in this application is whether SPNZT has a good and conclusive defence based on the fact that it is a limited partner of a limited partnership registered under the Act or whether that defence could fail because the limited partnership was not validly registered.
There is no dispute of fact regarding the documentation that SPNZT has relied upon in this application to show that the Steelpipe Australia Partnership was properly registered. Trecap has not filed any affidavit to oppose the application; it has simply relied on its written and oral submissions.
The issue is essentially one of law which may be dealt with as effectively on an application for summary judgment as should the matter go to a trial on this issue. Trecap has not raised any factual matters that are in dispute and would bear on the question whether the limited partnership was validly registered.
Where a summary judgment application turns exclusively on a question of law, the judge hearing the application has a discretion in deciding whether the question of law raised is so difficult that it ought not to be decided summarily or whether sufficient legal argument has been presented to decide the question of law: Theseus Exploration NL v Foyster (1972) 126 CLR 507, 514, 515.
In Casella v Hewitt [2008] WASCA 13 Buss JJA and Heenan AJA upheld the master's decision to dismiss the defendant's summary judgment application which involved the interpretation of a contract regarding the right to termination under that contract. On the other hand, in SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 the Court of Appeal came to the conclusion that the proper construction of a consultancy agreement was not an appropriate matter for determination on a summary judgment application. However, in that case the plaintiff had indicated that it wished to amend its statement of claim and plead surrounding circumstances which might be relevant to the proper construction of the contract. In Astor Theatre WA Pty Ltd v Zimmerman Investments Pty Ltd [2014] WASC 329 Chaney J came to the conclusion that the interpretation of an option clause in a lease could be decided on the defendant's summary judgment application because there was nothing that could not have been said at the summary judgment application which might be said at a trial.
In my view the interpretation of the Act is a matter that is as appropriate to be dealt with by way of submissions on this application as by way of submissions at a trial which would only deal with the same question of law. Neither party has raised any matter of fact that is in dispute and could be relevant to the interpretation of the Act.

The test for when summary judgment should be granted to a defendant

Order 16 r 1(1) of the Rules of the Supreme Court 1971 provides that upon an application by a defendant for summary judgment the court may enter judgment for the defendant if it is satisfied that the plaintiff's action is frivolous or vexatious or that the defendant has a good defence on the merits. It is generally accepted that this is a discretionary decision by the court.
The burden of proof is on the defendant to show that it has a good defence on the merits and that there is no serious question to be tried upon any cause of action raised by the plaintiff: Anderson v Effexseven (1999) 10 ANZ Ins Cases 61‑424 (Parker J).
In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, 129 the High Court emphasised that the jurisdiction to summarily terminate an action should be sparingly employed and only where the lack of a cause of action by the plaintiff was clearly demonstrated. Barwick CJ held that the test to be applied had been variously expressed, for example as 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them (the pleadings) to stand would involve useless expense'.
In Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 Dixon J held that once it appeared that there was a real question to be determined whether of fact or law and that the rights of the parties depended upon it, it was not competent for the court to dismiss the plaintiff's action.
In this application the issue is whether the defence raised by SPNZT is such a good defence that there is no real question to be tried of either fact or law and whether there would be no point in allowing Trecap's claim to proceed to trial as it could not possibly succeed at the end of the day.

The parties' submissions on whether the defence of a limited partnership is a good and conclusive defence

In order to show that it had a conclusive defence to Trecap's claim SPNZT relied on the registration by the registrar of the Steelpipe Australia Partnership as a limited partnership and the issue of the certificate of registration in that regard. In its written submissions counsel for SPNZT submitted that the issue of such a certificate was conclusive proof that Steelpipe Australia Partnership had been validly registered as a limited partnership and that SPNZT was the limited partner.
The process of registration of a limited partnership is dealt with in s 8, s 13 and s 14 of the Act. These sections provide as follows:
8.Registration of limited partnerships
The registration of a limited partnership shall be effected by sending by post or delivering to the Registrar a statement signed by the partners containing the following particulars -
(a)the firm name;
(b)the general nature of the business;
(c)the principal place of business;
(d)the full name of each of the partners;
(e)the term, if any, for which the partnership is entered into, and the date of its commencement;
(f)a statement that the partnership is limited, and the description of every limited partner as such;
(g)the sum contributed by each limited partner, and whether paid in cash or how otherwise.
13.Registrar's duties as to filed statements
On receiving any statement made in pursuance of this Act, the Registrar shall cause the same to be filed, and he shall send by post to the firm from whom such statement shall have been received a certificate of the registration thereof.
14.Register and index to be kept
The Registrar shall keep, in proper books to be provided for the purpose, a register and an index of all the limited partnerships registered as aforesaid, and of all the statements registered in relation to such partnerships.
Pursuant to s 5 of the Act the effect of non-registration of a limited partnership is that it will be deemed to be a general partnership and every partner shall be deemed to be a general partner.
Counsel for SPNZT submitted that pursuant to s 13 of the Act, on receipt of any statement by the partners, the registrar was obliged to file it and to post to the limited partnership a certificate of registration. Counsel for SPNZT submitted that it did not matter that certain particulars were missing from the statement signed by the partners of the limited partnership as the registrar was obliged to issue a certificate of registration upon receipt of 'any statement'.
Alternatively, counsel submitted, the registrar had a discretionary power to accept a statement and once he or she had entered the name of the limited partnership on the register and posted a certificate of the registration to the limited partnership it was validly registered and the protection provided by the Act to a limited partner applied. Counsel relied on s 50(1) of the InterpretationAct 1984 to show that the registrar had a discretion. This section provides as follows:
51. Power to issue licences and other authorisations is discretionary
(1)Where a written law confers power upon a person to issue, grant, give or renew any license, registration, lease, right, authority, approval, permit, or exemption, the person so empowered shall have a discretion either to issue, grant, give or renew or to refuse to issue, grant, give or renew such license, registration, lease, right, authority, approval, permit, or exemption.

Counsel for SPNZT submitted that a certificate of registration was conclusive evidence of a valid registration and relied on s 16 of the Act which provides as follows:
16.Inspection of statements filed by Registrar
(1)Any person may inspect the statements filed by the Registrar in the register offices aforesaid, and there shall be paid for such inspection such fees as may be prescribed; and any person may require a certificate of the registration of any limited partnership, or a copy of or extract from any registered statement, to be certified by the Registrar, and there shall be paid for such certificate of registration, certified copy, or extract such fees as may be prescribed.
(2)A certificate of registration, or a copy of or extract from any statement registered under this Act, if duly certified to be a true copy under the hand of the Registrar (whom it shall not be necessary to prove to be the Registrar) shall, in all legal proceedings, civil or criminal, and in all cases whatsoever be received in evidence.
However, counsel for SPNZT conceded during the hearing of the application that s 16(2) merely provides that a certificate of registration shall be received in evidence in any civil proceedings in order to obviate the need for the registrar to give evidence. Counsel accepted that s 16(2) of the Act was worded differently to the equivalent sections in the acts dealing with limited partnerships in New South Wales, Victoria and Queensland. In each instance the relevant section in those acts states that the certificate of registration is conclusive evidence that the limited partnership was formed on the date of registration referred to in the certificate. This is also the wording of the relevant section in the Limited Partnerships Act 1907 (UK) on which the equivalent acts of the relevant states in Australia are based.
Counsel for SPNZT submitted that the certificate of registration nevertheless provided prima facie evidence that valid registration had taken place.
It is not in dispute that the statement signed by SPNZT (then The Shooting Box Limited as Trustee of Steelpipe Australia) and Steelpipe Australia (WA) Pty Ltd and provided to the registrar for purposes of the registration of the limited partnership was incomplete. The statement did not provide any information next to the entries 'The General Nature of the Business' and 'The Principal Place of Business'. In the affidavits filed by SPNZT it is explained that at the time of the application for the registration of the limited partnership in September 2004 the partnership did not yet have a principal place of business in Western Australia and the proposed business was not as yet in operation.
Mr Lance Thompson, the general manager of business development at Steelpipe Ltd, the parent company of Steelpipe Australia (WA) Pty Ltd, stated in his affidavit, dated 14 December 2015, that between August 2005 and about November 2006 he had stayed at hotels on trips made to Australia to investigate the transition of their business into the West Australian market. The first employee hired by the limited partnership was a Mr Hutchens, who was to be the sales manager and was hired on 10 August 2005. He initially had no business premises in Australia from which he could operate. The affidavit continues to state that Mr Hutchens 'ultimately located temporary offices in Nedlands' which were used until 'around the end of 2006'.
SPNZT's case therefore is that although the limited partnership wished to be registered in September 2004 to regulate the partners' financial commitment and future liabilities the business was not yet operating nor did it have a principal place of business in Western Australia.
It is not in dispute that together with the statement signed by the partners, the partnership agreement, dated 27 September 2004, was also forwarded to the registrar. This agreement clearly states that the business of the partnership would be the manufacture and sale of steel pipe. It also indicates that the agreement is to be regulated by the laws of Western Australia and that the partnership is to be registered as a limited partnership under the Act which is a Western Australia act.
However, this still leaves open the main question on this application, namely whether the registration of the limited partnership was valid where the registrar issued a certificate of registration despite the statement filed by the partners not containing all of the particulars required by s 8 of the Act.
Counsel for SPNZT submitted that there was no provision in the Act indicating that a certificate of registration was invalid if the statement filed under s 8 did not contain all of the required particulars. Counsel referred to s 12 of the Act which provides as follows:
12. False statement for registration purposes, offence
Every one commits a crime, and shall be liable to imprisonment for a term not exceeding 2 years, who makes, signs, sends, or delivers for the purpose of registration under this Act any false statement known by him to be false.
Counsel emphasised that the sanction under this section only applied to a partner who had provided false information knowingly and that the Act provided no sanction for the inadvertent or innocent omission of any information.
Counsel referred by way of comparison to the now repealed Mercantile Act 1867 (Qld) which also dealt with limited partnerships and the provision by the partners of certain information. Section 57(1) of that Act provided that if any false statement had been made in that regard all partners would be regarded as general partners. However, s 57(2) also provided as follows:
However, no clerical error or matter not of substance shall be deemed false within the meaning of this section unless some person may have been prejudiced thereby in which case the special partners (limited partners) shall be liable to the person so prejudiced.
Counsel for SPNZT submitted that in the absence of a similar provision in the Act dealing with any failure to provide the particulars required under s 8, any such omission was of no import once the registrar had nevertheless issued a certificate of registration to the limited partnership. Counsel argued that s 8 should be read on the basis that if information about prospective aspects of the business were not known at the time that the statement was provided to the registrar, the space provided for those particulars could be left blank. Further, if the registrar, in the exercise of his or her discretion, nevertheless accepted the statement and issued a certificate of registration to the limited partnership, the registration was valid.
Counsel for Trecap, on the other hand, submitted that the wording of s 8 indicated that registration of a limited partnership took place by the provision of a statement containing the particulars required by that section to the registrar and that the registrar's duty to send a certificate of registration to the limited partnership was only a ministerial duty. Counsel submitted that this flowed from the words in s 8 that the registration of a limited partnership 'shall be effected' by sending by post or delivering to the registrar a statement containing the specified particulars. Counsel argued that if the statement did not comply with s 8, the registration was, by its nature, invalid.
Counsel for Trecap relied on the principles of statutory interpretation set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [78] where the majority held that although the legal meaning of a statutory provision ordinarily corresponded with the grammatical meaning of the provision, the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute and canons of construction might lead to a meaning that did not correspond with the grammatical construction. Counsel for Trecap further relied on Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 [23] where French CJ and Hayne J emphasised that the task of statutory construction had to begin with a consideration of the text itself.
Counsel for Trecap submitted that the plain grammatical meaning of the words of s 8 of the Act indicated that the registration of a limited partnership was effected as soon as the required statement signed by the partners had been sent by post or delivered to the registrar. Counsel submitted that there was no provision in the Act for the registrar making any discretionary decision as to whether a partnership should be registered as a limited partnership on the basis of the statement received and that the requirement in s 13 to the effect that the registrar 'shall' send a certificate of registration to the limited partnership indicated that this was merely a ministerial task.
Counsel relied on the comments made in Lindley and Banks on Partnership (19^th ed, 2010), 29-22 with regard to the equivalent provisions contained in the Limited Partnerships Act 1907 (UK). Sections 8 and 13 of that act are virtually identical to the similarly numbered sections in the Act. Lindley and Banks comment on the English sections as follows:
It is submitted that registration is complete as soon as the prescribed application has reached the registrar; the filing of the application and the issue of the certificate are ministerial acts, a failure to perform which would not deprive a limited partnership of the benefit of the Act.
Counsel for Trecap submitted that if registration was constituted by the provision of the statement to the registrar, the registration was not valid where the statement was not complete. Counsel relied on s 5 of the Act which provides as follows:
5. Limited partnerships to be registered
Every limited partnership must be registered as such in accordance with the provisions of this Act, or in default thereof it shall be deemed to be a general partnership, and every limited partner shall be deemed to be a general partner.
Counsel for Trecap submitted that registration 'in accordance with the provisions of this Act' required that the statement filed by the partners had to conform strictly with the requirements of s 8. In the absence of this, the registration of a limited partnership had not been effected and the fact that the registrar had complied with his ministerial duty of sending a certificate of registration to the partnership and had listed it in the register of limited partnerships did not change the fact that the partnership was not validly registered.
Trecap relied on the decision by Ambrose J in Re Cotton Crops Pty Ltd [1986] 2 Qd R 328 which dealt with the Mercantile Act 1867 (Qld), the predecessor to the Partnership Act1891 (Qld). Section 55 of that act required all partners forming a limited partnership to sign a certificate containing specified matters, including the names and places of residence of all partners, distinguishing the general partners from the limited partners (called special partners), the amount of capital which each partner had contributed and the amount, if any, contributed by the general partners.
Section 58 required a copy of the certificate to be published in the Government Gazette and in some newspaper nearest to the intended principal place of business of the limited partnership and specified that in the absence of such publication the partnership would be deemed to be a general partnership. Section 57 provided that a limited partnership was not formed until the certificate had been acknowledged by each partner before a justice of the peace and registered in a specified office.
The certificate signed pursuant to s 55 was incorrect in that the intended place of principal business was not Brisbane, but either Moree or Tamworth and the copy of the certificate was published in a newspaper circulated in Brisbane, but not in a newspaper nearest to Moree or Tamworth. The published certificate also did not contain details of the places of residence of any of the partners, whether general or limited, nor the amount of capital which each limited partner had contributed. Ambrose J held that s 58 would have been complied with if all the 'matters of substance' contained in the certificate had been published. However, the matters omitted were matters of substance.
Trecap relied on the finding by Ambrose J that the intent of the legislation was that persons seeking to derive the significant benefit of participation in a limited partnership had to comply strictly with the statutory requirements to achieve that result. The provisions of the Mercantile Act 1867 (Qld) allowed limited partners to limit their liability to a specified capital contribution and to deviate from the general rules of partnership, but the intention of the legislature was clearly that the partners had to publish in the Government Gazette and in a newspaper nearest to the principal place of business the information contained in the certificate.
Ambrose J noted that it was important and fundamental that the amount of capital contributed by the limited partners be made public. There was also a breach of s 57, because each of the partners did not personally acknowledge the information in the certificate before a justice of the peace. Accordingly, it was held that the limited partnership had not been validly registered.
Counsel for Trecap submitted that the finding that the intent of the legislation was that persons seeking to derive the significant benefit of participation in a limited partnership had to comply strictly with the statutory requirements was equally applicable to the Act.
Counsel for Trecap further submitted that the provisions of s 16(2) of the Act did not bestow any validity to an ineffective registration of a limited partnership. The provision that a certificate of registration could be received in evidence in all legal proceedings merely meant that it could be tendered without the registrar having to be called but that it was not proof that the limited partnership had been validly registered.
At the end of the hearing of this application counsel for Trecap requested to file supplementary submissions on the issue whether the registration of the limited partnership was valid if the court were to accept that the registrar had a discretion. Counsel for Trecap emphasised that counsel for SPNZT had only referred to s 50(1) of the Interpretation Act, which deals with a person empowered to grant any registration having a discretion to do so, during oral submissions. Consequently both parties were given the opportunity to file further submissions on this issue.
The supplementary written submissions provided by Trecap did not deal directly with the question whether the registrar had a discretion to register the limited partnership. Counsel relied on the statements by the majority in Project Blue Sky that there was little utility in trying to determine whether a statutory power was obligatory or discretionary and that the more useful test was to ask whether the legislature intended that the act done in breach of the provision should be invalid.
The supplementary submissions went beyond the issue on which the parties had been given leave to file additional submissions and fleshed out arguments in support of the original contention that registration was effected by the provision of the statement signed by the partners and that registration was not valid unless s 8 had been strictly complied with. I have nevertheless taken the supplementary submissions into account.
Counsel for Trecap added a number of grounds to show why the intention of the legislature was that s 8 had to be complied with strictly. Firstly, it was said that the particulars required by s 8 were not numerous or onerous and were within the knowledge of the partners who made the application. If any particulars were unknown at the time of the application, such as the intended place of business, an 'interim' address could be provided which could be changed at a subsequent stage.
Secondly, counsel relied on s 9(1) of the Act which provides that if during the continuance of a limited partnership any change occurs in the particulars required by s 8, a statement signed by the limited partnership specifying the nature of the change shall be sent by post or delivered to the registrar within seven days. Section 9(2) provides that upon default in compliance with this section, each general partner shall be liable for a fine after summary conviction. Counsel for Trecap submitted that this section emphasised the importance of all the particulars being supplied to the registrar and being available for inspection by the public.
Thirdly, counsel relied on s 16(1) of the Act which provides that any person may inspect the statements filed by the registrar and may require a certificate of the registration of a limited partnership or a copy of a registered statement upon payment of a fee. Counsel for Trecap submitted that the 'statements filed by the registrar' included any statement under s 9, advising of a change in the particulars, and that the ability of the public to inspect any statement filed under s 8 or s 9 again indicated the importance of the particulars being complete and correct. Counsel submitted that the utility of allowing the public an inspection of the statements would be significantly curtailed, if an incomplete statement could be registered by the registrar.
Fourthly, counsel submitted that the particulars regarding the general nature of the business and principal place of business omitted from the statement filed by the partners were important particulars which the public should be able to ascertain.
Fifthly, counsel for Trecap submitted that it was not unreasonable to require strict compliance with s 8 as the only party suffering a detriment upon the registration being invalid would be the limited partner in whose capacity it had been in the first place to provide all necessary particulars.
Counsel also relied on the Second Reading speech in respect of the Bill preceding the Act in which the operation of a limited partnership was explained and it was said that such partnerships would be properly registered so that anyone might be in the position to know in what way these partnerships existed and to what extent any parties were interested in the venture. The registration would supply 'information of every character that is requisite', and if any change occurred, that had to be notified to the registrar and be recorded.
Counsel submitted that full and public disclosure of the requisite information was intended and that where this had not occurred the legislature intended that the registration be invalid.
Counsel for Trecap reiterated the argument that the registrar did not have a discretion, as the Act did not provide for any such discretion and did not specify any consequences for him wrongly issuing a certificate.
SPNZT filed supplementary submissions in reply to those filed by Trecap. These submissions also did not deal with the issue whether the registrar has a discretion, but focused on the test in Project Blue Sky with regard to whether the legislative purpose of the Act was to invalidate the registration because it did not comply with the pre‑conditions.
Counsel for SPNZT pointed out that public inconvenience was a significant factor where maintenance of a public record was concerned. If non‑compliance with a particular required by s 8 would render registration of a limited partnership invalid, the public record would be unreliable and members of the public who had relied on the accuracy of that record would have been misled. On the other hand, Trecap would not be prejudiced or deprived of any right if the registration was held to be valid, because it knew all along about the existence of the limited partnership and was merely hoping to gain a windfall by having the registration declared invalid.
Counsel submitted that any information that was not available at the time of registration, such as the address of the principal place of business, could be supplemented at a later stage as contemplated by s 9.

Findings

It has been made clear by the High Court in Project Blue Sky that the primary object in construing the relevant provisions of a statute is to determine the intention of the legislature which is to be gleaned from the language of the provision, its context in relation to other provisions, and the general purpose and policy of the statute. The majority held the following in this regard at [69] and [78]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
…
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. … (footnotes omitted)
It may be helpful to start by identifying the general purpose of the Act and its object. The preamble to the Act states that it is an act to establish limited partnerships.
Section 4 provides that after the commencement of the Act limited partnerships may be formed in the manner and subject to the conditions provided in the Act. Section 4(2) makes it clear that a limited partnership must consist of one or more general partners who shall be liable for all debts and obligations of the firm and one or more limited partners who shall at the time of entering into the partnership contribute, or undertake to contribute, a fixed sum or property valued at a stated amount which shall be applicable to the payments of debts and obligations of the firm, but shall otherwise not be liable for the debts or obligations of the firm. Section 4(3) further provides that a limited partner shall not be entitled during the continuance of the partnership to draw out or receive back any part of his contribution and if he does so he shall be liable for the debts and obligations of the firm up to the amount so drawn out.
Section 5 provides that a limited partnership must be registered in accordance with the provisions of the Act and in default thereof shall be deemed to be a general partnership and every limited partner shall be deemed to be a general partner.
The law applying to a general partnership is well established. Pursuant to s 16 of the Partnership Act 1895 (WA) every partner in a firm is liable, jointly with the other partners, for all debts and obligations of the firm incurred while he is a partner.
Section 6 of the Act imposes a prohibition on a limited partner taking part in the management of the partnership business and specifically provides that he shall not have power to bind the firm. If a limited partner does take part in the management of the partnership business, he shall be liable for all debts and obligations of the firm incurred while he so took part in the management as though he were a general partner.
Sections 8, 13 and 14 deal with the process of registration of a limited partnership. Section 16(1) allows any member of the public to inspect the statements filed by the registrar and to request a copy of the certificate of registration and a copy of any registered statement.
Section 12 makes it a crime for any partner to sign, send or deliver for purposes of registration under the Act any false statement known by him to be false.
These sections make it clear that the purpose and object of the Act is to allow for the creation of a particular vehicle to conduct business where a sleeping partner can contribute capital or property but will not take part in the management of the business. In exchange the limited partner will not be liable for any debts or obligations of the firm beyond the capital contribution or value of the property. The creation of such a vehicle to conduct business is clearly for the benefit of the partners. The general partners gain the benefit of a financial contribution by a partner who does not want to be involved in running the business and the limited partner has the benefit of knowing that his exposure for debts and obligations of the firm is limited.
However, the purpose and object of the Act is also to provide for a registration process which gives certainty with regard to whether a particular partnership is a limited partnership and allows the public access to that information so that persons or other entities dealing with the limited partnership can ascertain who the limited partners are and what the extent of their capital contribution, and therefore the extent of their liability, is. It is clearly also important for the public to be able to identify the particular limited partnership and to know from what date it will be operating as such.
The purpose of the Act is therefore threefold. Firstly, to create a legal entity, ie, a limited partnership, secondly, to bring about certainty by providing for a registration process and thirdly, to allow the public access to crucial information about a limited partnership.
The next step is to consider the grammatical meaning of the provisions dealing with registration. It is apparent from reading the plain language of s 8, s 13 and s 14 that the registration process is not constituted by a single act; neither by the provision to the registrar of the statement by the partners, nor by the registrar exercising a discretion to register the limited partnership nor by the registrar issuing a certificate. These sections clearly indicate that registration of a limited partnership occurs as a result of a four step procedure which involves the provision of a statement by the partners, the registrar making a decision to accept the statement, the registrar placing the limited partnership on the register and the registrar issuing a certificate of registration to the limited partnership.
With due respect to Lindley and Banks on Partnership, I do not agree that the intention of the legislature was that the registration process would be complete as soon as the prescribed statement had reached the registrar. Taking into account the second purpose of the Act, namely certainty with regard to which firms are limited partnerships, it could not have been the intention of the legislature that the registration of a limited partnership was to be fully operational once the partners had sent by post or delivered to the registrar the statement required under s 8.
Section 75 of the Interpretation Act provides that where any Act requires a document to be served by post or be send, service shall be deemed to be effected by properly addressing and posting the document as a letter and, unless the contrary was proven, to have been effected at the time when the letter would have been delivered in the ordinary course of post.
If the submission by counsel for Trecap was upheld and the registration of a limited partnership was completed after merely sending the statement to the registrar, this could lead to situations where the registrar never received the item in the post, never entered the limited partnership into the register and never issued a certificate. Such an interpretation would be contrary to the second purpose of the Act, being certainty, and also contrary to the third purpose, providing the public with access to information about limited partnerships.
The New Shorter Oxford English Dictionary, defines the verb 'effect' as to 'bring about (an event or result; accomplish) an intention or desire'. However, this could connote the process of bringing about the result or finally accomplishing it. The use of the words 'shall be effected' does not necessarily mean 'brought to finalisation'.
I am of the view that the legislature did not intend that the process of registration would be brought about and finalised by the posting or delivering of the statement to the registrar. This would undermine the important issue of certainty with regard to the registration of a limited partnership.
On the basis that the registration under the Act is a four stage process the question arises exactly what is involved in the second step, which is the registrar accepting the application or statement. It is clear that before the registrar will enter the name of the limited partnership into the register and post out a certificate of registration, he has to exercise some form of judgment as to whether the application should be accepted. At the very least he has to decide whether the statement is on the correct form. The Limited Partnerships Rules 1909 promulgated under this Act, provide for a prescribed form to be used when an application for registration of a limited partnership is made. This is the form that was completed in this case.
The registrar also has to exercise some form of judgment as to whether the form is sufficiently completed before he decides to register the limited partnership. If for instance a form containing only the name of the firm and no other particulars were to be provided, it could hardly be said that the registrar would be obliged to register the limited partnership.
It is to this extent that it could be said that the registrar has a discretion as provided for in s 51(1) of the Interpretation Act. However, s 3(1)(b) of the Interpretation Act provides that the provisions of that act apply to every other act, unless the intent and object of the other act or something in the subject or context of the other act was inconsistent with such application. The essential question therefore remains what the intention of the legislature was with regard to the extent of any discretion afforded to the registrar.
The fact that a court or an official has a 'discretion' does not necessarily mean that he or she is entitled to exercise a choice based on alternative courses of action. The concept of 'discretion' signifies a number of different legal concepts, as noted by the High Court in Norbis v Norbis (1986) 65 ALR 12, 14 where Mason and Deane JJ referred in this regard to Pattenden, The Judge, Discretion and the Criminal Trial (1982) 3 ‑ 10.
Pattenden discusses six usages of the concept 'discretion'. The first is the layman's use of that word, meaning 'with circumspection'. The second use of the word 'discretion' denotes a situation where instead of deciding a question by recourse to a fixed rule, the judge is left with a choice and is able to decide on the merits of the case which one of alternative causes of action to choose. Discretion in the third sense is described as a situation where the judge is obliged to act in a given way if the elements of a fixed rule are satisfied but the rule itself contains a standard which requires a personal assessment of the existence of circumstances. The other three usages are not relevant for purposes of this case.
Counsel for Trecap relied on the fact that s 13 of the Act provides that upon receipt of a statement the registrar 'shall' cause it to be filed, 'shall' enter it into the register and 'shall' send a certificate of registration to the limited partnership. Counsel submitted that the use of the word 'shall' indicated that the registrar's duty was obligatory and that he had no discretion. Counsel also relied on the comment in Lindley and Banks on Partnership that the registrar's act in registering the limited partnership was a ministerial act.
The word 'shall' in connection with a statutory power is generally taken to be mandatory in meaning: Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33, 40.
This is also provided for in s 56(2) of the Interpretation Act which states that where the word 'shall' is used in a written law in conferring a function, that word shall be interpreted to mean that the function must be performed.
In Re Dunsborough Districts Country Club Inc [1982] WAR 321, 329 Olney J held in relation to s 32 of the Interpretation Act 1981, which was in substantially the same terms as s 56(2), that the provisions in that section were essentially a restatement of the common law and subject to s 3 of the Interpretation Act 1981 which required a statutory provision to be interpreted in light of the intent and object of the relevant statute. Olney J held that s 32 was of no assistance in discerning the intention and object of the relevant statute.
In Accident Compensation Commission v Murphy [1988] VR 444, 447 the Victorian Full Supreme Court also pointed out in reference to s 45(2) of the Interpretation of Legislation Act 1984 (Vic), the equivalent of s 56(2), that even though a statutory provision using the word 'shall' indicated that the relevant power had to be performed, the question remained whether it was the intention of the legislature that non‑compliance with the relevant statutory requirement should lead to invalidity of the exercise of the power.
Pearce and Geddes, Statutory Interpretation in Australia, 8^th ed, [11.13] note that the legislature might not intend any adverse consequences to follow from a breach of statutory procedure. The learned authors explain that there are three possible results that could flow from a breach: nullity of the action taken by reason of any non‑compliance; substantial compliance being sufficient; or no adverse consequences flowing from the failure to follow the prescribed procedure.
I accept that the intention of the legislature was that the registrar is obliged to register a limited partnership in respect of which he receives the requisite statement of application and does not have a choice to decide which of alternative courses of action to adopt. The registrar is bound by the fixed rule that once a statement pursuant to s 8 is provided he has to register the limited partnership. However, he still exercises some limited judgment as to whether the requirements of s 8 have been met. In that sense he exercises a discretion.
However, this does not mean that his discretion is not open to scrutiny in terms of whether he did exercise his discretion in accordance with the rule. The important question remains whether the registrar's act of accepting the application form, registering the limited partnership and issuing the certificate can be said to be invalid in light of any non‑compliance by the statement with s 8 of the Act.
Counsel for Trecap submitted that if the registrar's act had some determinative role, it was invalid because the statement submitted by the partners did not comply with the requirements of s 8. Counsel for SPNZT submitted that the registrar's act was valid because he had a discretion to accept a statement which did not contain all particulars.
In Project Blue Sky [91] – [92] the majority made it clear that the question whether an act done in breach of a condition regulating the exercise of a statutory power was valid depended on whether the legislature had intended to invalidate any act that had failed to comply with the condition. The legislative intention was to be ascertained by reference to the language of the statute, the subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. There was no decisive rule and no ranking of relevant factors or categories to indicate when the legislative purpose would be to invalidate an act.
The majority also emphasised that past practices of identifying acts done in breach of an essential preliminary to the exercise of a statutory power as mandatory and acts done in breach of a procedural condition as directory should no longer be regarded as useful nor could any assistance be gained from the traditional approach that even if a condition was classified as directory, invalidity would result from non‑compliance unless there had been 'substantial compliance'.
The majority adopted the approach by the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20, 23 – 24 and summarised this as follows at [93]:
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fulwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'. (footnotes omitted)
In Tasker v Fullwood (24), the New South Wales Court of Appeal also emphasised that in determining whether the legislature intended that an act done in breach of a pre-condition be invalid, regard should be had to the nature of the pre‑condition, its place in the legislative scheme and the extent of the failure to observe its requirement.
The pre‑condition that was breached in this case was that the statement furnished by the partners did not provide the general nature of the business nor the principal place of business. However, it did contain the name of the proposed limited partnership, the fact that it was to commence immediately upon registration, the name of the general partner and its contribution in cash as well as the name of the limited partner and its contribution in cash.
As indicated earlier, the purpose of the Act was not only to allow for the operation of a limited partnership and the benefits to the partners that flowed from that, but also to provide for certainty and access by the public to relevant information. In the context of the operation of a limited partnership, the most important information was clearly that pertaining to who was a limited partner and what the extent of its capital contribution was. It would also be important for a member of the public to be able to identify the correct business. The only information provided in that regard was the name Steelpipe Australia Partnership. The particular firm could not be further identified by either the stated nature of the business nor the principal place of business.
However, the registrar had also been provided with a copy of the partnership agreement which was attached to the application. The agreement states that the business of the partnership would be the manufacture and sale of steel pipe. The agreement does not provide any principal place of business, but the application was to have the limited partnership registered under the Act and it was addressed to the Registrar of the Department of Consumer Protection in Western Australia.

The fact that attachments to an application form should be considered together with the application form was recognised in Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352; 175 ALR 548 [50] – [53] and Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513 [19] – [20] and [72].
It is not known whether in this case the registrar also filed the partnership agreement that was received together with the statement and whether a member of the public would have had access to the partnership agreement if he or she had come to inspect the statements filed by the registrar. It should be noted that s 16(1) refers to the right of any person to inspect 'the statements' filed by the registrar.
For purposes of this application it cannot be assumed that a member of the public would have had access to the limited partnership agreement. However, the registrar did have such access and he exercised his limited discretion on the basis that the information provided in the statement and attached partnership agreement was sufficient to allow the limited partnership to be registered and a certificate to be issued. The fact that a member of the public upon an inspection of the relevant statements may not have had information about the general business and place of business of the partnership needs to be taken into account when the third purpose of the Act, namely access by the public to the relevant information, is considered. On the other hand, the fact that the registrar did have access to that information and exercised his limited discretion or judgment to accept the application form for the registration of the limited partnership on the basis of all the information supplied to him, is a factor that needs to be taken into account when the second purpose of the act, namely the provision of certainty, is considered.
Regard should also be had to s 74 of the Interpretation Act, which provides as follows:

74. Prescribed forms, certain deviations do not invalidate

Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used.

In Swann v The Queen [1999] WASCA 106 this section was applied and led to the conclusion that a form in the nature of a statutory declaration was valid even though it did not contain the words 'do solemnly and sincerely declare that …'. Malcolm CJ held at [30] that the omission of the relevant words did not materially affect the substance of the form and was not likely to mislead. Malcolm CJ also referred to the comment by Sim J in Rex v Haynes [1916] NZLR 407, 419 that s 74 was intended to cover cases where an attempt had been made to follow the prescribed form, but not to meet cases where that form had been deliberately ignored and something different had been substituted.
In my view the failure to state the general nature of the business and the principal place of business in the application did not materially affect the substance of the information supplied nor was it likely to mislead. It is not the case that wrong information was provided. If a member of the public had any doubt as to whether it was looking at the partnership it was interested in, further information could have been sought from the registrar who would have been able to inform the member of the public of the nature of the business stated in the partnership agreement. It may also be presumed that only somebody who already had some contact with the particular partnership would be interested to find out who the limited partners were and what the extent of their contribution was.
There is no provision in the Act or the regulations promulgated under the Act requiring any firm that operates as a limited partnership to state this on correspondence or invoices.
Another important matter to consider in determining whether the legislature intended the Act to have been invalid in light of the particular omission is the consequences for the parties of holding void the act. This was highlighted in Project Blue Sky at [91]. The consequences of holding the registration of the limited partnership in this case invalid would clearly have serious repercussions for the limited partner. As indicated earlier, the main purpose of the Act is to provide a business structure whereby a partner can limit his liability for debts and obligations. This purpose would clearly be undermined if the discovery of an omission in the application form could lead to some retrospective determination that the registration of the limited partnership had been invalid all along.
If a registration which had occurred years earlier was held to be invalid by reason of the discovery of an omission in the application form this would also be contrary to the second purpose of the Act, namely to provide certainty with regard to the status of a limited partnership and the exposure of the limited partner to liability for debts and obligations of the partnership.
This does not mean, of course, that an omission which was misleading or material could not be held to have been of a nature which the legislature intended would result in the act of registration being void. The intention of the legislature with regard to the consequences of non‑compliance needs to be assessed in respect of the particular failure to comply with a procedural obligation: SZOFE v Minister for Immigration and Citizenship (2010) 185 FLR 129; (2010) 115 ALD 519 [67].
This leaves the third purpose of the Act, namely that the public should have the ability to ascertain relevant information regarding a limited partnership and not be misled. In this case the public could not have been misled with regard to the material aspects of the limited partnership, namely which partnership had been registered as a limited partnership, who the limited partner was and what the extent of its capital contribution was. Trecap is not alleging that it was misled in any way. In this case Trecap is merely hoping to gain a windfall by pointing to the fact that certain particulars had been omitted in the application form filed in 2004.
Both counsel relied on the Second Reading speech delivered on 27 November 1908 in respect of the Bill preceding the Act.
Section 19(1) of the Interpretation Act provides that in the interpretation of a provision of a written law consideration may be given to material not forming part of the written law but being capable of assisting in the ascertainment of the meaning of the provision, but essentially only to confirm that the meaning of the provision is the ordinary meaning conveyed by the text or to determine the meaning where a provision is ambiguous or obscure.
Section 19(1) needs to be read subject to s 3(1) of the Act which provides that the provisions of the Interpretation Act do not apply if the intent and object of the act to be interpreted or something in the subject or context of that act is inconsistent with the application of the relevant provision of the Interpretation Act.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 [47] the High Court explained that extrinsic materials cannot be relied on to displace the clear meaning of the text of the provision to be interpreted and that the meaning of the text may require consideration of the context and the general purpose and policy of the relevant provision.
There is nothing in the Second Reading speech which assists or adds to the matters which are already apparent from a reading of the grammatical text of the Act and a consideration of its general purpose and objects. The Second Reading speech merely deals with the reason why limited partnerships should be created and states that machinery is to be provided so that limited partnerships may be placed on a 'proper basis' and may be properly registered so that 'anyone may be in the position to know in what way they exist, and to what extent any parties … are interested in that venture'. It is also noted that the registration would supply 'information of every character that is requisite'.
These statements merely support what can be gleaned from the text of the Act itself.
The points raised by counsel for Trecap in support of the argument that the legislature intended the registration of a limited partnership to be invalid if there was not strict compliance with the requirements of s 8 are not persuasive when the purpose of the Act, the content of the statement filed by the partners in the total context of the registration process and the nature of the particular omission are taken into account.
The fact that the Act is to the benefit of the limited partner does not mean in itself that if the partner omits some particular in the statement he is no longer entitled to have the benefit of the registration of the limited partnership. Further, although the omission of certain particulars in the statement does have an impact on the utility of inspection by the public of the register and the statements, the extent to which the omission affects the ability of the public to be adequately informed of the material detail needs to be considered.
I do not agree with the suggestion made by counsel for Trecap that the partners should have put some 'interim' address down as the place of business and have changed it subsequently under the provisions of s 9 once the firm had commenced business. Placing a fictional address on the statement as being the principal place of business may have exposed the partners to committing a crime under s 12, because they were providing a false statement known by them to be false. At best, it could be said that the partners should have placed words to the effect of 'as yet unknown' next to the relevant question. Such an entry would not have provided any greater assistance to the public than leaving it blank.
Trecap's argument that if the omission of some particulars is held not to lead to invalidity, it will be difficult to know where to draw the line, is not persuasive because each breach of a statutory requirement needs to be considered in light of the nature of the breach and the particular consequences that would flow from holding the registration invalid.
I am also of the view that the decision in Re Cotton Crops Pty Ltd does not provide much assistance to the argument presented by Trecap. Firstly, the case dealt with different provisions imposing different requirements for the valid registration of a limited partnership. Secondly, Ambrose J did make the finding that s 58, dealing with the requirements for a published certificate, would have been complied with if all matters of substance had been contained in the certificate. His Honour therefore essentially found that substantial compliance would have been sufficient. However, the particulars missing from the published certificate were fundamental, as the certificate did not disclose the places of residence of any of the partners, but more importantly, also not the amount of capital which the limited partners had contributed. This is clearly a fundamental particular that the public should know about.
I am of the view that not too much can be made of the statement by Ambrose J that the intent of the legislation was that persons seeking to derive the significant benefits of participation in a limited partnership had to comply strictly with the statutory requirements to achieve that result. That statement was watered down by the earlier comment that substantial compliance with s 58 would have been sufficient.
One aspect of Trecap's submissions with which I agree is that the mere fact that a certificate of registration has been issued is not conclusive proof that the registration was valid. So much was in any event conceded by counsel for SPNZT at the hearing.
Section 16(2) of the Act provides that a certificate of registration may be received as evidence in all civil proceedings. The effect of this section is merely that the registrar does not have to give evidence that the particular partnership was registered as a limited partnership.
Counsel for Trecap submitted that s 16(2) does not state that a certificate of registration produced in a civil proceeding was evidence of the matters set out in the certificate. However, a certificate of registration would qualify as a business record under s 79B of the Evidence Act 1906 and pursuant to s 79C it would be admissible as evidence of the facts stated in the certificate.
This means that upon production of a certificate of registration at a civil hearing a court could accept a certificate of registration as evidence that the registrar did register the particular partnership as a limited partnership. This, of course, still begs the question whether the registrar's act of placing the limited partnership on the register and sending a certificate of registration to the limited partnership was a valid act.
The production of a certificate of registration can therefore be only prima facie proof of a valid registration.

Collateral challenge

One issue that was not raised by either party is whether Trecap is entitled to challenge the validity of the registration of the limited partnership collaterally, that is, in the course of proceedings which were not primarily launched to test the validity of the registration and to which the registrar has not been made a party. The challenge to the validity of the registration of the limited partnership is collateral, because the focus of Trecap's action is recovery of outstanding debts under the lease. It is only in meeting SPNZT's allegation that it is the limited partner of a limited partnership that Trecap has challenged the validity of the registration process and in this way an administrative law question has become the main issue in the case.
Principles of administrative law, such as whether Trecap would have any standing to make a direct challenge, in other words to apply for a declaration that the registration of the limited partnership was invalid, and the impact of Trecap's acquiescence to the limited partnership having been registered since 2004 would be relevant to considering the availability of a collateral challenge. Another issue is whether the intention of the legislature is that a collateral challenge to the validity of the registration should be permitted: Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 [93].
On the other hand, it is generally accepted that a collateral challenge is available when the order or act was bad on its face or unlawful: Posner v Collector for Inter‑State Destitute Persons (Victoria) (1946) 74 CLR 461, 483; Muir v Morton [1984] WAR 254, 256.
Because the matter of the availability of a collateral challenge was not raised or argued in this application, I will presume in favour of Trecap, without deciding this issue, that a collateral challenge is available on the basis that on the face of the statement provided by the partners it was incomplete. However, even if a collateral challenge could be made, it would not be successful for the reasons outlined.

Conclusion

I have come to the conclusion that although the certificate of registration is not conclusive proof that the registration of the limited partnership was valid, none of the matters raised by Trecap in its two sets of written submissions or in oral argument has persuaded me that the registration of the limited partnership was invalid. Having identified the general purpose and objects of the Act and considered the particular non‑compliance with the requirements in s 8, and the importance of that in the overall scheme of registration provided for by the Act, it cannot be said that the intention of the legislature was that in this particular case the registration should be invalid.
As I have essentially decided this issue of law in favour of SPNZT, there is no prospect that Trecap will have an arguable case on this issue even if the matter was to go to trial. Counsel for Trecap accepted that if the registration of Steelpipe Australia Partnership was valid, Trecap did not have any claim against SPNZT under the lease.
SPNZT has therefore shown that it has a good, conclusive defence based on the valid registration of the limited partnership.
The application for summary judgment by SPNZT is granted.