Ss Group (Aus) Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 788

Federal Circuit and Family Court of Australia

(DIVISION 2)

SS Group (Aus) Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 788

File number:

MLG 857 of 2022

Judgment of:

JUDGE LADHAMS

Date of judgment:

21 September 2022

Catchwords:

PRACTICE AND PROCEDURE – application for judicial review of decision of Administrative Appeals Tribunal – where applicant is a deregistered corporation – where applicant ceased to exist as a legal entity pursuant to s 601AD(1) of the Corporations Act 2001 (Cth) – application struck out.

Legislation:

Corporations Act 2001 (Cth) s 601AD(1)

Migration Act 1958 (Cth) s 476

Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)

Cases cited:

Apostolou (as Trustee of the Vasiliou Family Trust) v Marchesi [2009] FCA 66

Stergiou v Citibank Savings Ltd [2005] ACTCA 15

Division:

Division 2 General Federal Law

Number of paragraphs:

10

Date of hearing:

21 September 2022

Applicant:

No appearance for or on behalf of the applicant

Counsel for the First Respondent:

Ms B Roscoe

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Mills Oakley Lawyers

ORDERS

MLG 857 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SS GROUP (AUS) PTY LTD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LADHAMS
DATE OF ORDER:	21 September 2022

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.The application filed on 14 April 2022 is struck out.

3.There is no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)

Judge Ladhams:

1. The application before the Court is an application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 April 2022. The Tribunal found that it did not have jurisdiction in the matter because the applicant was a company which had been deregistered on 4 February 2022 and ceased to exist as a legal entity, pursuant to s 601AD(1) of the Corporations Act 2001 (Cth) (Corporations Act). The application for judicial review was filed on 14 April 2022 with the company named as the applicant.

2. The person who purported to file the application on behalf of the company was Mr Ahmed, who described himself in an affidavit accompanying the application as a director of the company. The matter has been referred to me at an early stage of the proceeding for judicial case management and came before the Court on 21 September 2022. At the listing on 21 September 2022, Ms Roscoe appeared for the Minister. There was no appearance for or on behalf of the applicant company, which is perhaps not surprising in circumstances where the company does not exist as a legal person.

3. There was also no appearance by Mr Ahmed. My associates attempted to contact Mr Ahmed three times by telephone on the phone number he provided in the application that he purportedly filed on behalf of the company. There was no answer to those phone calls. I also had the matter called three times outside the courtroom and there was no appearance by Mr Ahmed. I am satisfied that Mr Ahmed, as the contact person for the purported applicant in this matter, was properly notified of the listing on 21 September 2022. He was notified of this listing by email, sent to the email address in the application purportedly filed on behalf of the company, with emails sent on 12 September 2022 and 19 September 2022 confirming the listing for 21 September 2022.

4. At the listing on 21 September 2022, I explained to Ms Roscoe that the application had been referred for judicial case management and that I had concerns that the proceeding may be a nullity because the applicant company appears to have been deregistered and the applicant, therefore, does not exist. This is the effect of s 601AD(1) of the Corporations Act, which provides that ‘[a] company ceases to exist on deregistration’. Ms Roscoe also filed an affidavit affirmed by her on 21 September 2022 which annexed an ASIC extract that confirmed that the company had been deregistered on 4 February 2022 and remains deregistered as at 21 September 2022.

5. In circumstances where there was no appearance for or on behalf of the applicant company at the listing on 21 September 2022, the Minister initially sought that the application be dismissed for non-appearance, pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). While that may be one way in which the matter could be resolved, it seems to me that the more appropriate course, where the applicant does not in fact exist, may be to strike out the application. After taking instructions, Ms Roscoe confirmed that the Minister was content to seek that the matter be struck out rather than dismissed. I consider that it is appropriate to make an order that the application filed on 14 April 2022 be struck out.

6. As previously indicated, the evidence before the Court shows that the applicant was deregistered on 4 February 2022 and remains deregistered at the date of the listing. The applicant was deregistered at the time the application to this Court was filed. An action that is commenced in the name of a non-existent company or entity is a nullity: see, for example, Apostolou (as Trustee of the Vasiliou Family Trust) v Marchesi [2009] FCA 66 at [13]; Stergiou v Citibank Savings Ltd [2005] ACTCA 15 at [27].

7. I am also satisfied that, despite the non-appearance of Mr Ahmed at the listing today or of any person for or on behalf of the company, the company has been properly put on notice that the proceeding may be incompetent. The Minister filed a response on 6 June 2022 and in that response, the Minister has asserted that the application filed on 14 April 2022 is incompetent and that no party has standing to commence proceedings in this Court, as the applicant company was deregistered on 4 February 2022.

8. In circumstances where there is no applicant who exists in this proceeding and where the person who purported to file the application on behalf of the applicant has been put on notice that the proceeding is asserted to be incompetent, I am satisfied that it is appropriate to make an order striking out the application today, without taking any further steps to communicate with Mr Ahmed or to give Mr Ahmed, as a person who is not a party to this proceeding, an opportunity to be heard.

9. In circumstances where the applicant does not in fact exist, it is not appropriate for me to make any costs order against the applicant in this proceeding. After taking instructions, Ms Roscoe has confirmed that the Minister is content that there be no order as to costs.

10. There will, therefore, be the following orders in this matter:

    (1)The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

    (2)The application filed on 14 April 2022 is struck out.

    (3)There is no order as to costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Ladhams.

Associate:

Dated:       30 September 2022