Tong Ling Entertainment Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 533

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Tong Ling Entertainment Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 533

File number(s):

SYG 676 of 2020

Judgment of:

JUDGE CAMERON

Date of judgment:

24 May 2024

Catchwords:

PRACTICE AND PROCEDURE – Deregistration of corporate party – abatement of proceeding – application no longer competent – dismissal.  

Legislation:

Corporations Act 2001 (Cth) s 601AD

Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 (Cth) rr 9.04, 27.06

Federal Court Rules 2011 (Cth)

Cases cited:

Tyrrell v Tyrrells Building Consultancy Pty Ltd (2008) 66 ACSR 134

Scruby v Hoggan [1954] 55 SR (NSW) 2

Felton v Oser (1969) 72 SR (NSW) 24

In re Seaford, decd [1968] 1 P 53

Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742

RFZD v Commissioner of Taxation [2023] FCA 324

CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534

National Mutual Life Association of Australasia Ltd v Reynolds [2000] FCA 267

Division:

General

Number of paragraphs:

14

Date of hearing:

24 May 2024

Place:

Sydney

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Solicitor for the First Respondent:

Mills Oakley

Solicitor for the Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 676 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

TONG LING ENTERTAINMENT PTY LTD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	24 MAY 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The name of the first respondent in the court record be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

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

Judge Cameron

INTRODUCTION

1. This proceeding for judicial review was commenced on 18 March 2020 and seeks: 

   … an order that the decision made by the Administrative Appeals Tribunal on 14 February 2020 to affirm the decision by the first respondent to refuse to grant the applicant the employer nomination (in the direct entry stream) (visas) be quashed. 

2. The matter comes before the Court at this point because the evidence indicates, and I accept, that the applicant was deregistered on 11 March 2022, approximately two years after the proceeding was commenced. I note in that connection that the Australian Business Number recorded in the company summary annexed to the affidavit of Liam Dennis affirmed 14 May 2024 corresponds with the business registration ID number reproduced at page one of the Court Book, which is exhibit R1. Pursuant to s.601AD of the Corporations Act 2001 (Cth), the effect of the deregistration of the applicant is that it ceased to exist at that point and no longer has a legal persona. In Tyrrell v Tyrrells Building Consultancy Pty Ltd (2008) 66 ACSR 134, Austin J stated:

   Since the company is now deregistered, it has no legal personality and therefore cannot be a defendant or other party to the District Court proceedings, unless it is first reinstated. (at 137 [14])

   It was implicit in that case that although the proceeding as against the deregistered company could not proceed while it was deregistered, it was not at a complete end because it would revive if the company were reinstated:  Tyrrell v Tyrrells Building Consultancy at 142 [36].

3. Therefore, although the applicant no longer exists, the proceeding does and the question is:  what should be done in such a circumstance?  The Minister seeks dismissal of the matter by reason of the applicant's deregistration.

4. I record that the matter was called outside the Court at 11:00am when it was listed, and then again later in the morning following an adjournment.  There was no appearance on behalf of the nominal applicant.  Notwithstanding the absence of the applicant today, I do not consider it inappropriate to deal with the matter.  I note in that regard that the parties were advised of today’s listing by emails from the Court dated 16 May 2024 and 19 May 2024.  The second of those stated:

   Further to the below listing notice, the parties that are to be on notice that, at the directions hearing on 24 May 2024, the Court will consider the effect on the proceeding of the deregistration of the applicant.

   Those emails were sent to the applicant's email address for service identified in the initiating application and in its affidavit in support. I am also aware of correspondence between the parties and the Court suggesting that someone associated with the nominal applicant was aware of today.  Notices of discontinuance have been lodged with the Court but not accepted for filing. I am satisfied that the nominal applicant, or at least the person who commenced the proceeding on its behalf, was aware that the matter was in Court today. 

5. The situation involving the applicant is akin to the one at common law when a party dies and a proceeding abates in consequence.  The significance of the abatement of a proceeding is that no further step can be taken in the proceeding.  In Scruby v Hoggan [1954] 55 SR (NSW) 2, Roper CJ in Eq said, Street CJ and Brereton J agreeing:

   It is clear, I think, that the proceedings did abate on the death of the informant.  ….  A suit or proceeding is said to have abated where it becomes defective as to parties.  The effect of the abatement is that no further steps may be taken in it unless and until it is revived by an order of the Court, if such an order can be obtained.  But the abatement, although it suspends proceedings does not put an end to them. (at 6)

6. In Felton v Oser (1969) 72 SR (NSW) 24 the New South Wales Court of Appeal said:

   It is sufficient to say that the death of a party will cause the abatement of a suit and that no further step can be taken in that suit, so far as it relates to the relief sought by or claimed against the deceased party, unless and until the suit is revived.  (at 29)

   Their Honours also stated that it was unnecessary to consider in detail the effect of abatement by reason of the death of the party or the power of a court to make an order in a suit which has not been revived at the suit of or against the legal personal representatives of the deceased party. That appears to have been a response to a submission made by Mr Handley appearing for the appellant to the effect that In re Seaford, decd [1968] 1 P 53, was authority for the rule that a suit abates on death and there is therefore no power to make final orders.

7. In Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 the plaintiff was deregistered some time after the commencement of a proceeding in the District Court of New South Wales and the proceeding was dismissed on account of that. Of that Spigelman CJ said, Priestley and Sheller JJA agreeing:

   The trial judge applied the reasoning in United Service Insurance Co Ltd (In Liq) v Lang (1935) 35 SR (NSW) 487 especially at 496-497; (1935) 52 WN(NSW) 169 at 171. That authority is plainly applicable in the instant case. At the time that the matter was before his Honour the plaintiff did not exist and, at the very least, it was appropriate for the court to take no further steps. What happened in United Service Insurance Co was described by Sir Frederick Jordan (at 497; 171)

   “It having been ascertained that there is no appellant before us, we can do nothing except refrain from proceeding any further.”

   …

   It is not necessary to decide whether his Honour was correct in dismissing the proceedings rather than striking them out. However, the power to dismiss under Pt 18, r 3 of the District Court Rules 1973 would not seem to be applicable.  The power under Pt 26, r 5B to strike out would have been plainly available to his Honour. (at 745-746)

8. Notwithstanding questions as to what common law power this Court might have to take any further step once a proceeding abates by reason of the deregistration of a company, the Court nevertheless is empowered by its Rules to consider whether an application for judicial review is competent and to dismiss it if it is not.  As I said earlier, the Minister seeks dismissal of the matter by reason of the applicant's deregistration.  He has suggested a number of bases for such a step and the one that I find most compelling is that the application is no longer competent. 

9. Rule 27.06 of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 (Cth) (Rules) provides:

   27.06   Notice of objection to competency

   (1)A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency, in accordance with the approved form, that briefly, but specifically, states the grounds of the objection.

   (2)The applicant carries the burden of establishing the competency of an application.

   (3)A respondent may apply to the Court for the question of competency to be heard and determined before the application is heard.

   (4)If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the application.

   (5)If the Court decides that an application is not competent, the application is dismissed.

10. As an initial matter I note that no notice of objection to competency under r.27.06 has been filed in this case. Nonetheless, the parties were advised of this listing and of the issue to be considered.  In the circumstances, I dispense with the requirement that a notice of objection to competency be filed and served. 

11. Rule 27.06 has an analogue in the Federal Court Rules 2011 (Cth) which was considered by Feutrill J in RFZD v Commissioner of Taxation [2023] FCA 324. In that case, an appeal from a decision of the Administrative Appeals Tribunal had been commenced after the deregistration of the nominal applicant. His Honour said in that connection:

    There is ample authority for the proposition that proceedings commenced by a company that has been deregistered or in respect of other equivalent concepts such as dissolution under earlier or equivalent legislative schemes for corporate regulation cannot be maintained.  (at [9])

    Having referred earlier in his reasons to CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534 his Honour went on to say, not distinguishing between a proceeding that had been incompetent from the outset from one that had become incompetent by reason of the subsequent deregistration of a party:

    The appeal is manifestly not competent because the nominal applicant has been deregistered, does not exist and is not a legal person. (at [15])

12. In CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd, the Northern Territory Court of Appeal had stated that an interlocutory application CTG Pty Ltd made to the trial judge had not been competent because CTG Pty Ltd had been deregistered in the period between the commencement of the proceeding and the making of the interlocutory application.  The Court of Appeal said:

    It is appropriate, therefore, to order that the order granting leave to CTG Pty Ltd to amend its defence be set aside on the ground that CTG Pty Ltd was not competent to make the application for leave to amend the defence, (at 535)

    That decision was cited with approval by Spender J in National Mutual Life Association of Australasia Ltd v Reynolds [2000] FCA 267, a case in which an applicant corporation had become deregistered after the commencement of a proceeding.

13. The Rules provide a mechanism to deal with a judicial review proceeding which is no longer competent by reason of the deregistration of a corporate party.  Feutrill J accepted that an objection to competency was an appropriate means by which to deal with a proceeding in which a nominal party did not exist.  I think in all the circumstances, this proceeding should be dismissed because the deregistration of the applicant company meant that the proceeding was not competent from that point.

14. Amongst the other bases for dismissal advanced by the Minister was the submission that the initiating application filed on 18 March 2020 was incompetent by reason that it had not been commenced by a lawyer acting on behalf of the applicant.  I accept that to have been the case and that, contrary to r.9.04 of the Rules, no leave was granted by the Court for the proceeding to be commenced without the assistance of a lawyer.  The Minister also submitted that the matter is liable to be dismissed by reason of the applicant’s non-attendance.  Although the matter of real substance is that the nominal applicant no longer exists, those other matters provide additional justification for the dismissal. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       12 June 2024