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Federal Court of Australia |
Service of documents - address for service - whether service can be effected on a company at a place other than (a) the nominated address for service, and (b) the company's registered office - s.220 and Part 5.4 of the Corporations Law - procedural irregularity - the power of the Court to validate an irregularity or defect in service.
Corporations Law - s.109X; ss.217-220; Part 5.4; ss.459-459T; s.1322
David Grant & Co. Pty Limited v. Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265
Montarello v Berkman Capital, Supreme Court of Western Australia, 18 June 1996, unreported
Vignes v. Stephen Smith & Co. Ltd. (1909) 53 S.J. 716
ATCO Industries (Aust.) Pty Limited v. Ancla Maritima S.A. (1984) 35 SASR 408.
CFC Corporation Pty Limited v. Lanier Australia Pty Limited (1993) 11 ACSR 772
Racecourse Totalizators Pty Limited v. Hartley Cyber Engineering Pty Limited (1989) 15 ACLR 457
Players Pty Limited v. Interior Projects (1996) 14 ACLC 918
Re J. & E. Holdings Pty Limited and The Corporations Law (1995) 36 NSWLR 541
Howship Holdings Pty Limited v Leslie (No.1) [1996] NSWSC 314; (1996) 21 ACSR 440
THE ROCHESTER COMMUNICATIONS GROUP PTY LIMITED v. LADER PTY LIMITED
No. NG587 of 1996
BEAUMONT, WHITLAM AND MOORE JJ.
SYDNEY
26 MARCH 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG587 of 1996
)
GENERAL DIVISION )
BETWEEN: THE ROCHESTER COMMUNICATIONS
GROUP PTY LIMITED
Appellant
AND: LADER PTY LIMITED
Respondent
CORAM: BEAUMONT, WHITLAM AND MOORE JJ.
DATE: 26 MARCH 1997
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG587 of 1996
)
GENERAL DIVISION )
BETWEEN: THE ROCHESTER COMMUNICATIONS
GROUP PTY LIMITED
Appellant
AND: LADER PTY LIMITED
Respondent
CORAM: BEAUMONT, WHITLAM AND MOORE JJ.
DATE: 26 MARCH 1997
BEAUMONT J.
INTRODUCTION
The question in this appeal is whether an application, for an order setting aside a statutory demand upon a company by a creditor under the Corporations Law ("the Law"), was validly served upon the creditor. At first instance, a Judge of the Court (Sheppard J.) held that the application was not so served and dismissed the application accordingly. The company now appeals from that order.
In order to understand the context in which the issues in the appeal arise, it will first be necessary to explain the scheme of the relevant legislation.
THE LEGISLATIVE SCHEME
Part 5.4 of the Law (ss.459-459T) deals with "Winding Up in Insolvency". By s.459A, on an application under s.459P, the Court may order that an insolvent company be wound up in insolvency. By s.459C(2), the Court must presume that the company is insolvent if, during or after the three months ending on the day when the application was made, inter alia, the company failed (as defined by s.459F) to comply with a statutory demand.
By s.459E(1), a person may serve on a company a demand relating to a debt or debts of the kind there specified. By s.459E(2), the demand (i) must specify the debt or debts and its or their amounts; (ii) must require the company to pay the amount of the debt or debts, or to secure or compound for it or them to the creditor's reasonable satisfaction, within 21 days after the demand is served on the company; (iii) must be in writing; (iv) must be in the prescribed form (if any); and (v) must be signed by or on behalf of the creditor.
By reg. 1.03 of the Corporations Regulations, forms are prescribed for the purposes of the relevant provisions of the Law. Form 509H is prescribed for the purposes of s.459E(2)(e). That Form provides for a creditor's statutory demand for payment of debt in which, in substance, the creditor requires payment within 21 days after service of the demand. For present purposes, it will suffice to refer to paras. 5 and 6 of the Form as follows:
"5. Section 459G of the Corporations Law provides that a company served with a demand may apply to a court having jurisdiction under the Corporations Law for an order setting the demand aside. An application must be made within 21 days after the demand is served and, within the same period: (My emphasis).
(a) an affidavit supporting the application must be filed with the court; and
(b) a copy of the application and a copy of the affidavit must be served on the person who served the demand. (My emphasis).
6. The address of the creditor for service of copies of any application and affidavit is (insert the address for service of the documents in the State or Territory in which the demand is served on the company, being, if solicitors are acting for the creditor, the address of the solicitors)."
Section 459F(1) of the Law states the circumstances in which a company is taken to have failed to comply with a demand. Section 459F(2) defines the period for compliance with a demand, either where the company applies under s.459G for an order setting aside the demand, or otherwise.
By s.459G(1) of the Law, it is provided that a company may apply to the Court for an order setting aside a statutory demand served on the company. By s.459G(2), it is provided that an application may only be made within 21 days after the demand is so served. Section 459G(3), which is of central importance for present purposes, provides that an application is made in accordance with this section "only if", within those 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
In David Grant & Co. Pty Limited v. Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 it was held that, since s.459G defines the jurisdiction of the Court by imposing a time requirement as an essential condition to the right to apply to set aside a demand, the Court's general power to extend time, which was granted by s.1322(4)(d) of the Law, did not apply to an application under s.459G. Gummow J., with the concurrence of Brennan CJ., Dawson, Gaudron and McHugh JJ., went on to say (at 279):
"No doubt, in some circumstances, the new Pt 5.4 may appear to operate harshly. But that is a consequence of the legislative scheme which has been adopted to deal with perceived defects in the pre- existing procedure in relation to notices of demand. It also may transpire that a winding up application in respect of a solvent company is threatened or made for an improper purpose which amounts to an abuse of process in the technical sense of that term, as explained in Williams v Spautz. However, in an appropriate case, injunctive relief may then be available to the company in a court of general equity jurisdiction."
Whether collateral relief, inherent or equitable, of this kind should have been granted here was not debated before the primary Judge, nor before us, and does not call for comment in this appeal.
THE PROCEEDINGS AT FIRST INSTANCE
On 8 May 1996, the appellant, The Rochester Communications Group Pty Limited ("Rochester"), filed an application under s.459G of the Law seeking an order setting aside a statutory demand ("the Demand") dated 18 April 1996 served by the respondent, Lader Pty Limited ("Lader"), upon Rochester on 18 April 1996.
The Demand, purporting to follow Form 509H, required payment of a debt of $125,000, claimed to be payable under a loan made by Lader to Rochester on 18 June 1991.
The Demand stated, in para. 6, the following:
"6. The address of the creditor for service of copies of any application and affidavit is Rosenblum & Partners [Lader's solicitors], Level 29, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000."
The registered office of Lader, at all material times, was Level 9, 210 George Street, Sydney.
In fact, however, copies of Rochester's application and supporting affidavit were not served at either of these addresses. As will be seen, they were served at an address in Macquarie Street, Sydney.
It was common ground before his Honour that Rochester's application and supporting affidavit were filed within time (i.e. within 21 days after service of the Demand). The question however remained whether the purported service of the application and supporting affidavit, in circumstances to be described below, on 8 May 1996, was valid. If not, it is common ground that the application and supporting affidavit had not been served within the required 21 day period with the inevitable consequence, in accordance with the reasoning in David Grant, that the application was not open.
The evidence of service relied upon by Rochester consisted primarily of the affidavit of Sally Elizabeth Hull, legal clerk, who said that on 8 May 1996 she served Lader with the documents -
"...by delivering them to an employee who identified themselves as Katie Melides who was apparently over the age of sixteen (16) years at Level 12, 185 Macquarie Street, Sydney which I am instructed is the respondent company's address."
In her affidavit, Ms Hull went on to say:
"2. "At the time of service I asked the person to be served words to the following effect `Is this the Registered Office of Lader Pty Limited? I need to serve some documents'.
To which the person replied, `I will just check.'
The person then picked up the telephone and appeared to have a conversation with another person on the telephone.
The person the[n] said to me words to the effect `yes, that is O.K...'
I then handed the documents... to her and asked her:
`What is your name please?'
She replied `Katie Melides'."
Rochester also relied, in this connection, upon an affidavit sworn by David Ford Sekel, solicitor, as follows:
"1. I am an employed Solicitor of Gregory Russell Judd the Solicitor for the Applicants in these proceedings.
2. On 12 March 1996 I did serve on Lader Pty Limited a[n] Application and Statement of Claim in [other] Federal Court proce[e]dings number G199 of 1996 at level 12, 185 Macquarie Street, Sydney by delivering them to an employee apparently over the age of 16 years who identifies herself as D. Kalisperis. I am not aware of any objection to the validity of service of those documents. On or about 15 March 1996 I received a Notice of Appearance filed for the Respondent by its solicitor Kenneth Raphael of Rosenblums.
3. On or about 18 April 1996 I was informed by Mr Peter Klein a Director of Rochester that Rochester had been served with a Creditor's Statutory Demand for Payment of Debt from the Respondent. That Demand did not have the Registered Office of the Respondent in it.
4. ...
5. On 6 May 1996 I received a Notice of Appearance in another related proceeding from Rosenblum & Partners under cover of their letter dated 3 May 1996. Annexed hereto and marked with the letters "A" and "B" respectively are the letter dated 3 May 1996 from Rosenblum & Partners and the Notice of Appearance ("the Appearance") filed in the Industrial Court Proceedings No. CT 1110 of 1996.
6. That Appearance describes the Respondent as being `of 12th Floor, 185 Macquarie Street Sydney NSW'. I was aware from other proceedings in this Court, namely Proceedings No. G199 of 1996 that this was the office of FAI Insurances Limited and of Mr Rodney Adler a Director of the Respondent.
7. I am also aware that under Section 218(3) of the Corporations Law, a company has seven (7) days from after the time it has changed its registered office to lodge the notification with the Australian Securities Commission ("ASC"). I am aware from practice that there is always a time delay between the time of filing the Notice of Change and the time by which it appears on the ordinary searches conducted.
8. I have subsequently been informed by my Secretary Jenny Williams and believe to be true that the ASC has informed her that there is an approximate delay of five (5) days from the time of lodgment of a Notice of Change of Registered Office to the time when it appears on the ASC microfiche and on the ASC computer searches.
9. I relied upon the information in the Appearance when I gave instructions to a clerk in the employ of Blessington Judd to serve the Application and Affidavit in Support at what I believed to be the current registered office of Lader. "
The learned primary Judge described this evidence as follows:
"The evidence contains an explanation of how the Macquarie Street address came to be regarded by Rochester as the address of Lader's registered office. There are proceedings pending in this Court (No. NG199 of 1996), the Supreme Court of New South Wales and the Industrial Court of New South Wales between Rochester and certain other applicants or plaintiffs and Lader along with a number of other respondents or defendants. The applications filed in these matters each stated that the address of Lader was 12th Floor, 185 Macquarie Street, Sydney. The solicitors for the applicants in each case are the same solicitors who appear for Rochester in these proceedings. On 26 April 1996 Lader filed a notice of appearance in the proceedings in the Industrial Court. It showed Lader's address as 12th Floor, 185 Macquarie Street, Sydney, not Level 9, 210 George Street, Sydney.
It is Rochester's case that it relied on this address as being the registered office because it was the address provided by Lader's solicitors in the notice of appearance in the proceeding in the Industrial Court. Lader, on the other hand, says [in a statement made from the bar table by Mr Raphael, the solicitor who appeared for Lader before Sheppard J.] that the reason it showed the address as the Macquarie Street address was because it took its own address from the applications in the other matters, that is to say the matter in the Federal Court, the matter in the Supreme Court and the matter in the Industrial Court. Indeed, the solicitor for Lader said that it was common for secretaries to be given the task of preparing notices of appearance. They habitually took the address of the party appearing from the application or other originating process. This statement was made without evidence but with no demur from counsel for Rochester. All I can say is that, if this practice exists, it should be discontinued. Solicitors who follow such a practice are negligent and may, in appropriate cases, be called to account.
There is no explanation of how the Macquarie Street address was shown in the three applications that were filed by Rochester's solicitors. The only matter to which reference was made was that it was the address of FAI Insurances Limited. But there was no evidence suggesting that Lader was in some way connected with FAI although, of course, it may be."
Rochester also tendered a copy of a letter dated 2 May 1996 from Blessington Judd, Rochester's solicitors, to Rosenblum and Partners, Lader's solicitors, disputing the demand and foreshadowing an application to set it aside.
Also in evidence before Sheppard J. was an affidavit by Kenneth Raphael, Lader's solicitor, relevantly to the effect that Lader's registered office was, and remained, at Level 9, 210 George Street, Sydney.
At first instance, Senior Counsel for Rochester contended that the Macquarie Street address at which the application and supporting affidavit were served "is in fact, the registered address of FAI Insurance and the office address of one of the directors of Lader Pty Limited. It is in the affidavit of Mr Sekel at paragraph 6. So it is an address of the director and... there was a phone call made by the receptionist in relation to that matter." Reference was then made by Senior Counsel to the provisions of s.220 of the Law, as follows:
* Section 220 is in Chapter 3 of the Law, dealing with "Internal Administration". Part 3.1 of this Chapter (ss.217-220) deals with "Registered Office and Name".
By s.218(1) of the Law it is provided that on an application for the registration of a company, there shall be lodged a notice, in the prescribed form, of the address of the proposed registered office of the company; and, by s.218(3), a company shall lodge a notice, in the prescribed form, of a change in the situation of its registered office not later than 7 days after the day on which the change occurred.
By s.220(1) it is provided that a document "may be served" on a company by leaving it at, or by sending it by post to, the registered office of the company. (By s.9 of the Law, a "document" includes, inter alia, any legal process and thus would include Rochester's application and supporting affidavit.)
By s.220(4), it is provided that, without limiting the operation of s.220(1), a document may be served on a company by delivering a copy personally to each of two directors of the company who reside in Australia or an external Territory. But it is not suggested by Rochester that it complied with this provision.
By s.220(7) it is provided that nothing in s.220 affects: (a) the power of the Court to authorise a document to be served on a company in a manner not provided by s.220; or (b) the operation of an Australian law authorising a document to be served on a company in a manner not provided for by s.220.
(It will be convenient to notice here that, by s.109X of the Law, a definition of the expression "serve" is given for some purposes. Section 109X (appearing in Division 8 of Part 1.2, which Division deals with "Miscellaneous interpretation rules") provides, by s.109X(1), that in the case of a natural person, a document may be "served": (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by post to, the address of the place of residence or business of the person last known to the person serving the document. In the case of a body corporate other than (as here) a company, it is provided by s.109X(1)(b) that a document may be "served" by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate. By s.109X(2) it is provided that nothing in s.109X(1): (a) affects the operation of any other provision of the Law or of any other law of the Commonwealth that authorises the service of a document otherwise than as provided in s.109X(1); or (b) affects the power of a court to authorise service of a document otherwise than as provided in s.109X(1). By s.109X(3), it is provided that, in addition to the methods of service referred to in s.109X(1), a document may be served on, or delivered to, a director or secretary: (a) in their capacity as a director or secretary; or (b) for the purposes of a proceeding in respect of conduct they engaged in as a director or secretary; - by leaving it at, or posting it to, the alternative address notified to the ASC under s.242(1), (2) or (8)).
At first instance, Senior Counsel for Rochester relied upon O.7 of the Federal Court Rules, the relevant provisions of which are as follows:
* By O.7 r.1(1), subject to the provisions of O.7, originating process shall be served personally on each respondent.
* By O.7 r.2(1)(b), personal service of a document is effected on a corporation by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of 16 years: (i) at the registered office of the corporation; or (ii) if there is no registered office, at the principal place of business or the principal office of the corporation; or as the Court or a Judge may direct. (Emphasis added).
* By O.7 r.2(4), it is provided that in spite of r.2(1), for the purposes of O.71, personal service may be effected on a company in any manner permitted by s.220 of the Corporations Law.
* By O.7 r.4(1)(a) it is provided that where personal service of a document is not required, the document may be served by leaving a copy of the document at "the proper address" of the person to be served. By O.7 r.4(2), for the purposes of r.4(1), "the proper address" shall be the address for service of that person in the proceeding but if, at the time, he has no address for service in the proceeding, his usual or last known place of business or abode shall be his proper address.
* By O.7 r.6(1), an address for service must be the address of a place within the District for the Registry in which the originating process is filed at which documents in the proceeding may be left. By O.7 r.6(2), if a person is represented by a solicitor, the address for service must be the address of the solicitor, or his or her agent, within the District for the Registry in which the originating process is filed.
On behalf of Rochester, reliance was also placed upon the Court's power, under O.1 r.8, to dispense with any of the requirements of the Rules of Court.
Finally, reliance was placed, for Rochester, upon the letter written by its solicitors dated 2 May 1996, mentioned previously. It was submitted that this showed that Lader was put on notice that the Demand was disputed so that, the argument ran, Lader was estopped from asserting that it had not been properly served.
THE REASONING AT FIRST INSTANCE
In dismissing Rochester's main submission, the learned primary Judge said (at 4):
"It is true, as was submitted on Rochester's behalf, that the provisions of s.220 of the Act are facultative, that is to say they are not mandatory in this respect. But it is difficult to think of a way in which process may be brought to the attention of a company except by service upon it at its registered office. There are circumstances which arise for consideration in applications for substituted service where thought is given to serving directors and so on but, in the usual run of cases, the only safe method of service will be the traditional service of the process at the company's registered office.
I was referred to some of the other provisions of s.220 and also to Order 7 of the Rules of this Court in relation to service of documents. It is enough to say that I do not regard any of the other subsections of s.220 as having any bearing on the matter. I do not regard the provisions of Order 7, which deal generally with service of process in the Federal Court, as being relevant because the Rules cannot affect the meaning or operation of the Law."
In rejecting Rochester's estoppel argument, Sheppard J. said (at 5):
"...[I]t cannot be said that the solicitors for Lader who prepared the notice of appearance in the Industrial Court matter intended to make any representation in respect of any matter in that notice of appearance otherwise than in relation to the proceedings with which it was concerned. In other words it would be quite wrong to construe it as a representation that for all purposes and in all situations a party dealing with it could assume that the address of Lader was the Macquarie Street address. I would reject the submission based on estoppel but emphasise that I have not referred to authorities or texts about it because of the way in which the submission was made."
ROCHESTER'S GROUNDS OF APPEAL
Rochester's grounds of appeal, as stated in the written outline of its submissions, were as follows:
(1) Its service was effective and, even if it were not, the Court could, and should, grant relief to excuse any departure from the Rules. Alternatively, Lader was estopped from denying that the service was effective.
(2) It accepted, in the light of the David Grant decision, that s.1322 does not apply to Part 5.4 of the Law, in which s.459G is located. However, Part 5.4 does not deal with the method of service. This is dealt with by s.220. Section 220 is not a code, but is a facultative provision which allows for: (a) the operation of the ordinary law; (b) orders of the Court, in accordance with the Rules of Court, allowing for service otherwise than in accordance with s.220; (c) the doctrine of estoppel; and (d) the operation of s.1322 of the Law.
(By s.1322(2) of the Law, a proceeding under the Law is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused, or may cause, substantial injustice that cannot be remedied by any order of the Court, and by order declares the proceeding to be invalid. By s.1322(1)(a), "a proceeding under [the] Law" is a reference to any proceeding, whether a legal proceeding or not; and by s.1322(1)(b), a reference to "a procedural irregularity" includes a reference to a defect, irregularity or deficiency of notice or time.
By s.1322(4), subject to the following provisions of s.1322, but without limiting the generality of any other provision of the Law, the Court may, on application by any interested person, make all or any of the following orders, conditionally or unconditionally:
"(a) an order declaring that any act, matter or thing purporting to have been done... is not invalid by reason of any contravention of a provision of [the] Law...
(b) ...
(c) ...
(d) an order extending the period for doing any act, matter or thing...
and may make such consequential or ancillary orders as the Court thinks fit." )
(3) A failure to serve in accordance with s.220 was a procedural irregularity within s.1322; and an error in the place at which a document was served was only an irregularity and no more, and was capable of being waived and/or corrected, even ex post facto. Further, no prejudice was suffered by Lader.
(4) The service here was ordinary, and not personal, service.
(5) In any event, notice to a director is effectual as notice to the company, unless received by him in the course of a transaction in which he is not concerned, or in which he is acting fraudulently or irregularly.
(6) The FAI Insurance building was a building from which Lader carried on business; it was the office of a director of Lader and it had been held out as the proper place for service and/or the proper address of Lader by Lader and/or its solicitor. Further, every service of every application had been effected at the address at which service was effected in this manner without complaint by Lader or its representatives. Accordingly, Lader was now estopped from denying that the address at which service was effected is Lader's proper address.
THE FRESH EVIDENCE LED ON THE APPEAL
Both sides sought to adduce fresh evidence before us. Initially, the reception of such evidence was opposed, at least if it were to be received by us unconditionally. We ruled that a small part of the evidence in the affidavit of Mr Raphael sworn on 20 August 1996 was bad in form and thus inadmissible. Ultimately, most of the fresh evidence went in without any real opposition.
The fresh evidence tendered on behalf of Lader was in documentary form as follows:
(1) In proceedings in this Court (No. NG199 of 1996) brought by Rochester and others, against several respondents including Lader, by Application dated 12 March 1996, Lader filed a Notice of Appearance by its solicitor dated 14 March 1996 in these terms:
"...Lader Pty Limited c/- Brentwood Corporation Limited, Level 9, 210 George Street, Sydney, NSW appears..."
It was then stated: "The Respondent's address for service is: c/- Rosenblum Partners, Level 29, Governor Phillip Tower 1 Farrer Place Sydney NSW 2000."
(2) In proceedings in the Common Law Division of the Supreme Court of New South Wales (No.11954 of 1996) brought by Rochester and others as plaintiffs against several defendants, including Lader, by Summons filed on 22 April 1996, Lader filed a Notice of Appearance by its solicitor on 26 April 1996 in these terms:
"Lader Pty Limited of Level 9, 210 George Street, Sydney NSW 2000 appears...
Address for Service:
Rosenblum & Partners
Level 29
Governor Phillip Tower
Sydney 2000
DX 339 Sydney"
(It will be recalled that the instant proceedings were commenced on 8 May 1996.)
The fresh evidence tendered by Rochester, also in documentary form, was as follows:
(a) A Joint Venture Agreement, dated 18 June 1991, was made between Lader and several other parties, including Rochester and FAI Insurances Limited. The description of Lader as a party to that Agreement was as follows:
"Lader Pty Limited... a company... having its registered office at 12th Floor, 185 Macquarie Street, Sydney (`Adler') of the first part..."
By cl.28 provision was made for "Notices". It was provided that any notice or other communication required or permitted pursuant to this Agreement shall be given in writing and shall be delivered personally or sent by pre-paid registered letter, by facsimile, by telex or by cable:
In the case of "Adler", to:-
"Addressee: The Company Secretary
Lader Pty Limited
Address: FAI Insurance Building
12th Floor
185 Macquarie Street
Sydney NSW 2000
Facsimile: (02) 223-1144
Attention: Mr Adler..."
The Joint Venture Agreement contemplated that FAI would grant "financial accommodation" to Rochester. In Recital G of that Agreement it was stated that "[i]n consideration of FAI extending financial accommodation to Rochester..., Rochester has agreed (with the consent of "Adler"...) to grant certain rights to FAI".
(b) A letter dated 18 June 1991 to Rochester from Lader apparently signed by Mr Adler on behalf of Lader. The letter evidenced the terms of the loan by Lader to Rochester of the sum of $125,000, which is the subject of the statutory Demand in this matter. The letter was written on plain paper, with the name "Lader Pty Limited" typed at the top, without any address for Lader being given there, or elsewhere in the letter.
It appears that this loan was the "financial accommodation" mentioned in Recital G of the Joint Venture Agreement.
CONCLUSIONS ON THE APPEAL
David Grant, above, is authority for the proposition that Rochester's standing to claim an order setting aside the statutory Demand depended upon Rochester showing that it had both filed and served the form of application and supporting affidavit within time. What is meant by "serve" in this context?
The relevant dictionary meaning of the verb "serve" is: "to make legal delivery of (a process or writ)" (Macquarie Dictionary, 2nd Ed.; cf. Sunrise Auto Limited v Commissioner of Taxation (1995) 61 FCR 446 at 455).
The question then arises whether "serve" was intended, in s.459G(3), to have any other, special or technical meaning.
Section 28A of the Acts Interpretation Act 1901 provides:
"28A. (1) For the purposes of any Act that requires or permits a document to be served on a person,... then, unless the contrary intention appears (my emphasis), the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate - by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection."
It will be noted that, unlike s.109X(1) of the Law, a company is not excluded from the operation of this provision.
The question then arises as to the relationship, if any, between this provision and ss.109X and 220 of the Law.
In Montarello v Berkman Capital, Supreme Court of Western Australia, 18 June 1996, unreported, Bredmeyer M. has helpfully analysed the relationship between these three provisions. There, a writ purportedly served upon a company's manager in Perth, when the registered office of the company was a Sydney address, was held to be bad service.
The plaintiff relied upon O.72 r.3 of the Supreme Court Rules (W.A.) which provides:
"Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any Act 1862 , (my emphasis) be effected by serving it on the mayor, president or other head officer of the body, or on the town clerk, clerk, treasurer, manager, secretary or other similar officer thereof."
The learned Master said (BC9602629 at 4):
"S220 is not a complete code for service on a company because of the words of subs(7). I very much doubt if O72 r3, in relation to a company, comes within the scope of subs(7) because I consider subs(7)(a) allows for a court to order substituted service and the like, and subs(7)(b) relates to service provided for under Commonwealth and State Acts, and not under rules. The phrase, `Australian law', is defined in s9 as meaning, `a law of the Commonwealth or of a State or Territory'. The word `law' is defined in s9 as meaning, in effect, an Act of Parliament or regulations under an Act.
If I am wrong in that view and O72 r3 does come within the ambit of subs(7), I still do not consider it applies because r3 does not simply state:
`Personal service of a document on a body corporate may be effected by serving it on the mayor, president...'.
Instead it states:
`Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any Act, be effected by serving it on the mayor, president...' (emphasis mine)
That is the rule itself defers to any contrary statutory provision. I consider that s220(1) to s220(6) of the Corporations Law is a clear contrary statutory provision. S109X is, I think, helpful in understanding s220. The former allows service on a body corporate other than a company by leaving the document at, or sending it by post to, the head office, a registered office, or the principal office of the body corporate. Thus it permits several wider means of service upon a body corporate other than a company. The clear intention of s109X and s220(1) to s220(6) is that service upon a company must be in accordance with s220(1) to s220(6) as expanded by the limited exceptions under subs(7). I consider that O72 r3 allows service in those ways specified on bodies corporate which are not companies under the meaning of the Corporations Law. Thus, for example, it clearly allows service by those wider methods upon a municipality."
Bredmeyer M. went on to say (BC9602629 at 5):
"My view is supported by a note in the Supreme Court Practice at 65/3/1. I note that the English rule is identical to ours but for one word. It uses the word `enactment' whereas ours uses the word `Act'. I quote from that note:
`Effect of rule - The rule applies to all documents requiring personal service, including, of course, a writ of summons.
This rule draws an emphatic distinction between the case in which provision for service on a body corporate is made by statute, eg service on a limited company under s725 of the Companies Act 1985 (see (n) `Companies,' para65/3/8) and the cases in which there is no such provision. In the former cases, service must be effected in accordance with the relevant statutory provision, but in the latter cases, service may be effected by one or other of the modes provided in this rule. In this way, all statutory modes of service on bodies corporate are preserved.'
I consider that s76 of the Interpretation Act 1984 [W.A.] and s28A of the Acts Interpretation Act 1901 (Cwth) do not apply to justify the service effected in this case. Both of those sections allow for wider means of service upon a corporation but both state that those provisions only apply, in effect, where there is no contrary provision in an Act directing service in a particular way. As I have said above, s220 of the Corporations Law is a contrary provision."
I agree, with respect, that s.28A of the Acts Interpretation Act does not apply to service on a company; and I further agree that, although having regard to the provision of s.220(7), s.220 of the Law is not, to that extent, a complete code. Nonetheless, the provisions of s.220(1) to (6) generally govern service on a company.
It should be noted here that the scheme of the Federal Court Rules in this area is different from the position in the United Kingdom and Western Australia. Mention has already been made of some of this Court's Rules, but reference should now be made to the following provisions:
"ORDER 7 - SERVICE
RULE 1 ORIGINATING PROCESS
1(1) Subject to the provisions of this order, originating process shall be served personally on each respondent.
1(2) ...
1(3) ...
RULE 2 PERSONAL SERVICE: HOW EFFECTED
2(1) Personal service of a document is effected on:
(a) an individual - by leaving a copy of the document with him;
(b) a corporation - by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation (my emphasis); and
(c) an unincorporated association - by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently of or above the age of sixteen years; and
(d) an organisation - by leaving a copy of the document with some person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the copy records of the organisation lodged in the Industrial Registry pursuant to section 268 of the Industrial Relations Act 1988.
or as the Court or a Judge may direct."
(By O.1, r.4, the Interpretation Rule, "corporation" is defined so as to "include[ ] any artificial person, other than an organization").
"2(2) ...
2(3) ...
2(4) [Personal service on company, etc.] In spite of subrule 2(1), for the purposes of Order 71, personal service may be effected:
(a) on a company, as defined in section 9 of the Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory (`the Corporations Law'), in any manner permitted by section 220 of the Corporations Law (my emphasis); and
(b) ...
(c) ...."
The present position in this area in England is summarised in the Supreme Court Practice (1995) Vol.1 (at 1180; para.65/3/7) as follows:
"[Service of documents] Companies - Registered company - Every company having a registered office may be served with any document by leaving it at or sending it by post to the registered office of the company (Companies Act 1985, s.725, see Addis Ltd. v. Berkeley Supplies Ltd. [1964] 1 W.L.R. 943; [1964] 2 All E.R. 753)....
The service of a writ on a company other than at its registered office as provided for by the Companies Act 1985, s.725, does not render the proceedings a nullity, even on the basis that the provisions are mandatory, but constitutes an irregularity for the purpose of O.2, r.1, and having regard to the width of this rule such service may be allowed to stand (Singh v. Atombrook Ltd. [1989] 1 W.L.R. 810; [1989] 1 All E.R. 385, C.A.)
It was held under the corresponding section of the Companies Act 1862 (s.62) that the section applies to a writ of summons (White v. Land and Water Co. [1883] W.N. 174) and must be strictly followed. Service at any office of the company other than the registered office is bad (Wood v. Anderston, etc., Co. (1888) 36 W.R. 918; Vignes v. Stephen Smith & Co. Ltd. (1909) 53 S.J. 716)..."
In order to understand how the position in England has been developed, it is necessary to look closely at the particular context in which the issue of "proper" service has arisen.
In Newby v. Von Oppen (1872) LR 7 Q.B. 293, Blackburn J. (with the agreement of Cockburn CJ., Blackburn, Mellor and Quain JJ.) stated the rule at common law as follows (at 296):
"At common law the service of a writ on a corporation aggregate, which from the nature of the body could not be personal, was by serving it on a proper officer, so as to secure that it came to the knowledge of the corporation, and then proceeding by distress: see 1 Tidd's Practice, p.121, ed. of 1828. The 2 Wm.4, c.39, s.13, and 15 & 16 Vict. c.76, s.16, in fact only re-enact the old law as to what should be service on a corporation. The clerk or officer must be in the nature of a head officer, whose knowledge would be that of the corporation."
It is still the position in Scotland that personal service is possible only in the case of natural persons. Thus, in Rae v. Calor Gas Ltd (1995) SCLR 261 Lord President Hope said (at 267) that:
"It [i.e. personal service] is a method of service which can be effected only in the case of an individual and then only by placing the writ into the hands of the defender or arrestee personally. The writ cannot be said to have been served on him personally if it is put into the hands of someone else, such as an employee, even though this is done at his place of business or at his dwelling place."
In Watson v. Sheather, Sons & Co (Limited) (1886) 2 TLR 473, a clerk to the plaintiff's solicitor handed a writ to a director of the defendant company whom he happened to find at their head office. It was held by the Queen's Bench Division (Day and Wills JJ.) that the writ had been properly served. The report of the case is extremely brief. It reports that, at first instance, Field J. held that the writ had not been properly served. Reference is then made to the provisions of s.62 of the Companies Act (U.K.) (one of the precursors of s.220(1) of the Law), that a writ may be served on a limited company by "leaving it, or sending it through the post in a pre-paid letter addressed to the company at their registered office". It is stated that Field J. held that for the writ to be properly received it ought to have been "left" at their office by a postman. On the appeal, it is reported, counsel for the plaintiff submitted that this was not necessary. The report stated (at 474):
"The court allowed the appeal, giving the plaintiff leave to sign judgment, on the ground that the writ had been properly served under Order IX, Rule 8." (My emphasis).
(Order IX r.8, the precursor of the present U.K. and Western Australian rule, was as follows:
"8. In the absence of any statutory provision regulating service of process, every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation; ...and where by any statute, provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporated, every writ of summons may be served in the manner so provided.")
But the true ratio of Watson v. Sheather was explained in Wood v. Anderston Foundry Co., above. There, a writ was left with a director of the defendant company at one of its branch works in York, who appeared to be the manager of the company's business at that place. The company's registered office was in Glasgow. Stirling J. held that the purported service was bad.
Stirling J. referred (at 918) to the passage in the reasons of Blackburn J. in Newby cited above, and to the provisions of s.16 of the Common Law Procedure Act 1862 (i.e. "15 & 16 Vict. c.76, s.16") mentioned by Blackburn J. Stirling J. then alluded to O.9 r.8 and said (at 918-9):
"So that the words, which in the Common Law Procedure Act, s.16, stood unqualified and absolute, are now governed by these words - `In the absence of any statutory provision regulating service of process.' It seems to me that these two clauses provide for different cases, and that the mode of service provided by the last clause is not cumulative or additional to that by the first clause."
Stirling J. concluded (at 919) that "the writ of summons in this case must be served in manner provided by [s.62 of the Companies Act] and no choice is given to the plaintiff." Significantly, Stirling J. went on to say (at 919):
"I have now to consider the authorities to see if there is anything to conflict with that view. I was referred to the cases of Lhoneux, Limon, & Co. v. Hong Kong Bank and Baillie v. Goodwin & Co., but in my opinion neither of those cases conflict with the view I have expressed. The language of the report, however, in the case of Watson v. Sheather gives some colour to the view that the rule allows an alternative mode of service. However, I have had the opportunity of consulting Wills, J., who was a member of the court, and he has informed me that they simply held that there had been good service under the Act of 1862, and that they never indicated that a limited company could be served otherwise than as directed by that Act 1908 . It appears to me, therefore, that the service at Middlesborough was bad, and that the proceedings must be set aside as irregular." (Emphasis added).
In Vignes v. Stephen Smith, above, a writ was issued against a limited company which had a registered office in one part of London, and had works with an office in another part of London. The writ was left at the works. The defendants, citing Wood and other decisions, contended that this was not sufficient service. Eve J., after referring to O.9 r.8 and s.116 of the Companies Consolidation Act (another precursor of s.220 of the Law), said at (716):
"Now counsel for the plaintiff points out that the words in the section and in the rule are `may be served' and not `must be served,' and he says that the court may look at the surrounding circumstances and say whether the fact that the writ has been issued has been brought home to the company, and whether the company have not done all that is necessary for that purpose, and he cited cases where the writ was not set aside, though the rule had not been strictly adhered to. Those cases were mostly cases of foreign companies, and are not really germane to the present case. Here the question is whether it is competent to serve a company with a writ except in the prescribed form. I am precluded by the decisions cited by the defendants' counsel from holding that the writ has been properly served. The rule and the section clearly indicate that the only way in which a writ can be served on a company is by leaving it at or sending it by post to the registered office. There will therefore be an order setting aside the writ."
In Addis Ltd v. Berkeley Supplies Ltd, above, Wilberforce J. (as he then was) held that, notwithstanding changes in the Rules of Court, a writ could still be validly served on a company by posting it to the registered office. Wilberforce J. said (All E.R. 753-4):
"It is quite clear, in my view, that it has been possible for many years to serve a company incorporated under the Companies Acts by sending a writ through the post to the secretary at the registered office. That at any rate seems to have been the case since 1883 by virtue of s.62 of the Companies Act, 1862, and R.S.C. Ord. 9, r.8, of the former Rules of the Supreme Court. On that, I refer to White v. Land and Water Co. I am naturally reluctant to assume that that well-established practice has been changed by the new rules, but there is a certain difficulty on account of the language which the new rules employ.
Order 9, r.8, of the former rules has been replaced by Ord. 67, r.3, of the new rules, and that new rule is in a considerably briefer form. It omits the provision in the old rule, that was in the last six lines, which clearly enabled a writ of summons against a company to be served as provided in s.437 (1) of the Companies Act, 1948: that is to say, by leaving it at or sending it by post to the registered office of the company. The words in the new R.S.C., Ord. 67, r.3, are:
`Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any enactment, be effected...'
by serving it, in the case of a company, on an officer of the company. So that the question is: what is the effect of the words `in cases for which provision is not otherwise made by any enactment'. Those words are close to but not identical with the initial words in R.S.C., Ord. 9, r.8 of the former rules `In the absence of any statutory provision regulating service...' It seems to me that I should read the words of the new Ord. 67, r.3, as extending not only to cover what was dealt with by the initial words of the former R.S.C., Ord. 9, r.8, but also as including what was provided by the last six lines of the old rule, to which I have referred.
It seems to me most unlikely that the superseding of the old rule was intended to cut out the normal and long established method of serving a writ on a company by sending it by post to the company's registered office, and, although the words of the new rule could have been more explicit, I think that I am entitled to hold that, in effect, it enables personal service of a document of which personal service is required (which includes a writ of summons) to be effected in the same manner as was authorised under the old rules, that is to say, in the case of a registered company in the manner provided by s.437(1) of the Companies Act, 1948."
(It will be recalled that the last six lines of O.9 r.8 were:
"and where by any statute, provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any society or fellowship or any body or number of persons, whether corporate or unincorporated, every writ of summons may be served in the manner so provided.")
I respectfully agree, and am further of the view, as, in essence, Sheppard J. held here, that this reasoning should be applied, as a proper analogy, in the present context. That is, although Form 509H provides for the nomination of an address for service, it should not be assumed that this provision was intended to displace the existing, and well established, statutory facility of service at the registered office as an alternative. In my opinion, in the absence of any specific provision on the point in Part 5.4 of the Law, it should be assumed that service at the nominated address for service or at the registered office was both sufficient and necessary, but that delivery to another address was insufficient.
Vignes v. Stephen Smith, above, was considered by Kerr L.J. in an interlocutory appeal, after a default judgment had been irregularly obtained, in Singh v. Atombrook Ltd, above, in which there emerges a number of procedural difficulties, including the fact that the writ had not been served at the defendant company's registered office. In short, there was confusion about the identity and name of the true defendant. After considering authorities on the use of the word "may" in the context of service under other legislation, Kerr L.J. said (at 818-9):
"It is true, of course, that that was an entirely different provision from s 725 of the Companies Act 1985 and it may well be... the decision of Eve J. in Vignes....
But even if that is so, and I must say that I have some doubts as to why `may' must be construed as 'must' in that provision - it appears to me quite clear that even if there were an irregularity under the Companies Act 1985 to that extent, and therefore also under the rules which contain provisions to the same effect, it would nevertheless be insufficient to render the proceedings a nullity so as to entitle the defendant to have them set aside ex debito justitiae. Any other view would produce an extraordinary result in the face of Ord. 2, r.1 and note 2/1/1 in The Supreme Court Practice 1988, p.9, which I have read. Accordingly I would reject that submission.
I should add that among other cases we were referred to the decision of this court in White v. Weston [1968] 2 Q.B. 647. Russell and Sachs L.JJ. held that a judgment should be set aside unconditionally ex debito justitiae without referring to the new rule because it was a plain case of the defendant being totally unaware of the proceedings from the beginning to the end of the history. Both Russell and Sachs L.JJ. thought that one did not get much assistance from considering whether a judgment is to be described as having been obtained irregularly or whether it was a nullity. In a passage, with which Sachs L.J. agreed, at p.662, Russell L.J. said, at p.659:
`I do not myself attach importance to the question whether it is proper to label a judgment obtained in circumstances such as this as `irregular' or `a nullity'. The defect is in my judgment so fundamental as to entitle the defendant as of right ex debito justitiae to have the judgment avoided and set aside.'
In my view there can be no question of the present case involving any defect of a fundamental nature, let alone one as fundamental as in White v. Weston."
Kerr L.J. went on to hold (at 821) that the Judge at first instance in fact had a discretion to set aside the default judgment, so that conditions could be imposed upon the defendant in setting it aside. In other words, because the failure to serve amounted to an "irregularity" rather than a "nullity", the defendant could not claim to be entitled to set the judgment aside as of right, i.e. without conditions.
Megaw L.J., agreeing with Kerr L.J. (at 821) added (at 822):
"This document [i.e. the writ], for reasons which are apparent and which really cannot be put as being in any serious way the fault of the plaintiff, was not addressed to Atombrook Ltd.'s registered office, but in my view that does not, in the circumstances, by itself result in invalidity; it is merely an irregularity. How serious an irregularity a failure to state a company's address accurately may be will of course depend upon the circumstances. It may well be that it would in some cases be an irregularity that would justify the court, without more, in setting aside unconditionally any judgment that had been entered. But it would be absurd to suggest that any failure to send the writ to the correct address, as for example some minor error in the address which caused no conceivable prejudice to the defendant could result in the whole of the proceedings being invalid; and in this case I see no basis whatever for suggesting that there was a failure to comply with the statutory requirement such as to invalidate the proceedings."
Although not concerned with the present question, there have been instances in our Courts also of defective service being treated as a mere irregularity rather than a nullity and, where there was no substantial injustice to the defendant, the service was not set aside. An example is Davies v. Alliance Acceptance Co. Ltd. (1993) 110 FLR 153, a decision of Gallop J., which was much relied on by Rochester. There, the writ, which was otherwise properly served, bore a superfluous endorsement. The case is clearly distinguishable for present purposes.
Reliance was also placed for Rochester upon the decision of the Full Federal Court (Bowen C.J., Northrop and Morling JJ.) in Moore v. Tooheys Limited [1981] FCA 172; (1981) 56 FLR 345. It was there held (at 348) that under the Rules of this Court, when a notice of appeal was duly filed within time, even if there was a failure to serve the notice within time, this did not mean that the appeal was incompetent. Again, for our purposes, the case is clearly distinguishable.
Then Rochester relied upon the decision of the Full Federal Court (Fox, McGregor and Neaves JJ.) in Lazar v. Taito (Australia) Pty Limited [1985] FCA 35; (1985) 5 FCR 395. The question there was whether the discretion of the trial Judge, in ordering the dispensation of personal service of process in contempt proceedings, had, in the special circumstances of that case, miscarried. The decision has no present relevance.
It should be borne in mind in the present connection that, in any event, a distinction should be drawn between defects in the process on the one hand, and defects in the service of the process, on the other. Davies v. Alliance Acceptance, above, is, in truth, of the former kind, as was ATCO Industries (Aust.) Pty Limited v. Ancla Maritima S.A. (1984) 35 SASR 408. There, a writ purported to state that the address of the defendants for service was care of agents in Melbourne. In fact, the registered offices of the defendants were situate in other countries. No leave was obtained to issue the writ for service outside Australia as required by the Supreme Court Rules. It was held by the Full Supreme Court (King C.J., Walters and Mohr JJ.) that although the issue of the writ involved an irregularity, the irregularity was capable of being remedied either by the defendants' waiver of the irregularity, or by the exercise of the Court's discretion under the Rules of Court, and that the writ was not a nullity. Thus, the question was not, as here, whether the purported service was, or could be treated as, sufficient (cf. Emanuele v. A.S.C. (1995) 63 FCR 54 at 66-7).
ATCO was, however, relied upon by Mildren J. in CFC Corporation Pty Limited v. Lanier Australia Pty Limited (1993) 11 ACSR 772 in an application to set aside a statutory demand. Service of the demand was effected on 6 August 1993. On 27 August 1993, the application to set it aside was filed within the 21 days limited by s.458G(2) of the Law. On the same (last) day, 27 August, a copy of the application and supporting affidavit were purportedly "served" on the defendant's solicitors by facsimile. It was common ground that this mode of service was not authorised by the Law or by the Rules of Court. Accordingly, it was contended by the defendant that, in accordance with the reasoning of Hayne J. in Texel Pty Limited v. Commonwealth Bank of Australia [1994] 2 VR 298 (which was later approved by the High Court in David Grant), there was no jurisdiction to entertain the plaintiff's application.
The contention was rejected. Mildren J., having noted (at 774) that "the consequence of [this] reasoning is that a summons not issued within the 21 day period... is a nullity...", said (at 774):
"But the application was filed within time, and it would be a strange result that a proceeding validly issued should become a nullity if it were not later served within the time limits fixed by s.459G (3). This point is adverted to by Hayne J. where he said...:
`In my view the language of the provisions of the Corporations Law shows a clear legislative intention that the special provisions made by s 459G(2) and (3) are not to be extended by resort to s 1322. Otherwise the limitations imposed in such clear and emphatic language by s 459G(2) and (3) would be rendered nugatory."
(In the light of the subsequent High Court decision, this is no longer controversial.)
However, in CFC, Mildren J. went on to say (at 774- 5):
"But in this case, there was service of the summons and the supporting affidavit required by the section, within the time limited by the section, albeit irregular service. The mode of service to be used is not prescribed by the provisions of Pt 5.4 of the Corporations Law. Nor do the provisions of the Corporations Law elsewhere to be found in that Act prescribe any exclusive mode of service. The mode of service of such an application, being a matter of practice and procedure, is left to the rules of this court. Accordingly it is my view that the method of service used in this case was a mere irregularity which could be waived by the defendant: see ATCO... at 413-14. As, in my opinion, nothing in the Act precludes the court from prescribing the mode of service of an application, nothing in the Act prevents a court from making an order, pursuant to r 6, confirming irregular service of the application and the supporting affidavit on the defendant. It is clear that an order under r 6.10 may be made at any time after informal service and I consider that I now have power to make such an order. As no prejudice could possibly flow to the defendant if such an order was now made, and the method of service was upon the defendant's solicitors (whose address was given in the statutory notice as the address for service on the defendant) I consider that it is just that such an order be now made, and accordingly I make orders (1) permitting the summons to be amended to add thereto a further paragraph in the following terms:
1A. Insofar as it is necessary, the plaintiff seeks:
(a) an order pursuant to Rule 6.10 of the Supreme Court Rules directing that this summons and the affidavit of Thomas Peter Koltai sworn 27 August 1993 be taken to have been served upon Lanier (Australia) Pty Ltd on 27 August 1993.
and (2) in terms of para 1 A(a) of the summons as amended.
I therefore consider that I do have jurisdiction to entertain the application to set aside the statutory notice."
I have difficulty in accepting this approach.
In the first place, as has been said, cases such as ATCO turned entirely upon the application of the Rules of Court, whereas in the present case, not only is the statute involved but also, the operation of the statute goes to jurisdiction. As Gummow J. observed in David Grant (at 276) "...the temporal requirements of sub- ss.(2) and (3) of s.459G operate to define the jurisdiction of the court in respect of an application to set aside a statutory demand".
Secondly, as has been noted, cases such as ATCO are concerned with irregularities in the issue of the process, and not in its service.
Thirdly, Mildren J. appears to distinguish between the temporal requirements for the filing of the application on the one hand, and for its service, on the other. Yet the Law makes no such distinction.
Finally, Mildren J. appears to assume that it is within the power of the Court retrospectively, and out of time, to validate a defective service. Yet, within the statutory scheme, including its temporal requirements as explained by the High Court, a distinction should, in my view, be drawn between validation before the expiration of the 21 days (within jurisdiction) and purported validation thereafter (in my opinion, without jurisdiction).
In any event, in my view, the decision in CFC should be distinguished for our purposes. It was not concerned with the present question, which is whether service can be effected on a company at a place other than (a) the nominated address for service; and (b) the Company's registered office.
As has been seen, s.220 of the Law had, as its precursors, the United Kingdom legislation, as explained in the jurisprudence of the English Courts mentioned. There were local precursors as well. For instance, s.359 of the Companies Act 1936 (NSW), and s.362(1) of the Uniform Companies Act 1961 , were in terms that were very similar, if not identical, to the provisions of s.220(1) of the Law. There was also a local jurisprudence. For instance, in Eagles v. Eagles [1960] VR 400, it was held that service of a writ, other than at its registered office on a company was irregular. The writ was, on 18 September 1959, served on the second defendant, the Commercial Banking Co. of Sydney Ltd., by delivering a copy to the manager of its Geelong branch, the branch through which money was advanced upon the mortgage.
Pape J. said (at 401):
"This service was irregular, inasmuch as there was no evidence that the branch office at 36 Malop Street, was the registered office of the company (see Companies Act 1958 , ss. 252 and 299), and no order had been made under s.1[09 of the Instruments Act 1958 . This irregularity might have been cured had the bank entered an appearance to the writ, but in this case no such appearance was entered. The authorities show that O. IX, rule 6 requires that service on a corporation should be in accordance with any statutory provision regulating such service (see Annual Practice 1948, at p.79), and that service at any office of the corporation other than the registered office is bad (White v. Land and Water Co...; Wood v. Anderston Foundry Co....; Vignes...; McCue v. Australasian United Steam Navigation Co. Ltd (1889), 15 V.L.R. 332)."
The evidence in Eagles included that of Keith Clement Cumberland, the acting manager of the bank's branch at Geelong, that he produced a letter which indicated that the bank was aware of the proceedings but, in the Court's view, that does not make the service good service. Pape J. adjourned the matter and said that service of the writ ought to be made in accordance with either s.252 or s.299 of the Companies Act 1958 .
Sections 252 and 299(a) of the Victorian Companies Act were in terms similar to s.220(1) of the Law.
Eagles was distinguished in Peters v. Oscar Mayer Pty Limited [1963] VR 390, an application for judicial review of a conviction under the Health Act (Vict.). A notice, purportedly given under s.281 of that Act, giving notice of intention to have food analysed, was sent to an address of the seller of sausages shown on the label of a packet of sausages. This address was not the seller's registered office. The Full Court (Herring C.J., Pape and Adam JJ.) said (at 395):
"All that s.281 requires is the sending of the notice and of the sample to the seller. This may be proved notwithstanding some mis- description or irregularity. Where there is sufficient evidence that the particular requirements of s.281 have been complied with, we see no reason for not giving effect to that section by reason of the general provisions in s.426.
One further matter should be referred to.
Mr Burbank contended that service of the notice and of the sample was ineffective because of the provisions of s.252 of Companies Act 1958 which provide: `A document may be served on a company by leaving it at or sending it by post to the registered office of the company'.
This enactment does not purport to provide an exclusive mode of effecting service on a company. It provides what will be sufficient leaving other methods open of proving effective service: cf. Eagles v. Eagles, [1960] V.R. 400, where Pape, J., held that consistently with specific rules of court service of process at the registered office of a company was required in the particular case."
In my view, the case is distinguishable for our purposes, turning, as it did, upon the special provisions of the Health Act 1989 .
In Racecourse Totalizators Pty Limited v. Hartley Cyber Engineering Pty Limited (1989) 15 ACLR 457, a statutory demand was served on the company's former registered office. Several days later it was collected from the post office by a director. On behalf of the creditor, it was contended that the Court could retrospectively validate the purported service of the demand. O'Bryan J. said (at 459):
"There is little authority upon the point. The decision of Walters J in Re Mannum Haulage Pty Ltd (1974) 8 SASR 451 shows that strict compliance with the requirements of s 222(2)(a) of the Companies Act 1962-1972 (now s528(1) of the Code) was required. A notice of demand pursuant to the equivalent of s 364(2) of the Code had been served at the office of an accountant and not the registered office of the company. Walters J held that that was an irregularity or defect which was not capable of being remedied under s 366 of the Act (now section s 539 of the Code). The decision of Senior Master Mahony in Re Lisjam Hotels Pty Ltd (1988) 14 ACLR 74 also shows the degree of strictness required should a demand pursuant to s 364(2) be served by post.
In my opinion, subs (7) of s 528 does not empower a court to cure retrospectively an irregularity or defect should a person choose to serve a document on the company by post. The expression `to be served' means served in the future. The sub-section does not allow the court to cure or remedy service of a document effected in a manner not provided by s 528. In the present case the applicant's demand was not served by sending it by post to the registered office of the company and receipt of the document by one director of the company at the previous registered office is not sufficient service for the purposes of s 528."
With respect, I agree.
In Re Future Life Enterprises Pty Limited (1994) 33 NSWLR 559, McLelland CJ. in Eq., applying the reasoning of the High Court in Fancourt v. Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, held that service at the company's registered office (a firm of accountants) of a statutory demand under s.459E of the Law was valid and effective, notwithstanding that the accountants had had no contact with the company or its directors for years; and that if service of the demand involved an abuse of process, the service remains valid and effective, but that relief may properly be refused by the Court on discretionary grounds. But the converse is also true, as O'Bryan J. held.
In Players Pty Limited v. Interior Projects (1996) 14 ACLC 918, an application under s.459G was served at a solicitor's office, being the address for service nominated in the statutory demand. It was contended for the creditor that there had not been sufficient service because personal service, as required by the Supreme Court Rules, had not been effected. It was held that the service was valid.
With reference to para. 6 in Form 509H, Lander J. said (at 921):
"It is readily apparent why the form would provide for an address for service of any application an[d] affidavit, that is because of the onerous requirements of s 459G and so as to make it entirely clear to any party who wished to make an application under that section upon whom and where the document under s 459G ought to be served. As notices under s459E would often cross state boundaries, and may indeed originate from outside the country, it seems to me to be appropriate that the schedule requires an address for service within the state or territory in which the demand is being made so as to allow for some ease of service on the part of the party to whom the s 459E notice was directed."
His Honour said that the regulations contemplate that the party to whom the s 459E notice is directed will, if that party makes an application under s 459G, serve that application at the address nominated in the Form 509H notice and will not be required to serve the creditor either at the creditor's own address or at the registered office of the creditor if the creditor is a company. In his view, the intention "is to facilitate the service of an application under s459G, not to impede service or make service of such an application more difficult."
Lander J. added (at 921):
"Section 459G does not require service of the application and affidavit on the creditor, if the creditor is a company, at its registered office, but rather the obligation under s 459G(3) is to serve the person who served the demand on the company. Clearly enough, that person could be a corporation, but the requirement to conform with s 459G is not to serve the creditor, but the person who served the demand on the company. Moreover, the obligation is to serve that application and the accompanying affidavit at the address for service indicated in the s 459E notice. S 459G(3)(b), in referring to the person who served the demand on the company, is probably there referring not to the solicitor, but more likely to be referring to the creditor. That would be consistent with the wording of s 459E. So the obligation upon a party under s 459G, is to serve the creditor effectively at the address for service indicated in the Form 509H notice."
(As has been said, I respectfully agree that service at the nominated address for service is sufficient (see also Re H M Drinkwater (1930) 46 W.N. (NSW) 202 at 203)).
In Players, the debtor company argued that it was entitled to serve, in accordance with the requirements set down in the Law. It argued that if the obligation was to serve upon a natural person, then it must be done in accordance with s 109X(1)(a), and if the requirement was to serve the corporation, then in accordance with s220.
Counsel for the respondent creditor argued, however, that the debtor company's submission overlooked, in the case of service on a natural person, subs. 109X(2), which preserved the operation of other provisions of the Law, any other law of the Commonwealth, and any other law of the jurisdiction. Subsection 109X(2) also preserves the power of the court to authorise service otherwise than as provided in subs. 109X(1). With regard to s.220 he pointed to a similar saving provision in relation to service of documents on the company and his argument was that as there were saving provisions in relation to both sections, then the service had to be in accordance with the rules which had been saved by reason of those saving provisions, and that service in compliance with the principal sub-sections was not sufficient.
Lander J. said (at 918):
"I do not accept [the creditor's] argument, because I think the effect of that argument would be to leave, in relation to legal proceedings, each of the principal sub-sections of those sections with no work to do. I think each of those sections contemplate that there be a form of service of summonses, orders and other legal processes throughout the Commonwealth so that a party resident in one State is able to know, without going to the local rules of another State, how that party ought to effect service.
In my opinion, the saving provisions in each of s 109X and s 220 do not mean that service of any originated process must be in accordance with the Supreme Court Rules. I therefore cannot accept the premise upon which Mr Rochow's argument was based, and therefore the argument must fail."
Again, I respectfully agree.
Players was considered by Young J. in Howship Holdings Pty Limited v. Leslie No.1 [1996] NSWSC 314; (1996) 21 ACSR 440, where it was held that purported service of an application under s.459G upon a person (and not, as here, a company) was insufficient.
Young J. said (at 442):
"Section 459G itself does not deal with what is service. The ordinary meaning of `service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial."
After referring to s.109X, Young J. went on to say (at 443):
"However, s 109X is facultative, it is not mandatory. It will be noted that the words used in subs (1) are `may be served'. Indeed the Drinkwater rule shows that s 109X could not constitute a code for service. The document could have been served under s 109X, but the mere fact that it has not been does not disqualify it from service if the document came into the possession of the addressee.
Whilst generally I follow what Lander J said in Players..., insofar as his Honour was tempted to say that s 109X provided a code, I would not, with respect, follow him.
If the Supreme Court Rules 1970 (NSW) applied (and I think for the reasons given by Lander J in the Players' case they do not) then personal service would be required of originating process."
As has been noted, these observations were made in the context of service on a individual. Despite the (now discredited) report in Watson's case, the later course of authority previously mentioned now makes it clear that the "actual notice" principle must be viewed in the light of specific statutory provision to the contrary, in particular the relevant provisions of the Law, and Regulations, viz. s.220(1) and the "address for service" provisions of Form 509H (cf. Chains & Power (Aust) v. CBA (1994) 15 ACSR 544 per Sackville J. at 555).
As has been indicated, I have difficulty accepting, as Mildren J. held, that the Court was intended to have the power, available to be exercised after the expiration of the 21 day period, to cure a defect in service ex post facto. Variation or authorisation of a special form of service before that expiration may be another question; it does not arise here. But the object of the scheme of Division 3 of Part 5.4 would, in my view, be defeated if such power could be exercised so as, as it were, to confer a fresh jurisdiction upon the Court after its earlier jurisdiction had lapsed. Such a result would require explicit language, which is not found in Part 5.4. It would also contradict the clear intention of the Harmer Report that, in the interests of all concerned, including the general body of creditors of a possibly insolvent company, that the situation not only be closely regulated, but that such regulation occur within strictly defined time limits, so that all involved will know where they stand at the expiration of 21 days after service of the demand. If the Court were to have a largely unregulated discretion to validate defective service, at any time after that period, this would run the risk, in my view, of undermining a central element of the new statutory scheme.
That scheme was described in Re J. & E. Holdings Pty Limited and The Corporations Law (1995) 36 NSWLR 541, where Sheller J.A. (with the agreement of Priestley and Powell JJ.A.), in describing "the scheme of Pt. 5.4", said (at 547-8):
"The Law Reform Commission, Report No 45, General Insolvency Inquiry, (the Harmer Report) vol 1, pars 148-155 and the model 1992 legislation WU 8 support the conclusion that the legislature intended that the court should have no power to extend the period for compliance. The Commission considered that the existing, largely unregulated, procedure in relation to notices of demand too often produced disputes about the debt at the hearing of a winding up application. The Commission was anxious to avoid this as well as the need for companies to bring injunction proceedings where a debt claimed in a demand was disputed. Provided the company does not get out of time, the procedure in Pt 5.4 of filing an application for an order setting aside a statutory demand together with a supporting affidavit and serving a copy of the application and supporting affidavit on the person who served the demand is simple and automatically extends the period for compliance until the application is finally determined or otherwise disposed of. The prescribed form which the demand must take under s 459E(2) includes an address for service of the person serving the demand: Corporations Regulations 1.03(1), Schedule 2, Form 509H, par 6." (Emphasis added).
Sheller J.A. went on to say (at 548-9):
"While there is no reason for us to decide the point, I do not think that Pt 5.4 in any way inhibits the court exercising its inherent jurisdiction to prevent an abuse of its process by the institution of proceedings for an improper purpose... Aside from abuse of process, the decided cases have thrown up examples of suggested hardship or injustice where an application to set aside a statutory demand has been lodged one day late or there has been difficulty or delay in obtaining a supporting affidavit. Santow J helpfully annexed a summary of the principal decisions on s 459G and s 1322(4)(d) of the Law to his judgment in Sydar Pty Ltd v K Simmonds Finance Pty Ltd (at 395 and following). The facts of some of them suggest apparent injustice where the application was served within the prescribed period but in an unauthorised way (CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1993) 11 ACSR 772), the application and affidavit were filed within time but not served (Cavetina), and the application was filed within time but served one day late (Bartex Fabrics Pty Ltd v Phillips Fox (1994) 13 ACSR 667)....
In Cavetina (at 277), the Chief Justice [of Queensland] said that if any time-limit at all was to apply to the making of an application to set aside, including a time-limit which may only provisionally be applicable and be subject to a power in the court to order an extension, then the time-limit would have to be prescribed in mandatory language.
`...It would serve no purpose at all if a provision were enacted indicting merely that, an applicant might, if he chose, make his application within twenty-one days. There would in fact be no time limit, not even a provisional one, unless the statute uses some form of mandatory language. More traditional language used in imposing time limits, if employed here, may have resulted in something along the lines that the application `shall' be brought within a specified number of days. However, this kind of provision would not ordinarily be thought to exclude the jurisdiction of a court to rely upon general powers found elsewhere in the statute to extend time for bringing applications or doing acts.'
With the greatest respect I do not agree with this analysis."
The approach taken by Sheller J.A. was approved by the High Court in David Grant (at 279). In my opinion, it is inconsistent with the approach now urged on behalf of Rochester.
It follows, in my view, that apart from possible questions of abuse of process and estoppel (which do not, as has been noted, concern us now), the primary Judge in this matter was correct to hold that he had no jurisdiction to entertain Rochester's application unless, within the 21 day period, the documents were properly served, that is, served either at the nominated address for service, or at Lader's registered office.
I would add that, even if I were wrong on the question of jurisdiction, and even if the Court had power to validate defective service after the expiration of the 21 day period, I would not have exercised the discretion to validate service: no good reason was given to explain why the application and supporting affidavit were not served on the nominated address for service or at Lader's registered office; on the contrary, both were convenient, CBD addresses.
As to the suggested estoppel, I agree with Sheppard J., for the reasons he gave, that this does not arise here. Nor is there anything in the fresh evidence that can usefully bear upon this question. I accept, as Brooking J. held in Re Third Lajebo Pty Limited [1982] VR 379 at 385, that the doctrine of estoppel can operate in this area in certain circumstances. But, as Sheppard J. noted, there was no relevant representation or conduct here to ground an estoppel. Lader did not represent to Rochester that its address for service (for the purposes of Form 509H), or that its registered office, was at the Macquarie Street address. Statements made by Lader in other contexts, and for other purposes, in other proceedings and for contractual purposes, say nothing about the circumstances: first, that in its statutory demand, Lader specifically nominated its solicitors' office as Lader's address for service; and secondly, that Lader nominated the George Street address as its registered office for service purposes generally.
I propose that the appeal be dismissed, with costs.
I certify that this and the preceding fifty-five (55) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate
Dated: 26 March 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 587 of 1996
)
GENERAL DIVISION )
THE ROCHESTER
COMMUNICATIONS
GROUP PTY LIMITED
Appellant
LADER PTY LIMITED
Respondent
Coram: Beaumont, Whitlam and Moore JJ
Place: Sydney
Date: 26 March 1997
REASONS FOR JUDGMENT
WHITLAM J
This appeal concerns the steps taken by the appellant ("Rochester") to serve copies of an application and an affidavit on the respondent ("Lader"). The application was brought under s 459G of the Corporations Law ("the Law") and sought an order setting aside a statutory demand served on 19 April 1996. The application and supporting affidavit were filed on 8 May 1996.
In accordance with the form prescribed by the Corporations Regulations ("the Regulations") Lader had inserted in the statutory demand the address of its solicitors as the address for service of any such application and affidavit. On 2 May 1996 Rochester's solicitors faxed a letter to Lader's solicitors notifying them that, unless Lader gave an undertaking within two days that it would not rely on the statutory demand, Rochester would apply to have the demand set aside. However, instead of subsequently delivering copies of the application and affidavit to Lader's solicitors at the address indicated in the statutory demand, on 8 May 1996 Rochester left the documents at an office on the twelfth floor of 185 Macquarie Street, Sydney.
The evidence about this address is more fully described in the judgment of
Beaumont J. However, the key facts relied on by Rochester in order to establish that it was a proper address for service may be summarized as follows. The address was the office of Rodney Stephen Adler, a director of Lader. (Lader is an anagram of Adler.) Also, under an agreement dated 18 June 1991 between Lader, Rochester and other parties it was the address specified for notices to be given to Lader. That agreement was the subject of two proceedings in each of which Rochester was one of the applicants and Lader was one of the respondents. The first of those proceedings was commenced in this Court, where on 15 March 1996 Lader had entered an unconditional appearance in response to originating process left at this address. The other proceeding was in the Industrial Court of New South Wales, in which Lader had served on 6 May 1996 a notice of appearance on Rochester showing this office as its address.
Two other pieces of evidence should be noted. Lader was incorporated in New South Wales on 6 July 1970. So it is also a "company" as defined in s 9 of the Law. The registered office of Lader under the Law was care of Brentwood Corporation Ltd, Level 9, 210 George Street, Sydney.
Section 459G of the Law provides:
"459G. (1) A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2) An application may only be made within 21 days after the demand is so served.
(3) An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company."
Section 459E(2)(e) of the Law requires that a statutory demand "be in the prescribed form (if any)". Such a form is prescribed by reg 1.03 of the Regulations. It is Form 509H, and it requires a creditor to give an address for service of copies of any application and affidavit under s 459G of the Law. The address must be "in the State or Territory in which the demand is served on the company".
The Law does not specifically provide where an application under s 459G is to be served. Section 22(u) of the Corporations Act ("the Act") provides that the Regulations may prescribe the manner in which documents that are required by the Law to be served on a person may be so served. But the Regulations do not prescribe any manner of service for an application under s 459G of the Law. They do not require service at the address for service given in the statutory demand. Indeed, the Regulations do not even expressly authorize service at such address.
The effect of requiring an address for service to be inserted in the statutory demand was considered in Howship Holdings Pty Ltd v Leslie (No 1) [1996] NSWSC 314; (1996) 21 ACSR 440.
Young J said (at 442-443):
"Where a statute or regulation prescribes the giving of an address for service, that address for service is an address at which a summons dealing with the statutory notice can be served. This is clear from form 509H itself, but the general law would be to the same effect: see Re H M Drinkwater (1929) 46 WN (NSW) 202 decided in connection with an address for service on a Real Property Act 1900 (NSW) caveat."
In Re H M Drinkwater Harvey CJ in Eq held that a summons to remove a caveat had been validly served at the address stated in the prescribed form of caveat as the address at which notices relating to the caveat may be served. The statutory provision there under consideration was s 72(3) of the Real Property Act 1900 (NSW), which relevantly provided:
"72. (3) Every notice relating to such caveat or to any proceedings in respect thereof if served at the address mentioned in such caveat ... shall be deemed to be duly served."
That case was not followed in Underwood Investments Pty Ltd v Skyford Pty Ltd [1990] Tas R 206, where Zeeman J said (at 209):
"Harvey C.J. in Eq. appears to have proceeded upon the basis that s. 72(3) referred to notices relating to the caveat and to any proceedings in respect of that caveat. I have some difficulty with that. Such a proposition appears to attach insufficient weight to the fact that what might be served in the manner referred to in s.72(3) was a "notice relating ... to any proceedings in respect of the caveat."
Whilst it might be argued that the notice of hearing endorsed on the originating application in the present case is a notice within s.133(4) of the [Land Titles Act 1980 (Tas) which provision was in terms substantially similar to s 72(3)], I do not consider that the application itself answers to the description of being a notice relating to any proceedings in respect of the caveat. The originating proceedings (constituted by the sealed application) must be served. In the course of those proceedings the circumstances may call for notices which require to be served. The latter may be served in the manner permitted by s.133(4). The former may not be so served. With respect, I decline to follow Re H.M. Drinkwater ... It follows that in my view the originating application has not been served in a manner authorised either by the Rules of the Supreme Court or by the Act."
I respectfully agree with Zeeman J. But, on any view, the statutory provision under consideration in Re H M Drinkwater expressly validated service of notices at the address mentioned in the caveat. The Regulations do not contain a similar provision in respect of applications under s 459G. Accordingly I am, with respect, unable to agree that
Re H.M. Drinkwater is authority for the so-called rule formulated by Young J.
In any event, the question of service at the address for service stated in the statutory demand does not arise in the present appeal. Rochester does not claim to have effected service at such an address. However, its estoppel argument may be briskly disposed of in this context. Plainly the only relevant representation made by Lader concerning an address for service of documents under s 459G of the Law was that contained in the statutory demand. (Indeed, it may be noted that the evidence shows that Lader's subsequent notice of appearance in the Industrial Court also gave the same solicitors' address for service.)
The Corporations Rules are made under s 60(1) of the Act. They regulate the practice and procedure of the Court with respect to proceedings under the Law, and are set out in O 71 of the Federal Court Rules ("the Rules"). Rule 3 of O 71 provides:
"3. (1) This Order applies to all proceedings arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order.
(2) Subject to this Order and to any law of the Commonwealth, the provisions of the other Orders of these Rules apply, so far as is practicable, to proceedings arising under the Corporations Law or under the ASC Law."
The Rules make no specific provision for service of copies of an application and an affidavit under s 459G of the Law. Such an application is, of course, an originating process and, subject to presently irrelevant provisions of O 7 of the Rules, is required by O 7 r 1(1) to be served personally on a respondent.
Rule 2 of O 7 relevantly provides:
"2. (1) Personal service of a document is effected on:
...
(b) a corporation - by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation;
...
or as the Court or a Judge may direct.
...
(4) In spite of subrule 2 (1), for the purpose of Order 71, personal service may be effected:
(a) on a company, as defined in section 9 of the Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory ("the Corporations Law"), in any manner permitted by section 220 of the Corporations Law;
..."
In my opinion, it is not necessary in the instant case to go beyond the provisions of the Rules set out above in order to see what is required of service on a creditor, such as Lader, which is also a "company" under the Law. Beaumont J has demonstrated the resilience in England of the statutory precursors of s 220 in the face of the personal service provisions of the local rules of court. However, under the Rules the undoubted operation of s 220 in this Court is expressly acknowledged.
Section 220 of the Law relevantly provides:
"220. (1) A document may be served on a company by leaving it at, or by sending it by post to, the registered office of the company.
...
(4) Without limiting the operation of subsection (1), a document may be served on a company by delivering a copy of the document personally to each of 2 directors of the company who reside in Australia or an external Territory.
(4A) Without limiting the operation of subsection (1), a document may be served on a proprietary company that has only one director by delivering a copy personally to that director.
...
(7) Nothing in this section affects:
(a) the power of the Court to authorise a document to be served on a company in a manner not provided for by this section; or
(b) the operation of an Australian law authorising a document to be served on a company in a manner not provided for by this section."
As I have indicated O 7 r 2(4)(a) makes it unnecessary to consider the effect of
s 220(7) on rules of court, as was done in Players Pty Ltd v Interior Projects Pty Ltd (1996) 20 ACSR 189. It may, however, be noted that in that case Lander J appears to have treated the address for service stated by a company in its statutory demand as equivalent to its registered office for the purposes of s 220 of the Law.
Counsel for Rochester do not contend that the application was served on Lader in accordance with s 220. On the contrary, they rely on the fact that it was not so served. Counsel characterize this fact as a "procedural irregularity" and call in aid the provisions of s 1322 of the Law to remedy what they describe as "any contravention of s 220". Their submission rests on the language of s 1322(4)(a) which confers a broad authority upon the Court to declare that any proceeding purporting to have been instituted under the Law is not invalid by reason of any contravention of a provision of the Law: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 per Gummow J at 275.
The terms of any order under s 1322 sought by Rochester have not been stated. This is unfortunate. As Gummow J pointed out in David Grant & Co (at 276), an application under s 459G is one matter arising under the Law and an application under s 1322 is another. The Rules (O 71 r 101) permit an application under s 1322 to be made by notice of motion. This facility was not utilized in the instant case. Any application under s 1322 must have been made orally on 7 June 1996 at the hearing of the application under s 459G.
Had any application under s 1322 been made upon written notice (involving the discipline of concisely stating the nature of the orders sought), what I regard as the misconception underlying counsel's submission would have become more readily apparent. Section 220 is a facultative provision. If a person does not serve a document on a company in a manner provided for in the section, such a person is not - to use the language of
s 1322(6) - "concerned in or party to" a contravention of s 220. The Court does not have power to make an order declaring that the copies of the application and affidavit have been validly served under s 459G(3)(b) simply because Rochester has not served those documents in accordance with s 220 of the Law.
At first instance Rochester also sought to have the Court, pursuant to O 1 r 8 of the Rules, dispense with the requirement of the Rules for personal service of the application. Such a dispensation, according to Rochester's counsel, would validate service at Lader's proper address which, for the purposes of O 7 r 4(1) of the Rules, is said to be its "last known place of business" because it does not have an address for service in the proceeding. (Since a statutory demand is not a proceeding under the Rules and the application under
s 459G had, of course, not been served, a creditor such as Lader could not have an address for service under the Rules.)
Moore J has carefully analysed the relevant evidence. His Honour concludes that the address at 185 Macquarie Street was Lader's place of business last known to Rochester, and he is further satisfied that the fact that the application was left at that address meant that it came to the attention of Lader's officers. With respect, I do not regard it as necessary to conduct a similar exercise. Even if the power to grant such a dispensation existed in the circumstances of this case, like Beaumont J and Moore J, I would not make such an order. Rochester advances no good reason whatsoever why personal service should not be required.
In addition and quite apart from the question of any service in accordance with the Rules, Rochester could have sought to have the steps that it had taken to bring the documents in question to the notice of Lader treated as service. Such an order is permitted under
O 7 r 10 of Rules, which provides:
"10. Where for any reason it is impractical to serve a document in the manner set out in the Rules, but steps have been taken to bring the document to the notice of the person to be served, the Court may order that the document be taken to have been served on that person on a date specified in the order."
The order made by Mildren J in CFC Corporation Pty Ltd v Lanier (Australia) Pty Ltd (1993) 11 ACSR 772 relied upon Rule 6.10 of the Supreme Court Rules (NT). That rule provided:
"6.10 Where for any reason a document has not been served in the manner required by or under a law in force in the Territory or by these Rules but steps have been taken for the purpose of bringing, or which may have a tendency to bring, the document to the notice of the person to be served, the Court may, by order, direct that the document be taken to have been served on the person on a date specified in the order."
It will be observed that the Northern Territory rule is wider in ambit than the rule of this Court. In the present case Rochester does not, perhaps unsurprisingly, submit that there was anything "impractical" about serving Lader at its registered office.
Most importantly, however, I agree with Beaumont J that for the reasons he gives an order could not be made under either O 1 r 8 or O 7 r 10 except within the period of 21 days after a demand has been served upon a debtor company.
The primary judge correctly concluded that the Court had no jurisdiction to hear Rochester's application because it had not been made in accordance with s 459G(3). In those circumstances, Lader was entitled either to have the application set aside or, as was done here, to have it dismissed. The appeal should be dismissed with costs.
I certify that this and the preceding 10 pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam
Associate:
Date: 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 587 of 1996
)
GENERAL DIVISION )
BETWEEN: The Rochester Communications
Group Pty Limited
Applicant
AND: Lader Pty Limited
Respondent
THE COURT: Beaumont, Whitlam and Moore JJ
PLACE: Sydney
DATE: 26 March 1997
REASONS FOR JUDGMENT
Introduction
MOORE J: This is an appeal from a judgment of Sheppard J of 28 June 1996 dismissing an application under s 459G of the Corporations Law by The Rochester Communications Group Pty Ltd ("Rochester") to set aside a statutory demand. The statutory demand had been served on Rochester in April 1996 by Lader Pty Ltd (Lader") alleging a debt due of $125,000. The learned trial judge concluded that the application to set aside the demand had not been served within the time prescribed by s 459G(3)(b), namely 21 days. Consistent with the judgment of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1994-1995) 184 CLR 265 his Honour also concluded that the Court did not have jurisdiction to deal with the application.
The findings and conclusions of the trial judge
The central issue raised in the proceedings at first instance and on appeal, is what constitutes service for the purposes of s 459G. An essential fact, which is not in issue, is that the application to set aside the statutory demand was not served on the registered office of Lader but rather at Level 12, 185 Macquarie Street, Sydney. Several related findings of the learned trial judge were also not in issue.
His Honour found that the statutory demand was served on Rochester on 19 April 1996. It may have been served on 18 April 1996 but nothing turns on that difference. The application to set aside the demand and the affidavit in support were filed 19 days after service of the demand. His Honour also found that the address of Level 12, 185 Macquarie Street, Sydney came to be regarded by Rochester as Lader's address because it had been identified as such in a notice of appearance filed on Lader's behalf in proceedings in the Industrial Court of New South Wales. The appearance had been completed in that way because a secretary in the office of Laders' solicitors had adopted the address in Macquarie Street appearing in the originating process served on Lader in those proceedings. That address had been used by Rochester as Lader's address in the originating process in the Industrial Court and also in originating process in other proceedings against, inter alia, Lader in the Federal Court and the Supreme Court of New South Wales. The proceedings in the Federal Court are matter NG199 of 1996 ("the first Federal Court proceedings"). There was evidence before his Honour that the address of Level 12, 185 Macquarie Street was an office of FAI Insurances Ltd ("FAI"). His Honour also concluded there was no evidence suggesting Lader was in some way connected with FAI.
In his reasons, the learned trial judge referred to s220 of the Corporations Law. His Honour noted that it provided that a document may be served on a company by leaving it at, or by sending it by post to, the registered office of the company, and observed that the provisions of s220 were facultative and not mandatory. His Honour went on to say:
"But it is difficult to think of a way in which process may be brought to the attention of a company except by service upon it at its registered office. There are circumstances which arise for consideration in applications for substituted service where thought is given to serving directors and so on but, in the usual run of cases, the only safe method of service will be the traditional service of the process at the company's registered office.
I was referred to some of the other provisions of s.220 and also to Order 7 of the Rules of this Court in relation to service of documents. It is enough to say that I do not regard any of the other subsections of s.220 as having any bearing on the matter. I do not regard the provisions of Order 7, which deal generally with service of process in the Federal Court, as being relevant because the Rules cannot affect the meaning or operation of the Law."
What might constitute service for the purposes of s 459G(3)(b) Corporations Law?
Section 459G(3)(b) requires an application to set aside a statutory demand, and the supporting affidavit, to be served on the person who served the demand. That must be done within 21 days of the service of the demand. The application is competent only if these requirements are met: see David Grant & Co Pty Limited (supra). I will, from this point and for reasons of economy, refer only to the application to set aside the demand and not the supporting affidavit. Section 459G does not identify the manner in which service of the application is to be effected. In the absence of a statutory provision in the Corporations Law or elsewhere identifying the manner of service, the requirement in s 459G that the application be "served" would be satisfied by personal service that had the effect of bringing the served document to the attention of the recipient: see Hope v Hope (1854) 43 ER 534.
However, the Corporations Law contains several provisions that deal with the service of documents and provide some indication of what may be comprehended by the word "served" in s 459G(3)(b). One that has already been mentioned, s 220, relates to service on a company. Another, s 109X, relates to service on an individual or body corporate other than a company. Section 220 relevantly provides:
(1) A document may be served on a company by leaving it at, or by sending it by post to, the registered office of the company.
(2) For the purposes of subsection (1), the situation of the registered office of a company:
(a) in a case to which neither paragraph (b) nor paragraph (c) applies - shall be deemed to be the place notice of the address of which has been lodged under subsection 218(1);
(b) if only one notice of a change in the situation of the registered office has been lodged under subsection 218(3) - shall, on and from:
(i) the day that is 7 days after the day on which the notice was lodged; or
(ii) the day that is specified in the notice as the day from which the change is to take effect;
whichever is later, be deemed to be the place the address of which is specified in the notice; or
(c) if 2 or more notices of a change in the situation of the registered office have been lodged under subsection 218(3) - shall, on and from:
(i) the day that is 7 days after the day on which the later or latest of those notices was lodged; or
(ii) the day that is specified in the later or latest of those notices as the day from which the change is to take effect;
whichever is later, be deemed to be the place the address of which is specified in the relevant notice;
and shall be so deemed to be that place irrespective of whether the address of a different place is shown as the address of the registered office of the company in a return or other document (not being a notice under subsection 218(3)) lodged after the notice referred to in paragraph (a) or (b), or the later or latest of the notices referred to in paragraph (c), was lodged.
(4) Without limiting the operation of subsection (1), a document may be served on a company by delivering a copy of the document personally to each of 2 directors of the company who reside in Australia or an external Territory.
(4A) ...
(5) ...
(6) ...
(7) Nothing in this section affects:
(a) the power of the Court to authorise a document to be served on a company in a manner not provided for by this section; or
(b) the operation of an Australian law authorising a document to be served on a company in a manner not provided for by this section.
Section 109X(2) provides:
(2) Nothing in subsection (1):
(a) affects the operation of any other provision of this Law or any other law of the Commonwealth or of this or another jurisdiction that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
I will consider in more detail shortly the effect of s220. Yet another provision in the Corporations Law dealing with service is arguably s 459E(2)(e) together with Form 509H in schedule 2 to the Corporations Regulations. Section 459E relevantly provides:
"(1) A person may serve on a company a demand ...
(2) The demand:
(a) if it relates to a single debt - must specify the debt and its amount; and
(b) if it relates to 2 or more debts - must specify the total of the amounts of the debts; and
(c) must require the company to pay the amount of the debt, or the total of the amounts of the debts, or to secure or compound for that amount or total to the creditor's reasonable satisfaction, within 21 days after the demand is served on the company; and
(d) must be in writing; and
(e) must be in the prescribed form (if any); and
(f) must be signed by or on behalf of the creditor.
Form 509H is a form found in Schedule 2 of the Corporations Regulations and is the prescribed form for the purposes of s 459E(2)(e). That results from the combined operation of reg 1.03 and Schedule 1.
Form 509H sets out the contents of a statutory demand and identifies information that must be filled in to satisfy the requirements of the Corporations Law. The material parts of Form 509H are paragraphs 5 and 6 which provide:
"5. Section 459G of the Corporations Law provides that a company served with a demand may apply to a court having jurisdiction under the Corporations Law for an order setting the demand aside. An application must be made within 21 days after the demand is served and, within the same period:
(a) an affidavit supporting the application must be filed with the court; and
(b) a copy of the application and a copy of the affidavit must be served on the person who served the demand.
6. The address of the creditor for service of copies of any application and affidavit is (insert the address for service of the documents in the State or Territory in which the demand is served on the company, being, if solicitors are acting for the creditor, the address of the solicitors).
The combined effect of s 459E(2)(e) and paragraph 6 of the form is that a person serving a statutory demand is required to nominate an address for service of any application to set aside the demand. If the person serving the demand has retained solicitors, then the address nominated must be the solicitors' address.
Whether Form 509H identifies an address for service.
The Corporations Law does not in s 459E expressly authorise the prescription of a form that indirectly permits or requires service at an address nominated in the form. The purpose of s 459E is to identify what must be done by the person serving the demand to render the demand effective in the scheme created by Part 5.4. The section is not in terms that clearly indicates it has a subsidiary purpose of indirectly identifying what may or must be done by the recipient of a demand and, in particular, what may or must be done to effect service of any application to set the demand aside as required by s 459G(3)(b). I have spoken of what the recipient may or must do because, if the effect of Form 509H is that the address nominated in paragraph 6 is an address for service, a question would arise whether the applicant seeking to set aside the statutory demand is obliged to serve the application at that address or is simply permitted to do so.
It may be accepted that both s 459E and s 459G form part of a code dealing with the winding up of companies in insolvency based on the failure to comply with a statutory demand. However, the code is dependent for its operation upon other provisions of the Corporations Law. It is of some significance that, at least ordinarily, effective service of a statutory demand on a company depends upon service in accordance with the provisions of s220 of the Corporations Law. In my opinion, s220 similarly provides for the manner of service on a company of an application to set aside a statutory demand, as does s 109X in relation to service on an individual or corporation which is not a company. Nothing in s220, s 109X or Part 5.4 expressly or impliedly indicates otherwise.
The combined effect of the definition of "Australian law" and "law" in s9 of the Corporations Law is to include, as an Australian Law, the regulations made under the Corporations Law. Thus, both s 220(7) and s 109X(2) would preserve provisions dealing with service found in the Corporations Regulations, including the schedules. There is no necessary inconsistency between ss 220 and 190X and Form 509H. However, while ss 220 and 109X would preserve the operation of Form 509H in so far as it dealt with service, there remains the question whether the Corporations Law, either in s 459E(2)(e) or elsewhere, authorises the prescription of a form that enables a person serving a demand to identify where service must be effected for the purpose of s 459G(3)(b). In my opinion, it does not.
Form 509H was introduced into the Corporations Regulations by Statutory Rule No 135 of 1993. It is to be remembered that the Corporations Law was enacted as part of amendments to the Corporations Act 1989 made by the Corporations Legislation Amendment Act 1990 ("the 1990 Amending Act"). The 1990 Amending Act introduced, as part of the Corporations Law as it applying to the Australian Capital Territory s22(u) which provided:
"22 The Governor-General may make regulations, not inconsistent with this Act or the Law, prescribing matters:
(a) ...
(u) for or in relation to the manner in which:
(i) orders made under the Law may be served on persons affected by the orders; and
(ii) documents that are required or permitted by the Law to be served on a person may be so served;"
Statutory Rule No 135 of 1993 was made under s4 of the Acts Interpretation Act 1901 because, it would appear, the amendments to the Corporations Law introducing Part 5.4, including s 459E, came into effect after the regulations in Statutory Rule No 135 of 1993 had been made.
In my opinion, to the extent that it requires the identification of an address for service, Form 509H should not be construed as requiring that service be effected at the nominated address. Were it to do so, an issue would arise as to whether its enactment would have been authorised by s22, as it would limit the operation of ss 220(1) and 109X(1), thus, arguably, giving rise to an inconsistency with the operation of the Act: see Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402 at 410; The Queen v Commissioner of Patents; ex parte Martin [1953] HCA 67; (1953) 89 CLR 381; The King v Industrial Registrar of Commonwealth Court of Conciliation and Arbitration and The Australian Coal and Shale Employee's Federation; ex parte Sulphide Corporation Ltd [1918] HCA 80; (1918) 25 CLR 9; and Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298.
In my opinion, Form 509H indirectly identifies, by the requirement it imposes on a person serving a statutory demand, an address at which service of an application to set it aside may be effected for the purposes of s 459G(3)(b). However, it does not do so to the exclusion of other means of service identified in the Corporations Law.
The role of the Rules of the Federal Court
The clear purpose of ss 220 and 109X is to identify the manner of service on companies, individuals and other corporations for the purposes of the Corporations Law, and more generally, while preserving the operation of other provisions of the type identified in ss 220(7) and 109X(2) dealing with service. Subsections 220(7) and 109X(2) speak in terms of "not affecting" provisions of the type to which they refer.
However the function of such provisions in relation to a requirement elsewhere in the Corporations Law, such as s 459G(3)(b), that a document be "served" has to be considered. Such a requirement would, in the absence of a clear indication to the contrary, be satisfied by service in a manner identified in other provisions of the Corporations Law, namely ss 220 and 109X. If provisions dealing with service are expressed to be "not affecting" other methods of service then, in my opinion, there is manifest a clear legislative intention that the "unaffected" methods of service would also constitute service for the purposes of the Corporations Law as would service in the manner expressly identified in the Corporations Law itself.
It is thus necessary to ascertain whether the operation of those parts of the Federal Court Rules dealing with service are comprehended by ss 220(7) and 109X(2). I consider first the operation of s 220(7)(a) and the similar provision in 109X(2)(b). Each refers to a power of the court to authorise service of a document. Both "Court" in s 220(7)(a) and "court" in 109X(2)(b) are given, by s 9 of the Corporations Law, the meaning given by s 58AA. While the words are given different meanings in s 58AA, they have, in relation to the Federal Court, the same meaning. That is, the Federal Court when exercising the jurisdiction of this jurisdiction, namely jurisdiction under the Corporations Law. In my opinion, ss 220(7)(a) and 109X(2)(b) are intended to render "unaffected" either a power to authorise service reflected in rules of general application to proceedings under the Corporations Law or a power to authorise service reflected in a specific order in a particular matter under the Corporations Law. An example of the latter would be an order for substituted service. The former might be the provisions of O7r2(4), the terms of which I set out later, though they do not, in fact, authorise service in a manner that is not provided for in s 220. However, a rule of that type could be made which did so authorise service. In my opinion, O7r2(4) is not an "unaffected" provisions on which ss 220(7)(a) and 109X(2)(b) operate.
Sections 220(7)(b) and 109X(2)(a) are intended to preserve, respectively, the operation of "an Australian law" or, relevantly, "any other law of the Commonwealth", authorising service in a manner not provided by, respectively, ss 220 and 109X. While the Federal Court Rules are made under what is plainly an Australian law, namely the Federal Court of Australia Act 1976 , and are given some of the characteristics of regulations: see s56(4) of that Act, they are not, in my opinion, an "Australian law" or "law of the Commonwealth" at least as these expressions appear in ss 220 and 109X. Those expressions appear in a paragraph in each of the sub- sections (7) & (2), in which Court rules are dealt with in the other paragraph of the sub-section. Sections 220(7)(b)and 109X(2)(a) are not, in my opinion, directed to rules of court.
In my opinion, O7r1 and r2 of the Federal Court Rules are not "unaffected" provisions which identify a method of service that would constitute service of the purpose of s 459G(3)(b). Accordingly, the only way the application to set aside the statutory demand could have been "served" so as to satisfy s 459G(3)(b) was in accordance with s 220 or at the address identified in the statutory demand. It was not.
The effect of the Rules of the Federal Court, if applicable
If the conclusion I have just expressed is not correct, it would be necessary to consider the operation of the Federal Court Rules dealing with service generally. An application to set aside the statutory demand is an originating process and, under the Federal Court Rules but subject to the operation of O1r8, must be served personally: see O7r1. Personal service on a company is dealt with by O7r2(1)(b) and (4) which provide:
2 (1) Personal service of a document is effected on-
(a) ...
(b) a corporation - by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years -
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation: and
(2)....
(3) ...
(4) In spite of subrule 2(1), for the purposes of Order 71, personal service may be effected:
(a) on a company, as defined in section 9 of the Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory ("the Corporations Law"), in any manner permitted by section 220 of the Corporations Law; and
(b) on the liquidator of a company, in the manner permitted by subsection 220(5) of the Corporations Law; and
(c) on an official manager of a company, in the manner permitted by subsection 220(6) of the Corporations Law.
Having regard to the evidence in this matter, including the fresh evidence admitted in the appeal, service of the application to set aside the statutory demand was not effected in accordance with either O7r2(1)(b) or, having regard to O7r2(4)(a), s220.
However, it was submitted by Rochester that service was effected in accordance with O7r4(1)(a) and the failure to serve personally should be dealt with by application of O1r8. Order 7r4(1) and (2) provide:
4(1) Where personal service of a document is not required, the document may be served -
(a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day on which the Registry in that State or Territory is open; or
(b) by sending a copy of the document by pre-paid post addressed to the person to be served at his proper address; or
(c) where any enactment of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation by serving the document in accordance with such provision; or
(d) where a person to be served has, under rule 7 of this Order, filed a note for service at an exchange box of a solicitor, by leaving a copy of the document, addressed to that solicitor, in that exchange box; or
(e) by facsimile transmission directed to the facsimile transmission number operated at, or in connection with, the proper address.
4(2) For the purposes of sub-rule(1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to sub-rule(1), he has no address for service in the proceeding, his usual or last known place of business or of abode shall be his proper address.
It is not entirely clear whether the reference to person in O7r4(1)(a) includes a reference to a company though, in my view, it does. In O7r2(1) a distinction is drawn, where necessary, between an individual and a corporation. Sections 22(1)(a) and 46 of the Acts Interpretation Act 1901 , would, in the absence of an indication to the contrary, result in the word "person" in O7r4 comprehending a corporation. That it did was accepted by Pincus J in Westpac Banking Corporation v P & O Containers Ltd (1991) 105 ALR 90 at 93.
Central to the operation of O7r4(1) is, for present purposes, that service on the last known place of business. The knowledge referred to in O7r4(2) is the knowledge of the person effecting service: see Overbeek v Mayor, Councillors & Citizens of Broadmeadows [1971] VR 353 at 355, Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, Commonwealth of Australia v Carkazis (1978) 23 ACTR 5.
The factual issue that then arises is what was the last place of business of Lader known to Rochester. The underlying commercial relationship between Lader and Rochester arises from a joint venture agreement of 18 June 1991. Lader is an investment company. In the recitals to the agreement the registered office of Lader is identified as 12th floor, 185 Macquarie Street. Curiously, the abbreviated form for the name of Lader adopted in the agreement is "Adler".
Clause 28 of the agreement provided:
28.1 Any notice or other communication required or permitted pursuant to this Agreement shall be given in writing and shall be delivered personally or sent by pre-paid registered letter, by facsimile, by telex or by cable;
In the case of Adler, to:-
Addressee: The Company Secretary,
Lader Pty Limited
Address: FAI Insurance Building
12th Floor
185 Macquarie Street
Sydney NSW 2000
Facsimile: (02) 223 1144
Attention: Mr Adler
or to such other address, telex number or facsimile number as Adler may from time to time specify.
It can be inferred that, in June 1991, the usual place of business of Lader known to Rochester was Level 12, 185 Macquarie Street, Sydney. There was evidence before the trial judge, which was not put in issue, that Mr Rodney Adler was a director of Lader and that his office was at Level 12, 185 Macquarie Street Sydney NSW.
The statutory demand served on Rochester on 18 or 19 April 1996 identified, in paragraph 6, the address for service of any copy of any application to set aside the demand as "Rosenblum & Partners, Level 29, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000". The nomination of that address, being that of a firm of solicitors then known to be acting for Lader, could not have had a bearing on the knowledge of Rochester as to the place of business of Lader.
It is true that a notice of appearance filed on 15 March 1996 in the first Federal Court proceedings identified Lader's address as "c/- Brentwood Corporation Ltd, Level 9, 210 George Street Sydney, NSW". Similarly, a notice of appearance filed in the Supreme Court proceedings on 26 April 1996 identified Lader's address as "Level 9, 210 George Street Sydney NSW 2000". There is no direct evidence of these notices of appearance having been served but it is likely they were having regard to the requirement to do so in the rules of this Court and the Supreme Court. The evidence disclosed that the application and statement of claim in the first Federal Court proceedings had been served by Rochester on Lader at Level 12, 185 Macquarie Street Sydney. Of some importance is the fact that the filing of an appearance by Lader in the first Federal Court proceedings followed service at the Macquarie Street address. That would indicate that there continued to be a connection between that address and Lader.
The notice of appearance in the Industrial Court proceedings was also filed on 26 April 1996. The last communication, about which there is clear evidence, received by Rochester from Lader before the application under s 459G was served on 8 May 1996, was that notice of appearance received on 6 May 1996 by the solicitors for Rochester. It emerges from affidavit evidence before the trial judge that, when the documents were served at the Macquarie Street address, the person upon whom they were served, a Ms Katie Melides, made a phone call. It may be accepted that, before the trial judge, was a letter from Lader's solicitors to Rochester's solicitors in which it was asserted that Ms Melides was neither an employee of Lader nor an agent of Lader. It was said she did have actual or ostensible authority to accept service. However, the evidence is that when asked whether the address was the registered office of Lader by the process server who said she needed to serve documents, Ms Melides said she would check. She made a phone call and then said "Yes, that is OK". This evidence is consistent with the usual place of business being, at the time, the Macquarie Street address.
I earlier referred to service of the application and statement of claim in the first Federal Court proceedings at the Macquarie Street address and the subsequent notice of appearance filed on behalf of Lader. It can be inferred that service at that address resulted in the application coming to the attention of officers of Lader who then instructed solicitors to act on its behalf in the matter. Whether the matter was considered by the board of Lader is not known. That those instructions had been given would have fortified the view of those acting for Rochester that the Macquarie Street address was the place of business of Lader. In my opinion, the application to set aside the statutory demand was served at the last known place of business of Lader.
The question that then arises is whether the power conferred by O1r8 should be exercised to relieve Rochester of the requirement to effect personal service. That may be done after the service has been effected: see Moore v Tooheys Ltd [1981] FCA 172; (1981) 56 FLR 345 at 348-349 and Lazar v Taito (Australia)Pty Ltd [1985] FCA 35; (1985) 5 FCR 395 at 413- 414. I presently assume that the power may be exercised after the 21 days referred to in s 459G(3)(b) so as to regularise service prior to that time which is irregular. However there is no evidence that the application to set aside the statutory demand came to the attention of officers of Lader within the prescribed period, that is, within 21 days of the service of the demand. In the absence of such evidence, it must be doubted that the power conferred by O1r8 could be used to impute receipt of the application of officers of Lader within that time. Even if it could, its exercise in such circumstances would render less effective the limits inherent in the scheme Parliament has adopted in Part 5.4. For this reason I would not exercise the power conferred by O1r8. Thus service has not been effected in accordance with the Federal Court Rules either by complying with O7r2 or, after dispensation under O1r8, complying with O7r4.
Other Matters
Rochester submitted that the failure to effect personal service is a matter that may be dealt with under s1322 of the Corporations Law: see CFC Corporation Pty Ltd v Lanier (1993) 11 ACSR 772, and ATCO Industries (Australia) Pty Ltd v Ancla Martima S.A. (1984) 35 SASR 408 at 413-414. However, for the reasons just discussed in relation to O1r8 and assuming power arises under s1322 which must, in the present circumstances, be doubted having regard to David Grant & Co Pty Ltd (supra), I would not make an order rendering effective the service at the Macquarie Street address. The consequence of this is that the application to set aside the statutory demand was not served within the time prescribed by s 459G(3)(b).
As earlier discussed, satisfaction of the requirement in s 459G(3)(b) that the application be served is essential to found the Court's jurisdiction to determine the application to set aside the statutory demand. It may be doubted whether, if there had not been service in any of the ways I have discussed, estoppel has a part to play so as to satisfy the requirement in s 459G(3)(b). If it does, then for the reasons given by Beaumont J and Whitlam J, there has been no relevant representation and no estoppel arises.
I would dismiss the appeal with costs.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Alexandra George
Dated: 26 March 1997
Counsel and Solicitors Mr S Rothman SC and Mr N Rudland
for the appellant: instructed by Blessington Judd
Counsel and Solicitors Mr D J Hammerschlag instructed by
for the respondent: Rosenblum & Partners
Dates of hearing: 28 November 1996
Date Judgment delivered: 26 March 1997
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