Gillett v National Benefit Life & Property Assurance Co Ltd [1918] HCA 21; (1918) 24 CLR 374 (18 April 1918)

HIGH COURT OF AUSTRALIA

Gillett Plaintiff, Appellant; and The National Benefit Life and Property Assurance Company Limited Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

18 April 1918

Gavan Duffy, Powers and Rich JJ.

Flannery, for the appellant.

Delohery, for the respondent.

Flannery, in reply.

The judgment of the Court, which was read by Rich J., was as follows:—

April 18

Gavan Duffy, Powers and Rich JJ.

This is an appeal from an order of the Supreme Court of New South Wales affirming an order made by Ferguson J. whereby his Honor set aside the service of a writ in an action brought by the appellant to recover damages from the respondent Company under a policy of fire insurance. The respondent Company is a company incorporated and registered in London under the provisions of the Companies Act of the United Kingdom. In September 1914 the respondent Company was registered under the provisions of the New South Wales Companies (Amendment) Act 1906, and registered its office and one Speer as its public officer. After that date the Company carried on business in New South Wales and issued a policy of insurance to the appellant. In August 1915 a claim arose under this policy. In October 1915 the Company ceased in fact to carry on business in New South Wales, and Speer ceased in fact to be its agent. On 18th August 1916 Speer informed the Registrar-General as Registrar of Joint Stock Companies that the Company had ceased to carry on business in New South Wales and to occupy any office therein, and that his engagement as agent and public officer of the Company was terminated. On 22nd March 1917 the plaintiff issued a writ, and on 23rd March 1917 served it on Speer at the place registered as the office of the Company. The Company moved to set aside the service of the writ, and Ferguson J. granted the application and set aside the service. The appellant then applied to the Supreme Court of New South Wales to set aside that order. The Supreme Court, however, affirmed the order, and from it this appeal is now made to us.

The question for our determination turns upon the construction of the New South Wales Companies (Amendment) Act No. 22 of 1906 as amended by the Companies (Amendment) Act 1907.

The relevant parts of the former Act are:—

Sec. 7 (1): "Every company or society formed or incorporated in any country, colony, or State other than New South Wales and carrying on business in New South Wales shall, within six months from the commencement of this Act, or before commencing to carry on business in New South Wales, register—(a) its name and a copy of its memorandum and articles of association, or any like document; (b) a balance sheet containing a statement of its assets and liabilities at a date not more than twelve months prior to the date of such registration; (c) the name and place of abode or business of the person appointed by such company or society to carry on the business of such company or society in New South Wales; and (d) the situation of the principal office of such company or society in New South Wales. The person so registered shall be deemed to be the agent of such company or society, and shall be called the public officer of the company or society, and such office shall be the registered office of such company or society for the purposes of this Act. Every company or society which fails to comply with this provision, and any person carrying on in New South Wales the business of any such company or society which has failed to comply with such provision, shall be liable to a penalty not exceeding five pounds for every day during which business shall be carried on."

The section deals with foreign companies and societies already carrying on business within New South Wales at the passing of the Act, and with those wishing to do so in the future. With respect to the latter the effect of the section is simply to prohibit them from so carrying on business until they have complied with the requirements of the Act with regard to registration, and to impose a penalty on them and their agents if they do so. It has no application to companies or societies not carrying on business in New South Wales.

Secs. 8, 9 and 10 as amended appear to be applicable to a foreign company or society which is carrying on business within New South Wales, and not to have any application to such a company or society before it has commenced to carry on business there or after it has ceased to do so. These sections are intended for the information and protection of persons dealing or intending to deal with foreign companies or societies in New South Wales. To construe them otherwise would be to hold that the Legislature of New South Wales had attempted to impose a wholly unnecessary burden upon foreign companies and societies not carrying on business within its territorial jurisdiction.

Sec. 11: "A certificate purporting to be under the hand of the Registrar-General (who is hereby required to give such certificate to any person applying for the same on payment of the prescribed fee), and which shall set forth the name of the company or society, and of the agent of and the situation of the principal office of the company or society in New South Wales, shall be primâ facie evidence in all Courts that such company or society is incorporated, that the person named therein as agent is the agent of such company or society in New South Wales, and that the office of such company or society in New South Wales is situate as therein stated, and that such company or society, agent, and office have been duly registered under the provisions of this Part of this Act, and of the time of registration, and of all particulars mentioned in such certificate."

This section provides that the certificate shall be primâ facie, and therefore rebuttable, evidence of certain specified matters, but does not pretend to provide that it shall be evidence that the company is carrying on business in New South Wales. Proof of that fact must be made otherwise than by production of the certificate. In view of the preceding and succeeding sections it would appear that the words "company or society" mean company or society carrying on business in New South Wales, and that the section has relation only to such companies and societies. In other words, the certificate proves certain facts with respect to such companies and societies, and with respect to them only.

Sec. 12: "When and so often as any such registered office shall be removed, or any other person shall be substituted for the registered agent of such company or society, the like declaration and notice shall be made and given as is hereinbefore required with reference to the registration of a company or society, and if the requirements of this section shall not be complied with, such company or society, and any person carrying on the business of such company or society which has failed to comply with such provisions, shall be liable to a penalty not exceeding five pounds for every day during which the business is so carried on."

This section also appears to apply only to companies and societies carrying on business within New South Wales. The words "such company or society" mean a company or society registered under the provisions of sec. 7 for the purpose of carrying on business within New South Wales and so carrying it on. It is such a company or society and the person actually carrying on its business within the territorial jurisdiction of the New South Wales Legislature that are penalized for non-compliance with the section. No penalty is imposed on the person appointed to carry on the business unless he is in fact doing so.

Sec. 13: "All communications and notices may be addressed to such registered office of such company or society, and service of any notice or legal process at such office, or on the agent of the company or society whose name is registered pursuant to this Part, shall be deemed to be service upon the company or society."

The "company or society" mentioned here is the company or society mentioned in the preceding sections, namely, a company or society registered under sec. 7 and carrying on business within New South Wales.

The amending Act of 1907 (which was not brought to the notice of the Courts below or to our notice), by sec. 2, corrects the definition of contained in sec. 2 of the former Act by excluding Part III. from the definition, and so cuts away the argument founded on this definition, that registered foreign companies were intended to be placed on the same footing as local registered companies under Part. I. of the Companies Act 1899.

No provision is made in either Act for the deregistration of a company which has ceased to carry on business, and we are pressed to say that the Legislature must have intended that a company, having once registered under sec. 7, should continue liable to be served. We think that if the Legislature had intended to make foreign companies which had registered amenable to process after they had ceased to carry on business within New South Wales, it would have said so in express terms (Forrest v. Pittsburg Bridge Co.[1]; conf. Ex parte Schollenberger[2]).

The question, then, is whether in the circumstances of this case the respondent Company comes within the operation of sec. 13 of the Act of 1906. In our opinion it does not. Before the Act was passed a foreign company might have bound itself by agreement that service on a person in New South Wales should be sufficient service on the company, or it might, by carrying on business in New South Wales in such a way as to be resident there, have rendered itself liable to service in New South Wales. The Act under review (in addition to affording the public information as to the stability of the company seeking or carrying on trade here) was intended to obviate the difficulties which existed in the case of a foreign company as to the proof of incorporation and of the situation of its principal office, and in respect of the question whether the person served was its head officer in New South Wales. We cannot find in the language used in the Act any intention on the part of the Legislature that the Company should be deemed to be resident or, if not resident, should be deemed to be represented for the purpose of service in New South Wales when in fact at the time it was not doing business there.

Sec. 13 does not extend a foreign company's amenability to service beyond what previously existed. When such a company are, to use the words of the Earl of Halsbury L.C. in La Compagnie Générale Transatlantique v. Thomas Law & Co.—La Bourgogne[3], "resident here in the only sense in which a corporation can be resident ..., they are here; and, if they are here, they may be served."

For these reasons we agree with the conclusion arrived at by the Supreme Court.

Appeal dismissed with costs.

Solicitors for the appellant, McGuren & Pollack, Grafton, by Pigott & Stinson.

Solicitors for the respondent, Minter, Simpson & Co.

[1] 116 Fed. Rep., 357, at p. 359

[2] [1877] USSC 74; 96 U.S., 369, at p. 374

[3] (1899) A.C., 431, at p. 433.