Federal Court of Australia

Dyirranga Ltd v Deputy Commissioner of Taxation [2024] FCA 411

ORDERS

THE COURT NOTES THAT:

1.    On 4 April 2024, an order was made pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth) to answer the following question (separate question):

“Whether the application to set aside the three statutory demands dated 11 January 2024 and served on 18 January 2024 identified in paragraphs 1, 3 and 5 of originating process respectively and the affidavit supporting the application was made within the 21 day statutory period specified in s 459G of the Corporations Act 2001 (Cth)”

2.    The answer to the separate question is no.

THE COURT ORDERS THAT

3.    The proceeding is dismissed.

4.    The plaintiffs are to pay the defendant’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 18 January 2024 the defendant, the Deputy Commissioner of Taxation (DCT), served a statutory demand on each of Dyirranga Ltd, LCS Electrical & Data (VIC) Pty Ltd (LCS (VIC)) and MS7 Enterprises Pty Ltd who are the first, second and third plaintiffs respectively. LCS Electrical & Data (QLD) Pty Ltd is the fourth plaintiff.

2    On 8 February 2024 the plaintiffs commenced this proceeding by filing an originating process seeking orders, among others, that pursuant to s 459H(1) of the Corporations Act 2001 (Cth) the statutory demands served on each of Dyirranga, LCS (VIC) and MS7 be set aside or, alternatively, that they be varied to such amount as the Court determined. The balance of the relief sought by the plaintiffs in the originating process concerns the DCT’s decision not to accept a payment plan under s 255-15(1) of Sch 1 to the Taxation Administration Act 1953 (Cth).

3    On 4 April 2024, on the application of the DCT, I made an order pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth) that the Court hear and determine the following question (separate question) ahead of all other questions:

Whether the application to set aside the three statutory demands dated 11 January 2024 and served on 18 January 2024 identified in paragraphs 1, 3 and 5 of originating process respectively and the affidavit supporting the application was made within the 21 day statutory period specified in s 459G of the Corporations Act 2001 (Cth).

4    These reasons address the separate question.

Facts

5    The facts were not in dispute.

6    As set out above the statutory demands which are the subject of this proceeding were served on each of Dyirranga, LCS (VIC) and MS7 on 18 January 2024. The 21 day period prescribed for the purposes of s 459G of the Corporations Act expired on 8 February 2024.

7    On Thursday, 8 February 2024 at 4.18 pm the originating process commencing this proceeding and affidavit in support affirmed by the sole director of each of the plaintiff companies, Mark Strachan, were electronically lodged with the Court via the Court’s eLodgement portal. The Court issued a document acknowledging the lodgement but no return date for the hearing of the application was communicated by the Court at that time.

8    On the same day, 8 February 2024, the plaintiffs’ solicitors provided unsealed copies of the originating process and Mr Strachan’s affidavit to the DCT by email and in hard copy. They did not provide a copy of the lodgement receipt or communicate a return date for the hearing of the application at that time.

9    On 12 February 2024 at 10.29 am the Court, via its eLodgement portal, sent an email to the plaintiffs’ solicitors confirming that the lodgement of the originating process and Mr Strachan’s affidavit had been accepted. Those documents had been sealed and a return date was recorded on the originating process. At 2.55 pm on the same day the plaintiffs’ solicitors sent a copy of the sealed originating process bearing the return date and the sealed affidavit to the DCT.

10    Although not relevant to a resolution of the separate question, the plaintiffs also drew my attention to the following facts:

(1)    Mr Strachan informed his solicitors of receipt of the statutory demands on 19 January 2024;

(2)    on 6 February 2024 the plaintiffs’ solicitors forwarded an email to the DCT in relation to a proposed payment plan;

(3)    on 6 February 2024 the DCT responded to the email referred to in the preceding subparagraph, rejecting the proposed payment plan; and

(4)    on 7 February 2024 Mr Strachan instructed his solicitors to prepare an application, including an application to set aside the statutory demands.

Statutory framework

11    Section 459E of the Corporations Act permits a creditor to serve a statutory demand on a company.

12    Section 459F(2) provides for the period for compliance with a statutory demand. Relevantly, where a company applies in accordance with s 459G for an order setting aside the demand, the date for compliance is as specified in s 459F(2)(a). Otherwise, it is the period that ends 21 days after the demand is served.

13     Section 459G of the Corporations Act provides:

(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 the statutory period after the demand is so served.

(3)    An application is made in accordance with this section only if, within that period:

(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.

14    The term “statutory period” is defined in s 9 of the Corporations Act to be 21 days.

15    Also relevant to this determination of the separate question are the Federal Court (Corporations) Rules 2000 (Corporations Rules) and the Federal Court Rules.

16    Insofar as the Corporations Rules are concerned:

(1)    rule 1.3(1) provides that unless the Court otherwise orders the Corporations Rules apply to a proceeding in this Court under, among others, the Corporations Act commenced on or after the commencement of the Corporations Rules;

(2)    rule 1.3(2) provides that the Federal Court Rules apply, to the extent they are relevant and not inconsistent with the Corporations Rules, to a proceeding in the Court under, relevantly, the Corporations Act commenced on or after the commencement of the Corporations Rules;

(3)    rules 2.2(1)(a) and (3) provide that an application required or permitted by the Corporations Act to be made to the Court is to be made by filing an originating process in accordance with Form 2;

(4)    rule 2.3 provides that upon receiving an originating process or interlocutory process, the Registrar must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process and may seal a sufficient number of copies for service and proof of service;

(5)    rule 2.4A applies expressly to an application for an order setting aside a statutory demand under s 459G of the Corporations Act. It provides:

(1)    This rule applies, and subrule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company.

(2)    The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand.

(3)    The plaintiff must:

(a)    no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the plaintiff; and

(b)    either:

(i)    annex the record of the search to the affidavit in support of the originating process; or

(ii)    file the record of the search before or tender it on the hearing of the application.

(6)    rule 2.7(1) provides that:

As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on:

(a)    each defendant (if any) to the proceeding; and

(b)    if the corporation to which the proceeding relates is not a party to the proceeding—the corporation.

17    As for the Federal Court Rules, the following rules, which are not inconsistent with the Corporations Rules, are relevant:

(1)    rule 2.21 concerns how documents may be lodged with the Court and relevantly provides that a document may be lodged with the Court by, among other things, being sent by electronic communication to a registry, in accordance with rule 2.23;

(2)    rule 2.23 relevantly provides:

(1)    A document that is sent by electronic communication to a Registry for filing must:

(a)    be sent by using the Court's website at http://www.fedcourt.gov.au; and

(b)    be in an electronic format approved by a Registrar for the Registry; and

(c)    if a document is required to be in accordance with an approved form so far as is practicable, be in an approved form that complies with rule 2.12 or 2.13; and

(d)    be capable of being printed in the form in which it was created without any loss of content.

(3)    rule 2.24 concerns documents which are sent by electronic communication and relevantly provides:

(1)    If a document sent to a Registry by electronic communication in accordance with rule 2.23 is accepted at the Registry, and is a document that must be signed or stamped, a Registrar will:

(a)    for a document that these Rules require to be endorsed with a date for hearing--insert a notice of filing and hearing as the first page of the document; or

...

(2)    If a notice has been inserted as the first page of the document in accordance with subrule (1), the notice is taken to be part of the document for the purposes of the Act and these Rules.

(4)    rule 2.25 provides for when a document is filed and relevantly provides:

(1)    A document is filed if:

(a)    it is lodged with the Court in accordance with rule 2.21(1); and

(b)    either:

(i)    for a document in an existing proceeding - it is accepted in the proper Registry by having the seal of the Court affixed to it; or

(ii)    in any other case - it is accepted in a Registry by having the seal of the Court affixed to it.

…

(3)    If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:

(a)    if the whole document is received by 4.30 pm on a business day for the Registry - on that day; or

(b)    in any other case - on the next business day for the Registry.

(5)    the term “file” is defined in the dictionary, which is Sch 1 to the Federal Court Rules, to mean “file and serve”.

Legal principles

18    In Opensoft Australia Pty Limited v Miller Street Pty Limited [2011] FCA 653 Jagot J considered whether an originating process seeking an order setting aside a statutory demand under s 459G had been made in accordance with the requirements of that section. The originating process and affidavit in support had been filed electronically using the Court’s eLodgement facility on 11 May 2011 at 4:05:36 PM AEST. However, the copies of those documents that were served did not bear the Court’s seal.

19    Having regard to the operation of s 459G of the Corporations Act, the Corporations Rules and the applicable Federal Court Rules, Jagot J noted (at [29]) that the originating process and affidavit in support were accepted for filing by a Registrar of the Court at 4.05 pm on 11 May 2011 and were taken to have been filed on that date. At [30] her Honour identified the issue for resolution, namely whether the requirement for service set out in s 459G(3)(b) of the Corporations Act had been satisfied in circumstances where:

… (i) the statutory demand by Miller Street specified in para 6, as required, an address for service of copies of any application and affidavit to have the demand set aside, (ii) one address so specified in New South Wales was TW Agency, 251 Elizabeth Street, Sydney, New South Wales 2000, (iii) there was delivered to TW Agency at that address copies of the originating process and affidavit in support in the form in which they were lodged for filing, but which did not bear the Court’s seal, a proceeding number, or a return date, (iv) on 11 May 2011 there was, against the background of the communications between Mr Price and Mr Daoud described above and set out in their affidavits, an email sent to Mr Daoud attaching copies of the originating process and affidavit in support as filed (that is, bearing the Court seal, proceeding number and return date), and (v) Mr Daoud, on what he described as his computer, opened the attachments and saw them, and also saw that the email had been sent to an email address for Mr Tayles, but (vi) Mr Tayles did not receive that email or its attachments.

20    At [32]-[38] Jagot J surveyed the authorities which stood for the proposition that the requirement in s 459G(3)(b) of the Corporations Act is for a copy of the application and supporting affidavit to be served as filed or, put another way, that s 459G(3(b) requires that a copy of the originating process and supporting affidavit as sealed by the Court, bearing a proceeding number and a return date, be served. It is convenient to set out her Honour’s summary of the authorities:

32    In Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181 (Benonyx), Santow J in the Supreme Court of New South Wales dealt with a matter in which the application as served on the defendant omitted the return date. Santow J held that this was not service in accordance with s 459G(3)(b), observing (at [6]):

… how can the party who is served have received proper notice of the proceedings for which attendance is required within the twenty-one days when that party is not told of the important fact of the return date of the application to set aside the statutory demand until after the twenty-one days[?]

33    In Chelring Pty Ltd v Coombs [2000] WASC 60, Master Sanderson in the Supreme Court of Western Australia dealt with a matter in which the application as served did not have the action number on the top right-hand corner of the document, did not have the date and time at which the application would be heard, and did not bear the seal of the Supreme Court. Master Sanderson held that the application had not been served in accordance with the requirements of s 459G(3)(b).

34    In LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134, Holmes J of the Supreme Court of Queensland dealt with a matter in which an unsealed copy of an application bearing no return date or file number was faxed on the last day for service. It was held that this was not effective service for the purposes of s 459G(3)(b).

35    In Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2005] 1 Qd R 12; [2004] QSC 308, Chesterman J dealt with a matter in which the application as served did not contain an application number, the date on which the application would be heard, or the seal of the Court. Consistent with the earlier decisions, which Chesterman J reviewed, it was said (at [34]) that those decisions:

… express… a justifiable exposition of s 459G. The copy of the application which the section requires to be served must show that an application has been filed and when the respondent is required to attend and answer it. It will not perform these functions if it is not sealed and does not show the action number allocated by the court. The inclusion of the return date is obviously necessary.

36    Accordingly, there was no effective service in that case.

37    In Accommodation West Pty Ltd v Innis [2009] WASC 337, the application as served did bear an action number, the date of filing and the signature of the principal Registrar. The only thing it lacked was a return date. Master Sanderson, however, reviewed the earlier authorities and (at [7]) said that:

I think all of these cases indicate there must be strict compliance with the requirements of s 459G. In this case, there has not been strict compliance with the requirements of the section and the application to set aside the demand is not properly on foot.

38    Finally, the Supreme Court of Western Australia (Appeal) dealt with the same issue in Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338; [2000] WASCA 409. In that case, the only deficiency in the documents as served was that four pages had been omitted from an annexure to the affidavit in support. The Court held that, as what was required to be served was a copy of the supporting affidavit (including annexures), there had not been compliance with the requirements of s 459G(3)(b).

21    The plaintiff in Opensoft argued that these decisions were wrongly decided. Her Honour rejected that argument. At [41]-[42] Jagot J said:

41    The requirements of s 459G are clear. Section 459G(1) enables an application to be made to a Court to set aside a statutory demand. An application is made to a Court once it has been accepted by that Court. Under s 459G(2), an application may only be made within the 21-day period specified. Section 459G(3) also specifies that an application is made in accordance with s 459G(1) only if within the same 21 days two things occur: namely, an affidavit supporting the application is filed with the Court; and a copy of the application and of the supporting affidavit are served on the person who served the demand on the company. On the ordinary meaning of these provisions, it is difficult to see how the application and supporting affidavit can be other than the application as filed and the supporting affidavit as filed.

42    As a matter of purpose, moreover, compliance with s 459G, as the authorities make clear, requires that the documents as served inform the recipient that the proceeding has in fact been commenced through acceptance by the Court of the originating process. They must also inform the recipient of what Santow J described in Benonyx as the “important fact” of the return date for the application.

22    It followed that delivery of a folder of documents to the defendant’s solicitors which did not bear a proceeding number, the Court’s seal or the return date of the originating process in that case did not amount to service as required by s 459G(3)(b).

23    Since Opensoft there have been further decisions which consider the construction and operation of s 459G of the Corporations Act. I was taken to a selection of those decisions.

24    In PCM Nominees (WA) Pty Ltd v ACN 063 291 430 Pty Ltd [2017] FCA 848 McKerracher J considered whether an application to set aside a statutory demand should be dismissed for want of jurisdiction because the plaintiff had not satisfied the requirements of s 459G of the Corporations Act. The application to set aside the demand and affidavit that were served within the 21 day period did not bear the Court’s seal, the Registrar’s signature or any Court stamp, the Court proceeding number or the return date for the application, which the defendant argued were all required by s 459G(3)(b).

25    At [34] McKerracher J observed that s 459G defines the jurisdiction of a court in its imposition of the 21 day requirement as an essential condition to an application to set aside a statutory demand, referring to David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265. His Honour noted that it was common ground that the application to set aside the statutory demand was filed within the 21 day time limit but went on to observe that it was not “in any formal sense, served within time”.

26    At [41] McKerracher J said that he was bound to follow the approach taken in Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 143 ALR 648 in which filing was within time but service was not effected at the correct address on the corporate defendant. His Honour continued:

Noting that strict compliance with the time limits was required so that all involved will know where they stand at the expiration of 21 days after service of the demand, Beaumont J noted in Rochester (at 670):

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 [referring to the scheme of Pt 5.4 of the Act].

27    At [43] McKerracher J concluded that service of the plaintiff’s application was defective.

28    In CPR Solutions v Zammit Earthmoving Pty Ltd (2020) 4 QR 624 on 17 March 2020 the applicant filed an application to set aside a statutory demand within the 21 day period prescribed by s 459G of the Corporations Act by delivering it and the supporting affidavit to the Supreme Court of Queensland’s Mackay registry. At the time the application was date and receipt stamped and the applicant’s solicitors were provided with a Queensland Courts official receipt for the filing fee with the name of the matter. A sealed copy of the application was not made available until 6 April 2020. In the meantime, on the 21st day, the applicant served a copy of the unsigned application by email without a date stamp or receipt stamp and without a return date but with a copy of the court receipt. The respondent disputed the validity of service of the application.

29    In dismissing the application, at [64] Crow J said:

The purpose of s 459G(3)(b) Corporations Act 2001 (Cth) is to ensure that a person who was served a statutory demand was provided with notice of an application to set aside the statutory demand, and this is to be achieved by providing a “copy of the application”. In the present case, the registrar did not return a service copy to the applicant or issue a copy of the application. Whilst it is not necessary for the document served to be “an exact replica”, the document served was different from the document filed as it omitted the date of filing stamp and the receipt stamp. As the document did not have a matter number, a court seal, a registrar’s signature or a return date, the only indication on the document that it had been filed in the registry was the inclusion of the date and receipt stamps. Absent the date and receipt stamps there was nothing on the document to show that it had been filed and that curial proceedings had commenced. Although, the service of the court receipt provided the same information, that is not the test. The test is simply whether the document that was served was a sufficient copy of what was filed for the purpose of s 459G(3) Corporations Act 2001 (Cth). The document which was served was not a sufficient copy as it omitted the date stamp and the receipt stamp, which were the only indication that the application had in fact been filed and a curial proceedings had commenced.

(Footnote omitted.)

30    In the course of his Honour’s reasoning in CPR Solutions Crow J referred to Craneford Nominees Pty Ltd v VGC Co-Operative Ltd (2012) 262 FLR 283; [2012] SASC 74, a decision on which the plaintiffs place some reliance. In Craneford the question before the Court was whether the document which had been served within the prescribed 21 day period was a “copy of the application” within the meaning of s 459G(3)(b) of the Corporations Act. Relevantly, the application that was served included the action number and the Supreme Court of South Australia’s “received” stamp. It did not include the court’s seal or the Registrar’s signature.

31    At [14] Stanley J observed that at issue “was a question of statutory construction”, namely the meaning of the expression “a copy of the application” in s 459G(3)(b) of the Corporations Act. At [16]-[19] Stanley J identified the policy and purpose of the section and, having done so, observed that “[i]dentification of Parliament’s purpose in imposing the requirement for service of a copy of the application and the supporting affidavit on the person who served the statutory demand, does not require that the copy of the application required to be served pursuant to s 459G(3)(b) is in all respects an exact copy of the application filed in the court”: at [19]. At [21] Stanley J concluded that:

An analysis of the authorities demonstrates that a document will satisfy the definition of a “copy of the application” where:

(1)    the copy document reflects the form of the originating process accepted by the court within the 21 day period;

(2)    the copy document evidences the fact of the court’s acceptance, and hence, the fact that proceedings have been commenced, by some mark, whether it is the seal of the court, the Registrar’s signature, or some other authenticating mark such as the court stamp or action number; and

(3)    the copy document records the important fact of the return date of the application.

32    Justice Stanley found that the action number and court’s “received stamp” appearing on the application that was served evidenced the authenticity of the document as a copy of the application accepted by the court for filing, even in the absence of the court’s seal or the Registrar’s signature. His Honour found that in all other respects the application that was served met the test set out at [21] of his Honour’s reasons (see above). Accordingly, the copy application served was a sufficient copy of the application to satisfy s 459G(3)(b) of the Act: Craneford at [26]-[28].

The plaintiffs’ submisssions

33    The plaintiffs submit that their position requires analysis of r 2.24 and r 2.25 of the Federal Court Rules but focus, in particular, on r 2.25. They submit that r 2.25(3) deals with the time at which an application is made. They contend that, relevantly, r 2.25(3) deems an application which is lodged on a particular day, in some circumstances, to be lodged on a later day and that the proper construction of r 2.25(3) is that a document is filed after it is lodged. If a document is received by 4.30 pm on a business day by the registry, it is filed on that day, subject to the subsequent act of the registry indicating its acceptance by having the document sealed. The plaintiffs submit that their construction of r 2.25 takes away the prejudice faced by plaintiffs and any pressure on the registry to affix the seal by any particular time. They also submit that their construction supports the use of technology, referring to this Court’s practice note “Technology and the Court Practice Note (GPN-TECH)” at paragraph 1.2.

34    The plaintiffs submit that if the Court accepts their construction of r 2.25 then it must follow that the documents served on the DCT were documents which had been filed within the 21 day period and that, once the documents had been filed, the application had been made. The documents by which the application had been made, were the documents which were served within the 21 day period.

35    The plaintiffs submit that r 2.3 of the Corporations Rules is not relevant as it does not suggest that the conduct of the Registrar under that rule is a precondition to, for example, the application under s 459G being filed or made.

36    The plaintiffs refer to r 2.7(1) of the Corporations Rules and submit that if the Court rules are to be applied consistently it is relevant that an application need not be served until at least five days before the hearing. They submit that the policy behind s 459G must be considered having regard to the Court’s rules which dictate the period of notice which must be given to a defendant and that they have complied with the obligation to give notice.

37    The plaintiffs submit that it would be consistent with s 459G and their interpretation of the Federal Court Rules to allow a faithful copy of the documents which had been filed to be the documents to be served within the 21 day period and for the notice of hearing to be given in accordance with the Corporations Rules. They submit that to the extent the courts have determined otherwise in other cases, those decisions are plainly wrong.

Consideration

38    In summary the plaintiffs contend that: pursuant to r 2.25(3) of the Federal Court Rules the originating process and Mr Strahan’s affidavit in support, which were lodged with the Court before 4.30 pm on 8 February 2024, are deemed to be filed on that day; the only documents available for service were the originating process and the affidavit in the form they were filed which did not bear the Court seal or a hearing date for the application; service of copies of the documents on the afternoon of 8 February 2024 in the form in which they were filed is sufficient for the purposes of s 459G(3)(b) of the Corporations Act; and service as required by r 2.7(1) of the Corporations Rules provides the defendant with a sealed copy of the documents and notification of the hearing date and, I infer, completes the information required by the defendant.

39    For the reasons that follow the plaintiffs’ argument must be rejected.

40    First, s 459G of the Corporations Act requires that an applicant seeking to set aside a statutory demand file an affidavit in support of the application to set aside the demand and that a copy of the application and supporting affidavit are served on the person who served the demand on the company within the 21 day statutory period. Section 459G(3) has been the subject of numerous decisions, some of which are referred to above, from which at least the following principles can be discerned:

(1)    the time period within which an application can be brought pursuant to s 459G is strict. It cannot be extended;

(2)    the copy of the originating process and supporting affidavit required to be served pursuant to s 459G(3)(b) of the Corporations Act are copies of the documents as filed; and

(3)    the originating process is required to show that the proceeding has been commenced by the court’s acceptance of the originating process by, for example, affixing of the court’s seal and the inclusion of a proceeding number and must include a return or hearing date.

41    It was not in dispute that the copies of the originating process and supporting affidavit served on the DCT within the statutory period did not bear the Court’s seal or any other indicia that the proceeding had been commenced and the originating process had been accepted by the Court, nor did it inform the DCT of the “important fact of the return date”: see Benonyx Pty Limited v Fetrona Pty Limited [1999] NSWSC 1181. On the accepted construction of the section, the Court’s jurisdiction has not been invoked.

42    Secondly, the plaintiffs’ proposed construction of s 459G cannot be accepted. It is contrary to the long established principles which have been applied in numerous cases and which, contrary to the plaintiffs’ submission, are not plainly wrong.

43    The plaintiffs’ proposed construction relies on the operation of r 2.25(3) of the Federal Court Rules and r 2.7 of the Corporations Rules. But those rules cannot overcome or displace the accepted construction of s 459G of the Corporations Act. An application can only be made under s 459G in the 21 day statutory period and, in order to make that application, the requirements of s 459G(2) must be observed in the 21 day period. Those requirements are as set out above.

44    Rule 2.25(3) of the Federal Court Rules, which deems a document to be filed on a particular day by reference to the time of its filing, does not permit a construction of s 459G(3)(b) by which there would be compliance simply by serving a copy of the documents as filed but without any indicia that the proceeding had been commenced and information about its return date. The construction urged by the plaintiffs ignores the purpose of s 459G, as identified in Opensoft at [42], namely to notify the creditor that the proceeding has in fact been commenced by acceptance of the originating process by the court. Service of copies as filed without any indicia of their acceptance by the court and of the proceeding having in fact been commenced, despite having been deemed to be filed on a date within the 21 day period, do not serve that purpose.

45    Rule 2.7 of the Corporations Rules, which is a general rule applying to proceedings commenced under the Corporations Act or the Australian Securities and Investments Commission Act 2001 (Cth), does not take the matter any further.

46    Thirdly, to the extent that the plaintiffs submit that their proposed construction is novel and has not been considered before, I note that in Opensoft Jagot J: referred extensively to the former Federal Court Rules including Order 1 r 5A(7) which was in substantially the same form as r 2.25(3); noted that the documents in that case were taken (or deemed) to be filed on the date they were lodged; and addressed a submission that the authorities to date which required that that copies of the originating process and supporting affidavit as sealed by the Court, bearing a proceeding number and a return date, are required to be served by the terms of s 459G(3)(b), were wrongly decided. At [39] her Honour set out the plaintiff’s argument in support of that submission which included that “the purpose underlying s 459G is satisfied on a construction which recognises that the service of an application and supporting affidavit as filed is a matter regulated by the rules of the relevant Court, whereas the service of an application and supporting affidavit whether or not as filed is regulated by s 459G(3)(b) of the Corporations Act”.

47    While the argument in Opensoft may not have expressly referred to the then equivalent rule to r 2.25(3), it seems to me that it was substantially the same as the argument put to me. In any event, I have for the reasons set out above rejected the plaintiffs’ construction.

48    Finally, the reason for the non-compliance with s 459G(3) is not relevant to whether its requirements have been met. Section 459G is integral to the scheme established by Pt 5.4 of the Corporations Act and the temporal requirements in it serve to define the Court’s jurisdiction in relation to an application to set aside a statutory demand: see David Grant at 276, 278. That the result is harsh is, as Santow J said in Benonyx, “regrettably unavoidable”. But, it is a consequence of its accepted construction.

Conclusion

49    It follows from the above that the answer to the separate question is no.

50    The plaintiffs informed the Court that in the event they are unsuccessful in persuading the Court that they complied with the requirements of s 459G and that the answer to the separate question is “yes” then, as a practical matter, the proceeding should be dismissed and they should pay the DCT’s costs of the proceeding.

51    I will make orders accordingly.

Associate:

Dated:    24 April 2024

SCHEDULE OF PARTIES