In this recent application to set aside a statutory demand her Honour considered a seldom encountered yet important procedural issue, namely whether a scanned copy of the supporting affidavit placed on the court file amounted to filling of that affidavit so as to enliven the court’s jurisdiction under s 459G of the Corporations Act 2001 (Cth).
15 May 2018
The reasons were given ex tempore by Mullins J. The applicant had applied to set aside a statutory demand served by the Respondent, and at the time of attendance at the Registry, the supporting affidavit of a director of the Applicant had not been physically received by the Applicant’s solicitors.
In lieu thereof, a scanned copy of the signed affidavit was placed on the file, and was accompanied by a letter from the Applicant’s solicitors as follows:
“We act for the Applicant in Supreme Court proceedings filed today to set aside a statutory demand. Our client resides in Gladstone and has executed the affidavit in support of the application to set aside the statutory demand today and will send the original to our office by express post. We undertake to file the original affidavit once it is received from our client.”
The patent issue was whether that equated to filing.
On the last day for filing, it appeared the original affidavit had gone astray – presumably lost in the post. As a result, the Applicant’s solicitors’ paralegal telephoned the Registry. She was incorrectly advised by a Registry officer that on the return date of the application the Applicant’s counsel could seek leave of the Court to file a copy of the affidavit originally filed with the application advising the Court that the original affidavit had been mislaid in the post. Her Honour noted various “aspects of concern” in that exchange:
- It was not advisable for the Applicant’s solicitors to seek the advice of Registry as to this matter;
- Registry officers should not purport to provide advice to solicitors.
Her Honour observed that ordinarily, the advice that was offered by the Registry officer might be considered adequate, however s 459G of the Corporations Act requires the actual filing of an affidavit to ensure the creation of the jurisdiction in the Court to provide relief. Instead, the document was merely “placed on the file in the correspondence part of the file as relevant information relating to the proceeding, but not an operative document”.
Referring to the Uniform Civil Procedure Rules 1999, in her Honour’s view the affidavit was a document that was required to be filed as per r 437 and was not otherwise excluded from the application of r 968. She regarded it as appropriate to apply r 968 and thus, the scanned affidavit would only be filed when it was recorded by the Registrar as a document on the Court file. Applying rr 977 and 981 she expressed the view that a Registry officer’s placement of the letters “POF” on the scanned affidavit and placement of it with the Applicant’s solicitors’ letter, in the correspondence part of the Court’s file, did not amount to acceptance for filing: see Mahony v Building Services Authority  QDC 214, .
Her Honour held that leaving a document with the Registry falls short of filing the document, unless there is acceptance by the Registry (in the sense of being recorded as a document that has been filed in the proceeding); and that in those circumstances the Court was without jurisdiction to hear the merits of the application to set aside the statutory demand. In the result, the application was dismissed.
A de Jersey