Brown v DML Resources

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J WEDNESDAY 31 OCTOBER 2001 3830/00 MARTIN RUSSELL BROWN & 1 OR V DML RESOURCES PTY LIMITED (IN LIQ) & 1 OR (NO.5) Judgment

HIS HONOUR : Introduction 1 By this proceeding the plaintiffs seek an extension of the time allowed, under s 588FF (3) of the Corporations Act, for the making of an application to recover voidable preferences from creditors of the DML companies, including the BP companies. I made ex parte orders on the plaintiffs' application on 4 September 2000, but subsequently the BP companies applied to set those orders aside, so far as the orders affected those companies. In my reasons for judgment delivered on 17 July 2001 (Brown v DML Resources (No 2) [2001] NSWSC 590) I upheld the application by the BP companies, on the ground that they had been denied natural justice. I subsequently set aside the ex parte orders of 4 September 2000, so far as they affected the BP companies, while leaving them to stand with respect to other creditors. 2 After further argument about the conduct of the proceeding, I delivered another judgment on 29 August 2001 (Brown v DML Resources (No 3) [2001] NSWSC 719), in which I concluded that it would be necessary to join the BP companies as parties to the proceeding before the final hearing, but if an order for their joinder were made, the plaintiffs' application for extension of time would be taken to have been made at the time of the order for joinder, and therefore outside the three-year time limit prescribed by s 588FF (3). This conclusion flowed, in my judgment, from the combined application of s 588FF (3) (b) and Part 8 rule 11 (3) of the Supreme Court Rules. These issues were fully canvassed in argument before me, prior to delivery of my judgment of 29 August 2001. 3 Having reached those conclusions, I formed the provisional view (judgment of 29 August 2001, paragraphs 79, 98, 112) that it would be pointless or futile for the Court to join the BP companies as defendants, because the proceeding against them would be doomed to fail, and therefore that the most appropriate course would be to dismiss the plaintiffs' proceeding against the BP companies. This would finally determine the dispute between the parties and crystallise their appeal rights. I took the view that I had power to dismiss the proceeding either of my own motion or on application, under Part 13 rule 5. Since, however, I had not specifically invited submissions from the parties as to whether I should dismiss the proceeding, having reached the conclusions outlined above, I thought it prudent to invite further submissions on that point. I said (paragraph 113 of my judgment of 29 August 2001): "I shall give the plaintiffs one last opportunity to make submissions, if they wish, as to why I should not dismiss the proceeding in light of the conclusions I have reached, and I shall allow the BP companies, if they wish, to respond to any such submissions. The submissions should address other issues relevant to the final determination of the proceeding including the question of costs." 4 As I explained in my reasons for judgment given on 24 October 2001 (Brown v DML Resources (No 4) [2001] NSWSC 947), the plaintiffs have consequently purported to take up the invitation in paragraph 113 of my August judgment by making three applications, which I have called "the slip rule application", "the reconsideration application" and "the s 1322 application". My judgment of 24 October considered and rejected the slip rule application. The present judgment relates to the reconsideration application. My view is that, for reasons I shall give, the plaintiffs have been unable to demonstrate that the conclusions I reached in my August judgment were incorrect. 5 The s 1322 application has not yet been heard. If the plaintiffs do not succeed in that application, they will have failed (after having been given ample opportunity) to point to any reason why, in light of the conclusions reached in my August judgment, I should not dismiss the proceeding as regards the BP companies. If they succeed in the s 1322 application, they will effectively have overcome the time limit which, according to the decision in my August judgment, is otherwise a bar to relief against them.

Is it appropriate to "reconsider" in the circumstances of the present case? 6 The reconsideration application is part of the relief sought in an interlocutory process filed on 13 September 2001. For the purposes of the reconsideration application, the plaintiffs seek the relief in paragraphs 3 and 5 of the interlocutory process, namely that they have leave pursuant to Part 8 rule 8 of the Supreme Court Rules to join BP Australia Ltd as a defendant to the proceeding, and that "the Court reconsider its reasons of 29 August 2001". 7 At a directions hearing on 10 September 2001 counsel for the BP companies submitted that this is not an appropriate case for reconsideration of reasons for judgment, citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. In ex tempore reasons delivered on 10 September 2001, I distinguished the present circumstances from the Autodesk case, pointing out that in the present case I made a specific invitation to the parties, and I said (paragraph 10): "It is within the scope of the Court's invitation for counsel to make this further submission to the extent that the matter raised has not already been dealt with. An issue remains as to whether my reasons for judgment have already dealt with the issues now raised by counsel for the plaintiffs in submissions." 8 The plaintiffs submit that the question whether it is appropriate for the Court to reconsider the reasoning in the August judgment has been determined in their favour by my ex tempore judgment of 10 September 2001. They add that the re-opening of matters previously decided is in accordance with the practice of the Equity Decision. In Twenty-First Australia Inc v Shade [1998] NSWSC 325 (31 July 1998) Young J contrasted the approach of the High Court, described in the Autodesk case, with the practice of the Equity Division of this Court. In his Honour's view, the judges of the Equity Division frequently accept uninvited submissions made after a hearing and are prepared to allow counsel to re-open argument after the reasons for judgment have been delivered (but presumably before orders have been made) to ensure that all proper contentions of the parties have been dealt with. 9 In the present case I have heard and considered full argument on the matters that the plaintiffs wish to put before me by way of "reconsideration" of my August judgment. In my view, this is an appropriate case for reconsideration, to the extent sought by the plaintiffs. The points now raised by the plaintiffs were not expressly dealt with in my August judgment, although they were raised in embryonic form during submissions. I am content to proceed on the basis that the plaintiffs' points were not disposed of by my August judgment.

The plaintiffs' contentions 10 Section 588FF (3) is in the following terms: "An application under subsection (1) [to challenge voidable transactions] may only be made: (a) within 3 years after the relation-back day; or (b) within such longer period as the Court orders on an application under this paragraph made by the liquidator within those 3 years." 11 In my reasons for judgment of 29 August 2001 (paragraph 87) I held that the relation-back day in the present case was 24 October 1997, and therefore the three-year time limit set by s 588FF (3) expired on 24 October 2000. The plaintiffs' application for an order extending the three-year time limit under s 588FF (3) (b) was made on 4 September 2000, but it did not join any creditors as parties. An application to join BP Australia Ltd as a defendant was not made until the interlocutory process seeking that relief was filed on 13 September 2001. 12 Part 8 rule 11 (3) says: "Where in any proceedings a party is added otherwise than pursuant to an order under the rule 10 or Part 20 rule 4 (3), the date of commencement of the proceedings so far as concerns him shall be: (a) where he is added as a defendant - the date on which the amendment adding him as a defendant is made or the date of entry of his appearance or the date of filing his defence, whichever is the earliest; (3) otherwise - the date on which the amendment adding him as a party is made." 13 In the present case, any order under the rules, adding BP Australia Ltd as a defendant would be made under Part 8 rule 8, and if subparagraph 11 (3) were applicable, the date of commencement of the proceedings so far as concerns BP Australia Ltd would be the date upon which the order for joinder was made. That date would be well outside the three-year limitation period set by s 588FF (3) (a). 14 The plaintiffs contend that the three-year time limit in s 588FF (3) (a) will not prevent them from commencing proceedings to recover voidable preferences from the BP companies, if their application for an extension of time under s 588FF (3) (b) is successful, and that their application is capable of being successful because it was made within the three-year time limit set by that provision. They say that Part 8 rule 11 (3) does not apply here, for two reasons. First, they draw a distinction between a period of limitation and a time limit for the making of an application, and they submit that rule 11 (3) applies to the former but not the latter. Secondly, they submit that there is a distinction between the "commencement of proceedings" referred to in Part 8 rule 11 (3), and the making of an application referred to in s 588FF (3) (b).

Statutory interpretation in context 15 For the purposes of the first submission, the plaintiffs urge me to take the "modern approach to statutory interpretation" explained by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. In that case their Honours said that the context of the provision to be interpreted must be considered in the first instance, not merely at some later stage when ambiguity might be thought to have arisen, and the word "context" is to be understood in its widest sense to include such things as the existing state of the law and the mischief which the statute was intended to remedy. I shall adopt that approach, though I note that the approach should be applied to the interpretation of s 588FF (3) as well as to Part 8 rule 11 (3).

Periods of limitation and time limits 16 The plaintiffs say that the relevant rules of this Court, including Part 8 rule 11, are concerned with periods of limitation, not with time limits for the making of applications. They seek to link Part 8 rule 11 with Part 20 rule 4 (which is mentioned in Part 8 rule 11(3)), noting that Part 20 rule 4 applies to "any relevant period of limitation", rather than to a time limit for making an application. In the plaintiffs' contention, the only "relevant period of limitation" to be found in s 588FF is the three-year period mentioned in s 588FF (3) (a), and the longer period (if any) ordered by the Court by way of extension of that time, upon application made within the three-year period. They say that the time limit for making the application to extend the period of limitation is just a time limit and is not itself a period of limitation. The time limit, they contend, cannot be affected in any way under Part 20 rule 4, and nor can it be affected under Part 8 rule 11. 17 I do not accept this argument, ingenious though it is. In my opinion it cannot be said that the scope of Part 8 rule 11 (3) is governed by Part 20 rule 4. I agree that the time limit set by s 588FF (3) (b) for the making of an application to extend the three-year time limit referred to in s 588FF (3) (a) is not, itself, a "relevant period of limitation" for the purposes of Part 20 rule 4, although the product of a successful application within the time limit is the substitution of a new, longer period of limitation for the three-year period. However, the plaintiffs' obstacle is that Part 8 rule 11 (3) in terms purports to apply, inter alia, to the addition of a party in any proceedings, otherwise than under two specified provisions that are manifestly irrelevant to the present circumstances, and does not on its face incorporate any limitation of scope by reference to Part 20 rule 4. There is nothing about paragraph 11 (3) in its terms, or in its context, which would justify an implied limitation upon its scope, so as to confine its operation to a period of limitation as opposed to a time limit. 18 In my opinion Part 20 rule 4 and Part 8 rule 11 (3) deal with different subjects, and the scope of Part 8 rule 11 (3) is not to be confined by reference to the fact that Part 20 rule 4 applies to "any relevant period of limitation". Part 20 is about amendments to documents in proceedings, including statements of claim and other pleadings. Part 20 rule 1 confers a broad power on the Court to permit amendments at any stage in proceedings. Part 20 rule 4, without limiting the Court's power in Rule 1, deals with the Court's power to amend a statement of claim where a relevant period of limitation has expired after the date of filing a statement of claim, and after expiry of the period of limitation an application is made for leave to amend a statement of claim. 19 Before the rules took their present form, courts in England and Australia had adopted a "relation-back principle", according to which an amendment to pleadings takes effect from the date of the document that has been amended, not the date when the amendment is made: Baldry v Jackson [1976] 2 NSWLR 415, 419; Warner v Sampson [1959] 1 QB 297. They had also adopted a "settled rule of practice" that an amendment to a statement of claim would not be permitted if the amendment would add a new claim that would be statute-barred at the date of the amendment, although not statute-barred at the date of filing of the statement of claim: Weldon v Neal (1887) 19 QBD 394; Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 516-2 (Toohey J) and 545 (Deane J); generally, see Rodgers v Commissioner of Taxation (1998) 29 ACSR 270, 273ff. 20 Now Part 20 rule 4 (5) permits the Court to grant leave to the plaintiff to amend his statement of claim to add or substitute a new cause of action, where a relevant period of limitation has expired after the filing of the statement of claim and before application is made for leave to amend, provided that the new cause of action arises out of the same or substantially the same facts. To this extent, subrule (5) reverses the rule in Weldon v Neal. Rule 4 (5A) preserves the "relation-back principle", unless the Court otherwise orders, thus permitting the Court to allow an amendment on a basis which deprives the opponent of the benefit of a supervening limitation period. (Compare the general provision in Part 20 rule 1 (3A), applicable where the amendment is not affected by a limitation period, according to which an amendment may add or substitute a cause of action, but the date of commencement of the proceedings so far as concerns that cause of action is the date on which the amendment is made.) 21 In contrast, Part 8 rule 8 deals specifically with the addition of parties to proceedings, and Part 8 rule 11 (3) states that the date of commencement of the proceedings against an additional defendant is (generally speaking) the date of joinder, without any relation-back to the date of filing of the statement of claim, except in the special cases where a party is added by virtue of such matters as death, bankruptcy, assignment or transmission (Part 8 rule 10) or because of a mistake in the name of a party (Part 20 rule 4 (3)). 22 The effect of Part 8 rule 11 (3) is to prevent any relation-back whenever it applies, in contrast with Part 20 rule 4 (5A), which adopts a relation-back principle subject to any contrary order of the Court. Part 8 rule 11 (3) applies where a party is added, except in the special circumstances of Part 8 rule 10 and Part 20 rule 4 (3), and Part 20 rule 4 (5A) applies where a statement of claim is amended in the circumstances permitted by Part 20 rule 4 (3), (4) and (5). 23 To a limited degree, Part 20 extends to amendments which have the effect of adding parties to the proceedings. Thus, Part 20 rule 1 (3) and rule 4 (3) deal with a case where there has been a mistake in the name of the party, and they apply even where the effect of the amendment is to substitute a new party. Rule 2 permits a party to amend a pleading without leave in certain circumstances, even where the amendment would have the effect that a person is added as a party (see rule 2 (4)). Subject to those matters, however, the Court's power to add new parties must be exercised under Part 8 rule 8 with the consequences laid down by rule 11 (3) (except for the special cases covered by Part 8 rule 10 and Part 20 rule 4 (3)): Wenham v General Credits Ltd (Supreme Court of New South Wales, McLelland J, 16 December 1988, unreported), approved by the Court of Appeal of New South Wales in Fernance v Nominal Defendant (1989) 17 NSWLR 710, 718 (Gleeson CJ). 24 Case law reflects the view that the amendment provisions of Part 20 have a separate operation and effect from the provisions of Part 8 dealing with addition of parties. In Rodgers v Commissioner of Taxation the Full Federal Court permitted a liquidator, who had filed an application to set aside voidable transactions within the three-year time limit specified by s 588FF (3) (a), to amend that application after the expiration of the three-year limitation period by adding claims in respect of further transactions. This was not a case involving the addition of a party. The issue for the Court was whether an amendment to permit new claims would relate back to the date of the initial application, and therefore avoid the three-year time limit. It was held that an amendment made under the Federal Court Rules would do so, even in the absence of any rule equivalent to Part 20 rule 4 (5A) specifically adopting the "relation-back principle". 25 In reaching their conclusion, their Honours distinguished rules about amendment from rules about joinder of a party. The Court quoted a passage from the judgment of Clarke JA in Fernance v Nominal Defendant, which referred to a "clear distinction" between a case in which a defendant is added, and a case in which an additional cause of action is raised. I note that the "clear distinction" was made even more clear by the addition of Part 20 rule 4 (5A) after the decision in Fernance v Nominal Defendant. 26 The decision of Rolfe J in Star v National Australia Bank Ltd (1999) 30 ACSR 583 followed the Full Federal Court's decision in Rodgers v Commissioner of Taxation. Once again, that was a case where the plaintiffs in a proceeding alleging voidable transactions sought leave to amend the originating process (in that case, a summons in the Commercial Division) to add claims for relief in respect of further transactions. Rolfe J held that leave to amend should be granted, and that the amendment would take effect from the date of the summons rather than the date of the amendment, having regard to Part 20 rule 4 (5A). He took the view that upon its proper construction, s 588FF (3) would prevent an application from being made under s 1322 of the Corporations Law (as it then was) to extend the three-year limitation period, but nevertheless, the three-year limitation period could in substance be avoided by an amendment permitted under Part 20. 27 The case does not share any direct light on the present problem, since it was concerned with amendment under Part 20 rather than joinder of parties under Part 8 rule 8, and his Honour made no reference to the problem of joinder of parties. However, at a more general level the case supports the view expressed in my August judgment, that rules of court (there, the rules concerning amendment, and here, the rules concerning joinder of parties) can affect the application of s 588FF (3) in a particular case. 28 The plaintiffs note that the expression "relevant period of limitation" in Part 20 rule 4 (1) has been held to refer, in addition to a statutory period of limitation, to a contractual time bar, such as is commonly found in a bill of lading. In Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 it was held that, despite the heading "Statute of Limitation", the rule modifies contractual time bars. That is true but irrelevant. It is clear from Rodgers v Commissioner of Taxation that Part 20 rule 4 (including rule 4 (3), which deals with an amendment to correct a mistake in the name of a party) applies not only to contractual time bars but also to the statutory time bar in s 588FF (3) itself. But neither case establishes anything about the scope of Part 8 rule 11 (3), which deals with the quite different subject matter of joinder of parties outside the special circumstances of Part 20 rule 4 (3) and Part 8 rule 10.

Considerations of public policy 29 As counsel for the BP companies pointed out, the construction for which the plaintiffs contend would produce an odd outcome. It would be possible for a liquidator, running close to the three-year time limit imposed by s 588FF (3), and with a particular creditor in his or her sights for voidable preference proceedings, to buy almost unlimited additional time before commencement of the voidable preference proceedings simply by filing an application for extension under s 588FF (3) (b), without naming any particular creditors as defendants. 30 This would be contrary to the legislative policy underlying s 588FF (3). As I pointed out in my reasons for judgment of 17 July 2001, paragraph 29, s 588FF (3) took its present form as a result of recommendations in the Harmer Report (Australian Law Reform Commission, General Insolvency Inquiry (Report No 45, 1988), paragraph 688). The Commission observed that an action by a liquidator to recover the proceeds of a voidable transaction should be commenced within a reasonable time, noting that the existing time period was six years and that many submissions to the Commission had complained about inordinate delays in commencing proceedings. The Report continued: "It is therefore considered desirable to place liquidators under a more rigorous but, nevertheless, reasonable time limitation for taking action under these provisions." 31 The underlying idea is that it is desirable, in the interests of commercial certainty, for creditors to know where they stand within a reasonable period after the commencement of the liquidation. The outcome that would be produced by the plaintiffs' construction of subrule 11 (3) would enable the liquidator to leave creditors in an uncertain state well beyond three years, because it would allow the liquidator to file a "shelf" application within the three-year period and then breathe life into it by adding the targeted creditor as a defendant at any later stage, unless the proceedings were dismissed. 32 The true position seems to me to be more sensible. The Corporations Act sets the three-year time limit and provides for an application to be made within three years for extension of time. The application contemplated by s 588FF (3) (b) is an application to a Court, including the Supreme Courts of the States. The Corporations Act leaves it to the Court to clothe the application with the procedures and consequences prescribed by its constituting statute and rules, and by the common law of procedural fairness. The common law requires that if a particular creditor is targeted as a likely defendant in voidable preference proceedings, that creditor must be given notice of the application for extension of time, and may need to be joined as a party to the application for extension of time, especially if it responds to a notice by objecting to the proposed order on substantive grounds. In the interests of commercial certainty, the targeted creditor must become a defendant to the application for extension of time within the three-year time limit for making that application. If there is no targeted creditor and the application for extension is made in order to permit the liquidator to conduct investigations necessary to identify and explore potentially preferential transactions generally, the Court may grant the extension of time in general terms without specifying any particular transactions or defendants and in that event, it will not be necessary at any stage to join any particular creditor as a defendant to the application for extension. 33 Counsel for the plaintiffs drew attention to what was said to be the injustice of the result produced by my various judgments in this case. The plaintiffs, acting on behalf of creditors in the winding up of the DML companies, wish to attack transactions between those companies and BP Australia Ltd involving several million dollars. Recovery, if achieved, will benefit the unsecured creditors. The plaintiffs applied for an extension of time comfortably within the three-year limitation period. And yet, as a result of steps taken after the matter came to Court, the plaintiffs now find themselves barred from proceeding. 34 I agree that this is an unfortunate outcome. The facts of this case provide an important lesson for liquidators, their legal advisers and the Court itself, if my reasoning is correct. But I am not prepared to adopt an unrealistic and overly adventurous construction of relevant provisions in order to avoid the injustice of this particular case. What is at stake is the policy of commercial certainty which underlies s 588FF (3), and the more general policy that a statute and rules of court dealing with commercial matters should be construed according to their plain meaning in the interests of predictability. Both of these policies would be undermined, in my view, if I were to accept the plaintiffs' submission that the "context" of paragraph 11 (3) permits me to reach a different result.

"Making of an application" and "commencement of proceedings" 35 The plaintiffs' second submission is that there is a difference between the "making of an application", which under s 588FF (3) (b) is to occur within the three-year limitation period, and the "date of commencement of proceedings" which, under Part 8 rule 11 (3), is taken to be the date of joinder of the defendant. I disagree. Under the rules of this Court, an application for an extension of the three-year period of limitation under s 588FF (3) (b) is made by the commencement of what the rules refer to as "proceedings". The proceedings are commenced, under the Corporations Rules, by the filing of an Originating Process. The effect of the rules is that the same event, namely the filing of that document, constitutes both the making of the application for the extension, and the commencement of the proceedings by which the extension is sought. If, therefore, the rules of court say (as they do) that the date of commencement of the proceedings as against a party added as a defendant is the date upon which the addition occurs, they necessarily prescribe that the application is taken to be made on the same date. 36 It is true that this approach allows a provision of State law to affect the operation of a Commonwealth law, but in my opinion the Corporations Act allows this to happen for the reasons which I gave in paragraph 92 of my judgment of 29 August 2001. 37 The plaintiffs' contention is, in my view, inconsistent with observations in Rodgers v Commissioner of Taxation, where the Full Federal Court referred (29 ACSR at 276) to the language of s 588FF (3), "which is concerned with the making of an application to the Court; that is, the commencement of the proceeding itself". The submission is also at odds with the approach taken in Star v National Australia Bank Ltd, where Rolfe J held that Part 20 rule 4 (5A) applied so that an amendment to add new claims was taken to relate back to the date of the filing of the summons. In particular, his Honour took the view (at 602, paragraph 86) that s 588FF (3) deals with "the commencement of original applications" - that is, I take it, the commencement of the proceedings by summons in the case before him.

Conclusions 38 Although it is appropriate, in my view, for the Court to consider the submissions upon the basis of which the plaintiffs have urged a reconsideration of the August judgment, I have concluded that the plaintiffs' submissions are incorrect. Consequently the submissions provide no reason for me to alter the conclusions expressed in my August judgment. 39 As I have mentioned, the plaintiffs seek reconsideration of my August judgment and also an order under Part 8 rule 8 for the joinder of BP Australia Ltd as a defendant. Subject to the s 1322 application, which I have not yet heard, my view is that it would be futile to join BP Australia Ltd as a defendant under Part 8 rule 8 because, having regard to Part 8 rule 11 (3), the plaintiffs' application for extension of time as against that company would be barred by s 588FF (3) (b). 40 The plaintiffs indicated at the hearing of the reconsideration application that if I accepted their submissions on matters of law, they would seek to read affidavits to persuade me, in the exercise of my discretion, to make an order for joinder under Part 8 rule 8. Since I have found against them on the points of law, it is unnecessary to deal with the admissibility of the evidence upon which they proposed to rely, some of which is subject to objection. 41 I do not propose to deal with the costs of the application filed on 13 September 2001 until I have heard the remainder - that is, the s 1322 application. * * * * * * * * * * *

Last Modified: 11/16/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.