Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd

CATCHWORDS : CORPORATIONS - winding up - statutory demand - application for order setting aside - need for "affidavit" supporting the application - PROCEDURE - affidavits - where operative words are "sincerely declare" - where no signature of person taking affidavit - whether extrinsic evidence may be led to prove due swearing

Acts Interpretation Act 1901 (Cth), s 27 Civil Procedure Act 2005, s 17(1) Corporations Act 2001 (Cth), ss 5C, 9, 58, 459G, 1337A(3), 1337B(2)(b) Interpretation Act 1987, s 80 LEGISLATION CITED : Judiciary Act 1903 (Cth) s 79 Oaths Act 1888 (UK) Oaths Act 1900, ss 11A, 12, 27 Supreme Court (Corporations) Rules 1999. rules 1.3(2), 2.4(1) Uniform Civil Procedure Rules 2005. rules 35.1, 35.6(2)

Abraham v Joada Shiskey Co Pty Ltd [2007] NSWSC 931 Bill v Bament (1841) 8 M&W 317; 151 ER 1060 David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 Eddowes v Argentine Loan and Mercantile Agency Co (1890) 68 WR 629 Ex parte Hall (1839) 8 Law J N S 211 (Queen's Bench) Gordon v Tolcher [2006] HCA 62; (2006) 81 ALJR 507 Gossard v Vawter 21 NE 2d 416 (1939) CASES CITED : Graham v Ingleby and Glover (1848) 1 Ex 651; 154 ER 277 Land Clearance for Redevelopment Authority v Zitko 386 SW 2d 69 (1965) R v Moore (1892) 40 WR 304 R v The Inhabitants of Bloxham (1844) 6 QB 528; 115 ER 197 Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962; (2007) 25 ACLC 1216 Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 State of Tennessee v Keith and Collins 978 SW 2d 861 (1998) Wiley v Bennett 68 Tenn 581 (1877)

TEXTS CITED : Matthew Bacon, "A New Abridgement of the Law", London 1832

PARTIES : Fastlink Calling Pty Limited - Plaintiff Macquarie Telecom Pty Limited - Defendant

COUNSEL : Mr J A Raine - Plaintiff Mr J M White - Defendant

SOLICITORS : Chouman Lawyers - Plaintiff Clayton Utz - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

1189/08 FASTLINK CALLING PTY LIMITED v MACQUARIE TELECOM PTY LIMITED JUDGMENT 1 Two preliminary questions have arisen in these proceedings in which the plaintiff, by originating process filed on 22 January 2008, makes application under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant. 2 The first question is whether a document filed by the plaintiff with the originating process on 22 January 2008 is in truth an affidavit. If it is, there is then a question whether a copy of it was served by the plaintiff on the defendant. The questions arise from s 459G(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." 3 If the first question is answered adversely to the plaintiff, the condition in s 459G(3)(a) is not satisfied because no "affidavit supporting the application" was filed with the court within the relevant period of 21 days, that is, the period of 21 days after service of the statutory demand. If the second question arises and is answered adversely to the plaintiff, the condition in s 459G(3)(b) is not satisfied because "a copy of the supporting affidavit" was not served within that period of 21 days. Either non-compliance will mean that the court has no power to set aside the statutory demand and is compelled to dismiss the s 459G application: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265. 4 The document propounded by the plaintiff as "an affidavit supporting the application" begins: " AFFIDAVIT Name ANA JEBRIL Address 1212/87-98 Liverpool Street Sydney NSW 2000 Occupation Director Date I Ana Jebril do solemnly declare: "

The space against "Date" is blank. 5 After eleven numbered paragraphs containing statements by Ana Jebril comes the following: "SWORN at Greenacre Signature of deponent (sgd) A Jebril Signature of witness Name of witness Hilal Chouman Address of Witness L1, 134A, Waterloo Road Greenacre NSW 2190 Capacity of witness Solicitor"

The space against "Signature of witness" is blank. 6 There is an annexure to the document on which the following appears: "This [sic] annexure marked 'A' referred to in the affidavit of Ana Jebril sworn on 21 January 2008. (sgd) H Chouman Hilal Chouman Solicitor" 7 The defendant says that the undated document signed by Ms Jebril is not an affidavit because she does not purport either to "say on oath" or to "affirm". She uses the words "solemnly declare". In addition, no signature appears in the space for the signature of the person before whom the affidavit is made, with the result that there is no indication that a person authorised to do so performed the function necessary to cause the document to be an affidavit. 8 The requirement for an affidavit comes from s 459G(3) of the Corporations Act. It is therefore relevant to have regard to the definition of "affidavit" in s 9 of that Act: " affidavit includes affirmation." 9 The reference to "affidavit" must therefore be taken to extend to an "affirmation" but, beyond that, the Corporations Act itself provides no guidance as to the meaning of "affidavit". By virtue of s 5C of the Corporations Act, regard is to be had to the Acts Interpretation Act 1901 (Cth) as it stood on 1 November 2000. Section 27(b) of that Act, as then in force, provides that, unless the contrary intention appears: "The words 'oath' and 'affidavit' shall, in the case of persons allowed by law to affirm declare or promise instead of swearing, include affirmation, declaration and promise, and the word 'swear' shall in the like case include affirm, declare and promise." 10 No further elucidation of the meaning of "affidavit", as used in the Corporations Act, seems to be provided by Commonwealth legislation. 11 When an application under s 459G of the Corporations Act is filed in the Supreme Court of New South Wales (being, in terms of s 58 of the Act, a "Court" as referred to in s 459G), this court is, from the very inception of the proceeding, exercising federal jurisdiction. The jurisdiction is conferred on this court (as well as on certain other courts) by s 1337B(2)(b) of the Corporations Act, a provision enacted in exercise of legislative power vested in the Parliament of the Commonwealth by s 77(iii) of the Constitution. Section 1337B(2) is within Division 1 of Part 9.6 of the Corporations Act. Section 1337A(3), which is also in Division 1 of Part 9.6, says: "This Division does not limit the operation of the provisions of the Judiciary Act 1903 other than section 39B." 12 Provisions of the Judiciary Act 1903 (Cth), other than s 39B, must therefore be recognised as applying where this court exercises the jurisdiction conferred by s 1337B(2). Among those provisions of the Judiciary Act is s 79: " State or Territory laws to govern where applicable The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." 13 The applicability of s 79 to proceedings initiated in this court under the Corporations Act is indicated by the decision of the High Court in Gordon v Tolcher [2006] HCA 62; (2006) 81 ALJR 507 at [32] - assuming that there is nothing in the Corporations Act itself indicating otherwise. Since the only aspect of the Corporations Act having any bearing on the present matter is the merely expansive definition of "affidavit" in s 9, already noted (supplemented by s 27 of the Acts Interpretation Act), it can safely be said that the Corporations Act does not, in the context under discussion, indicate any intention to exclude, modify or limit the "picking up", through s 79 of the Judiciary Act, of the rules and requirements of the law of New South Wales with respect to affidavits. 14 It follows that the question whether the undated document signed by Ms Jebril is, for the purposes of s 459G of the Corporations Act, an "affidavit" is a question to be determined according to the law of New South Wales. 15 No statute of New South Wales deals comprehensively or exhaustively with the procedures involved in the creation of affidavits. The Oaths Act 1900, to which reference will be made presently, presupposes certain principles of the unwritten law and builds upon them. It is to those principles that I now turn. 16 Bacon's Abridgement (Matthew Bacon, "A New Abridgement of the Law", London 1832), at page 124, defines or describes an affidavit as follows: "An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same." 17 An oath was central to an affidavit. An affidavit usually began: "I [name] of [address], [occupation], being duly sworn make oath and say as follows:" 18 The jurat at the end was typically: "Sworn at [place] this [day] of [month] in the year [year], Before me. [Signature and designation of person administering oath]" 19 The deponent's oath, essential to the character of a written statement as an affidavit, was administered by the administering official's instructing the deponent to take the Bible in his or her hand and to say the words: "I swear by Almighty God that this is my name and handwriting and that the contents of this my affidavit are true." 20 In the United Kingdom, provision was made by the Oaths Act 1888 for a person without religious belief (or with a religious belief precluding the swearing of an oath) to make, instead of an oath, a "solemn affirmation" causing an affidavit to take the following form: "I, [name] of [address], [occupation], do solemnly and sincerely affirm as follows." 21 For the jurat, the usual form for an affidavit made by affirmation was: "Affirmed at [place] this [day] of [month] in the year [year], Before me [Signature and designation of official before whom affirmation made]" 22 The words to be spoken upon making an affidavit by affirmation were to this effect: "I solemnly, sincerely and truly declare and affirm that this is my name and handwriting and that the contents of this my affidavit are true." 23 In New South Wales, s 12 of the Oaths Act 1900 provides that, when an oath is required to be taken by a person "who objects to take an oath", the person may instead make a "solemn affirmation in the form of such oath", but with the words "solemnly, sincerely and truly declare and affirm" substituted for "swear" and with the words "so help me God" or other like words omitted. Positive objection to the taking of an oath is a pre-condition to the making of an affirmation. 24 By s 11A of the Oaths Act, the manner of taking an oath, for the purposes of an affidavit, is consistent with that described at paragraph [19] above. While the form of oath most often administered is one applicable to persons having a religious belief in the Bible (or the Old Testament alone), a person who has some different form of religious belief and does not object to taking an oath will be sworn in some manner binding on his or her conscience. An adherent of the Muslim religion may thus be sworn on the Koran; and in R v Moore (1892) 40 WR 304, a native of India who said he had a religion, believed in the existence of a God and respected "all religious things" was sworn on the Bible. 25 The Supreme Court (Corporations) Rules 1999 apply to these proceedings. Those rules require an originating process or interlocutory process to be "supported by an affidavit stating the facts in support of the process": rule 2.4(1). There is also a provision dealing specifically with proceedings by way of application under s 459G concerning annexing of a search to "the affidavit in support of the originating process". The Supreme Court (Corporations) Rules do not make provision with respect to the form and taking of such an affidavit. Rule 1.3(2) therefore causes the "other rules of the Court" concerning such matters to apply. The Uniform Civil Procedure Rules 2005 contain numerous references to "affidavits" and to their being "sworn". They say nothing, however, about the form of affidavits and the way in which they are to be made.

26 One of the forms for documents to be used in connection with civil proceedings prescribed pursuant to s 17(1) of the Civil Procedure Act 2005 is Form 40, "Affidavit". That form envisages that the operative part of an affidavit will begin with a statement of the name of the deponent, his or her address and occupation and the date, followed by: "I say on oath" or "I affirm". 27 The form of jurat is as follows: "#SWORN #AFFIRMED at Signature of deponent Signature of witness Name of witness Address of witness Capacity of witness [#Justice of the peace #Solicitor #Barrister #Commissioner for affidavits #Notary public]" 28 Strict adherence to the prescribed form is not essential: Interpretation Act 1987, s 80. 29 The parts of Form 40 just quoted may be accepted as modern or "plain language" equivalents of the older forms of words I have mentioned at paragraphs [17] and [18] above. 30 I turn now to the deficiencies in the document signed by Ms Jebril. The first is the use of the operative words "do solemnly declare" in the place where Form 40 contemplates use of the words "say on oath" or "affirm". The word "declare" does not signify that the deponent swears or that the deponent affirms. These are the only alternatives contemplated by the Oaths Act for an affidavit. But Ms Jebril's document itself resolves the doubt or ambiguity. The words "SWORN at Greenacre" show that she made her statements on oath. The use of the words "do solemnly declare" therefore cannot stand in the way of a conclusion that the document is an affidavit sworn by Ms Jebril. 31 I consider next the absence from the jurat of any signature of a person by whom the oath was administered, even though the "witness" is named in typewriting as Mr Chouman and his "capacity" is stated to be "solicitor". (A solicitor has authority under s 27 of the Oaths Act to take and receive affidavits.) 32 In Ex parte Hall (1839) 8 Law J N S 211 (Queen's Bench), an affidavit sworn before a Commissioner was, by the Commissioner's mistake, not signed by him in the jurat. Upon being satisfied that the affidavit had been made in due time, the Court of Queen's Bench allowed the omission to be remedied. A less benign approach was taken in R v The Inhabitants of Bloxham (1844) 6 QB 528; 115 ER 197. Lord Denman CJ confessed to having been party to the decision in Ex parte Hall and said that "the indulgence was one which ought not to have been granted". The Bloxham case concerned an affidavit complete and regular on its face except for omission of the words "Before me" preceding the signature of the official before whom it was sworn. There was thus no statement within the document itself that the deponent had appeared before the official to swear the oath. All four members of the Court of Queen's Bench were of the opinion that the question whether a document is an affidavit is to be answered solely by reference to the content of the document itself. The absence of the words "Before me" was fatal. The same approach to the same deficiency was taken by the Court of Exchequer in Graham v Ingleby and Glover (1848) 1 Ex 651; 154 ER 277. 33 These cases raised, by implication, the question whether the events surrounding the signing of the relevant document might be separately and subsequently proved. In Ex parte Hall, it seems that the court did inquire into the circumstances. In the other two cases, the document alone was considered, with the possibility of extrinsic evidence impliedly rejected - no doubt for reason stated by Parke B in Bill v Bament (1841) 8 M&W 317; 151 ER 1060: "If the subsequent signature of the judge could have the effect of making it good by relation, all errors might be corrected afterwards and we should not know where to stop." 34 The later case of Eddowes v Argentine Loan and Mercantile Agency Co (1890) 68 WR 629 referred to the possibility of separate and subsequent proof of relevant events. The deficiency was again the omission of the words "Before me" above the signature of the person who had taken the affidavit. Cotton LJ said, after referring to a rule of court similar to rule 35.1 of the Uniform Civil Procedure Rules (see paragraph [40] below): "If it is shown to our satisfaction that this affidavit was, in fact, sworn before a person who had authority to administer the oath in the place where the affidavit was sworn, we are authorised, notwithstanding the defect in the form of the jurat, to direct that it be placed, or allowed to remain upon the file." 35 It is significant that Cotton LJ referred to the defective document as an "affidavit". In Ex parte Hall also the document was referred to as an "affidavit", despite the absence of the Commissioner's signature. This is because the quality of a document as an affidavit does not depend on its content but on the factual circumstances in which it was subscribed. 36 This point is emphasised in United States decisions. In Wiley v Bennett 68 Tenn 581 (1877), for example, it was said of an affidavit not attested by the issuing clerk that "[t]he fact that it was sworn to is the substantial matter, and the omission of the clerk to do his duty by attesting it, cannot be allowed to prejudice the party". In Gossard v Vawter 21 NE 2d 416 (1939), the Supreme Court of Indiana stated the "majority view" among United States courts at that point to be that omission of a jurat "is not fatal to the validity of the affidavit, so long as it appears, either from the instrument itself or from evidence aliunde, that the affidavit was in fact duly sworn to before an authorised officer" [emphasis added]. To like effect is following passage in the judgment in Land Clearance for Redevelopment Authority v Zitko 386 SW 2d 69 (1965), concerning the absence of a jurat: "The jurat is not such a part of an affidavit that its omission will render the affidavit a nullity, at least where the affidavit is otherwise properly executed. Thus, ordinarily a jurat is not essential to an affidavit if the fact of the due administration of the oath is otherwise shown ." [emphasis added] 37 More recently, in State of Tennessee v Keith and Collins 978 SW 2d 861 (1998), the Supreme Court of Tennessee said: "[W]e are not confined to the four corners of the affidavit in determining whether it has been properly sworn. Accordingly, we conclude that although it is preferable that every affidavit contain a completed jurat, an incomplete or defective jurat does not invalidate a warrant issued upon probable cause if it is proven by extrinsic evidence that the supporting affidavit was properly sworn by the affiant." 38 It is not unusual for the court to receive evidence of the circumstances surrounding the creation and signing of a document said to be an affidavit. In both Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962; (2007) 25 ACLC 1216 (White J) and Abraham v Joada Shiskey Co Pty Ltd [2007] NSWSC 931 (Hammerschlag J), judges of this court have recently addressed the question whether an affidavit was actually sworn and subscribed before the person who appeared to have taken it. In the former case, it was found that the signature was a forgery and that no oath or affirmation had been administered, so that a supposed affidavit was not an affidavit at all. There is no reason of principle why the same process of inquiry should not be undertaken when it is sought to prove the positive rather than the negative. 39 The document now before me, which is signed by Ms Jebril and states that it was "sworn", will properly be regarded as an affidavit if, as a matter of fact, it was sworn by her before Mr Chouman, the solicitor whose name appears after "Name of witness". Lacking his signature, it is an irregular affidavit but nonetheless an affidavit, provided that the factual matter to which I have just referred is proved. 40 That brings me to rule 35.1 of the Uniform Civil Procedure Rules: "Irregularity does not invalidate affidavit

(cf SCR Part 38, rule 5; DCR Part 30, rule 5; LCR Part 25, rule 5)

An affidavit may, with the leave of the court, be used despite any irregularity in form." 41 The message here is that an affidavit which is irregular may be used in proceedings if the court so allows. If Ms Jebril's purported affidavit is shown by extrinsic evidence to have been sworn before Mr Chouman, it will, for reasons stated, be properly regarded as an affidavit, albeit one in which there is an "irregularity of form" as mentioned in rule 35.1. Its use in court will then be dependent upon a grant of leave under that rule. But, as I have said, its character as an affidavit - and therefore as a document of the kind contemplated and required by s 459G(3)(a) of the Corporations Act - will be established. 42 The plaintiff has sought to adduce evidence from Mr Chouman by reading a purported affidavit of his. The content of the purported affidavit is as follows: "1. I am the solicitor on the record for Plaintiff, Fastlink Calling Pty Ltd A.C.N 110 228 101, Supreme Court of New South Wales Case Number 1189/08 concerning S.459G Corporations Law. 2. I filed an Originating Process in that matter dated 21 November [sic] 2008 together with an Affidavit of Ana Jebril a copy annexed herewith and marked with the letter 'A'. 3. Ana Jebril swore the Affidavit and placed her signature on the Affidavit before me at Greenacre. I unintentionally and due to oversight at the time did not place my signature in the 'Signature of Witness' part of the Affidavit." 43 The defendant says that this document is not itself an affidavit and therefore should not be received because, while the jurat is complete and the two signatures appear, the operative words are "do solemnly declare", not "say on oath" or "affirm". But in this case also, the words "Sworn at Greenacre" appear and it must be accepted that the statements were made on oath. 44 Objection was taken to Mr Chouman's affidavit on the basis that his statement that "Ana Jebril swore the Affidavit" is not a statement of fact but a statement of legal conclusion. Given that this part of the solicitor's affidavit merely repeats something to which he would have attested had he signed the jurat, I intend to accept and rely on his statement. 45 Mr Chouman has sworn that the document a copy of which is annexed to his own affidavit and marked "A" is a copy of the affidavit sworn by Ms Jebril before him. The document signed by Ms Jebril, as "filed with the Court" (s 459G(3)(a)) consists of nine sheets stapled together. The first is a cover sheet. The second contains the narrative, Ms Jebril's signature and the incomplete jurat. The other seven sheets, which together make up the single annexure referred to in the document, consist, as to five sheets, of a copy of a statement of claim filed in Common Law Division proceedings and, as to the remaining two sheets, a copy of a document that appears to contain a brief statement of the issues raised in these proceedings. 46 The annexure "A" to Mr Chouman's affidavit, by contrast, consists of copies of four of those nine sheets only, being the cover sheet, the sheet containing narrative, Ms Jebril's signature and the incomplete jurat and each of the two sheets containing a brief statement of the issues raised in the Common Law Division proceedings. The four sheets annexed to Mr Chouman's affidavit are copies of the first, second, eighth and ninth sheets of Ms Jebril's document in the court file. The annexure to Mr Chouman's affidavit contains no copy of any of the five pages making up the Common Law Division statement of claim included in the annexure to Ms Jebril's document. 47 Mr Chouman's affidavit thus cannot prove that Ms Jebril swore before him the affidavit of nine pages filed with the originating process on 22 January 2008. The most it can prove, if it proves anything, is that Ms Jebril swore before Mr Chouman an affidavit of four pages in the form of its annexure "A". The annexures to an affidavit are, of course, an integral part of it: Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338. There is, in any event, a question whether the four pages attached to Mr Chouman's affidavit are properly regarded as an annexure. The annexure note or certificate on the four pages is signed by the deponent, not (as required by rule 35.6(2) of the Uniform Civil Procedure Rules) by the person before whom the affidavit was made. There is thus no verification by a person authorised to take affidavits that the four pages were annexed at or before the time the oath was administered. Because Mr Chouman's affidavit cannot prove the matter crucial to the plaintiff's application, I do not pause to consider the effect of that deficiency. 48 The court cannot find that the document of nine pages signed by Ms Jebril and filed with the originating process on 22 January 2008 was signed by her before and attested by Mr Chouman. There can therefore be no finding that he administered an oath to her in relation to the document or that it is an "affidavit". Since it is not suggested by the plaintiff that any other affidavit was filed within the period of 21 days specified in s 459G, there is no basis on which the court can conclude that an affidavit supporting the application in the originating process was "filed with the Court" as contemplated by s 459G(3)(a). The first of the preliminary questions is therefore answered in the negative and adversely to the plaintiff. 49 It is therefore unnecessary to consider the second question, that is, whether a copy of the affidavit supporting the application was served on the defendant, so as to satisfy the condition in s 459G(3)(b). It is, however, relevant to observe that the document served on the defendant (as tendered by it to the court) was the document of four pages a copy of which was annexed to Mr Chouman's affidavit, not a copy of the document of nine pages filed with the court. It follows that, even if it had been found that the document in the court file signed by Ms Jebril was an affidavit, it would have been impossible to find that a copy of that affidavit had been served by the plaintiff on the defendant, whether within the period of 21 days referred to in s 459G or at all. 50 I have mentioned only in passing, to this point, that the document signed by Ms Jebril does not record in its body the date on which it was sworn, in that there is a blank space after "Date" (see paragraph [4] above). Surprisingly, one might think, Mr Chouman's affidavit sworn in what has turned out to be a vain attempt to patch things up does not identify the date on which Ms Jebril swore the affidavit before him. However, the cover sheet of Ms Jebril's affidavit carries the date 21 January 2008 and the annexure note (see paragraph [6] above) refers to "the affidavit of Ana Jebril sworn on 21 January 2008". That deficiency would therefore not have stood in the way of a finding that the document was an affidavit, had that conclusion otherwise been available. 51 In the result, the plaintiff has failed to prove that the application now before the court was, in the words of s 459G(3), "made in accordance with this section". The court therefore has no jurisdiction to make an order setting aside the statutory demand. The originating process will accordingly be dismissed with costs. 52 This case illustrates the high price that may have to be paid for lack of attention to simple matters of detail. **********

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