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[2016] VSC 284
General information, not legal advice.
Supreme Court of Victoria
2016-05-25
RANDALL AsJ
Original judgment source is linked above.
CORPORATIONS - Corporations Act 2001 (Cth) - Statutory demand - Application pursuant to s 459G - 21 day period - Supreme Court Registry not open - Rule 3.08 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015 - Whether s 36 of the Acts Interpretation Act 1901 (Cth) extended the time prescribed in s 459G of the (Cth) notwithstanding that the Federal Court Registry was open on 'Easter Tuesday'.
1 This is an application pursuant to s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand. The statutory demand was served on 10 March 2016. The 21 day period set out in s 459G expired on Tuesday 29 March 2016. That was Easter Tuesday and the Supreme Court Registry was 'effectively' closed consistent with rule 3.08 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015.
2 The sole issue is whether or not s 36 of the Acts Interpretation Act 1901 (Cth) extended the time prescribed in s 459G.
3 The defendant served a statutory demand upon the plaintiff. The plaintiff's solicitors acknowledged receipt on 10 March 2016 and subsequently confirmed that the plaintiff had until 4pm on Tuesday 29 March 2016 to file an application to set aside the creditors' statutory demand. The defendant's solicitors confirmed by email dated 24 March 2016 that they had instructions to accept service of the application on behalf of the defendant.
4 On 29 March 2016, the defendant's solicitors received an email transmission from the plaintiff's solicitors enclosing an unsealed copy of the originating process and affidavit in support thereof.
5 29 March 2016 was 'Easter Tuesday'. The plaintiff's solicitors had attempted unsuccessfully to file the originating process on that day. When they were unable to do so, the plaintiff's solicitors notified the defendant's solicitors of the following:
In accordance with Regulation 3.08 of the Supreme Court (General Civil Procedure) Rules 2015 the Court is closed the Tuesday following Easter. Whilst the documents have been accepted by the Registry, they are unable to be processed and stamped until tomorrow, 30 March 2016.
6 On 29 March 2016, the Federal Court was open for business as per usual. On that day the Federal Court also accepted documents for filing electronically.
7 On 30 March 2016, the defendant's solicitors received a further transmission from the plaintiff's solicitors attaching a sealed copy of the originating process and the affidavit in support.
8 Section 36 of the Acts Interpretations Act 1901 (Cth) relevantly provides as follows:
(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.
(3) In this section:
"holiday", in relation to the time for doing a thing, means:
(a) a day that is a public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is to be or may be done at a particular office or other place - a day on which the place or office is closed for the whole day.
[Emphasis added]
459G Company may apply
(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 21 days after the demand is so served.
(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.
10 Section 36 of the Acts Interpretation Act 1901 (Cth) prior to the 2011 amendment was as follows:
(2) Where the last day for any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be done or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or a bank holiday in that place.[1]
11 Items 224 and 225 of the Acts Interpretation Amendment Bill 2011 Explanatory Memorandum are as follows:
12 I am told by counsel that the second reading speeches do not offer any assistance.
13 The Victorian equivalent is found at s 44(3) & (4) in the Interpretation of Legislation Act 1984 (Vic) which provided as follows:
(3) Where the time limited by an Act or subordinate instrument for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the act or thing may be done on, the day next following that is not a holiday.
(4) In subsection (3) holiday means -
(a) a Saturday or Sunday;
(b) a day appointed under the Public Holidays Act 1993 as a public holiday in the place in which the act or thing is to be or may be done.
14 Section 6 of the Public Holidays Act 1993 (Vic) does not include 'Easter Tuesday' as a public holiday.
15 Rule 3.08 of Ch 1 of the Supreme Court (General Civil Procedure) Rules 2015 provides:
3.08 Office
The office of the Court shall be open on every day of the year except -
(a) Saturdays and Sundays;
(b) the Tuesday following Easter; and
(c) every day duly appointed as a general public holiday.
16 The gravamen of the plaintiff's submissions is that the word 'and' between s 36(3)(a) and (b) is disjunctive and not conjunctive or cumulative. Once the plaintiff can bring itself within the second limb of s 36(3) that is sufficient to enable it to take advantage of the extension to 30 March 2016. The plaintiff falls within s 36(3)(b) as the Supreme Court Registry was 'effectively' closed on that day. I should add that there is no argument that acceptance of the documents on that day converted the Supreme Court Registry into an 'open' office. After all, the plaintiff was told that it would not be processed on that day which is consistent with Rule 3.08. Once it sought to file the application and affidavit in support at the Supreme Court Registry, that was the 'particular office' as that expression is used in s 36(3)(b) and it is irrelevant that the Federal Court Registry was open on Easter Tuesday. Time is extended to 30 March 2016.
In ordinary speech the word 'and' is used conjunctively and the word 'or' disjunctively. But one quite often finds arguments being put to the Courts that items connected by the word 'and' should be treated as alternatives and that items connected with 'or' should be treated as being cumulative. In some instances these arguments have been successful.[2]
In one group the Court has decided that there are compelling reasons for concluding that there is a printing or drafting error and that, in line with the golden rule, the provision should be interpreted as if the word that had been intended had been used ...
In the second group of cases the Court has not decided that 'and' 'or' was used in error. Instead, it has been concluded, usually by reference to the context in which the word appears, that the cumulative effect of the provision should not be dictated by the presence of the word in the question.[3]
... the purposive approach to interpretation in a statute includes reading 'and' for 'or' and vice versa if the purpose of the legislation suggests such an interpretation.
18 The plaintiff submitted that a conjunctive approach to s 36(3) would render the second limb (b) otiose:
In the first limb (a) defines public holiday as a "holiday". If a thing is to be done at an office, such as the office of this Court, it is self-evident that such an office would not be open on a public holiday. The inclusion of the second limb (b) is plainly designed to capture an occasion or event other than a public holiday: namely, a day that is not a public holiday but on which the relevant place or office "is closed for the whole day".
If both limbs of 36(3) were required to be satisfied in order for there to be a "holiday", the second limb (b) would serve no purpose and would never be engaged. ...
The inclusion of a second limb (b) in the [Acts Interpretation Act 1901 (Cth)] definition of "holiday" is to provide for a further alternative, of which the situation that has arisen in the present case is an instance: where, despite "Easter Tuesday" no longer being a public holiday in Victoria, a step was unable to be taken at an office (at which that step could otherwise be taken) on account of that office being closed. The purpose of the second limb (b) is to alleviate what may otherwise be a very harsh outcome (as in the present case, where the plaintiff would be deprived of the opportunity to seek to have this Statutory Demand set aside). ...
... properly analysed, the two limbs of s 36(3) of the AIA are a "list of alternatives". Put simply, either of (a) or (b) will constitute a "holiday".
19 The plaintiff also submitted that the second limb (b) of s 36(3) was satisfied. It was irrelevant that the Federal Court Registry was open and operating as on any other working day. The plaintiff submitted that:
It will be sufficient if the relevant step (in this case, the making of the Application) may be done at this Court. The fact that the "thing" may also have been done at some other place or office does not exclude the application of the second limb (b).
20 Further, reliance is placed on item 224 of the Explanatory Memorandum. It is contended that the item explains that s 36(3) expands the range of situations which may arise - namely a day upon which an office is closed but not necessarily a public holiday.
21 There is no valid application pursuant to s 459G as the same was not filed within the 21 day period. In Adhesive v Blackrock Supplies Pty Ltd,[4] Mossop AsJ referred to and adopted the approach of Jagot J in Opensoft Australia Pty Ltd v Miller Street Pty Ltd[5] that in addition to requiring the originating process to be filed within the 21 day period, the documents to be served must bear:
22 Easter Tuesday is not a public holiday in Victoria. Further, it has not been appointed a public holiday under s 6 under the Public Holiday Act 1993 (Vic).
23 'And' between sub-sections (a) and (b) is conjunctive and both criteria set out in the section must be satisfied. Accordingly, for s 36(2) to operate, 'holiday' must be a public holiday and on that day, the office at which the 'thing' is to be done, must be closed.
24 Item 224 of the explanatory memorandum, contrary to the submission by the plaintiff, demonstrates that s 36 has a broader reach in that there must not only be a holiday, but there must also be a closure on the same day. That conclusion arising from the observations in item 224 is supported by item 225 as that item specifically sets out that it does not 'substantively change the existing policy'. Section 36, prior to its amendment, did not require any office to be closed. The Victorian equivalent also lacks such a qualification.
25 The defendant relied upon White J's reasoning in Elan Copra Trading Pty Ltd v JK International Pty Ltd:
The appellant pointed to the agreed fact that the 21st day (Monday 2 May 2005) was a public holiday in Queensland. The effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) was, it was submitted, that the appellant then had until 3 May 2005 in which to serve the respondent whether service was being effected in Queensland or New South Wales. Section 36(2) provides:
Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is the public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.
The appellant's submission in this respect cannot be accepted. The effect of s 36(2) is, relevantly, to allow an extra day or days for service when the last day on which service may be effected is a Saturday, Sunday, public holiday or bank holiday in a place where the service is to be effected. It is a safeguard against a person being impeded from carrying out a required act within time by reason of the last day for doing that act being a day when the premises may not be open to the business. There is no reason to construe s 36(2) as permitting an extra day or days in one place where that impediment does not exist merely because of another place the impediment would or may have existed. Such a construction may produce results which are quite uncertain depending upon the extent of the places at which the act could be carried out. In my opinion s 36(2) should be construed as though the last clause read "the thing may be done in that place or that first day following which is not a Saturday, Sunday or public holiday or bank holiday in that place".[6]
26 The defendant argues that 'particular office' used in (b) means a registry at which the s 459G application could be filed. It does not mean the specific registry at which the plaintiff elected to issue the application.
27 The defendant acknowledged that if the plaintiff could not avail itself of s 36, that may lead to a draconian result. However, it was put that I should not detract from the strictness of the time limit. The defendant relied upon Adhesive v Blackrock Supplies Pty Ltd.[7] At [50] Mossop AsJ said:
As I have made clear, the result is in some respects an unsatisfactory one. The delay by the staff within the Registry of the Court in providing properly sealed and stamped copies of the application and affidavits in support has led to the plaintiff losing its right to contest the validity of the statutory demand. While the contentions put forward by the plaintiff are attractive in the sense that they would permit, in circumstances where no prejudice to the defendant exists, the plaintiff's application to proceed notwithstanding the defective administrative processes, such result, is, in my view, inconsistent with the requirements of the Act [the Corporations Act 2001 (Cth)] and cannot be accepted ... The Court does not have jurisdiction...
28 Contrary to the plaintiff's submission, s 36(3)(b) would have work to do if 'and' is conjunctive. If 'and' is conjunctive s 36(3)(b) would have the effect that a day is not a holiday if, despite being a public holiday under s 36(3)(a), the office/place is open for all or part of that day.
29 However, this would produce an anomalous result. If the last day for doing the thing falls on a Saturday or Sunday, and the office/place is open on the weekend, the person still is entitled to the benefit of the extra time under s 36(2) despite the office/place being open. Yet for a holiday, the office/place would have to be closed for the whole day in order to get the extra time under s 36(2).
30 To avoid this anomalous result, 'and' must be read disjunctively. This means s 36(3)(b) constitutes its own category of day for which extra time is available under s 36(2), rather than being a condition attached to just one of the other three categories of day. I can see no policy reason for requiring the office/place to be closed on a public holiday but not requiring it to be closed on a Saturday or Sunday, in order for extra time to be given under s 36(2).
31 Such a construction is consistent with the observation set out in the explanatory memorandum at item 224. Construing 'and' as conjunctive would result in s 36(2) covering a narrow range of situations, whereas the explanatory memorandum expressly states that the amendment 'was intended to capture a broader range of situations'.
32 A disjunctive construction is also supported by the use of 'a day' in s 36(3)(b) because such a construction leads to s 36(3)(b) constituting its own category of day for the purposes of s 36(2). If (b) was merely a condition attached to (a), it would be unnecessary for (b) to repeat 'a day' because in the absence of 'a day' (b) would attach to the 'public holiday' referred to in (a). By specifying 'a day' in (b) the construction is such that it is referring to 'a day' not being a Saturday, Sunday or holiday referred to in (a).
33 As I have construed 'and' as disjunctive in s 36(3)(a) and (b), the plaintiff need only satisfy one of the limbs to obtain the benefit from the extra time in s 36(2).
34 The next question for determination is whether or not all the offices/places be closed (for the whole day) in order for s 36(3)(b) to apply.
35 Section 36(3)(b) specifies a 'particular' office or other place. For the reasons set out hereafter I construe 'particular' to give that word its ordinary meaning. According to the Oxford English Dictionary, 'particular' means:
36 Synonyms for 'particular' include 'specific, certain, distinct, separate, isolated, single, individual, peculiar, discreet, definite, express, precise'. 'Particular' and its synonyms do not speak of the 'plural' or the generic in the context of s 36(3)(b). Hence, the Supreme Court Registry is a 'particular' office and the Federal Court Registry is a 'particular' office. The plurality of each of the Supreme Court Registry and the Federal Court Registry in combination does not constitute a 'particular office or other place' as that phrase is used in s 36(3)(b).
37 In Martin Bissett v Zezt Pty Ltd ('Martin Bissett'),[8] Commissioner Deegan considered the application of s 36(3)(a). The respondent argued that:
...[A]s the public holiday did not apply in all States and Territories, it was not a holiday for the purposes of s 36 of the Acts Interpretation Act 1901 (Cth). In addition it was now possible for the application to be lodged electronically so it was not essential for an office of the Fair Work Commission to be open for lodgement to occur.
38 Although I concede that the Commissioner's consideration was cursory it is clear that the Commissioner rejected the argument that another registry in another State was available. Likewise the Commissioner rejected the argument that electronic lodgement would have overcome the registry being closed on the holiday in Tasmania. The Commissioner followed the decision of Hemi v BMD Constructions Pty Ltd.[9] Although the decision does not assist me as the last day for doing the 'thing' fell on Easter Monday, which was a public holiday in the whole of Australia, I take it from Commissioner Deegan's consideration that another registry being available would not inhibit the application of s 36(3)(a).
39 Another example would be 'Labour Day'. On Labour Day in Victoria, the Supreme Court of Victoria and the Victorian Registry of the Federal Court of Australia are closed. However, the NSW registry of the Federal Court is open because Labour Day in New South Wales falls on a different date. In such an example, I consider that s 36(3) would still apply to a party seeking to file a document in the Federal Court in Victoria on Labour Day, even though it may be possible to file the same electronically or file the material, for example, at the NSW Registry of the Federal Court. Such a conclusion lends weight to the construction of 'particular' being the specific office (registry) at which documents are sought to be filed, notwithstanding there may be other registries available elsewhere or other means available by virtue of the electronic filing capability.
40 At first blush, Elan Copra Trading Pty Ltd v JK International Pty Ltd[10] seemingly causes the plaintiff difficulties in this application. However, read together with Martin Bissett, these two decisions confirm that:
(a) Where it is a public holiday in the first place but not the second place, the person is not burdened by the lack of a public holiday in a second place. Section 36(3)(a) applies; and
(b) Where it is not a public holiday in the first place but it is in the second place, the person is not benefited by the public holiday in the second place. Section 36(3)(a) does not apply.
41 Section 36(3)(a) assumes that the public holiday applies to all offices. However, in the case of s 36(3)(b) there can be two offices in the one place, and one can be open and the other one closed. So a situation that cannot arise under s 36(3)(a) may arise under s 36(3)(b).
42 If there are two distinct places in Victoria for something to be done, and one is open and the other is closed, s 36(3)(b) permits a construction that it applies as long as the person seeks to do the thing at the place that is not open.
43 I determine that a 'particular office or other place' is the Supreme Court of Victoria. Another is the Federal Court. They are distinct offices/places. Construing 'particular office or other place' as the Supreme Court of Victoria at Melbourne in this particular instance means that s 36(3)(b) is met even if the Federal Court is open. Construing 'particular office or other place' to mean the generic term of 'Courts in general with the appropriate jurisdiction' is illogical. There are 12 regional registries of the Supreme Court of Victoria. Local practitioners are able to file documents at each of those registries. Various regional centres enjoy full day holidays at various dates during the year, which are not public holidays in the Melbourne CBD. It would be out of the ordinary if on Geelong Cup Day a practitioner was required to travel to Melbourne to file a document which could normally be filed at Geelong. Likewise, Melbourne Cup Day is not a public holiday in regional centres if such regional centre has made alternative arrangements for a holiday. A practitioner would not be required to travel to a regional centre such as Hamilton if the Court Registry were open that day.
44 Further, treating the Supreme Court and the Federal Court as two separate offices/places achieves a result consonant with the s 36(3)(a) cases on different States/Territories. A party may have a good reason for filing in a particular Court or a particular State/Territory. That party should not be required to file in any Court that is open just as that party is not required to file in a State/Territory where a public holiday has not been proclaimed. The ability to do a thing in another State/Territory does not render s 36(3)(a) inapplicable. The ability to file in a different Court should not render s 36(3)(b) inapplicable.
45 Accordingly, I find that the application has been filed and served within time.
46 I require the parties to submit minutes to deal with the s 459G application on its merits.
47 I will reserve costs. Albeit that I have reserved the costs, I expect that I will order costs to be paid by the defendant on a standard basis subject to hearing submissions with respect to the same.
[1] Acts Interpretation Act 2011 (Cth) (No. 46 of 2011).
[2] Dennis C Pearce & Robert S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths Australia, 8th ed, 2014) [2.29].
[4] [2015] ACTSC 288 [40].
[5] (2011) 29 ACLC 11-040 [30].
[6] [2005] SASC 501 [36].
[7] [2015] ACTSC 288 [50].
[8] [2013] FWC 3876 [6].
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