Enforcement and Prescription Jurisdiction
In the course of his detailed and helpful argument, Mr White distinguished between the jurisdiction of a state to enforce its laws and the jurisdiction to prescribe laws. He referred to Federal Trade Commission v Compagnie de Saint-Gobain-Pont-A-Mousson 636 F2d 1300 (1980), in which the Court of Appeals for the District of Columbia pointed out (at 1316) that, although a state's prescriptive jurisdiction is not strictly limited by territorial boundaries, the enforcement jurisdiction by and large continues to be strictly territorial. The prescriptive jurisdiction may be exercised, with respect to conduct outside the United States, if the conduct has "substantial effect" within the United States: Restatement of the Foreign Relations Law of the United States, Third, vol.1, ss.402(1)(c). This is the case, for example, where actions in apparent violation of anti-trust laws take
place outside the United States but have effects within that country.
The distinction drawn by Mr White is recognised as a matter of international law. However, it does not alter the fact that domestic legislation, as a matter of construction, can authorise the extraterritorial exercise of the enforcement jurisdiction. FTC v Saint-Gobain-Pont itself was concerned with purported service of a subpoena to France by an agency investigating possible anti-trust violations. The subpoena was served by registered mail. The Court held that this mode of service was not authorised by the governing legislation. But the decision was reached because no clear congressional intent could be discerned to authorise a mode of service other than the "customary and legitimate methods of compulsory service commonly employed by American courts" (at 1323). Had such an intent been discerned, a different result would have been reached (at 1315, 1324). The Court was also influenced by the fact that the FTC was attempting to exercise the enforcement jurisdiction of the United States before it had been established that prescriptive jurisdiction was available (at 1317) - that is, before it had been shown that a violation of the anti-trust laws of the United States, having effect in the United States, had taken place.
In the present case, the Commonwealth Parliament and the Parliament of New South Wales have prescriptive jurisdiction over shares held in an Australian corporation: Restatement Third, ss.402(1)(b) (the laws with respect to interests in things present within the territory); Williams and Humbert Ltd v W. & H. Trade Marks (Jersey) Ltd [1986] AC 368, at 428, 431; P.E. Nygh, Conflict of Laws in Australia (6th ed. 1995), 488-489. If it is correct to characterise Part 6.8 in general, and s.722 in particular, as an exercise of the enforcement jurisdiction, it is taking place in circumstances where the legislatures enacting the scheme embodied in the Corporations Law do have prescriptive jurisdiction. The circumstances are therefore different from those in issue in FTC v Saint-Gobain-Pont.
Attorney-General v Heinemann
Mr Lindsay relied on the decision of the High Court in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 ("the Spycatcher Case") to support the ASC's contention that Leumi and EBC were required to comply with the secondary notices notwithstanding that to do so exposed them to a risk of contravening Swiss law. In the Spycatcher Case the High Court held that a foreign State could not enforce in Australia an obligation of confidentiality owed by a member or former member of its security service by restraining publication of a book written by that member. The principal judgment (Mason C.J., Wilson, Deane, Dawson, Toohey and Gaudron JJ.) applied the rule, based partly on "international comity and expediency" (at 41), that prevents (at 43)
"enforcement outside the territory of the foreign sovereign of claims based on or related to the exercise of foreign governmental power".
Mr Lindsay sought to equate the submission by Leumi and EBC, that they were not bound to comply with the secondary notices, with an attempt to enforce the public laws of Switzerland in Australia. In my view, the Spycatcher Case was concerned with very different issues to those arising in the present case. In this case, the Swiss authorities are not seeking to enforce in Australia any governmental claims. The issue is whether Leumi and EBC can rely on the risk of contravening Swiss law as a reason for not complying with the secondary notices. Those notices were issued in Australia, but served in Switzerland (whether by fax or by courier) and require a Swiss corporation to comply with Australian law. Whether the Swiss corporations are bound by the notices is to be determined by the process of statutory construction to which I have referred.
Self-Incrimination
Mr Conti relied on an additional argument to support the proposition that the Corporations Law does not require compliance with a secondary notice, where the recipient is a foreign corporation and compliance would contravene foreign law. He contended that nothing in s.719 or (presumably) s.722, was intended to abrogate the privilege against self-incrimination. While he acknowledged that Australian law does not recognise the privilege against self-incrimination for corporations (Environment Protection Authority v Caltex
Refinery Co Pty Ltd (1993) 178 CLR 477), the Swiss corporations could act only through natural persons. These persons would be at an appreciable risk of being subjected to criminal sanctions if they assisted EBC (or Leumi) to comply with the secondary notices. Mr Conti contended that the better view is that the privilege extends to self-incrimination under foreign law: see McNicol, Law of Privilege (1992), 215-223; Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Company Ltd (No.4) [1985] 1 Qd R 127 (S.Ct. Qld/McPherson J.). In the latter case, which was decided before EPA v Caltex, it was held that a Swiss corporation was entitled to claim privilege from producing a class of documents, the contents of which disclosed shareholdings in another Swiss corporation. The privilege from non-disclosure arose because the disclosure would or might expose the party making the disclosure to a penalty under the Swiss Penal Code.
Mr Conti's argument raises several difficult questions. First, it is not settled in Australia whether the privilege against self-incrimination protects a person from self-incrimination under foreign law. In Adsteam v Queensland CLC, McPherson J. held that it did, at least in the context of discovery in civil proceedings between subject and subject (at 145). There have been decisions to the contrary (see, for example, In re Atherton [1912] 2 KB 248, at 255-256, per Phillimore J.) and other Australian authorities are inconclusive: Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163 (FCA/Morling J.), at 167; FF Seeley Nominees Pty Ltd v El Ar Initiations (UK) Ltd (1990) 96 ALR 468 (S.Ct. SA/Zelling A.J.), at 471-474.
Secondly, it is not entirely clear that the privilege applies where it is the very act of disclosure that constitutes or might constitute an offence under foreign law, as distinct from a disclosure that exposes the person to the risk of prosecution for an antecedent offence. McPherson J. regarded the former situation as covered by the privilege. The modern rationale for the privilege, as stated by Mason C.J. and Toohey J. in EPA v Caltex, at 498, is that it protects
"the individual from being confronted by the 'cruel tri-lemma' of punishment for refusal to testify, punishment for truthful testimony or perjury".
This formulation is consistent with the privilege applying to a compulsory disclosure which is itself an offence under foreign law, but I do not think that the proposition has yet been clearly established.
Thirdly, if the privilege were available in the present case, it would be necessary to consider the effect of the privilege on Leumi and EBC. As I have noted, EBC is not affected by the Swiss Banking Law. Both Leumi and EBC are bound by art.273 of the Swiss Penal Code, but the degree of risk of contravening art.273 varies according to whether the customers are or are not Swiss domiciliaries. There is also some risk, although I consider it slight, that disclosure by Leumi and EBC of the
information required by the secondary notices would make them liable as aiders and abetters of any breach by the ASC of art.271.
I do not think it is necessary to resolve these issues. The duties imposed by Part 6.8 of the Corporations Law on a corporate shareholder are imposed on the corporation itself. As Mr Conti acknowledged, the privilege against self-incrimination, assuming it applies where the risk of incrimination arises under foreign laws, is not available to a corporation. I have previously held that, as a matter of construction, a foreign corporation is required to comply with a secondary notice received by it, notwithstanding that the compliance creates a risk of the corporation contravening foreign law. I have reached this conclusion largely because the legislative scheme created by Part 6.8 would be severely hampered, and perhaps rendered unworkable, if a foreign corporation were to be exempted from the statutory requirements. In my opinion, the legislative intent underlying the scheme created by Part 6.8 would be equally undermined if a foreign corporation did not have to comply with a secondary notice because compliance would create an appreciable risk of prosecution, under foreign law, for some of the corporation's officers and agents. It is clear that a corporation which is required to make disclosure by Australian law cannot rely on the privilege against self-incrimination to defeat that obligation. In my opinion the fact that disclosure may place some other people at risk of prosecution under foreign law is not sufficient to warrant reading down the duties imposed by Part 6.8 and, in particular s.722, of the Corporations Law. Accordingly, I reject the argument based on the privilege against self-incrimination.
VIIWAS SERVICE OF THE SECONDARY NOTICE IN SWITZERLAND AUTHORISED BY THE CORPORATIONS LAW?
The Submissions
Leumi and EBC submitted that, whatever view was taken of the scope of s.722 of the Corporations Law, s.719 should not be construed so as to permit the ASC to "give" a secondary notice to a Swiss corporation, where the giving of the notice violated or might violate Swiss law. They contended that, whether a notice was "given" by fax or by delivery in Switzerland, the ASC was in breach of art.271. Insofar as the notices had been sent to Leumi and ASC by fax, the argument accepted, contrary to other submissions made by Leumi and EBC, that service of secondary notices by fax is ordinarily permissible under the Corporations Law.
Leumi and EBC acknowledged that s.110D expressly applied Chapters 1 and 6 of the Corporations Law to acts outside Australia. However, they argued that s.719 should not be read as authorising acts outside Australia which were or might be illegal under Swiss law, as infringing Swiss sovereignty. It followed from their argument that the purported service of the
secondary notices was invalid. They also argued that a secondary notice served on a Swiss corporation in contravention of Swiss law could not be said to be "received" by the corporation for the purposes of s.722 of the Corporations Law. Thus the duty created by s.722, which requires a person receiving a secondary notice to comply within two business days of receipt, was not enlivened.
I have previously found that service of a secondary notice on a Swiss corporation in Switzerland, by means of a courier, is likely to contravene art.271 of the Swiss Penal Code. I have also found that service of secondary notices in Switzerland, by means of faxes sent from Australia, might contravene art.271, but that the risk of a successful prosecution under Swiss law is less than where service is actually effected by delivery of the documentation in Switzerland.
The Question of Construction
As with the duty to comply with secondary notices, the question of whether service of secondary notices can be effected on a foreign corporation in contravention of foreign law is to be determined by a process of construction of the legislation. That process must take account of the principles of statutory construction to which I have already referred. Those principles mean that an Australian court will not lightly construe legislation as authorising service of notices or other documents outside Australia, in contravention of the law of another country.
The legislation governing service of documents sometimes makes it clear that service cannot be effected in a foreign country in breach of that country's laws. An example is RSC 0.11, r.6(3), applied in Ferrarini SpA v Magnol Shipping Co Inc (The "Sky One") [1988] 1 Ll LR 238 (QBD/Staughton J.). Compare the language of FCR, O.8, r.5, which does not make it entirely clear whether service of court process must be effected in accordance with the law of the place of service. Sometimes the legislation contemplates service in another country, but does not specifically state whether service in breach of the local law is authorised. The question is then whether, having regard to the principle that legislation should be construed in conformity with principles of international comity, there is sufficient indication of a legislative intent that service on a foreign corporation is authorised, even in breach of foreign law.
In my opinion there are two main factors which suggest that the Australian legislatures enacting the Corporations Law intended s.719 to authorise the giving of a secondary notice to a foreign corporation, even if to do so contravenes or might contravene foreign law.
First, I have already concluded that the legislative intention is to impose a duty on foreign corporations to comply with s.722, even if to do so contravenes foreign law. It is but a short step to conclude that a notice may be given to such a corporation, even if the giving of the notice contravenes foreign law. I accept that resolving one issue does not necessarily resolve the other, since the different foreign laws may promote different interests. Secrecy laws, for example, are likely to protect commercial or economic interests. Provisions such as art.271 of the Swiss Penal Code are intended to protect the sovereignty of the country enacting the law.
However, the rationale for applying s.722 to corporations such as Leumi and EBC is that, if this step were not taken, the regulatory scheme for listed Australian companies, created by Part 6.8 of the Corporations Law, could be readily avoided by the use of foreign nominee corporations in jurisdictions with stringent secrecy laws. A similar rationale can be applied to the question of service. While a notice could be "given", for example, to a Swiss corporation in conformity with the requirements of Swiss law, the practicalities are that the giving of such a notice is unlikely to be achieved within the short period that in my view Part 6.8 contemplates. In the present case no party adduced evidence of the requirements of service under Swiss law. I would not be prepared to infer from the material before me that service of secondary notices could be arranged in Switzerland in accordance with Swiss law within a short period (say, two to three weeks). I did not understand Mr White or Mr Conti to suggest otherwise.
I do not think that significant delays in "giving" secondary notices to foreign corporations are consistent with the objectives of Part 6.8. The time limits specified in Part 6.8 for compliance are very short indeed, reflecting the perceived need for extremely swift responses to ensure that the market for Australian securities is properly informed and that uninformed transactions do not take place. If a notice could only be given in accordance with the requirements of foreign law, the regulatory structure inevitably would encounter formidable difficulties. The facts of Re North Broken Hill Holdings Ltd, in which a chain of companies was interposed between the registered shareholder and the beneficial owner, illustrates the nature of the difficulties.
It is true, as Mr White suggested, that it is open to regulators to enter into memoranda of understanding (MOUs) with foreign regulators, providing for a framework for investigative assistance and exchange of regulatory and investigative information. Evidence was adduced of media releases which noted the entry into such MOUs by the ASC with its counterparts in the United Kingdom, Hong Kong, the United States and France. The precise scope of the MOUs, and their impact (if any) on the service of Australian documents in jurisdictions outside Australia, was not, however, explored in the evidence.
It may well be that the cause of bilateral relations would be assisted by agreements between regulators or treaty arrangements governing issues of the kind involved in the present case. But the fact that MOUs might be entered into and (although this was not established in the evidence), that some MOUs might provide for service of documents by Australian regulators in foreign countries, does not determine the scope of Part 6.8 of the Corporations Law. That must be decided by a process of statutory construction, having regard to the purpose of the statutory scheme.
Mr White also pointed out that, in addition to serving documents in accordance with the requirements of Swiss law, Australian regulators may seek assistance from the authorities in other countries under treaty arrangements contemplated by Australian legislation. The objects of Mutual Assistance in Criminal Matters Act 1987 (Cth) include facilitating the provision and obtaining of international assistance in criminal matters by means such as obtaining evidence and documents, restraining dealings in property liable to forfeiture and the service of documents: s.5(a),(c),(h),(k). A treaty was concluded between Australia and Switzerland on Mutual Assistance in Criminal Matters on 25 November 1991, and came into effect on 31 July 1994: Australian Treaty Series 1994, No.7. The Mutual Assistance in Criminal Matters (Switzerland) Regulations, reg.4, applies the Act to Switzerland, subject to such limitations and qualifications as are necessary to give effect to the Treaty between Australia and Switzerland .
In my view, the Treaty between Australia and Switzerland has little bearing on the proper construction of the Corporations Law. The Treaty is confined to granting of mutual assistance in
"investigations or proceedings in respect of offences the punishment of which falls or would fall within the jurisdiction of the judicial authorities of the Requesting State" (art.1).
The Requested State is to effect service of a document required to be served by the law of the Requesting State in connection with any investigation of an offence or proceeding (art.17(1)).
Part 6.8 of the Corporations Law is not concerned exclusively or even primarily with the investigation of offences or proceedings in respect of offences. The principal object of the Part is to promote an informed market in Australian securities. No doubt secondary notices are sometimes served in the course of investigations. But in many cases secondary notices will not be served in the course of any criminal investigation, but simply in order to obtain information considered necessary to inform the market. In these circumstances, I do not think that the fact that assistance is available in connection with the investigation of criminal offences lifts the construction that otherwise should be placed on s.719 of the Corporations Law.
I should note that at least one practice book refers to service of Australian documents in Switzerland being governed by the Convention Regarding Legal Proceedings in Civil and Commercial Matters, signed in London on 3 December 1937: N.
Williams, Civil Procedure Victoria, para.17.09.20. Australia acceded to the Convention on 11 February 1940, pursuant to art.9 (see Australian Treaty List, Australian Treaty Series No.1, at 135). However, the Convention does not deal with service of documents.
The second factor suggesting that a notice may be served on foreign corporations in contravention of foreign law is that the regulatory scheme established by Part 6.8 of the Corporations Law applies, relevantly, to shareholdings in Australian listed companies. The maintenance of an informed market in the trading of shares in such companies is plainly a matter of great economic significance for Australia. The giving of secondary notices to shareholders in Australian companies by the ASC is an integral part of the scheme. The legislation contemplates that secondary notices can be given to foreign corporations, even if they do not conduct business in Australia. If there were any doubt about this, it is removed by s.110D, which specifically applies the provisions in Chapter 6, including s.719, to "all bodies corporate...whether formed or carrying on business...in Australia or not" (emphasis supplied). Section 110D also applies the provisions of Chapter 1, including ss.109X and 109Y (which deal with service of documents), to foreign corporations. It seems to me that the legislative intention is that foreign corporations holding shares in Australia listed companies should be liable to be given secondary notices in the same expeditious manner as Australian shareholders.
I appreciate that s.110D does not expressly deal with the case where the giving of a notice by the usual means contravenes foreign law. But in applying Part 6.8 to all corporations, foreign or otherwise, the legislature must have been aware that some foreign countries, whose corporations are active in the Australian securities market, prohibit the service of documents otherwise than in accordance with their own domestic rules. In my opinion, the better view is that the legislatures enacting the scheme embodied in the Corporations Law intended that the notice could be "given" to foreign corporations by the same speedy and relatively informal means as apply to local shareholders. This intention should be given effect notwithstanding the presumption against Australian laws authorising conduct overseas that may contravene foreign law. In the next section of this judgment I express the view that secondary notices ordinarily can be given by fax. I think that this mode of service can be used in relation to Swiss corporations holding shares in Australian listed companies, even in circumstances where there is some risk that service by this means contravenes Swiss law.
VIIIWAS SERVICE OF THE SECONDARY NOTICES BY FAX AUTHORISED BY THE CORPORATIONS LAW?
The Arguments
It will be recalled that, on 20 April 1995, the ASC transmitted secondary notices by fax to Leumi and EBC in Switzerland. Leumi admitted in its pleadings that it had received the fax on that date, although denying that that constituted the giving of a notice under s.719(1) of the Corporations Law. EBC denied the allegation made in ASC's further amended statement of claim, that the ASC duly gave EBC a secondary notice on 20 April 1995 by means of the fax sent on that date to EBC in Switzerland. However, EBC's faxed reply to the ASC, of 21 April 1995, acknowledged receipt of the fax sent by the ASC on 20 April 1995. I infer from this acknowledgment that the fax of 20 April 1995 was received at EBC's offices in legible form at about the time it was sent by the ASC. The ASC contended that, in those circumstances, notices had been "given" both to Leumi and EBC on 20 April 1995, within the meaning of s.719(1) of the Corporations Law. Alternatively, the ASC argued that Leumi and EBC had "received" the secondary notices for the purposes of s.722(1), and thus their respective obligations to comply with the notices were enlivened.
Leumi and EBC argued that service of a secondary notice on a foreign corporation could be effected only in accordance with the modes of service authorised by s.109X(1)(b) of the Corporations Law. The requirements of that sub-section were not complied with, at least until subsequent service of the original secondary notice by courier. This was because transmission of a message by fax could not be said to constitute "leaving" the document at the recipient's office. Clearly the document had not been sent by post. Thus, no secondary notice had been "given". Nor had such a notice been received by Leumi since only notices that had been duly given were capable of being received and the admission on the pleadings was confined to receipt of the fax.
The Authorities
The Corporations Law does make some reference to service by fax. Section 747(1), for example, allows a document to be served on a securities exchange by sending to the exchange "by telegraph, telex, facsimile service or other similar means of communication", a message to the effect of the document. However, the Corporations Law does not specifically address the question of whether service of documents by fax is generally authorised. This is somewhat curious. The technology, although relatively recent, is utilised widely, if not universally, in commercial transactions, especially in international dealings, although it is no doubt being supplanted for some purposes by other means of electronic communication. It might be thought sensible for those responsible for reviewing the Corporations Law (and, for that matter, other legislation relating to service) to consider the issue. In the meantime, the question, to adopt the language of Woolf L.J. in Hastie & Jenkerson v McMahon [1990] 1 WLR 1575 (CA), at 1579, is whether the Corporations Law prevents advantage being taken of the progress in technology which enables a notice to be served on a foreign corporation by fax.
The efficacy of service by fax is increasingly being recognised by courts, although of course everything must depend on the particular language of the statute or rule under consideration. In Hastie & Jenkerson v McMahon, the Court of Appeal held that the transmission of a list of documents by fax to opposing solicitors constituted good service, it having been conceded that the solicitors had received a copy in clearly legible form before a deadline for service of the list had passed. The Court construed the rule of court, specifying the means by which "service of any document...may be effected", as permissive rather than mandatory or exhaustive. Woolf L.J. (at 1579) observed that
"[t]he purpose of serving a document is to ensure that its contents are available to the recipient and whether the document is served in the conventional way or by fax the result is exactly the same."
See also Sharpley v Manby [1942] 1 KB 217; Stylo Shoes Ltd v Prices Tailors Ltd [1960] Ch. 396. In Hastie & Jenkerson v McMahon, Woolf L.J. observed (at 1579) that special considerations applied to writs and other documents used to initiate legal proceedings: see The Supreme Court Practice, 1995, 10/1/3.
In NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26 (S.Ct. NSW/Cohen J.), the rules of a superannuation fund provided for a company to terminate the fund by giving the trustee notice in writing. Cohen J. held (at 35-36) that a notice had been given in accordance with the rules where the company sent the notice by fax and the fax was received in the offices of the trustee. His Honour noted that the rules did not require the notice to bear a signature or seal and therefore he did not have to decide whether a fax would be proper service if the document to be served did have to be signed or sealed (at 35). The decision of Cohen J. was affirmed on appeal, sub nom Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 65 (NSWCA), although the question of service was not addressed.
The Construction Issue
In the present case, it is clear that s.109X(1)(b) of the Corporations Law does not prescribe exhaustively the modes of serving a notice on a foreign corporation. Section 109X(2)(a) specifically contemplates that another provision of the Corporations Law might authorise the service of a document, otherwise than as provided in s.109X(1). The question is then whether s.719(1) authorises the giving of a secondary notice to a foreign corporation by fax.
Section 719(1) must be read in context. The objectives of Part 6.8 of the Corporations Law have been referred to elsewhere in this judgment. Those objectives, together with the stringent time constraints imposed by ss.721 and 722 on the recipient of a notice, suggest that service of a notice by fax was within the contemplation of the legislature. The giving of a notice by fax is a means of achieving more or less instantaneous communication of the contents of the document. Where an inquiry is made under Part 6 of the Corporations Law, time may well be of the essence, if the objective of maintaining an informed market is to be achieved. The legislation recognises that swift responses to inquiries are required if the statutory scheme is to be effective, by imposing an obligation to respond to a notice (or to seek an exemption) within two business days of its receipt.
Insofar as a secondary notice is directed to a foreign corporation, service by fax may pose fewer risks, under laws such as art.271 of the Swiss Penal Code, since the transmission is initiated outside the country in which the corporation is located. As I found earlier, the risk of a successful prosecution under Swiss law is less where service is effected by fax than where it is effected by delivery in Switzerland.
More importantly for present purposes, however, the language used in Part 6.8 supports the conclusion that a secondary notice can be given by fax. Section 717 provides that a secondary notice is a "written notice addressed to a person" requiring certain particulars of shares in which he or she has a relevant interest. Section 717 does not state, for example, that the notice must be signed or sealed in a particular manner. Section 722 imposes an obligation to comply with the notice upon a person who "receives" the notice, unless a request for exemption is made under s.721. The use of the word "receives" strongly indicates that the object of s.719(1), in providing for a secondary notice to be "given", is to ensure that the person to whom it is addressed actually receives its contents. This in turn suggests that a notice may be "given", for the purposes of s.719, even if the mode of service utilised for a foreign corporation is not one of those specified in s.109X(1)(b).
I do not think that the fact that s.747(1), to which I have referred earlier, specifically mentions service by fax in a particular context detracts from the construction of s.719 I have adopted. The question is what meaning should be accorded to the words "give to the other person a secondary notice", having regard to the context, including the terms of s.722. Nor do I think that cases such as Racecourse Totalizators Pty Ltd v Hartley Cyber Engineering Pty Ltd (1989) 7 ACLC 902 (S.Ct Vic/O'Bryan J.), which concern service of statutory demands, assist in this case, since they depend on different statutory provisions.
In my opinion, a secondary notice can be "given" under s.719(1) of the Corporations Law by fax. However, I agree with the holding in Hastie & Jenkerson v McMahon, that it is necessary for the person or body giving the notice to establish that a legible copy was printed at the recipient's premises. This is necessary because the purpose of a notice requirement is to ensure that the recipient is advised of the contents of the notice. Generally speaking, a notice is not "given" (if one of the modes specifically authorised by the Corporations Law is not utilised) unless the recipient receives the contents of the notice in legible form.
An Original Document?
Leumi and EBC argued that a notice could not be given by fax because, as a matter of construction, what was required was service of an original, signed document. It is true that a statute may require that a document be signed or sealed by a particular person or officer and that the absence of such a signature or seal might render the document invalid. This was held to be the case with a summons given by a justice "under my hand and seal": Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27, at 41-43, per Windeyer J., with whom Barwick C.J. and Owen J. agreed. However, a requirement that a document be "signed" by a solicitor has been held to be satisfied by the solicitor stamping the document with a rubber stamp containing a facsimile representation of his signature: Goodman v J. Eban Ltd [1954] 1 QB 550.
The Corporations Law defines a "secondary notice" simply as a written notice addressed to a person requiring the person to give...a written statement" setting out certain particulars relating to shares: s.717. Section 719(1) specifies the circumstances in which the ASC may give a secondary notice in relation to shares, but does not provide for any particular form of notice to be employed. The Corporations Regulations, reg.6.8.01(4), state that, for the purposes of s.719(1), a notice "may be in accordance with Form 609". Form 609 makes provision for the notice to be "signed for the Australian Securities Commission by (name)".
In my view, none of these provisions detracts from the conclusion that s.719(1) of the Corporations Law authorises a secondary notice to be given by fax, as long as the notice is received in legible form by the recipient. The Corporations Law itself does not require the secondary notices to be signed or sealed. A written notice, which is all that s.717 relevantly requires, ordinarily can be given by fax, as NM Superannuation v Hughes illustrates. Regulation 6.8.01(4) is permissive, not mandatory, in its terms. Although the prescribed form, which was followed by the ASC in this case, provides for a signature, a non-mandatory form cannot control the question of statutory construction. The question is whether the Corporations Law contemplates that secondary notices can be given by fax. In any event, I think that a notice, duly signed on behalf of the ASC, can be "in accordance with Form 609" even though the notice is given to the recipient by fax. The original notice was signed and the document reproduced at the offices of Leumi and EBC and (as I infer) contained an exact reproduction of the signature.
It follows from what I have said that Leumi and EBC were each given secondary notices by the ASC, within the meaning of s.719(1) of the Corporations Law, on 20 April 1995. In any event, I think that they "receive[d]" the secondary notices, within the meaning of ss.721 and 722 of the Corporations Law on that day, since each received a legible faxed copy of the secondary notices issued by the ASC on 18 April 1995.
IX WERE THE SECONDARY NOTICES INVALID BY REASON OF ANY PRE-JUDGMENT BY THE ASC?
Mr White argued that, at the time the ASC gave the secondary notices to Leumi and EBC (assuming that they were otherwise valid), it had already determined the attitude that it would take to any request by the Swiss Corporations for relief under s.721(1) of the Corporations Law. The ASC had therefore prejudged any such request that might be made by Leumi or EBC, and it was unable to give genuine consideration to their claims for relief.
The prejudgment by the ASC was said to be evidenced by the terms of the letter of 26 April 1995, which was faxed by the ASC to Leumi in Switzerland. In that letter, the ASC warned Leumi that if a satisfactory response to the secondary notice was not received by 4 p.m. on 28 April 1995, the ASC intended to institute proceedings in the Federal Court to enforce compliance. The letter included the following paragraph:
"Further, the Commission does not accept that Swiss Secrecy Regulations are sufficient reason not to provide the information required under the above Notice".
In addition, Mr White relied upon two paragraphs in Policy Statement 86: Beneficial Ownership Notices, issued by the ASC on 31 October 1994, as amended. The express purpose of the statement (para.1) is to set out:
"principles and policy considerations which will influence the exercise of discretionary powers conferred on the ASC by Pt 6.8 and the enforcement of notices issued under that Part".