Consideration
54 There are two relevant elements that need to be satisfied under s 601AH(2). The first is that the applicant for reinstatement is a "person aggrieved" by the deregistration. The second is that it is "just" that the company's registration be reinstated.
55 In relation to the first requirement, I am satisfied that Mr Price is a "person aggrieved" by the deregistration, given that he is a shareholder of APR, and has the potential to benefit from any surplus of assets that the company would have if successful in its proposed claim against the Commonwealth.
56 The real issue is whether it is "just" to order the reinstatement of APR, having regard to all relevant circumstances, including: the circumstances in which the company came to be deregistered; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement: see the cases discussed above.
57 In relation to the circumstances in which the company came to be deregistered, in his third affidavit, at paragraph 11, Mr Price indicates that APR was deregistered because it did not have any directors and because the company had failed to comply with its obligations under the Corporations Act, in particular its obligation to pay yearly registration fees. No explanation has been provided as to why Mr Price and Mr Shah did not take steps to have new directors appointed given that they were both bankrupt and unable to serve as directors. No explanation has been provided as to what steps, if any, were taken by Mr Price and Mr Shah to ensure that the company complied with its obligations regarding payment of fees. It is not clear whether the company failed to comply with other obligations, apart from the obligation to pay fees. It is unsatisfactory that this matter has not been properly explained and dealt with. I consider that the applicant for reinstatement, Mr Price, has failed to give a full and proper account of the circumstances in which the company was deregistered. This puts the Court in the difficult position that it is not apprised of all relevant information for the purposes of the application for reinstatement.
58 In relation to whether, if an order for reinstatement were made, good use could be made of it, the main purpose of the proposed reinstatement is to bring a claim against the Commonwealth. The proposed claim is based on causes of action in negligence and breach of contract (the relevant contract being the R&D Agreement). The draft statement of claim contains an allegation that it was an "implicit term" of the R&D Agreement that the only powers of AusIndustry to supervise the work performed by APR pursuant to the agreement were the powers contained in the agreement. These powers included the powers relating to inspection and audit contained in cll 4.19-4.21 of the R&D Agreement. The draft pleading alleges, in summary, that the Commonwealth was negligent or breached the implicit term by referring the allegations against APR to the Australian Federal Police rather than exercising its powers under the agreement.
59 My impression is that the claim is weak, but arguable. I have doubts about whether the alleged "implicit term" would be implied in the R&D Agreement. Implication of this term would have the surprising consequence that it was not open to the DITR (without breaching the R&D Agreement) to refer serious allegations (including of fraud) to the Australian Federal Police. It is open to doubt whether the inclusion of powers of audit and inspection in the R&D Agreement carries with it as a corollary that the DITR must use those powers in relation to serious allegations and cannot refer such allegations to the Australian Federal Police.
60 A further difficulty with the proposed claim is that the applicable limitation periods have likely expired. The governing law of the R&D Agreement is the law of the Australian Capital Territory, and Mr Price's submissions proceed on the basis that the applicable limitation statute is the Limitation Act 1985 (ACT). I will proceed on that basis. The general limitation period under s 11(1) of the Limitation Act is six years from the date when the cause of action first accrued. There is a longer period for a cause of action founded on a deed - this is 12 years from the date when the cause of action first accrued: s 13. Insofar as the contract claim is concerned, in my view it is likely that the cause of action first accrued in May 2006, if not before. The alleged breach was the enlisting of the Australian Federal Police. On the evidence, this occurred by May 2006. Insofar as the negligence claim is concerned, in my view it is likely that the cause of action first accrued in or about May or June 2006. An element of the cause of action is damage. It seems likely that damage (namely financial damage to APR) occurred in May or June 2006 or shortly thereafter.
61 It is sufficient to focus on the contract claim, as this potentially has a longer limitation period. Mr Price contends that the contract claim is founded on a deed, the R&D Agreement having been executed as a deed. Although the signing or execution page has not been produced, the wording of the agreement supports the contention that it was executed as a deed. Focussing on the contract claim, and assuming that it is a cause of action founded on a deed, the 12 year limitation period likely expired in May 2018. In other words, unless the second order sought in the amended originating process is made, any claim against the Commonwealth would likely be out of time, in the sense that it would be open to the Commonwealth to plead a limitation defence. There is no reason to think that the Commonwealth would not plead such a defence if available to it; indeed, I consider it likely that it would.
62 Insofar as Mr Price indicated in his third affidavit, at paragraph 12, that a reinstated APR could be a "useful commercial vehicle" for his activities in the plastics recycling and plastics technology industry, no detail is provided about this. I do not regard this as providing a good reason for reinstatement.
63 It is convenient to defer any overall consideration of whether it would be "just" to reinstate the company until after I have considered whether (assuming the company were reinstated) I would make the second order sought by Mr Price, namely an order that the period between the date of deregistration of APR (25 May 2008) and the date of reinstatement of the company not be counted for the purposes of the applicable limitation period.
64 I will now consider that issue. Unlike many other cases where reinstatement is sought, here the company is the intended plaintiff rather than the intended defendant, and reinstatement is sought to enable the company to bring a proceeding (rather than to enable the claimants to bring a proceeding against the company). In these circumstances, the making of an order that the period between the date of deregistration and the date of reinstatement not be counted for the purposes of the applicable limitation period would advantage the company and disadvantage the defendant to the proposed proceeding. I therefore consider that caution needs to be exercised before making an order of the kind sought in such circumstances.
65 Adopting the approach taken by Brereton J in Re Regional Planners, I will focus on the practical effect of the deregistration on any decision to commence proceedings before the limitation period expires. Here, a proceeding was commenced in 2013 by Mr Price and Mr Shah against the Commonwealth. This proceeding was ultimately dismissed because Mr Price and Mr Shah did not file a document within the time prescribed by a Court order. Subsequently, they did not seek reinstatement of the proceeding. Mr Price gives evidence that he was advised (it would seem, in about 2014) by his then solicitor that the statement of claim would need to be amended "because the proceeding may be unsuccessful given that it was commenced in the names of [Mr Price] and [Mr] Shah rather than in the name of APR". Thus, by this time, if not before, Mr Price was aware of the need to bring the proceeding in the name of APR. Mr Price states that he was unable to commit further funds due to his poor financial circumstances. He does not give any other explanation for the failure to bring a claim in the name of APR at that time. It is thus not clear whether the deregistration of APR had any effect on the failure to bring a claim in the name of APR at that time. The position may well be that, because of Mr Price's financial circumstances, a claim would not have been brought in the name of APR even if it had been registered.
66 I note that Mr Price gives evidence that, when he was discharged from bankruptcy (in 2010) he did not know that APR could be reinstated and did not receive any advice that it could be reinstated. However, there is no evidence that a claim in the name of APR was otherwise in contemplation at that time. Therefore, it is not established that the deregistration of APR had any effect on the failure to bring a claim in the name of APR at that time.
67 I note that it is possible that the deregistration may have had an effect on the failure to bring a claim for part of the deregistration period. It appears that, at some point after August 2017, Mr Price received advice from Mr Nash QC that he needed to make an application to reinstate APR. By that time, Mr Nash had agreed to assist Mr Price "without fee" and Mr Russell had agreed to act for Mr Price in circumstances where Mr Russell's former law firm had declined to act further for Mr Price due to his financial circumstances. If APR had not been deregistered at the time of Mr Nash's advice, he may have advised that APR commence a proceeding against the Commonwealth; further, Mr Russell and/or Mr Nash may have offered to do so without fee (or for a reduced fee). However, the evidence does not enable any conclusion to be drawn about these matters, and thus they remain in the realm of speculation. Mr Price has not provided any clear evidence to support the view that, at a particular point in time before the expiry of any applicable limitation period, but for the deregistration, a proceeding would have been commenced in the name of the company.
68 In the circumstances of this case, as described above, I am not satisfied that it would be appropriate to make an order that all (or part) of the period of deregistration not be counted for the purposes of the Limitation Act.
69 In the course of argument, it was suggested by counsel for Mr Price that any suspension of the limitation period could be provisional, and subject to further contrary submissions by the Commonwealth in due course. The cases do not approach the issue in this way. In any event, for the reasons set out above, I do not consider it appropriate to make such an order.
70 I return to whether the first order sought by Mr Price should be made. Having regard to the facts and matters set out above, including the lack of clarity about the circumstances in which the company came to be deregistered, the apparent weakness of the proposed claim, and the likelihood that the applicable limitation periods have expired, I am not satisfied that it would be just to order the reinstatement of the company.
71 In light of this conclusion, it is not necessary to deal with certain other issues that would arise if an order for reinstatement were to be made. As noted above, immediately before the company's deregistration it did not have any directors. Before the company could be reinstated, it would be necessary to ensure that it would have directors upon reinstatement. Further, the evidence suggests that upon reinstatement the company would or may be insolvent, in light of the debt due to the Bank. The company was not in liquidation immediately before its deregistration, and therefore the reinstated company would not be in liquidation, absent a resolution or an order that it be wound up. Mr Price has not sought such an order in his amended application (although I note that he has filed a consent to act from a liquidator). It would be necessary to address the question whether the company should be wound up, and the appropriate mechanism for achieving this.