Corporations - Powers conferred on court by s 1322 of Corporations Law - Extension of time - Change of company type - No power to extend one-month period prescribed by s 164 of Corporations Law

Defendant : Australian Securities and Investments Commission

1 OWEN J: This is an application under s 1322 of the Corporations Law ("the Law") for an order that the defendant, the Australian Securities and Investments Commission ("ASIC"), no later than 9 am on 29 September 2000 alter the details of the plaintiff's registration to reflect its new status as a public company limited by shares pursuant to s 164 of the Law. The plaintiff also seeks an order abridging the period within which the defendant may alter such details or, alternatively, an order declaring that any act, matter or thing purporting to have been done by the defendant to alter such details on 28 or 29 September 2000 is not invalid.

2 The factual basis can be shortly stated. The plaintiff, Sentron Pty Ltd, is a proprietary limited company which has been incorporated for some years. On 17 August 2000 the members of the plaintiff passed special resolutions pursuant to s 162 of the Law that the plaintiff be converted from a proprietary company limited by shares to a public company limited by shares.

3 An application in the form numbered 205 and 206 was made by the plaintiff to ASIC and lodged with ASIC on 24 August 2000. On 5 September 2000 ASIC published in the Government Gazette a notice which commences with the words:

"Notice is hereby given that ASIC will alter the registration details of the following companies one month after the publication of this notice unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so."

4 The name "Sentron Pty Ltd", with a notation that it will change to a public company limited by shares with the new name "Fortron Insurance Group Ltd", is included in the notice.

5 Under s 164(3) of the Law ASIC must give notice that it intends to alter the details of a company's registration, if ASIC is satisfied that the application complies with s 163. There is no indication other than that this application does comply with s 163 and that ASIC is so satisfied. Section 164(3) is in these terms:

"The notice that ASIC intends to alter the details of the company's registration must be :

(a) included on ASIC database; and

(b) published in the Gazette.

The notice must also state that ASIC will alter the details of the company's registration one month after the notice had been published in the Gazette unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so."

"Subject to an order made by a court or the Administrative Appeals Tribunal within that month, after that month has passed ASIC must alter the details of the company's registration to reflect the company's new title."

6 In effect, the plaintiff is seeking an order under s 1322(4)(d) to abridge that one-month time limit so that ASIC would be able, and ordered, to alter the register to effect the change of status of the plaintiff from a proprietary limited company to a public company in a period less than one month. That follows because (the notice having been published on 5 September 2000) the one-month period would not expire until (I think) midnight on 4 September 2000.

7 For reasons which are set out in the affidavit of Melanie Jane Williams, sworn 27 September 2000, it is imperative for commercial reasons that the change of status be effected prior to 30 September 2000. This is the reason why it is necessary to abridge the time. The question is whether the powers conferred on the Court by s 1322 are sufficiently wide enough to authorise the Court to grant the relief sought in the originating process.

8 In Re Infomedia Pty Ltd [2000] NSWSC 649, delivered 14 June 2000, Young J came to the view that the powers in s 1322 did not authorise the abridgment of time under s 164(1). The fact situation in Re Infomedia is, so far as the chronology is concerned, almost identical to the facts of this case. Consequently, I would have to decline to follow Re Infomedia before I could accede to the plaintiff's application.

9 In Walker v Midlink Nominees Pty Ltd & Ors [2000] WASC 112, delivered 8 May 2000, I expressed my view as to first instance judges in various jurisdictions differing from one another on the interpretation of provisions of the national scheme laws as follows, at [23]:

"I am very conscious of the desirability that the exercise of jurisdiction under uniform national legislation ought to avoid conflicting interpretations wherever possible. That is especially so in the case of intermediate appellate courts: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492. However, a Judge sitting at first instance must apply the law. If, in good conscience, he or she feels unable to accept the reasoning and result of a judicial officer of co-ordinate jurisdiction on the same issue, the Judge must depart from the earlier reasoning and apply the law as it appears to be. The decision to depart from the earlier judgment is not one that will be taken lightly. Due respect must be afforded to every decision made by a judicial officer. Due weight must be given to policy considerations that underpin the doctrine of precedent, especially in the area of uniform national legislation. But in the end a Judge must apply the law as he or he believes it to be. Where there are conflicting decisions of Judges at first instance the system provides a mechanism by which the point can be resolved at a higher level. This, itself, promotes the proper and orderly development of the law."

10 Hayne J put it more succinctly in Re Brashs Pty Ltd (1994) 15 ACSR 477 at 483:

"I should be very slow indeed to depart from the decision of a single judge in relation to the Corporations Law unless ... convinced that [the] interpretation is plainly wrong."

11 In Re Infomedia, Young J came to the view that s 1322 did not avail the plaintiff company. I am not convinced that his Honour was wrong and, thus, I do not feel that I could reach a contrary conclusion.

12 Young J set out a number of bases for his conclusion. He placed emphasis on the provisions of s 164(3) which set out in detail what the notice which ASIC is to publish must contain. One of the things that the notice must contain is the statement that ASIC will alter the details one month after the notice has been published.

13 As his Honour pointed out, where a statute requires a notice explicitly to state something, the notice is invalid if that thing is not stated: Bay Marine Pty Ltd v Clayton Properties Pty Ltd (1984) 9 ACLR 780 at 789. It seems to me that the intervention of the Court under s 1322 would, in effect, be a direction altering the statutory prescription as to the period of notice which must be stated. It is difficult to see how that type of intervention could be described as "doing an act, matter or thing". That phrase is critical for the operation of s 1322 (see Young J at par 11 of Re Infomedia). That, it seems to me, is the pivotal matter for this decision. In my view, the legislature has prescribed the process by which a change of status of a company takes effect. It has done so in a mandatory way, including a mandatory time limit. It therefore falls outside the proper application of s 1322 for the Court to intervene to abridge the time.

14 In Re Infomedia Young J also referred to the principles arising from David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265. In that case, the High Court said that s 1322 could not be used to extend the time within which an application to set aside a statutory demand under s 459G of the Law had to be filed and served. That is because the filing and service of an application was a precondition to the attraction of the jurisdiction of the Court to entertain an application to set aside. It is in that sense, I think, that the issue of prescription by the legislature arises and is applicable in this case.

15 Counsel for the plaintiff has drawn my attention to Australasian Memory Pty Ltd v Brian (2000) 74 ALJR 991, and in particular to par 22, where the Court distinguished David Grant & Co Pty Ltd from the case with which it was then dealing on this basis of prescription. However, in Australasian Memory, Pt 5.3A of the Law (which is the part dealing with voluntary administrations) was under consideration. The point of distinction alluded to by the Court was that the whole structure of Pt 5.3A envisages flexibility. Section 447A(1) clearly indicates that the court has power to intervene and to make such orders as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. That, it seems to me, is a different situation to that which arises here, under s 164.

16 In Re Infomedia Young J also placed some emphasis on the use of the prescriptive word "must" as being an indication that there was a discrete operation of the particular provisions of the Law which excluded the operation of s 1322. I think that has to be seen in its context and, for my part, I am not sure that the use of the word "must" necessarily gives an indication that s 1322 is not to apply. There are many provisions in the Law, and I mention s 249H as an example, where the word "must" is used in relation to a time period. However, when the provisions are considered in their context it cannot have been the intention of the legislature to exclude the operation of s 1322. With that proviso, it seems to me that the reasoning of Young J in Re Infomedia is compelling and is not affected by the decision of the High Court in Australasian Memory. I ought not to reach a contrary view.

17 In Re Infomedia Young J concluded by expressing the sentiment that he regretted his decision because what the plaintiff was seeking was eminently sensible. It is a sad fact that I must adopt the same sentiments here. I have considerable sympathy for the position in which the plaintiff finds itself. That which the plaintiff seeks to do is, in my view, commercially realistic and appropriate but the way that the legislature has structured s 164, it seems to me, prevents the Court from intervening. For that reason the application is dismissed.