Workers Compensation Nominal Insurer v Lozito-Strada Pty Ltd, in the matter of Lozito-Strada Pty Ltd

REASONS FOR JUDGMENT 1 This is an application to review the decision of a registrar given on 14 June 2013 under which the Registrar ordered that the originating process seeking to wind up the defendant be dismissed with no order as to costs. 2 As the Registrar observed at paragraph [6] of his reasons, there are 18 additional winding up applications filed by the plaintiff under which the same issue has arisen as was determined by the Registrar. The issue was whether or not the originating applications were filed before the time for compliance of the statutory demands served on the defendant companies had expired. The Registrar, of his own motion, directed the plaintiff to file submissions in relation to the issue, and dealt with the matter as an uncontested application when the matter came on before him. 3 The essential question was stated by the Registrar at paragraph [9] of his reasons. The question was whether the plaintiff in the originating applications could rely on the statutory presumption of insolvency pursuant to s 459F(2)(b) of the Corporations Act 2001 (Cth) and, in particular, whether or not the time for compliance with the statutory demand had expired before the winding up applications were filed. The answer to that question turned upon the application of the provisions of s 29 of the Acts Interpretation Act 1901 (Cth) and s 160(1) of the Evidence Act 1995 (NSW). 4 Without wishing in any way to be critical of the course adopted by the Registrar, the difficulty which seems to me to arise is that both of those sections operate in a particular way which seems to me to cast an onus upon a defendant. Section 29 of the Acts Interpretation Act operates unless the contrary is proved and s 160(1) of the Evidence Act creates a presumption which applies unless sufficient evidence to raise doubt about the presumption is adduced. As I have said, both of those provisions suggest that it would be the defendant who would carry the onus of establishing the contrary facts or raising the doubt referred to in the Evidence Act. 5 The defendant did not appear when the matter was called on for hearing this morning. However, Mr Sullivan QC, who appears for the plaintiff has asked me to deal with the matter in the absence of the defendant and I am satisfied for the reasons put to me this morning by Mr Sullivan that I should do so. Notwithstanding the helpful written submissions put to me this morning by Mr Sullivan, I think the preferable course is not to deal with the substance of the issues raised in those written submissions. I will mark the submissions as MFI 1 and place them with the court papers. I was, as I have said, assisted by them and also by the short oral submissions put to me by Mr Sullivan this morning. 6 Nevertheless, it seems to me that there is a practical approach which enables me to deal with the matter very shortly. Before I do I should however express the view that, in my respectful opinion, the relationship between s 29 of the Acts Interpretation Act and s 160 of the Evidence Act was correctly explained by White J in Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 at [38]. His Honour's judgment has been followed in other authorities, which were usefully set out by the Registrar in his reasons for judgment. 7 In my opinion the appropriate course this morning is to deal only with the third submission which was put by Mr Lum, solicitor who appeared before the Registrar when he argued the matter. That submission which was put as an alternative remedy. The submission was that leave ought to be granted to file an amended originating process in each of the winding up applications. The Registrar refused to permit leave to amend because he considered that to do so would be contrary to the mandatory requirements of s 459Q of the Corporations Act. Section 459Q(a) of that Act requires the plaintiff to set out particulars of the failure to comply with the demand. As the Registrar observed at [56] and [57], there are a number of authorities which make it clear that an applicant seeking an order for winding up on insolvency cannot rely on a failure to comply with statutory demands before the demands have expired, for a number of reasons including the fact that s 459Q(a) cannot be complied with until the statutory period has expired. 8 The short answer to the conundrum thereby raised seems to me to be to permit leave to the plaintiff to file an amended originating process, but to order that leave to amend take effect today rather than the date on which the originating process was filed. That course would enable the plaintiff to comply with s 459Q of the Act and it seems to me to provide an appropriate and practical way of dealing with the difficulties which I have outlined above. Accordingly I propose to make an order that: 1. The order made by the Registrar on 14 June 2013 be set aside. 2. Leave be granted to the plaintiff to file an amended originating process. 3. The amended originating process is to take effect from today. 9 I should add by way of postscript that although there are at least 18 additional applications to which the Registrar referred, those matters were not before me today. However, in my opinion the appropriate course would be for orders to be made in each of those matters to the same effect as paragraphs 2 and 3 of the orders which I make this morning. Mr Sullivan informs me that there are six additional applications - that is to say a total of 24 applications - which raise precisely the same issue. In my opinion if there are additional matters, the obvious course would be to make orders in each of those cases in the same terms as orders 2 and 3. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.