SUPREME COURT OF VICTORIA - PRACTICE COURT

ROY MORGAN RESEARCH CENTRE PTY LTD v COMMISSIONER OF STATE REVENUE

Beach J

21, 30 April 1997 - Melbourne

Beach J In January 1996 the applicant, the Roy Morgan Research Centre Pty Ltd (Morgan) was served with a notice of assessment in respect of payroll tax issued by the respondent, the Commissioner of State Revenue. On 1 March 1996 Morgan served on the Commissioner a notice of objection against the assessment. Morgan did not pay the tax due under the assessment and on 21 February 1997 the Commissioner served a creditor ' s statutory notice on it pursuant to the provisions of the Corporations Law. Section 459G of the Law reads:

459G. (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.

The 21-day period stipulated in the section expired at midnight on 14 March 1997. At about 3.30 pm on that day the solicitor for Morgan attended at the Prothonotary ' s Office for the purpose of filing a notice of motion seeking an order setting aside the demand and a supporting affidavit. A counter clerk in the Prothonotary ' s Office accepted the notice of motion but refused to accept the affidavit, stating, " It ' s not properly sworn. It ' s not signed on each page " .

Rule 43.01(6) of the Supreme Court Rules 1986 requires that each page of an affidavit be signed by the person before whom it is sworn. The affidavit in question was the affidavit of the Chief Executive of Morgan. It had been sworn before the solicitor who had attempted to file it. Although he had completed and signed the jurat, he had omitted to sign each page. Instead of signing each page then and there, the solicitor left the Prothonotary ' s Office taking the affidavit and sealed copies of the notice of motion with him. At 4.10 pm on that same day the solicitor left a copy of the notice of motion and a covering letter at the office of the Commissioner.

The solicitor has sworn that he did not leave a copy of the affidavit at the office of the Commissioner because " I mistakenly believed that the affidavit was defective on the basis of what I had been told in the Prothonotary ' s Office. "

On 18 March 1997 Morgan ' s solicitor faxed an unsworn copy of the affidavit to the Commissioner and on 24 March 1997 the Chief Executive of Morgan swore a fresh affidavit in identical terms to her earlier affidavit. The latter affidavit was filed in the court the same day.

On 2 April 1997 Senior Master Mahoney dismissed Morgan ' s application. It is from that decision that Morgan now appeals to a judge of the court.

I was informed by counsel for the parties that the Senior Master dismissed Morgan ' s application not because of the failure of its solicitor to file the affidavit within the 21 day period but because of his failure to serve a copy of the affidavit on the Commissioner within the 21-day period.

The view the Senior Master took of the solicitor ' s failure to file the affidavit within time was that that omission was due to an error on the part of the counter clerk who had refused to accept the affidavit and that in the exercise of its inherent jurisdiction to require amendments in the interests of justice the court could order the Prothonotary to mark the affidavit as filed on 14 March 1997. However, the Master took the view that any error on the part of the counter clerk did not excuse the solicitor ' s failure to serve a copy of the affidavit on the Commissioner within the time stipulated by s 459G.

The error the Senior Master perceived the counter clerk had made was to refuse to accept the affidavit when he or she had no power to do so. In making that finding the Senior Master followed his decision in Re Packaged Computer Services Pty Ltd(unreported, 19 September 1989). That was a case in which a counter clerk in the Prothonotary ' s Office had refused to accept for filing an affidavit in support of a notice of motion to wind up a company. At p 5 of his judgment the Senior Master said:

The only rule of which I am aware which confers on the Prothonotary any power to reject documents is r 27.06 of Ch I. The only part of that rule which could conceivably have empowered the Prothonotary to reject on 16 June 1989 the supporting affidavit in this proceeding is para (2)(a) , which is as follows:

" Where a document for use in the court is not prepared in accordance with these Rules or any order of the court -
(a) the Prothonotary may refuse to accept it for filing without the direction of the court … "

Rule 27.06 is part of O 27, which, as its title suggests, is concerned with the content and form of court documents. Rule 27.01 provides:

" Except to the extent that the nature of the document renders compliance impracticable, a document prepared by a party for use in the court shall be prepared in accordance with these rules. "

Rule 27.02 concerns the headings and titles to be given to court documents and r 27.03 the type and quality of the paper and the writing and other related matters with respect to such documents. Rule 27.04 provides for the expression of numbers other than by words.

All of these are matters relating to the preparation of court documents. In preparing a document to be filed in the court, a party is expected to comply with the general rules which relate to the preparation of such documents (unless the exception in r 27.01 or unless r 27.03(6) applies), and, to the extent of their relevance, with rules contained in other Orders which concern the preparation of particular court documents, eg r 5.07 ; r 8.06 ; and, as to affidavits, various rules in O 43.

Rule 27.06(2)(a) does not empower the Prothonotary to refuse to accept a document for filing unless there is in its preparation something which does not accord with the rules or an order of the court.

A failure to comply with r 43.01(6) - " Each page of an affidavit shall be signed by the person before whom it is sworn " - cannot constitute a deficiency in preparation . Before the requirement of compliance with that rule can arise, the document must not only have been prepared, but the deponent must have constituted it his affidavit by swearing or affirming its contents. Logically, the obligation imposed by r 43.01(6) on the person before whom an affidavit is made is consequent upon his complying with that of completing the jurat which is provided for by r 43.01(5). It is not a step in the preparation of a document. It is a step required by the rules the better to authenticate a document which has become a deponent ' s affidavit.

Thus, the Prothonotary by his counter clerk is not empowered by r 27.06(2)(a) to reject an affidavit on the ground that the person before whom it was made has not complied with r 43.01(6). If there is such non-compliance, the court before whom a party attempts to read the affidavit will deal with the consequence of that non-compliance as justice requires. It is not a matter for the Prothonotary.

For reasons which will become apparent in a moment, it is unnecessary for me to determine whether that is the correct view of the matter. I merely observe that it could be argued that the preparation of an affidavit encompasses more than the physical production of the document itself and includes the affixing of the deponent ' s signature, the taking of the oath by the deponent, the completion of the jurat by the person before whom the affidavit is sworn and the affixing by that person of his signature below the jurat and on each other page of the affidavit. In my opinion a written statement does not become an affidavit until such time as it has been confirmed by oath or affirmation.

The error I consider the counter clerk made was not to refer the affidavit to the Prothonotary. It would then have been for the Prothonotary to determine whether he had the power to reject the affidavit. If the Prothonotary followed the decision of the Senior Master, undoubtedly he would have accepted the affidavit. If he took a contrary view, it would then have been necessary for him to exercise his discretion as to whether to accept it. In a case such as the present where dire consequences might flow from the failure to accept the affidavit, it would be surprising if the Prothonotary had not exercised his discretion in Morgan ' s favour. I agree therefore that the court would have been entitled in the exercise of its inherent jurisdiction to right the wrong which was done by ordering that the affidavit be doomed to have been filed on 14 March 1997. But in my opinion the error of the counter clerk in no way excuses the failure of Morgan ' s solicitor to serve a copy of the affidavit on the Commissioner on 14 March. The requirement that the affidavit be served within the 21 day period is mandatory and the court has no power to extend that time. See David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 ; 69 ALJR 778 .