Case: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265
Outcome: discussed
A particular application of s 1322(4)(d) was considered by the High Court of Australia in David Grant &amp; Co Pty Ltd v Westpac Banking Corp [1995] HCA 43 ; (1995) 184 CLR 265. In that case the appellant companies had been served with statutory demands but had failed to comply with the demands within 21 days pursuant to s 459E(2)(c). They each also had failed to apply to the Supreme Court of Victoria in accordance with s 459G for an order setting aside the demands. Section 459G(2) provided that an application for such an order "may only be made within 21 days" after review of the demand. The appellants did serve such applications but outside the statutory 21 day period. 44 Gummow J, with whom the other four members of the Court agreed, predicated his reasons by observing that the "difficulty in construction arises, perhaps not so much from the particular text of either s 459G or s 1322 , as from the interrelation between the two provisions in circumstances where the enactment of s 1322 preceded that of s 459G , and the earlier section is general and the later section specific in its operation." 45 So much may also be said about the present case. 50 Importantly, Byrne J observed that the right to apply to the court in David Grant under s 459G(1) and the time limit in subs(2) were each in terms very similar to those contained in s 1317HD(2) with which his Honour was concerned. [15] 51 Byrne J, too, relied upon the presence of the word "only" as pointing in context, to a "severe application of the time limit".[18] His Honour also placed weight on the "surprising" location of the word "only" which might otherwise have been expected to be located immediately before the phrase "within 6 years after". [15] 52 In concluding that s 1322(4)(d) had to yield to the specific provisions of s 1317HD(2), Byrne J followed not only David Grant but also BP Australia Ltd , which was very similar to Newtronics, involving as it did an attempt to rely upon s 1322(4)(d) in order to extend the statutory time limit prescribed by s 588FF(3) of the Act for liquidators bringing an application to the Court for orders with respect to voidable transactions. 54 To adapt what was said by Gummow J in David Grant (p 277) in relation to the time limits in s 459G(2) and (3) of the Act , the issue is whether an integer or element of the power created by s 664A is its exercise by lodging the compulsory acquisition notice for the acquisition with ASIC within the time specified. Again, to adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76 at 100-101, referred to by Gummow J in David Grant at p 277, is it a condition of the gift in s 664A that the time period in s 664AA be observed and, unless this is so, the gift can never take effect? 59 However, I do not consider the use of the word "only" to be determinative of the question. I respectfully agree with the observations of Spigelman CJ in BP Australia Ltd. There, the Chief Justice, with whose judgment the other members of the Court agreed, considered the significance of the word "only". He said at [88]: The word "only" in a time limitation statutory provision can characterise the provision as a "time so emphatically prescribed". ( Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300; per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac ) . However, the use of the word "only" is not of itself determinative. (See eg Emanuele ) . Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows. 63 David Grant and the other cases, involving as they did statutory provisions concerning applications to a Court, may be distinguished from cases such as the present, on the basis that conformity with the procedural time limit was a pre-condition to the jurisdiction of the Court from which relief was claimed: David Grant at 276-277; Emanuele at 152 per Kirby J; Newtronics at [25]. 67 I have concluded that s 664AA(b), despite its strong language, does not operate to exclude the operation of s 1322(4)(d). In so finding, I have been mindful that this new provision postdates the commencement of s 1322(4)(a) and the observations in that respect, generally, of the High Court in David Grant at 275-276. 68 However in that case, in addition to the 'jurisdiction' point of difference, it was also of significance to the result that the legislative scheme established by the new Pt 5.4 itself contained specific provisions conferring upon the court an express power to extend time, firstly in relation to the period for compliance with the statutory demand and secondly in relation to the relevant 6 month period. Other aspects within the statutory regime emphasised the importance of s 459G as an integral part of the particular scheme established by Pt 5.4. In particular insurmountable difficulties would have arisen, were an extension of time available under s 1322(4)(d) in relation to the presumption of insolvency under s 459C(2) and the operation of the definition of the 'period for compliance' with the statutory demand set out in s 459F(2): David Grant at pp 277-278. There are no similar difficulties associated with the compulsory acquisition provisions under Pt 6A.2. 69 Section 669, contained in Chapter 6 of the Act , invests ASIC with wide powers to exempt persons from provisions of the Chapter or to declare that the Chapter applies to a person as if specified provisions were omitted, modified or varied. These powers are expressed widely enough to have enabled ASIC in effect to have removed the time limit under s 664AA(b) or to have extended it. They are not however curial remedies. 70 I accept the following further submissions made by Mitsui. First, the issuance of a compulsory acquisition notice depends upon the appointment of an independent expert, from a panel nominated by ASIC, who must prepare a report to be issued simultaneously with the notice. The completion of the report by the independent third party is a necessary predicate to the issuance of the compulsory acquisition notice: s 664C(2)(b)(ii). 79 It is of significance too, in arriving at this conclusion, that wide curative powers are found in s 1325D(1)(a) of the Act which enables the Court to declare, for example, a document not to be invalid merely because a person contravened a provision of Chapter 6, 6A, 6B or 6C. Pt 6A.2 in which s 664AA(b) sits is within Chapter 6A. This was a matter which was also considered to be significant by Mandie J when the offer period under s 650C(1) of the Act and the period for giving notices under s 650D(1)(c)(ii) of the Act were extended pursuant to s 1322(4)(d). In so concluding, David Grant was distinguished: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262 at [17] - [20] . A similar approach was taken by Warren J in Capricorn at [260].