Case: David Grant &amp; Co v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265
Outcome: cited
The short point made by the Defendant is that the Plaintiff did not serve the documents marked 'RM1', 'RM2' and 'RM3' to Robert McInnes's affidavit, as filed . The Defendant says that s 459G(3) contemplates, in effect, a linear progression with the result that a Plaintiff must file an application supported by an affidavit and must then serve a copy of the application as filed and a copy of the supporting affidavit together with the exhibits as filed, upon the Defendant all within 21 days after the demand is served. There is no issue that the application was filed within time. The contention is that the failure to serve the three exhibits to the affidavit of Robert McInnes after they were filed, within the relevant 21 day period, is fatal. The Defendant says that the requirements of s 459G(3) are not only jurisdictional but demand strict compliance consistent with David Grant &amp; Co v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265. 24 Rule 2.2(3) of the F C C R 2000 requires an application pursuant to s 459G(1) to be in accordance with Form 2. Rule 2.4 of the F C C R 2000 requires such an application to be supported by 'an affidavit' stating the facts in support of the application. Rule 2.4A(2) provides that in respect of an application by a company under s 459G, a Plaintiff (the 'plaintiff' for the purposes of the F C C R 2000) may file with the originating process seeking the particular orders, a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand and rule 2.4A(3) provides that such a plaintiff must no earlier than seven days before the application is filed and no later than the hearing of the application, carry out a search of the records maintained by Australian Securities and Investments Commission ('ASIC') in relation to the plaintiff and either annex a record of that search to the affidavit in support of the application or file the record of the search on the hearing of the application. The form of any affidavit relied upon in any application must comply with the rules of the Federal Court of Australia or, alternatively, the rules of the Supreme Court of the State where the affidavit was sworn. In this case, the affidavit of Robert McInnes in support of the application was sworn at Glen Waverley in the State of Victoria. 25 Each of the exhibits 'RM1', 'RM2' and 'RM3' to the affidavit of Robert McInnes are properly described as 'exhibits' although that term is not used in the body of the affidavit. The form of language adopted in respect of each document is either 'now produced to me and marked with the letters "RM (number)" is a true and complete copy of' or 'produced to me and marked with the letters "RM (number)" is a true copy of'. Accordingly, the deponent has elected to treat each of 'RM1', 'RM2' and 'RM3' as exhibits produced to the deponent at the time of swearing the affidavit. Mr Timothy Whitehead before whom the affidavit was sworn has certified that each document so described is the document produced to the deponent. Each of the exhibits bears a handwritten endorsement by Mr Whitehead that the pages comprising each exhibit make up the 'annexure' marked either 'RM1', 'RM2' or 'RM3'. It seems that Mr Whitehead has proceeded on the footing so far as the production of the documents to the deponent is concerned, that 'RM1', 'RM2' and 'RM3' are annexures to and form part of the affidavit, at least as so described in identifying the document although, in formulating the affidavit , Mr Whitehead has used language descriptive of a process of treating the material making up 'RM1', 'RM2' or 'RM3' as exhibits. Presumably, those documents were referred to in the body of the affidavit by the deponent and produced to the deponent because they are directly or indirectly probative of the existence of a fact in issue in the proceeding.