Judge rules Registrar General’s online-only filing unlawful

DEREK ACHONG

Se­nior Re­porter

A High Court judge has or­dered the Reg­is­trar Gen­er­al to re­sume ac­cept­ing hard­copy doc­u­ments from com­pa­nies.

De­liv­er­ing judg­ment on Wednes­day, Jus­tice Frank Seep­er­sad up­held a case brought by sev­en lim­it­ed li­a­bil­i­ty com­pa­nies over a move to sole­ly ac­cept doc­u­ments elec­tron­i­cal­ly from 2023.

Jus­tice Seep­er­sad de­liv­ered a scathing cri­tique of the change, rul­ing it un­law­ful as it con­tra­vened the ex­press pro­vi­sions of the Com­pa­nies Act.

Jus­tice Seep­er­sad said: "Even where a pub­lic au­thor­i­ty may pre­fer a par­tic­u­lar ad­min­is­tra­tive method, it must not rigid­ly ap­ply a pol­i­cy in a man­ner which fore­clos­es law­ful al­ter­na­tives as con­tem­plat­ed by statute."

"De­ci­sion-mak­ers must al­ways re­mem­ber that ad­min­is­tra­tive con­ve­nience, ef­fi­cien­cy, and mod­erni­sa­tion, how­ev­er de­sir­able, can­not jus­ti­fy the im­po­si­tion of re­quire­ments which con­tra­dict ex­press statu­to­ry pro­vi­sions," he added.

While Jus­tice Seep­er­sad did not ex­clude the pos­si­bil­i­ty of sole­ly elec­tron­ic doc­u­ment fil­ing, he said this can on­ly be im­ple­ment­ed through amend­ments to the leg­is­la­tion by Par­lia­ment.

How­ev­er, he sug­gest­ed there must be con­sid­er­a­tion of the ef­fect on small and medi­um busi­ness­es.

"If the State, act­ing through its leg­isla­tive arm, even­tu­al­ly amends the Com­pa­nies Act and sanc­tions manda­to­ry elec­tron­ic fil­ing, it may need to as­sume a cor­re­spond­ing du­ty to en­sure that the sys­tem is ac­ces­si­ble, func­tion­al, se­cure, and rea­son­ably nav­i­ga­ble by the class of per­sons re­quired to use it," he said.

Stat­ing that the com­pa­nies' le­git­i­mate ex­pec­ta­tion of a hy­brid sub­mis­sion sys­tem was breached, Jus­tice Seep­er­sad said the elim­i­na­tion of over-the-counter fil­ing was not triv­ial.

"Fil­ing dead­lines un­der the Com­pa­nies Act car­ry statu­to­ry con­se­quences and com­pa­nies that are un­able to nav­i­gate elec­tron­ic sys­tems, or those which lack re­li­able in­ter­net ac­cess may be ex­posed to penal­ties, loss of good stand­ing, or oth­er reg­u­la­to­ry prej­u­dice if the req­ui­site doc­u­ments are not filed," Jus­tice Seep­er­sad said.

"Ex­clu­sive re­liance on dig­i­tal sys­tems al­so rais­es con­cerns re­gard­ing trans­paren­cy and ac­count­abil­i­ty, as the clo­sure of phys­i­cal coun­ters re­moves a di­rect av­enue through which mem­bers of the pub­lic may chal­lenge or clar­i­fy ad­min­is­tra­tive de­ci­sions," he added.

Jus­tice Seep­er­sad al­so found the manda­to­ry on­line sys­tem was an un­rea­son­able bar­ri­er to com­pli­ance.

"In the court's view, a regime which may po­ten­tial­ly ex­pose com­pa­nies to statu­to­ry penal­ties be­cause of plat­form down­time, au­then­ti­ca­tion fail­ures, or tech­ni­cal in­com­pat­i­bil­i­ty is one that op­er­ates un­rea­son­ably and dis­pro­por­tion­ate­ly in its ap­pli­ca­tion," he said.

Jus­tice Seep­er­sad grant­ed a se­ries of de­c­la­ra­tions and an or­der com­pelling the Reg­is­trar Gen­er­al to re­sume hard­copy fil­ings.

He al­so or­dered the State to pay the com­pa­nies' le­gal costs and grant­ed a 42-day stay to al­low for a pos­si­ble ap­peal.

The com­pa­nies were rep­re­sent­ed by St Clair O'Neil, Al­lan­na Ri­vas, and Kel­ly Be­har­ry-Latch­man.

The Reg­is­trar Gen­er­al was rep­re­sent­ed by Leon Kalicha­ran and Ka­ri­na Singh.