FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland [2018] FCAFC 102

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    For the avoidance of any doubt, the operation of the stay granted by the Court on 20 April 2017 cease such that the sequestration order made by the Federal Circuit Court on 4 April 2017 have effect on and from the date on which it was made by that court.

3.    The respondent's costs of and incidental to the appeal be taxed and paid from the estate of the appellant in accordance with the Bankruptcy Act 1996 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    Like Mortimer J, I have had the advantage of reading in draft the reasons for judgment of Charlesworth J. In turn, I have had the advantage of reading in draft the reasons for judgment of Mortimer J.

2    Charlesworth J has summarised the background facts, the relevant legislative and regulatory provisions, the grounds of appeal and the submissions of both Ms Luck and the University of Southern Queensland (USQ). These summaries I gratefully adopt.

3    I agree generally with the reasons for judgment of Mortimer J, both in respect of why her Honour expresses agreement with the reasons for judgment of Charlesworth J and why her Honour expresses disagreement. It follows that, like Mortimer J, I would dismiss Ms Luck's appeal and make the other orders proposed by Mortimer J.

4    I wish to make some additional observations.

5    The question as to whether, by the use of the "slip rule" and, if so, in what circumstances a court may, under s 52(5) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), by an order made after the expiration of the period of 12 months commencing on the date of presentation of a creditor's petition, extend the period at the expiration of which that petition will lapse has proved a vexed one. Analogous controversy has attended the question as to whether, under s 459R(2) of the Corporations Act 2001 (Cth) (Corporations Act), a court may, by an order made after the expiry of the period, extend the six month period within which an application for the winding up of a company.

6    We were not confronted in this appeal with a contention that the text of s 52(5) of the Bankruptcy Act, with its explicit prescription of a time limit for the making of an extension order, codified a purpose of expedition in an insolvency controversy which was inconsistent with any ability to have resort to a slip rule so as to make, after the expiry of that time limit, an order extending time having effect prior to that expiry. Such a contention might perhaps have proceeded by analogy with the recognition in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 (David Grant & Co Pty Ltd v Westpac Banking Corporation) as to the rigidity of the prescription in s 459G of the Corporations Act of the time within which a company may apply for an order setting aside a statutory demand, the recognition in Grant Samuel Corporate Finance v Fletcher (2015) 254 CLR 477 (Grant Samuel Corporate Finance v Fletcher) that s 588F(3) of the Corporations Act operated as a code in respect of the times for the bringing of applications by liquidators in respect of certain voidable transactions and with the policy of expedition evident in Pt 5.4 of the Corporations Act, recognised in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 at 324 [17]. I expressly refrain from passing upon whether any such contention would have had merit.

7    A trilogy of cases determined by this Court at intermediate appellate level holds that resort to the slip rule is available even after the expiry of the period mentioned in s 52(5) of the Bankruptcy Act or, as the case may be, s 459R(2) of the Corporations Act so as to make an order which would have been made prior to the expiry of a specified time limit but which through inadvertence was not and which speaks from a date prior to the expiry of that time limit: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375 (Flint v Richard Busuttil) and Ramsay Health Care v Compton (2016) 247 FCR 387. In the last of this trilogy, David Grant & Co Pty Ltd v Westpac Banking Corporation and Grant Samuel Corporate Finance v Fletcher are expressly cited, with neither being regarded as inconsistent with the upholding of an ability to have resort to the slip rule in circumstances such as the present.

8    On the footing that resort to the slip rule was available, the present was, in my respectful opinion, a paradigm case for its application. There was at the relevant time a consensus between the parties, for their own separate reasons, that the creditor's petition ought to be adjourned, rather than be the subject of any contest as to whether it should be allowed to lapse. It was only by inadvertence that neither the parties nor the registrar did not, in seeking or, as the case may be, in responsively ordering the adjournment of the petition prior to the expiration of the 12 month period additionally seek and order an extension of time. That a discretion would at the time have been entailed in the granting of an extension is not, as is explained in Flint v Richard Busuttil, by reference to L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590, incompatible with an ability later to have resort to a slip rule.

Associate:

Dated:    29 June 2018

REASONS FOR JUDGMENT

MORTIMER J:

9    I have had the advantage of reading, in draft, the reasons for judgment of Charlesworth J. Her Honour has set out the background to this appeal, the relevant legislative and regulatory provisions, Ms Luck's grounds of appeal and the University of Southern Queensland's answers to them. I gratefully adopt her Honour's summary of those matters. I agree with her Honour's conclusions on some matters, but not all. As a result of different conclusions I have reached on some of the grounds of appeal, I consider the appeal should be dismissed.

10    I agree with her Honour that grounds 1 and 3 are expanded within the terms of the other grounds and do not need to be considered separately. In my opinion, they must fail because the other expanded grounds fail.

11    My different approach, and different conclusion on one critical aspect, concern grounds 2, 4 and 5 of the notice of appeal.

12    Grounds 6 to 9 are more straightforward, and I agree with the conclusions of Charlesworth J on these grounds.

13    As Charlesworth J notes at [75], the University of Southern Queensland abandoned reliance on its notice of contention, so it has not been necessary to deal with that matter in these reasons.

Grounds 6-9

14    In relation to ground 6 of the notice of appeal, there is no requirement that an order refer expressly to the statutory source for it to be made, nor that a party needs to consent to the absence of such a reference. Whether the exercise of power is authorised is what matters. The authorities go so far as to recognise that a decision-maker may refer to an incorrect source of power, but if there is an available source of power, the exercise of power will be supported: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124] (Heydon J); Australian Education Union v Department of Education and Children's Services [2012] HCA 3; 248 CLR 1 at [34] (French CJ, Hayne, Kiefel and Bell JJ); Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [175] (Crennan and Kiefel JJ). If this is the case, the absence of a reference to the source of power cannot, of itself, indicate error.

15    I consider the contention by Ms Luck in her written submissions at 12(d) that it was this failure to refer expressly to the source of power as s 52(5) of the Bankruptcy Act 1966 (Cth) in the Registrar's orders which was the cause of her "discontent", is an attempt to avoid the fact that she consented to the course undertaken by the Registrar, until she subsequently discovered an argument which might impugn the sequestration orders. It is to be expected that Ms Luck would feel the need to explain why she was now impugning a course of conduct to which she consented (and indeed encouraged). However, her explanation – couched as a legal submission – should not be accepted. Ground 6 must fail.

16    I now turn to ground 7. I understand this ground, read with the short written submissions Ms Luck makes on it, to concern s 102(2)(i) of the Federal Circuit Court Act 1999 (Cth), which relevantly provided at the time:

(2)    The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:

…

(i)     a power of the Federal Circuit Court of Australia prescribed by the Rules of Court.

17    On Ms Luck's argument, since neither this provision, nor r 2.02(1) of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (on which Ms Luck also relies), altered the "manner" or "method" by which a creditor's petition could be extended under s 52(5) of the Bankruptcy Act, the "manner" or "method" in s 52(5) had to be applied. That meant, Ms Luck's argument runs, the discretion had to be exercised before the 12 month period expired, which it was not.

18    Whatever might be said about the quite difficult issues to which this argument gives rise (which are dealt with below in relation to grounds 2, 4 and 5), it is obviously incorrect that, as Ms Luck contends, the learned Federal Circuit Court judge failed to "deal with" the question central to the disposition of Ms Luck's argument. His Honour's reasons deal expressly and in detail with the interrelationship between the various provisions, and also with the issue of retrospectivity. They do so in a manner not favourable to Ms Luck, but that is addressed in relation to other grounds of her appeal. Ground 7 must fail.

19    In relation to ground 8, there was no failure by the Federal Circuit Court to express its reasons for its orders in sufficient detail to meet the requirements expressed by the Court of Appeal in Hunter v Transport Accident Commission [2005] VSCA 1, on which Ms Luck relied. I assume for the purposes of this ground of appeal that the principles articulated in that proceeding do not differ in substance from the ones articulated in this Court: see COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 (Griffiths J) at [32]-[46]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [47]-[48] (Kenny, Kerr and Perry JJ).

20    At [21] of Hunter, Nettle J (Vincent JA and Batt JA agreeing) set out the nature and content of a judge's duty to give reasons:

the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.

(citations omitted)

21    His Honour added that where evidence is rejected, a judge should generally explain why the evidence was rejected, and not simply refer to evidence that was accepted in her or his reasons. Of course, the nature and content of the judicial obligation was couched the way it was in Hunter because the Court of Appeal was dealing with an appeal from a contested trial, where evidentiary issues were of central importance. Those observations have no direct application to the Federal Circuit Court's reasons for judgment in this case, which were overwhelmingly concerned with a series of legal questions, rather than findings of fact.

22    Putting that to one side, the learned Federal Circuit Court judge's reasons examine thoroughly the source of the Registrar's powers in bankruptcy matters, both through the Bankruptcy Act and the Federal Circuit Court Bankruptcy Rules. The reasons also examine which of the Federal Circuit Court's general rules are applicable in bankruptcy proceedings. His Honour explains his reasoning in detail. There is no failure to provide sufficient reasons. Ground 8 must fail.

23    In relation to ground 9, I agree with Charlesworth J that in her written submissions Ms Luck did not expand upon what the denial of natural justice was. There is nothing in the material before the court to support an allegation that the Federal Circuit Court denied Ms Luck natural justice. Ground 9 must fail.

Grounds 2, 4 and 5

24    These grounds all concern what might be compendiously described as the "r 16.05(2)(e) issue", the "retrospectivity issue", and the "inconsistency issue". They are the more substantive grounds requiring resolution on this appeal. I take a different view to Charlesworth J on the r 16.05(2)(e) issue. I agree with her Honour's conclusion on the retrospectivity issue, and the inconsistency issue, although my reasoning is somewhat different. I also prefer to approach these issues in the appeal in a slightly different way.

25    There are two key matters central to the resolution of these grounds.

26    The first is whether the Registrar could rely on r 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) as a source of power to make the impugned order on 31 May 2016. Rule 16.05(2) is quite different in form now, and expressly includes registrars: see the extract at [77] of Charlesworth J's reasons. Resolution of issues around the Registrar's reliance on r 16.05(2)(e) determines whether he was able to exercise the "slip rule" power under that rule or not. It has a number of strands, some of which Ms Luck identifies and one of which arises because of the Full Court decision in Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; 347 ALR 62. I understand these matters to be comprehended by ground 5 of the notice of appeal. I consider this ground is so closely related to the issue in BJC16 that this Court should deal with that question as well, although it is not directly raised by Ms Luck. Quite properly, it was raised by USQ.

27    The second is, even if the Registrar was able to rely on r 16.05(2)(e) as a source of power to make the order, whether that power could be used as a method by which to achieve the result which could have been achieved through an exercise of the discretion in s 52(5) of the Bankruptcy Act, to extend the life of a creditor's petition beyond the statutory time limit of 12 months. Included in this second matter is whether such an outcome can be achieved retrospectively. This issue is often put in Ms Luck's written submissions by reference to contentions about what is the proper "manner and method" for extending a creditor's petition. I understand these matters to be comprehended by grounds 2 and 4 of the notice of appeal.

First issue: r 16.05(2)(e)

Ms Luck's argument

28    By r 1.04 of the Federal Circuit Court Bankruptcy Rules, those Rules apply to a proceeding in the Court to which the Bankruptcy Act applies, as do the Federal Circuit Court's general rules, unless the latter are inconsistent with the Federal Circuit Court Bankruptcy Rules. That is what the Federal Circuit Court found at [115] of its reasons, and it was correct to do so.

29    Ms Luck identifies what she submits is an inconsistency by reason of r 2.02(1) of the Federal Circuit Court Bankruptcy Rules. As the Federal Circuit Court noted at [109] of its reasons, the 22 March 2016 orders were made during the period of the operation of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), whereas the impugned 31 May 2016 orders were made pursuant to the successor rules, which I will refer to as the 2016 Bankruptcy Rules.

30    Rule 2.02(1) of the 2016 Bankruptcy Rules provides:

For the purposes of paragraph 102(2)(i) of the Act, a power of the Court under a provision of the Bankruptcy Act referred to in Schedule 1 is prescribed.

31    As the Federal Circuit Court noted at [117] of its reasons, the reference to "Act" in r 2.02(1) is to the Federal Circuit Court Act (see r 1.05(1)).

32    The power in r 16.05(2) is not contained in Sch 1 to the 2016 Bankruptcy Rules.

33    Relevantly, as Ms Luck submitted, in item 12 of Sch 1, the power in s 52(5) to extend the life of a creditor's petition is prescribed. Thus, Sch 1 comprises one of the "directions" by the Court, or the judges of the Court under s 102(2) of the Federal Circuit Court Act, about the powers of the Court exercisable by registrars. By its inclusion, registrars were given the power to extend the life of a creditor's petition under s 52(5) of the Bankruptcy Act. Ms Luck submits it would be inconsistent to apply the general rule in r 16.05(2) to a proceeding to which the Bankruptcy Act applies.

34    The learned Federal Circuit Court judge dealt with Ms Luck's argument thoroughly at [118]–[132], appropriately separating out the retrospectivity question for separate consideration. His Honour's reasoning in these paragraphs is correct: Sch 1 is not exhaustive of the powers conferred on and exercisable by registrars in bankruptcy proceedings in the Federal Circuit Court. It is inclusive, but not exhaustive. There is no reason to see the application of r 16.05(2) to bankruptcy proceedings in the Federal Circuit Court as involving any inconsistency with the 2016 Bankruptcy Rules (or their predecessor rules).

35    The "inconsistency" argument, which can be understood to feature in both grounds 4 and 5 of the notice of appeal, must fail.

BJC16

36    Nevertheless, and this qualification becomes relevant as I now explain, in order to rely on the terms of s 102(2)(i), a "direction" from the Court or the judges of the Court must be found before a registrar can exercise a power conferred on the "Court". The "Court" here means the judges of the Federal Circuit Court, not the officers of the Federal Circuit Court. The term "Court" was not defined in the Federal Circuit Court Act as it was at the time. However, by reason of s 8(4) of the Federal Circuit Court Act, the Federal Circuit Court consists of the Chief Judge and judges holding office in accordance with that Act: see BJC16 at [42].

37    It is at this point that the difference between the version of r 16.05(2) in force at the time the Registrar relied on it on 31 May 2016, and as it is now in force, becomes important.

38    I consider it is appropriate to deal with the potential application of BJC16 as it was a matter raised by USQ in its written submissions, which were served on Ms Luck, and to which she did not respond in her submissions in reply. Further, if BJC16 applies, it is a matter favouring the success of Ms Luck's appeal. However what is most important is that the party against whose interests the decision stands (USQ) has dealt with this argument.

39    BJC16 concerned an exercise of power by a registrar to dismiss a judicial review application for non-appearance (by an applicant) at the first court date, relying on r 13.03C(1)(c) of the Federal Circuit Court Rules. Relevantly (there were other issues), the Full Court found that the power in r 13.03C(1) was a power exercisable only by the Court, constituted by a judge or the Chief Judge. The Full Court held that r 13.03C(1) conferred power on "the Court" to do a number of things in the event that a party was absent from a hearing, and that expression did not include registrars, who are its officers (as defined in s 99(1) of the Federal Circuit Court Act). The Court held s 103 did not apply because there was no delegation of the power in r 13.03C(1): see [46]-[58].

40    On 31 May 2016, when the Registrar made the order under r 16.05(2)(e), s 103 of the Federal Circuit Court Act was in the same form as it was in BJC16 and provided:

(1)    The Rules of Court may delegate to the Registrars any of the powers of the Federal Circuit Court of Australia, including (but not limited to) all or any of the powers mentioned in subsection 102(2).

(2)     A power delegated by Rules of Court under subsection (1), when exercised by a Registrar, is taken, for all purposes, to have been exercised by the Federal Circuit Court of Australia or a Judge, as the case requires

…

Application of laws

(7)    The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of a delegation under subsection (1), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.

(emphasis added)

41    I have extracted the relevant part of s 102(2) at [16] above.

42    There was an argument in BJC16 about the application of s 103(7), and what the words "relate to" mean in that provision. The Full Court held (at [54]) that these words refer to a power of the Court under another provision, which "touches or concerns" a power that is delegated to, and exercisable by, a registrar. At [55], the Full Court rejected the Minister's submissions that there was such a relationship in the powers he identified on the appeal. Thus, s 103(7) could not be used in BJC16 to overcome the primary finding made by the Full Court.

43    Here, USQ submits s 103(7) can be employed. That is because the power in r 16.05(2)(e) "touches or concerns" a power expressly delegated to the registrars: namely, the power in s 52(5) of the Bankruptcy Act. Therefore the power in r 16.05(2)(e) is "related to" that delegated power in s 52(5).

44    The question, to put it the other way round, is whether the power in r 16.05(2)(e) is properly seen as "separate and distinct" from the power delegated to registrars through s 102(2)(i) of the Federal Circuit Court Act, read with r 2.02(1) of the Federal Circuit Court Bankruptcy Rules.

45    Although the distinction is a fine one, I am prepared to accept USQ's submission that the two powers are not separate and distinct. The slip rule, as embodied in r 16.05(2)(e), is not free-standing. It operates only relatively to another power of the Court. Its function is to empower correction of other orders of the Court, made in exercise of other powers. Another way to describe it is that it is derivative. An exercise of power under r 16.05(2)(e) will, necessarily, "touch or concern" another power. If that other power has been delegated to a registrar, then it seems to me s 103(7) is applicable.

46    My view is confirmed by the terms of the second portion of s 103(7): "and apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar" (my emphasis). It is through this part of s 103(7) that the connection can be identified.

47    In the 31 May 2016 order, the Registrar purported to exercise the power under s 52(5), which is a delegated power, because there was an error or omission to do so on 22 March 2016. Rule 16.05(2)(e) conferred the power to correct this error or omission. By reason of s 103(7), this power was exercisable by the Registrar (and not only by a judge of the Court) because the power to correct the error in r 16.05(2)(e) necessarily touches or concerns the Registrar's delegated power to extend time under s 52(5) of the Bankruptcy Act.

48    The Federal Circuit Court's reasons do not address this issue because BJC16 had not been decided when its orders were pronounced. Nevertheless, the decision in BJC16 does not result in the appeal being allowed on the basis of the reasoning in that decision.

What is the intention required by r 16.05(2)(e), if it applies?

49    I have concluded the power in r 16.05(2)(e) was exercisable by the Registrar.

50    After the Court had reserved its decision, the Court wrote to the parties seeking submissions on the question whether r 16.05(2)(e) should be construed as limiting the operation of the "slip rule" to circumstances where the Court in fact intended to make an order in relation to a question that was in fact considered by the Court (rather than, for example, overlooked), but the order does not reflect that actual intention. The Court indicated in its correspondence that it considered the approach taken by the Federal Circuit Court (at [192]-[193] of its reasons), and which had been assumed on the appeal to this point, was that the authorities relied on by the Federal Circuit Court which related to other rules of the Court, or other powers of Courts, were applicable to r 16.05(2)(e). This issue was not raised by Ms Luck in her notice of appeal, nor in her submissions, and was not the subject of submissions by USQ on the appeal.

51    Both parties filed supplementary written submissions. Ms Luck's submissions did not address the question asked of her, but rather repeated and developed other points she had made in her previous submissions such as her "manner and method" argument. Ms Luck also submitted that the Registrar had made a "deliberate decision" on 22 March 2016 to adjourn the petition, and should be presumed to have known the petition would expire on 8 April 2016. In those circumstances she submitted that there could be no lawful exercise of power under r 16.05(2)(e), because the adjournment decision on 22 March 2016 was a "deliberate" one. Ms Luck's submissions did not engage with the construction issue to which the Court directed the parties' attention. That is not a criticism of Ms Luck: she is a self-represented litigant and was no doubt doing her best to respond to the Court's invitation. However, her submissions do not engage with the question raised.

52    USQ made three distinct submissions:

(1)    The use of the term "intention" in r 16.05(2)(e) indicates that the Court has "at least turned its mind to a matter prior to delivering judgment or making an order". Therefore whether the requisite intention exists will be a question of fact in each case. In the present circumstances, the Registrar's email to the parties, dated 30 May 2016, provides evidence of the requisite intention. Accordingly, the power in r 16.05(2)(e) was available.

(2)    If, contrary to USQ's original submission (that r 16.05 is a legislative expression of the slip rule, as the Federal Circuit Court had assumed in its reasons), then nevertheless by reason of r 1.05(2) of the Federal Circuit Court Rules, read with s 43(2)(b) of the Federal Circuit Court Act, the Federal Circuit Court had available to it the power conferred in r 39.05(h) of the Federal Court Rules 2011 (Cth), to vary or set aside an order if "there is an error arising in a judgment or order from an accidental slip or omission." USQ refers to two decisions where through this method orders were made extending the life of a creditor's petition (by Federal Magistrates). USQ appears to submit this power was also available to the Registrar through the operation of these rules. However, later in its submissions USQ submits a further option would be for this Court to remit the matter to the Federal Circuit Court under s 28(2)(c) of the Federal Court Act, so it could exercise the power under r 39.05(h) to correct the 22 March 2016 order.

(3)    Third, if r 16.05(2)(e) was not available to the Registrar at all in this instance, it would be open to this Court under s 28(1) of the Federal Court Act to dismiss the appeal, but vary the judgment at first instance, by making an order under r 39.05(h) of this Court's Rules amending the Registrar's orders of 22 March 2016, in accordance with the form of the order made by the Registrar on 31 May 2016

53    The submission by USQ that I have summarised at [52(1)] above is narrower than the position taken by USQ in its principal written submissions. This may be because USQ had (wrongly) assumed all members of the Court had reached a view to that effect. I infer that might be the case because at [5] of its supplementary written submissions, USQ states:

The Respondent accepts the proposition which has been suggested by the Court in its email of 10 May 2018.

54    The question of the proper construction of r 16.05(2)(e) does not fall for determination in this appeal because it does not form any part of Ms Luck's grounds of appeal. Even when invited she has not pressed any argument that the Registrar's exercise of power was outside the terms of r 16.05(2)(e) because there was no relevant "intention". I do not consider the Court is called on to decide the question, but now that the Court has invited submissions on the matter, I propose to express my opinion.

55    For my own part, I am not inclined to give r 16.05(2)(e) a construction which is limited to intention "in fact", as Charlesworth J expresses it: see [143] and [153] of her Honour's reasons. That construction seeks to distinguish many of the authorities on which the Federal Circuit Court relied. I would have been inclined to see that as too narrow, and as tending to frustrate the purposes of the slip rule, which in my opinion r 16.05(2)(e), even in the form prior to the amendments to the Rules, was undoubtedly designed to reflect.

56    In Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd [2008] NSWSC 285; 73 NSWLR 627 at [56], Hammerschlag J accepted that the slip rule and its application (including in the way contemplated in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 943; 61 FCR 385) was apposite in situations where correction was needed because of an "intention of the Court — or the intention that the Court would have had but for the failure that caused the accidental slip or omission" (my emphasis). The latter situation is in my opinion still comprehended by the use of the term "intention". The "intention" is referable to the whole of the situation the judge or registrar foresaw as existing after the making of the orders. That will include a positive circumstance (in terms of positive orders intended to be made but not made, or not made in the terms contemplated) and a negative circumstance (in terms of a failure to make orders, or parts of orders although there was a clear contemplation of the situation which would or should exist after the orders were made). Both are covered by what the Court "intends". The latter (negative) circumstance is the situation that faced the Registrar in the present case. He had intended the situation which would exist after the orders made on 22 March 2016 would be that the creditor's petition would continue to be pressed, but its consideration would be adjourned for a period of time until Ms Luck's other matters had been sorted out, as the parties had jointly requested. That is the only rational explanation for an adjournment order. The order as made did not reflect that intention, not because of anything it positively stated, but because of what it failed to deal with (namely, the extension of time under s 52(5)).

57    Indeed the evidence shows that Ms Luck sought, and obtained, two further adjournments of the hearing of the petition in September and December 2016. Both were granted on orders made by the Registrar. The intention the Registrar "would have had, but for the accidental omission" was to keep the petition on foot, so that it could be heard after all the other matters Ms Luck sought to have dealt with first were determined.

58    In its reasons, the Federal Circuit Court described its approach in the following way at [192]- [193]:

The criterion that is stipulated by, and which engages the discretionary power to vary an order pursuant to r.16.05(2)(e) is that the order does not reflect the intention of the Court. This intention may be inferred from all the circumstances. As the reasoning in Shaddock confirms, the court is entitled to consider what intention the court making the earlier order would have had but for the failure, by reason of which there was an accidental slip or omission, on the part of the legal representatives (or, it may be added, a self-represented litigant). The same test was applied in Construction, Forestry, Mining and Energy Union v Mammoet Australia (No 2) (2012) 209 FCR 123, [10] (Gilmour, J) (citing Symes v Commonwealth of Australia (1987) 89 FLR 356, 357), and in Deputy Commissioner for Taxation v Statewide Contracting Qld Pty Ltd (No 2) [2015] FCA 690, [15] (Greenwood, J). (my emphasis in bold)

59    The test poses an objective inquiry as to what the Court would have done at the time the original order was made had the subject matter of the slip (e.g. failure to seek an extension) been brought to its attention. Here, the application of that test required the Registrar to consider on 31 May 2016 what order would have been made on 22 March 2016 had the imminent lapse of the University's creditor's petition been brought to its attention. The Registrar was in no doubt as to that matter. Nor were the parties.

60    Again, relying on L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) [1982] HCA 59; 151 CLR 590, this passage emphasises that "intention" includes the intention the Court would have had, but for the failure. I see nothing erroneous in the reasoning of the learned Federal Circuit Court judge, and if the matter needed to be determined on this appeal, I would have upheld his Honour's reasoning.

61    In her reply submissions (at [6]-[9]), Ms Luck refers to the amendments made to r 16.05 in 2016. It is unclear what use she makes of the amendments, and whether it goes beyond repeating her submissions about s 52(5) of the Bankruptcy Act providing the only correct "manner and method" for extending the life of a creditors' petition. If her submissions do go beyond this, then it should be noted that the circumstances in which it may be permissible to construe an existing power or provision by reference to subsequent amendments are limited: see Interlego AG v Croner Trading Pty Ltd [1992] FCA 992; 39 FCR 348 at 382; Re Samuel [1913] AC 514; compare Grain Elevators Board (Vic) v Dunmunkle Corp [1946] HCA 13; 73 CLR 70. The limited circumstances in which the method used in Dunmunkle might apply was emphasised again by the Full Court of this Court in Allina Pty Ltd v Commissioner of Taxation [1991] FCA 87; 28 FCR 203 at 212, and see also R v Sieders [2008] NSWCCA 187; 72 NSWLR at [121]-[128].

62    Finally, on this matter, as USQ points out in its written submissions at [57(c)], and in its supplementary submissions, the evidence is that the Court itself informed the parties, in its email, that when the Registrar made the order on 22 March 2016, it was his intention that the creditor's petition not lapse. The email sent from an officer of the Federal Circuit Court to the parties on 22 March 2016 recorded, relevantly, that:

On 22 March 2016, the Registrar made an order adjourning the petition until 31 May 2016.

…

As at the date of the Registrar's order adjourning the petition, it was his intention that the petition remain current and be dealt with at the time of the adjourned hearing.

Accordingly…the Registrar intends on making an order under rule 16.05(2)(e) of the Federal Circuit Court Rules 2001, varying the order of 22 March 2016 and providing for an extension of the lifetime of the petition pursuant to section 52(5) of the Bankruptcy Act 1966, consistent with his intention at the time of the earlier order…

63    That is the state of the evidence: namely, that the Registrar had an intention the petition would not lapse. The error or omission is that by failing to make an order under s 52(5), it did lapse. That is what was corrected by the exercise of power on 31 May 2016. Without a full hearing into the matter, this Court should not make findings inconsistent with that evidence, especially given it is the stated position of a registrar of this Court.

64    The fact that later amendments to r 16.05(2) have added other grounds for the application of the slip rule is not in my opinion determinative. However, since this matter was not argued, I say no more.

65    These conclusions make it unnecessary for me to consider the two other aspects of USQ's supplementary submissions, concerning alternative ways in which the slip rule might be employed to correct the omission to extend the life of the creditor's petition if r 16.05(2) must be read more narrowly than the Federal Circuit Court read it.

Second issue

66    As to the "retrospectivity" aspect of this appeal, the learned Federal Circuit Court judge dealt with this in detail, first by an examination of the scheme of the Bankruptcy Act at [132]-[142], before turning to consider s 52 in particular. In the next part of his reasons, his Honour considers the decision in Elyard, and concludes at [157]-[158]:

The immediate importance of Elyard was the holding that s.459R did not preclude resort to the slip rule in appropriate cases. I note that Lockhart J was both a member of the Full Court in Re Young; Ex parte Smith (where the operation of the slip rule was left open), and in Elyard (where the availability of the slip rule was confirmed as a source of power to extend time notwithstanding the expiry of the statutory period fixed for determination of the application).

The analysis in Elyard has been applied to confirm that s.52(4) does not present an insuperable barrier to the applicable of the slip rule in bankruptcy proceedings.

67    From this point in its reasons until [191] the Federal Circuit Court conducts a detailed examination of the relevant authorities since Elyard, as well as explaining why the decision on which Ms Luck relied – Re Young; Ex parte Smith [1985] FCA 75; 5 FCR 204 – was not the end of the matter. It is not necessary to describe that analysis in detail, nor to express agreement or disagreement with each step of the reasoning process, since there are no grounds of appeal challenging the detail of that reasoning process. The summary by USQ in its written submissions at [55] is consistent with that given by his Honour.

68    On the evidence, this is not a situation where there would have been any independent discretion to be exercised had the error or omission not occurred: cf Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC 131; 216 FCR 375. In that authority at [46], the Full Court said:

. . . if the surrounding circumstances are such (as they can be taken to have been in Elyard) that it can be concluded that proper attendance to the matter (had the error not occurred) could only have resulted in the discretion being exercised in one way, it is difficult to see why the rule should not apply in the same way that it would if the discretion had been exercised and there had been a mere failure to record it. As Lockhart J said in Elyard at 392, the purpose of the rule is to avoid injustice. The force of Storey & Keers and Whitlock v Brew can be accepted if there is any room for debate as to the exercise of the discretion. For instance, if there is any debate as to whether it would have been just and equitable to have made an order under s 52, in line with well-established principle, the slip rule cannot apply.

69    As the Federal Circuit Court observed rhetorically in its reasons at [167] when it quoted this passage from Flint, there is no reason those principles should not apply to the circumstances of this appeal, where the parties were with one voice urging the Registrar to adjourn the petition pending other proceedings being finalised. Although Ms Luck now seeks to enforce the 12 month limitation period through her arguments in this proceeding, at the relevant time (late May 2016), her focus was quite different: it was on adjournment of the proceedings so she could pursue her other appellate options. Indeed, as I have noted she sought and was granted two further adjournments, which took the hearing of the creditor's petition into 2017. She did not, for example, seek dismissal of the petition.

70    Accordingly, Ms Luck's argument that the only "manner and method" which could be used to extend the life of the creditor's petition was the method in s 52 (that is, extension before expiry of the 12 month period) should be rejected. It is rejected because, as Lockhart J pointed out in Elyard, what in law is occurring when the slip rule is employed is that the exercise of power is located at the time the omission or failure occurred: see Elyard at 391F-G. Here, that was 22 March 2016, within the 12 month period.

71    Grounds 2 and 4 of the notice of appeal must fail.

Conclusion

72    For the reasons set out above, I would dismiss Ms Luck's appeal. There is no basis for anything other than the usual order for costs. The sequestration order has remained effective from the time it was originally made by the Federal Circuit Court on 4 April 2017. It is unclear whether the stay granted by North J on 20 April 2017 has had any substantive effect, because it is unclear whether the trustee has sought to take any steps in relation to Ms Luck's estate. The terms of the stay suggest it ceases on the making of the Court's orders on the appeal. However, out of an abundance of caution, there will be an order lifting the stay granted by North J. There should be an order to the effect that USQ's costs be paid from the estate of the applicant debtor in accordance with the Bankruptcy Act.

Associate:

Dated:    29 June 2018

REASONS FOR JUDGMENT

CHARLESWORTH J:

73    This is an appeal against a sequestration order made by a judge of the Federal Circuit Court of Australia (FCCA) on 4 April 2017 over the estate of the appellant, Ms Gaye Luck: University of Southern Queensland v Luck [2017] FCCA 639. The order was made upon a creditor's petition presented by the University of Southern Queensland (USQ) nearly two years prior on 9 April 2015.

74    A creditor's petition lapses at the expiration of 12 months commencing on the date of the presentation of the petition, or at the expiration of a period fixed by the bankruptcy court in accordance with s 52(5) of the Bankruptcy Act 1966 (Cth): see s 52(4). The issue on this appeal is whether the period prescribed in s 52(4) of the Bankruptcy Act was validly extended by an order made by a Registrar of the FCCA on 22 March 2016, as varied (or purportedly varied) by a later order made by the Registrar under r 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) (FCCA rules). The later order was made after the period prescribed in s 52(4) had expired.

75    The appeal was set down for hearing on 16 November 2017. Shortly prior to the hearing, Ms Luck, a self-represented litigant, informed this Court that she could not attend the hearing because of matters affecting her health and living arrangements. She requested that the appeal be heard and determined in her absence. At the commencement of the hearing, USQ consented to the Court determining the appeal on the papers pursuant to s 25(2B)(c)(ii) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). At the same hearing, USQ abandoned an application for an extension of time to file a notice of contention. The Court has not read that part of USQ's written submissions directed solely to the notice of contention.

LEGISLATION

76    Section 52(4) and (5) of the Bankruptcy Act are to be read together. They provide:

(4)    A creditor's petition lapses at the expiration of:

(a)    subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or

(b)    if the Court makes an order under subsection (5) in relation to the petition—the period fixed by the order;

unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.

(5)    The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor's petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order.

77    As presently in force, r 16.05 of the FCCA rules provides:

16.05 Setting aside or varying judgments or orders

(1)    The Court or a Registrar may vary or set aside a judgment or order before it has been entered.

(2)    The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in the judgment or order; or

(h)    there is an error arising in the judgment or order from an accidental slip or omission.

(3)    This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.

78    At the time of the Registrar's orders on 22 March 2016 and 31 May 2016, subr 16.05(2)(g) and 16.05(2)(h) were not in force. The only sub-rule invoked by the Registrar was r 16.05(2)(e). Sub-rule 16.05(2)(h) is equivalent to r 39.05(h) of the Federal Court Rules 2011 (Cth) (FCA rules). It was in force as at 31 May 2016, and at the time that the primary judge made the sequestration order.

79    As will be seen, the authorities to which the parties referred are largely concerned with the construction and application of r 39.05(h) of the FCA rules and its statutory equivalents, rather than r 16.05(2)(e) of the FCCA rules or its analogues.

80    At least in superior courts of record, rules equivalent to those contained in r 16.05 of the FCCA rules operate in addition to inherent or implied powers of a court to correct an error or "slip" in an order, whether before or after its entry: see generally Burrell v The Queen (2008) 238 CLR 218; Achurch v The Queen (2014) 253 CLR 141; Flint v Richard Busuttil & Company Pty Ltd and Anor (2013) 216 FCR 375 at [19]. The power "is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation": Gould v Vaggelas (1985) 157 CLR 215 at 275.

81    In these reasons, the phrase "slip rule" may be used as a shorthand description for rules of this kind, whatever their source or form. It will nonetheless be necessary to focus particular attention on the precise form of words in r 16.05(2)(e) of the FCCA rules, as that is the only sub-rule invoked in Ms Luck's case.

82    Section 102(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) sets out the powers of the FCCA that may, if the FCCA or a judge so directs, be exercised by a Registrar of that Court. They include a power of the FCCA prescribed by the Rules of Court: s 102(2)(i).

83    The Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) and the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (together, the Bankruptcy Rules) applied at relevant times to proceedings in the FCCA under the Bankruptcy Act: see Bankruptcy Rules, r 1.03(1) (as in force before 1 April 2016) and r 1.04(1) (as in force from 1 April 2016). The other rules of the FCCA also applied in bankruptcy proceedings, "so far as they are not inconsistent with" the Bankruptcy Rules: see Bankruptcy Rules, r 1.03(2) (as in force before 1 April 2016) and r 1.04(2) (as in force after 1 April 2016).

84    For the purposes of s 102(2)(i) of the FCCA Act, r 2.02(1) of the Bankruptcy Rules (as in force after 1 April 2016) prescribes certain powers. Among them is the power conferred by s 52(5) of the Bankruptcy Act to extend the period at the expiration of which a creditor's petition lapses: Bankruptcy Rules, 2.02(1), Sch 2, item 12.

85    Subsection 102(6) of the FCCA Act provides:

The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of subsection (2), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under this section as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.

86    Section 103(1) of the FCCA Act provides that the Rules of the FCCA may delegate to the Registrar any of the powers of that Court, including (but not limited to) all or any of the powers mentioned in s 102(2). When exercised by a Registrar, a power delegated by the Rules of Court under s 103(1) is taken, for all purposes, to have been exercised by the Court or a judge, as the case requires. At the relevant time, s 103(7) was in equivalent terms to s 102(6).

87    Rule 20.00A of the FCCA rules delegates certain powers to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power. As at 31 May 2016, the powers delegated by that rule did not include the power to make an order under r 16.05(2)(e) of the FCCA rules.

GROUNDS OF APPEAL

88    The grounds of appeal are expressed as follows:

1.    The Honourable Court erred in law.

2.    The Honourable Court erred in law when it misconstrued the meaning of Rule 2.02(1) of the Federal Circuit Court (Bankruptcy) Rules 2016 (FCCBR), in as far as the expression

'…a power of the Court under a provision of the Bankruptcy Act referred to in Schedule 1 is prescribed'

relates to the exercise of a Federal Circuit Court Registrar's prescribed powers pursuant to the Bankruptcy Act 1966 (Cth) (BA) and the FCCBR.

3.    The Honourable Court misapplied the law.

4.    The Honourable Court misapplied Rule 2.02(1) of the FCCBR, for the purpose of section 102(2)(i) of the Federal Circuit Court of Australia Act 1999 (FCCAA), to the exercise of the Registrar's prescribed power pursuant to Item 12 of Schedule 1 of the FCCBR, subsection 52(5) (read together with subsection 52(4)) of the BA, which provisions contain prescribed periods of time, outside and inside of which, certain events would occur (lapse of petition), or could occur, to prevent expiration of petition (an order that the period at the expiration of which the petition would lapse, be extended).

5.    The Honourable Court erred in law when it wrongly affirmed the Registrar's misapplication of Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 (FCCR), on 31 May 2016, outside of the parameters of prescribed powers provided by Rule 2.02(1), Item 12 of Schedule 1 of the FCCBR, and subsection 52(4) and (5) of the BA, to an order of the Registrar, made on 22 March 2016, to vary the life of the petition, after its expiry on 8 April 2016.

6.    The Honourable Court erred in law when it wrongly affirmed the Registrar's failure to give validity to the order of the Registrar made on 31 May 2016, which failed to reflect, in the order, the FCCBR legislative scheme's provisions and prescribed power to make the order, pursuant to sections 52(4) and (5) of the BA.

7.    The Honourable Court erred in law when it failed to consider or deal with the issue and definition of a 'power' that is 'prescribed', the issue upon which, the decision to exercise the Registrar's prescribed power, in relation to extending the period at the expiration of which the petition would lapse, after its expiration, pursuant to subsection 52(4) and 52(5) of the BA, was dependent.

8.    The Honourable Court erred in law when it failed to give reasons for failing to consider or deal with the issue and definition of a 'power' that is 'prescribed' the issue upon which the decision to exercise the Registrar's prescribed power, in relation to extending the period at the expiration of which the petition would lapse, after its expiration, pursuant to subsection 52(4) and 52(5) of the BA, was dependent.

9.    The appellant was denied natural justice.

89    The allegations in [1] and [3] are particularised by what follows them. They do not require separate consideration.

90    The allegation in [6] involves two propositions. Ms Luck submits that the order of the Registrar made on 31 May 2016 is invalid because it did not, on its terms, expressly refer to the statutory sources of power for the order. That submission may be shortly rejected. In written submissions, Ms Luck raises a separate issue that fairly falls within this ground of appeal. The issue goes to the existence, nature and quality of her consent to the making of the order in that, she argues, she did not consent to an order that did not contain an express reference to the statutory provisions upon which the Registrar relied. The fact, quality and relevance of Ms Luck's consent to the order of 31 May 2016 will be considered in the course of determining the remaining grounds of appeal.

91    In written submissions, the allegation in [9] was enlarged upon in terms that amount to an assertion that the FCCA "constructively failed to exercise its jurisdiction" when it made a sequestration order against Ms Luck. Ms Luck does not otherwise make a specific allegation that the proceedings before the primary judge were conducted in a manner that was procedurally unfair. The complaint underlying that ground is the same as the substantive complaint underlying the remaining grounds of appeal.

92    Read in conjunction with Ms Luck's written submissions, the remaining grounds raise three questions. The first is whether the Bankruptcy Act, on its proper construction, precluded an order being made pursuant to r 16.05(2)(e) of the FCCA rules after the expiration of the period prescribed in s 52(4) so as to retrospectively vary an order made before the expiry of, and so extend the life of, USQ's creditor's petition. The second question is related to the first. It is whether the Registrar exceeded his delegated powers under the FCCA rules or the Bankruptcy Rules by making an order in a "manner" or by a "method" that was inconsistent with the requirements of s 52(4) and (5) of the Bankruptcy Act. The third question is whether r 16.05(2)(e) was properly enlivened on the facts as they stood at the time when the order pursuant to that sub-rule was made.

FACTS

93    The facts are largely undisputed.

94    Ms Luck was served with a bankruptcy notice on 25 January 2015. It claimed a debt of $43,804.22 owing to USQ, being costs to which it was entitled by an order made in earlier litigation between the parties (Costs Order).

95    Ms Luck commenced an application in this Court for an order that the bankruptcy notice be set aside on grounds including that she had commenced an application in the High Court of Australia for special leave to appeal from (among other things) the Costs Order. The time for Ms Luck's compliance with the bankruptcy notice was extended pending the determination of the application to set it aside. Davies J dismissed that application on 30 March 2015 and further dismissed Ms Luck's application for a further extension of time in which to comply with the bankruptcy notice: Luck v University of Southern Queensland [2015] FCA 286.

96    The creditor's petition alleged that Ms Luck had committed an act of bankruptcy by not complying with the bankruptcy notice within the extended time. The petition was first listed for hearing on 21 May 2015. By that time, Ms Luck had filed an appeal from the orders of Davies J, and applications for the removal of the appeal and the creditor's petition to the High Court.

97    A Registrar of the FCCA adjourned the hearing of the creditor's petition on eight occasions. In large part the adjournments were granted at the request, or with the consent, of Ms Luck, pending the resolution of the Full Court and High Court proceedings.

98    By an order made on 19 November 2015, the hearing of the creditor's petition was adjourned to 22 March 2016. In advance of that adjourned hearing date, USQ transmitted an email to the Registry of the FCCA. Ms Luck was copied in the email. The email stated that the Full Court appeal and the High Court removal application had not been finalised. It continued:

We have spoken to the respondent, copied to this email, and the parties are agreed in inviting the Court to adjourn the matter again when it is called on for hearing on 22 March 2016 at 11.00am. Although we leave it to the Court's discretion, it may be appropriate to adjourn the hearing to the first available date after the Full Federal Court sittings in May 2016. By that date, the [other proceedings] may be finalised.

99    On 22 March 2016, in response to the parties' invitation, and with the consent of Ms Luck, the Registrar made an order in the following terms:

The further hearing of the petition be adjourned to 31 May 2016 at 11.00 am.

100    As has been mentioned, the creditor's petition was filed on 9 April 2015. In accordance with s 52(4) of the Bankruptcy Act, the petition would lapse at the expiry of 8 April 2016, subject to an order made in the exercise of the power under s 52(5).

101    Ms Luck sent an email to USQ's solicitors on 18 May 2016. Among other things, she stated:

… I seek to arrange consent to adjourn the hearing listed for 31 May 2016 of [the creditor's petition] until such time as the High Court deals with and disposes of the other matters …

102    On 23 May 2016, USQ's solicitor transmitted an email to the FCCA seeking a further adjournment, by consent, of the creditor's petition. Ms Luck was copied in the email.

103    A Legal Case Manager to the Registrar transmitted an email to the parties on 30 May 2016. Given its significance to the outcome of this appeal, it is here set out in full:

Good afternoon

On 22 March 2016, the Registrar made an order adjourning the petition until 31 May 2016.

At the time, it was not brought to his attention and the Registrar was not aware that the petition would lapse in accordance with section 52(4) of the Bankruptcy Act 1966 on 8 April 2016.

As at the date of the Registrar's order adjourning the petition, it was his intention that the petition remain current and be dealt with at the time of the adjourned hearing.

Accordingly, after the matter is called in open court in tomorrow's bankruptcy list, the Registrar intends on making an order under rule 16.05(2)(e) of the Federal Circuit Court Rules 2001, varying the order of 22 March 2016 and providing for an extension of the lifetime of the petition pursuant to section 52(5) of the Bankruptcy Act 1966, consistent with his intention at the time of the earlier order.

Given the late notice of this communication, the Registrar is content to have the parties make any submissions in relation to this point via telephone appearance in court. Please advise whether you seek to appear at the hearing, and, if you intend on appearing by telephone, the best number at which you can be reached.

Otherwise the Registrar understands the parties have consented to the further adjournment of the petition.

..

104    As foreshadowed by that email, on 31 May 2016, the Registrar made orders relevantly in the following terms:

1.    The further hearing of the petition be adjourned to 1 September 2016 at 11:00 am.

2.    Pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001, the order in this proceeding of 22 March 2016 be varied so that the life of the petition be extended to 8 April 2017, and that extension apply from 22 March 2016 as if it had been ordered on that date.

105    The order was not opposed by Ms Luck at the time that it was made.

106    In the months following, the Registrar ordered two further adjournments, again with the consent of Ms Luck.

107    On 17 January 2017, Ms Luck filed an outline of submissions which challenged, among other things, the validity of the Registrar's orders of 31 May 2016. On USQ's application, the creditor's petition was referred to a Judge of the FCCA for hearing.

108    On 10 February 2017, Ms Luck filed an Application in a Case by which she sought orders setting aside the order of 31 May 2016 extending the life of the creditor's petition on broadly the same grounds as those now argued on this appeal.

109    The learned primary judge rejected the arguments, dismissed the Application in a Case and sequestered Ms Luck's estate. It is not disputed that the validity of the sequestration order turns upon the validity of the Registrar's order of 31 May 2016 extending, or purporting to extend the life of the petition.

VALID DELEGATION

110    The power of a Registrar to make an order under r 16.05(2)(e) of the FCCA rules has its source either in s 102(6) or s 103(7) of the FCCA Act. The sub-rule is a rule of the FCCA that "relates to" the exercise of a power exercisable by a Registrar because of s 102(2) or s 103(1) respectively.

111    Ms Luck did not submit that the power to make an order pursuant to r 16.05(2)(e) of the FCCA rules was not available to be exercised by a Registrar in every case. Rather, in reliance on Downey v Pryor (1960) 103 CLR 353, Ms Luck contends that the Registrar did not comply with the express requirements of s 52(5) of the Bankruptcy Act when making an order in the exercise of the delegated power.

112    To the extent that Ms Luck submits that the delegated power under s 52(5) of the Bankruptcy Act to make an order extending the life of the creditor's petition must be exercised in such a manner and by such a method as is prescribed by s 52(5) itself, her submission is to be accepted.

113    However, for the reasons given below, the "manner and method" by which the power under s 52(5) of the Bankruptcy Act is to be exercised does not preclude the making of an order pursuant to r 16.05(2)(e) of FCCA rules having retrospective effect, in the limited factual circumstances in which that rule may be invoked on its terms. Rule 16.05(2)(e) of the FCCA rules is not inconsistent with the Bankruptcy Rules and so is capable of applying in matters arising under the Bankruptcy Act.

114    Ms Luck's contention that the primary judge failed to give reasons dealing with her submissions on this topic should be rejected. The primary judge gave adequate reasons for dismissing Ms Luck's Application in a Case in which she challenged the validity of the 31 May 2016 order. To the extent that the minutiae of her submissions are not expressly grappled with in the reasons for judgment, that is because they are subsumed in the greater generality of the decision.

meaning and application of sub-rule 16.05(2)(e)

115    Ms Luck submits that an order under r 16.05(2)(e) cannot be made by a Registrar of the FCCA after the expiration of the period specified in s 52(5) of the Bankruptcy Act so as to retrospectively vary an order made prior to the expiration of the period, and so extend the period. To consider that submission it is necessary to survey the dissonant authority leading up to and following the decision of the Full Court of this Court in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, upon which the primary judge relied. That case arose in a corporate insolvency context and involved the invocation of a different iteration of the slip rule than that under consideration in the present case.

The authorities

116    A convenient starting point is the judgment of the High Court in L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590. In that case, the High Court held (at 595) that it was competent for that Court to make an order under the slip rule then prescribed in O 29 r 11 of the High Court Rules 1952 (Cth) to deal with the consequences of an omission by the appellant's counsel to seek an award of pre-judgment interest assessed as at the date of judgment on an appeal. The rule under consideration was in the same terms as that now expressed in r 16.05(2)(h) of the FCCA rules and r 39.05(h) of the FCA rules. By virtue of counsel's omission, the High Court had, at the time of judgment, made an award of damages in an amount notionally assessed by the trial judge, which included a component of interest calculated to the date of judgment in the trial court. The Court made an order under the slip rule to the effect that the order awarding damages made at the time of judgment on the appeal be amended to include an award of interest for the period between the date of judgment at trial and the date of judgment on the appeal. The High Court emphasised (at 596) that there was no statutory provision prescribing the time by which an application for an order allowing interest must be made, and so the circumstances were distinguishable from earlier cases in which relief under the slip rule had been refused in similar factual circumstances: see Brew v Whitlock (1968) 118 CLR 445 (Taylor, Menzies and Owen JJ at 463 – 464).

117    In Re Hibbard; Ex parte Playroom Pty Ltd [1988] FCA 689, as in the present case, the hearing of a creditor's petition was adjourned to a date falling outside the 12 month period prescribed in s 52(4) of the Bankruptcy Act. The petitioning creditor applied to have the adjournment order corrected so as to add to it an order extending the period under s 52(5). Pincus J referred to Shaddock. His Honour emphasised that the slip rule in question may be invoked in circumstances where the error or omission was not a mis-recording of the Court's own intention, but rather a failure on the part of counsel to ask for an ancillary order which the Court would plainly have made at the time, had it been asked to consider its necessity. His Honour nonetheless dismissed an application for a corrective order to be made in the exercise of the Court's implied jurisdiction to correct a slip or omission. Such an order would, his Honour said (at 4):

… be an infringement of the requirement in s 52(5) that any order extending the petition be made before the expiration of the period of twelve months commencing on the date of presentation of the petition. It does not appear to me that, on the proper construction of s 52(5), an order for extension may lawfully be made, after the twelve months' period has ended, predated so as to fall within the twelve months.

118    Einfeld J expressed a contrary view in Re Jago; Ex parte Paal Frame Pty Ltd [1989] FCA 52 and later in Re Van Coblyn; Ex parte Mercantile Credits Limited [1992] FCA 1018. In each case, his Honour made orders pursuant to the Court's implied power to correct an accidental slip or omission. As to whether the exercise of that power was inconsistent with s 52(5) of the Bankruptcy Act, Einfeld J said (at [15]):

… the slip rule does not need to be expressly permitted by legislative or regulatory enactment before it can be availed of. Indeed, it seems to have been designed to deal with situations where the legal framework does not deal at all or adequately with the correction of an accidental oversight or error by the Court in expressing or giving effect to its intention, or to what would have been its intention if the parties had not failed to seek an appropriate order or draw the Court's attention to factors which would influence the achievement of the obvious intention. If applicable statutory provisions or the common law otherwise dealt with this situation, there would be no need for the rule at all.

119    Einfeld J did not expressly approach the question by reference to whether the earlier judgment of Pincus J in Hibbard was plainly wrong, although it is implicit that his Honour determined as much: see Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] ⸺ [76]; Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162 at [93].

120    The question next arose in a bankruptcy context in Re Agushi; Ex parte Farrow Mortgage Services Pty Ltd (in liq) and another [1994] FCA 641; (1994) 126 ALR 704. Consistent with the reasoning of Pincus J in Hibbard, Heerey J held that the power to correct a slip or omission in an order could not prevail against the express provision of s 52(5) of the Bankruptcy Act. His Honour said (at 706):

I do not doubt that in the present case there was an honest and understandable inadvertence. If there were power to extend, I would not hesitate to exercise it. But it does seem to me that the Act specifically provides for petitions to be heard and determined within 12 months, and by s 52(5) expressly provides that extension can only be granted within that period.

121    The judgments in both Hibbard and Agushi were disapproved by the Full Court in Elyard (Lockhart J at 392 – 393, Lindgren J at 404, Black CJ agreeing at 387 – 388). The grounds of appeal in that case challenged the validity of an order made at first instance by Sheppard J pursuant to O 35 r 7(3) of the now superseded Federal Court Rules 1979 (Cth), equivalent in terms to what is now r 16.05(2)(h) of the FCCA rules and r 39.05(h) of the FCA rules. The order appealed against had the purported effect of correcting an earlier order so as to extend, with retrospective effect, the life of an application to wind up a company pursuant to s 459R of the Corporations Law as then in force. It provided:

(1)    An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.

(2)    The Court may by order extend the period within which an application must be determined, but only if:

(a)    the Court is satisfied that special circumstances justify the extension; and

(b)    the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.

(3)    An application is, because of this subsection, dismissed if it is not determined as required by this section.

(4)    An order under subsection (2) may be made subject to conditions.

122    On appeal, the company submitted that an order made pursuant to the relevant slip rule could not retrospectively overcome the express requirement of s 459(2) and the self-executing effect of s 459R(3). Rejecting the same arguments at first instance, Sheppard J said in DDB Needham Sydney Pty Ltd v Elyard Corporation Pty Ltd [1995] FCA 603; (1995) 131 ALR 213 (at ALR 223):

With respect to Pincus J [in Hibbard], I fail to see why the conclusion he has arrived at should follow. If the slip rule is capable of applying, as I think it is, and it has the retrospective effect which Pincus J appears to acknowledge and which the High Court in Shaddock decided it has, I do not see why there is any difficulty, in an appropriate case, in making an order which will overcome the slip. Otherwise, there is no purpose in the rule.

123    His Honour continued:

The fact that a statute such as s 52 of the Bankruptcy Act or s 359R of the [Corporations Law] has the effect which it does, does not touch the court's power to correct, in a proper case, its own order. That is part of its practice and procedure. Nothing in s 459R(3) suggests that the court was not to continue to be able to maintain a correct record of its proceedings. After all the error or omission which needs correction may be that of the court, not the party. What needs to be emphasised is that it is the position after the correction of the order has been made that must be looked at. Only then can one tell whether the particular provision has been complied with.

124    In separate judgments, Lockhart and Lindgren JJ applied the same reasoning. The argument advanced by the appellant company rested, Lockhart J said, on a "misconception of the nature and operation of the slip rule". His Honour held (at 391):

This is the case because the later order corrects the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected. Hence, the order made by the primary judge in this case, on 9 August 1995, corrected the order of the Registrar of 9 June 1995, which then operated with full force from 9 June 1995. The slip rule, with retrospective operation, corrected the earlier order … The essential purpose of the slip rule is to give effect to the intention which the court would have had, if it were not for the failure which led to the accidental slip or omission.

125    His Honour said that the operative orders in Hibbard and Agushi were not the later correcting orders, but the earlier orders as corrected, notwithstanding that the later orders were made outside the statutory time limit. As corrected, the earlier orders "spoke from dates within the time period" (at 393) and the requirement that the extending order be made before the lapse of the petition was thereby fulfilled.

126    After noting (at 402) that authorities decided in the bankruptcy jurisdiction of the Court did not "speak with one voice", Lindgren J held (at 404) that the approach taken in Hibbard and Agushi did not adequately recognise "the true nature of the slip rule or the effect of the orders which it permits". His Honour placed considerable emphasis on the terms of O 35 r 7(3) as then in force, which conferred a power to correct an order, as distinct from O 35 r 7(2) (which concerned a power, equivalent to that in issue in the present case, to vary or amend an order so as to reflect the intention of the Court). Lindgren J concluded (at 404 — 405):

What this analysis emphasises in the context of the facts of the present case is first, that there must have been an order made within the statutory period, and secondly, that an order under the slip rule in relation to such an order is appropriately seen not as varying it or setting it aside, but as merely correcting it by including an ancillary order which the Court and the parties intended to be included.

127    The correcting order in Elyard was made in factual circumstances similar to those arising in Hibbard and Agushi and, for that matter, in the present case: an order was made granting an adjournment of a hearing to a date beyond the statutorily prescribed period, the creditor in each case having omitted (by inadvertence) to apply for an order extending the period. It is apparent from the above passage that Lindgren J considered the slip rule in that case had been properly invoked to include an order which both the Court and the parties in fact intended, at the time of the earlier order, to be included. Lockhart J noted (at 391) that the slip rule extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative, and thus extends to give effect to the intention that the Court would have formed, but for the failure that caused the accidental slip or omission. To the extent that there is a difference between the reasons for judgment of Lockhart J and Lindgren J as to the scope of the slip rule in question, it is not resolved by the judgment of Black CJ, his Honour agreeing with the reasons given by both Lockhart and Lindgren JJ.

128    Elyard was decided under the Corporations Law as then in force. Strictly speaking, the reasoning of the Court is obiter insofar as it concerns the proper construction of the provisions of the Bankruptcy Act and their interrelation with the so-called slip rule in any of its express or implied forms. The decision has nonetheless been followed by single judges of this Court and a subsequent Full Court in the exercise of its bankruptcy jurisdiction, albeit with some expression of disquiet: Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 (Burchett J); Komesaroff v Law Institute of Victoria [1997] FCA 965 (Heerey J); Matthews v Collett [2000] FCA 224 (Spender J); Re Langridge; Ex parte Bennett, Carroll & Gibbons [1998] FCA 879 (Kiefel J). These cases do not involve any consideration of the proper construction of any equivalent to r 16.05(2)(e) of the FCCA rules.

129    In Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd (2008) 73 NSWLR 627, Hammerschlag J of the Supreme Court of New South Wales declined to follow Elyard on the basis that it was plainly wrong. That case concerned the interrelation between s 459R of the Corporations Act 2001 (Cth) (equivalent to s 459R of the Corporations Law) and the slip rule in r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (equivalent to what is now r 16.05(2)(h) of the FCCA rules). His Honour first acknowledged (at [54]) that the slip rule would operate to permit an order to be corrected or supplemented to reflect the actual outcome of the exercise by the Court of its discretion, but only where its orders do not accord with its actual actions or intentions. To that extent, his Honour held, s 459R of the Corporations Act did not exclude the operation of the rule.

130    His Honour continued (at [55] — [57]):

55    In Elyard Corporation (at 405), Lindgren J said: 'It is of the greatest importance to distinguish between the availability of the slip rule and the exercise of discretion whether to make any order or a particular order under it'.

56    It seems to me that it is equally important to distinguish between the exercise of a discretion to correct an error so as to reflect the intention of the Court — or the intention that the Court would have had but for the failure that caused the accidental slip or omission — on the one hand, with the exercise by the Court of an initial special statutory discretion which the earlier Court omitted to exercise on the other.

57    An outcome that permits the latter to occur under the guise of the slip rule would, in addition to the difficulties identified above, undermine the clear policy dictates of Pt 5.4 of the Corporations Act (Cth), which require winding up applications to be dealt with promptly. That policy has recently been reaffirmed by the High Court in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 at 324 [17].

131    On the facts, Hammerschlag J held that neither the plaintiff creditor nor its advisers were conscious of the requirement for an extension of time under s 459(2) of the Corporations Act, and that the earlier presiding judge "clearly never had it in mind either" (at [8]). His Honour emphasised the importance of training focus on the precise words of the rule relied upon, rather than applying the terminology in the reasoning of prior case law (at [12]). The test was whether the mistake or omission was truly accidental within the meaning of the particular rule, such that if the question of extending the life of the winding up application had been drawn to the Court's attention, an order would "at once have been made": Hatton v Harris [1892] AC 547; Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 435 (McHugh JA).

132    The question next came before a Full Court of this Court in Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554. In that case, a federal magistrate at first instance reserved judgment after the hearing of a creditor's petition, but did not deliver judgment until after the period fixed in accordance with s 52(4) of the Bankruptcy Act had expired. The Court (Spender ACJ, Dowsett and Collier JJ) said of the decision in Elyard (at [30]):

With all respect, we are a little uncomfortable with the view, inherent in Elyard, that the slip rule may be used to extend time notwithstanding the statutory requirement that such order be made within a period of time which has elapsed. However, Elyard concerns the practice of the Court and has now stood for over 10 years without legislative intervention. We are reluctant to reconsider it. Although it does not directly bind us in applying s 52 of the Bankruptcy Act, to take a different approach would cause substantial confusion in insolvency practice.

133    The Court in Griffiths is to be understood as applying the reasoning in Elyard in its application to orders made pursuant to s 52(5) of the Bankruptcy Act. The slip rule invoked in that case was expressed in the same terms as that invoked in Elyard. Consistent with what was said by Lindgren J in Elyard, the Full Court in Griffiths held (at [33]) that for the rule to be invoked in order to retrospectively effect an extension of time under s 52 of the Bankruptcy Act, then:

… there must be a judgment or order to be corrected, and it must have been made within the prescribed time. The power is to correct, not to vary or set aside. There is no general power to relieve from the consequences of [s 52(4)].

134    On the facts, however, no order had been made within the statutory time frame that was capable of correction within the meaning of what was then r O 35 r 7(3): the mere reservation of judgment by the magistrate did not constitute an "order" within the meaning of the rule.

135    In Flint, the Full Court held that the evidence was insufficient to support an inference of error or omission either on the part of the creditor's lawyer, or on the part of the magistrate at first instance. On the facts, it was unclear whether the magistrate would have exercised his discretion to extend the life of the creditor's petition had he been asked to do so within the statutory period. Accordingly, there was no "accidental slip or omission" so as to enliven the power in r 39.05(g) or r 39.05(h) of the FCA rules in any event. The Full Court concluded (at [43]):

The above reasons make it unnecessary to reconsider Elyard in the light of the doubts expressed in Griffiths and the criticism of Hammerschlag J in Amorin.

136    It is apparent from this passage that the Full Court in Flint accepted a submission advanced by the appellant in that case to the effect that the reasoning in Griffiths was obiter. I respectfully agree. In each case the rule was not enlivened on its terms, and so its interrelation with the bankruptcy regime did not fall to be decided.

137    Finally, in Ramsay Health Care Australia Pty Ltd v Compton (2016) 247 FCR 387 (Rares, Gleeson and Markovic JJ) a primary judge made an order within the period prescribed by s 52(4) of the Bankruptcy Act extending the life of a creditor's petition for an additional three months. The primary judge was held to have "intended" to make the order, albeit on the erroneous assumption that the Court retained the power to further extend the life of the period by a subsequent order. The Full Court held that the slip rule could not apply in the circumstances because the order was the product of an intentional decision (albeit based on error) and the order correctly reflected that intention. The slip rule under consideration in that case was expressed in the same terms as that considered in Elyard.

The proper construction of r 16.05(2)(e)

138    The authorities summarised at [44] to [65] above largely concern the inherent power of a court of unlimited jurisdiction, or an express (but differently worded) rule such as that contained in r 39.05 of the FCA rules and its antecedents. In Elyard, the latter type of rule was found to apply in cases where, by an accidental slip or omission (including the omission of a part), the necessity to make the order in question had not been brought to the Court's attention at all.

139    This Court invited supplementary submissions as to whether r 16.05(2)(e) should be construed as applicable only in circumstances where the Court in fact intended to make an order in relation to a question that was in fact considered by the Court (rather than, for example, overlooked), but the order does not reflect that actual intention. It is to be acknowledged that submissions in respect of that question were not advanced by either party before the primary judge. The primary judge assumed that authorities concerning the meaning and effect of r 39.05 of the FCA rules were applicable (reasons [192] – [193]).

140    In its outline of submissions dated 30 October 2017, USQ argued that "Rule 16.05 of the [FCCA rules] is a legislative expression of the slip rule" and that "The purpose of the slip rule is to avoid injustice to litigants by ensuring that the Court's orders reflect the intention that the orders would have had but for the failure that caused the accidental slip or omission" (emphasis added). These submissions were premised on an assumption that r 16.05(2)(e) of the FCCA rules is not relevantly different in its meaning or operation from the sub-rule invoked in Elyard.

141    In response to the Court's invitation to make supplementary submissions, USQ contended that the word "intention" in r 16.05(2)(e) should be construed having regard to the remedial nature of r 16.05(2) and that it should, accordingly, have a broad, rather than narrow or technical meaning. The word should otherwise, USQ submitted, be construed according to its natural and ordinary meaning. USQ supplied dictionary meanings of the word: "the act of determining mentally upon some action or result" or "a purpose or design" or "the end or object intended".

142    Ms Luck's written submissions are cast in broad terms. They are cryptic in parts. Insofar as they concern the operation of r 16.05(2)(e), the submissions assert that the Registrar could not invoke the rule on the facts because to do so would involve a failure to observe the "manner and method" by which an order extending the life of a creditor's petition must be made. The phrase "manner and method" is borrowed from Downey at 361 — 362 in which Kitto J said:

… the introduction, into a provision conferring [an authority], … of words requiring that in exercising the authority a prescribed method (to use the word in a comprehensive sense) shall be observed, … a person exercising the authority must observe any method which is prescribed for the time being; but if none is prescribed the authority is exercisable by any appropriate method.

143    In her supplementary submissions, Ms Luck argued that the Registrar had made a deliberate decision to adjourn the hearing of the petition, which decision was affected by an error of law, namely, an error as to when the petition would lapse. Whilst not directed to the meaning of the word "intention" in r 16.05(2)(e), the submission asserts (at least impliedly) that the rule should not apply in circumstances where a mistake "of law" has been made in respect of the lifespan of a petition. Ms Luck further submitted that the question of whether the rule could be invoked was a matter of controversy that ought to have been referred to a judge of the FCCA to decide. The Registrar had, the submission goes, wrongly used r 16.05(2)(e) to review and correct his own error of law.

144    The manner and method by which the power to make an order is to be exercised includes not only the time period in which the order must be made, but the fulfilment of two further mandatory and interrelated criteria. First, the Court must be satisfied that it is just and equitable to make the order. Second, the Court must consider and specify the period of time by which the creditor's petition is to be extended (not being a date beyond 24 months after the date of the presentation of the petition). Although Ms Luck's submissions make no specific reference to these additional criteria, Ms Luck did submit that the effect of adjourning the petition to a date after it would lapse was an event that "could not be varied by reconsideration, let alone alteration, of the substance of the result that was reached and recorded, that being that the petition had lapsed on 8 April 2016". Ms Luck cited Achurch (French CJ, Crennan, Kiefel and Bell JJ at [18]) and this passage from Burrell at [21]:

The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.

(footnote omitted)

145    Ms Luck otherwise made no clear submission concerning the difference in wording between r 16.05(2)(e) of the FCCA rules and r 39.05(h) of the FCA rules and the implications of that difference for the outcome of the appeal.

Intention

146    It is not correct to say that r 16.05(2)(e) is remedial and so should be construed broadly. The objective of the sub-rule is to confer a power to vary an order for (and only for) the expressly stated purpose: the order in fact made does not reflect the intention of the Court. The rule is to be construed in a legal context in which orders (once entered) are final. In that context, the word "intention" should be construed as meaning an intention actually formed upon actual consideration of an issue arising for determination. The word does not encompass a situation in which the Court has, whether by its own omission or the omission of a party, failed to consider the issue at all.

147    Rule 39.05(h) of the FCA rules is cast in wider terms. The authorities construing the wider iteration of the slip rule (including Elyard) confirm it may be invoked in at least two categories of case. The first is that in which, by an accidental slip or omission, an earlier order does not reflect the actual intention of the Court in respect of a question that was in fact considered and determined by the Court at the time that the earlier order was made. The second is that in which, by reason of an accidental slip or omission, an earlier order does not reflect the intention that the Court would have formed in relation to a question, had the necessity to determine the question been appreciated at the earlier time. In either case, the accidental slip or omission resulting in the error may be that of a party and not that of the Court itself.

Retrospectivity

148    That is not to say that an order made pursuant to r 16.05(2)(e) of the FCCA rules could not operate with retrospective effect.

149    The Full Court in Elyard held that an earlier order corrected by a later order made pursuant to O 35 r 7 as then in force would speak in its corrected form from the date of the earlier order. The later order operates retrospectively in that limited sense.

150    In cases where it is available to be exercised on the facts, r 16.05(2)(e) of the FCCA rules would operate in the same way, provided that the later variation of the earlier order was not otherwise precluded by the enactment under which the substantive issue falls to be decided.

151    Returning to the present case, the substantive issue was whether an order pursuant to s 52(5) of the Bankruptcy Act should or should not be made. It would only be necessary to decide whether the retrospective operation of an order made pursuant to r 16.05(2)(e) of the FCCA rules would be precluded by s 52(5) of the Bankruptcy Act if the power conferred by r 16.05(2)(e) was enlivened on the facts.

152    In my view, the learned primary judge misconstrued the rule by assuming that it was as wide in its meaning as the rule applied in Elyard and, as a consequence, there is error affecting the conclusion that the power conferred by the rule was enlivened in the circumstances that arose before the Registrar.

Unavailability of r 16.05(2)(e) on the facts

153    When making an objective assessment of the Registrar's actual intention as at 22 March 2016, the email correspondence (extracted at [31] above) is to be read in the context of all that had preceded it.

154    The primary judge said this in respect of the email (reasons at [198]):

The evidence adduced by the University also confirms that the Registrar's intention on 22 March 2016 was to keep the matter on foot. Had the potential for lapse of the petition been brought to his attention, an order would have been made extending the life of the petition.

155    As at 22 March 2016, the salient facts were:

(1)    absent an order pursuant to s 52(5) of the Bankruptcy Act, the petition would expire on 8 April 2016 (expiry date);

(2)    the parties did not make the Registrar aware of the expiry date;

(3)    the Registrar intended to make an order adjourning the hearing of the petition to 31 May 2016;

(4)    the Registrar intended the adjournment order to have legal effect, so as to compel the parties to attend before the FCCA for the hearing of USQ's creditor's petition;

(5)    the Registrar wrongly assumed that the petition would not have expired as at the adjournment date and so did not turn his mind to the question of whether the petition would have expired by that time;

(6)    the wrong assumption was induced by the parties' omission to draw the Registrar's attention to the impending expiry of the petition; and

(7)    by reason of the parties' omission, the Registrar did not consider whether it was just and equitable to make an order pursuant to s 52(5) of the Bankruptcy Act to extend the life of the petition, nor was consideration given to the particular date upon which the petition should be ordered to expire, nor to whether an order extending the life of the petition should be subject to any terms the Registrar thought fit.

156    The use of the word "intention" in the email correspondence is to be interpreted in a manner consistent with the Registrar's unqualified acknowledgement that, as at 22 March 2016, he was ignorant of the date upon which the petition would lapse. The "intention" that the matter be kept on foot is to be properly regarded as referring to an assumption in fact made by the Registrar that the creditor's petition would not have lapsed by the adjournment date. The "intention" to which the email refers is the intention to make an order pursuant to s 52(5) of the Bankruptcy Act that the Registrar would have formed had the potential for the lapse of the petition been brought to his attention, and so ensure that the petition would "remain current" as at the adjournment date.

157    As at 22 March 2016, the order granting an adjournment in the circumstances was futile. Whilst the Registrar is not to be imputed with an intention to make a futile order, it is clear that the futility of the order did not become apparent to the Registrar until a later time. The futility of the adjournment order supports (indeed demands) the inference that the Registrar would have formed the intention to extend the life of the petition had he considered the question and addressed his mind to the statutory criteria for an order under s 52(5) of the Bankruptcy Act on 22 March 2016.

158    As at 22 March 2016, there was no intention, actually formed, to extend the life of the petition. Consistent with the reasoning in Elyard, these facts were sufficient to enliven the power under r 39.05(h) of the FCA rules. However, r 16.05(2)(e) of the FCCA rules was not available to be exercised, whether by a registrar or a judge of the FCCA. As an order of a non-judicial officer of an inferior court, the order of 31 May 2016 was beyond power and invalid (whether or not "set aside").

159    Subject to what is said below, it follows that it was not within the power of the primary judge to make the sequestration order on 4 April 2017.

DISPOSITION OF THE APPEAL

160    Notwithstanding all of the above, I would not grant Ms Luck the relief sought on the appeal.

161    In the exercise of its appellate jurisdiction, this Court may give such judgment, or make such order as, in all of the circumstances, it thinks fit: FCA Act, s 28(1)(b). That power may be exercised in favour of a respondent to an appeal: FCA Act, s 28(3).

162    As the Full Court said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [108]:

... in exercising those powers [in s 28], the Court must always have regard to the interests of justice, including the correction of error or injustice, the need of the parties for finality in the matter, the public interest in finality of litigation and the fair and open administration of justice, and the requirement in s 24(1) to hear and determine the appeal.

163    Notwithstanding the width of s 28(1)(b), the provision does "not set the court on an unchartered course without legal reference points by which to steer": Minister for Immigration and Citizenship v Maman (No 2) [2012] FCAFC 35 (Flick and Foster JJ at [9], citing Robins v Incentive Dynamics Pty Ltd (1999) 91 FCR 423 at 432 (Branson, Sackville and Kiefel JJ); Johns v Australian Securities Commission (1993) 178 CLR 408 at 433 (Brennan J).

164    For USQ it is argued that in the event that this Court should find that the Registrar's invocation of r 16.05(2)(e) of the FCCA rules was erroneous, it should proceed to make an order pursuant to r 39.05(h) of the FCA rules extending the life of the creditor's petition. Implicitly, the submission is that the 22 May 2016 order should be varied so as to effect an extension of the life of the creditor's petition to 8 April 2017 and so regularise the sequestration order.

165    I am satisfied that there is a proper legal and factual basis for making the order sought by USQ in the exercise of the Court's appellate powers, and so deny Ms Luck the relief sought on this appeal.

166    It is to be recalled that the creditor's petition was referred by the Registrar to the primary judge for hearing and determination upon a request made by USQ pursuant to s 104(3) of the FCCA Act. Upon the referral, it was clearly open to the primary judge to set aside any order previously made by the Registrar. If the referral of the creditor's petition to the primary judge did not have that effect, then the Application in a Case filed by Ms Luck most certainly did. Upon the referred hearing, there was no legal impediment in any event to Ms Luck challenging the jurisdiction of the primary judge to make the sequestration order by way of a collateral challenge to the validity of the 31 May 2016 order upon which the power to make the sequestration order depended.

167    In response to Ms Luck's Application in a Case, USQ advanced an alternative submission to the effect that, if it were held that the Registrar had erred in the application of r 16.05(2)(e) of the FCCA rules, the primary judge should himself "re-exercise the slip rule". In the result, the primary judge held it was unnecessary to consider the merits of USQ's alternative submission, given his conclusion that the Registrar was not in error: reasons [209] – [213].

168    This procedural background assumes some importance in the final disposition of this appeal. USQ's submission that it was open to the primary judge to "re-exercise the slip rule" was correct. In my view, the primary judge should have concluded that the Registrar's order of 31 May 2016 was beyond power, and then turned to consider the merits of USQ's alternative submission. In that event, the powers available to the primary judge would have been wider than those available to the Registrar. They included the power in r 39.05(h) of the FCA rules. That rule was exercisable by a judge of the FCCA in the exercise of its bankruptcy jurisdiction by virtue of r 16.05(2) of the FCCA rules, in circumstances where the FCCA rules were insufficient.

169    Although USQ did not expressly urge that particular course upon the primary judge, that omission is explained by the absence of any submission by Ms Luck to the effect that r 16.05(2)(e) was relevantly distinguishable from the rules invoked in the authorities upon which USQ had relied.

170    The primary judge was entitled to consider alternative sources of power to vary the 22 March 2016 order in any event.

171    Apart from those submissions that have been rejected in the course of these reasons for judgment, Ms Luck did not advance any unambiguous argument to the effect that Elyard was wrongly decided and so should not be followed by this Full Court if it were otherwise applicable. It is appropriate that this Court apply the principles in Elyard without expressing any view as to its correctness.

172    In the circumstances explained above, r 39.05(h) of the FCA rules was available to be exercised by the primary judge on the facts, even if r 16.05(2)(e) of the FCCA rules was not. Further, in circumstances where Ms Luck jointly sought multiple adjournments of the creditor's petition and where multiple adjournments were granted for the purpose of enabling Ms Luck to advance her interests in other pending proceedings, it is clearly in the interests of justice to make the order that would have been made, had the necessity to extend the petition been brought to the Registrar's attention on 22 May 2016. Ms Luck should not be permitted to obtain an advantage from the invalidity of an order she consented to, in circumstances where there existed an alternative source of power to extend the petition which could and should have been exercised by the judge at first instance. This Court ought to do what the primary judge could and should have done so as to do justice between the parties and bring finality to their long-running controversy.

173    In the ordinary course, I would invite the parties' submissions as to the form that an order under r 39.05(h) of the FCA rules should take, make the order, and then dismiss the appeal. However, as orders dismissing this appeal are to be made by a majority of this Full Court on a different legal basis, the course I have proposed will not be taken.

Associate:

Dated:    29 June 2018