Carl William Bell v Commonwealth Bank Australia

[2013] FCCA 483

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARL WILLIAM BELL v COMMONWEALTH BANK AUSTRALIA [2013] FCCA 483

Catchwords:
BANKRUPTCY – Sequestration order - application for Review of Registrar’s decision – application for extension of time – application refused.

Legislation:  

Bankruptcy Act 1966
Commonwealth of Australia Constitution Act 1900
Federal Circuit Court of Australia Act 1999
Federal Magistrates Court Act 1999
Federal Circuit Court (Bankruptcy) Rules 2006, r.2.03
Federal Circuit Court Rules 2006, r.3.05

Cheeseman and Ors v Waters and Anor M71/1997 [1998] HCATrans 153
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84; [1991] FLC 92-217; 99 ALR 193; (1991) 65 ALJR 280; 14 Fam LR 593
R v Davison [1954] HCA 46; (1954) 90 CLR 353; [1954] ALR 877; 17 ABC 90

Applicant: CARL WILLIAM BELL

Respondent: COMMONWEALTH BANK AUSTRALIA

File Number: PEG 36 of 2013

Judgment of: Judge Riethmuller

Hearing date: 19 April 2013

Date of Last Submission: 19 April 2013

Delivered at: Melbourne

Delivered on: 19 April 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Amarasingham

Solicitors for the Respondent: Norton Rose Australia

ORDERS

1. The Application for an extension of time be refused.

2. The Application filed 1 March 2013 and the Application in a Case filed 22 March 2013 be otherwise dismissed.

3. The Respondent’s costs as assessed be paid out of the Estate of the Applicant.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

PEG 36 of 2013

CARL WILLIAM BELL

Applicant

And

COMMONWEALTH BANK AUSTRALIA

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an application for review of a decision of a registrar of the court who made a sequestration order on 15 January 2013.

2. The applicant did not lodge his application for review within the time limits set out in the Federal Circuit Court (Bankruptcy) Rules 2006 (the 21 day time limit under r.2.03), as the application for review was not filed until 1 March 2013.  The court has power to extend the time limit under the Federal Circuit Court Rules 2001 (see r3.05). 

3. It is appropriate, when considering whether or not to extend time within which to bring a review application, to consider whether or not there has been any adequate explanation for the delay in bringing the application, whether or not the applicant can show an arguable case and whether there may be any prejudice in allowing the application to be brought late.

Delay in bringing the application

1. In this case there is no affidavit material explaining why it was that the review application was not brought within the time provided for in the Federal Circuit Court (Bankruptcy) Rules 2006. 

2. The applicant gave an explanation from the bar table explaining that he had contacted the registry of the High Court of Australia seeking to issue proceedings there to pursue his case as his case sounds solely in the proposition that the Registrar was precluded by chapter III of the Constitution from exercising any form of judicial power and therefore did not have the power to make a sequestration order. He said that, after some time, it became apparent that he was required to pursue this issue by way of a review in this court rather than going directly to the High Court.

3. Whilst there is no affidavit material to this effect, it is not an incredible explanation and it seems to me to explain at least the delay involved in bringing the review application.

Is there an arguable case?

1. I turn to the question of whether the applicant has an arguable case.  In this case, the applicant simply argues that the Registrar did not have authority to make a sequestration order.  He relies upon what the High Court said in R v Davison [1954] HCA 46; (1954) 90 CLR 353; [1954] ALR 877; 17 ABC 90.

2. One must view R v Davison with some degree of caution given that it concerned a statutory arrangement and delegation of powers in quite different circumstances to the modern form of the Bankruptcy Act 1966 and the Federal Magistrates Court Act 1999, as it was at the time of these orders, and now the Federal Circuit Court of Australia Act 1999.

3. The modern authority on this issue, dealing with a statutory scheme which is substantially the same as the scheme under the Bankruptcy Act, is Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84; [1991] FLC 92-217; 99 ALR 193; (1991) 65 ALJR 280; 14 Fam LR 593.

4. In Harris v Caladine, the High Court made clear that judicial power can be delegated to a registrar of the court, if the court has a proper level of control, and in circumstances where any review of the registrar’s decision can be brought to a judge of the court for a de novo hearing.  This reasoning has been applied by the High Court in the bankruptcy jurisdiction: see Cheeseman and Ors v Waters and Anor M71/1997 [1998] HCATrans 153.

5. It appears to me that there is no real question that in the circumstances of this case, the registrar did in fact have a valid delegation of authority to exercise sufficient judicial power to make a sequestration order.  In circumstances where this is the only basis for review that the applicant seeks to agitate, I am not persuaded that the applicant has an arguable case.

6. In these circumstances, it is not appropriate to extend the time limit and I therefore dismiss the application for an extension of time and strike out the review application and the application in a case.

[Further argument ensued]

1. In this matter, the applicant has been wholly unsuccessful.  There is nothing in the facts or circumstances of this case which indicate that costs should not follow the event.  In the circumstances, I therefore order that the Respondent’s costs, as assessed, be paid out of the Estate of the Applicant.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  11 June 2013