Carl William Bell v Commonwealth Bank Australia

In the Federal Circuit Court of Australia at Melbourne, Carl William Bell (the applicant) sought a review of a registrar's decision to make a sequestration order against him on 15 January 2013. The Commonwealth Bank of Australia was the respondent. The applicant had failed to lodge his application for review within the 21-day time limit prescribed by rule 2.03 of the Federal Circuit Court (Bankruptcy) Rules 2006, with the application instead being filed on 1 March 2013.

The court was required to determine whether to grant an extension of time for the applicant to lodge his review application, and if so, whether the application for review should otherwise be dismissed. In considering the extension of time, the court needed to assess whether there was an adequate explanation for the delay, whether the applicant could demonstrate an arguable case, and whether allowing the late application would cause prejudice.

Judge Riethmuller noted the absence of affidavit material explaining the delay. However, an explanation was provided from the bar table, suggesting the applicant initially sought to initiate proceedings in the High Court of Australia based on a constitutional argument regarding the registrar's power to exercise judicial power. Upon realising this avenue was not appropriate, he then pursued a review in the Federal Circuit Court. While not supported by affidavit, this explanation was not considered incredible and appeared to account for the delay. Regarding the arguable case, the applicant's sole contention was that the registrar lacked the authority to make the sequestration order, relying on the High Court's decision in *R v Davison*. The court indicated that *R v Davison* needed to be viewed with caution due to differing statutory arrangements and delegation of powers compared to the current *Bankruptcy Act 1966*.

The court ordered that the application for an extension of time be refused. Consequently, the applications filed on 1 March 2013 and 22 March 2013 were otherwise dismissed. The respondent's costs, as assessed, were to be paid out of the applicant's estate.