FEDERAL COURT OF AUSTRALIA
Flint v Richard Busuttil & Co Pty Ltd [2013] FCA 925
Citation: Flint v Richard Busuttil & Co Pty Ltd [2013] FCA 925 Appeal from: Application for extension of time: Flint v Richard Busuttil & Co Pty Limited [2013] FCA 575
Flint v Richard Busuttil & Co Pty Limited [2013] FMCA 1158Parties: DENISE CHARLENE FLINT v RICHARD BUSUTTIL & CO PTY LIMITED File number: ACD 77 of 2013 Judge: KATZMANN J Date of judgment: 13 September 2013 Catchwords: BANKRUPTCY – creditor’s petition – sequestration order – whether power to extend life of creditor’s petition retrospectively by invoking the slip rule despite s 52(5) of the Bankruptcy Act 1966 (Cth) – primary judge followed Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554.
PRACTICE AND PROCEDURE – “slip rule” – whether slip rule applies – federal magistrate failed to make order extending life of creditor’s petition before statutory period had lapsed – whether slip rule can be invoked to extend life of petition retrospectively.
PRACTICE AND PROCEDURE – application for extension of time in which to appeal – explanation for delay deficient but arguable case on important question of principle.
Legislation: Bankruptcy Act 1966 (Cth) ss 33(1)(c), 52, 109(1)(a)
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth) rr 1.39, 36.03Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Comcare v A’Hearn (1993) 45 FCR 441
Davidova v Murphy [2009] FCA 601
Dix v Crimes Compensation Tribunal [1993] 1 VR 297
Dunlop v Fishburn (No 3) [2012] FCA 315
Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1987) 165 CLR 268
Flint v Busuttil & Co Pty Limited [2013] FCA 258
Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554
Re Agushi; Ex parte Farrow Mortgage Services Pty Ltd (In liq) (1994) 126 ALR 704
Re Langridge; Ex parte Bennett Carroll & Gibbons [1998] FCA 879
Re Young; Ex parte Smith (1985) 5 FCR 204
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
SZQZR v Minister for Immigration and Citizenship (2013) 133 ALD 355Date of hearing: 28 August 2013 Date of last submissions: 12 September 2013 Place: Sydney (via video link to Canberra) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Mr J T Johnson Counsel for the Respondent: Mr W L Sharwood Solicitor for the Respondent: Rod J Barnett & Associates Pty Ltd
Solicitor for the Trustee: Bradley Allen Love Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 77 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DENISE CHARLENE FLINT
ApplicantAND: RICHARD BUSUTTIL & CO PTY LIMITED
Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
13 SEPTEMBER 2013
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.Time within which to file a notice…
Keep reading for free
Create a free CaseChat account to read Flint v Richard Busuttil & Co Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2013] FCA 925
- Decision Date
CaseChat Overview and Summary
Flint v Richard Busuttil & Co Pty Ltd involved a dispute regarding the bankruptcy of Ms Flint. The petitioner, Richard Busuttil & Co Pty Ltd, sought an extension of time to appeal a sequestration order made against Ms Flint. The case had a complex history, originating from Ms Flint's refusal to pay legal fees, which led to the creditor's petition being filed in the Federal Magistrates Court. Ms Flint sought to set aside the bankruptcy notice and later filed an application to review the registrar’s dismissal of her application to set aside the notice. The creditor’s petition was subsequently filed and heard, leading to the sequestration order against Ms Flint.
The central legal issue in this case was whether the primary judge had the jurisdiction to extend the creditor’s petition after it had expired, and consequently, whether the sequestration order was valid. Ms Flint argued that the federal magistrate had no power to extend the petition after its expiration, and thus, the primary judge had no power to make the sequestration order. The primary judge, however, upheld the application for an extension based on the slip rule, which allows for the correction of accidental slips or omissions in judicial decisions. The primary judge found that the failure to address the expiration of the petition in the orders of 29 August 2013 was an accidental slip or omission that justified the extension.
The court considered the statutory requirements for filing a notice of appeal and the legal principles surrounding the slip rule. The court determined that the application for an extension of time to appeal was made well beyond the 21-day period stipulated by the Federal Court Rules. Despite this, the court acknowledged that the appeal had reasonable prospects of success, based on Ms Flint's affidavit and the advice of her counsel. However, the court held that the application for an extension of time to appeal was not well founded, and thus dismissed the application.
The final order of the court was that the application to extend the time in which to appeal the sequestration order was dismissed.
The central legal issue in this case was whether the primary judge had the jurisdiction to extend the creditor’s petition after it had expired, and consequently, whether the sequestration order was valid. Ms Flint argued that the federal magistrate had no power to extend the petition after its expiration, and thus, the primary judge had no power to make the sequestration order. The primary judge, however, upheld the application for an extension based on the slip rule, which allows for the correction of accidental slips or omissions in judicial decisions. The primary judge found that the failure to address the expiration of the petition in the orders of 29 August 2013 was an accidental slip or omission that justified the extension.
The court considered the statutory requirements for filing a notice of appeal and the legal principles surrounding the slip rule. The court determined that the application for an extension of time to appeal was made well beyond the 21-day period stipulated by the Federal Court Rules. Despite this, the court acknowledged that the appeal had reasonable prospects of success, based on Ms Flint's affidavit and the advice of her counsel. However, the court held that the application for an extension of time to appeal was not well founded, and thus dismissed the application.
The final order of the court was that the application to extend the time in which to appeal the sequestration order was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
In her affidavit in support of the application Ms Flint states that she has been advised by counsel (Mr J T Johnson), who appeared for her at the hearing before me, that the appeal has reasonable prospects of success. She said that the reason the appeal was not filed within the prescribed time was that she was “taking advice as to the filing of the appeal”.Background This matter has a long and sorry history. It began with Ms Flint’s refusal to pay legal fees of less than $6,000. With interest on the judgment debts and legal costs the evidence suggests that she now owes the petitioning creditor at least ten times that amount. The relevant history appears in the federal magistrate’s judgment in Flint v Richard Busuttil & Co Pty Ltd; Richard Busuttil & Co Pty Ltd v Flint [2012] FMCA 1158 and to some extent in the primary judge’s reasons. It is unnecessary to repeat that history here but it is important to put the present application into context so some reference to the background is required. The bankruptcy notice was served on Ms Flint on 4 April 2011. On 27 April 2011 Ms Flint filed an application to set aside the bankruptcy notice. On 19 October 2011 the registrar dismissed the application with costs. On 10 November 2011 Ms Flint filed an application (out of time) to review the registrar’s decision. The creditor’s petition was filed in the Federal Magistrates Court on 24 November 2011. It was first returnable before a registrar on 15 December 2011. On that occasion it was adjourned to the federal magistrate’s docket on 20 February 2012. On 20 February 2012 the federal magistrate made timetabling orders including an order fixing the hearing of the petition for 8 May 2012. The hearing fixed for 8 May 2012 was vacated at Ms Flint’s request, who cited ill health amongst other reasons. On the same occasion the matter was relisted for 13 June 2012. On 13 June 2012 the hearing was again adjourned at Ms Flint’s request, this time to enable her to instruct Sydney solicitors, after her previous lawyers had apparently indicated their intention to withdraw. On 29 August 2012 the federal magistrate made the following order: Written submissions of no more than 3 pages, for both CAG20/2011 and CAG61/2011, be filed by the respondent within 21 days. The matter will then be determined in Chambers based on the Affidavit material and Submissions of each party. CAG20/2011 was the review application. CAG61/2011 the creditor’s petition. It seems that the federal magistrate’s intention was to determine both the review application and what I gather was a further application by Ms Flint to adjourn the hearing of the creditor’s petition. Submissions were not forthcoming until 28 September 2012 at which time Ms Flint sought additional time to “properly instruct a legal adviser”. The federal magistrate did not deliver his judgment until 7 December 2012. In the meantime two important events occurred. First, on 22 October 2012 the solicitors for the petitioning creditor wrote to the federal magistrate’s associate. In that letter they noted that they had not received any submissions from Ms Flint in accordance with the 29 August order and sought confirmation that she had made no further submissions since they had served theirs. They also inquired as to whether it might be appropriate for the matter to be relisted for the purpose of “bringing down that decision, and discussing the question of costs (if they should apply)”. The letter concluded as follows.Undoubtedly his Honour is aware, a petition for the bankruptcy of Ms Flint, was stayed as a result of her application to review. The writer is concerned with time running, to the extent that it has that the validity of both the original bankruptcy notice and the petition which relies upon the bankruptcy, is maintained.Thank you for your assistance with regard to these issues.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The time in which to appeal the sequestration order expired on 28 June 2013. No appeal was lodged. But by application filed on 30 July 2013, Ms Flint sought an extension of time in which to appeal. The application was supported by an affidavit sworn by Ms Flint on 29 July 2013. In substance the point Ms Flint wants to agitate on appeal is that the federal magistrate had no power to extend the creditor’s petition after it had lapsed and therefore the primary judge had no power to make the sequestration order. The decision below The primary judge held that he was bound by the judgment of the Full Court in Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 (“Griffiths”) to accept that the slip rule was available in an appropriate case to support an extension of a creditor’s petition after it had expired and that this case fell squarely within the circumstances which the Full Court considered would attract the operation of the rule. His Honour considered that the failure on the part of the petitioning creditor to ensure that the federal magistrate covered the question of the expiration of the petition in the orders of 29 August 2013 is properly characterised as an accidental slip or omission which attracts the operation of the slip rule. His Honour said that, had the federal magistrate’s attention been drawn specifically to the impending expiration of the petition, he undoubtedly would have extended it on that day. He said this was so because the need for an extension arose from the multiple applications Ms Flint had made to have the bankruptcy notice set aside, a course she was still pursuing in August 2012. As a result he rejected Ms Flint’s argument. The application to extend time A notice of appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made: Federal Court Rules 2011 (Cth) r 36.03. The application to extend the time to appeal was therefore brought just over a month after the notice of appeal should have been filed.The explanation for the delay In her affidavit in support of the application Ms Flint states that she has been advised by counsel (Mr J T Johnson), who appeared for her at the hearing before me, that the appeal has reasonable prospects of success. She said that the reason the appeal was not filed within the prescribed time was that she was “taking advice as to the filing of the appeal”.Background This matter has a long and sorry history. It began with Ms Flint’s refusal to pay legal fees of less than $6,000. With interest on the judgment debts and legal costs the evidence suggests that she now owes the petitioning creditor at least ten times that amount. The relevant history appears in the federal magistrate’s judgment in Flint v Richard Busuttil & Co Pty Ltd; Richard Busuttil & Co Pty Ltd v Flint [2012] FMCA 1158 and to some extent in the primary judge’s reasons. It is unnecessary to repeat that history here but it is important to put the present application into context so some reference to the background is required.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.