In the Matter of Margaret Jackson Deputy Commissioner of Taxation v Jackson, Margaret

[1998] FCA 590

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7553 of 1997

IN THE MATTER OF: MARGARET JACKSON

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION APPLICANT
AND:	MARGARET JACKSON RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	21 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

In this matter a Notice of Motion was filed in the Federal Court on 8 May 1998.  The motion sought an order that the period at the expiration of which the petition will lapse should be a period of 24 months from the date of presentation of the petition, namely, 14 May 1997. 

The power conferred by the Bankruptcy Act 1966 (Cth) (“the Act”), which is relied on by the applicant, the Deputy Commissioner of Taxation, is s 52(5) of the Act as amended. That subsection provides as follows:

“52(5) [Extension]  The Court may, at any time before the expiration of the period, of 12 months commencing on the date of presentation of a creditors 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.”

On a literal reading of that provision, it would appear that the power arises only if it is exercised before the expiration of the period of 12 months commencing from the date of presentation.  In the present case, the return date of 14 May 1998 was one day outside that period.

In support of the application for extension, Mr Shirvington, who appears for the Commissioner, has referred to a judgment of Burchett J in Re Gordon Raymond Howell ex parte Deputy Commissioner of Taxation, (unreported, 14 November 1996).  In that case, his Honour held that the Court has inherent power in the nature of the "slip rule" to extend time in cases where justice and fairness so require and where non compliance arises as a result of inadvertence, which in all the circumstances ought reasonably and fairly be excused.

In the course of his judgment, his Honour referred to the decision of the Full Court in Elyard Corporation Pty Limited v DDB Needham Sydney Pty Limited (1995) 133 ALR 206 in which the Court applied the slip rule. That decision, as his Honour pointed out, was not one made under the Act. Nevertheless, it was a decision on the principles which underlie the slip rule and the cases which were directly in point were decisions under the Act. His Honour refers to these authorities on the second page of his judgment. The Court was unanimous in its decision in that case. It should be added, however, that the decision related to the slip rule contained in O 35, r 7(3) which provides, par(3):

“A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court.”

In the present case, of course, we are not concerned with an error or a slip arising as a result of a mistake in an order of the Court or an omission occurring by way of accident or slip.  However, the underlying principle is that where it is obvious and apparent that a technical mistake has been made of a relatively minor nature, it may in an appropriate case be fair and just to extend time in order to give effect to the scheme of the legislation.

In the present case, I am satisfied that the error arose because of a miscalculation of one day in relation to the period from the date of the petition and that had an application been made returnable for the previous day and an order made on that day, there is no reason as to why such an extension should not be granted.  Accordingly, I consider that the Court has the necessary power to extend the time as a matter of inherent jurisdiction.  I am further satisfied that in the circumstances of the present case, it is fair and reasonable to do so in order to give effect to the intention of the scheme set out in the legislation.

For these reasons, I grant the notice of motion and I make no order as to costs.  The order which I make is that the period at the expiration of which the petition in this matter will elapse will be a period of 24 months from the date of presentation, namely the 14 May 1997. 

I should add that on the hearing before me today there was no appearance for the respondent debtor.  However, I note that when the matter came on for hearing before Registrar Quinn on 14 May 1998, an order was made that the notice of motion be adjourned until this morning and that the usual order was made in respect of notification to the respondent debtor of the details of time, date and place of the adjournment hearing. 

An affidavit has been filed by Mr Shirvington, which indicates that a letter was sent to the address of the respondent at Warwick Farm on 14 May 1998, referring to the proceedings and setting out a copy of the notice of motion.  There has been no response to that letter, and I am satisfied that in the circumstances it is fair and reasonable to proceed to consider the application in the absence of the respondent.  It seems to me the issue is a narrow one;  the omission was inadvertent and understandable in the circumstances, and for this reason I have proceeded to make orders this morning.

I also direct that the Order in this matter be served on the respondent by post within a period of 14 days from the date hereof.  The Order is to be served by sending in the post a copy addressed to the respondent at the last known address on the record.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            21 May 1998

Solicitor for the Applicant:	Mr Tony Shirvington Australian Government Solicitor
Date of Hearing:	21 May 1998
Date of Judgment:	21 May 1998