Powell, V.G. v Official Trustee in Bankruptcy

Re: VINCENT GERALD POWELL
And: OFFICIAL TRUSTEE IN BANKRUPTCY
No. T G9 of 1990
FED No. 573
Bankruptcy
96 ALR 607
26 FCR 444

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Beaumont(2) and Hill(2) JJ.

CATCHWORDS

Bankruptcy - Discharge of bankrupt - Discharge by effluxion of time - Power conferred by Bankruptcy Act 1966 s.149(8) not exercisable for the purpose merely of enabling application under s.149(12) to be heard and determined - No other power available for that purpose.

Bankruptcy Act 1966, s.149

Re Moore; Ex parte Nominal Defendant (1985) 61 ALR 217

HEARING

MELBOURNE

#DATE 15:10:1990

Counsel and Solicitors Mr R Browne instructed by
for Appellant: Messrs James Crotty

Counsel and Solicitors Mr C Brown instructed by
for Respondent: Australian Government Solicitor

JUDGE1

The questions raised in this appeal and the circumstances relevant to the determination of those questions are disclosed in the reasons for judgment of Beaumont and Hill JJ., which I have had the advantage of reading.

In my opinion the power conferred by s.149(8) of the Bankruptcy Act 1966 is not enlivened merely by proof that a bona fide application for an order of the kind which s.149(12) authorises is pending and cannot be heard and determined before the expiration of 5 years from the date of the bankruptcy, and before the discharge from bankruptcy which the operation of the section would effect. That is because, in my opinion, that power is not enlivened unless and until the Court has obeyed the command expressed by s.149(10). The legislative context in which that command is set in my opinion requires that it be understood as directing that the prescribed matters be taken into account by receiving into evidence and considering what the applicant and the bankrupt relevantly adduce in respect of those matters : see ss. 27, 30, 31(1)(ba). It is perhaps not entirely clear whether in this case the learned judge considered the evidence relevant to those matters which was contained in the affidavits which had been filed on behalf of the respondent. It is quite clear that what he said during the hearing on 26 April 1990 prevented adduction of evidence relevant to those matters by the appellant. Accordingly in my opinion the order against which appeal is brought was not one for which s.149(8) provided authority.
If the foregoing opinion be correct, it is unnecessary that I express an opinion whether there may be circumstances in which, contrary to the opinion expressed by Beaumont and Hill JJ., it would be within the power of, and appropriate for, the Court to invoke s.149(8) merely for the purpose of achieving an interim extension of the period of the bankruptcy pending the final hearing of an application under s.149(12). But the question may be thought of some importance, and it was the subject of argument on the hearing of the appeal. But for one consideration I would be of the opinion that the power conferred by s.149(8) might in certain circumstances be properly exercised merely for the purpose of preventing discharge by operation of the section until an application under s.149(12) could be heard and determined. The consideration which gives me pause is that ss. 149 and 150 seem to indicate a legislative assumption or understanding that discharge from bankruptcy sooner rather than later will be, or will be thought by the bankrupt to be, in the bankrupt's interest, and that prolongation of the period of bankruptcy will be, or will be thought by the bankrupt to be, contrary to that interest. On that assumption both an order under s.149(12), or at least one not made a substantial time before the time at which discharge by operation of s.149 is expected, and an order under s.149(8) are to be regarded as contrary to the bankrupt's interest. So regarded, each such an order must find its justification in considerations which outweigh the regard which ought to be paid to that interest of the bankrupt in curtailment of the period of the bankruptcy. The scheme of the very detailed provisions for curial and administrative control of that period is to define not only the several powers by the exercise of which the period may be varied from the general period fixed by s.149(1), but also the time within which each power may be exercised. From those circumstances something of a presumption arises that the exercise of one power would not be available to alter the time fixed for the exercise of another power. The strength of the presumption will be augmented - perhaps, it may be said, the very existence of the presumption is established - by the circumstance that the exercise of the powers conferred to prolong the period of bankruptcy is conceived to be prejudicial to the interest of the bankrupt. If, for example, considerations other than facilitation of the exercise of the power conferred by s.149(12) would justify an extension under s.149(8) of no more than 6 months, an order for an extension of 12 months to enable an application under s.149(12) to be heard and determined could be said to override, to the extent of the further six months, the bankrupt's assumed interest for no better reason than that it might thereafter appear, on the hearing and determination of the application under s.149(12), that an order under the latter sub-section ought to be made. Those are the considerations which incline me to agree with Beaumont and Hill JJ. If it were right to think the bankrupt indifferent as to the period of his bankruptcy, or to think that the legislative intention was that the bankrupt's interest in curtailment of that period was to be disregarded, I could find no other reason why the power conferred by s.149(8) could not, or ought not in a proper case, be exercised for the purpose of enabling consideration to be given to an application under s.149(12). The command expressed in s.149(10) is not that the Court take into account only the matters prescribed for the purposes of that sub-section. No other criterion by reference to which exercise of the power conferred by s.149(8) might be influenced is expressly stated. It is in my opinion consonant with the purposes which it may be inferred that ss. 149 and 150 are designed to serve that what may be called the undiscriminating operation to discharge from bankruptcy of s.149 should be subject to discretionary curial intervention for as long as the language of s.149(8) permits. I express no concluded opinion on the point.
I agree in the opinion which the other two members of the Court have expressed that no power, other than one conferred by a provision in s.149, was available to the Court on 26 April 1990 to make an order preventing the operation of s.149(14) to discharge the appellant from his bankruptcy on 6 May 1990. That is because ss. 149, 150 and 151 manifest, in my opinion, a clear legislative intention that the only sources of such a power should be those contained in those three sections.
I agree in the orders proposed by Beaumont and Hill JJ.

JUDGE2

On 6 May 1985, a sequestration order was made in respect of the estate of the appellant, Vincent Gerald Powell ("the bankrupt"). On 25 June 1986, the Official Receiver, acting on behalf of the respondent, the Official Trustee in Bankruptcy ("the trustee"), entered an objection ("the objection") to the discharge of the bankrupt pursuant to s.149(3)(c) of the Bankruptcy Act 1966 ("the Act"). By virtue of s.149(3)(c), the objection would have lapsed on 16 May 1990. However, on 26 April 1990, a Judge of the Court ordered that the period at the expiration of which the objection would lapse be extended until 31 December 1990. The bankrupt, by leave, now appeals from this order.

In order to understand the context in which the present appeal arises, an explanation of the relevant statutory scheme is necessary.
The statutory scheme
For present purposes, the relevant provisions of the Act, are found in Part VII of the Act. They are s.149, which deals with discharge from bankruptcy by operation of law, and s.150, which deals with discharge by the Court.
By s.149(1), it is provided that, subject to the other provisions of s.149, a person who becomes a bankrupt is, by force of s.149, unless sooner discharged in accordance with s.150, discharged from bankruptcy upon the expiration of three years from the date of the bankruptcy. By s.150, a bankrupt may apply to the Court at any time for an order of discharge.
The other provisions of s.149 are as follows. By s.149(3) it is provided that a bankrupt is not discharged from bankruptcy by virtue of s.149, inter alia, if the trustee has, with the leave of the Court, entered an objection to the discharge of the bankrupt by force of s.149 and the objection has not been withdrawn or lapsed (see s.149(3)(c)); or if an order of the Court under s.149(12) is in force (see s.149(3)(d)).
An objection shall not be entered under s.149(3)(c) otherwise than on one or more of certain specified grounds. These grounds include prejudice to the administration of the bankrupt's estate, the failure of the bankrupt to co-operate in the administration of his estate and unsatisfactory conduct by the bankrupt (see s.149(4)). Subject to s.149(11), an objection entered under s.149(3)(c) lapses at the expiration of (a) the period of five years from the date of the bankruptcy; or (b) if the Court makes an order under s.149(8), the period fixed by the order (see s.149(7)).
By s.149(8) it is provided that the Court may, at any time before the expiration of five years from the date of the bankruptcy, on the application of, inter alia, the trustee, order that the period at the expiration of which an objection entered under s.149(3)(c) will lapse be such period, being a period exceeding five years, commencing on the date of the bankruptcy as is specified in the order. In deciding whether to make an order under s.149(8), the Court shall take into account such matters (if any) as are prescribed for this purpose (see s.149(10)). By r.5lA of the Bankruptcy Rules, particular matters, including the conduct of a bankrupt in certain respects, are prescribed for the purposes of s.149(10) and (13).
An objection to the discharge of a bankrupt, unless sooner withdrawn, lapses upon the discharge of the bankrupt under s.150 (see s.149(11)).
The Court may, at any time before the discharge of the bankrupt, on the application of, inter alia, the trustee, direct that the bankrupt shall not be discharged from bankruptcy by virtue of s.149 (see s.149(12)). In deciding whether to make an order under s.149(12) the Court shall take into account such matters (if any) as are prescribed (see s.149(13)). Reference has already been made to r.51A.
In certain circumstances, a bankrupt is discharged from bankruptcy upon the withdrawal or lapsing of an objection (see s.149(14)).
It follows that under s.149 the Court has the following powers: (1) pursuant to s. 149(8), the Court may, at any time before the expiration of five years from the date of the bankruptcy, order that the period at the expiration of which an objection entered under s.149(3)(c) will lapse be such period, being a period exceeding five years, commencing on the date of the bankruptcy as is specified in the order; and (2) pursuant to s.149(12), the Court may, at any time before the discharge of a bankrupt, direct that the bankrupt shall not be discharged from bankruptcy by virtue of s.149.
The application made under s.149(12)
By his application dated 4 April 1990, the Acting Official Receiver, acting on behalf of the trustee, applied to the Court for the following orders:

"1. That pursuant to sub-section 149(12) of the Act the bankrupt shall not be discharged from bankruptcy.

2. For such further or other orders as the Court thinks fit."

The application was returnable at the Federal Court in Hobart on 26 April 1990. In the application, it was stated that, on the hearing, the Acting Official Receiver intended to use the affidavits of four deponents then named. It was further stated that it was intended to refer to the report filed under s.19 of the Act, public examination transcripts and all other documents filed with the Registrar.
The bankrupt was served with the application on 10 April 1990.
On 26 April 1990, the matter was dealt with by a Judge of the Court in Melbourne by a telephone conference with the legal representatives of the parties, some of whom were in Hobart and one of whom was in Launceston. The matter was listed for a directions hearing on that day. The directions hearing was listed on the Court notice board to be dealt with in a court room in the Court's premises in Hobart. Present in the court room were the Deputy Registrar, Mr Slicer, who appeared for the trustee, Mr Griffiths, who appeared for Carol Roseanne Powell, the wife of the bankrupt, and herself a bankrupt, and officers of the Commonwealth Reporting Service. Present in Launceston was Mr Crotty, who appeared for the bankrupt. As has been said, the proceedings were conducted by the method of a telephone conference. It is common ground that the court room in Hobart was open to any member of the public and that a member of the public present in the court room during the hearing could hear the proceedings. It is necessary to mention these matters in order to appreciate the significance of a submission put on behalf of the bankrupt in the appeal, to be mentioned later, that the proceedings were conducted contrary to the provisions of the Act which require that certain of the jurisdiction conferred by s.149 of the Act be exercised in open court rather than in chambers (see s.31(1)(ba)).
The hearing on 26 April 1990
The course of the hearing on 26 April 1990, was as follows.
In the first instance, Mr Slicer, appearing for the trustee, informed the Judge that the application was made pursuant to s.149(12) to oppose the discharge of the bankrupt, but that, because of the time constraints that day, Mr Slicer wished to apply for an order pursuant to s.149(8). (It appears that, on the previous day, 25 April 1990, Mr Slicer informed the legal representatives of the bankrupt and of his wife that, at the hearing on 26 April, an application would be made under s.149(8)). Mr Slicer referred to the decision of Re Karounos; Ex parte Official Trustee in Bankruptcy (1989) 89 ALR 580 in which Sheppard J. held that there was no power to make an order under s.149(8) for an indefinite period. Mr Slicer said that an order under s.149(8) had to be made within five years from the date of bankruptcy, and if the Judge made an order under that provision in respect of a short period, the application under s.149(12) may not be able to be finally determined within the period of the operation of the order under s.149(8) and it was arguable that the Court did not have the power to grant a further extension of time under that provision. Mr Slicer then indicated that he was seeking an extension of time until the end of 1990 "to take into account any unforeseen causes for the matter not being determined." The Judge then asked Mr Slicer whether he sought an order under s.149(8) to hold the status quo pending the determination of the application under s.149(12). Mr Slicer confirmed that this was so.
The Judge then asked Mr Slicer to indicate his grounds for seeking an order under either s.149(8) or s. 149(12). Mr Slicer said that he relied on certain alleged conduct of the bankrupt, which he then described in a summary way, and which, it was said, fell within s.149(10) and (13) and r.51A. Mr. Slicer referred briefly to the affidavit evidence filed in support of the application.
At this stage, Mr. Griffiths, appearing for the bankrupt's wife, submitted that "there were several matters with respect to those affidavits...which...(were) not properly put before (the Judge) at (that) time." The Judge said: "Yes that will be a matter which I will need to consider when I am hearing the application itself." Mr Griffiths then referred to r.51A. The Judge said that this rule applied to any final order that might be made, but that the Court was "dealing with what might be said to be almost interlocutory matters to maintain a status quo pending the hearing of an application in detail." Mr Griffiths said that s.149 did not seem to make provision for this. The Judge said that the Court had at least an implied power. Mr Griffiths said that s.149(8), as well as s.149(12), required the Court to be satisfied of the matters prescribed by r.51A and that there was no "short cut" available in the form of an interlocutory hearing to maintain the status quo. The Judge ruled against Mr Griffiths on this point.
Mr Griffiths then argued that some of the material in the trustee's affidavits was inadmissible as against his client, even if admissible against the bankrupt. Mr Griffiths also indicated that he wished to cross-examine the deponents and that, unless he could do this, it was inappropriate for the Court to take into account what was in the affidavits. The Judge said that he did not need to be satisfied, at that stage, of the material in the affidavits, in order to make a temporary order under s.149(8) to maintain the status quo pending the full examination of the matter under s.149(12).
Mr. Slicer next read the affidavits on which he relied as against the bankrupt and against his wife.
The Judge, Mr. Slicer and Mr Griffiths then discussed possible directions which might be given, presumably in connection with the application under s.149(12), with respect to discovery, interrogatories and the filing of grounds of opposition and affidavit evidence.
The Judge next mentioned the inherent jurisdiction of the Court and its incidental powers. He referred to Parsons v. Martin (1984) 5 FCR 235 at pp 240-1.
The following discussion then took place:

"HIS HONOUR: Mr Crotty, for this power, you have heard what has been said so far, is there anything additional you want to raise at all?

MR CROTTY: Yes, if it please, your Honour. Firstly, I question once again on behalf of Mr Powell, whether or not this is actually a hearing under section 149(8) or whether or not this is a hearing under some sort of inherent or incidental power of the court? HIS HONOUR: The hearing under section 149 subsection

(12) hearing application (sic). In the course of that the counsel for the applicant is seeking an order under 149(8) to enable the court to decide the matter without any jurisdiction being lost by the approximate time of 6 May 1990.

...

HIS HONOUR: So any order I will make at the moment will be under 149(8) giving an extension of time for some defined period. I will then give directions under 149(12) for the filing of the affidavit to enable that application to be heard and determined within the said period, the time I specify under 149(8). MR CROTTY: Yes, if it please, your Honour. Submission on behalf of Mr Powell is that a hearing should be had under section 149(8) before the expiration of five years from the date of sequestration. Further submission is that there is no power to extend time other than on the basis of a determination which takes into account the considerations of...rule 51A which are properly had. So I just note that objection, your Honour.

...

HIS HONOUR: Yes, I note the objection. I reject those submissions and I propose to make the order under 149(8) for some period of time to enable me then to - the court then to consider the application under 149(12)..."

Later, this was said:

"HIS HONOUR: ...So how long should there be under 149(8) to enable all this to be done, a hearing to take place, a judgment to be given?

MR SLICER: Well, my application, your Honour, is that the order lasts until the end of 1990... HIS HONOUR: Yes, if you specify a period and I will consider whether it is appropriate or not. MR SLICER: 31 December 1990, your Honour. HIS HONOUR: 31 December. Yes. Mr Griffiths, anything about that date?

MR GRIFFITHS: In my submission that is far too long to be appropriately ordered, your Honour. Many of the matters which are raised now for your consideration and the affidavit evidence before you, are matters which go back many years. Mr Slicer mentioned, for example, that travelling overseas whilst bankrupt, that occurred five years ago. These matters have been available to be taken up by the Official Receiver during the last two years since the three years elapsed and the second subsequent years have continued.

The Official Receiver has seen fit to leave it until the eleventh hour to make this application. In my submission, it is not appropriate that there be an extension based upon the inherent or incidental power for the rest of this year simply because of the delay of the Official Receiver when indeed the matter might well be disposed of well before the end of this year. HIS HONOUR: Yes. If it is exposed - dealt with before that time, served directly to the debtors, it has not got power then to rescind or vary this order? MR GRIFFITHS: I suspect that is the case without looking at it, your Honour, but what troubles me, of course, is that if there is that much time given, the Official Receiver who, with great respect to him, has not been exactly quick off the mark to date. He is not going to have a great deal of enthusiasm but perhaps - about being much faster for the rest of the year since he will have all that time within which to get the matter resolved.

HIS HONOUR: Yes. Thank you. Anything further? Mr Crotty? ...

MR CROTTY: If it please, your Honour, I would support the submissions of Mr Griffiths and have nothing to add.

HIS HONOUR: Thank you. I propose to make the order under section 149 subsection (8) to extend the period under section 149(8) at the expiration of which an objection - the objection is lodged under paragraph 149(3)(c)... 31 December 1990 and I note that that order is made on the material presently before the court to enable the hearing and determination of the application which has been brought under section 149 subsection (12) of the Bankruptcy Act."

The Judge next gave certain directions with respect to the matters previously discussed, presumably in connection with the proceedings under s.149(12). The s.149(12) matter was stood over to 25 June 1990 for further directions. The hearing then concluded.
The terms of the order
The order, as taken out, was in these terms:

"The period under Section 149(8) at the expiration of which the objection lodged under paragraph 149(3)(c) of the Bankruptcy Act 1966 will lapse be extended until 31 December 1990."

As has been said, the bankrupt, by leave, now appeals from this order.
The grounds for the appeal
The submissions put on behalf of the bankrupt in support of his appeal were as follows:
(1) There is no provision in the Act which allows an extension of the period of bankruptcy pending the hearing of the substantial application. A hearing ought to have been held before the court made an order under s.149(8). Section 31(1)(ba) provides that a court shall hear and determine an application pursuant to s.149(8) or (12) in open Court. Compliance with s.31(1)(ba) is mandatory.
(2) There was no hearing. A submission made by counsel for the bankrupt that a hearing be held was rejected. There was no opportunity for the bankrupt to present his case, cross-examine witnesses or take objections to evidence. He was effectively denied natural justice.
(3) There was delay on the part of the trustee in bringing the application. The bankrupt has been deprived of a right to a hearing by virtue of that delay. Given that no limit is prescribed upon the power to extend the bankruptcy under s.149(8), great injustice could be done by extending the period - conceivably for years - without a hearing and determination upon the merits.
(4) His Honour erred in law in holding both that the application related to "interlocutory matters to maintain a status quo pending a hearing of an application in detail" and that the Court had an inherent jurisdiction, and an incidental and implied power, to make such orders. His Honour apparently took this course as there was insufficient time to determine the application pursuant to s.149(12). In any event, such determination would have been impossible as the directions hearing was by telephone spread over 3 cities.
(5) For the same reason that an order could not be made on the day under s.149(12) i.e. without a hearing, an order could not be made under s.149(8). In respect of both applications the court is bound to take into account the matters prescribed by r.51A pursuant to ss.149(10) and (13).
(6) The Court has inherent powers, but these are limited to the court's regulation of its own proceedings and to protecting itself from contempts and the like. The present case does not involve the regulation of proceedings. It involves the extension of a bankruptcy beyond the date of discharge. If a further jurisdiction is to be found, it can only be conferred by implication according to accepted standards of statutory construction.
(7) Section 30(1)(b) of the Bankruptcy Act will not remedy the deficiency.
(8) His Honour erred in failing to deal properly, or at all, with objections to the affidavit evidence relied upon by the trustee. His Honour failed to take into account the matters prescribed by r.51A.
In our opinion, there is considerable force in these submissions, at least so far as they challenge the jurisdiction or power of the Court to grant the extension in the circumstances. With respect, we are of the opinion that it was not appropriate, in the circumstances, to make the order.
It will be convenient to consider first the questions which arise with respect to jurisdiction or power.
1. The first question on the appeal: The source of the Judge's jurisdiction to make the order
As has been noted, the application filed on 4 April 1990 sought first, an order under s.149(12) and, secondly, such other order as might be appropriate. However, as has been seen, at the commencement of the hearing on 26 April 1990, counsel for the trustee indicated that he was seeking an order pursuant to s.149(8) rather than proceeding then under s.149(12). During the course of the hearing, the Judge referred to the Court's implied jurisdiction to make an interim order to preserve the status quo pending the final hearing of the application under s.149(12). It is clear that the Judge was not then embarking upon a final hearing of any kind. His Honour's expressed view was that, because the statutory five year period was about to expire, the matter should be treated as urgent and dealt with on a limited, interlocutory footing only. Consequently, there were restrictions imposed on the parties in the presentation of their respective cases.
(a) Section 149(8): A free-standing provision?
The learned Judge was of the view that the provisions of s.149(8) could be used in aid of s.149(12), by holding the status quo pending the final hearing of an application under s.149(12). With respect, we cannot agree that s.149(8) can be used for this purpose. In our opinion, as a matter of statutory construction, s.149(8) is intended to be a free-standing provision which has its own operation, independently of the operation of s.149(12). Put differently, in our view, s.149(8) and s.149(12) offer alternatives and cannot be used, as here, cumulatively. Whether it is appropriate to make an order under one or other provision will depend upon the circumstances of the case. But, in our view, it was not appropriate to invoke s.149(8) merely for the purpose of achieving an interim extension of the period of the bankruptcy pending the final hearing of an application under s.149(12). We do not think that s.149(8) was intended to be used to support s.149(12) in this way.
Reference should be made to the decision of Pincus J. in Re Moore; Ex parte Nominal Defendant (1985) 61 ALR 217. The facts and decision are summarised in the headnote in that case as follows:

"The bankrupt, by virtue of s.149(1) of the Bankruptcy Act 1966 (Cth) would have been discharged ordinarily on 1 July 1985. An application seeking leave to enter an objection to the discharge was served on the bankrupt on 26 June 1985 and the bankrupt was advised by the solicitor for the applicant that the application would be adjourned for two weeks. The bankrupt did not appear on the return of the application and the applicant sought the adjournment to a date beyond the date that the discharge would occur and sought interim relief.

Held: In dismissing the application for interim relief and the application for leave to enter an objection: There is no provision in the Bankruptcy Act 1966 (Cth) which permits the making of an order extending the period of bankruptcy for a short time, pending the hearing of an application for leave to enter an objection.

Section 149(12) cannot be applied in such a way as to achieve a temporary suspension of the operation of s.149(1) nor can s.149(1) be read as subject to a power to extend the period of bankruptcy for a short or long time under s.30(1)(b)."

In his reasons, Pincus J. said (at p 218):

"I have noted that Toohey J. had a superficially similar matter before him in the case of Re Mercovich (unreported, 27 May 1985) where a holding order had been made by the Supreme Court extending beyond five years the period when objection would expire, to enable the hearing of a substantive application. However, in that case, advantage was able to be taken of the fact that there was an objection from the Official Receiver and it was possible to extend that under s.149(8) so as to preserve the position. In this case, there is no objection entered, and, in any event, s.149(8) does not help for the reason I have already mentioned."

It appears from the report of the decision of the Full Court in Mercovich's Case (Vanguard Service Print v Merovich) (1985) 10 FCR 32 at p 33, that orders were made from time to time under s.149(8), but they were made by consent.
As has been noted, in Karounos, above, Sheppard J. held that the word "period" in s.149(8) means a specified division or portion of time. Speaking of s.149(8), Sheppard J. said (at p 587):

"...I think that the intention was that the extension contemplated by the sub-section was to be for a finite period of time, that is to say, a period of months or of years. This would itself operate as an encouragement to an applicant under s.149(12) and to the court itself to dispose of such an application with a degree of expedition. That is something which the Act, by implication, recognises as essential, again bearing in mind the nature of what is involved, namely, the status of persons who are made bankrupt. The unfortunate history of this matter is an illustration of what may happen if matters are left open-ended."

We do not think that, in this passage, Sheppard J. was deciding that s.149(8) could be used merely in aid of s.149(12) in the way that was done in the present case. Rather we believe that his Honour is explaining how, if it can be justified in the first place, an order made under s.149(8) for a specified period may create a situation which enables a subsequent application to be made under s.149(12). But, as has been emphasised, it must be shown, in the first place, that an order under s.149(8) was warranted, having regard to the relevant circumstances prescribed in r.51A. It is a different thing to seek to use s.149(8) merely for the purpose of keeping alive an application under s.149(12).
It follows, in our opinion, that although s.149(8) confers upon the Court a power to extend the period of the bankruptcy, it was not appropriate to use that provision merely to maintain the status quo pending the conclusion of other proceedings under s.149(12). No doubt, where an order is sought and granted under s.149(8) after regard is had to the relevant circumstances prescribed in s.51A, the effect of that order extending the period in a particular case may be to maintain the status quo pending the making of an order under s.149(12). But that is not to the point.
(b) Section 149(12)
It is plain that the learned Judge did not purport to exercise any power available under s.149(12).
(c) The implied or inherent powers of the Court and the power conferred by s.30(1) of the Act
In our view, it was not appropriate for the implied or inherent powers of the Court (see Jackson v. Sterling Industries Limited (1987) 162 CLR 612) or the power conferred by s.30(1) of the Act, to be exercised for the purpose of extending the period of the bankruptcy. As has been said, s.149(8) and s.149(12) provide two possible alternative ways of extending the term of the bankruptcy. But, for present purposes, together they constitute a code in this area. It was not open to the Court to extend time except by reference to the powers conferred by either s.149(8) or s.149(12) as the only two possible sources of the Court's jurisdiction. It is, of course, a different question whether it was appropriate to exercise either of those powers in this case.
2. The second question on the appeal: Did the learned Judge have jurisdiction to make the order extending time?
It follows from what has been said that, in our view, there was no jurisdiction available to justify the making of the order (1) under s.149(8) or s.149(12), or (2) under any implied or inherent power, or (3) under any power conferred by s.30(1). It further follows, in our view, that the order made should be set aside as beyond power.
3. The other grounds of appeal
In the circumstances, it is not necessary to deal with the other grounds of appeal.
4. Result of the appeal
In the result, we propose that the appeal be allowed, with costs, and that the order extending the period of the objection be set aside.
5. The pending application under s.149(12)
We were informed, in the course of argument, that the application for an order under s.149(12) has not yet been dealt with. We express no opinion on the question whether the Court still has jurisdiction to entertain that application and to make an order under that provision.

[1990] FCA 573

15 OCTOBER 1990