Re Uratoriu, L.

[1989] FCA 676

67bW %

3U,DGlvlENT No. ........ ........ W,. U,

IN THE FEDERAL COURT	)	LIMITED DISTRIBUTION
OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT	)
OF THE STATE OF	)
WESTERN AUSTRALIA	)	NO. P562 OF 1987 RE: LUCIANO URATORIU

Debtor

EX PARTE: M.S. McLEOD LIMITED

Creditor

MINUTE OF ORDER

JUDGE MAKING ORDER: LEE J.

DATE OF ORDER:	17 JULY 1989
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The order of 15 March 1989 in this matter be amended to read that the petition be extended to 27 July 1989.

Note:  Settlement and entry of orders is dealt with in
Rule 124 of the Bankruptcy Rules.

2 8 BUG l989
FEDERAL COURT OF

AUSTRALIA

, ---

'. . .>

IN THE FEDERAL COURT	LIMITED DISTRIBUTION
OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF
WESTERN AUSTRALIA	NO. P562 OF 1987 RE: LUCIANO URATORIU

Debtor

EX PARTE: M.S. MCLEOD LIMITED

Creditor

CORAM: LEE J.

DATE : 17 JULY 1989

EX TEMPORE REASONS FOR JUDGMENT

In a previous judgment in this matter (Re: Luciano

Uratoriu; Ex parte M.S. McLeod Limited, Unreported (15 June 1989),

I recounted the history of this matter and I need not repeat that

history now. It is sufficient to note that on 15 June 1989 I made an order that the petition be listed for hearing on 28 June 1989. The solicitors for the parties apparently requested that that listing be vacated and the matter was not called on that day. No

order had been made by the Court to vacate the hearing date.	I
have directed that the matter be relisted.

On 15 March 1989 I made an order extending the currency of the creditor's petition, ostensibly to the limit of the period of extension available under the Bankruptcy Act 1966 ("the Act"). The Court was informed that the petition had been presented on 17 July 1987 and the date of extension inserted in the order was 16 July 1989. The petition, therefore, apparently expired yesterday. In fact, the petition was presented on 28 July 1987.

Counsel for the petitioning creditor, however, has

submitted that:

(i) an application for an extension of the petition may be made today as the date on which the petition was expressed to expire fell on a Sunday. Rule 202(2) of the Bankruptcy Rules Ls cited in support of this submission; or alternatively, sub-s.36(2) of the Acts Interpretation Act 1901; or alternatively,

(ii) in any event, on 15 March 1989 it was the Court's intention to extend the life of the petition to the day upon which the period of two years from the date of presentation of the petition would elapse. It was, therefore, open to the Court to invoke the slip rule and to correct the order of 15 March 1989 to reflect the Court's intention that the life of the petition be extended to 27 July 1989.

In view of the exigencies of time in this matter, there is no point me reserving to look at the matter further. No doubt Mr Bruns would consider that he could mount a more detailed argument given time, and perhaps give further assistance. I think, however, that the opportunity I have had to consider the submissions of counsel at the bar table has assisted in clarifying the issues to a stage where I feel I can, and should, make a decision.

I indicated in argument to counsel for the petitioning creditor that, in my opinion, r.202(2) of the Bankruptcy Rules and sub-s.36(2) of the Acts Interpretation Act 1901 had no application to these circumstances. Rule 202 reads as follows:

"202(1) Where, in these Rules, a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of that day or of the day of that act or event.

202(2) Where the last day of a period during which an act may be done or a proceeding taken falls on -

(a) a Saturday or a Sunday;

(b) a day that is a public holiday or a bank holiday in the place in which the act is to be or may be done or the proceeding is to be or may be taken; or

(C) any other day on which the office of the Registrar for the District in which the Act is to be or may be done or the proceeding is to be or may be taken is closed,

the act may be done or the proceeding may be taken on the first day following that is not such a day.

202(3) Where -

(a)	a period of time is permitted or allowed under these Rules for the doing of an act or the taking of a proceeding; and
(b)	the period is a period that is less than 5 days,

a Saturday, a Sunday or a day referred to in paragraph (2)(b) or (c) is to be disregarded in calculating the first-mentioned period."

Sub-section 36(2) of the Acts Interpretation Act 1901 reads as follows:

1136.(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place."

In the case of r.202(2), I am of this view because r.202

appears to me to refer to the last day of a period during which an act may be done or a proceeding taken, such period being prescribed or allowed pursuant to the Bankruptcy Rules. The period of currency of a petition is fixed by sub-s.52(4) of the Bankruptcy Act 1966 ("the Act") or by Court order under

Furthermore, sub-ss.52(4) and (5) do not limit the time for doing	sub-s.52(5) and r.202 will not apply to such a period.
an act or thing. The reference to time in those sub-sections is an integral part of the exercise of the Court's power. (See - Re
Young; Ex parte Smith (1985) 5 F.C.R. 204 at pp.208-209. ) For the
same reason, sub-s.36(2) of the Acts Interpretation Act 1901 cannot assist the petitioning creditor.
The principal argument before me was addressed to the petitioning creditor's alternative submission. Counsel for the respondent contended that the effect of sub-ss.52(4) and (5) of the Act, as construed by the Full Court in Re Younq, was that the petition expired yesterday and that the use of the slip rule was no longer available.
Certainly, the question I have to determine now is whether the petition is continuing or whether it has expired. In essence, that issue may be reduced to the simple question, has the Court order been faithfully reflected in the order recorded, and if not is there a power to be exercised by way of a "slip rule" to adjust the recorded order to make it reflect the terms of the intended order.
The Bankruptcy Rules do not contain a rule equivalent to 0.35 r.7(3) of the Federal Court Rules allowing the Court to correct a "clerical mistake in a judgment or order, or an error in a judgment or order from an accidental slip or omission". In my
view, however, this does not mean that the Court has no jurisdiction to correct such errors in bankruptcy matters. In
bankruptcy proceedings, as in all matters before the Court, the Court has an inherent jurisdiction "at any time to correct an error in a decree or order arising from a slip or accidental omission". That power is not lost upon the order in question being formally entered. (See Milson v. Carter [l8931 A.C. 638, cited by thc High Court in Shaddock and Associates Pty. Ltd. v. Parramatta City Council (1983) 151 C.L.R. 591. See also Storey and Keers Pty. Ltd. v. Johnstone (1987) 9 N.S.W.L.R. 446) This jurisdiction in bankruptcy matters has been recognized by Sheppard J. in Streimer v. Tamas (1981) 37 A.L.R. 211, McGregor J. in - Re
Draper; Ex parte Brosalio Pty. Ltd. (1983) 72 F.L.R. 179 at p.188
and by Pincus J. in Re Norman Kingsley Hibbard; Ex parte Playroom Pty. Ltd., Unreported (Federal Court of Australia, 5 December 1988). The slip rule is exercisable where there has been an "error in expressing the manifest intention of the Court" (Supreme Court Practice (1985) Vol. 1, para.20/11/2).
The application of the slip rule power does not depend upon the power being exercised within the period of the erroneously recorded order. It may depend upon it being within the term of the order as intended for the purposes of s.52 of the Act. As I have indicated in my reasons on the motion on which I ruled on 15 June 1989, the power to extend the life of a petition can only be exercised whilst the petition is still on foot.
The exercise of the slip rule by definition is the exercise of a power to make good something that is not properly reflected in the recorded order. The question of whether the slip
rule should be exercised would, however, appear to be academic if the actual period intended to be stipulated by the order in question has already expired. It may be argued that in such circumstances there would be no point in exercising the slip rule.
It is unnecessary to speculate but there may be cases in which it may still be appropriate to correct the order.
In this case it is apparent from the transcript of the proceedings in this matter conducted on 15 March 1989 that it was the clear intention of the Court that the petition survive for the full available period under the Act, namely two years from the date of presentation of the petition. As far as the Court was concerned, the petition was to continue to run for that period. There was a misapprehension that the date which met the terms of the Court's order was 16 July 1989 whereas the actual date was 27 July 1989. The recorded order did not reflect the Court's
intention and the use of an inherent power to amend the order is available to the Court.
A question arises as to the time with which a party should apply to vary the record. In other words, how soon after it is-discovered that the record is incorrect should that party apply to amend the order. The jurisdiction to correct such mistakes being an inherent power, there is no firm guideline or

i
I

expression in relation to delay. All that can be said is that the

I
!	permissible period must be reasonable having regard to all the relevant interests. Hence, where the "rights of third parties have intervened" or where it would be inexpedient or inequitable to correct a previous order, the Court will refuse to exercise that jurisdiction (Supreme Court Practice (1985) Vol. 1, para.20/11/5 and moore v. Buchanan [l9671 1 W.L.R. 1341).

This is a matter on the margin. It cannot be put in any

other way. Having regard to the fact that the intended period of extension is still current and that no conduct is alleged against the petitioning creditor that would cause the Court to refrain to exercise its discretion, perhaps the balance falls in favour of the exercise of the power.

In those circumstances, probably most unique, I am prepared to amend the order as it is recorded to reflect my original statement that it run for two years from the date of presentation of the petition less one day. I am informed from the bar table that this date would be 27 July 1989. Exercising what I consider to be the inherent power of the Court to do so, I am prepared to amend the order to reflect that date.

I note that this is not an exercise of power under s.52 of the Act extending the term of the petition. It is an exercise of the slip rule power to reflect what was my stated intention at the outset.

There will be an order that my order of 15 March 1989 be

amended to read that the petition be extended to 27 July 1989.

I certify that the preceding
eight (8) pages are a true copy of the

Reasons for Judgment of his Honour Justice Lee.

Associate:

Date:  1 7 5d-y

Counsel for the Creditor: Mr W. Goodlet

Solicitor for the Creditor: Unmack & Unmack

Counsel for the Respondent: Mr D. Bruns
Solicitor for the Respondent: Birman & Ride

Date of Hearing: 17 July 1989 Date of Judgment: 17 July 1989