The Commonwealth of Australia v Endresz
[2018] FCCA 1543
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE COMMONWEALTH OF AUSTRALIA & ANOR v ENDRESZ & ORS | [2018] FCCA 1543 |
| Catchwords: BANKRUPTCY – Creditor’s petition – consideration of operation of “slip rule” where Court administratively re-listed the matter to a date after the expiration of the petition and no application to extend it had been made – Respondent Debtor(s) had made multiple unsuccessful Applications to the High Court to attack the judgment in the ACT Supreme Court that founds the primary debt upon which the petition is based – these Applications delayed the initial listing of the matter for hearing – further Applications to the High Court foreshadowed by the Respondent Debtors – slip rule Application granted. |
| Legislation: The Constitution 1900 (Cth), s.71 Bankruptcy Act 1966 (Cth), ss.49, 52(4), (5) Federal Circuit Court of Australia Act1999 (Cth), s.17A Federal Court of Australia Act 1976 (Cth), s.31A Judiciary Act 1903 (Cth), s.78B Federal Circuit Court Rules 2001 (Cth), Rule 16.05(2)(e), (h) Federal Court Rules 2011 (Cth), Rule 39.05(e), (h) |
| Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Deputy Commissioner of Taxation v Statewide Contracting Qld Pty Ltd (No.2) [2015] FCA 690 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Endresz v Australian Securities and Investments Commission (2015) 228 FCR 334 Flint v Richard Busutill & Company Pty Ltd (2013) 216 FCR 375 Spencer v Commonwealth (2010) 241 CLR 118 J. Tarrant, Amending Final Judgments and Orders, (Sydney: The Federation Press, 2010) |
| Applicant: | THE COMMONWEALTH OF AUSTRALIA |
Supporting Creditor: | AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION |
| First Respondent: | ALLAN ENDRESZ |
| Second Respondent: | DAWN MAY ENDRESZ |
| Third Respondent: | JOZSEF ENDRESZ |
| Fourth Respondent: | WILLIAM ARTHUR FORGE |
| File Number: | CAG 23 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 11 May 2018 |
| Delivered at: | Canberra |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Hogan-Doran |
| Solicitors for the Applicant: Counsel for the Intervener: | Australian Government Solicitor Mr S Rosewarne |
| Counsel for the Respondents: | Self represented |
THE COURT ORDERS THAT:
The Application in a Case filed by the Respondents on 18th April 2018 be dismissed.
The Respondents’ oral Application, made on 17th May 2018, to remove the Supporting Creditor from the proceedings be dismissed.
The Respondent’s oral argument, without prior notice to the Commonwealth or to the Court, that Rule16.05(2)(h) is constitutionally invalid, in part or in whole, be rejected
The Orders of 6th February 2018 be varied, pursuant to the slip rule (Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth)), by the addition of an Order pursuant to section 52(5) Bankruptcy Act 1966 (Cth), that the expiration date (or lapsing) of the Creditor’s Petition (presented by the Commonwealth), dated 12th April 2017, shall be not later than 12th April 2019.
Mr Endresz is to file, on behalf of all Respondents in this matter, Written Submissions of no more than 10 pages, together with an Affidavit of no more than 10 pages (inclusive of annexures), on the substantive Application (the Creditor’s Petition) within 14 days of the date of these Orders, being by 1st June 2018.
The Applicant is to file Submissions in Reply (of no more than 10 pages), as well as any evidence in reply (of no more than 10 pages), 14 days thereafter, being by 15th June 2018.
The substantive proceedings are adjourned and listed for Final Hearing for half a day on a date to be advised in CANBERRA.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 23 of 2017
| THE COMMONWEALTH OF AUSTRALIA |
Applicant
| AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Supporting Creditor |
And
| ALLAN ENDRESZ |
First Respondent
| DAWN MAY ENDRESZ |
Second Respondent
| JOZSEF ENDRESZ Third Respondent |
| WILLIAM ARTHUR FORGE Fourth Respondent |
REASONS FOR JUDGMENT
Introduction
On 18th May 2018, oral reasons were delivered in relation to the two substantive Applications before the Court – the Applicant seeking to extend the life of a creditor’s petition that issued on 12th April 2017, and the Respondents seeking to have the petition summarily dismissed. What follows are those reasons revised from the transcript.
Respectfully, this is but the latest chapter of seemingly quite relentless litigation between the parties, over many years, which has been contested in State and Territory Courts, as well as in this Court (in the Melbourne Registry), and in the Federal Court of Australia, both at first instance and before the Full Federal Court. I suspect that the matters before me will not end with me.
There are two interlocutory Applications before the Court, noted earlier. Each of them relates to the Court dealing with the substantive or primary Application, which concerns a creditor’s petition that was filed on 12th April 2017. That petition arises out of final judgments entered against Mr Endresz and his co-respondents in the Australian Capital Territory Supreme Court for very substantial sums, running into millions of dollars.
It is as well to note, by way of background, the following remarks and summary provided by Judge Riley of this Court in relation to earlier litigation between the parties concerning certain bankruptcy notices that are obviously related to the current proceeding before me. Her Honour said:[1]
1) There are before the court four related applications pursuant to s.30(1) and s.41(6A)(a) of the Bankruptcy Act 1966 (“the Act”) to set aside four bankruptcy notices on the basis that there is or will be an ex debito justitiae application to set aside the judgment on which the bankruptcy notices are based. The four matters were heard together.
2) Allan Endresz and William Forge both appeared at the hearing before this court without the benefit of legal representation. Allan Endresz, notwithstanding that he is not a barrister or solicitor, was given leave to appear for Jozsef Endresz and Dawn Endresz, who are his elderly parents. They signed authorities for Allan Endresz to represent them, and he sought the leave of the court to do so. That leave was granted in accordance with the approach taken by Pagone J in Australian Securities and Investments Commission (ASIC) v Endresz (2014) 228 FCR 316; [2014] FCA 786 and the Full Court of the Federal Court in Endresz v Australian Securities and Investments Commission (No 2) (2015) 228 FCR 334; [2015] FCAFC 33.
3) The four applicants were defendants, along with some others, in the matter of Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 8) [2014] ACTSC 312 (“the principal judgment”). That proceeding concerned allegations that $8,725,000 was stolen from the Commonwealth by an associate of the present applicants. The principal judgment was handed down on 21 November 2014. The orders are long and complicated. However, it is sufficient to note that Allan Endresz and Jozsef Endresz were ordered to pay the Commonwealth $18,633,178.47 and Dawn Endresz and William Forge were ordered to pay the Commonwealth $12,715,615.17. Part of those debts have been paid but many millions remain outstanding. There is no dispute as to the amount of the debts.
4) On 23 December 2014, an appeal was filed against the principal judgment. The appeal was dismissed for want of prosecution on 30 June 2016.
5) In the meantime, on 29 February 2016, the applicants commenced proceedings ex debito justiciae in the ACT Supreme Court to have the judgment declared a nullity. The essence of the applicants’ ex debito justiciae claim was that the original writ did not have endorsed on it a claim for breach of fiduciary duty, but only a claim for money had and received. There were numerous iterations of the statement of claim which pled breach of fiduciary duty but the writ itself did not have that claim endorsed on it.
6) The ex debito justiciae application was heard on 11 May 2016 and judgment was reserved. The bankruptcy notices were issued on 4 August 2016. The applications to set aside the bankruptcy notices were filed on 6 September 2016. Various hearings were adjourned by consent and the time for compliance with the bankruptcy notices was extended until 20 February 2017, when the matter was heard in this court.
7) By the time of the hearing in this court, judgment in the ex debito justiciae application had been handed down. That happened on 13 January 2017. The essence of the decision was that the applicants’ ex debito justiciae application was dismissed, and the applicants were given until 3 February 2017 to seek leave to appeal. They did not do so.
[1] Allan Paul Endresz v The Commonwealth of Australia and Dawn May Endresz v The Commonwealth of Australia and Jozsef Endresz v The Commonwealth of Australia and William Arthur Forge v The Commonwealth of Australia [2017] FCCA 352 at [1] – [7].
It seems clear, indeed relatively uncontroversial, that the driving force behind Mr Endresz’ litigious pursuit is to overturn the principal judgment of Refshauge J in the ACT Supreme Court. The challenges to it in that Court have been exhausted. His attempts to mount challenges in the High Court, thus far, have also been without success; some little detail of the High Court challenges are noted later. His challenges in those Courts, but especially in the High Court, constitute essentially his primary grounds of opposition to the petition, as set out in his Notice of Opposition to the Petition, filed 28th April, and in his affidavits filed 28th April and 15th June 2017.
Mr Endresz confirmed that he was speaking on behalf of all Respondents. This was acknowledged by Counsel for the Commonwealth, and Counsel for the Australian Securities and Investments Commission (“ASIC”). Accordingly, unless otherwise indicated, any mention to arguments or submissions by Mr Endresz should also be taken to be on behalf of his co-Respondents.
After some discussion regarding procedural matters, it was agreed that the Court would first determine the Commonwealth’s extension of time Application in relation to the creditor’s petition. In the course of this discussion I observed to Mr Endresz that it appeared from his written submissions that he had not referred to any authority in relation to s.17A of the Federal Circuit Court of Australia Act 1999 (“the FCC Act”) (regarding summary dismissal) and its superior antecedents, notably s.31A of the Federal Court of Australia Act 1976, and or to the High Court decision in Spencer v Commonwealth and later authority.[2] He simply commented, perhaps somewhat curiously given his attention to all manner of other things related to the litigation, that he had not turned his mind to such matters.
[2] Spencer v Commonwealth (2010) 241 CLR 118.
It was put by Counsel for the Commonwealth that if the Commonwealth’s Application was unsuccessful, it would be unnecessary to consider the summary dismissal Application. Mr Endresz agreed with this submission.
I should also note that the Commonwealth sought a slight variation to its Orders so as to provide that any extension of the petition granted would be for a period not later than 12th April 2019, in accordance with s.52(5) of the Bankruptcy Act 1966 (“the Act”). I did not understand there to be any opposition from Mr Endresz to this amendment.
For the purposes of what follows, and for ease of reference I set out s.52(4) and (5) of the Act, and Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001. Thus s.52(4) and (5) provides:
(4) A creditor’s petition lapses at the expiration of:
(a) subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or
(b) if the Court makes an order under subsection (5) in relation to the petition—the period fixed by the order;
unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.
(5) The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor’s 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.
Rule 16.05(2)(h) is in the following terms:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
Preliminary Issues
Before dealing with the interlocutory Applications, there are two other matters that need to be addressed at the outset which were raised by Mr Endresz at the commencement of the hearing. In passing, I observe in no pejorative way that based on his submissions and the history of litigation over many years between the parties I apprehend him to be a highly experienced, highly motivated and often-times “creative” litigator. Indeed, in the course of submissions before me he flagged that, notwithstanding a significant number of unsuccessful Applications already (which are detailed in Mr Akele’s affidavit of 10th May 2018, and detailed later in these reasons), he had a number of other options he was considering regarding further High Court Applications that relate to various judgments in other Courts upon which the current judgment debt(s), and upon which the current bankruptcy proceeding, is based.
First, he made an oral Application that the supporting creditor, ASIC, be removed from the proceeding. This was on the basis that, among other things, he contended that there was a risk that ASIC could step into any breach should the Commonwealth withdraw as the petitioning creditor. And further, should this happen, because ASIC has (in his terms) allowed its own petition against the same Respondents to lapse, to permit ASIC to remain a supporting creditor in the current matter would, in effect, (to speak colloquially) allow it to have “two bites of the cherry”. He contended further that it would be unconscionable to permit ASIC to remain in the matter when, in his words, its lawyers had been so incompetent in earlier proceedings.
To these matters, Counsel for ASIC simply noted that (a) ASIC was attending Court only as a supporting creditor and had taken no active part in the proceeding, (b) it was entitled to attend as a supporting creditor, pursuant to s.49 of the Bankruptcy Act, and (c) it was attending the hearing of the interlocutory Applications because it was named in the Applications as filed.
There was no opposition from, or comment by, Mr Endresz to the inquiry or observation by the Court that there was no Application, or evidence, whereby either the Commonwealth intended to withdraw its petition, or that ASIC had applied to be substituted for the Commonwealth.
In my view, because (a) there had been no prior notice of the Application to remove ASIC from the proceeding (which has, in any event, been on foot for a significant period of time), (b) there was no evidence, one way or the other, of any intention by the Commonwealth to remove itself from the substantive Application, and (c) ASIC has taken no active part in the matter thus far, I do not apprehend, as the matter stands presently, that there is any risk of prejudice to any of the parties should ASIC remain in the proceeding. Accordingly, I do not accept the oral Application to remove ASIC from the matter.
The second preliminary matter raised by Mr Endresz, was that Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001 (“the FCC Rules”) (otherwise known or described as “the slip rule”) was, by operation of s.71 of the Constitution, invalid. As I understood his argument, Mr Endresz contended that it was invalid to the extent, or in circumstances where, substantive rights are to be directly affected by its operation. If I understood his argument correctly, he said that the slip-rule provision of this Court’s Rules to which I have referred, was invalid to the extent and only in circumstances where substantive rights were or were likely to be affected. This was the case here, he said, because if it was applied to extend the duration of a bankruptcy notice which had otherwise expired, it would affect his (and his co-respondents’) substantive rights significantly.
Mr Endresz said that the constitutional invalidity argument regarding this discrete section of this Court’s Rules had never been run before, so far as he was aware. Procedurally, he certainly had not raised it at any time in the course of the current proceeding prior to the current hearing. In my view, he should have given notice to the Commonwealth (and others noted below) about this hitherto unannounced, rather novel, argument. He has had ample time to do so. And as I have indicated, again in no pejorative way, he is not a litigious neophyte.
For my part I do not accept the submission by Mr Endresz in relation to the selective and or partial constitutional invalidity of Rule 16.05(2)(h) because:
(a)The Rule in question mirrors Rule 39.05(h) of the Federal Court Rules 2011. In the significant number of decisions of the Full Court of the Federal Court of Australia that have considered that Rule, there has never been a suggestion that it is in any relevant respect constitutionally problematic or limited in the way suggested by Mr Endresz;[3]
(b)If there has been no constitutional question let alone formal challenge in relation to the slip-rule provision in the Federal Court (and no authority was referred to by Mr Endresz in this regard), in my view it must follow that there can be no such limitation regarding the same Rule, in identical terms, in this Court;
(c)Further, no s.78B notices (i.e. s.78B Judiciary Act 1903) had been given by Mr Endresz in relation to his constitutional challenge.
[3] See, for example, Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 (“Elyard”); Flint v Richard Busutill & Company Pty Ltd (2013) 216 FCR 375 (“Flint”). It would also seem that in the extension research evident in Associate Professor Tarrant’s book, Amending Final Judgments and Orders, (Sydney: The Federation Press, 2010) there is no suggestion anywhere of there being any doubt about the constitutional legitimacy of Rules of Court that provide for the operation of the “slip rule.” See especially Chapter 5 “Statutory Deadlines.”
The Interlocutory Applications
As noted earlier, the interlocutory Applications before the Court are: (a) by Mr Endresz (and his co-respondents) to have the petition summarily dismissed pursuant to s.17A of the FCC Act; and (b) by the Commonwealth (supported by ASIC) to extend the expiration date of the petition.
For context and other things, both Applications may (or should) properly be considered, initially, in the light of two chronologies: the first relates to the course of the creditor’s petition in this Court (which includes multiple but unsuccessful Applications by the Respondents to the High Court; the history of those Applications is set out in Mr Akele’s affidavit, filed 10th May 2018). The second, longer chronology, which recounts aspects of the larger canvas of litigation between the parties, is set out in the Full Court decision in Endresz v Australian Securities and Investments Commission, which I need not repeat but simply record.[4]
[4] Endresz v Australian Securities and Investments Commission (2015) 228 FCR 334.
For current purposes, I note the following annotated, brief chronology:
a) 12th April 2017: Creditor’s Petition filed;
b) 1st May 2018: District Registrar Wall made Orders refusing the Respondents’ Application to have the matter transferred to the Federal Court of Australia;
c) 16th June 2018: first listing before this Court. The Applicant sought to have the matter listed for hearing. The Respondents indicated that there were proceedings either pending or to be filed in the High Court. The matter was adjourned until 19th July pending the outcome of proceedings in High Court. There was a notation to the Orders of this date to the effect that pending determination of the Respondents’ High Court Applications, the matter would be fixed for hearing with directions to issue from Chambers;
d) 18th July 2017: Orders were made in Chambers fixing the matter for hearing on 13th – 14th March 2018. Those Orders were prefaced by the following notations:
A. The Respondent informed the Court on 18 July 2017 via e-mail that the Respondents in matters CAG 23, 24 25 and 26 of 2017 intend upon filing an Appeal in the High Court in relation to the interlocutory Orders of Nettle J delivered on 12 July 2017;
B. The Court is currently allocating Final Hearing dates for general federal law matters in early to mid-2018;
C. In those circumstances, and particularly in light of the considerations regarding the efficient allocation of Court resources as outlined by the High Court in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303, there is no obvious prejudice to the parties in vacating the directions hearing on 19 July 2017 and listing the matter for Final Hearing;
e) 6th February 2018: my Associate sent an email to all parties in the following terms:
I refer to the above matter which is currently listed for Hearing commencing on 13 March 2018.
Due to administrative difficulties and judicial availability, issues which have only just come to light, it has become impossible to maintain the currently listed Hearing dates in this matter.
It is with regret that Chambers advises that the matter has been re-listed to 17 and 18 May 2018 for Hearing.
I confirm that Orders made in Chambers on even date reflecting the updated trial directions have issued on the ECF.
Chambers sincerely apologises for the inconvenience caused and thanks the parties for their understanding.
f) 6th February 2018: Orders were made in Chambers in accordance with the email of that date and the matter was re-listed for hearing on 17th and 18th May 2018;
g) 18th April 2018: The Respondents filed an Application in a Case seeking summary dismissal and summary judgment (pursuant to s.17A FCCA), plus costs;
h) 19th April 2018: the Commonwealth filed an Application, pursuant to r.16.05(2)(h) of this Court’s Rules, which would thereby provide, pursuant to s.52(5) of the Bankruptcy Act, for an additional Order to those made on 6th February 2018 to extend the date at which the bankruptcy notice would lapse to 12th April 2019;
i) 19th April 2018: Following submissions by the parties (and supporting creditor) Orders were made for the filing of an outline of submissions in relation to both interlocutory Applications, with them to be heard on the scheduled date(s) of 17th May 2018.
The First Respondent’s High Court Applications
Earlier in these reasons I noted that Mr Endresz had informed the Court that he intended to make application to the High Court to seek relief in relation to what he sees to be egregious errors in the decision of the ACT Supreme Court. At the time when the Court was advised of this proposed course there was no indication of the number of Applications that would ultimately be made, save that at the directions hearing on 16th June, some Applications had already been made and determined by the High Court. On that date, Mr Endresz foreshadowed further Applications to the High Court. In the course of this hearing the Court inquired whether it was in fact possible to hear and determine the creditor’s petition while-ever Mr Endresz was pursuing his Applications elsewhere.[5]
[5] The Transcript of that directions hearing is annexed to Mr Akele’s Affidavit, sworn and filed 10th May 2018, Annexure LDA-3.
In his Affidavit, filed 10th May 2018, the Commonwealth’s solicitor, Mr Akele (at pars.16 & 17), listed the eight (8) Applications made by Mr Endresz to the High Court together with the outcomes of them. Those paragraphs refer to copies of the dispositions by the High Court annexed to his Affidavit, together with the Transcript/Reasons for the Applications made on 26th April and 1st May (Gageler J); 12th July 2017 (Nettle ACJ); 11th October 2017 (Keane and Gordon JJ). Mr Akele stated (at par.17):
17. My searches and inquiries, and annexures LDA-8 to LDA-10 reveal that in 2017 Mr Endresz filed or attempted to file a number of applications in the High Court of Australia in respect of the ACT Supreme Court Proceedings, all of which were unsuccessful. The details of these applications are as follows:
17.1. On 12 April 2017, Justice Bell directed the Registrar to refuse to issue or file a writ of summons entitled ‘Between: Allan Paul Endresz, Plaintiff, and the Commonwealth of Australia, Defendant’ without the leave of a Justice of the High Court.
17.2. On 26 April 2017, Mr Endresz filed with the High Court an ex parte application seeking leave for the Registrar to issue or file the writ of summons.
17.3. On 1 May 2017, Justice Gageler refused Mr Endresz’s ex-parte application seeking leave to issue or file a writ of summons.
17.4. On 8 June 2017, Mr Endresz filed with the High Court an ex parte application seeking leave to set aside interlocutory order and to issue or file writ of summons.
17.5. On 12 June 2017, Justice Edelman made a direction that a further proposed application by Mr Endresz not be accepted for filing by a Registrar without the leave of a Justice of the High Court.
17.6. On 23 June 2017, Mr Endresz filed with the High Court an ex parte application seeking leave pursuant to r 6.07.3 for the Registrar to issue or file the proposed application.
17.7. On 12 July 2017, Acting Chief Justice Nettle refused Mr Endresz’s application for leave for the Registrar to issue or file the proposed application, noting ‘…the grounds of the proposed application are misconceived, and for that reason alone I should be inclined to refuse the leave which is sought to file the proposed application. In addition, however, the proposed application is incompetent’.
17.8. Mr Endresz subsequently filed an application with the High Court seeking leave to appeal the decision of Acting Chief Justice Nettle and on 11 October 2017, Justices Keane and Gordon dismissed Mr Endresz’s application, relevantly noting ‘An appeal to this Court would enjoy no prospect of success’.
I simply note the following comments from the reasons given by different Justices of the High Court, which are annexed to Mr Akele’s Affidavit to which I have just referred:
Neither the writ of summons nor the affidavit discloses any arguable basis for the claims or the declarations sought. The proceedings would be an abuse of process. (Gageler J: Matter No.C6 of 2017: Order made 1st May 2017)
The grounds of the proposed application are misconceived, and for that reason alone I should be inclined to refuse the leave which is sought to file the proposed application. In addition, however, the proposed application is incompetent. (Nettle ACJ: Matter No.C9 of 2017: 12th July 2017)
Undeterred, on 17th May 2018, Mr Endresz confirmed in the course of the hearing before me that he has other legal avenues to pursue in the High Court. He did not particularise such matters.
The Applicant’s Written Submissions
The Applicant’s submissions in relation to the “slip rule”, filed 10th May 2018, were as follows:
1. The Applicant by its Application in a Case filed 18 April 2018 in each of CAG23 to CAG26 of 2017, seeks an order under r 16.05(h) of the Federal Circuit Court Rules 2001, adding to the orders made on 6 February 2018, that the date of lapsing of the creditors’ petitions be extended to the expiry of 18 May 2018 or the determination of these proceedings.
Factual Matters
2. The creditors’ petitions were filed on 12 April 2017. They would expire on 11 April 2018.
3. On 18 July 2017, the petitions were listed for hearing on 13-14 March 2018.
4. On 6 February 2018, the Court determined without reference to the parties that the hearing dates were “impossible to maintain” (per email from the Associate that day).
5. The Court decided to vacate the hearing dates and fix the hearing of the petitions on 17-18 May 2018. To give effect to this decision, the Court made orders in chambers, that:
“1. Orders of 18 July 2017 be vacated.” and “2. The matter be listed for Final Hearing for 2 days commencing on 17 May 2018 at 10:15am in Canberra.”
6. The Court did not make the further order (necessary to give effect to the Court’s decision) extending the life of the petitions to (say) the expiry of 18 May 2018 or a later date.
Legal Submissions
7. An order can be made by the Court under s. 52(5) of the Bankruptcy Act 1966 to extend the life of a creditor’s petition during the life of the petition (and up to 24 months after the date of filing) “if it considers it just and equitable to do so”.
8. Where an order is made during proceedings, it can be corrected or supplemented if there has been “an accidental slip or omission” under r 16.05(h). That rule is in the same terms as Federal Court of Australia’s r 39.05(h). Rule 16.05(h) was added on 31 July 2017.1[6]
9. An order under FCC r. 16.05(h) can be made after the expiration of petitions extending their life in an appropriate case: see Ramsay Health Care Australia Pty Ltd v Compton (No 2) [2016] FCA 691; Flint v Richard Busuttil & Co Pty Limited [2013] FCAFC 131.
10. First, it is necessary that there be an order made by the Court which requires supplementation or correction to have that effect. Flint at [26]-[31]. Here, orders were made. It was not merely an adjourning “of the Court” which had reserved judgment (as in Wu v Li [2017] FCA 500) or which was part heard (as in Perry v O'Connor [2017] FCCA 1197).
11. Second, there must be an error or slip such that the Court did not make orders to that effect. The relevant time is the time when the orders were made: see Flint at [39]. Here, the absence of a further order extending the life of the petitions occurred at the time of making of the orders on 6 February 2018. It was a slip as the adjournment of the hearing to a date after the petitions without the further order necessarily meant the petitions would expire before the hearing date, and the Court’s decision.[7]2
12. Third, it must be that, had the Court been alive to this issue, it would have made the further order correcting the slip. The rule “may be invoked where the proposed amendment is one upon which no real difference of opinion can exist, or where no exercise of independent discretion is necessary”: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390-1, Lockhart J (Black CJ agreeing). See Wu v Li at [60]-[65].
13. That is so here. The Court itself determined that the dates for hearing of 13-14 March 2018 were “impossible to maintain” (per email from the Associate to parties of 6 February 2018). The Court identified the next available dates. There could be no real difference of opinion that the petitions had to be extended in those circumstances. This is not a case where the slip or omission occurred at some later date without intervention, as in Wu v Li and Perry.
14. The discretionary consideration of the need to ensure timely resolution of petitions was not a real factor. The delays in 2017 were in part caused by the Respondents pressing High Court applications. See Notes A to D of the orders of 16 June 2017. See 18 July 2017 email from Allan Endresz to the Court advising he intended to appeal Justice Nettle’s dismissal orders. The delay from 18 July 2017 to May 2018 was otherwise due to the Court’s availabilities.
[6] Federal Circuit Court Amendment (Costs and Other Measures) Rules 2017 (dated 31 July 2017).
[7] If it be relevant, there was a further inadvertence by the Commonwealth’s lawyers in not drawing this to the attention of the Court in subsequent days: Boston Management Services Pty Ltd v O’Donnell [2017] FCCA 957.
Supporting Creditor’s Written Submissions
ASIC’s brief submissions in relation to the “slip rule” and more generally were in the following terms:
1) The Australian Securities & Investments Commission (ASIC) appears as a supporting creditor in each of the proceedings.
2) ASIC relies on the affidavits of Kathryn Helen O’Connor affirmed 11 May 2017 (the O’Connor Affidavits) that have been filed and served in each proceeding and the affidavits of Hanna Claire Mary Kaiser that will be affirmed shortly before the hearing listed to commence on 17 May 2018 (the Kaiser Affidavits).
3) As detailed in the O’Connor Affidavits and the Kaiser Affidavits, the respondents owe ASIC significant sum in respect of unpaid judgment debts. These amounts relate to orders that were made in ASIC’s favour in late 2011 and remain outstanding.
4) ASIC commenced sequestration proceedings against each of the respondents in February 2014, but was unable to proceed and obtain sequestration orders by reason of delays in the finalisation of the proceedings commenced by the Commonwealth in the Supreme Court of the ACT against the respondents: see generally Endresz v Australian Securities and Investments Commission (No 2) (2015) 228 FCR 334.
5) ASIC supports the making of a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) against the estate of the respondents.
6) ASIC otherwise supports and relies on the written and oral submissions made by the Commonwealth.
The Respondents’ Written Submissions
Mr Endresz provided the following submissions which, as earlier noted, were on behalf of all Respondents (footnotes omitted):
1) On 12 April 2017, the Commonwealth filed a creditors’ petition against each of the debtors. The petitions were opposed. On 18 July 2017, following earlier directions, Judge Neville made orders in Chambers listing the proceedings for final hearing commencing on 13 March 2018.
2) On 6 February 2018, Judge Neville made orders in Chambers in each proceeding which provided that the final hearing would now commence on 17 May 2018 with directions on 19 April 2018 (after the expiry of the creditor’s petitions). The orders were made on the basis of “administrative difficulties” and “judicial availability” such that it was “impossible to maintain the currently listed hearing dates in this matter” (Orders).
3) At no point between 6 February 2018 and 11 April 2018 (when the petitions expired) did the Commonwealth seek an order under s 52(5) of the Act. It was not until 17 April 2018 that the Commonwealth realised that the petitions had lapsed. The two applications are interdependent in that if the Creditor’s Applications are unsuccessful, the Debtors’ Applications must succeed by operation of s 52(4) of the Act.
4) The “slip rule” may be employed to extend time under s 52(5) of the Act, but it has been the subject of judicial criticism. It is not a general power to avoid the policy inherent in the Act that bankruptcy proceedings be resolved quickly. The Courts must give priority to their hearing and determination. The power is to correct and not to reconsider, let alone alter the substance of the result that was reached and recorded. It does not extend to mistakes resulting from a deliberate decision.
5) The proposed correction must be uncontroversial. Once drawn to the Court’s attention the correction must be one that must “at once be made”. It is impossible to apply the slip rule to a case where the correction requires an exercise of discretion. If there is any debate that it would have been just and equitable for the order to have been made, the slip rule cannot apply.
6) While the slip rule extends to the inadvertence of a legal practitioner, the fact that the solicitor ought to have turned their mind to the issue after the order was made may be a ‘slip or omission’, but no error in the relevant order arose from it.
7) A decision under s 52(5) of the Act requires the Court to consider whether the extension is just and equitable. This is not a matter of course. The mere fact that a judge reserves judgment on a petition until after expiry is not a grant for an automatic extension of time. An imminent expiry of a petition may be grounds for a correction, however a period of two or three months between the relevant order and the expiry of the petition is insufficient. It is open to the Court to list the petition on an earlier date to address the issue of expiry, whilst also achieving prompt dispatch of the creditor’s petition.
8) The aversion to using the slip rule in these matters is not confined to the reservation of judgment after hearing. In Amorin Constructions Hammerschlag J declined to apply the slip rule where a winding up application had been set down for hearing two months prior to expiry of the application for hearing on a date after the expiry.
9) There is no identified “accidental slip or omission” which caused the error in the Orders. The Court’s decision to adjourn was a deliberate one, having regard to the Court’s resources. The only possible error in the present case is the omission from the order made on 6 February 2018 of an extension pursuant to s 52(5) of the Act.
10) Whether the Court or Mr Akele realised after the date of the order that there was a need to extend the petition and that they should have been done earlier is not the point. Mr Akele’s evidence that he did not turn his mind to s 54(5) until after the petition had expired demonstrates that the application was the product of hindsight generated by subsequent events.
11) The Orders were made two months prior to expiry of the petition. It is not without debate that, had the 11 April 2018 date been brought to Judge Neville’s attention prior to making the Orders, His Honour may have extended the petition. The Court can infer that the application, if made, would have been opposed. In the circumstances, His Honour may have sought to revisit the Court’s resources and find another date before another judge before its expiry. It was within his power and discretion to do so.
12) In the circumstances, the Court ought not exercise its power to extend the petition and the creditor’s petitions’ ought to be struck out or summarily dismissed.
In addition to his written submissions, in his oral submissions Mr Endresz, not without cause, pointed out that there was in fact an error in the Commonwealth’s Application in relation to the correct citation of, or reference to, the appropriate Rule that provided for the “slip rule.” The Commonwealth’s Application referred to “Rule 16.05(h)”, rather than “Rule 16.05(2)(h).” He observed, with some vehemence based, he said, upon years of what he called his firsthand experience of “the incompetence” of the Commonwealth’s lawyers (and those of the supporting creditor, ASIC, also), that notwithstanding the “army of lawyers” available to it such a basic matter of correct citation was missed by everyone – except him. Counsel for the Commonwealth immediately and candidly acknowledged that the error was his.
Properly, the matter proceeded, as it should have, on the basis that the error in the Commonwealth’s Application and Submissions was essentially typographical. All parties knew that the Commonwealth’s Application was in relation to the “slip rule”. There was no claim of any prejudice by or to anyone, including by any of the Respondents, for the matter to proceed on the basis that (a) the Commonwealth’s Application contained a typographical error, and (b) the correct reference was to Rule 16.05(2)(h). Clearly Mr Endresz knew what was being sought and it was he who brought this error to the attention of everyone, which was (as earlier observed) immediately acknowledged by Counsel for the Commonwealth. For these reasons, nothing turned on the typographical error in the Commonwealth’s Application.
It was not mentioned at the time, or in submissions, but I simply note that the equivalent Rule under the Federal Court Rules (r.39.05(h)) is slightly more “streamlined” in its citation than is Rule 16.05(2)(h) of this Court’s Rules, there being no sub-rule(2).
Consideration & Disposition
The circumstances that gave rise to the Court’s Orders of 6th February 2018 are recounted in emails between my Chambers and the parties. Those emails are annexed to Mr Akele’s most recent affidavit to which I have earlier referred. Suffice to say that because of a problem with the Court’s listing systems, which was only discovered either on or around 6th February 2018, it became impossible to retain the long-listed hearing dates in the present matter. As soon as this problem was recognised, the parties were notified and new hearing dates fixed.
For the following reasons, the extension of time to the petition, pursuant to the slip rule (Rule 16.05(2)(h)) and relevantly in turn s.52(5) Bankruptcy Act), sought by the Commonwealth should be granted. It follows in consequence that the Respondents’ summary dismissal Application should be dismissed.
First, in my view, the principles set out by the Full Court of the Federal Court of Australia in Flint, notably at [26] – [30], [32] – [33], and [44] – [46], clearly apply here. The Full Court’s detailed discussion in Flint in the paragraphs mentioned was as follows (emphasis added):
[26] The purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-5) by ensuring that the court’s judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention that the court would have had but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356 at 357. It may be exercised to prevent unintended consequences of the order and in this way give effect to the court’s intentions: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 (“Newmont Yandal”) at [116], [185], [194]. It is not confined to errors or omissions of the court; it extends to errors or omissions resulting from the inadvertence of a party’s legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 (“Shaddock”) at 594-5.
[27] In Streimer v Tamas [1981] FCA 123; (1981) 37 ALR 211 Shepherd J suggested that the slip rule could be used to retrospectively extend the life of a bankruptcy notice. Later, in DDB Needham Sydney Pty Ltd v Elyard Corporation Pty Ltd (1995) 131 ALR 213 his Honour applied the rule to extend the time in which a winding up application could be determined. The Full Court dismissed an appeal from that decision in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 (“Elyard”). On the appeal the Court accepted that the slip rule may be invoked “where the proposed amendment is one upon which no real difference of opinion can exist” but noted that it does not apply if the amendment is a matter of controversy and does not extend to mistakes resulting from a deliberate decision (at 390-1 per Lockhart J, Black CJ agreeing).
[28] Section 459R(1) of the Corporations Law (now the Corporations Act 2001 (Cth)), with which Elyard was concerned, required that an application to wind up a company in insolvency be determined within six months after it was made. Section 459R(2) conferred a discretion on the Court to make an order extending the period in which the application must be determined but only in special circumstances and, relevantly, only where the order was made within the six month period, or as last extended under the subsection. Section 459R(3) provided that an application is dismissed if not determined as required by the section. Counsel for the appellant in Elyard argued that the language of s 459R(2) required any application for an extension of time to be made before expiry of the period which had been the subject of an earlier extension made within the six month period, and that the application to wind up the appellant company was dismissed by operation of s 459R(3). In rejecting that argument, Lockhart J said at 391-3:
In my opinion, the argument rests on a misconception of the nature and operation of the slip rule. This is the case because the later order corrects the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected. Hence, the order made by the primary Judge in this case, on 9 August 1995, corrected the order of the registrar of 9 June 1995, which then operated with full force from 9 June 1995. The slip rule, with retrospective operation, corrected the earlier order ... The essential purpose of the slip rule is to give effect to the intention which the Court would have had, if it were not for the failure which led to the accidental slip or omission.
...It is irrelevant that the later order ... which corrected the earlier order, was made after the expiration of the statutory time limit. The earlier order as corrected, and speaking by operation of the later order from the earlier date, operated with full force from a time which was within the statutory time frame.
...
[O]nce the earlier order has been corrected it speaks from the date of the earlier order, and it is deemed to have always operated from that date.[29] Lindgren J at 401-2 expressed the same view. Black CJ agreed at 387-8.
[30] In Griffiths the Full Court expressed some disquiet about the decision in Elyard but declined to overrule it. It said (at [52]) that, although Elyard did not directly bind the Court in applying s 52 of the Bankruptcy Act, it would cause substantial confusion in insolvency practice if a different approach were taken in the bankruptcy jurisdiction.
…
[32] In Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd [2008] NSWSC 285; (2008) 73 NSWLR 627 (“Amorin”), Hammerschlag J accepted that the application of the slip rule extended to the intention that the Court would have had but for the failure that caused the accidental slip or omission. However, his Honour pointed out that the power given to the Court to extend the period within which to determine a winding up application under s 459R(2) of the Corporations Act is conditioned on the Court reaching the requisite state of satisfaction, namely, “if it is satisfied that special circumstances justify it” and as such, undoubtedly involves the exercise by the Court of an independent discretion. On this basis, Hammerschlag J considered that Elyard was plainly wrong to hold that the slip rule could be invoked in these circumstances and expressed surprise that neither in Elyard nor in the cases that followed was there any consideration of this precondition to the exercise of the statutory power. He pointed out that for the most part, the orders were justified on the basis of the court’s inherent jurisdiction. He referred to and applied Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 (“Storey & Keers”) where McHugh JA said the following (at 453):
The rationale of the slip rule ... requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No 3) (at 506).
[33] In Brew v Whitlock (No 3) [1968] VicRp 63; [1968] VR 504 at 506 the Full Court of the Victorian Supreme Court said that it was “impossible ... to apply the rule to a case where, on the application to correct the judgement, it is necessary to exercise an independent discretion”. Brew v Whitlock involved a failure by a party to apply for, and the court to order, interest under s 78 of the Supreme Court Act 1958 (Vic). The decision was approved on appeal to the High Court: Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445 (“Whitlock v Brew”) at 457-8 (per Kitto J), 463-4 (per Taylor, Menzies and Owen JJ).…
[44] We would, however, make the following observations. Notwithstanding the logical force of the proposition that there is no room for the operation of the slip rule where an independent discretion must be exercised and the support of the authorities of Storey & Keers and Whitlock v Brew, there are two difficulties with accepting the proposition.
[45] First, in Shaddock the High Court invoked the slip rule to amend an order to include an award of pre-judgment interest. Yet an award of interest is in the court’s discretion. Reference was made to Shaddock in both Storey & Keers and Amorin, but not to this point. In Newmont Yandal Spigelman CJ thought that some of the reasoning in Whitlock v Brew could not stand with later authorities including Shaddock. We respectfully agree.
[46] Second, if the surrounding circumstances are such (as they can be taken to have been in Elyard) that it can be concluded that proper attendance to the matter (had the error not occurred) could only have resulted in the discretion being exercised in one way, it is difficult to see why the rule should not apply in the same way that it would if the discretion had been exercised and there had been a mere failure to record it. As Lockhart J said in Elyard at 392, the purpose of the rule is to avoid injustice. The force of Storey & Keers and Whitlock v Brew can be accepted if there is any room for debate as to the exercise of the discretion. For instance, if there is any debate as to whether it would have been just and equitable to have made an order under s 52, in line with well-established principle, the slip rule cannot apply.
Secondly, based on the brief chronology to which I have referred, and the more detailed chronology set out in Mr Akele’s May 2018 affidavit, as well as his earlier affidavit filed 19th April 2018, in my view the following propositions should be accepted:
(a)The original Orders of the Court setting down the matter for hearing contemplated the currency of the petition. All parties (and the Court) accepted this;
(b)The later Orders, made in Chambers on 6th February 2018, which re-scheduled the hearing of the matter (as notified to the parties) because of the Court’s listing difficulties, could (or should) never realistically be considered as doing anything, directly or indirectly, to thwart the determination of the Creditor’s Petition, including the Respondents’ opposition to it, other than by a hearing;
(c)Further, as was put in the course of argument, if the slip-rule is not applied here, the Court’s own action in changing the hearing date, without having regard to that date being after the expiration of the petition, would be to frustrate the proper determination of the proceeding. Put another way, it would border on the bizarre that the Court’s own actions would be the vehicle to frustrate the proper and orderly determination of the Creditor’s Petition;
(d)But for the Court, on 6th February 2018 by Orders in Chambers, (i) having to amend previously made Orders and thereby to change the hearing dates because of the Court’s inability to keep the March hearing dates[8], (ii) inadvertently omitting to include an Order to extend the expiration date of the petition, and (iii) re-scheduling the hearing to a date after the [current] expiration of the petition with the intention to hear and determine the Creditor’s Petition, there would be no need to seek relief under the slip rule and the hearing would proceed in the usual way. However, in the light of the factors mentioned, in my view, the clear intention of the Court on 6th February was to ensure that the hearing, then listed for March 2018, should proceed in the usual manner on dates in May in order to deal with the substantive matter, being the Creditor’s Petition before it. Accordingly, the course undertaken by the Court, to re-list the hearing but not to consider the extension of time in relation to the petition, patently did not reflect the Court’s intention. The matters I have just set out, in my view, clearly fall within what the Full Court detailed in Flint at [26].
[8] The Court’s email to the parties, dated 6th February 2018, which is annexed to Mr Akele’s 18th April affidavit – annexure LDA 2 - refers specifically to the impossibility of maintaining the current hearing dates due to “administrative difficulties and judicial availability”. I note that I am the only Judge of this Court in this Registry who hears matters across the Court’s broad jurisdiction, including general federal law, with a docket of between 300 – 400 matters; the other two Judges in this Registry attend only to family law matters. Given the similarly oppressive numbers in the dockets of Judges of this Court in other Registries, it would have been next to impossible, between 6th February and 12th April 2018 to have a Judge from an interstate Registry to sit here to deal with this matter.
In addition to the matters just noted, and accepting that relief under an alternative sub-rule was neither sought nor argued, it seems to me that the comments of Greenwood J in Deputy Commissioner of Taxation v Statewide Contracting Qld Pty Ltd (No.2) regarding the operation of r.39.05(e) of the Federal Court Rules have equal force here, albeit that the statutory context was different to the current proceeding.[9] The equivalent provision in this Court’s Rules is r.16.05(2)(e), which provides that the Court may vary or set aside a judgment or Order after it has been entered if (e) “it does not reflect the intention of the Court.” In the case before Greenwood J, at [9] – [10] his Honour said:
[9] The representative for the Deputy Commissioner of Taxation concedes this morning that she failed to identify that a consent had not been obtained from Ms Barley. The solicitor for the company who assumed the conduct of the matter the day before the hearing before the primary Judge also accepts that he failed to identify that no consent had been obtained from Ms Barley. In fact, the position is that there was no proposal that Ms Barley act as liquidator and thus she was not consenting to act as liquidator. Ms Barley was in the process of obtaining accreditation as an official liquidator, as at 28 April 2015. The representative for the Deputy Commissioner of Taxation and the solicitor for the company both concede that they simply made a mistaken assumption that both administrators were official liquidators who had consented to act as liquidators of the company.
[10] The Commissioner seeks an order discharging the order appointing Mr Pleash and Ms Barley as liquidators and in substitution an order appointing Mr Pleash as liquidator. That order is sought in reliance upon r 39.05 of the Federal Court Rules 2011 which provides, relevantly, that the Court may vary or set aside a judgment or order after it has been entered if it does not reflect the intention of the court; or the party in whose favour it was made consents; or there is a clerical mistake in a judgment or order; or there is an error arising in a judgment or order from an accidental slip or omission: see r 39.05(e), (f), (g) and (h).
[9] Deputy Commissioner of Taxation v Statewide Contracting Qld Pty Ltd (No.2) [2015] FCA 690.
Then at [15] – [17], his Honour stated:
[15] In Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; (2012) 209 FCR 123, Gilmour J at [10] considered that the Court may invoke r 39.05(e) (that is, the judgment or order does not reflect the intention of the Court) in circumstances where the order does not reflect the intention that the Court would have had “but for the failure by reason of which there was an accidental slip or omission” on the part of the representatives.
[16] The true intention of the Court is plain enough. The primary Judge was intending to make an order, appointing as liquidator of the company, the person or persons (licensed official liquidators) who had consented to act as the liquidator or liquidators of the company and on whose behalf consents to act had been filed in accordance with the Corporations Rules. Due to the failure on the part of the representatives for the parties to properly recognise the true state of the consent or consents to act, there was an accidental slip or omission by the parties which led to an order being made which would not have been made had the accidental omission not occurred.
[17] Thus, r 39.05(e) is properly engaged.
As earlier indicated, the Order made on 6th February 2018 changing the hearing date of the petition was never intended to thwart that hearing. The sole intention was to remedy the inability of the Court to hear it on the previously scheduled dates and to give appropriate notice to the parties in circumstances where no earlier date than those given in the February 2018 Orders was available.
The Commonwealth conducted the interlocutory hearing on the basis that the matters set out in Mr Akele’s affidavits related only to the exercise of the Court’s discretion. Respectfully, the affidavits filed by the Commonwealth indeed go to the exercise of discretion but equally so to the inadvertence of the Commonwealth’s legal practitioner regarding the expiration of the petition. Such is set out in the affidavits to which I have referred, particularly the affidavit filed 19th April 2018, pars.13 & 14. As noted by the Full Court in Flint, at [26], relying on comments by the High Court in L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590 at 594-595, the slip rule “is not confined to errors or omissions of the Court; it extends to errors and omissions resulting from the inadvertence of a party’s legal representative.”
In Elyard, at 392, Lockhart J stated that “the purpose of the slip rule is to avoid injustice.” The Full Court in Flint referred directly to this comment at [46]. In the circumstances of the matter here, that is precisely the object, use and intent of the slip rule in relation to the Orders made by the Court on 6th February 2018.
Further, in the course of argument before me, Mr Endresz said that if an Application had been made at or immediately after the Court’s February 2018 Orders that re-scheduled the hearing dates, the extension of time would have been undoubtedly granted without issue. He made similar statements on a number of occasions during the hearing, his clear purpose being to highlight, in his view, the incompetence of the Commonwealth’s lawyers having had ample time to make an Application and to seek an extension of the expiration of the petition. He noted further that the extension could have been for up to two years without issue. It was only at the very end of the hearing when I asked him to confirm what I had earlier understood his position to be that he back-tracked somewhat, saying that any extension of time would have been subject to any opposition or opposing arguments he may have put before the Court.
In addition to the reasons expressed here otherwise I accept the submissions of the Commonwealth and prefer them to those of Mr Endresz.
In my view, the exercise of the Court’s discretion is clear in the circumstances of this matter. The Order sought by the Commonwealth should be made. In consequence, as earlier noted, the Application by Mr Endresz should be dismissed.
It remains then to consider the appropriate procedural course in the light of the Court’s determination to extend the expiration date of the Creditor’s Petition.
On the Commonwealth’s view, expressed during the hearing, the matter could and should proceed directly to the hearing of the petition. This is especially in circumstances where Mr Endresz had earlier stated to the Court his intention to file submissions only in relation to his summary dismissal Application (and the interlocutory Application of the Commonwealth). He has not filed anything with respect to the petition, other than the Notice stating his Grounds of Opposition, and Affidavit, filed 28th April 2017, and his further Affidavit, filed 15th June 2017.
As a general observation, albeit in somewhat colloquial terms, it seems to me that Mr Endresz (and his co-respondents) procedurally and substantively has placed all his eggs in the one basket, namely to let the petition lapse and rely upon the Court granting his summary dismissal Application. If this be the case, and assuming that he takes what might be described as his usual course (I say this in no pejorative way) and that he appeals this decision, having regard to the High Court’s comments in Aon Risk Services Australia Ltd v Australian National University in relation to the proper and diligent use of the scarce public resources of the Court, it might be best if the petition is heard and determined and then, if an appeal is to be lodged, the Full Court can deal with both the slip rule Order and any Order in relation to the petition.[10]
[10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Finally, I note that at the conclusion of the interlocutory hearing, Mr Endresz indicated his intention to return to Albury, which may be a further indication of his intention to ensure that, as far as possible, the Court dealt only with the interlocutory Applications on the long-scheduled hearing dates. In any event, I indicated that the Court would call him in relation to any judgment, and that the Court would of course advise all parties whether the Court would be in a position to deliver oral reasons quickly – which has now happened.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 14 June 2018
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