jurisdiction to review Registrar's decision
12 Section 35A of the Federal Court of Australia Act 1976 (Cth) provides relevantly:
(5) A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.
(6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.
13 The Court's power under s 35A(5) extends to reviewing both questions of fact and law and is in the nature of a rehearing de novo: Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd [2018] FCA 600 at [1].
14 By r 16.1(3) of the Federal Court (Corporations) Rules 2000, an application for the review of a decision of a registrar made under those Rules must be made within 21 days after the decision complained of, or any further time allowed by the Court.
15 The DCT says that the Interlocutory Process was filed 22 days after the Registrar's decision and so requires leave to proceed under r 16.1(3). I am satisfied that the application was made on 1 August 2018, contrary to the submission of the Deputy Commissioner that it was made on 2 August 2018 and accordingly, the application was made in time.
16 I am not satisfied that the Court has no jurisdiction to review the Registrar's decision, although the time for compliance with the statutory demand has expired.
17 However, because the time for compliance has now expired, any setting aside of the Registrar's order would be futile: Marthas T Market Pty Ltd v Reliance Financial Services Pty Ltd [2002] NSWSC 931 at [11]. As the High Court noted in Vic Plant Hire, at [19] to [22], the Act attaches a consequence to a failure to comply with a statutory demand within the time for compliance, namely, that (by s 459C) the Court must presume that the company is insolvent for the purposes of an application to wind up a company in insolvency.
18 In this case, there has been such a failure and even if 3Bears were to succeed on its interlocutory process, the fact of that failure would remain.
19 In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 84, Latham CJ stated:
[I]f a court is of opinion that the plaintiff cannot succeed there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile.
20 Mr Trang submitted that the 3Bears company is solvent and that it has made arrangements to pay another amount outstanding to the DCT. He submitted that he is seeking to protect all of the people who would be affected if the company was wound up, that if he has made a "small mistake" that should not result in the company being wound up and that it is not acceptable to wind up a company which seeks to comply with its legal obligations. Mr Trang also complained that the District Registrar heard his application without the full picture of the company's financial position which was evolving as the ATO considered the facts.
21 Unfortunately, for the reasons I have given, none of these matters affects the issue that I am required to decide. Accordingly, in the circumstances, the appropriate order is to dismiss the Interlocutory Process.