Judgment
Introduction
1Three parties, 333 Capital Pty Limited ("333 Capital"), Grant Samuel Corporate Finance Pty Limited ("Grant Samuel") and J.P. Morgan Chase Bank, National Association and J.P. Morgan Securities Australia Limited (together, "JP Morgan") seek to set aside an order made by Ward J on 19 September 2011 ("19 September Order") that varied an earlier order made by Hammerschlag J on 30 May 2011 ("30 May Order"). The practical effect of the 19 September Order was to extend the time in which voidable transaction proceedings could be commenced in respect of Octaviar Limited (receivers and managers appointed) (in liquidation) ("OL"). The application is opposed by OL and Mr William Fletcher and Ms Katherine Barnet as joint and several liquidators of OL ("Liquidators").
2By Interlocutory Process dated November 2012, OL and the Liquidators seek orders dismissing the applications brought by 333 Capital, Grant Samuel and JP Morgan and orders under s 588FF(3)(b) of the Corporations Act 2001 (Cth) to take effect nunc pro tunc authorising proceedings brought by the Liquidators and OL against 333 Capital, Grant Samuel and JP Morgan.
3The applications brought by 333 Capital, Grant Samuel, and JP Morgan on the one hand and the Liquidators and OL on the other were heard together.
Background
4By the 30 May Order, Hammerschlag J, inter alia, made an order under s 588FF(3)(b) of the Corporations Act 2001 (Cth) extending the time for OL to make an application under s 588FF(1) of the Act to 3 October 2011. The parties potentially affected by that order, as potential defendants to such an application, included 333 Capital, Grant Samuel and JP Morgan.
5On 8 September 2011, OL's solicitors notified 333 Capital, Grant Samuel and JP Morgan of OL's intention to vacate the 30 May Order and seek orders under s 588FF(3)(b) of the Corporations Act further to extend the time by which the applications on behalf of OL for orders under s 588FF(1) may be commenced on behalf of OL to 3 April 2012.
6By Amended Originating Process dated 19 September 2011, OL initially sought an order under s 588FF(3)(b) of the Corporations Act that the time for making of an application in respect of OL under s 588FF(1) be further extended to 3 April 2012; and an alternative order that the 30 May Order be varied under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.16 to insert the date 3 April 2012 in lieu of 3 October 2011. The former order was not pressed and could not have been made since the time for such an application had expired. The latter order was made by Ward J on 19 September 2011. 333 Capital, Grant Samuel and JP Morgan did not seek to appear and were not heard on that occasion.
7In her ex tempore judgment delivered on 19 September 2009, Ward J noted that she had been taken to authority that suggested, as did the words of s 588FF(3), that there was no power under that section to make successive applications for an extension of time. However, her Honour referred to the decisions of this Court in Nicholson v Nicholson (1974) 2 NSWLR 59 and of the Supreme Court of Victoria in Scott v Casualife Furniture International Ltd [2005] VSC 463; (2005) 56 ACSR 218 and indicated that she was satisfied that there was power to make an order under UCPR r 36.16 varying the 30 May Order, including on an application made by the Liquidators who were, of course, not absent when the 30 May Order was made.
8Her Honour noted that any order would have to be made in the appropriate exercise of the Court's discretion and recognised that it could be suggested that such a variation would circumvent the position that would otherwise arise under s 588FF(3). Her Honour also recognised the importance of the expeditious conduct of a liquidation and observed that, in Scott v Casualife above:
"Mandie J was of the view that the defendants there were entitled to accept that the liquidator would obtain only one determinate extension of time under that section, and to expect that they would not remain at the risk of losing the benefit of any established time bar by reason of the liquidator having recourse to a general power and discretion vested in the Court to vary any order that was made in the absence of the party affected."
9Her Honour then exercised the discretion as to whether to make an order under UCPR r 36.16 and observed that:
"In the present circumstances the benefit of the established time bar has not yet in effect arisen because there is still some short period of time within which the liquidators in accordance with Hammerschlag J's order could commence proceedings. I am not satisfied that it would be in the interests of the just, quick and cheap determination of the real issues in the proceedings, (that being the overriding purpose with which I must consider the application of the rules for the application) for a variation to Hammerschlag J's order to be refused in circumstances where that would be likely to have the effect of precipitating the commencement of proceedings by the liquidators in circumstances where those proceedings may raise issues relevant both to [OL] and Octaviar Administration at a time when the liquidators have not been able properly to determine the claims that may lie and the matters that are relevant to both."
10By the 19 September Order, Ward J ordered that:
"Pursuant to Part 36 rule 16 of the Uniform Civil Procedure Rules 2005 (NSW) the order made by Hammerschlag J on 30 May 2011 in these proceedings be varied to insert in lieu of '3 October 2011', the date '3 April 2012'."
As I noted above, the effect of that order was, in substance, to extend the time within which voidable transaction proceedings could be commenced in respect of OL.
11The Liquidators subsequently commenced proceedings including applications for orders under s 588FF(1) of the Corporations Act against Grant Samuel, 333 Capital and JP Morgan.
12By Interlocutory Process dated 20 July 2012, 333 Capital sought an order setting aside the 19 September Order so far as it concerned OL. Grant Samuel and JP Morgan sought orders to the same effect by Interlocutory Processes dated 30 August 2012 and 18 October 2012 respectively. The Applicants do not challenge another order made by Ward J under s 588FF(3)(b) extending the time for making an application under s 588FF of the Corporations Act on behalf of another entity, Octaviar Administration Pty Limited, to 3 April 2012 which they accept was made under s 588FF(3)(b) within the time period specified in s 588FF(3)(a) in respect of that entity.
13The grounds of the applications are set out in a Statement of Grounds filed on behalf of 333 Capital and Grant Samuel and adopted by JP Morgan. Not all of those grounds were pressed in submissions before me. In particular, the Statement of Grounds raised a contention that UCPR r 36.16 was inconsistent with s 588FF(3) of the Corporations Act 2001 (Cth) and invalid to the extent of the inconsistency by reason of s 109 of the Commonwealth Constitution, which was not pressed in oral submissions. An additional basis to set aside the order was also raised by JP Morgan, and adopted by other Applicants, in oral submissions, to which I will refer below.
14The Applicants accept that that these applications are not in the nature of an appeal from Ward J's decision. They do not contest the exercise of Ward J's discretion or the matters on which OL relied to support the application of that discretion, but only the Court's power to make the 19 September Order in the relevant circumstances. It is therefore not necessary to address the evidence on which the Liquidators relied to support the exercise of that discretion, including affidavits of Ms Barnet sworn 10 May 2011 and of Ms Row, a solicitor with the firm of solicitors acting for the Liquidators, affirmed 30 May 2011 which were read before Hammerschlag J; affidavits of Ms Barnet sworn 8 September 2011 and of Ms Merrick, a partner in the firm of solicitors acting for the Liquidators, sworn 19 September 2011 which were read before Ward J; and a further affidavit dated 28 September 2012 of Ms Barnet that was read in this application. I should nonetheless observe that Ms Barnet's affidavits read before Ward J plainly demonstrate the complexity of the issues facing the Liquidators and, in my view, amply supported the exercise of the discretion by Ward J, if her Honour had power to make the 19 September Order.
Whether UCPR r 36.16 was available
15As I noted above, the Liquidators ultimately sought, and Ward J made, the 19 September Order in exercising the Court's powers under UCPR r 36.16(2). That rule relevantly provides that the Court may set aside or vary a judgment or order after it has been entered where it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order.
16JP Morgan contends that UCPR r 36.16(2) was not available in the relevant circumstances because the 19 September Order was not "made in the absence of a party". This point was taken by JP Morgan in oral submissions before me although not raised in the initial Statement of Grounds filed on behalf of 333 Capital and Grant Samuel and adopted by JP Morgan or in the Applicants' outlines of submissions. I considered that it was appropriate to determine this question where any prejudice that might otherwise be suffered by the Liquidators or OL could be, and was, accommodated by allowing them time for further written submissions as to the point.
17JP Morgan submits that the reference to "party" in UCPR r 36.16(2)(b) is to a party on the record, in the sense referred to in R v Murray, Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 469, where Gavan Duffy and Rich JJ did not accept a submission that the word "party" in s 75 of the Commonwealth Constitution should be read as including all those substantially interested in the proceedings and held that it referred only to a "party to the record". JP Morgan points out that the decision in Nicholson v Nicholson above involved an order made in the absence of a party to the record. JP Morgan contends that the decision in Scott v Casualife Furniture above is not to the contrary, since the Victorian rule, by contrast with UCPR r 36.16(2)(b), expressly allowed the Court to vary an order that "affects a person" where that order had been made on notice to that affected person but that person did not attend the hearing. JP Morgan contends that the reference to "party" in UCPR r 36.16(2)(b) must be intended to have a narrower construction, by contrast with the corresponding provision in the Victorian rule or earlier New South Wales rules. JP Morgan also contends that the terms "active party" and "opposite party", as defined in the Dictionary to the UCPR, are consistent with the narrower reading of the reference to "party" in UCPR r 36.16(2)(b) for which it contends and that a wider reading given to the term "party" in that rule would render otiose the specific extension to a person whom the Court has ordered to be added as a defendant in UCPR r 36.16(2)(c). JP Morgan contends that the 19 September Order was not "made in the absence of a party", in the narrower sense, since the parties to the record - namely the Liquidators and OL - were before Ward J when that order was made and JP Morgan and the other Applicants were not party to the application.
18The Liquidators contend that the meaning of UCPR r 36.16(2)(b) should be determined by a consideration of the ordinary meaning of the text of the provision, read in its context and in light of its purpose and that the term "party" in r 36.16(2)(b) is not used in any technical sense limited to a person formally on the record as a party to proceedings. The Liquidators contend that the purpose of r 36.16(2)(b) is to ensure that a person who is not present at a hearing, but whose interests are affected by the decision, will have an opportunity to contest that decision, and that the purpose of the rule would be defeated if the rule were confined to cases where a person formally on the record as a party to proceedings was absent.
19The term "party" is not defined in the Civil Procedure Act 2005 (NSW) or the UCPR and correlative terms such as "active party" are defined for specific purposes. Various other provisions in the UCPR adopt other usages, either expressly extending to persons whether or not they are party to the proceedings (for example, UCPR r 4.1, 4.2(2)) or to persons who not party to proceedings (for example, UCPR r 5.4) or to persons who are party to the proceedings (for example, UCPR r 4.2(1)). As the Liquidators point out, earlier definitions of the term "party", for example in s 100 of the Judicature Act 1873 (UK) and s 19 of the Supreme Court Act 1970 (NSW) were inclusive in character, and were capable of including a person served with notice of or entitled to attend the proceedings: News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 255; (1996) 21 ACSR 403. JP Morgan responds that the extended definitions of the term "party" in s 100 of Judicature Act 1873 (UK) and s 19 of the Supreme Court Act 1970 (NSW) are not reflected in the terms of UCPR r 36.16(2)(b).
20In Nicholson v Nicholson above, Jenkyn J referred to earlier English authorities including Jacques v Harrison (1883) 12 QBD 136 at 140-141 and observed, in respect of Pt 40 r 9 of the Supreme Court Rules 1970 (a predecessor to UCPR r 36.16(2)(b) which referred to an order made in the absence of a "party") that:
"The other part of the part of the sub-rule, namely r 9(3)(b), which provides an alternative ground for setting aside or varying an order before entry of the order, contains no limitation which would deny to any interested party, whether a party to the proceedings or not, the right to have the order set aside or varied. Nor do I think that, in the absence of some direct authority, the Court should to readily imply any such limitation. It would seem, therefore, that upon the literal words of both r 9(3)(a) and r 9(3)(b) should be construed so as to extend the Court's power to cover applications by all interested persons, and should not be limited so as to apply only to the one against whom the order in substance operates. Support for this view is to be found in Jacques v Harrison."
The approach adopted in Nicholson v Nicholson was followed in Douglass v Gillman (1990) 19 NSWLR 570 at 571 and, in Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; (2010) 80 ACSR 1 at [6], Barrett J referred to Nicholson v Nicholson and Douglass v Gillman and observed that:
"A non-party with a clear interest in the subject matter has been regarded as a competent applicant under the predecessor to r 36.16(2)(b)".
JP Morgan contends that Barrett J in Workers Compensation Nominal Insurer was incorrect in treating Nicholson v Nicholson and Douglass v Gillman as authority that a "non-party" with an interest in the matter was a competent applicant under the predecessor to UCPR r 36.16(2)(b).
21In the absence of a definition in the UCPR requiring the Court to adopt a narrower reading of the term "party", I am not satisfied that the approach adopted by Jenkyn J in Nicholson v Nicholson, adopted by Barrett J in Workers Compensation Nominal Insurer and also adopted by Ward J was incorrect and I would adopt the same approach. There seems to me to be no reason to think that UCPR r 36.16(2)(b) was intended to have a significantly narrower operation than its predecessors, which used similar language. I do not consider the absence of the extended definition of that term in s 19 of the Supreme Court Rules 1970 compels a contrary result, because no narrower definition limiting the meaning of the term "party" to a party on the record was inserted in its place.
22In my view, the reference to "party" in UCPR r 36.16(2) should also be interpreted with regard to the principles as to the circumstances in which a party should be heard before an order is made that effects his or her interests. At general law, a person affected by an order of the Court, who has not had an opportunity to be heard, is entitled as of right to have that order set aside: Cameron v Cole (1994) 68 CLR 571; BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [133]; John Alexander's Clubs Pty Ltd v White City Tennis Club 2010] HCA 19; (2010) 241 CLR 1; 266 ALR 462 at [131]ff. If UCPR r 36.16(2)(b) were read as having a narrower scope, a person who had not been joined as party to the proceeding, although his or her interests were affected by the orders made, could not rely on that rule to set aside the order made in his or her absence, although an application under general law principles would still be available to that person.
23In summary, a wider reading of the reference to "party" in UCPR r 36.16(2)(b) gives effect to the principles as to the circumstances in which a party should be heard before an order is made that effects his or her interests and is consistent with the interpretation given to the predecessor provisions of the rule dealing with the same subject matter, and no reason why the operation of the rule should have been narrowed is apparent to me. I consider that wider reading should be adopted and I therefore do not accept JP Morgan's submission that UCPR r 36.16 was not available on this ground.
24A further question was raised as to whether it was open to the Liquidators, having obtained the 30 May Orders, then to apply for them to be varied under UCPR r 36.16. In Nicholson v Nicholson, Jenkyn J held that Pt 40 r 9 of the Supreme Court Rules 1970 permitted a party that had sought an order in the absence of another party subsequently to move to set it aside or vary it. His Honour observed that there was no reason to read down the literal meaning of that rule to prevent an application by a person other than the absent party, although it would only be in an exceptional case that a party other than the absent party would be seeking to set aside such an order. That decision was in turn considered and followed by Mandie J in Scott v Casualife Furniture above, although the liquidator was there not successful in its application to vary an extension order that it had obtained in the absence of affected parties on the particular facts. Mr McHugh, who appeared for 333 Capital, made a formal submission that Nicholson v Nicholson and Scott v Casualife Furniture were wrongly decided so far as they would permit the moving party for such an order to rely on UCPR r 36.16 but accepted that I would follow those decisions as a judge sitting a first instance. I consider that I should follow those decisions.
Whether s 588FF(3)(b) excludes an application made under UCPR r 36.16
25I turn now to the other grounds on which the Applicants sought to set aside the 19 September Order. I will deal with those grounds by reference to the Statement of Grounds filed by Grant Samuel and 333 Capital and adopted by JP Morgan. While I deal with alternative grounds raised and arguments put by the Applicants separately, there was a substantial degree of overlap between those arguments.
26It is convenient first to refer to the relevant provisions. Section 588FF(1) of the Corporations Act sets out the orders which the Court may make on the application of a company's liquidator, when it is satisfied that a transaction of the company is voidable by reason of s 588FE. Section 588FF(3) in turn provides that:
"An application under sub-section (1) may only be made:
(a) During the period beginning on the relation-back day and ending:
(i) 3 years after the relation-back day; or
(ii)12 months after the first appointment of a liquidator in relation to the winding up of the company;
whichever is the later; or
(b) Within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period."
It will be noted that s 588FF(3) of the Corporations Act refers to an application under s 588FF(1) which may only be made within the specified period under s 588FF(3)(a), or within such longer period as the Court orders on an application under s 588FF(3)(b) made by the Liquidator during the period specified in s 588FF(3)(a).
27The first of the grounds identified in the Applicants' Statement of Grounds is that:
"Section 588FF(3)(b) imposes a condition which is of the essence of the right to relief under s 588FF(1) and covers the field so far as extensions of the period prescribed by s 588FF(3) are concerned."
JP Morgan contends that a use of the general power of amendment under UCPR r 36.16 to amend the date specified in the 30 May Order would in effect allow a second extension application to be made after the expiration of the 3 year period and is inconsistent with the proper construction of s 588FF(3).
28It seems to me that this ground depends on the proposition that what occurred in the present case was not, in fact, an extension of the period for the commencement of proceedings in accordance with s 588FF(3)(b) of the Corporations Act. There is no doubt that, as I noted above, the variation made by the 19 September Order in fact extended the time in which proceedings could be brought by the Liquidators and OL against the Applicants beyond that provided in the 30 May Order. However, there remains a question whether the proceedings brought by the Liquidators under s 588FF(1) of the Corporations Act are nonetheless properly characterised as brought by the Liquidator with the period allowed in an application under s 588FF(3)(b) of the Corporations Act, which had been brought within the time period specified in s 588FF(3)(a), where that period was specified by the 30 May Order made within that period and varied by the 19 September Order made outside that period.
29The Applicants refer to the decision in Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500, where the High Court dismissed a petition disputing an election which was not filed within the 40 day period specified in s 335(e) of the Commonwealth Electoral Act 1918 (Cth), noting that that requirement was "a condition which is of the essence of a new right". The Court pointed to authority that it was not possible to remedy any non-compliance with the relevant requirement by amendment of a proceeding filed within that time period, since that would permit the evasion of the 40 day period. In my view, the High Court's reasoning is distinguishable from the present case in two respects. First, the 40 day period to which the Court there referred was not capable of extension, whereas the present case concerns the exercise of the Court's statutory power to extend the period specified in s 588FF(1) of the Corporations Act, in the circumstances permitted in s 588FF(3)(b). Second, the present case does not involve any subsequent amendment of proceedings to seek to introduce the claim under s 588FF(1), but instead a claim brought within the time period which results from the 30 May Order as varied by the 19 September Order.
30The Applicants rightly emphasise the decision in BP Australia Ltd v Brown above, where the Court of Appeal held, inter alia, that the time period within which a liquidator could apply for an extension of time under s 588FF(3)(b) of the Corporations Act could not be extended by the operation of s 1322(4)(d) of the Corporations Act. The Court there noted that s 588FF(3)(b) "is a comprehensive provision for extension of time" and that it applies to the exclusion of the general power of extension of time under s 1322(4)(d) (per Spigelman CJ at [85], [129], Mason P and Handley JA agreeing). Spigelman CJ there pointed to a number of factors which supported a view that s 588FF(3)(b) should only permit an extension of time made within the period specified in s 588FF(3)(a), including the word "only" in the section; the fact that the "overriding principle" of Part 5.7B is that of fairness, and the passage of time adversely affects the balance of fairness (per Spigelman CJ at [101]-[102], [111]); the policy of encouraging expedition in the conduct of liquidations (at [104]-[110]); and the policy in favour of certainty embodied in the text of s 588FF(3) (at [117]). Spigelman CJ also observed at [118] that:
"S[ection] 588FF(3) does not have the effect of requiring all applications to be brought within a short period of time. It does, however, have the effect of requiring those who wish to keep open the option to do so, to determine that they do wish to do so within the three year period and to seek a determinate extension of the period. One thing that must be decided within the three year period is how long the process of deciding whether to pursue voidable transactions will take. Eventually, investigations to overcome deficiencies of information or the pursuit of funding must cease. Parliament has identified a reasonable time for such matters to occur, subject to a single determinate extension of time.
The question of the interaction between the specific power of extension in s 588FF(3) of the Corporations Act and the general power to extend time periods under s 1322(4) of the Corporations Act raises, of course, somewhat different issues to the question whether the Court may vary an order it has already made under s 588FF(3) in the manner provided in its rules. Nonetheless, that decision is, of course, binding upon me and I also recognise that the policy considerations to which Spigelman CJ there refers have compelling force.
31The Applicants also rely on Greig v Stramit Corporation Pty Ltd [2004] 2Qd R 17, where the Court of Appeal of the Supreme Court of Queensland held that the general power of amendment conferred by s 81 of the Supreme Court of Queensland Act 1991 (Qld) would not permit a retrospective amendment of an application for an extension of time so as to add a party, after the period specified in s 588FF(3)(a) of the Corporations Act had expired. Williams JA observed at [90] that:
"Any general power of amendment conferred on the Court pursuant to s 81 would not permit the making of an amendment which effectively (though not in express terms) extended the time limit in s 588FF(3)."
Jerrard JA observed that the general power conferred by that section could not overcome the specific time limitation prescribed in s 588FF(3). The Court of Appeal of the Supreme Court of Queensland took the same view in Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257 at [13]. Those decisions address the exercise of the Court's amendment power in proceedings commenced under s 588FF(1), for example to add a new cause of action or a new party, rather than the anterior question of the Court's exercise of its powers under s 588FF(3)(b) so as to extend the time for the commencement of such proceedings.
32On the other hand, in Scott v Casualife Furniture above, Mandie J treated a power under the Victorian Supreme Court (General Civil Procedure) Rules 1996 (Victoria) as available to vary a previous order extending time under s 588FF(3)(b) to further extend the time to bring proceedings under s 588FF(1). His Honour there declined to grant the extension on the particular facts, focusing (at [22]) on the exercise of the discretion as to whether such an order should be made having regard particularly to the expectation of a single determinate extension of time identified by Spigelman CJ in BP Australia Ltd v Brown.
33In Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 233 CLR 251 (to which the Court also referred in Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 to which I will refer below), the plurality observed that an action not commenced within the two year limitation period prescribed by s 34 of the Civil Aviation (Carriers' Liability) Act (Cth) would have been extinguished and the Court's power to allow amendments after expiry of a limitation period could not have permitted an action to be brought after the two year period. The plurality observed at [51]-[54] that s 34 of the Civil Aviation (Carriers' Liability) Act 1959 imposed a condition which is "of the essence of the right of damages rather than providing for no more than a bar to the enforcement of an existing right". The Applicants argue that s 588FF(3) likewise imposes a condition that is of the essence of the right to relief under s 588FF(1), and there is no right to relief under s 588FF(1) if that condition is not complied with. However, it seems to me that this decision is distinguishable to the extent that it deals with whether a right of action can be reinstated following its extinction rather than whether the effect of extinction can be avoided where an order is made within time and that order is then varied by the Court.
34In Gordon v Tolcher above, an application under s 588FF(1) was commenced within 3 years of the relation-back date; the rules of the District Court treated that application as dismissed when not served within a specified period, and there was a challenge to the exercise of the Court's power under the relevant rules to reverse that result and thereby preserve the effect of the proceedings that had originally been commenced within time but would, absent the exercise of that power, be dismissed. The plurality of the High Court observed (at [32]) that:
"Section 588FF does not deal with the investment of federal jurisdiction in any court or with the manner of exercise of that jurisdiction. The section is found in Pt 5.7B, whilst the jurisdiction of courts is provided for in Pt 9.6 A. Section 588FF is silent respecting the procedures to be adopted by the court exercising federal jurisdiction in the present matter; this jurisdiction is conferred by s 1337E upon the District Court. Section 588FF evinces a two-fold legislative intention. First, conferral of federal jurisdiction is left to Pt 9.6A of the Corporations Act. Secondly, subject to any operation of other provisions of the Corporations Act, after the institution of an application the procedural regulation of the conduct of a matter is left for that particular State or territorial procedural law which is to be picked up by s 79 of the Judiciary Act."
35Their Honours also characterised the time stipulation in s 588FF(3) as an "element of the right" created and "of the essence of the provision made by s 588FF"; noted that it was not merely a "time stipulation of a procedural nature" but "an essential element of the regime" created by that section; and referred to the decision in BP Australia Ltd v Brown with approval (at [36]-[40]). They observed (at [40]) that:
"Accordingly, s 588FF is dealing, as an essential aspect of the regime it creates, with the period within which the application must be made. An application may be made only to a court invested with federal jurisdiction by one or other of the provisions of Pt 9.6 A. Thereafter, and subject to any other relevant provision of the Corporations Act, the conduct of the litigation is left for the operation of the procedures of that court. These procedures will vary from one State or Territory to another and within the court structures of those States and Territories. The scheme of the Corporations Act is not to impose a direct federal and universal procedural regime. Rather, s 79 of the Judiciary Act is left to operate according to its terms in the particular State or Territory concerned."
36Grant Samuel contends that the application under s 588FF(1) in issue in Gordon v Tolcher had been made within time (at [17]); that the passage in BP Australia Ltd v Brown at [40], quoted above, is directed to an application under that section made within time; and that that passage is not authority that the Court's ordinary procedures apply to determine the period within which an application under s 588FF(1) may be made, but only as to the application of those procedures after such an application is made within time. 333 Capital similarly contends that Gordon v Tolcher is distinguishable on its facts. On the other hand, the judgment of the plurality in Gordon v Tolcher seems to me at least to establish (at [32]) that s 588FF does not "otherwise provide" in relation to any rules of procedure applicable in a Court in which an application under s 588FF(1) has been commenced within the required time.
37In Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 69; (2007) 61 ACSR 246 at [69], Barrett J, without needing to reach a final decision, clearly doubted the Court's ability to exercise the power of variation under UCPR 36.16 in respect of an order made under s 588FF(3)(b), noting the "clear recognition in BP Australia v Brown that s 588FF(3)(b) covers the field, so far as an extension of the s 588FF(3) period is concerned". In a further decision in Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 268; 61 ACSR 429 at [34]ff, Barrett J hypothesised a situation where a liquidator had applied for an extension of time within the period specified in s 588FF(3)(a) and then, after that period expired, applied to vary the earlier order by substituting the initial extension date with a later extension date, and then did not file an application under s 588FF(1) until after the application date. Barrett J noted that he was not deciding the ultimate question of the effectiveness of a varying order, but instead whether it was "unreasonable, irrational or oppressive for a liquidator offered consent to the making of such a varying order not to accept the offer" (at [33]), but also observed (at [37]) that:
"Even assuming that the original s 588FF(3)(b) order extending time was, as is suggested by Scott v Casualife Furniture International Ltd (2005) 195 FLR 170, an order of the kind that the rules of court allow to be varied by a later order, it does not seem to me possible that any varying order would (or could be made to) have such force and operation as to change the date of the making of the order it varied. Even less could it change the date of the application for the order it varied. A varying order may, by the terms in which it is made, have effect from the date on which the order it varies was made: see Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559 at p 563. But that does not affect the time at which any order was made or the time at which any application for an order was made, the latter being, for reasons stated, the important event for the purposes of s 588FF(3)(b). Going back to the hypothetical example, I consider it obvious that the varying order made on 30 November 2006 could not, by any form of retrospective language, turn the application in fact made on 30 October 2006 into an application made on 30 June 2003."
38The Liquidators contend that the views expressed by Barrett J in the Onefone matters were expressed in circumstances in which no basis had been shown for the Court to exercise any power to re-open orders under r 36.16(3) and no issue had arisen as to the availability of r 36.16(2)(b) and are therefore distinguishable. The Liquidators also contend that Barrett J did not decide whether, when a procedural power like r 36.16(2)(b) is available in extant proceedings, an invocation of that power is in substance a new "application". It seems to me that the view expressed by Barrett J in the passage quoted above depends on treating the operative application for an extension of time in which to bring the proceedings under s 588FF(1) as being the second (variation) application (in his Honour's example, brought on 30 October 1996 and leading to orders made 30 November 2006) rather than the original application for such an order (in his Honour's example, made on 30 June 2003). It does not seem to me that that view would follow if the original application, rather than the interlocutory process seeking variation of the order made on that original application, was treated as being the operative application.
39The Applicants point out, with considerable force, that there will never be a truly "determinate" extension of time sought within the 3 year period, to use the language of BP Australia Ltd v Brown above at [118], if the period of time specified in s 588FF(3)(b) is capable of extension, in substance, by subsequent variations under UCPR r 36.16 of an order initially made within time. On the other hand, the Liquidators accept that an action not commenced within the 3 year time period specified in s 588FF(3) is extinguished, unless the time is extended under s 588FF(3) by an application made within the specified period. They contend that occurred in this case, because that time period was extended by Hammerschlag J by the 30 May Order made within that time period, and the 19 September Order varied the operation of the 30 May Order rather than creating a freestanding and separate extension.
40For several reasons, I do not accept the Applicants' submission that s 588FF(3)(b) covers the field so as to excludes a subsequent variation under UCPR r 36.16 of an order properly made under s 588FF(3), where the original order was made within the time specified in that section. First, I do not think that it is open to me to accept that submission, so far as the plurality judgment in Gordon v Tolcher recognises the continued operation of the Court's rules of procedure in this context. It seems to me the plurality's reasoning cannot be limited only to the situation in which a power exercised under those rules will undo the extinction of an action previously commenced within time, as distinct from permitting the commencement of an application which could not otherwise be commenced. The position where the rules of the Court permit a variation of an order already made seems to me to be distinct from reliance on the general power of extension under s 1322 of the Corporations Act, considered in BP Australia Ltd v Brown. The approach adopted by Ward J can be reconciled with the policy factors and interests of certainty to which the Court of Appeal referred in BP Australia Ltd v Brown by recognising, as Ward J did, the significance of those factors for the exercise of the Court's discretion. To that extent, I adopt the approach adopted in Scott v Casualife and followed by Ward J.
41It also seems to me that, possibly contrary to a view which is implicit in the observations of Barrett J in Onefone to which I have referred above, the proceedings brought by the Liquidators under s 588FF(1) of the Corporations Act are properly characterised as brought in accordance with the 30 May Order made on an application within the time period specified in s 588FF(3)(a), notwithstanding that they also rely on a variation order made outside that time period. That analysis also seems to me to be consistent with that adopted in Gordon v Tolcher, where the plurality of the High Court did not accept a submission that the relevant application by the liquidator was, in substance, a separate application for relief under s 588FF that was not available since made outside the period specified in s 588FF(3)(a). An order made in accordance with s 588FF(3)(b), as the 30 May Order was, and subsequently varied by UCPR r 36.16 is one which, in terms, still complies with the requirements of s 588FF(3)(a), since it was made on an application within the period.
Whether the only longer period ordered by the Court had expired
42The second of the grounds identified in the Applicants' Statement of Grounds is that:
"The only "longer period" that was ordered by the Court "on an application under [s588FF(3)(b)] made by the liquidator during the paragraph (a) period" is that which expired on 3 October 2011."
43In my view, this ground is derivative of the Applicants' other grounds of attack on the 19 September Order and cannot succeed unless one of those other grounds succeed. As I have noted above, I consider that a longer period was ordered, by the 30 May Order, within the period specified in s 588FF(1) of the Corporations Act. The initial period ordered by the Court on an application under s 588FF(3)(b) would only have expired on 3 October 2011 if it were not properly extended by the 19 September Order. This ground of the Applicants' claim can therefore only succeed if the variation made under UCPR r 36.16 was not effective so as to extend the time previously ordered under the application made by the Liquidators within time. That variation was not effective only if that rule should not be given effect in accordance with its terms in this area (an issue I have addressed above) or if it was otherwise not applicable by reason of s 79 of the Judiciary Act 1903 (Cth), an issue that I will address below.
44In my view, for the reasons set out elsewhere in this judgment, the time period ordered under that section was varied in a manner which I consider was within the Court's power so that it did not expire within that period. The Applicants therefore do not succeed in this ground.
Whether the Court lacked power to make the 19 September order because the time period specified in s 588FF(3) had expired
45A further ground identified in the Applicants' Statement of Grounds is that:
"The plaintiffs applied for the 19 September order after the period prescribed by s 588FF(3)(a) had expired, such that the 19 September order was not made "on an application under [s 588FF(3)(b)] made by the liquidator during the paragraph (a) period." In those circumstances, neither s 588FF(3) nor Uniform Civil Procedure Rule 36.16 ... empowered the Court to make the 19 September Order."
46In my view, the Applicants also do not succeed on this ground, since the only application for an order under s 588FF(3) was that which resulted in the 30 May Order, which was made within the time period required under s 588FF(3)(a). I do not consider that position changes because the extension ordered under that section was later varied, in a manner that I consider was within the Court's power for the reasons set out elsewhere in this judgment. I do not accept the characterisation of the application for the 19 September Order as a separate application under s 588FF(3) made outside time.
Whether UCPR r 36.16 is not "picked up" by s 79 of the Judiciary Act
47A further ground identified in the Applicants' Statement of Grounds is that:
"As s 588FF(3) "otherwise provided", UCPR 36.16 was not "picked up" by s 79 of the Judiciary Act and had no application to the proceeding before Ward J."
It appears this argument was not raised in Casualife Furniture or addressed by the Liquidators in the application before Ward J. Section 79 of the Judiciary Act 1903 (Cth) relevantly provides that:
"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
48The Applicants contend, and I accept, that the application made before Hammerschlag J under s 588FF(3)(b) invoked the judicial power of the Commonwealth. The Applicants further contend that, if UCPR r 36.16 allowed the Court to make an order extending the time within which an application under s 588FF(1) may be made, notwithstanding that order was not applied for during the s 588FF(3)(a) period, then UCPR r 36.16 would derogate from the extinction of rights arising under s 588FF(1) that is brought about by s 588FF(3) of the Federal statute and, to the extent it would have that effect, a law of the Commonwealth "otherwise provides" and UCPR r 36.16 is not "picked up" by s 79 of the Judiciary Act. The Applicants also rely on the example given by Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd and his Honour's analysis of that example to support the contention that s 79 of the Judiciary Act does not pick up the operation of UCPR r 36.16 in this circumstance, because it cannot alter the time within which an application under s 588FF(1) must be commenced.
49I do not consider that it is open to me to accept this submission. The appellant in Gordon v Tolcher submitted that the rules in issue in that case were not "picked up" by s 79 of the Judiciary Act since they were irreconcilable with s 588FF of the Corporations Act. The High Court addressed that submission by distinguishing between, first, the scope of s 588FF of the Corporations Act; second, the investment of federal jurisdiction in the Court, under Part 9.6A of the Act; and third, the procedural regulation of the conduct of a matter by State or Territory procedural law which applied after the institution of an application. In my view, that decision is inconsistent with a contention that a procedural order that avoids the extinction of a cause of action which would otherwise occur under s 588FF(3) is inconsistent with that section, so as not to be "picked up" by s 79 of the Judiciary Act. The Court there upheld such an order notwithstanding that otherwise the District Court proceedings in issue would have been taken to have been dismissed and the cause of action to be extinguished.
50It also seems to me that this submission again depends upon a characterisation of the operative application for an extension of time in which to bring the proceedings under s 588FF(1) as being that leading to the 19 September Order rather than the original application leading to the 30 May Order. If that characterisation is not adopted, then the order under UCPR r 36.16 had the consequence that an extension of time to commence proceedings was granted within the period of time required by s 588FF(3)(a), albeit the period of that extension was capable of later variation and was later varied. That would be consistent with, rather than to derogate from, the statutory requirement. Since I do not accept that characterisation, I also do not accept this submission for that reason.
Whether the 19 September Order lacked utility
51A further ground identified in the Applicants' Statement of Grounds is that:
"Irrespective of the question of power, as it is the application for an order extending time, not the order itself, that s 588FF(3)(b) requires to be made within the paragraph (a) period, the 19 September order was of no utility and should not have been made under UCPR 36.16."
The Applicants again rely on the example given by Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd and his Honour's analysis of that example, to which I have referred above, to contend that no application for the extended period the subject of the 19 September Order was made within the time period specified in s 588FF(3)(a) and accordingly the extension was of no utility.
52In my view, the Applicants do not succeed on this ground. As I have noted above, the application for the 30 May Order was made within the time period required under s 588FF(3)(a), and I do not consider that position changes because the extension ordered under that section was later varied, in a manner which I consider was within the Court's power for the reasons set out elsewhere in this judgment.
The Liquidators' Interlocutory Process
53The Liquidators' Interlocutory Process filed on 20 November 2012 seeks an order that, if the Applicants' Interlocutory Processes are successful in respect of the availability of r 36.16(2)(b) that an order be made nunc pro tunc to the effect of the 19 September Order. The Liquidators rely on UCPR r 1.12 to support such an order, which allows a power to extend or abridge any time fixed by the rules or by any judgment or order of the Court. The Liquidators submit that, in Gordon v Tolcher, the Court of Appeal had exercised a corresponding power after the earlier proceedings had been dismissed and the period under s 588FF(3)(a) had expired. The Liquidators contend that UCPR r 1.12 is picked up by s 79 of the Judiciary Act 1903 (Cth) on the same basis as UCPR r 36.16(2)(b). JP Morgan responds to the Liquidators' alternative submission based in UCPR r 1.12 by repeating its earlier submission that s 588FF of the Corporations Act "otherwise provides" in relation to that rule. JP Morgan points out that, where it is established that the power under s 1322(4)(d) of the Corporations Act to extend time cannot be relied upon to extend the time for an application under s 588FF(3), a corresponding power under UCPR r 1.12 would not be available for that purpose. It is not necessary to determine this question given the result that I have reached on other grounds.
Orders
54Accordingly, the Applicants' Interlocutory Processes should be dismissed. The Liquidators' Interlocutory Process does not need to be determined, in
consequence, and should also be dismissed. The Applicants should pay the costs of the proceedings.