The validity of the extension to 9 March 2020
42 On 6 March 2020, Judge Street purported to extend the petition to 9 March 2020. His Honour did so with reference to s 52(5) of the Bankruptcy Act and s 36(2) of the Interpretation Act in his reasons for judgment of that day. His Honour reasoned (at [19]) that the making of the sequestration order within the term of currency of the petition is a thing to be done which falls within s 36(2) and, accordingly, the Court had power to make the order that was made on 6 March 2020 extending time up to and including 9 March 2020.
43 It was accepted in this Court by counsel for the first respondent that his Honour erred in considering that the Court had power to extend the petition beyond the period of 24 months from the date that it was presented. There is plainly no such power in s 52(5) of the Bankruptcy Act which is expressly to the opposite effect, and, equally, s 36(2) of the Interpretation Act gives no power. The real question is whether by reason of the automatic application of s 36(2) the life of the petition was extended to 9 March 2020. That is to say, if his Honour is correct that s 36(2) had application in the particular circumstances then the sequestration order could validly be made on 9 March 2020. Conversely, if s 36(2) had no application, the sequestration order could not be validly made on that date.
44 The principal authority relied on by the first respondent on the application of s 36(2) is the judgment of Lindgren J in Roskell. In that case, the initial period of 12 months of the creditor's petition in the Federal Magistrate's Court (as the Circuit Court was then still named) ended on 25 April 2006 which was a public holiday, Anzac Day ([43]-[44]). Although the hearing of the creditor's petition had occurred some nine months earlier, on 12 August 2005, decision on the petition had been delayed by Driver FM pending the outcome of a case in the High Court that could have had a bearing on the decision ([13], [19]). That High Court judgment was ultimately delivered on 4 April 2006 so orders were made by Driver FM on 11 April 2006 requiring any further affidavits and written submissions to be filed by 26 April 2006, i.e., the day after the petition was due to lapse unless extended ([15]-[16]).
45 Without mentioning any extension of the petition, judgment was delivered by Driver FM on 6 June 2006 dismissing the petition on the merits ([18], [25]). That judgment was appealed, and Jacobson J in this Court allowed the appeal ([20]). His Honour raised a new point, being the lapsing of the petition that had not been considered by Driver FM or argued before him, and remitted the matter to the Federal Magistrate's Court for that Court to determine whether it had power to make a sequestration order (i.e., the lapsing issue) and, if so, whether such an order should be made ([25]).
46 On remittal, Driver FM made an order on 16 April 2007 pursuant to s 52(5) of the Bankruptcy Act and the slip rule that "the petition filed on 26 April 2005 be extended until 25 April 2007" and that the debtor's estate be sequestrated ([1]). In Driver FM's reasons for judgment it was explained that the steps required of the parties (i.e., to file any further affidavits and submissions on or before 26 April 2006) were to be taken up to a date after the 12 month period elapsed and that it would have made no sense to make those orders if the creditor's petition was not to be extended ([29]). On that basis, his Honour justified the application of the slip rule in extending the petition for a further period of 12 months ([31]).
47 There was then a second appeal, the judgment in which is the judgment of Lindgren J under discussion. His Honour identified as the second issue arising in the appeal whether there had been an accidental slip or omission as found by Driver FM for the purposes of the slip rule ([36]). In the context of answering that question his Honour accepted as correct a submission by counsel who made submissions on behalf of the debtor (i.e., the appellant) that "the period of 12 months commencing on the date of presentation of the petition" was a "period … allowed by an Act for the doing of anything" within s 36(2) of the Interpretation Act because it was a period allowed by the Bankruptcy Act for the making of an order by the court under s 52(5) of that Act ([47]). The relevance of that submission was that counsel argued that the learned Magistrate had been incorrect in saying that the parties had been required to file evidence and submissions on a date after the petition had lapsed because even on that date, by the operation of s 36(2), they could have applied for an extension of the petition ([46]).
48 Ultimately, Lindgren J concluded that there had been an error (of omission) in the learned Magistrate's orders of 11 April 2006, being the accidental failure to extend the petition, with the result that the slip rule had been available on remittal ([57]). It was also concluded that the learned Magistrate had the power to extend the life of the petition by the order made on 16 April 2007 with retrospective effect ([58]). Thus, the appeal was dismissed ([60]).
49 Two observations can be made about the judgment in Roskell.
50 First, it is not at all clear that the reasoning at paragraph [47] with regard to the application of s 36(2) to an application to extend the life of a creditor's petition under s 52(5) is part of the rationes decidendi. It appears to have been obiter dictum, which is indicated by the characterisation of the point as "interesting" ([44]), which appears to be the primary explanation for why it was dealt with in the judgment, and that it ultimately led nowhere, forming no part of the ultimate reasoning and conclusion on the question of whether the slip rule was available (see [52]-[53]). The point in issue was whether Driver FM considered or understood 26 April 2006 to be the day after the petition lapsed (he did), and not whether an extension order could still actually have been made on that day because of the operation of s 36(2) (it could).
51 All that said, I am satisfied that his Honour's conclusion that s 36(2) of the Interpretation Act is applicable to an order to extend the life of a creditor's petition under s 52(5) of the Bankruptcy Act is correct for the reasons that his Honour gave. I also note that that conclusion has been referred to with apparent approval by the High Court in Kumar at [24] (fn 37) per Bell, Keane and Gordon JJ and [29] (fn 43) per Gageler J.
52 Secondly, and most pertinently for present purposes, the judgment does not deal with the question which is presented in the present case, namely whether s 36(2) of the Interpretation Act applies to the making of a sequestration order under s 43(1) of the Bankruptcy Act. That question in turn raises the question of the application of s 36(2) to s 52(4) of the Bankruptcy Act.
53 Under s 43(1) of the Bankruptcy Act, the court may make a sequestration order against the estate of the debtor "on a petition presented by a creditor". Clearly, if the petition has lapsed at the time that the order is sought to be made then it cannot be made as there is at that time no "petition presented by a creditor". Section 43(1) is not a provision that "requires or allows a thing to be done" by a particular date ("the last day") within the meaning of s 36(2) of the Interpretation Act. It merely sets as one of the requirements for the making of a sequestration order that there be a creditor's petition.
54 In that sense, s 43(1) of the Bankruptcy Act is similar to the provision of the Migration Regulations 1994 (Cth) dealt with in Kumar. That provision required that when the application for a particular visa was made, the applicant had to be the holder of a particular class or subclass of visa ([4]). It was held that no time limit was imposed expressly or by necessary implication under the governing Act and regulations on the making of an application for the visa. Therefore, s 36(2) of the Interpretation Act did not apply to assist the applicants who made their visa applications on a Monday and their previous relevant visas had expired the preceding day: [24]-[25] per Bell, Keane and Gordon JJ and [31]-[33] per Gageler J.
55 However, there is an important distinguishing feature in the provisions of the Bankruptcy Act. It is s 52(4). That is to say, s 43(1) is not to be read in isolation. It is necessary to have regard to all the relevant interrelated provisions in answering the question whether there is a "last day" (as referred to in s 36(2)) for the making of a sequestration order which is allowed by s 43(1). Section 52(4) provides, in effect, for the lapsing of a creditor's petition after 12 months from when it was presented unless one of two things occurs, namely:
(1) the court makes an order under subsection (5) extending the petition (for a period not exceeding 24 months from when the petition was presented); or
(2) a sequestration order is made on the petition or the petition is dismissed or withdrawn.
56 The "necessary implication" (Kumar at [25]), or "implication" (Kumar at [30]), of s 43(1) read together with s 52(4) of the Bankruptcy Act is thus that the "last day" for the making of a sequestration order on a creditor's position is 12 months from when the petition was presented or the period fixed by an order of court under s 52(5) (being no more than 24 months from when the petition was presented). Thus, with reference to s 36(2) of the Interpretation Act, if the last day for the making of a sequestration order is a Saturday, a Sunday or a holiday, then the order may be made on the next day that is not a Saturday, a Sunday or a holiday.
57 In the present case, the last day for the making of the sequestration order was Saturday, 7 March 2020. Therefore, s 36(2) of the Interpretation Act operated so as to allow such an order to be made on Monday 9 March 2020.
58 I have considered whether it might be said that the "last day" for the making of the sequestration order in the present case was set by an order of court and not by the Bankruptcy Act, and thus not by "an Act" as required by s 36(2) of the Interpretation Act, with the result that s 36(2) does not apply. I have, however, concluded that that analysis would not be correct. The reason for that conclusion is that the lapsing of the petition is brought about not by the court order but by the operation of s 52(4)(b) of the Bankruptcy Act "at the expiration of … the period fixed by the order". It is the lapsing of the petition that requires (or allows) the sequestration order to be made up until the last day fixed by the order of court.