Hrycenko v Hrycenko

Key relevant provisions 26 The relevant provisions of the Bankruptcy Act are set out in the judgment of McElwaine J. I note, in particular, s 52(4) and (5), which provide: (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whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.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. 27 At all relevant times, the Rules of Court contained provisions relating to the varying of judgments and orders. It is unclear whether the applicable Rules of Court are those in force at the time the order sought to be corrected was made (14 May 2021) or at the time the correcting order was made (14 January 2022), but it is unnecessary to resolve that question as the substantive position is the same. 28 As at 14 May 2021, the applicable Rules of Court were the Federal Circuit Court Rules 2001. Rule 16.05 of the Federal Circuit Court Rules 2001 relevantly provided: 16.05 Setting aside or varying judgments or orders … (2) The Court or a Registrar 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; … … (h) there is an error arising in the judgment or order from an accidental slip or omission. 29 The Rules of Court in force as at 14 January 2022 were in the same terms: see r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. 30 It is sufficient for present purposes to focus on the power in paragraph (h) of the above rules, which may be referred to as the "slip rule".

Applicable principles 31 In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 (Elyard), a Full Court of this Court (Black CJ, Lockhart and Lindgren JJ) considered the operation of the slip rule (contained in O 35, r 7(3) of the Federal Court Rules 1979) in the context of s 459R of the Corporations Law. Section 459R was in the following terms: (1) An application for a company to be wound up in insolvency is to be determined within 6 months after it is made. (2) The Court may by order extend the period within which an application must be determined, but only if: (a) the Court is satisfied that special circumstances justify the extension; and (b) the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires. (3) An application is, because of this subsection, dismissed if it is not determined as required by this section. 32 Briefly stated, the facts of Elyard were as follows. On 18 November 1994, an application for the winding up in insolvency of the appellant (Elyard) was made. On 21 April 1995, orders were made substituting another creditor as applicant, adjourning the proceeding to 26 May 1995 and extending the period within which the application had to be determined (the period) to that date. On 26 May 1995, orders were made adjourning the proceeding to 9 June 1995 and further extending the period to that date. On 9 June 1995, consent orders were made by a Registrar substituting the respondent (DDB) as applicant and adjourning the proceeding to 16 June 1995, together with consequential orders and directions. The solicitor for DDB intended to apply for an order further extending the period but omitted by inadvertence so to apply. No such order was made. On 9 August 1995, the judge (Sheppard J) made an order, pursuant to the slip rule, that the orders made on 9 June 1995 be corrected by adding an order that the period be further extended to 30 November 1995. 33 The primary question before the Full Court was whether s 459R(2)(b) prevented the making on 9 August 1995 of the order for extension. All members of the Full Court held that s 459R did not displace the application of the slip rule or render it unavailable: see 391-393 per Lockhart J (Black CJ agreeing); and 404-405 per Lindgren J (Black CJ agreeing). In the course of his judgment, Lockhart J stated at 390-391: The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision: … (Emphasis added.) 34 Further, Lockhart J stated at 391: It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: … (Emphasis added.) 35 At 391, Lockhart J referred to the appellant's argument based on the language of s 459R(2) and (3). The argument was put on two independent bases: first, that the language of subs (2) required any application for an extension to be made before the expiry of the period as earlier extended; and secondly, that the application to wind up the appellant was dismissed by operation of subs (3). In rejecting these arguments, Lockhart J stated at 391-392: 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. In the result, the Registrar's order of 9 June 1995 embodied the correction of Sheppard J's subsequent order, so that the order of 9 June 1995 was corrected to extend the relevant period under s 459R before the prescribed period had expired. 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 may be trite, but it is worth repeating that the slip rule exists to avoid injustice: see Monaco v Amedo Pty Ltd (1994) 13 WAR 522 at 524 per Malcolm CJ. The purpose of the rule would be denied if s 459R operated to achieve the result for which the appellant contends. It is irrelevant that the later order of Sheppard J, 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. (Emphasis added.) 36 At 392, Lockhart J noted that "[p]rovisions such as s 459R(2)(b) and (3) and s 459G of the Corporations Law, and s 52(3) and (5) of the Bankruptcy Act, reflect the intention of the Parliament that applications to wind up companies and petitions to sequestrate the estates of natural persons must be dealt with promptly". His Honour then stated: This evident purpose of the Parliament is not denied at all by the exercise by the court of its power under the slip rule to correct accidental slips when justice requires that this be done. The Court has a discretion which it would be loath to exercise except in clear cases. (Emphasis added.) 37 In Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 (Griffiths), the Full Court of this Court (Spender ACJ, Dowsett and Collier JJA) stated, at [30]: With all respect, we are a little uncomfortable with the view, inherent in Elyard, that the slip rule may be used to extend time notwithstanding the statutory requirement that such order be made within a period of time which has elapsed. However Elyard concerns the practice of the Court and has now stood for over 10 years without legislative intervention. We are reluctant to reconsider it. Although it does not directly bind us in applying s 52 of the Bankruptcy Act, to take a different approach would cause substantial confusion in insolvency practice. 38 In Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375 (Flint), the Full Court of this Court (Allsop CJ, Katzmann and Perry JJ) considered a fact situation that bears some similarity to the facts of the present case. In that case, on 29 August 2012 the Federal Magistrate made a procedural order for the filing of written submissions in connection with a review application and a creditor's petition: Flint at [4]. On 23 November 2012, the creditor's petition lapsed: Flint at [7]. On 7 December 2012, the Federal Magistrate delivered a judgment in which he made an order that, pursuant to s 52(5) of the Bankruptcy Act, the creditor's petition be extended and that, subject to further order, it would expire not before 23 November 2013: Flint at [9]. The Federal Magistrate's reasons indicated that the order was made under the slip rule and with reference to the procedural orders made on 29 August 2012: Flint at [10]. The proceeding was subsequently transferred to the Federal Court of Australia. On 7 June 2013, a Judge of the Federal Court made a sequestration order. 39 In a joint judgment, the Full Court held that the slip rule was not engaged in the circumstances of the case, and that it was not open to the Federal Magistrate to make the order that he did: Flint at [34]. 40 The Full Court stated, at [35], that for the slip rule to apply there must be an order in need of correction. The Full Court noted, at [36], that no argument was put to the Court that the order of 29 August 2012 was not an order to which the slip rule could apply. In the circumstances, it was unnecessary for the Full Court to consider the discussion in Griffiths at [34]-[67] about the character of the order required for the slip rule to be engaged: Flint at [36]. 41 The Full Court noted, at [37], that because of the way that the Federal Magistrate dealt with the matter on 7 December 2012, Busuttil did not put on any evidence in support of the invocation of the slip rule; it was therefore necessary to draw inferences from the events as they fell out, both as to whether there was an accidental slip or omission and as to whether there was an error in the order resulting from such a slip or omission: Flint at [37]. 42 The Full Court reasoned at [38]-[39]: 38 On 29 August 2012 there was a directions hearing before the federal magistrate. If an application had been made on that day for an extension of the creditor's petition under s 52 of the Bankruptcy Act, his Honour would have been required to consider whether it was just and equitable to extend the petition and, if so, in what terms the order should be made. We respectfully disagree with the conclusion of the primary judge that there is no doubt that the order would have been made. The review of the registrar's decision was not without its complexity, but almost three months remained before the petition would lapse. Instead of extending the period of the creditor's petition, the federal magistrate may have shortened the time for Ms Flint to file her submissions. He may have listed the creditor's petition for hearing on a date in early November, conditionally, depending upon the outcome of the application before him. These steps would have reflected the expedition required and the public policy that inheres in the prompt dispatch of a creditor's petition under s 52. The interests of creditors generally can be adversely affected by delays in the disposition of bankruptcy matters. Thus, if there was an error on the part of either the representative of the creditor in not making the application for an extension on (or before) 29 August or in the federal magistrate not adverting to the question, it is not clear what course would probably have been taken and, a fortiori, not clear that an order would have been made at that time extending the life of the creditor's petition. 39 Furthermore, the evidence is not sufficient to support an inference of error or omission by the creditor's lawyer or the federal magistrate. No doubt at some time after the petition had lapsed, most likely during the preparation of the reasons for judgment, the federal magistrate realised that there was a need to extend the petition and that he should have done so earlier. That is not to the point. The question is whether or not there was an accidental slip or omission on 29 August 2012. (Emphasis added.) 43 In Endresz v Commonwealth (2019) 273 FCR 286 (Endresz), Rares and Markovic JJ stated at [81]: The Full Court in Flint recognised the considerable constraints that apply where there is resort to the slip rule in circumstances where the exercise of an independent discretion is required. Whether the slip rule can be invoked where, through an accidental slip or omission an order was not made extending the life of a petition pursuant to s 52(5) of the Act before the expiration of 12 months from the date of presentation of a petition, will depend upon the circumstances. In particular, as s 52(5) of the Act requires the exercise of an independent discretion, the question of how the discretion would have been exercised had the order been made at the earlier time becomes a relevant factor. As the Full Court recognised in Flint, if the discretion could only be exercised one way it is difficult to see how the slip rule could not apply. But, if there is any room for debate as to the outcome of an exercise of the discretion under s 52(5) it is difficult to see how the slip rule could be engaged. (Emphasis added.)

Application of principles to facts of this case 44 In my view, in the circumstances of this case, it was not open to the primary judge to apply the slip rule to amend the orders made on 14 May 2021 to include an order extending time pursuant to s 52(5) of the Bankruptcy Act. This is because it is not clear what order would have been made had the creditor made an application, on 14 May 2021, for an order under s 52(5) that the period at the expiration of which the petition would lapse be extended. 45 Before addressing that issue, I note that there is an issue whether, on the facts of the present case, there was an order in need of correction. The slip rule requires there to be "an error arising in the judgment or order from an accidental slip or omission". The candidate order in the present case is that made by the primary judge on 14 May 2021. The evidence before the primary judge included an affidavit of James O'Donnell, the solicitor acting for Nicholas, dated 23 November 2021. Mr O'Donnell stated (at paragraph 21) that, as at 14 May 2021, he had not realised that the creditor's petition was due to lapse and that, had he been aware that the creditor's petition would expire before the final hearing on 30 August 2021, he would have made an application or sought amended orders by consent extending time pursuant to s 52(5) of the Bankruptcy Act: see the January 2022 Judgment at [18]. There is an issue whether, in these circumstances, there was an error in the 14 May 2021 order. An application for an order extending the period of the creditor's petition did not need to be made on 14 May 2021; it could have been made at any time between 14 May and 28 July 2021 (the date when the creditor's petition was due to lapse). Thus it is not clear that the order of 14 May 2021 contains an error. Nevertheless, I will proceed on the basis that the 14 May 2021 contains an error arising from an accidental slip or omission. 46 In my view, the difficulty with applying the slip rule in the circumstances of the present case is that it is not clear what order would have been made had the creditor made an application, on 14 May 2021, for an order under s 52(5) extending the period of the creditor's petition. While the Court may have made an order extending the period, the Court may instead have listed the matter for hearing on a date before the creditor's petition was due to lapse (28 July 2021). As at 14 May 2021, there was still a period of more than 10 weeks before the creditor's petition was due to lapse. 47 On an application for an order under s 52(5), the Court may, if it considers it just and equitable to do so, make an order extending the period at the expiration of which the petition will lapse. This requires the exercise of a discretion by the Court. In the present case, it is unclear what stance the debtor (Victor) would have taken if the creditor (Nicholas) had sought an extension of the period. I note that the parties requested a hearing date after 23 July 2021, to accommodate the availability of Victor's counsel. However, that was in a context where the parties did not realise that the creditor's petition would lapse on 28 July 2021. The parties may have adopted a different position if that had been realised. In any event, the Court was not bound to list the matter on a date when Victor's then counsel was available, particularly in circumstances where the creditor's petition was due to lapse. 48 I also note that, in the January 2022 Judgment, the primary judge stated at [65]-[66]: 65 Contrary to the submissions advanced by Counsel for the debtor, I have no doubt whatever, having considered the matter further (I expressed a slightly more nuanced view during the trial), that I would have extended the time for the hearing of the petition. All parties proceeded on the footing that the petition was properly before the Court and to be heard and determined. Orders were made by consent for the filing of material. There is no conceivable basis upon which I would have in effect summarily dismissed the petition merely because of a delay that was most substantially caused by the conduct and requirements of the debtor himself. If the applicant had sought an extension of time in the 14 May 2021 Orders I would certainly have regarded it as just and equitable to make it. 66 Notions that matters might be more readily brought forward or allotted to another Judge are fine in theory but ignore entirely the practical realities of the listing pressures in this Court. Even listing the matter when I did required shoehorning it into an otherwise bursting list as would, indeed, be the case for any other Judge in the Melbourne registry. (Emphasis added.) 49 In my view, there are a number of difficulties with the above reasoning and the above finding or conclusion. In the fourth sentence of [65], in the part emphasised in the above quotation, the primary judge appears to have assumed that the alternative to an order extending the period of the creditor's petition was, in effect, the summary dismissal of the petition. However, this was not the relevant alternative. The relevant alternative was an order listing the matter for hearing before the creditor's petition was due to lapse. As already noted, as at 14 May 2021, there was still a period of 10 weeks before the creditor's petition was due to lapse. Insofar as the primary judge, in [66], suggests that the matter could not have been listed in the period before the creditor's petition was due to lapse, his Honour does not appear to have considered whether the matter could have been listed before a Judge in another Registry of the Court. His Honour also does not appear to have taken into account that the policy of the Bankruptcy Act is for such proceedings to be dealt with speedily: see Griffiths at [31]. 50 In the circumstances, by parity of reasoning with Flint, it is not clear what course would probably have been taken, and therefore what order would have been made, if an application for an order under s 52(5) had been made on 14 May 2021. As in Flint, there was still a substantial period of time before the creditor's petition was due to lapse. In these circumstances, to adopt the language of Endresz, there is "room for debate" as to how the discretion in s 52(5) would have been exercised. 51 An important factual distinction between Elyard and the present case is that, in Elyard, the winding up application was due to lapse on the same day as the date of the order that was sought to be corrected (9 June 1995). In these circumstances, it was clear that, but for the accidental slip or omission, an order would have been made extending the period. Setting the matter down for hearing before the winding up application was due to lapse was not an available alternative. 52 For these reasons, in my view, the slip rule was not available to amend the order of 14 May 2021 by inserting an order extending the period of the creditor's petition pursuant to s 52(5). 53 In light of the above, I do not consider it necessary to consider whether the slip rule can be exercised to make an order extending the period of a creditor's petition after a sequestration order has been made. This is because, in any event, in my view, the slip rule was not available to be exercised in the circumstances of the present case. 54 Accordingly, I consider that the order made by the primary judge on 14 January 2022 was in error and should be set aside. It follows that the sequestration order made on 28 October 2021 was made without jurisdiction and should be set aside. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.

Introduction 55 The important question that is raised in this appeal is whether it was open to the Federal Circuit and Family Court of Australia (Division 2) to invoke the slip rule to extend the term of a creditor's petition under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) after the making of a sequestration order? For the detailed reasons that follow, I have concluded that it was not and accordingly I would allow the appeal. 56 By an amended notice of appeal filed on 26 April 2022, the appellant (Victor) appeals from two judgments of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) in Hrycenko (by His Legal Representative Hycenko) v Hrycenko [2021] FedCFamC2G 187 and Hrycenko (by His Legal Representative Hycenko) V Hrycenko [2022] FedCFamC2G 2. Each is a decision of Judge Burchardt. The first was published on 28 October 2021 when a sequestration order was made in relation to the estate of Victor and Mr Michael Badge was appointed as the trustee in bankruptcy (the Trustee). The second was published on 14 January 2022 and the following order was made, amongst others: Pursuant to Order 39.05 of the Federal Circuit Court Rules 2001 the orders made on 14 May 2021 be amended nunc pro tunc by the addition of an order that: a) Pursuant to section 52(5) of the Bankruptcy Act 1966 (Cth) that the time for expiration of the Creditor's Petition in this proceeding be extended up to and including 15 July 2022. 57 It is convenient in these reasons to refer to the second judgment of his Honour as the primary judgment. There is an error in the order as made by the primary judge in that it refers to rule 39.05 of the Federal Circuit Court Rules 2001 (Cth) whereas in the reasons his Honour correctly referenced rule 16.05 of the Federal Circuit Court Rules 2001 which is now rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal law) Rules 2021 (Cth) (FCFCOA Rules). Nothing in this appeal turns on that error. 58 The reference to 14 May 2021 is to an order made by consent that the hearing of the creditor's petition be adjourned to 30 August 2021. When that order was made, it was not noticed that the creditor's petition, which was presented on 29 July 2020, would lapse by operation of s 52(4) of the Bankruptcy Act, twelve months later on 28 July 2021, unless that period was extended by the making of an order pursuant to s 52(5) of the Bankruptcy Act. In the events as they occurred, the creditor's petition was not heard until 29 September 2021, which resulted in the making of the sequestration order on 28 October 2021. It was not noticed when that order was made that the petition had by then expired. It was not until November 2021 that the error was noticed, which resulted in the filing of an application on 23 November 2021 by the respondent to this appeal Nicholas Hycenko in his capacity as the Executor of the Estate of George Hrycenko, deceased (Nicholas), for an order pursuant to the slip rule nunc pro tunc that the time limited for the expiration of the creditor's petition be extended. (I note that the correct spelling of the surname of Nicholas is "Hycenko" which for reasons which do not emerge from the materials differs from the spelling of the surname of his father and brother). That application was contested and was resolved for the reasons set out in the primary judgment and the making of the order that is central to this appeal.

The factual Background 59 On 7 April 2020, Mr George Hrycenko (George), who is the father of Victor and Nicholas, served a bankruptcy notice on Victor. The notice claimed that Victor owed George an amount of $3,115,092.97 pursuant to a judgment entered in the Supreme Court of Victoria. Victor was required to comply with the requirements of the bankruptcy notice on or before 28 April 2020 or to satisfy the court that he had a counter-claim, set-off or cross demand equal to or greater than the sum claimed in the bankruptcy notice. Victor committed an act of bankruptcy in that he failed to comply with the requirements of the bankruptcy notice, although he did pursue an application in the Federal Circuit Court to set aside the notice. On 16 July 2020, Judicial Registrar Ryan dismissed that application. 60 George died on 6 June 2020. On 29 July 2020, Nicholas, acting as the personal representative of George, presented a creditor's petition in reliance upon Victor's act of bankruptcy. Victor resisted the creditor's petition. 61 On 8 September 2020, probate was granted for the estate of George, appointing Nicholas as the executor. Nicholas continued the creditor's petition in his capacity as executor of the estate. 62 On 7 August 2020, Victor filed an application for review of Judicial Registrar Ryan's orders of 16 July 2020 (set-aside review). On 3 September 2020, Judicial Registrar Gitsham made orders adjourning the creditor's petition to a further hearing on 17 September 2020 with subsequent timetabling orders. On 17 September 2020, Judicial Registrar Gitsham adjourned the further hearing of the creditor's petition to a date to be fixed after the set-aside review was determined and made a further order requiring the parties to notify the Court following the determination as to the outcome of that application. 63 The set-aside review was heard by Judge McNab on 2 October 2020, who for reasons published on 19 February 2021, dismissed it. 64 On 24 February 2021, the solicitor for Nicholas wrote to the Court advising of the result of the set-aside review. On 1 April 2021, Judicial Registrar Gitsham made orders by agreement referring the creditor's petition to a judge of the Federal Circuit Court for hearing and determination and adjourned the creditor's petition for directions on 17 May 2021 before the primary judge. 65 On 14 May 2021, Victor's solicitor, Mr Omar El-Hissi, emailed the solicitor for Nicholas and said: Further to below, we have been able to confirm with Mr Evans QC that he is not available until 23 July 2021. We will request the Court to list the hearing on the first available date after 23 July 2021. If Mr Bevan remains briefed, are there any unavailable dates for him after 23.07.2021? 66 A co-operative response was received. Later that day, Mr El-Hissi emailed the associate to the primary judge and attached a proposed minute of orders signed by both parties which set out a timetable for filing material prior to the final hearing and which requested a listing of the creditor's petition on a date not before 23 July 2021. The primary judge made the requested orders by consent and ultimately the creditor's petition was listed for hearing on 29 September 2021. The outcome of that hearing was the making of the sequestration order and the appointment of the Trustee for the reasons published on 28 October 2021.

The Reasons of the Primary Judge 67 His Honour noted that "despite some earlier confusion" (PJ [25]), the parties agreed that the discretion that his Honour was requested to exercise was conferred by rule 16.05 of the Federal Circuit Court Rules 2001 (now rule 17.05 of the FCFCOA Rules) which relevantly provided: The Court or a Registrar 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; or ... (h) there is an error arising in the judgment or order from an accidental slip or omission. 68 The primary judge accepted affidavit evidence from the solicitor for Nicholas, who deposed that: The creditor's petition was due to expire on 23 July 2021. The effect of Burchardt J's orders was to list the final hearing of the creditor's petition to a date after the expiry of the petition. I had not realised this was the case. The expiry of the creditor's petition had not been raised with me by counsel, the solicitor's [sic] for the respondent or the court. Had I been aware that the petition would expire before the final hearing on 30 August 2021, I would have made application or sought orders by consent extending time pursuant to s 52(2) of the Bankruptcy Act 1966 ( Cth). 69 His Honour also accepted evidence from the applicant's solicitor that it was not until 16 November 2021 that he was first alerted to the expiry of the petition, when he was informed by the solicitor for Victor of that fact and that it would be the subject of an appeal ground from the making of the sequestration order. 70 His Honour correctly understood that although the slip rule confers a broad power of correction and extends to the correction of error that results from the inadvertence of a party's lawyer "it is not available as a matter of course" by reference to L Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 151 CLR 590, Mason ACJ, Wilson and Deane JJ, at 594 and 597. And his reasoning was also guided by the judgment of Kirby J in Emanuele v Australian Securities Commission (1997) 188 CLR 114 (Emanuele) at 152: It is trite to say, but worth repeating, that the power of a court, such as the Federal Court, to correct obvious slips by orders in appropriate cases nunc pro tunc is one granted by legislation and the rules and implied in the express powers of the Court to avoid injustice. There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. (Footnotes omitted.) 71 The primary judge undertook a detailed analysis of a number of authorities, which I later examine in these reasons, from which he summarised the principles to be applied at PJ [61] as follows (with my ellipsis): (a) the Court has power to extend the life of a petition which has lapsed in appropriate circumstances…; (b) whether the power is available will depend upon the particular circumstances of each case; (c) the respondent's… submission as to the distinction between jurisdictional and procedural characterisation is not supported by the majority decision in Emanuele; (d) there must be an error in the relevant order for the Court's power under the slip rule to arise; (e) whether there is an error in the order may be proved either by direct evidence or by inference. 72 At PJ [64]- [66] his Honour found and stated: Likewise, the solicitor for the applicant did not turn his mind to the expiration of the petition. Likewise, again, neither did I. In asking for a listing of the matter within five days of the expiration, the parties plainly committed an inadvertent error. It must have been readily foreseeable, had they turned their minds to the matter, that the court would be unable, given its general listing pressures, to be able to accommodate the matter prior to 28 July, let alone giving a decision. Contrary to the submissions advanced by Counsel for the debtor, I have no doubt whatever, having considered the matter further (I expressed a slightly more nuanced view during the trial), that I would have extended the time for the hearing of the petition. All parties proceeded on the footing that the petition was properly before the Court and had to be heard and determined. Orders were made by consent for the filing of material. There is no conceivable basis upon which I would have in effect summarily dismissed the petition merely because of a delay that was most substantially caused by the conduct and requirements of the debtor himself. If the applicant had sought an extension of time in the 14 May 2021 Orders I would certainly have regarded it is just and equitable to make it. 73 From that reasoning His Honour concluded at PJ [67]: If the power under the slip rule is available, this is a paradigm example of its application. In my view, the failure to address the extension of the life of the petition in the order in [sic] 14 May 2021 represents an accidental slip on the part of the solicitor for the creditor which has led to an error in the order. In my view, the application should succeed. 74 The first sentence of that paragraph is curious. As I interpret his Honour's reasons, he accepted the submission put to him that it was open on the facts to exercise the discretion conferred by the slip rule. Ultimately nothing turns on that in this appeal, as it was not submitted to us that the primary judge failed to expose his reasoning process in navigating to his ultimate conclusion.

The Appeal to this Court 75 Victor filed his notice of appeal from the primary judgment in this Court on 19 November 2021. On 25 November 2021, Victor filed an interlocutory application in his appeal and sought, inter alia, leave to advance a ground of appeal not the subject of argument in the proceeding below, leave to adduce evidence not raised at trial and a stay of all proceedings under the sequestration order pending the determination of the appeal. On 7 December 2021, Bromberg J made orders staying all proceedings under the sequestration order until 28 days after the hearing and determination of the appeal. His Honour otherwise adjourned the interlocutory application to the hearing of the appeal. 76 When the appeal was heard before us, counsel for Nicholas did not oppose a grant of leave to permit Victor to advance an argument, being grounds 1 and 1A-1D of the amended notice of appeal, that was not put to the primary judge, which grounds in summary contend that the court did not have jurisdiction to act under the slip rule in order to extend the period of the creditor's petition nunc pro tunc. That argument is central to the outcome of the appeal, raises a question of general importance as to the meaning and effect of s 52 of the Bankruptcy Act and does not turn on contested facts. It is obviously appropriate to grant the leave that is sought. 77 Victor relies upon 12 grounds of appeal covering many pages, some of which raise complex factual contentions that are said to infect the primary judge's exercise of discretion and rely on the assumption that the slip rule was available. Some grounds were abandoned in the course of argument before us. It is unnecessary to set out all of the grounds and I concentrate only on the jurisdictional grounds that are dispositive of the appeal. They are: 1. The learned primary Judge erred in making a sequestration order in circumstances where the creditor's petition had lapsed pursuant to s 52(4) of the Bankruptcy Act 1966 (Cth) (Act) prior to the making of the sequestration order, and no order extending the period provided for in s 52(4)(a) had been made under s 52(4)(b). 1A. The learned primary Judge erred in making an order nunc pro tunc extending the period provided for in s 52(4)(a) of the Act in circumstances where the requirement in s 43 that a sequestration order be made on a (subsisting) petition was substantive and not procedural and could not be cured by an order made nunc pro tunc under the slip rule. 1B. The learned primary Judge erred in failing to find that s 52(5) of the Act, with its explicit prescription of a time limit for the making of an extension order, codified a purpose of expedition in an insolvency controversy which was inconsistent with any ability to have resort to a slip rule so as to make, after the expiry of that time limit, an order extending time having effect prior to that expiry. 1C The learned trial Judge erred in finding that there was "an error arising in the judgment or order from an accidental slip or omission" in the orders made having regard to the following: a. there was a gap of more than 10 weeks between 14 May 2021 (directions) and the date on which the creditors petition lapsed (30 July 2021); b. no application to extend time was made by the applicant prior to 14 May 2021 and 30 July 2021; c. an application for an extension of time could have been made by the applicant at any time between 14 May 2021 and 30 July 2021; d. Mr O'Donnell deposes that: "Had I been aware that the petition would expire before the final hearing on 30 August 2021. I would have made application or sought amended orders by consent extending time pursuant to s 52(5) of the Act" e. to the extent that the applicant made an error, it was an error made after 14 May 2021 when he failed to apply for an extension of time - noting that such an error is not an error arising "in the judgment or order" made on 14 May 2021; f. there were other courses open to the trial Judge at the hearing on 14 May 2021 to deal with the circumstance that the creditor's petition was due to lapse on 30 July 2021 including listing the creditors petition for hearing prior to 30 July 2021; g. the trial Judge's finding that "There is no conceivable basis upon which I would have in effect summarily dismissed the petition merely because of a delay that was most substantially caused by the conduct and requirements of the debtor himself." was erroneous in circumstances where there was no evidence that no other options were available to the trial Judge on 14 May 2021; h. an order extending the time provided for in s 52(4)(a) of the Act required the exercise of an independent discretion (that had not been exercised at the time the sequestration order was made); i. the evidence does not rise above speculation as to the position of both the court and the applicant on 14 May 2021.

The Statutory Scheme and the Submissions 78 Section 43 of the Bankruptcy Act provides: Jurisdiction to make sequestration orders (1) Subject to this Act, where: (a) a debtor has committed an act of bankruptcy; and (b) at the time when the act of bankruptcy was committed, the debtor: (i) was personally present or ordinarily resident in Australia; (ii) had a dwelling-house or place of business in Australia; (iii) was carrying on business in Australia, either personally or by means of an agent or manager; or (iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager; the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor. (2) Upon the making of a sequestration order against the estate of a debtor, the debtor becomes a bankrupt, and continues to be a bankrupt until: (a) he or she is discharged by force of subsection 149(1); or (b) his or her bankruptcy is annulled by force of subsection 74(1) or 153A (1) or under section 153B. 79 By s 5 of the Bankruptcy Act, a petition is simply defined as "means a petition under this Act". At the time of filing of the creditor's petition in this matter, the form of a petition was set out at form B6, as determined by r 4.02 of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth). Section 44 of the Bankruptcy Act sets out the conditions on which a creditor may present a petition. There was a minimum requirement that the debtor must owe the petitioning creditor a debt of at least $5000 (or two or more debts that amount to at least $5000) and that "the act of bankruptcy on which the petition is founded was committed within six months of the presentation of the petition": s 44(1)(c). By s 47 of the Bankruptcy Act, a creditor's petition must be verified by an affidavit and, except with the leave of the Court, shall not be withdrawn after it is presented. 80 Counsel for Victor submitted to us that the existence of a creditor's petition within the meaning of s 43 of the Bankruptcy Act is a jurisdictional, not a procedural, requirement to the making of a sequestration order. In developing that argument, he placed emphasis on the heading to the section and submitted, that whilst not part of the Bankruptcy Act, it should be referenced similarly to other extrinsic material: R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [40], Kiefel CJ and Keane J, a case concerned with statutory provisions enacted in NSW. In my view, it is not necessary to proceed in that way as the heading is part of the Bankruptcy Act by force of s 13 (1) of the Acts Interpretation Act 1901 (Cth) and falls to be construed with all of the relevant text, in context and conformably with the purpose of the provisions. 81 Counsel for Victor further developed his argument submitting that a subsisting petition is a jurisdictional threshold requirement to the exercise of the discretionary power to make a sequestration order rather than a non-jurisdictional requirement for the exercise of the power. A lapsed petition is not one that has the character of a petition that the Bankruptcy Act requires. For that submission s 52 is primarily relied upon, which provides: Proceedings and order on creditor's petition (1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. (1A) If the Court makes a sequestration order, the creditor who obtained the order must give a copy of it to the Official Receiver before the end of the period of 2 days beginning on the day the order was made. Penalty: 5 penalty units. Note: See also section 277B (about infringement notices). (1B) Subsection (1A) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made; it may dismiss the petition. (3) The Court may, if it thinks fit, upon such terms and conditions as it thinks proper, stay all proceedings under a sequestration order for a period not exceeding 21 days. (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. 82 Counsel acknowledges that there is authority in this Court to the effect that orders may be made under slip rule provisions to retrospectively extend the life of a lapsed creditor's petition in appropriate circumstances. However, counsel submits that there is no case which holds that the power is available after the making of a sequestration order. Counsel also submits that upon a proper construction of the provisions a lapsed petition is not a petition within the meaning of s 43 of the Bankruptcy Act with the result that the jurisdictional requirements of the Bankruptcy Act were not present when the sequestration order was made and on that basis cases that were concerned with procedural requirements or irregularities may be distinguished and put to one side. 83 In contrast, counsel for Nicholas submits that it is well established by authority that there is power to extend the period of a creditor's petition before it lapses pursuant to s 52(5) of the Bankruptcy Act which may be exercised nunc pro tunc in appropriate cases by reference to slip rule provisions. In developing that argument, counsel places primary reliance on the distinction between substantive and procedural requirements by reference to Emanuele and the purpose of slip rule provisions which operate to avoid injustice to parties and relatedly are not confined to accidental slips, errors or omissions of the Court but extend to like errors made by litigants and their lawyers: Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375; [2013] FCAFC 131, Allsop CJ, Katzmann and Perry JJ (Flint). 84 Counsel for Nicholas emphasised in argument that the clear intention of the primary judge was to have the creditor's petition determined on its merit on 30 August 2021 and that the facilitating procedural orders of 14 May 2021 contained an error in that no provision was made for the extension of time that was necessary to give effect to that intent. That error arose by reason of the inadvertence of the lawyers for Nicholas who failed to notice and to raise the impending lapse of the petition prior to the making of those orders, or at any time prior to publication of the primary judgment.

Consideration 85 The threshold question that is raised by grounds 1, 1A and 1B of the amended notice of appeal is whether the primary judge had jurisdiction to invoke the slip rule discretion. A plethora of cases have considered whether slip rule provisions may be invoked before a sequestration order under the Bankruptcy Act or a winding up order under the Corporations Law as set out in s 82 of the Corporations Act 1989) (Cth) (Corporations Law) or the Corporations Act 2001(Cth) (Corporations Act) is made, but none have addressed the use of that power after the making of a sequestration order upon a lapsed creditor's petition. 86 There are two issues to be resolved. One, whether a subsisting petition is a jurisdictional prerequisite to the making of a sequestration order. The other is whether the slip rule is able to be deployed to extend the period for expiration of the petition after the making of a sequestration order. 87 I commence with the jurisdiction question and the High Court decision in Emanuele which held, by majority, that a failure to obtain the leave that was required by s 459P of the Corporations Law was capable of cure by a grant of leave nunc pro tunc. Several corporations were indebted to the Australian Taxation Office which applied to this Court for the making of winding up orders. After the applications were filed, the corporations entered into deeds of company arrangement, the effect of which was to prohibit the prosecution of the applications. The Australian Securities Commission (ASC) intervened in the applications and gave notice that it would apply for the making of winding up orders pursuant to s 495A of the Corporations Law. At the time, s 495P of the Corporations Law (the identical provision is now s 459P of the Corporations Act) enabled the ASC to apply for winding up orders but only with leave of the Court pursuant to s 459P(2)(d). No application for leave was made before a judge of this Court, O'Loughlin J, made the winding up orders sought by the ASC. 88 Certain of the directors of the companies pursued an appeal to this Court against the making of the winding up orders. The failure to obtain leave was raised during the course of the appeal. The ASC made a retrospective application for leave, which the Court granted and the appeal against the orders was dismissed: Emanuele v Australian Securities Commission (1995) 63 FCR 54, Spender, von Doussa and Hill JJ. The High Court dismissed the appeal brought to it by special leave granted to the directors: Dawson, Toohey and Kirby JJ; Brennan CJ and Gaudron J dissenting. 89 Brennan CJ reasoned that the leave requirement is not "merely procedural" at 122 and continued: It is imposed to prevent the taking of a step that would commence proceedings in circumstances where the company is entitled, before the commencing step is taken, to protection by the Court's examination of the case to be presented in proof of the company's insolvency. If the requirements of s 459P(2) are treated as merely procedural, the purpose of s 459P(3) and (5) is frustrated. 90 That was one purpose that his Honour regarded as important on the construction question. Another, that the contravention "would or might" prejudice those interests concluding at 124: The purpose and effect of the provision would be undermined if the absolute protection which the provision is expressed to confer were transformed into a discretionary bar that could be relieved by a curial order. 91 Dawson J agreed with Toohey J and succinctly said why at 125: Section 459P does not confer jurisdiction on the Federal Court to make a winding up order; it does no more than identify the parties who may make an application, requiring leave to be obtained in the case of some of them including the Commission. Jurisdiction is conferred on the Federal Court by s 459A of the Corporations Law… The failure to obtain leave was a mere defect or irregularity in the exercise of that jurisdiction. 92 Pausing there it is to be recalled that ss 43 and 52 of the Bankruptcy Act are the provisions that confer the jurisdiction to make a sequestration order and unlike s 459P they are not solely limited to identification of the party entitled to seek the making of the order. 93 Toohey J approved of the reasoning of Sholl J in Re Testro Bros Consolidated Ltd [1965] VR 18, which concerned a similar leave requirement at s 199 of the Companies Act 1961 (Vic). Sholl J applied a "uniform set of authorities in Australia, extending over seventy years" for a grant of leave nunc pro tunc to conclude that the statute was concerned with the control exercised by the court over the administration of the affairs of a company with the consequence that provisions such as s 199 were directory. At 131 Toohey J, in concluding that the leave requirement "does not impose a condition precedent to the exercise of the jurisdiction of the court", approved the analysis of Lindgren J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 (Elyard) at 406 who said: More particularly, the distinction is between a situation in which there is a time limit within which the Court must be approached if an application for an order of a particular kind is to be made at all (s 459G), and a situation in which a proceeding is already under way and is subject to the Court's control and in which a timely but deficient order has been made. 94 Also at 131 Toohey J identified the general policy consideration which flows from the supervisory role of the court which in his view favoured "taking a liberal view of the requirements of s 459P". 95 Gaudron J approached her analysis at 135 by posing as: "the essential question, namely, what is required by s 459P". The answer, in her Honour's view, was to be found in the emphatic language of the provision that "an application… may only be made with leave of the Court" which in her view was unambiguous: at 136. In argument before us, counsel for Victor emphasised the following passage in her Honour's reasons at 139: It follows, in my view, that although leave to make a winding up application may be granted at any point prior to, or simultaneously with, the making of a winding up order, it may not be granted thereafter, whether by the judge who made the order or by a court exercising appellate jurisdiction. More precisely, until leave has been granted there is no application for the purposes of s 459A and, thus, no application on which a winding up order can be made. 96 Kirby J at 147 observed that, despite it not being uncommon for statutes to provide for a grant of leave before a step may be taken in a proceeding: "[it] is difficult, if not impossible, to reconcile all of the decisions on this and analogous questions". Of several matters that his Honour listed in resolving the construction question, at 156 he reasoned that: The structure of Pt 5.4 of the Law makes it clear that what s 459P is dealing with is a procedure to be followed in making the application. Only certain designated persons are to have standing. Amongst them, half of those specified (including the ASC) are obliged to seek leave. But the application was undoubtedly before the Court which has jurisdiction. That jurisdiction having attached in the present case, it may be inferred that Parliament contemplated that oversight and inadvertence would sometimes occur for which the Court's general powers of correction would be available, within the limited area of operation and compatibly with the statutory requirement that ordinarily leave should first be obtained. (Citation omitted.) 97 In argument before us, as might be expected, each counsel relied on and placed different emphasis upon the individual judgments in Emanuele as providing assistance in resolving the construction question on which this appeal turns. In my view, the various judgments in Emanuele, despite the obvious difference between the statutory provisions, assist in framing and understanding the issue that is to be resolved in this appeal, which is whether the existence of a creditor's petition, one that has not lapsed by operation of s 52(4) of the Bankruptcy Act, is a condition to the exercise of the jurisdiction to make a sequestration order pursuant to s 52(1) and if it is, whether a sequestration order made upon a lapsed petition may be retrospectively enlivened by application of the discretion conferred by the slip rule. 98 Speaking of statutory decision-makers, but in terms that in my view apply equally to courts that exercise statutory jurisdiction, Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [23] said: Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in relation to the decision-making process in order for the decision-maker to make a decision of that kind. 99 In my view, the existence of a creditor's petition that has not lapsed is a jurisdictional condition to the exercise of the power to make a sequestration order pursuant to ss 43 and 52 of the Bankruptcy Act. That conclusion follows for several reasons. First, the language of the statute is clear and harmonious. A petition by s 5 means a petition "under" the Bankruptcy Act. Section 43 is expressly jurisdictional in its text and contains three jurisdictional facts: (1) the commission by a debtor of an act of bankruptcy; (2) that when the act of bankruptcy was committed the debtor was either personally present or ordinarily resident in, had a dwelling house or place of business in, was carrying on business in or was a member of a firm or partnership carrying on business in Australia; and (3) a petition has been presented by a creditor. It is only upon the hearing of the creditor's petition pursuant to s 52(1), and subject to satisfaction of the proof requirements, that the Court may make a sequestration order against the estate of the debtor. A creditor's petition has an expiry date of 12 months commencing on the date of presentation or such further period that is provided for in an order made under s 52(5), unless prior to the expiration of either of those periods "a sequestration order is made on the petition or the petition is dismissed or withdrawn": s 52(4). 100 In combination, where these provisions speak to a petition which lapses at the expiration of defined periods the meaning is plain: a lapsed petition is not relevantly one that has the statutory character of a creditor's petition upon which a sequestration is capable of being made. It ceases to have effect as a petition, which accords with the ordinary and natural meaning of lapse for which the Macquarie Dictionary Online (Macmillan Publishers Australia, 2022) gives as the fifth definition: "the termination of a right or privilege through neglect to exercise it or through failure of some contingency". 101 Unlike s 459P of the Corporations Law, these provisions confer the jurisdiction to make a sequestration order; they go well beyond identification of the class of persons entitled to petition the Court for a sequestration order. That there is an extant petition is not simply a procedural requirement. 102 Secondly, my reasoning is consistent with the analysis of Starke J and Williams J (in dissent but limited to the question of remittal) in Cameron v Cole (1944) 68 CLR 571 (Cameron), which concerned regulation 22 of the National Security (War Service Moratorium) Regulations 1941 (Cth) and which provided that a person shall not, without the leave of a court having jurisdiction in bankruptcy, issue a bankruptcy notice or present a creditor's petition against a member of the armed forces founded on a judgment debt incurred before the member engaged on war service. Starke J at 596 and Williams J at 611-612 each treated compliance with the regulation as jurisdictional. Starke J at 596 said: A bankruptcy notice or a petition presented contrary to the provisions of the Regulations is irregular, and a party is entitled ex debito justitiae to have it set aside or treated as ineffective. 103 As Brennan CJ explained in Emanuele at 124 by reference to Cameron, where the purpose of a prohibition "is designed to protect the interests of a particular person" (here the debtor and creditors generally) breach is "a fundamental irregularity" which in the case of an inferior court has the consequence that an order purportedly made in breach is a nullity: Cameron at 590-591, Rich J and Emanuele at 120, Brennan CJ. 104 Thirdly, although the grounds for exercising the discretion to extend time conferred by s 52(5) of the Bankruptcy Act are broad, requiring only that it be "just and equitable" to do so, the discretion is tightly conditioned in that the application is required to be made before the expiration of the 12 month period and the petition may only be extended for a maximum of 24 months from the date of presentation. These limitations confine in jurisdictional language the scope of the authority that is conferred. 105 Fourthly, Toohey J in Emanuele at 130 - 131 addressed a submission that was advanced to the effect that s 459P of the Corporations Law operates to deny standing where required leave is not obtained by analogy with s 459G (which time limits the ability of a company to apply to have a statutory demand set aside) and the decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 (David Grant) where the Court held the temporal requirement to be jurisdictional. In that case, Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed, said at 277: Here, the phrase "an application may only be made within 21 days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. 106 In distinguishing that reasoning as applicable to s 459P, Toohey J accepted the submission of the Commonwealth that s 459P does not "impose a condition precedent to the exercise of the jurisdiction of the court" because of the absence of a temporal requirement and there is "less significance" in the making of a finding of prima facie insolvency prior to or after a grant of leave. That reasoning highlights an essential difference for present purposes. Section 52(4) of the Bankruptcy Act is a temporal provision that is concerned with the limited twelve-month life of a petition which is only capable of extension where an application is made under s 52(5) before it lapses. The reasoning of Gummow J in David Grant is in my view of itself compellingly persuasive by analogy with the scheme of ss 43 and 52 of the Bankruptcy Act to conclude that a petition which has not lapsed is a jurisdictional prerequisite to the making of a sequestration order. 107 Finally, there is the policy consideration that this Court addressed in some detail in Re Young; Ex parte Smith (1985) 5 FCR 204 at 206-208, Bowen CJ, Sweeney and Lockhart JJ (Re Young). As explained by the Court in that case, s 52(4) was originally enacted in response to the mischief identified by the Clyne Committee Report, namely that debtors would seek to have petitions adjourned in the hope of being able to pay their debts and avoid sequestration. The Court then identified at 207-208 the "sound reasons why there should be no uncertainty surrounding the time during which a petition is pending" as follows: The presentation of a petition is an event which determines many rights duties and liabilities of bankrupts and creditors under bankruptcy law and from which important consequences flow. For example, before a debtor becomes a bankrupt, the court may appoint a trustee to take control of his property (s 50), stay legal proceedings against his personal property (s 60), or order his arrest in certain circumstances and the seizure of his property (s 78) - in each case after the presentation of the petition against him. After a debtor becomes a bankrupt, the date of commission of an act of bankruptcy and the date of presentation of the petition on which he was made a bankrupt are critical for various purposes including the determination of the period of relation back (s 115), the ascertainment of the property divisible amongst his creditors (s 116), the avoidance of preferences (ss 122 and 123), the avoidance of voluntary settlements (s 120) and the repayment by creditors to the trustee of his estate of moneys received as a result of execution by those creditors against his property (s 118). Involved in the argument of counsel for the petitioning creditor is the assumption that, if a petition is more than 12 months old and its life has not been extended during that time, it is inherently capable of being extended at any time thereafter, though for a maximum life of twenty-four months from the date of presentation of the petition. The period of twenty-four months referred to in s 52 is the maximum life of the petition. If the submission is correct the court could exercise its power to extend the life of the petition at any time before or after the expiration of the twenty-four months, say three years after that date. If the court may extend the petitions life outside the first twelve-month period there would be no certainty in dealings by a debtor with his creditors or with others, in respect of the debtor's property, that he may not be made a bankrupt, on the petition still pending, within the expiration of the second period of twelve months. The consequences could be serious and may create considerable uncertainty and confusion. 108 A construction of the Bankruptcy Act which holds that a subsisting petition is a jurisdictional prerequisite to the making of a sequestration order achieves that certainty of purpose. 109 I turn now to the second issue: may the slip rule be engaged to extend the life of a petition pursuant to s 52(5) of the Bankruptcy Act after the making of a sequestration order? 110 Logan J was certainly correct to characterise the related question (whether the slip rule may be engaged before a sequestration order is made) as "a vexed one" in Luck v University of Southern Queensland (2018) 265 FCR 304; [2018] FCAFC 102 at [5] (Luck). Much judicial time has been spent at trial and appellate level in this Court (and in others) in grappling with the myriad of cases where, through inadvertence of the legal representatives or of a court, the twelve month period at s 52(4) of the Bankruptcy Act has elapsed and an application is then made under an applicable slip rule to correct an earlier order (ordinarily one that adjourns the hearing of the petition beyond its expiry date) to extend the life of the petition by the device of making an amendment to that order to include one pursuant to s 52(5). 111 It was first held in this Court by Pincus J in Re Hibbard; Ex parte Playroom Pty Ltd [1988] FCA 689 that application of the slip rule in that way could not be reconciled with s 52(5). Heerey J reached the same conclusion in Re Agushi; Ex parte Farrow Mortgage Services Pty Ltd (in liquidation) (1994) 126 ALR 704. Other judges of this Court reached the opposite conclusion. Charlesworth J comprehensively essayed all of the authorities in Luck at [116]- [136]. The views of Pincus J and Heerey J did not prevail and were disapproved by the Full Court in Elyard. That case concerned the slip rule and the power of the Court to extend the time specified in s 459R(1) of the Corporations Law to determine an application to wind up a company within 6 months, unless extended by the exercise of the discretion conferred by s 459R(2). The ratio is that s 459R properly construed did not displace the slip rule which then found expression at Order 35, r 7 of the Federal Court Rules 1979 (Cth). 112 Although the case concerned the Corporations Law, in obiter reasoning and separately, each of Lockhart J and Lindgren J (Black CJ agreed with each) concluded that the slip rule could be engaged to correct an order, and thereby extend the life of a petition presented under the Bankruptcy Act, before a sequestration order is made: Lockhart J at 392-393; Lindgren J at 402-404. In the view of Lockhart J (at 391), the contrary view: …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. 113 Lindgren J reasoned similarly at 400-401. Despite the doubt that Kiefel J expressed as to the correctness of this reasoning in Re Langridge: Ex parte Bennett, Carroll & Gibbons [1998] FCA 879, Elyard has been accepted, sometimes with reservation, as confirming that in appropriate cases slip rule provisions may be engaged to extend the life of a petition, or perhaps more correctly the time within which a petition is to be determined, once the petition has expired and s 52(5) of the Bankruptcy Act is unavailable. At the level of the Full Court of this Court those cases are: Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554; [2006] FCAFC 149 (Griffiths), Spender ACJ, Dowsett and Collier JJ; Flint, Allsop CJ, Katzmann and Perry JJ; Ramsay Health Care Australia Pty Ltd v Compton (2016) 247 FCR 387; [2016] FCAFC 125 (Ramsay Health Care), Rares, Gleeson and Markovic JJ; Luck, Logan, Mortimer and Charlesworth JJ and Endresz v Commonwealth (2019) 273 FCR 286; [2019] FCAFC 197 (Endresz), Rares, Markovic and Charlesworth JJ. 114 Where in those cases doubt was cast on the correctness or direct applicability of Elyard, it was unnecessary for the Court to decide the point and the appeals were resolved on other grounds. Thus in Griffiths it was held that when a Federal Magistrate reserved his decision upon the hearing of the petition, and then failed to deliver it before it lapsed, no order had been made that could be the subject of an error for the purposes of the slip rule and, in any event, even if an order had been made the slip rule could not apply as it could not be inferred that the magistrate committed an accidental slip, error or omission when he failed to notice that time had expired during the period of his reserved decision. It is relevant for the purpose of this appeal to set out the doubt which the Court expressed as to the correctness of the decision in Elyard at [30]: With all respect, we are a little uncomfortable with the view, inherent in Elyard, that the slip rule may be used to extend time notwithstanding the statutory requirement that such order be made within a period of time which has elapsed. However, Elyard concerns the practice of the Court and has now stood for over 10 years without legislative intervention. We are reluctant to reconsider it. Although it does not directly bind us in applying s 52 of the Bankruptcy Act, to take a different approach would cause substantial confusion in insolvency practice. 115 In Flint at [43] the Court did not find it necessary to consider the correctness of Elyard, as counsel for the appellant ultimately accepted in argument that the slip rule could be used, in an appropriate case, to extend the life of a lapsed petition. The rule was found not to be applicable for other reasons: one, there was no order relevantly in need of correction and the other, the evidence did not support the inference of error or omission by the lawyer for the petitioning creditor or the federal magistrate. However, the Court noted and commented upon the decision of Hammerschlag J in Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd (2008) 73 NSWLR 627; [2008] NSWSC 285; who considered Elyard to be plainly wrong, primarily on the ground that s 459R(2) of the Corporations Act requires the court to reach a state of independent satisfaction before exercising the discretion to extend time for the determination of the application. Whilst the Court in Flint observed that, "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" ([44]), the Court found two difficulties with accepting it at [45] - [46]: First, in Shaddock the High Court invoked the slip rule to amend an order to include an award pre-judgment interest. Yet an award of interest is in the court's discretion… 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. 116 The appeal in Ramsay Health Care turned on a different question. There the primary judge applied the slip rule to extend the life of an expired petition by three months but also ordered that any further application to extend time pursuant to s 52(5) of the Bankruptcy Act could be made within that period. That order was wrongly made in that the attention of the primary judge was not drawn to the Full Court decision in Re Young where it was held that the power conferred at s 52(5) is incapable of being exercised outside of the initial twelve-month period. This Court allowed the appeal and made an order pursuant to the slip rule to extend the life of the petition. The correctness of Elyard was not put in issue. 117 In Luck the appeal turned on the availability of the particular form of wording of the slip rule to a registrar of the Federal Circuit Court and this Court was not asked to reconsider the correctness of Elyard. At issue was whether as a fact Ms Luck had established, as required by r 16.05(2)(e) of the Federal Circuit Court Rules 2001, that an order made by a registrar on 22 March 2016 (whereby the hearing of the petition was adjourned to a date after its expiry) reflected the intention of the parties who had not adverted to the effect of ss 52(4) and (5) of the Bankruptcy Act. Logan J, agreeing generally with Mortimer J, opined at [8] that the facts were "a paradigm case" for application of the slip rule. Mortimer J at [67] reasoned that on the evidence the case was not one "where there would have been any independent discretion to be exercised had the error or omission not occurred" and approved of the reasoning in Flint at [46]. 118 Charlesworth J accepted that the slip rule could apply, but dissented on the factual question of why the registrar could not exercise that power which, in summary, she explained at [145] on the basis that the slip rule which then operated was limited to correction of an order which "does not reflect the intention of the Court". In her Honour's view, that rule: is to be construed in a legal context in which orders (once entered) are final. In that context, the word "intention" should be construed as meaning an intention actually formed upon actual consideration of an issue arising for determination. The word does not encompass a situation in which the Court has, whether by its own omission or the omission of a party, failed to consider the issue at all. 119 In reasoning that way, as her Honour acknowledged at [146], other slip rules are cast more broadly. 120 Endresz is a further example of a case where several creditor petitions expired during the period of an adjournment. Orders were made administratively and in chambers the effect of which was to vacate the initially allocated hearing dates and to substitute new dates, beyond the expiry of the petitions. Shortly after the expiry date, the debtors applied for summary judgment and in response the Commonwealth, as the petitioning creditor, made application pursuant to the Federal Circuit Court slip rule to vary the adjournment orders by adding orders extending the life of each petition pursuant to s 52(5) of the Bankruptcy Act. The Federal Circuit Court made those orders. Thereafter, the proceedings were transferred to this Court and sequestration orders were made. Each bankrupt pursued an appeal to the Full Court. The first and primary ground contended that there was no power to make the sequestration orders by reason of the expiry of the petitions and it was not open, in the circumstances, to engage the slip rule. In oral argument upon the appeal, and despite the framing of the appeal grounds, senior counsel for the appellants submitted that it was not contended "that there is no scope for the operation of the slip rule in the context of s 52(5)": [70]. Rather, it was argued that there was no scope for operation of the slip rule unless at a prior point in time the primary judge had considered the s 52(5) discretion but had failed to record the result in the order. 121 In rejecting that submission "as a very narrow construction of the slip rule" ([72]), Rares and Markovic JJ at [81] endorsed the approach in Flint to the effect that the existence of an independent discretion does not of itself displace the potential application of the slip rule and continued: The Full Court in Flint recognised the considerable constraints that apply where there is resort to the slip rule in circumstances where the exercise of an independent discretion is required. Whether the slip rule can be invoked where, through an accidental slip or omission an order was not made extending the life of a petition pursuant to s 52(5) of the Act before the expiration of the 12 months from the date of presentation of a petition, will depend upon the circumstances. In particular, as s 52(5) of the Act requires the exercise of an independent discretion, the question of how the discretion would have been exercised had the order been made at the earlier time becomes a relevant factor. As the Full Court recognised in Flint, if the discretion could only be exercised one way it is difficult to see how the slip rule could not apply. But, if there is any room for debate as to the outcome of an exercise of the discretion under s52(5) it is difficult to see how the slip rule could be engaged. 122 Expressly, as their Honours observed at [83], Elyard is distinguishable as it was concerned with a different statutory regime and was not binding as to the construction of the provisions of the Bankruptcy Act. For those reasons it was not necessary to consider its correctness. 123 In contrast, Charlesworth J at [145] said that Elyard "ought not to be distinguished by this Court on the basis that it was concerned with the exercise of the slip rule in the context of the insolvency regime established under the Corporations Act" but expressly reserved her view that "it may be necessary" for this Court at a future time to determine whether Elyard was correctly decided. Otherwise, on this ground, her Honour agreed with the joint reasons that it could not be said on the facts that the discretion could be only exercised in one way, had the issue been adverted to in a timely way: [149]. 124 In this appeal, and despite the broad wording of appeal grounds 1, 1A and 1B, senior counsel for the appellant in oral argument did not submit to us that Elyard was wrongly decided or that ss 52(4) and (5) of the Bankruptcy Act operate as an exclusive code so as to displace the potential application of the slip rule. Rather, the argument is that the slip rule power was simply inapplicable in this case for the reason that it could not be engaged to correct the jurisdictional defect that existed when the sequestration order was made. In that way, this case is to be contrasted with others that have considered the potential application of the slip rule to extend the life of a creditor's petition before the making of a sequestration order. 125 At the outset that submission invites close attention to the effect of a final order made by a court of inferior jurisdiction where a jurisdictional prerequisite to the valid exercise of the conferred statutory power is not met. 126 The Federal Circuit Court, as it was, and the Federal Circuit and Family Court of Australia, (Division 2), were and are not superior courts of record: Federal Circuit Court of Australia Act 1999 (Cth) s 8; and Federal Circuit and Family Court of Australia Act 2021 (Cth) s 10. As is well understood an order made by an inferior court without jurisdiction is without legal effect: Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [27], Gaudron, Gummow and Callinan JJ; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 347, McHugh J and New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 (Kable) where at [56], Gageler J succinctly observed: There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it. Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order "must always remain an outstanding question" unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction. In contrast: "It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside". (Citations omitted.) 127 Jurisdictionally flawed orders of inferior courts may exist in fact and have consequences, such as for the commencement of appeals, but as I explain below that is no answer to the problem in this case. 128 Accordingly, the fundamental difficulty with the order made by the primary judge on 14 January 2022 to amend the order of 14 May 2021 is the "attempt to cloak the Court with jurisdiction [which is] beyond the power of the slip rule": Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 (Al Maha) at [272], Preston CJ of the Land and Environment Court (LEC), with whom Basten and Leeming JJA agreed. A relatively long line of analogous cases establish that slip rule provisions cannot be employed in that way. 129 Sutherland and Company v Hannevig Brothers Ltd [1921] 1 KB 336 concerned an award made by an arbitrator of a monetary amount plus costs as between the owner of a vessel and Sutherland. Subsequently, the solicitors for Sutherland corresponded with the arbitrator, noted that certain other costs were not included and stated their "impression" that the additional costs were omitted by reason of an accidental slip or omission, which the arbitrator had power to correct pursuant to a statutory slip rule. The arbitrator agreed and delivered an amended award to include those costs. The Court of the King's Bench set aside the amended award. Rowlatt J at 341 in addressing the scope and availability of the slip rule said: I cannot pretend to give a formula which will cover every case, but in this case there was nothing omitted by accident: the arbitrator wrote down exactly what he intended to write down, though it is doubtful what that really meant when considered from a legal point of view. But what the arbitrator has really done here is to assume a jurisdiction to expound what he had purportedly written down, and that, I think he cannot do. 130 In separate reasons, McCardie J agreed. Donaldson MR approved of the reasoning of Rowlatt J in Mutual Shipping Co of New York v Bayshore Shipping Co of Monrovia [1985] 1 All ER 520 (Mutual Shipping) at 526, which was also an arbitration case and in doing so distinguished between "having second thoughts or intentions and correcting an award of judgment to give true effect to first thoughts or intentions", where in his view second thought cases are not within the slip rule. He continued: Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misconstrues or misappreciates the law, the resulting award or judgment will be erroneous, but it cannot be corrected [under the slip rules]… The remedy is to appeal, if a right of appeal exists. The skilled arbitrator or judge may be tempted to describe this is an accidental slip, but this is a natural form of self-exculpation. It is not an accidental slip. It is an intended decision which the arbitrator or judge later accepts as having been erroneous. 131 That reasoning was referred to with approval in Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 (Tonab), where a magistrate exercising the Small Claims jurisdiction of the Local Court struck out a defence and entered judgment for the claimant in an amount slightly below the jurisdictional limit of the court. Subsequently, the magistrate made an order for indemnity costs in favour of the claimant. In doing so the magistrate overlooked that he did not have jurisdiction to award costs. When that mistake was realised, and upon further application by the claimant, the magistrate made an order purportedly pursuant to a slip rule to correct the first judgment by adding that the proceeding be transferred from the Small Claims Division to the General Division of the Court and with effect from the date of the original orders. The reason for making that order was that in the General Division there was jurisdiction to award costs. Those orders were the subject of an appeal to the District Court and then to the NSW Court of Appeal, which allowed the appeal. Ward JA, with whom Meagher and Leeming JJA agreed, held the magistrate had no power to invoke the slip rule in that way. Her Honour's characterisation of what occurred at [66] was: …when the oral reasons are read in the light of the preceding debates it is difficult to avoid the conclusion that this was an ex post facto justification for what had earlier been done and was by then recognised to have been done beyond the jurisdiction of the court. This is the kind of ex post facto justification for the exercise of the slip rule of the kind recognised in [Mutual Shipping] as impermissible. 132 Following her reference to the passage from Donaldson MR in Mutual Shipping, Ward JA at [67] continued: The slip rule does not permit the making of a correction solely for the purpose of expanding jurisdiction. In the context of considering the power of correction in the Arbitration Act 1889 (UK) 52 & 53 Vict c 49, which permitted correction of errors "arising from any accidental slip or omission", Rowlatt J in Sutherland and Company v Hannevig Bros Ltd [1921] 1 KB 336 held that the addition of particular words to the arbitrator's award to make clear that a particular amount was included within the amount covered by the award was an impermissible assumption of jurisdiction to expound the award… 133 Another example of impermissible use of slip rule provisions to correct or by-pass jurisdictional defects or limitations is Al Maha, where a Commissioner of the LEC made consent orders the effect of which was to grant an amended development consent for a proposal without first obtaining owner consent from an adjoining owner, which was necessary because an aspect of the approved development required the construction of an access driveway on the adjoining land. The statutory scheme required evidence of owner consent to the making of an application on all land the subject of the proposed development. The adjoining owner objected, commenced a proceeding in the Supreme Court and claimed the consent was invalid. Thereafter, a Commissioner purported to amend the impugned consent, in reliance on a slip rule, to remove from it the development work required to be undertaken on the adjoining land. The Court of Appeal quashed the amended consent. Preston CJ of LEC, with whom Basten and Leeming JJA agreed, applied the reasoning in Tonab, held the amendments to be substantive and then reasoned as follows at [271]- [274]: The amendments to the order and conditions of consent by the slip rule decision were substantive, for the reasons submitted by Al Maha and summarised above. The amendments changed substantively the development to which consent was granted, by removing the construction of the driveway connection to provide permanent access to Hilts Road. The amendment of condition 1 sought to approve a plan of the development that did not exist at the time the Commissioner granted consent. The amended plan sought to describe different vehicular access arrangements for the development. The amendments changed the assessment and approval of the development. The assessment of vehicular access under cl 101(2) of the Infrastructure SEPP was affected by the amendments. One amendment of condition 115 imposed a requirement to obtain development consent for the construction of the driveway connection to Hilts Road, where as the consent granted by the Commissioner had authorised the construction of the driveway connection to Hilts Road. The amendments sought to overcome the need to obtain the consent of Al Maha, as owner of land on which development is to be carried out, to the development application and thereby to give jurisdiction to the Court to grant consent to the development application. This attempt to cloak the Court with jurisdiction was beyond the power of the slip rule. The slip rule decision was, therefore, not authorised by the slip rule and should be set aside. I should also note that the slip rule decision did not cure the lack of jurisdiction caused by the Commissioner's failure to form the opinions of satisfaction under cl 4.6(4) of the [Canada Bay Local Environmental Plan 2013] necessary in order for the Commissioner to have power to grant consent to the development application. The slip rule decision was only intended to overcome the lack of jurisdiction to grant consent to development on Al Maha's land in the absence of Al Maha's consent as owner to the application. None of the slip rule amendments sought to, or could, overcome the jurisdictional error of the Commissioner in granting consent to the development application without first forming the necessary opinions of satisfaction under cl 4.6(4) of the [Canada Bay Local Environmental Plan 2013]. 134 Each of these cases stand as authority for the general proposition that, despite the width and flexibility of slip rule provisions, they are not able to be deployed retrospectively to confer jurisdiction which did not exist in a court, a fortiori a court of inferior jurisdiction, when final orders were made. In a very useful text, Amending Final Judgments and Orders by John Tarrant (The Federation Press, 2010) at p 96, this very limitation of slip rule provisions is addressed. The author, without qualification, states: "[t]he slip rule is not available to amend orders in circumstances where it is later held by an appellant court that a statutory basis for exercising the original jurisdiction is invalid" and attention is drawn to the decision of Mansflield J in Rothmore Farms Pty Ltd (in liquidation) v Belgravia Pty Ltd (1999) 17 ACLC 1,676. In that case, his Honour made final declaratory orders in June 1999 shortly prior to the publication of the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511, which struck down the purported investment of State jurisdiction in non-federal matters in federal courts. By a subsequent motion the respondents sought orders to set aside those declarations on several bases including the Federal Court slip rule. In refusing the motion, his Honour reasoned, inter alia, that 1677 - 1678 as follows: In my judgment, the orders which were made were final orders determining the rights as between the parties. If they were made without jurisdiction at all on the part of the Court, the appropriate avenue is for Mr Cooper and Mr Turner, if they wish to complain of these judgments and orders, to adopt the normal course of appealing from them. … In my view, having made final decisions and orders in the action, and there being no circumstance brought to my attention which causes me to doubt that the orders as entered reflect those decisions and orders, I no longer have power to deal with those judgments and orders in the way which is sought on these motions. 135 Although his Honour was concerned with a different circumstance, the crux of his reasoning is consistent with my analysis that the slip rule cannot be retrospectively applied to invest jurisdiction that did not exist when the sequestration order was made in this case. And as the decision of Mansfield J discloses, there is a further reason why the primary judge erred in his purported application of the slip rule. Once the sequestration order was made on 28 October 2021, it was a final order, albeit made without jurisdiction. It must be accepted that it had a factual operation with consequences. On the face of it the Federal Circuit Court had exercised its jurisdiction under the Bankruptcy Act to make the order provided for at s 43 upon the creditor's petition presented to it. Thereafter, various provisions of the Bankruptcy Act commenced to operate; notably, the property of Victor vested in the Trustee (s 58), legal proceedings were stayed (s 60), the relation back day became fixed (s 115) and the Trustee assumed office (s 157). In this case those provisions operated from 28 October 2021. They did not cease to operate once it was appreciated that the sequestration order had been made upon an expired petition. 136 The factual existence of jurisdictionally flawed orders of inferior courts can raise conceptual difficulties. It is sometimes difficult to determine what consequences flow from a decision that is void, invalid, vitiated or without legal effect. On one view there may be none. Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 when considering a decision of justices made on an information laid out of time at 389 said: Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable (Cp. The Case of the Marshalsea). (Footnote omitted.) 137 To similar effect is the judgment of Gummow and Gaudron JJ (when dealing with administrative decisions) in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51]: "[a] decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all". But difficulties of that character do not arise in this case because, although the sequestration order was made without jurisdiction, it did exist in fact. This Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; [2003] FCAFC 288 at [42] (Gray and Downes JJ) reasoned that Bhardwaj "cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute". 138 More recently this Court considered the issue in Bonesch v Somerville Legal (2021) 286 FCR 293; [2021] FCAFC 79, Katzmann, Markovic and Abraham JJ, a Bankruptcy Act case where a judge of the Federal Circuit Court, having denied the debtor procedural fairness, made a sequestration order. This Court set aside the sequestration order for jurisdictional error. It was then required to decide whether the petition had lapsed by operation of s 52(4) of the Bankruptcy Act. The Court concluded that it had not as "in fact" one of the three specified events at s 52(4) had occurred even though the making of the order was infected with jurisdictional error: [149]. The hearing of the petition was remitted to the Federal Circuit Court. 139 In reasoning to that result the Court placed reliance upon the decision of the NSW Court of Appeal in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 (Seymour Whyte) and in turn the reliance placed by that Court on what Gageler J said in Kable at [52], which relevantly was: Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a "nullity" in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid. (Citations omitted.) 140 In Seymour Whyte, Leeming JA at [29], and after referencing the judgment of Gageler J, stated: The fact that the decisions beyond jurisdiction, and may be said to be a "nullity", is not determinative of its status for the purposes of further legal analysis… An order beyond jurisdiction may also be the subject of proceedings seeking judicial review in the Supreme Court's supervisory jurisdiction, or indeed an appeal… 141 At [175] Sackville AJA reasoned similarly. 142 However, the factual existence of the jurisdictionally ineffective sequestration order that was made in this case on 28 October 2021, does not provide a basis for the later application of the slip rule to retrospectively cure that defect. The slip rule may operate to correct or amend an order made by an inferior court which is within jurisdiction, but not for the purpose of giving effect to another order which does not have legal force as an order of the court. The slip rule order made in this case cannot be considered alone and in abstract. It was made in order to confer jurisdiction that did not exist when the sequestration order was made. To have operative effect, where the slip rule is deployed to confer jurisdiction, it must correct an earlier order so as to give legal effect to the primary order, otherwise there is simply nothing to correct which is the point made by Gaudron J in Emanuele at 139 in the passage which I have set out above. Put another way, the slip rule operates as a mechanism to correct orders made within jurisdiction and not, to adopt the language of Preston CJ of LEC in Al Maha, to "cloak the Court with jurisdiction" which did not exist when the primary order was made.

Conclusion 143 I would allow the appeal and set aside the sequestration order made on 28 October 2021. As the petition lapsed by operation of s 52(4) of the Bankruptcy Act it is unnecessary to make further orders about it, though I anticipate that there will be a need for consequential orders, not limited to costs. For example, there is the position of the Trustee who has acted, doubtless in good faith, upon the sequestration order. The Trustee should be heard. It may be necessary to make consequential orders to "untangle and unravel" the position of the parties and the Trustee pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth): Robson (as former trustee of the bankrupt estate of Samakopoulos) v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143. 144 Accordingly, I would make the following orders:

1. Leave is granted to the appellant to rely upon ground 1 of the amended notice of appeal which ground was not raised in the proceeding before the Federal Circuit Court of Australia.
2. The appellant has leave to rely on further evidence on the appeal, being the evidence that the Federal Circuit Court of Australia did not at any time before the expiration of the period of 12 months commencing on the date of presentation of the creditor's petition make any order under s 52(5) of the Bankruptcy Act 1966 (Cth) extending the period for expiration of the petition.
3. The appeal is allowed.
4. The sequestration order made on 28 October 2021 in the Federal Circuit Court of Australia in the estate of Victor Hrycenko is set aside.
5. Order 1 of the orders made on 14 January 2022 in the Federal Circuit and Family Court of Australia, amending the orders made 14 May 2021 nunc pro tunc, is set aside.
6. The proceeding is adjourned for further submissions in writing or for hearing if necessary all consequential orders, including costs.
7. The Registrar is directed to provide a copy of these reasons to Mr Michael David Badge, who may be heard before the making of further orders.
8. The parties, and Mr Michael David Badge (should he wish to be heard) are to in the first place provide short written submissions, not to exceed 3 pages, on the question of consequential orders and costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.