The case law
43 Ms Lamb's reliance on the decision in Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512; 64 FLR 306 does not avail her. Bowen CJ, Fisher and Lockhart JJ explained that the words "presented" and "presentation" used in the Bankruptcy Act were not used in the sense of the unilateral act of the creditor showing the petition to the appropriate court officer, but in the sense of handing or delivering it to, and the officer accepting, it. They said (at 515):
The showing of the document to the court's officer and its receipt by him are both necessary elements in the notion of presentation of a petition. However, what the officer does with the document thereafter is nothing to the point as by then it has been presented.
(emphasis added)
44 Their Honours went on to cite that the distinction between presentation and filing was of long standing by referring to the reasons of Walker J in Re Daunt; Ex parte McIntyre and Yates (1905) 5 SR NSW 533 at 536-537. There, Walker J explained that this distinction was of little practical effect, saying (at 537):
This, I take it, is the invariable course, and is so universally recognised that in practice a presentation of a petition involves and implies a request that it be immediately filed. The old distinction has become purely verbal. It is not unreasonable to suppose that the Legislature, when speaking of "presentation," spoke of it as every practitioner would regard it, as carrying with it the usual incident of filing.
(emphasis added)
45 Bowen CJ, Fisher and Lockhart JJ went on to say that, because of peculiarities and differences in the way, at the time in 1982, in which various State registries of this Court dealt with the lodging and filing of documents, such as a creditor's petition, that a person wished both to present and have filed, it was necessary that the Full Court determine a consistent practice throughout the Registries of the Court as to how the act of presenting a petition could be ascertained. They said (at 517):
It is vital, however, that the date of presentation of the petition be ascertained with certainty. Hence that date ought to be stamped or otherwise marked on the petition.
46 In Streimer 47 ALR 211, the Full Court considered a slightly differently worded s 41(6A) (before its amendment to substantially its current form by Sch 1 of the Bankruptcy Legislation Amendment Act 1996 (Cth)), that then provided:
Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of a bankruptcy notice -
(a) proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) an application to set aside the bankruptcy notice has been filed with the Registrar;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
(emphasis added)
47 Contrary to Ms Lamb's, and indeed Mr Sherman's, arguments, in Streimer 37 ALR at 214-215 Deane and Ellicott JJ held that the consequence of "filing" the application was:
The Parliament plainly turned its attention to the question of what steps needed to be taken before the expiry of the time which the bankruptcy notice fixed for compliance with its terms. It specified two alternative steps, namely, the institution of proceedings to set aside the relevant judgment or order or the filing of an application to set aside the bankruptcy notice. Subject to either of those steps being taken within the time limited for compliance, the power to extend time is conferred in general words. It would, in our view, be contrary to the plain import of the words used by the Parliament to construe s. 41 (6A) as requiring not only that one or other of the alternative express conditions precedent to jurisdiction be fulfilled within the time originally fixed for compliance but as also requiring that both the application for an order and any initial order be made within that time.
(emphasis added)
48 In that case, the debtor applied to the Court within the time fixed for compliance by the bankruptcy notice for an order extending the time but, some time later after several extensions, the judge hearing the application accidentally omitted to make a further order extending the time for compliance overnight when he adjourned the proceeding to the next day. Deane and Ellicott JJ held that once the jurisdiction of the Court had been enlivened under s 41(6A), the Court could make an order nunc pro tunc to remedy such a defect because nothing in s 41(6A) required expressly that an order be made prior to time at which the notice would expire.
49 The present wording of s 41(6A) also confers power on the Court to make an order extending the time for compliance once the debtor has taken one of the two steps in pars (a) and (b), namely, instituting proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued or making an application to the Court to set that notice aside. Given that s 41(6A)(a) requires that the debtor institute proceedings, being an act to enliven the jurisdiction of a court that can set aside the judgment or order in respect of which the bankruptcy notice was issued, s 41(6A)(b) must also require the debtor to do an act sufficient to enliven the jurisdiction of this Court (or another court having jurisdiction under s 41(6A)) so as to satisfy its criterion that "an application has been made to the Court to set aside the bankruptcy notice".
50 Mr Sherman's argument that Streimer 37 ALR 211 was wrongly decided relied on a construction of s 41(6A) that is in the teeth of both s 33(1)(c) of the Bankruptcy Act, as it applies to an application for an extension filed prior to the time fixed for compliance by the bankruptcy notice, and the ordinary rule of statutory construction, as stated by Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421:
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
(footnote omitted)
51 Here, the jurisdiction of the Court to make an order extending time exists if, and only if, an application has been made before the time fixed for compliance of the bankruptcy notice, as had occurred in Streimer 37 ALR 211. Moreover, a reading of s 41(6A) of the kind Mr Sherman argued would ignore the facultative alternative in s 41(6A)(a) that all a debtor need do is institute proceedings to set aside the judgment or order in respect of which the bankruptcy notice had been issued in another court, as the debtor's alternative to making an application under s 41(6A)(b) to set the bankruptcy notice aside.
52 Mr Sherman's application to overrule Streimer 37 ALR 211 cannot be accepted. First, the decision has stood for over 41 years. If the Parliament had thought the decision had created an inconvenience or did not reflect its intention, it is impossible to think that the legislation would not have been amended to reflect such a construction. Secondly, the decision of Deane and Ellicott JJ is plainly correct and should be followed. Moreover, in Guss v Johnstone (2000) 171 ALR 598 at 610-611 [63], Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ referred to Streimer 37 ALR 211 with approval. Their Honours noted (at 609 [55]):
When, on 1 July 1997, on the hearing of an application made by notice of motion filed on 23 June 1997, Sundberg J refused to stay the order of 30 May 1997 by which he declared that the court was not satisfied of the matters referred to in s 40(1)(g), Sundberg J rightly pointed out that a grant of stay on 1 July would not cancel the act of bankruptcy which had already been committed. In James v Abrahams ((1981) 34 ALR 657 at 662), Deane and Lockhart JJ held that the language of s 41(6A), including its express stipulations as to time, makes it impossible to imply any general power in the Federal Court to extend the time for compliance with a bankruptcy notice in a case which does not fall within s 41(6A). In any event, no application was made to Sundberg J to do anything other than stay his previous orders. The only order he had relevantly made was a declaration, and, by force of the statute, that had already resulted in certain consequences. The Full Court was right to dismiss the appeal against the decision of Sundberg J of 1 July 1997.
(emphasis added)
53 They also said (at 610 [62]):
It is true that there is no statutory grant of power to annul an act of bankruptcy (King v Henderson [1898] AC 720 at 728), or to extend the time for compliance with a bankruptcy notice other than in a case where the conditions of section 41(6A) have been satisfied (James v Abrahams (1981) 34 ALR 657).
(emphasis added)