Case: Crimmins v Glenview Home Units [1999] FCA 515
Outcome: discussed
is pointed out by counsel for the creditor that each of subrules (2), (3) and (4) includes the word 'must' which, it is submitted, compels the conclusion that each is a mandatory requirement. Counsel was unable to refer to any direct authority as to the effect of non-compliance with r 30.02(4) of the 2001 Rules or the later r 3.02(3) of the Federal Magistrates Court (Bankruptcy) Rules 2006 , which is in similar terms. Counsel pointed out that the provision was also in similar terms to the former Federal Court Rule O 77 r 13(4). Although not directly on point, counsel drew the Court's attention to the decision of the Full Court in Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 ; (1999) 88 FCR 445 and the decision of Branson J in Crimmins v Glenview Home Units [1999] FCA 515 , dealing with other provisions of O 77 r 13. The decision in Hubner v Australia and New Zealand Banking Group Ltd does not provide any real guidance as, in that case, the application to set aside the bankruptcy notice had not been filed within the time for compliance with it. The Full Court's agreement with the finding that the proceedings were defective, in that the applications were not accompanied by appropriate affidavits, does not decide the issue here. The decision of Branson J in Crimmins v Glenview Home Units appears to have something for both sides. Her Honour said (at [11]): 'Unless the Court in any case exercises the discretion given to it by O 1 r 8 of the Federal Court Rules to dispense with the compliance with any of the requirements of the Rules, parties to litigation before the Court are bound by the Federal Court Rules .' No application was made in that case for dispensation. It was found that the affidavits which accompanied the application did not comply strictly with O 77 r 13(3)(c) (corresponding to r 30.02(3)(c)) but nonetheless the Court gave such a dispensation. There is a critical difference between rules of court, on one hand, and statutory obligations on the other. As shown by the decision in Crimmins v Glenview Home Units there is always an overriding power in the Court to dispense with the effect of rules of court. The applicable provision here was r 1.06 of the Federal Magistrates Court Rules 2001 . Although the Federal Magistrate indicated a disinclination to extend any leeway concerning the failure to serve in time in this case, his decision in that respect miscarried because of his misunderstanding as to the procedure to that date. Apart from not being aware of the orders extending the time for compliance with the bankruptcy notice, his Honour did not advert to the fact that the parties had appeared at the first return of the proceeding and that directions were made on that occasion in contemplation that the application would be heard in the normal way. The debtors argue that the time to contend that the proceeding was a nullity was on the first return date on 17 January 2006 and that such a position was effectively waived by what took place. It is submitted for the creditor that no waiver as such took place. It was submitted that cooperation in relation to procedural directions did not abandon a point fatal to the application which was taken before the Federal Magistrate when the matter came on for hearing. In my opinion, the proceeding was not a nullity, as the failure to abide by the rules as to service could have been excused. It is submitted for the debtors that the creditor has not been able to point to any prejudice that would arise if there were such dispensation. I am satisfied that the question as to whether there should be dispensation from failure to comply with the rule was not considered at first instance in the light of all of the relevant circumstances. Lastly, it was contended for the creditor that it is clear that there was no misstatement in the bankruptcy notice, and that, as there could only be one conclusion, I should deal with the issue and not return the matter to the Federal Magistrate. I indicated to counsel during the course of argument that I would not take that course. The merits are not so clear that I should enter upon that issue.