Case: Boumelhem v Commonwealth Bank of Australia [2008] FCA 1568 , 171 FCR 462
Outcome: applied
52(5), it has been observed, is in some ways comparable to the statutory requirement that a company be wound up within six months of an application being made. And in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 consideration was given to whether that statutory requirement displaced the " slip rule ". That decision has since been applied in the context of bankruptcy proceedings in Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149 , 154 FCR 554. Spender ACJ, Dowsett and Collier JJ there observed as follows: [29] The decision of the Full Court in Re Young; ex parte Smith (1985) 5 FCR 204 establishes that there can be no extension pursuant to s 52 of the Bankruptcy Act once the petition has lapsed. However the Court (of which Lockhart J was a member) considered that there was no question of applying the slip rule in that case (at 209). In Elyard the Court addressed the slip rule, but in the context of winding up rather than bankruptcy. Although s 52 of the Bankruptcy Act serves substantially the same purpose as s 459R of the Corporations Act , there are potentially significant differences between the two sections. [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 ten 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. [31] We wish to stress, however, the importance of the policy, evidenced in both the Corporations Act and the Bankruptcy Act , that insolvency proceedings be speedily resolved, presumably for commercial reasons and for reasons of fairness. Courts exercising jurisdiction in insolvency must recognise this policy by giving priority to the hearing and determination of such matters. The parties and their legal advisers, particularly those advising petitioning creditors, must be aware of the potential problem. The decision in Elyard should not be taken as establishing an unlimited power to avoid this statutory policy. As also noted by their Honours, the question as to whether there was any " error " which attracted the power to invoke the " slip rule " is a question of fact: [2006] FCAFC 149 at [68] . With respect, the same reservation is also expressed as to ability to correct an " error " pursuant to O 35 r 7 by extending the duration of a petition in the face of the express statutory terms of s 52(5). Notwithstanding that reservation, it is the case that other authorities have endorsed the existence of a power to extend time after the initial 12 month period has expired and where there has been an accidental slip or omission in failing to make an application within the time prescribed by s 52(5): Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Roskell v Snelgrove [2008] FCA 427 , 246 ALR 175 ; Boumelhem v Commonwealth Bank of Australia [2008] FCA 1568 , 171 FCR 462.