Case: Emanuele v Australian Securities Commission [1997] HCA 20 ; (1997) 188 CLR 114
Outcome: applied
More recently, the High Court of Australia considered the effect of non-compliance with statutory requirements in the decisions of Emanuele v Australian Securities Commission [1997] HCA 20 ; (1997) 188 CLR 114 and Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 ; (2006) 225 CLR 364. 42 In Emanuele [1997] HCA 20 ; 188 CLR 114, the Australian Securities Commission had failed to obtain leave before applying for a winding up order under the Corporations Law . The court held by majority that the absence of leave was a defect or irregularity capable of correction by the court. The majority approved the observations of Sholl J in Re Testro Bros [1965] VR 18 (at 125 per Dawson J; at 129 per Toohey J; at 153 per Kirby J). 49 The actual provisions considered in Emanuele [1997] HCA 20 ; 188 CLR 114 are not materially different to those with which I am concerned, and in my view the analysis of the High Court in that decision is equally applicable to ss 236 and 237 of the Act. The fact that ss 236 and 237 of the Act were not enacted against the background of a well-known body of case law which recognised the court's power to grant leave nunc pro tunc is irrelevant. The question is ultimately one of construction of ss 236 and 237, even accepting they create a new regime. In both the context of s 459P, as considered in Emanuele [1997] HCA 20 ; 188 CLR 114, and ss 236 and 237 there is envisaged the exercise of the court's supervisory jurisdiction in advance of the commencement of proceedings. Further, I do not consider that the mandatory terms of s 237(2) are sufficiently different to the requirement of s 459P(3), the latter being that the court be satisfied that there is a prima facie case that the company is insolvent. Both provisions have requirements which can be equally considered before or after the commencement of proceedings. 54 As Kirby J said in Emanuele 188 CLR at 152-153 (footnotes omitted): 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 [(1986) 7 NSWLR 560 at 567] 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 pre-conditions. 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. The Law is a case in point. Its complexity and detail is such that it has necessitated, within a short time of its enactment, the passage of the First Corporate Law Simplification Act 1995 (Cth). A number of further stages of simplification are promised. An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. 55 The real preliminary question in this application is that which I have just considered, namely whether the legislation, in requiring leave prior to the institution of proceedings, conditions the Court's jurisdiction. In my view it clearly does not. 57 Having taken the view that obtaining prior leave is not a condition to jurisdiction of the Court, it is still necessary to determine whether, in the circumstances of this case, leave should be granted nunc pro tunc . The general principle is that the court will enter a decree nunc pro tunc if it is satisfied that it is only doing now what it would have done then: see Emanuele 188 CLR at 132 per Toohey J citing Donne v Lewis (1805) 32 ER 1221 at 1222.