Filed or Just Lodged? A Registrar's Extension Order Unwound on Appeal

Lamb v Sherman [2023] FCAFC 85; (2023) 298 FCR 79 concerned an appeal from a sequestration order.

The appellant had 21 days to comply with a bankruptcy notice. On the last day, at 4:37 pm, her solicitors electronically lodged an application to set the notice aside — seven minutes after the 4:30 pm cut-off in the Federal Court Rules for same-day filing. The registry did not accept it for filing until the following afternoon, by which time the creditor had already presented his petition.

The appeal was run on two footings. First, that receipt of the application by the registry at 4:37 pm was itself enough to "make" the application under s 41(6A) of the Bankruptcy Act 1966 (Cth), regardless of when it was later accepted for filing. Second, and independently, that even if that were wrong, a Registrar had since made orders under s 41(6A) extending time for compliance to 24 November 2022. As an exercise of delegated judicial power, those orders were final unless set aside on review — and neither party had ever sought to review them. On ordinary principles governing the finality of judicial orders, they should have been left standing and treated as having preserved the status quo, regardless of any doubt about the application that founded them.

The Full Court (Rares, Rofe and Downes JJ) rejected the first argument, holding that lodgment is not filing: under the deeming provisions in r 2.25(3) of the Federal Court Rules, a document received after 4:30 pm is treated as filed on the next business day, so the application was made too late and an act of bankruptcy had already occurred. On the second argument, the Court granted the creditor an extension of time, nunc pro tunc, to seek review of the Registrar's extension orders and set them aside as having been made without jurisdiction — meaning their apparent finality gave no protection once the application underpinning them was shown to be out of time.

The result is a reminder that an unreviewed order of a registrar isn't necessarily the last word if the power to make it never arose in the first place — a jurisdictional defect can still be raised well after the event, and a nunc pro tunc order used to unwind it.

See the reasons for judgment.