This decision by the Honourable Justice Collier of the Federal Court of Australia illustrates how time limits are calculated and that sometimes failing to meet the time limit by any amount of time leaves the court with no ability to consider the merits or justice of the motion. The relevant time limit in this case was an application to set aside a Bankruptcy Notice.
Mr Van Eps filed an application on 25 April 2023 to set aside a bankruptcy notice served on him by the Child Support Registrar. The issue was whether the application was filed within the 21-day time limit under the Bankruptcy Act, as this concerned the court’s jurisdiction to hear the application. The Registrar found the bankruptcy notice was personally served on Mr Van Eps on 3 April 2023. Mr Van Eps submitted he was served on 5 April 2023, but the court preferred the evidence of the process server that service occurred on 3 April. The application was electronically filed on 25 April, a public holiday, so was taken to be filed on 26 April under the court rules. Calculating 21 days from service on 3 April, excluding that day, meant the deadline was 24 April 2023. Therefore, the application filed on 26 April was out of time. The court had no jurisdiction to extend time or hear the merits. The application to set aside the bankruptcy notice was dismissed with costs.
Section 41(7) of the Bankruptcy Act provides as follows:
(7) Where, before the expiration of the time fixed for compliance with a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.
A failure to meet the time limit was not a procedural irregularity capable of cure but fatal to jurisdiction.
Section 36(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) provides:
As the time for compliance was “21 days after service”, Item 6 of s 36 of the Acts Interpretation Act was applied. As the day on which the Bankruptcy Notice was served was 3 April 2023 that day is excluded from the calculation of the 21 days making the first day 4 April 2023 and the last moment to validly file the application 11.59pm on 24 April 2023.