Cottrell v Wilcox

[2003] FCA 600

FEDERAL COURT OF AUSTRALIA

Cottrell v Wilcox [2003] FCA 600

PRACTICE AND PROCEDURE – application by bankrupt for extension of time within which to file notice of appeal against order dismissing his application under s 153B of the Bankruptcy Act 1966 (Cth) for an annulment of his bankruptcy – delay of nearly seven months – no satisfactory explanation for delay – appeal doomed to fail.

Bankruptcy Act 1966 (Cth) s 153B
Federal Court Rules O 77 r 44

Australian Prudential Regulation Authority v Holloway (2001) 48 ATR 59 cited
Cummings v Claremont Petroleum NL (1996) 185 CLR 124 cited
Jess v Scott (1986) 12 FCR 187 followed
Stankiewicz v Plata [2000] FCA 1185 cited

DAVID M COTTRELL v JOHN A WILCOX

N 486 OF 2003

LINDGREN J
18 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 486 OF 2003

BETWEEN:	DAVID M COTTRELL APPLICANT
AND:	JOHN A WILCOX RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	18 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 486 OF 2003

BETWEEN:	DAVID M COTTRELL APPLICANT
AND:	JOHN A WILCOX RESPONDENT

JUDGE:	LINDGREN J
DATE:	18 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Mr Cottrell applies under O 52 subr 15(2) of the Federal Court Rules for an extension of time in which to file and serve a notice of appeal from a judgment delivered by Branson J on 3 September 2002.  An extension of time is required because a notice of appeal was not filed and served within the time limited by O 52 subr 15(1), namely, 21 days after the date when the judgment appealed from was pronounced.  That period of 21 days expired on 24 September 2002.  It was a little under seven months later, on 16 April 2003, that Mr Cottrell filed his application which commenced this proceeding. 

2. Annexed to Mr Cottrell’s application was a draft of the notice of appeal he wishes to file.  It sets out the following six grounds: 

   “1.That the Judge failed in her duty to consider the facts put before her Honour in a fair and unbiased manner.

   2.That the Judge allowed material to go before the Court that was not permissible and was in breach of the Bankruptcy Act.

   3.That the Judge allowed evidence to be tendered with the prefix TBA clearly in breach of the Bankruptcy Act.

   4.That the Judge was wrong to make a judgement on facts not the subject of the 153B Application before the Court at that time. 

   5.That the Judge was wrong to give any weight to the already dealt with, and dismissed petition of Goddard Elliott. 

   6.That the Judge was wrong to give weight to the possibility of the existence of potential claimants,…