Edelsten, G.W. v Commissioner of Taxation

[1988] FCA 519

NOT FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G3355-G3361 Of 1987
)
GENERAL DIVISION	1

BETWEEN:  G.W. EDELSTEN

Applicant

- AND : COMMISSIONER OF TAXATION

Respondent

JUDGE MAKING ORDER:	LOCKHART J.
WHERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	8 AUGUST 1988

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The applications in the seven matte 355-3 361 of 1 987

be dismissed for want	of	prosecution, insofar as that
dismissal is necessary.

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

2. The applicant pay the respondent’s costs of the

proceedings in the seven applicatlons up to and

including 18 July 1988 and there	be no order as to the
costs of any party thereafter.

NOT FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY	)	NO. G3355-G3361 Of 1987
)
GENERAL DIVISION	)

BETWEEN: G.W. EDELSTEN

Applicant

- AND : COHHISSIONER OF TAXATION

Respondent

8 August 1988

REASONS FOR JVDGHENT

LOCKHART J.

These are seven motions, being heard together by

consent, for orders that the substantive applications to

which they relate be dismissed for want	of	prosecution. The
seven applications involve	Dr.	Geoffrey Walter Edelsten as

taxpayer and relate to seven consecutive years of income.

The applications are appeals by Dr. Edelsten against

decisions of the Commissioner of Taxation disallowing	his
objections to certain assessments to income	tax.

Dr. Edelsten became bankrupt and it 1s not disputed that

the provlsions- of sub-s. 60(2) of the Bankruptcy Act 1966

thereupon applied. Upon Dr. Edelsten becoming a bankrupt the

appeals commenced by Dr. Edelsten were stayed until the

trustee made an application in writing either to prosecute or

to discontinue the action. What in fact happened was that

the trustee appeared before the court on more than one

occasion and sought and obtained orders extending the time

within which he was required to make the election referred to

in sub-s. 6 0 ( 2 ) . However, when the matters came before the

Chief Justice on 15 April the trustee made no application for

any further extension of time within which to make his

election. The Chief Justice then noted that the respondent

proposed to file a notice of motion for dismissal of the

proceedings for want of prosecution.

Sub-sectron 60(3) of the Bankruptcy Act provides in

substance that i f the trustee dues not make the requisite

election within the time specified, he IS deemed to have

abandoned the action. As the trustee in the present case did

not make the election within the time specified,

notwithstanding that the time for making the electron had

been extended on more than one occasion at the trustee's

request, it follows in my view that the appllcatlons or

appeals in this matter are deemed to have been abandoned	by
the trustee.

No doubt the respondent has, for more abundant caution,

seen fit to take out these notices of motion directed to Dr.

Edelsten himself and not merely to the trustee of his estate.

I doubt that the motions are necessary, since in my view the

substantive applications or appeals have been long since

abandoned. However, the motions have been taken out and

evidence was given as to their due service	in accordance with
the rules of this Court.	No point is taken by the solicitor

appearing for Dr. Edelsten in relation to service or the time

of service.

The evidence before the court in support of the motion

is incorporated principally in the affidavit of Stephen James

NcNillan sworn on 19 July 1988. I need only refer to that

evidence briefly. The appeal was first mentioned before the

court on 16 November 1987; then on 16 December 1987; again on

8 February 1988; then 15 April 1988; then today. The

applicant has taken no steps to pursue the appeals other than

the steps relating to the request by the trustee for

extension	of	time within which to make the election under
sub-s.	60(2) of the Bankruptcy Act, except that a notice	of

appearance has been filed	in court today by solicitors acting
for Dr. Edelsten.

It has been submitted by the applicant's solicitor that

this motion should be ad]ourned so that it can abide the

outcome of a foreshadowed proceeding against the trustee	by
Dr. Edelsten. I am told by the applicant's solicitor that

such a proceeding would seek to assert that the trustee has

in various respects, including his failure to make the

requisite election under sub-s. 6 0 ( 2 ) , breached his duties as

trustee towards the bankrupt, Dr. Edelsten. In my opinion

those matters have no relevance to the motion before me and	I
decline to grant the adjournment.

Further in the view I take of the operation of sub-s .

60(2) of the Bankruptcy Act the present appeals are not

strictly before me as they are deemed to have been previously

abandoned by the trustee. I must, however, deal with the

motion before me for the purpose of either granting lt or

decline to accede	to it. Insofar as the same may	be
necessary, in	my view the seven applications	should be

dismissed for want of prosecutlon.

The order of the Court is that the applications In

matters G3355-3361 of 1987 be dismissed for want of

prosecution, insofar as that dismissal is necessary.

The proper order for costs in my opinion is that the

respondent should be paid his costs of the seven

applications up to the filing of the notice of motion of	19
July this year, and that thereafter there should	be no order

as to costs, including no order as to the costs of today.

Accordingly, the order of the Court as to costs is that the

applicant should pay the respondent's costs of the

proceedings of the seven applications up to and including 18

July 1988. There should be no order as to the costs of any

party thereafter.

The orders I have made as to costs are not intended, of

course, to affect any claim which the trustee may have ln the

estate of Dr. Edelsten so far as the trustee's costs and

expenses are concerned. The Bankruptcy Act and Rules wlll

operate in respect of those costs and expenses.

I certify that this and the precedrng

four ( 4 ) pages are a true copy of the

reasons for judgment herein of the

Honourable Mr. Justice Lockhart.

Associate	b S W $
-	Date: 8 August, 1988

Solicitor for Dr. Edels tenz Messrs. Shenker 6 Associates

Solicitor for the respondent: Australian Government Solicltor

Hearing:	of	Date	8 August	1988
Judgment:	Date	of	8 August	1988