| IN THE FEDERAL COURT OF AUSTRALIA | ) ) |
| GENERAL DIVISION | |
| 1 |
| NEW SOUTE WALES DISTRICT | 1 |
| Between: | GEOFFREY | W. | EDELSTEN |
Applicant
| And : | - | TEE DEPUTY COMMISSIONER |
OF TAXATION
Respondent
CORAM: Einfeld J.
PLACE: Sydney
EX-TEMPORE JUDGMENT
Application has been made by Geoffrey Walter Edelsten (the applicant) for an extension of time in which to file and serve a notice of appeal
| from the judgment of Justice Burchett given on | 10 March 1988. In the |
hearing which preceded that judgment and which took place in October,
| November, December of | 1987 and January | of 1988, the applicant was facing |
an application by the Deputy Commissioner of Taxation to annul a bankruptcy which had flowed by virtue of the presentation of his own
| petition on | 21 September 1987. |
| In his judgment, Justice Burchett annulled the bankruptcy and made in | a |
separate proceeding a sequestration order on the petition of Fullpoint
Pty. Limited. Subsequent to those proceedings, the applicant became
| legally unrepresented; he has represented himself | in this application |
| for an extension of time to file and serve | a notice of appeal. |
| In an | affidavit filed in support of the application, he explains that he |
was unaware of the 2 1 day time limit prescribed for appeals of this kind. Be has not been cross-examined on that affidavit, and no evidence has been brought, either by the Deputy Commissioner of Taxation or by the trustee, in opposition to it. Indeed, neither the Deputy
| Commissioner nor the trustee, both | of | whom have been represented here, |
| oppose this application. |
The Deputy Commissioner takes, as he describes it, a neutral stance, whilst drawing attention to certain legal problems that may arise in relation to the competence of the appeal. It is said that possible jurisdictional gaps exist
| (a) in my | power to | grant | the application | as a single Judge | of the |
Court; and
| (b) in relation to the | appeal itself, in that there may be no appeal |
available at the hands of Dr. Edelsten himself.
| The first jurisdictional argument arises from a reading of the previous |
| section | 2 5 ( 2 ) | of the Federal Court of Australia Act, and of | Order | 52 |
Rule 15 of the Federal Court Rules, as explained by Justice Toohey in
the case of - Hoar L19801 4 0 ALR 189. Since that decision, section 2 5 ( 2 )
| of the Federal | Court of Australia Act has been amended, and it now |
| expressly provides that an application for an extension | of time within |
| which | to institute an appeal may be heard and determined by | a | single |
| Judge. |
| It is possible that Justice Toohey's reading | of | Order 52 Rule 15(2) |
| might still throw some doubt | on the jurisdiction of | a single Judge to |
grant this application. Bowever, I feel that the amendment to section 2 5 ( 2 ) deals with it, at least sufficiently so for me to accept that I
have jurisdiction to grant the application now made.
The other point raised by the Deputy Commissioner is not a matter which I should presently consider. It was not argued before Justice Burchett
| that | D r . | Edelsten had no right to appear | in those proceedings by |
| himself, in the sense | of otherwise than through | a trustee, and I see no |
| reason why I should now examlne, on an application for | an extension of |
| time, a possible defect in his capacity to pursue this appeal | if time is |
| extended | ~ |
The application is founded on Dr. Edelsten's unchallenged ignorance of the time limit and is based upon a series of arguments raised in his second affidavit in support o€ the application sworn on 1 June 1988. In
| this affidavit he alleges | a large number of legal defects | in Justice |
| Burchett's decision. |
| On the one hand, if | I am to extend the time for the filing and serving |
| of | a | notice of appeal, | I would ordinarily need to be satisfied that |
| there were one | or | more substantive points that have some chance of |
On the other hand, it seems to me quite inappropxiate for me, in this
| application, to examine either superficially | or in detail any one of |
| these arguments. The only result would be that | I would, in effect, be |
| sitting in judgment myself on Justice Burchett's learned decision in | a |
| complex matter. This is obviously inappropriate | for a number of obvious |
| reasons. |
| If I were to examine the matters raised | in the applicant's affidavit, I |
| would obviously have to do | so comprehensively, or not at all. If I did |
| so | comprehensively, it would take almost as long as having the matter |
| before the Full Court | in the first place. |
| In addition, my views on his | Honour's judgment would have absolutely no |
| significance at all. In | a | matter of this kind, it seems to me |
| appropriate that the judgment of | a primary or trial Judge should in |
principle be able to be challenged on appeal, and subject to the
| discretionary considerations appropriate to | an application to extend |
| time, nothing | I do should prevent a litigant from having such matters |
| examined. If | I | therefore permit this appeal to go forward, it will |
| reflect no judgment by me | on whether any of the attacks made in the |
| affidavit on the findings of Justice Burchett are valid | or justified. |
| There are two choices. One is that | I grant the extension of the time |
| sought; the other is that | I refer the application to the Full Court for |
determination. In the circumstances to which I have just referred, it
seems to me that the quickest and most effective mechanism for dealing
| with this matter is to permit the filing and service of the notice of |
appeal so as to enable the matter to be brought before the Full Court,
and refer this motion to extend time to the Full Court. That will
| enable the Full Court, if it | so wishes, to grant or refuse an extension |
| of time, | as it considers appropriate, | or to hear the appeal first and |
then rule on the time question.
Accordingly, I order that the applicant be permitted to take all steps necessary to bring this appeal to the Full Court, including the filing
| and service of | a notice of appeal from the judgment of Justice Burchett. |
| I refer to the Full | Court the application for an extension of time and |
| reserve the question | of costs of | the application to the hearing | of | the |
| matter before the Full | Court. |
/
I cortify that this and the so
precedi!ig pages are a true copy of the
Reawns for Jirdgrnent herein of his i-ionour
Mr. Justice Einlold