Edelsten v Deputy Commissioner of Taxation

[1988] FCA 860

IN THE FEDERAL COURT OF AUSTRALIA	) )
GENERAL DIVISION	) No. G 883 of 1988
1
NEW SOUTE WALES DISTRICT	1

Between:  GEOFFREY W. EDELSTEN

Applicant

And :  - TEE DEPUTY COMMISSIONER

OF TAXATION

Respondent

CORAM: Einfeld J.

- DATE: 6 June 1988

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

success -

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.

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/

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