Wheaton v Krawec

[2018] FCA 1466

FEDERAL COURT OF AUSTRALIA

Wheaton v Krawec [2018] FCA 1466

Appeal from:	Application for extension of time: Wheaton v Krawec [2018] FCA 312
File number(s):	TAD 10 of 2018
Judge(s):	O'CALLAGHAN J
Date of judgment:	21 September 2018
Catchwords:	PRACTICE AND PROCEDURE – application for an extension of time to appeal from a decision of a Federal Court judge – where no evidence given – no basis for granting an extension – application dismissed
Date of hearing:	21 September 2018
Registry:	Tasmania
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr R Browne

ORDERS

TAD 10 of 2018

BETWEEN:

ANTHONY JOHN WHEATON

Applicant

AND:

ANNA SOPHIA KRAWEC

Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	21 SEPTEMBER 2018

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time to appeal against the decision of Kerr J given on 7 March 2018 be dismissed.

2.The costs of this application be paid out of the applicant’s bankrupt estate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

O’CALLAGHAN J:

1. These reasons for judgment were delivered ex tempore at the hearing on 21 September 2018 and accompany the orders set out above.

2. In this matter, by application dated 10 April 2018, the applicant, who is self-represented, seeks an extension of time within which to appeal against the decision of Kerr J given on 7 March 2018 (Wheaton v Krawec [2018] FCA 312) ordering that the applicant’s interim application for review of a registrar’s decision not to grant a stay in that proceeding be dismissed, and that orders made by Registrar Browning on 7 December 2017 not be set aside.

3. The applicant filed an affidavit in support of his application dated 10 April 2018 in which he relevantly deposed as follows:

   I seek to lodge [an] application for an extension of time to appeal.

4. That is the sum total of the evidence in support of the application. 

5. At the hearing of the application this morning, I asked Mr Wheaton what he wished to say in support of it. He said two things which, on one view, may be seen to be inconsistent: 

   (1)First, he said that there was no point to pursuing the application for an extension of time to appeal against Kerr J’s decision because “it has lapsed and it has been overtaken by events.”

   (2)Secondly, the applicant said that he wished for the application to be adjourned so that it can be heard together with a number of other proceedings which the applicant seeks to have issued in the Tasmania Registry of this court. 

6. In my view, given that the applicant was given an ample opportunity to say everything that he wished to say in support of his application for an extension of time and that he was unable to articulate any arguable basis for it, I am bound to dismiss it.

7. In any event, the applicant has conceded that there is no point to the application because, as he put it, the decision of Kerr J has lapsed and has been overtaken by events. 

8. In those circumstances, I will decline to order that the matter be adjourned pending the issuance of any further proceedings of an unspecified kind that the applicant may choose to issue in this Registry. 

9. Mr Browne, who appeared for the respondent, sought his client’s costs to be paid from Mr Wheaton’s bankrupt estate. In all the circumstances, in my view, that is an appropriate order to be made in this case.

10. Accordingly, I order:

    (1)The applicant’s application for an extension of time to appeal against the decision of Kerr J given on 7 March 2018 be dismissed.

    (2)The costs of this application be paid out of the applicant’s bankrupt estate.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:        25 September 2018