FEDERAL COURT OF AUSTRALIA

Pastro v Official Trustee in Bankruptcy [2000] FCA 508

PASTRO v OFFICIAL TRUSTEE IN BANKRUPTCY

S 22 OF 2000

MANSFIELD J

31 MARCH 2000

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be refused.

2.                  The applicant to this application pay the respondent costs of the application to be taxed.

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

REASONS FOR DECISION

1                     This is an application for an extension of time within which to file and serve notice of appeal from a judgment of Finn J given on 26 November 1999.  That decision was made after a hearing which took place between 12 and 14 October and on 29 October 1999, in which the Official Trustee in Bankruptcy was the applicant and the present applicant, Emilio Pastro, (“Mr Pastro”) and Maria Pastro were respondents.  His Honour declared that certain memoranda of mortgages granted by Rodolfo Saverio Pastro in favour of Mr Pastro in one case, and in favour of Maria Pastro in another case, were void against the Official Trustee in Bankruptcy.

2                     Maria Pastro has appealed from that decision by notice of appeal dated 16 December 1999.  That appeal is listed for hearing in May 2000.  That appeal was instituted by Maria Pastro through solicitors, who were the same solicitors as appeared for her and for Mr Pastro at the hearing at first instance.

3                     Order 52 r 15 specifies that a notice of appeal from a final decision should be filed and served within twenty-one days after the date when the judgment appealed from was pronounced.  Mr Pastro did not appeal within that time.  Order 52 r 15(2) provides the Court or a judge with power, for special reasons, at any time to give leave to file and serve a notice of appeal.  This present application is brought under that rule.  Order 52 r 15(6) requires the application to be accompanied by an affidavit showing the nature of the case, the questions involved and the reason why leave should be given.

4                     The material in support of this application is an affidavit of Mr Pastro sworn on 23 March 2000.  It exhibits a series of letters between Mr Pastro and a number of persons, effectively seeking that the transcript and video-recording of examinations of Mr Pastro, Maria Pastro and Rodolfo Pastro under s 81 of the Bankruptcy Act 1966 (Cth) which took place between 18 February 1997 and 14 March 1997 be made available to him.  The correspondence exhibited to his affidavit shows that, in some respects, those requests were made on 30 September 1999, prior to the hearing, and in the case of four of them, after the judgment, and in the case of three of them, after the appeal period had expired.

5                     On 28 February 2000 Mr Pastro was informed by Auscript Pty Ltd (“Auscript”), the entity charged with the recording of those examinations, that he was welcome to visit its office to listen to the audiotapes on which those examinations were recorded.  A $50.00 archiving fee to retrieve the tapes was required.  Mr Pastro tells me that that fee has been paid.  Auscript indicated that, as it owned copyright in the tapes, it was not prepared to make a duplication of them.

6                     It does not appear in the affidavit, but Mr Pastro told me on the hearing of this application that he had not himself been to Auscript to listen to those tapes, but that his lawyer had been there to listen to the tapes.  There is no affidavit from Mr Pastro or from his lawyer indicating that there is any content of those tapes which has any significance to the prospects of Mr Pastro being successful in an appeal from the decision of Finn J if this present application were granted.

7                     The only material of substance, other than showing the course of the correspondence referred to, is Mr Pastro’s assertion in par 4 of his affidavit in the following terms:

“I did not file a notice of appeal prior to the 21 days because I was and still am awaiting a responses (sic) to the letter described in paragraph 1 above.  I now wish to appeal since I consider that the replies to my letters are not adequate and certain of the letters were not responded to at all, and to date I still have not received the appropriate audiotapes from Auscript.”

8                     He does not there refer to the fact that he had been provided with access to those audiotapes, or that his lawyer had attended the offices of Auscript to listen to them.  He does not refer to the outcome of that additional inquiry.

9                     The principles upon which the Court should give leave to file and serve a notice of appeal out of time are clear.  In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said:

“What is needed to justify an extension of time is indicated in r 52(2) by the words “for special reasons”.  It is that there be shown a special reason why the appeal should be permitted to proceed though filed after the expiry of twenty-one days.  In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think that the use of the expression “for special reasons” implies something narrower than this.”

10                  In considering this application, I apply the guidelines as laid down by the Full Court in that case.

11                  In my judgment this application should be refused for the following reasons.  Firstly, the relevance of the material which Mr Pastro is seeking as to whether he might appeal from the decision of Finn J, and as to the prospects of successfully doing so, is simply not made out.  As I have indicated, there has been an opportunity to listen to those tapes through his lawyer, but there is nothing to indicate that there is anything in those tapes which might give rise to a ground of appeal, or which might give rise to any assessment as to the prospects of an appeal succeeding.  Secondly, in my judgment Mr Pastro had the opportunity prior to the hearing before Finn J to raise the matters which he now raises at the trial.  As appears from the reasons for decision of Finn J, the evidence given by the Official Trustee in Bankruptcy was given by affidavit filed prior to the trial.  Those affidavits included the transcripts of certain s 81 examinations.  One submission put to his Honour was that the use of the transcripts of those examinations was unfair in the circumstances, but his Honour rejected that submission.  Because Mr Pastro was given advance notice of the proposed use of those examinations, he was in a position then to challenge the accuracy of those examinations in his oral evidence (and I understand, from perusal of the reasons of Finn J, that in part he disputed the accuracy of those examinations) and also to seek inspection of the transcripts of those examinations prior to the hearing and the audiotapes themselves.  There is no explanation offered as to why he did not do so, assuming that he or his solicitors did not then do so.  It is not clear whether his solicitors sought prior to the hearing the opportunity to listen to those tapes or not.  Thirdly, I do not regard the evidence as sufficiently explaining the lateness of this application.  As I have indicated, the evidence shows that Mr Pastro, by correspondence to a number of persons on 30 September 1999, sought the transcripts of those examinations.  There is no reason why those transcripts were not sought in discovery, if in fact they were not discovered, and there is also no reason why this application is as belated as it is.  Mr Pastro relies upon the fact that in some respects the responses received to his requests have only been provided in February of this year.  That may be the case.  However, there is no reason why he could not have brought this application for an extension of time earlier, when he had not received a response in what he regarded as a timely manner to his various requests.  Indeed, there is no satisfactory reason given why this application could not have been made to Finn J at the time he delivered his reasons for decision or within twenty-one days thereafter.

12                  In those circumstances I am not satisfied that there are special reasons in terms of O 52 r 15(2) to warrant the grant of extension of time to appeal which is sought.  I accordingly refuse the application.

13                  In my view there is no reason why the ordinary rule as to costs should not apply.  I accordingly order that the applicant on this application pay to the respondent costs of the application to be taxed.

Associate:

Dated:              18 April 2000