Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
application for leave to appeal from the order to which a bankruptcy notice relates can constitute "proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued" for the purposes of s 41(6A) and (6C) ( Jenkins v National Australia Bank Ltd [1999] FCA 1758 , Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201 at [20] ). However the exercise of the Court's power under s 41(6A) to extend time for compliance with the bankruptcy notice is discretionary: Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201. In this case the Federal Magistrate refused to grant an order extending time to Mr Conde to comply with the bankruptcy notice. This is because, after consideration of the nature of the prospective application to the Court of Appeal of Queensland, the Federal Magistrate was satisfied that Mr Conde had no prospects of success in relation to either his application for an extension of time to apply for leave to appeal from the orders of Searles DCJ, or the actual application for leave to appeal. As is well known from the decision of the High Court in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 in respect of appeals against the exercise of judicial discretion: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505) In neither his notice of appeal nor his submissions has Mr Conde disputed his Honour's conclusions with respect to Mr Conde's prospects of success in his applications to the Court of Appeal of Queensland. It is clear that his Honour considered whether he should make an order extending time for Mr Conde to comply with the bankruptcy notice, and concluded that an application for an extension of time was unmerited in the circumstances. In light of the principles articulated in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 I am unable to find that his Honour failed to properly exercise the discretion vested in him by s 41(6A). Section 41(6C) was of no apparent relevance in relation to Mr Conde's application before his Honour. In my view Mr Conde's grounds of appeal with respect to s 41(6A) and (6C) have no merit. Ground 9: Alleged conduct of Mr Hunter's solicitor Mr Conde's allegations as found in ground 9 of his notice of appeal are not supported by any evidence. In my view they are scandalous and vexatious as claimed by Mr Hunter. I also do not see the relevance of the allegations to the question whether the bankruptcy notice served on Mr Conde should be set aside. In my view this ground of appeal has no merit. Ground 10: The bankruptcy notice prejudices or delays the fair trial or proceedings in the State Courts