Case: Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312 ; (1987) 76 ALR 137
Outcome: referred to
Further, the Federal Magistrate declined to adjourn the hearing of the petition until the determination of the appeal to the Court of Appeal. After noting the curial history of the matter, including the judgment delivered by Justice Williams in the Supreme Court, her Honour stated (at [19]-[20]): The determination as to whether or not to grant an adjournment in the proceedings is a discretionary one. Whilst the court is mindful that it should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings, in this case the judgment relied on as the foundation of the bankruptcy proceedings is a judgment of Judge Holt and nowhere is there evidence before the court that the appeal to the Court of Appeal in the Supreme Court of Victoria is based on genuine and arguable grounds (Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312 ; (1987) 76 ALR 137 at 148). [Mr Strangio] has had ample opportunity to place such evidence before the court including any as contained in the two affidavits relied upon and filed this day. No material persuasive of the granting of an adjournment or that could even properly found such an application was before the court. Having determined to refuse the application for an adjournment the court proceeded to hear the petition. Each of the grounds of opposition are rejected. All formal evidence as necessary has been filed and the court is satisfied with the proof of those matters. No opposition to the granting of the petition was put in submissions made by Counsel for [Mr Strangio]. The court exercises the discretion conferred by section 52 of the [Bankruptcy Act 1966 (Cth)] in favour of [Westpac]. 11 Mr Strangio was legally represented in the Federal Magistrates Court but unrepresented in this Court. In this Court, he relied on his own affidavits of 25 August 2008 and 12 September 2008. In his 12 September affidavit, he deposed that his appeal to the Court of Appeal was still on foot. A copy of a notice of appeal was annexed to this affidavit. In his 25 August affidavit, he deposed that he was informed by the Federal Magistrate on 28 July 2008 and later by another Court officer that he had 28 days in which to lodge his appeal. 12 Westpac relied on the affidavit of Robert Hinton of 11 September 2008, which exhibited a copy of the transcript of the hearing before the Federal Magistrate. 13 A proposed notice of appeal was attached to Mr Strangio's application for an extension of time. The grounds stated were: 1. The learned Magistrate erred in law by making a sequestration Order against the appellant in disregard of the principles enunciated by the Federal Court of Australia in Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312 ; (1987) 76 ALR 137 at 148 (" Ahern "). 2. The learned Magistrate erred in law by finding that " no opposition to the granting of the petition was put in submission " made by Counsel for the appellant when, in fact, the appellant's Counsel had submitted that the petition should be dismissed on the basis of the principles enunciated in Ahern . 3. The learned Magistrate denied the appellant natural justice by failing to accede to the appellant's application to adjourn the hearing of the petition pending the making of an application to stay execution of the judgment debt to the Court of Appeal. 21 Mr Strangio would argue on appeal that the Federal Magistrate misapplied the principle in Ahern . In Ahern , which was also an appeal from a decision refusing an adjournment of a creditor's petition, the Full Court observed (at 148) that "in general a court exercising jurisdiction in bankruptcy should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings provided that the appeal is based on genuine and arguable grounds". A Full Court of this Court followed Ahern in Adamopoulos v Olympic Airways SA (1990) 95 ALR 525 , at 526 per Pincus J and 531-32 per Burchett and Gummow JJ. 28 As already indicated, the Federal Magistrate's decision to refuse Mr Strangio's adjournment application was a discretionary one. The principles applicable on an appeal against the exercise of discretion are well established: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 , at 504-5 per Dixon, Evatt and McTiernan JJ; Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 , at 627 per Kitto J; and Ahern, at 146-47 per Davies, Lockhart and Neaves JJ. In order for an appellate court to interfere with an exercise of discretion, it is not enough that the appellate court considers that, had it been the first instance judge, it would have taken a different course. Rather, the appellant must show that there was some error in exercising the discretion, as for example, that the first instance judge acted on a wrong principle. In the present case, there is nothing shown below or in the affidavits filed or the submissions made in this Court that would lead me to conclude that the Federal Magistrate made any discernible error in exercising her discretion. Her Honour did not deny Mr Strangio natural justice as he would allege.