IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. G13 of 1980 GENERAL DIVISION ON APPEAL FROM THE COURT OF INSOLVENCY OF THE TATE OF SOUTH AUSTRALIA RALRCISING FEDSRAL JURISDICTION IN BANKRUFLCY BETWEEN: ROBERT GRAHAM DOUGLAS HILL Appellant and THE DEPUTY COMMISSIONER OF TAXATION Respondent ORDER JUDGES : Northrop, Deane, McGregor, JJ. DATE: 14 October 1980 WHERE MADE: Adelaide ORDER: The appeal be dismissed with costs. \ IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. G13 of 1980 GENERAL DIVISION ON APPEAL FROM THE COURT OF INSOLVENCY OF THE STATE OF SOUTH AUSTRALIA EXERCISING FEDERAL JURISDICTI IN BANKRUPTCY BETWEEN: ROBERT GRAHAM DOUGLAS HILL Appellant and THE DEPUTY COMMISSIONER OF TAXATION Respondent NORTHROP, DEANE, McGREGOR, JJ. EX TEMPORE JUDGMENT 14 OCTOBER 1980 Se TE RE EET A FO AE Se mame NORTHROP J: This 1s an appeal from the Court of Insolvency of the State of South Australia, his Honour Judge Rogerson, exercising federal jurisdiction in bankruptcy. His Honour refused to set aside a bankruptcy notice which had been served upon the appellant requiring the appellant to pay, secure or compound the sum of $10,450.39 payable under a judgment of the Local Court of Adelaide delivered in May 1978 1n an action commenced in 1976 in favour of the respondent, Deputy Commissioner of Taxation. The appellant had, in accordance with section 40(1) (g) of the Bankruptcy Act 1966 filed an affidavit claiming that he had a counter-claim, set-off or cross-demand against the respondent in the amount of $15,000. His Honour found that he was not satisfied that there was any basis for the alleged counter-claim, set-off or cross-demand. The appellant appeals against the substance of his Honour's findings. He also appeals on the ground that his Honour was 1n error in refusing an application for an adjournment of the proceedings which had been made to him. By ground 2 of the further grounds of appeal, the appellant raised as an issue the question of whether the Registrar-1in-Bankruptcy was purporting to exercise judicial powers which he in law was not empowered to exercise. At the beginning of the hearing ef the appeal the appellant withdrew that ground of appeal and accordingly no notice was required to be given under section 78B Judiciary Act 1903. During the course of the hearing of the appeal, the appellant withdrew ground 7 of the grounds of appeal. There was some discussion before us as to whether the appellant had in fact been refused an adjournment. On the basis that he was, the appellant has failed to show that there are grounds for interfering with the refusal of his Honour, in the exercise of his dascretion, to grant an adjournment of the proceedings on 18 June 1980. In this regard, it should be mentioned that the only prejudice which the appellant has suggested he suffered as a result of the refusal of an adjournment was the absence of access to certain categories of documents. On the hearing of the appeal, the appellant was unable to specify any particular additional document which he desired to adduce in evidence either before this court or before the court of first instance on any re-hearing. As regards the substance of the appeal, it 1s @ifficult to comprehend even an argument that the appellant has a cross-claim in the amount of $15,000 against the respondent, Deputy Commissioner of Taxation. Doing the best that I can, it would seem that the appellant's argument is that a company, Mineral Fertilizer Proprietary Limited (formerly Primary Fertilizer Proprietary Limited) was shown in its books as being indebted to the appellant, that the appellant, who claims this book debt in his favour was "spurious", assigned the book debt to the Deputy Commissioner of Taxation and that the appellant then, acting on behalf of Mineral Fertilizer Proprietary Limited, purported to issue in his own favour a group certificate showing total deductions as having been made from salary or wages in the amount of $15,000. On this basis it was claimed that the Deputy Commissioner was indebted to the appellant in the amount of $15,000. Taking into account, as best I can, all of the arguments advanced by the appellant, I am unpersuaded that his Honour was in error in finding that He was not satisfied, on the evidence before him, that there was any basis for the appellant's claim that the respondent was indebted to him in the amount of $15,000. Insofar as the appellant relies on the provisions of section 221H of the Income Tax Assessment Act 1936, I am of the view that the section refers to a group certificate issued in respect of deductions which have actually been made from an employee's salary or wages. Sub-section (7) of the section plainly indicates that the section is not intended to operate so as to entitle an employee to claim credit or payment of the amount shown in a document in the form of a group certificate where that amount has neither been received by the Commissioner nor deducted from his salary or wages. It should be mentioned that a number of particular criticisms of his Honour's judgment were made by the appellant. Some of those particular criticisms would appear to have some substance. In particular, there would appear to be no adequate basis in the evidence set out in the appeal book for his Honour's statement that Mineral Fertilizers Proprietary Limited was itself in such serious financial difficulties that recourse to 1t might be useless. Any such matters are, however, of peripheral importance and do not affect the substance of the appeal. It should be mentioned also that when the appeal was called on for hearing the appellant requested an adjournment to enable him to obtain legal representation. Subsequently, after the court indicated 1t was prepared to accede to that application, he withdrew it. I would dismiss the appeal with costs. rm ee ee ee ee ere DEANE J: I agree. MCGREGOR J: I concur with the order proposed by the learned presiding judge and for the reasons he gives. NORTHROP J: The order of the court is that the appeal is dismissed with costs. I certify that this and the foree preceding pages are a true copy of the Reesons for Judgment herem of the Honourable Mr. Justice VerMrop, Pe Horrcruable Mr Sestc~e Peune ancl thé Hong rbhi Mr, Sesto LAG epur Associate Met Mawr Dated: /4 Cove =e /IKO RTS A EA NE nee nett Ae ee ee oe