Pastro v Official Trustee in Bankruptcy [2000] FCA 508

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 22 OF 2000

BETWEEN: EMILIO PASTRO

Applicant

AND: OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 31 MARCH 2000

WHERE MADE: 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.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 22 OF 2000

BETWEEN: EMILIO PASTRO

Applicant

AND: OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE: MANSFIELD J

DATE: 31 MARCH 2000

PLACE: ADELAIDE

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: