Re Oscar Sigmund Dziubinski v Deputy Commissioner of Taxation [1982] FCA 209 (19 October 1982)

FEDERAL COURT OF AUSTRALIA

Re: OSCAR SIGMUND DZIUBINSKI
And: DEPUTY COMMISSIONER OF TAXATION
No. G43 of 1980
Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fisher J.
Fitzgerald J.

CATCHWORDS

Appeal - Failure of appellant to attend for settlement of appeal papers - Failure to prosecute appeal - Dismissal for want of prosecution.

HEARING

SYDNEY
19:10:1982

ORDER

1. The appeal be dismissed.

2. The costs of the applicant, the Deputy Commissioner of Taxation, be taxed and paid out of the estate of the appellant.

DECISION

A sequestration order in respect of the estate of the appellant was made on 1 March 1982. By an undated notice of appeal filed on 22 March by a firm of Sydney solicitors the present proceedings were instituted. Those solicitors later withdrew and the appellant has not been further represented.

An appointment to settle the appeal papers was fixed and noted on the notice of appeal for 11:00 a.m. on Thursday 22 April. The appellant attended on that occasion before the deputy registrar, as did an officer from the Commonwealth Crown Solicitor's office. The requirements of the rules were explained to the appellant and the settling of the index was adjourned to 11:00 a.m. on 27 April 1982 with the intention that it would be attended to before a call-over to be held on 28 April.

The appellant did not attend on 27 April and has since done nothing further to prosecute the appeal, although he has attended call-overs. The appellant's statements before us supported the clear inference which otherwise emerged that he does not intend to comply with the Court's rules in relation to appeals, and indeed disputes the Court's jurisdiction.

It is plainly appropriate to dismiss the appeal for want of prosecution - see Van Reesema v Giameos (1979) 27 A.L.R. 525; there is no sensible alternative. No other order is necessary in the circumstances. The costs of the applicant before us, the Deputy Commissioner of Taxation, on whose petition the sequestration order was made, should be taxed and paid out of the estate of the appellant.