Maxwell-Smith v Donnelly [2012] FCA 154

Maxwell-Smith v Donnelly [2012] FCA 154

The application was dismissed because, insofar as it sought leave to appeal from Rares J's order, it was incompetent as that order was made in the exercise of the Court's appellate jurisdiction. Insofar as it invoked r 39.05(a), although the order had been made in the appellants' absence, that absence was not adequately explained or justified on the evidence; Rares J had considered the appellants' affidavit and written submissions; no additional matter supported the earlier relief; and the writ of possession had already issued and been executed.

Jurisdiction
Australia
Judgment Date
28 February 2012
Procedural Posture
Application for Leave to Appeal; Application to Review Decision Under R 39.05(a) of the Federal Court Rules 2011 / Application Before Yates J Following Dismissal by Rares J of a Notice of Motion in the Court's Appellate Jurisdiction
Outcome
Application dismissed.
Legal Topics
['leave to Appeal' 'incompetent Application' 'review or Setting Aside of Order Made in Absence of a Party' 'writ of Possession' 'bankruptcy Trustee']
['practice and Procedure'] ['leave to Appeal' 'incompetent Application' 'review or Setting Aside of Order Made in Absence of a Party' 'writ of Possession' 'bankruptcy Trustee']

Case Brief

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Procedural Posture

Application for Leave to Appeal; Application to Review Decision Under R 39.05(a) of the Federal Court Rules 2011 / Application Before Yates J Following Dismissal by Rares J of a Notice of Motion in the Court's Appellate Jurisdiction

Legal Issues

  1. 1 ["Whether the appellants could seek leave to appeal to a Full Court from an order made by Rares J in the exercise of the Federal Court's appellate jurisdiction." 'Whether the order made on 21 November 2011 should be varied or set aside under r 39.05(a) of the Federal Court Rules 2011 because it was made in the absence of the appellants.' "Whether the appellants' absence from the 21 November 2011 hearing was adequately explained or justified." 'Whether any additional matter supported the relief sought in the notice of motion filed on 7 November 2011.']

Ratio Decidendi

The application was dismissed because, insofar as it sought leave to appeal from Rares J's order, it was incompetent as that order was made in the exercise of the Court's appellate jurisdiction. Insofar as it invoked r 39.05(a), although the order had been made in the appellants' absence, that absence was not adequately explained or justified on the evidence; Rares J had considered the appellants' affidavit and written submissions; no additional matter supported the earlier relief; and the writ of possession had already issued and been executed.

Court Disposition

Application dismissed.

Orders

  • ['Grants leave to the appellants to file in the Registry the document entitled "Leave of appeal for interlocutory orders from Rares J entered on 22 November 2011", affidavit of Inge Maxwell-Smith sworn 27 February 2012, affidavit of Inge Maxwell-Smith sworn 13 February 2012, and the document entitled "Oral argument...