Bauer, E.M. v Stapleton Partners

JUDGMENT No. %.l ... 'I.-%ZZ

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY i NO. NG 3096 of 1991
NG 3097 of 1991

GENERAL DIVISION )

BETWEEN: ERNA MARIA BAUER
Applicant

AND :
Respondent

19 December 1991

REASONS FOR JUDGMENT

LOCKHART J .

On 17 December 1991 the Court heard two motions taken out by the respondent, Stapleton Partners, in these matters. They were heard in the absence of the applicant, Dr Bauer. The course that the proceedings took and the findings which I made in her absence are embodied in the reasons for judgment which have now been issued and I need not repeat what I said there.

i

On the following day, 18 December, when I was in the course of hearing matters in that day's directions list, Dr Bauer appeared in court and informed me that there had been a misunderstanding on her part as to the date fixed for the hearing of the motion. She said that the date as she understood it was the 18th, that is 18 December, that is the day in which she in fact appeared, not the 17th. I then took the course of saying that I would hear any application she wished to make relevant to the matter on 19 December at 10.15 a.m. In the meantime notice was given to the solicitors and counsel for the respondent of

that course of action.

This morning Dr Bauer has appeared for herself and Mr Bavin appears for the respondent. Dr Bauer has made a number of submissions as to why the judgment given on 17 December should be set aside. I have taken the course of allowing Dr Bauer to informally move the court today without the necessity for filing

a notlce of motion and supporting affidavits. I have treated

what she has said as in substance a motion to set aside the
judgment signed in her absence on 17 December.

Dr Bauer advances a number of reasons as to why the judgment should be set aside.

One of the reasons she advances is that it was a judgment entered in her absence when the matter, as she understood it, was fixed for the 18th not the 17 December. I have studied the transcript of the proceedings last before me on 22 November 1991 when the date flxed was 17 December. I have further studied the record of proceedings sheet customarily retained in this Court

which are prepared by the Judge's Associate, and I note that Stapleton Partners appeared with senior counsel on 17 December,
in accordance with the directions given that day.

There can be no doubt that the motions were fixed for hearing for 17 December. Dr Bauer has given evidence that she was under a misapprehension as to the date and that she thought it was 18 December. I do not accept that evidence as being

truthful. The transcript clearly shows that she understood fully that the matter was to proceed on 17 December. Notwithstanding,

I was prepared to entertain the application to set aside the judgment ~f I thought that there had been any injustice caused

in the matter or that a serious question of law arose in the
matter which I was not informed of on 17 December.

Notwithstanding everything that has been said by Dr Bauer, I am not persuaded that there is any point of substance which would lead the Court to set aside the judgment. If there are any problems with the valid~ty of the winding of the company Baufam, then it seems to me Dr Bauer must take those complaints back to the court which made the relevant orders leading to its winding up, that is, the Family Court of Australia.

If Dr Bauer does have any legitimate grievances against the liquidator, then she should take them back to the Family Court and there let it be reviewed, as that is the court which made the relevant orders that led to the winding up of Baufam. I see no reason to set aside the judgment that I delivered and for which

permission to enter was given on 17 December, so I refuse the application to set aside the judgment.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.
Associate

Applicant appeared for herself.

Solicitors for the Respondent : Walsh James
Date of Hearing 19 December 1991
Date of Judgment 19 December 1991

The Federal Court of Australia, in the New South Wales District Registry, was presented with two motions in the case of Bauer, E.M. v Stapleton Partners, with the applicant being Dr. Erna Maria Bauer and the respondent being Stapleton Partners. Dr. Bauer sought to set aside a judgment that had been delivered in her absence, on December 17, 1991, concerning the winding up of the company Baufam. The respondent, Stapleton Partners, had filed the motions, which were heard without the presence of Dr. Bauer. The court was required to determine whether the judgment should be set aside due to Dr. Bauer's absence and misunderstanding of the hearing date, and if there were any substantive grounds for overturning the judgment.

In addressing the legal issues, the court examined Dr. Bauer's reasons for setting aside the judgment, including her claim of a misunderstanding regarding the hearing date. The judge reviewed the transcript of the previous proceedings and the record of proceedings sheet, which indicated that the hearing date was indeed set for December 17, 1991, and that Dr. Bauer had full awareness of this date. Despite Dr. Bauer's assertion that she believed the hearing was on December 18, the evidence suggested otherwise. The judge considered whether any injustice had occurred or if a significant legal question had been overlooked during the hearing in Dr. Bauer's absence, but found no such issues that warranted setting aside the judgment. The judge concluded that any disputes concerning the validity of the company's winding up should be addressed in the Family Court of Australia, which had initially ordered the winding up of Baufam.

The Federal Court of Australia, under Justice Lockhart, decided to refuse Dr. Bauer's application to set aside the judgment. The court found no substantive reasons to overturn the judgment delivered on December 17, 1991. The judge noted that any grievances Dr. Bauer had against the liquidator should be pursued in the Family Court, as it was the appropriate forum for reviewing the orders that led to the winding up of Baufam. The court certified that the reasons for judgment were accurately transcribed and reflected the judge's findings and rationale. The final orders were made on December 19, 1991, with the application to set aside the judgment being dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY i	NO. NG 3096 of 1991 NG 3097 of 1991
GENERAL DIVISION	)

LOCKHART	J .
On 17 December 1991 the Court heard two motions taken out by the respondent, Stapleton Partners, in these matters. They were heard in the absence of the applicant, Dr Bauer. The course that the proceedings took and the findings which I made in her absence are embodied in the reasons for judgment which have now been issued and I need not repeat what I said there.	i
On the following day, 18 December, when I was in the course of hearing matters in that day's directions list, Dr Bauer appeared in court and informed me that there had been a misunderstanding on her part as to the date fixed for the hearing of the motion. She said that the date as she understood it was the 18th, that is 18 December, that is the day in which she in fact appeared, not the 17th. I then took the course of saying that I would hear any application she wished to make relevant to the matter on 19 December at 10.15 a.m. In the meantime notice was given to the solicitors and counsel for the respondent of
that course of action.

which are prepared by the Judge's Associate, and I note that	Stapleton Partners appeared with senior counsel on 17 December,
in accordance with the directions given that day.
There can be no doubt that the motions were fixed for hearing for 17 December. Dr Bauer has given evidence that she was under a misapprehension as to the date and that she thought it was 18 December. I do not accept that evidence as being
truthful. The transcript clearly shows that she understood fully that the matter was to proceed on 17 December. Notwithstanding,

Solicitors for the Respondent :	Walsh James
Date of Hearing	19 December 1991
Date of Judgment	19 December 1991