Bauer, E.M. v Stapleton Partners

[1991] FCA 921

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