On 4 June this year, there was listed for hearing before a Full Court of this Court, consisting of myself, Wilcox J and Hill

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J, the appeal of Collier against the Australian and New Zealand

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Banking Group Limited. The appeal was called on for hearing but I.
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at the request of counsel who appeared for the appellant, counsel I':
for the bank and the solicitor for the Official Trustee in l
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bankruptcy, the matter was stood down in the list because I
discussions were said to be pending between the parties with a l -.
view to resolving the appeal.
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When the Court reconvened later in the morning of 4 June, the Court was informed by counsel for the appellant and the first

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respondent and the solicitor for the Official Trustee that the I
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matter had been settled. Accordingly on the application of the

respondent bank, the Court granted leave to it to withdraw the appearance entered by it on the appeal and on the application of counsel for the appellant, the appeal was dismissed with no order as to costs.

Subsequently, Mrs Collier filed a notice of motion on 18 June 1990 which has seven numbered paragraphs. I need not refer

to them all. I shall summarise them by simply saying that in essence the motion seeks to obtain the leave of the Court to appeal against Einfeld J's orders of 10 November 1988 and 22 December 1988 and the order of the Full Court dismissing the appeal by consent of 4 June 1990.

Evidence has been filed in the form of an affidavit sworn on 6 June 1990 by Mrs Collier in support of her motion, and this morning I gave leave to her to file in Court a further affidavit of herself of 26 June, 1990. Counsel for the respondent bank has sought leave this morning to file a notice of motion returnable forthwith which seeks a number of orders, and in support of that and in opposition to Mrs Collier's motion I gave leave for two

other of 25 June, 1990. Those affidavits were made available to affidavits of Myles Alan Leon Grant to be filed, one of 22, the

Mrs Collier before the commencement of proceedings today as was the foreshadowed notice of motion of the bank.

I have read all the evidence and I have heard what has been said by Mrs Collier and by counsel for the Bank and the solicitor for the Trustee. In my opinion as the appeal was dismissed on 4 June on the application of the appellant by her counsel there is no competent motion before the Court this morning so that on that ground alone the notice of motion of Mrs Collier should be dismissed. I have nevertheless taken into account all the evidence and I see nothing in the evidence which would cause the Court, in the exercise of whatever discretion it may have, to probe further into the circumstances surrounding the making of the order by consent dismissing the appeal on 4 June or any questions that may underlie the settlement which it appears preceded the dismissal of the appeal.

Accordingly the notice of motion filed on 18 June 1990 is dismissed. I do not grant leave at this stage to the Bank to file in Court its notice of motion.

I order Mrs Collier to pay the costs of the Bank and of the Official Trustee of the motion.

preceding two (2) pages are a I certify that this and the

true copy of the reasons for judgment herem of the Honourable
Mr Justice Lockhart

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Associate L. .{.L C -Cc,.--( 2
Dated: 26 June 1990

Applicant appeared in person.

Counsel for Respondent: M r Garth Blake
Solicitors for Respondent: Norton Smith & Co.
Counsel and solicitor for the
Official Trustee in Bankruptcy: R. Wikramanayake
Date of Hearing: 26 June 1990
Date of Judgment: 26 June 1990

Details

AGLC: Collier, M.L. v Australia and New Zealand Banking Group Ltd [1990] FCA 299
Case: [1990] FCA 299
Decision Date: 26 Jun 1990

CaseChat Overview and Summary

The Federal Court of Australia, in the New South Wales District Registry, heard a case involving Marion Louise Collier, the applicant, and Australia and New Zealand Banking Group Ltd, the respondent. The case, initially listed for appeal, was later dismissed by consent on 4 June 1990. Following this, Mrs Collier filed a notice of motion seeking leave to appeal against previous orders made by Einfeld J and the dismissal of the appeal by the Full Court. The respondent bank filed a notice of motion seeking various orders, supported by affidavits.

The legal issue before the court was whether Mrs Collier's notice of motion was competent given the dismissal of the appeal by consent. The court had to determine if there was any basis to further investigate the circumstances of the consent dismissal or the settlement that preceded it. Lockhart J examined the evidence and submissions from both parties but concluded that the appeal had been dismissed by consent, rendering the motion incompetent on that basis alone. The judge also found no grounds in the evidence to probe further into the settlement or the circumstances surrounding the consent dismissal.

Lockhart J dismissed Mrs Collier's notice of motion, finding it incompetent due to the prior dismissal of the appeal by consent. The court also declined to grant the respondent leave to file its notice of motion at that stage. In conclusion, the court ordered Mrs Collier to pay the costs of the respondent bank and the Official Trustee in Bankruptcy.

The final order of the court was that Mrs Collier's notice of motion was dismissed, and no leave was granted to the respondent bank to file its notice of motion. Costs were ordered to be paid by Mrs Collier to the respondent and the Official Trustee in Bankruptcy.

Orders