Collier, M.L. v Australia and New Zealand Banking Group Ltd

[1990] FCA 299

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JUDGMENT No.	.A?? .... .'I...?&	i ;
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NOT FOR DISTRIBUTION	,
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IN THE FEDERAL COURT OF AUSTRALIA	)	I	I
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NEW SOUTH WALES DISTRICT REGISTRY	)	No. NG 6 of 1989	F,
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GENERAL DIVISION	!

BETWEEN: MARION LOUISE COLLIER

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Applicant

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AND :  AUSTRALIA AND NEW ZEALAND
BANKING GROUP LTD

Respondent

26 JUNE, 1990

REASONS FOR JUDGMENT

LOCKHART J.:

On 4 June this year, there was listed for hearing before a Full Court of this Court, consisting of myself, Wilcox J and Hill	.. !
J, the appeal of Collier against the Australian and New Zealand	; 1 .
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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

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for the bank and the solicitor for the Official Trustee in

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bankruptcy, the matter was stood down in the list because

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discussions were said to be pending between the parties with a

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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

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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