Maxwell-Smith v Donnelly

[2012] FCA 154

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith v Donnelly [2012] FCA 154

Citation:

Maxwell-Smith v Donnelly [2012] FCA 154

Parties:

INGE MAXWELL-SMITH and EUGENE MAXWELL-SMITH v MAX CHRISTOPHER DONNELLY and S & E HALL PTY LTD

File number(s):

NSD 1904 of 2011

Judge:

YATES J

Date of judgment:

28 February 2012

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – application incompetent

PRACTICE AND PROCEDURE – application to review decision under r 39.05(a) of the Federal Court Rules 2011 – application refused

Legislation:

Federal Court Rules 2011 r 39.05(a)

Cases cited:

Hu v Giles [2010] FCA 592

Date of hearing:

28 February 2012

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Appellants:

The first appellant appeared in person on behalf of the appellants

Counsel for the Respondents:

Mr BJ Skinner

Solicitor for the Respondents:

Church & Grace

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1904 of 2011

BETWEEN:

INGE MAXWELL-SMITH
First Appellant

EUGENE MAXWELL-SMITH
Second Appellant

AND:

MAX CHRISTOPHER DONNELLY
First Respondent

S & E HALL PTY LTD
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	28 FEBRUARY 2012
WHERE MADE:	SYDNEY

THE COURT:

1.Grants leave to the appellants to file in the Registry the following documents (the documents):

1.1the document entitled “Leave of appeal for interlocutory orders from Rares J entered on 22 November 2011” (the application);

1.2affidavit of Inge Maxwell-Smith sworn 27 February 2012;

1.3affidavit of Inge Maxwell-Smith sworn 13 February 2012; and

1.4the document entitled “Oral argument on leave of appeal from Rares J orders” dated 26 February 2012.

2.Notes the undertaking of the first appellant to file the originals of the documents in the Registry.

3.Orders that the application be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1904 of 2011

BETWEEN:

INGE MAXWELL-SMITH
First Appellant

EUGENE MAXWELL-SMITH
Second Appellant

AND:

MAX CHRISTOPHER DONNELLY
First Respondent

S & E HALL PTY LTD
Second Respondent

JUDGE:	YATES J
DATE:	28 FEBRUARY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. On 7 November 2011, the appellants filed a notice of motion seeking, amongst other things, a stay of an order for the issue of a writ of possession of a property at Tura Beach, New South Wales. 

2. The motion was heard on 21 November 2011 by Rares J in exercise of the Court’s appellate jurisdiction.  His Honour ordered that the notice of motion be dismissed with costs:  Maxwell-Smith v Donnelly [2011] FCA 1412.

3. The appellants did not appear at the hearing of the motion in circumstances referred to by his Honour at [2] of the reasons for judgment given on that day.  His Honour nevertheless considered the merits of the matters brought forward on the motion by dealing with the affidavit of Mrs Maxwell‑Smith sworn in support of the notice of motion, which had been filed on 18 November 2011, and…