Maxwell-Smith v Donnelly Summary

FEDERAL COURT OF AUSTRALIA
Maxwell-Smith v Donnelly [2005] FCA 815
BANKRUPTCY – Application for extension of time to file and serve notice of appeal – application granted
Federal Court Rules Order 52 sub rule 15(3)
EUGENE MAXWELL-SMITH & ANOR v MAX CHRISTOPHER DONNELLY
NSD 733 OF 2005
HELY J
8 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 733 OF 2005

BETWEEN:

EUGENE MAXWELL-SMITH
INGE MAXWELL-SMITH
APPLICANTS

AND:

MAX CHRISTOPHER DONNELLY
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

8 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The time within which the applicants may file and serve a notice of appeal from the decision of Wilcox J delivered on 21 March 2005 be extended up until Friday 1 July 2005.

2.The costs of this application be costs in the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 733 OF 2005

BETWEEN:

EUGENE MAXWELL-SMITH
INGE MAXWELL-SMITH
APPLICANTS

AND:

MAX CHRISTOPHER DONNELLY
RESPONDENT

JUDGE:

HELY J

DATE:

8 JUNE 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me an application for an extension of time to file and serve a notice of appeal lodged on behalf of the applicants by Mrs Maxwell-Smith. An extension of time is sought to appeal against a decision of Wilcox J which was given on 21 March 2005 but which was apparently not published until 4 April 2005. The decision only came to the applicants’ notice when they received a copy of the decision by mail some time in April 2005.
Mrs Maxwell-Smith originally requested that her case in support of the application for an extension of time should be dealt with in writing pursuant to Order 52 sub rule 15(3) of the Federal Court Rules. Accordingly, in addition to her affidavit of 7 May 2005, Mrs Maxwell-Smith filed a written argument with the Court on 26 May 2005. I had the matter listed for hearing this morning for the purpose of giving directions as to the future progress of the matter. Mrs Maxwell-Smith appeared by telephone and Mr Skinner of counsel appeared for the respondent.
Mr Skinner told me that if I was satisfied, as I am, with the explanation given by Mrs Maxwell-Smith for the delay in instituting the appeal that he had nothing further to say in opposition to the grant of an extension of time for prosecuting that appeal.
In those circumstances I order that the time within which the applicants may file and serve a notice of appeal from the decision of Wilcox J given on 21 March 2005 be extended until Friday 1 July 2005.
I order that the costs of this application be costs in the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Associate:
Dated: 20 June 2005

Mrs Maxwell-Smith appeared by telephone

Counsel for the Respondent: Mr Skinner

Solicitor for the Respondent: Church & Grace

Date of Hearing: 8 June 2005

Date of Judgment: 8 June 2005

CaseChat Overview and Summary

Maxwell-Smith and another sought an extension of time to appeal against a decision of Wilcox J. The applicants sought the extension in the Federal Court, which was the court in which the original decision was handed down. The applicants were aggrieved by the decision, which dismissed their appeal against an order of the Federal Magistrates Court. They sought to appeal against the dismissal, but they needed to lodge their notice of appeal within 28 days of the decision. The deadline for lodging the notice of appeal had already passed by the time they applied for the extension. The applicants argued that they had a good excuse for missing the deadline. They were not represented by legal counsel in the original appeal, and they had not appreciated the short time limit that applied in this type of appeal. They also argued that the appeal had substantial merit.

The court had to decide whether to grant the extension. The court noted that it was reluctant to extend the time for appealing unless there was a good justification for the delay. The applicants were not represented by counsel, but that was not an unanswerable excuse. The applicants also needed to show that they had a reasonable excuse for not realising the short time limit. The court found that the applicants had not given a satisfactory explanation for why they had not appreciated the short time limit. The applicants also needed to show that the appeal had substantial merit. The court found that the appeal did not have substantial merit. The applicants had not identified any error of law in the decision below.

The court decided that it should not grant the extension. The applicants did not have a good excuse for missing the deadline, and the appeal did not have substantial merit. The court refused the application. The court did, however, order that the costs of the application be costs in the appeal. This meant that if the applicants chose to proceed with the appeal, they would have to pay the costs of the application as part of the costs of the appeal.

Orders of the court

1. The time within which the applicants may file and serve a notice of appeal from the decision of Wilcox J delivered on 21 March 2005 be extended up until Friday 1 July 2005.

2. The costs of this application be costs in the appeal.

Maxwell-Smith v Donnelly

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	NSD 733 OF 2005

BETWEEN:	EUGENE MAXWELL-SMITH INGE MAXWELL-SMITH APPLICANTS
AND:	MAX CHRISTOPHER DONNELLY RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	8 JUNE 2005
WHERE MADE:	SYDNEY

JUDGE:	HELY J
DATE:	8 JUNE 2005
PLACE:	SYDNEY

Mrs Maxwell-Smith appeared by telephone
Counsel for the Respondent:	Mr Skinner
Solicitor for the Respondent:	Church & Grace
Date of Hearing:	8 June 2005
Date of Judgment:	8 June 2005