Maytom v Prentice (No 2) - [2013] FCA 502

FEDERAL COURT OF AUSTRALIA
Maytom v Prentice (No 2) [2013] FCA 502

Citation: Maytom v Prentice (No 2) [2013] FCA 502

Parties: GARY ALLAN MAYTOM v MAXWELL WILLIAM PRENTICE OF BPS RECOVERY, CRAIG PRYOR OF WARREN MCKEON DICKESON SOLICITORS PTY LTD and JACKSON LALIC SOLICITORS

File number: NSD 547 of 2013

Judge: JACOBSON J

Date of judgment: 21 May 2013

Catchwords: PRACTICE AND PROCEDURE – application for extension of time to appeal from the Federal Magistrates Court

Legislation: Federal Court Rules 2011 r 1.39

Date of hearing: 21 May 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 10

Solicitor for the Applicant: The applicant appeared in person

Counsel for the Respondents: Mr A Combe

Solicitor for the Respondents: Sally Nash & Co Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 547 of 2013

BETWEEN:
GARY ALLAN MAYTOM
Applicant

AND:
MAXWELL WILLIAM PRENTICE OF BPS RECOVERY
First Respondent

CRAIG PRYOR OF WARREN MCKEON DICKESON SOLICITORS PTY LTD
Second Respondent

JACKSON LALIC SOLICITORS
Third Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

21 MAY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The Applicant’s application for an extension of time in which to file and serve a Notice of Appeal 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 547 of 2013

BETWEEN:
GARY ALLAN MAYTOM
Applicant

AND:
MAXWELL WILLIAM PRENTICE OF BPS RECOVERY
First Respondent

CRAIG PRYOR OF WARREN MCKEON DICKESON SOLICITORS PTY LTD
Second Respondent

JACKSON LALIC SOLICITORS
Third Respondent

JUDGE:

JACOBSON J

DATE:

21 MAY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 17 April 2013 I made orders extending the time for filing and serving a notice of appeal by the applicant, Mr Maytom, until 7 May 2013. Order 3 provided in express terms that the grounds of the appeal were to be limited to the question of denial of procedural fairness in accordance with the ex tempore reasons for judgment I handed down on that day.
I imposed, as a condition of the extension, a requirement that the matter be referred to mediation before a Registrar of the Court no later than 1 May 2013. The mediation took place but was unsuccessful. Mr Maytom appears today. He has a legal guardian, namely his daughter, Ms Taylor, who unfortunately could not be present this morning. Nevertheless, I have considered Mr Maytom’s affidavit very carefully and have taken into account everything that he put to me from the bar table insofar as I was able to accept what was said.
Mr Maytom explains in his affidavit that on 5 May 2013 he was travelling on a train from Museum rail station to Central and that he fell asleep and had with him many bags containing a lot of court documentation surrounding his matter, including a draft notice of appeal with a supporting affidavit. He says that when he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maytom v Prentice (No 2)

Details

AGLC: Maytom v Prentice (No 2) [2013] FCA 502
Case: [2013] FCA 502
Decision Date

CaseChat Overview and Summary

In Maytom v Prentice (No 2), the applicant, Mr Maytom, sought an extension of time to file and serve a notice of appeal from a decision of the Federal Magistrates Court. The respondents, Mr Prentice, Mr Pryor, and Mr Lalic, opposed the application. The application was heard by Jacobson J in the Federal Court of Australia. The court had to determine whether to grant the applicant an extension of time to file and serve a notice of appeal from the Federal Magistrates Court. The court had to consider the circumstances of the case, including the applicant's explanation for the delay in filing the notice of appeal, and the respondents' arguments against granting an extension.

The court considered the applicant's affidavit and the evidence presented. The applicant claimed that he lost his court documentation, including a draft notice of appeal, while travelling on a train. The court accepted the applicant's explanation but noted that the order granting an extension of time was limited to the question of denial of procedural fairness. The court also noted that the applicant had received a replacement of court documents by 9 May 2013 but had not attached a draft notice of appeal to the application. The respondents argued that the applicant had had more than sufficient time to prepare a draft notice of appeal and that he was not seeking a just, cheap and quick resolution of the appeal. The court agreed with the respondents and dismissed the application for an extension of time.

The court dismissed the applicant's application for an extension of time to file and serve a notice of appeal from the Federal Magistrates Court. The court noted that the order granting an extension of time was limited to the question of denial of procedural fairness and that the applicant had had more than sufficient time to prepare a draft notice of appeal. The court accepted the applicant's explanation for the delay in filing the notice of appeal but held that it could not further extend the time for filing a notice of appeal. The court's decision was based on the circumstances of the case and the arguments presented by both parties.

Orders