Smits v Loel (No 3)

Case [2015] FCA 77

FEDERAL COURT OF AUSTRALIA

Smits v Loel (No 3) [2015] FCA 77

Citation: Smits v Loel (No 3) [2015] FCA 77
Parties: LEONARDUS GERARDUS SMITS v JAMES BERESORD [SIC] LOEL, PIONEER INVESTMENTS (AUST) PTY. LTD. and LILLAS AND LOEL LAWYERS
File number: QUD 3 of 2015
Judge: REEVES J
Date of judgment: 13 February 2015
Catchwords:

PRACTICE AND PROCEDURE – application for extension of time to seek leave to appeal – where proceedings dismissed under Federal Court Rules 2011 (Cth), r 26.01(1)(d) as an abuse of process – whether order under Federal Court Rules 2011 (Cth), r 26.01 interlocutory in nature – whether to exercise discretion to extend time under Federal Court Rules 2011 (Cth), r 1.39 – whether to exercise discretion to grant leave under Federal Court of Australia Act 1976 (Cth), s 24(1A) – whether sufficient doubt to justify leave to appeal – failure to identify any specific error

 Held:  application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Federal Court Rules 2011 (Cth)
Uniform Civil Procedure Rules 1999 (Qld)
Cases cited:

Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2101) 187 FCR 261; [2010] FCAFC 101
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Rogers v R (1994) 181 CLR 251
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
Shaw v MAB Corporation Pty Ltd [2013] FCA 1231
Shaw v MAB Corporation Pty Ltd (2014) 220 FCR 425; [2014] FCA 62

Smits v Loel [2014] FCA 1341

Date of hearing: 6 February 2015
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 49
Counsel for the Applicant: Mr DR Edwards
Solicitor for the Respondents: Mr MR Byrne of Lillas & Loel Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 3 of 2015
BETWEEN:

LEONARDUS GERARDUS SMITS
Applicant
AND:

JAMES BERESORD [SIC] LOEL
First Respondent

PIONEER INVESTMENTS (AUST) PTY. LTD.
Second Respondent

LILLAS AND LOEL LAWYERS
Third Respondent

JUDGE:

REEVES J

DATE OF ORDER:

13 FEBRUARY 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicant’s  application filed 3 February 2015 is dismissed.

2.The applicant pay the respondents’ costs of that application.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 3 of 2015
BETWEEN:

LEONARDUS GERARDUS SMITS
Applicant
AND:

JAMES BERESORD [SIC] LOEL
First Respondent

PIONEER INVESTMENTS (AUST) PTY. LTD.
Second Respondent

LILLAS AND LOEL LAWYERS
Third Respondent

JUDGE:

REEVES J

DATE:

13 FEBRUARY 2015

PLACE:

BRISBANE

REASONS FOR JUDGMENT

AN APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL

  1. On 10 December 2014, on the application of the respondents, Rangiah J dismissed Mr Smits’ proceeding under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) (the Rules), determining that…

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AGLC
Smits v Loel (No 3) [2015] FCA 77
Case
[2015] FCA 77
Decision Date

CaseChat Overview and Summary

The case of Smits v Loel (No 3) involved an application for an extension of time to seek leave to appeal, following the dismissal of proceedings under Federal Court Rules 2011 (Cth), r 26.01(1)(d) as an abuse of process. The applicant, Mr Smits, sought to challenge the dismissal of his case and the associated decision-making process by his Honour. The court was tasked with determining whether the order dismissing the case was interlocutory in nature, which would allow for the extension of time under Federal Court Rules 2011 (Cth), r 1.39. Furthermore, the court had to consider whether to exercise its discretion to grant leave to appeal under Federal Court of Australia Act 1976 (Cth), s 24(1A) and whether there was a sufficient doubt to justify leave to appeal.

In its reasoning, the court found that Mr Smits' complaints about his Honour's judgment and the proceedings were general in nature and did not identify any specific error in the reasons for judgment. The court noted that the error identified in paragraph (f) and (g) did not establish any specific error in the reasons for judgment, and therefore, the comments made by the court in a previous paragraph also applied to these two paragraphs. As a result, the court concluded that Mr Smits had not established that his Honour's judgment was attended with sufficient doubt to justify reconsideration by an appellate court. Since this conclusion was fatal to the success of Mr Smits' application for leave to appeal, it would be futile to grant him an extension of time to make that application.

Ultimately, the court dismissed Mr Smits' application for an extension of time to seek leave to appeal. The court ordered that the applicant's application filed on 3 February 2015 be dismissed and that the applicant pay the respondents' costs of that application. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant’s application filed 3 February 2015 is dismissed.

2. The applicant pay the respondents’ costs of that application.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Like the error identified in [24(iv)] above, paragraphs (f) and (g) contain general complaints about his Honour’s judgment and other aspects of the proceedings. They do not speak of any specific error in his Honour’s reasons for judgment. The comments I have made in [42] above therefore apply with equal force to these two paragraphs. It is unnecessary to reiterate those comments here.CONCLUSION For these reasons, I do not consider that Mr Smits has established that his Honour’s judgment is attended with sufficient doubt to justify it being reconsidered by an appellate court. Since this conclusion is fatal to the success of Mr Smits’ application for leave to appeal, it would be futile to grant him an extension of time to make that application. His application for an extension of time to seek leave to appeal must therefore be dismissed.

Ratio Decidendi

Legal Principle Established

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