Maxwell-Smith v Donnelly

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 by considering the written submissions prepared by Mrs Maxwell-Smith, which had also been filed on the same day. 4 His Honour found that the affidavit gave no basis at all for any of the orders sought in the notice of motion, but simply repeated assertions or allegations that previous decisions of single judges and Full Courts in her matters had done her husband and herself some injustice and that her former trustee in bankruptcy had behaved so as to justify an inquiry into his conduct under s 179 of the Bankruptcy Act 1966 (Cth). His Honour noted that those allegations against the trustee had either been rejected or had not been made the subject of an inquiry under s 179 despite Mrs Maxwell-Smith's several requests for such a course to be followed. 5 With respect to the written submissions that had been filed, his Honour noted that it had been asserted that Mrs Maxwell-Smith was being treated in Canberra Hospital by a neurologist for urgent surgery on 30 November 2011 and that due to the need for tests of various kinds, she would not be able to attend the hearing before his Honour. His Honour noted that no medical evidence had been provided in support of those assertions. 6 His Honour concluded at [4] of the reasons that there was no evidentiary basis upon which to defer the coming into operation of the order for a writ of possession (that was to issue later in November 2011) or to ground the making of the other orders sought in the notice of motion which related to a stay of an order for taxation of costs, the waiver of court fees and a request for assistance including pro bono legal assistance. 7 In the reasons, his Honour had noted (at [2]) that on 17 November 2011 Mrs Maxwell-Smith, having just received the notice of listing of her notice of motion, had faxed a letter from Bega stating that due to her commitments for urgent surgery she would not be able to attend the hearing on 21 November 2011. 8 His Honour concluded (at [6]), as follows: There being no evidence before me of Ms Maxwell-Smith's medical condition, it only being the subject of an assertion in her submissions but not in an affidavit prepared on the same day, I am not prepared to defer the issue of the writ of possession. It will be a matter for the trustee as to whether he asks the sheriff in the circumstances to proceed. In my opinion, the motion filed on 7 November 2011 should be dismissed with costs. 9 The appellants seek to move the Court on the basis of a document entitled "Leave of appeal for interlocutory orders from Rares J entered on 22 November 2011". I have given leave to the appellants to file the original of that document in the Registry, together with the originals of the affidavits of Mrs Maxwell-Smith sworn 13 February 2012 and 27 February 2012. I have also given leave to the appellants to file in the Registry a document entitled "Oral argument on leave of appeal from Rares J orders". Mrs Maxwell-Smith has given an undertaking to the Court to file the originals of those documents, and on that basis, I proceeded to deal with her application for leave to appeal in reliance on both the affidavits and the note of oral submissions that were proposed to be made. I have also invited Mrs Maxwell-Smith to address me on behalf of the appellants, which she has done. 10 I return to the document entitled "Leave of appeal for interlocutory orders from Rares J entered on 22 November 2011". If the heading of that document reflects the substance of the application that is now being made, then that application is incompetent. As I have noted, the order made on 21 November 2011 was made in the exercise of the appellate jurisdiction of the Court. It follows that it is not competent for the appellants to seek leave to appeal from the order to a Full Court. The only avenue of further appeal or challenge by the appellants is by way of special leave to the High Court of Australia: Hu v Giles [2010] FCA 592. 11 The document, however, refers to r 39.05(a) of the Federal Court Rules 2011. That rule provides as follows: The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party … 12 I have noted that the present application is supported by affidavits made by Mrs Maxwell-Smith sworn on 13 February 2012 and 27 February 2012. 13 In her affidavit of 27 February 2012 Mrs Maxwell-Smith deposes that she was not able to attend the hearing before Rares J on 21 November 2011 "due to medical commitments". 14 In her affidavit of 13 February 2012 Mrs Maxwell-Smith says that she attended the Neurosurgery Outpatient Service at Canberra Hospital on 15 November 2011 and was told that a pre-admission clinic appointment was scheduled on 22 November 2011. She says that on 18 November 2011 she received a telephone call to the effect that this appointment could be rescheduled for 29 November 2011, but that she would be contacted further in that regard by the Hospital on 21 November 2011 (the date of the hearing of the motion before Rares J) in relation to pre-admission on 22 November 2011. The anticipated receipt of this telephone call on 21 November 2011 is the reason put forward by the appellants for their non-attendance at the hearing of the motion on that day. 15 However, copies of documents from Canberra Hospital addressed to Mrs Maxwell-Smith, which she has annexed to her affidavit of 13 February 2012, do not support that version of events. A letter from Canberra Hospital dated 16 November 2011, which I have no reason to assume was not received by Mrs Maxwell-Smith well before the hearing on 21 November 2011, and which was apparently written the day after Mrs Maxwell-Smith says she attended the Neurosurgery Outpatient Service at the hospital, clearly states that the provisional date for her surgery had been arranged for 30 November 2011, with admission at 6.00 am on that day. 16 Following the dismissal of the appellants' motion on 21 November 2011 a writ of possession in respect of the Tura Beach property issued on 8 December 2011. The evidence before me shows that notice to vacate was given by the Sheriff of New South Wales on 20 December 2011. The evidence before me also shows that the appellants were aware by no later than 29 December 2011 that a writ of possession had issued. There is no dispute that possession of the property was given on 23 February 2012 to the first respondent, who is Mrs Maxwell-Smith's trustee in bankruptcy. 17 I can see no basis on which I should revisit the order made on 21 November 2011, acting under r 39.05(a). 18 Plainly, that order was made in the absence of the appellants. However, I do not think that the absence of the appellants on that day has been adequately explained or justified on the evidence which is currently before me. In any event, Rares J had the benefit of and considered the affidavit in support of the notice of motion and the appellants' written submissions. 19 Mrs Maxwell-Smith has addressed me today on a variety of matters dealing with her dispute with the first respondent and other matters touching upon her bankruptcy. On a number of occasions I directed her attention to the need to address me on the judgment to which the present application relates. I have had regard to the matters that Mrs Maxwell-Smith has put to me orally as well as to the matters stated in her written note of the oral argument she wished to put. Having considered those matters, there is, in reality, no additional matter that has been put forward which would support the relief sought in the notice of motion that had been filed on 7 November 2011. Moreover, insofar as the notice of motion sought a stay of the order to issue a writ of possession, the writ of possession has already issued and has been executed. 20 In the circumstances, the application before me today must be dismissed, and I will so order. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.