Donnelly v Maxwell-Smith (No 2) [2011] FCAFC 1 (3 February 2011)

Last Updated: 11 February 2011

FEDERAL COURT OF AUSTRALIA

Donnelly v Maxwell-Smith (No 2)
[2011] FCAFC 1

Citation:	Donnelly v Maxwell-Smith (No 2) [2011] FCAFC 1
Related to:	Donnelly v Maxwell-Smith [2010] FCAFC 154
Parties:	MAX CHRISTOPHER DONNELLY v INGE AND EUGENE MAXWELL-SMITH
File number:	NSD 630 of 2010
Judges:	BENNETT, RARES AND MCKERRACHER JJ
Date of judgment:	3 February 2011
Date of hearing:	Heard on the papers
Date of applicant’s/ appellant’s submission:	4 January 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Solicitor for the applicant/ appellant:	Church & Grace
Respondent:	Self represented

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 630 of 2010

BETWEEN:	MAX CHRISTOPHER DONNELLY Appellant
AND:	INGE AND EUGENE MAXWELL-SMITH Respondent

JUDGES:	BENNETT, RARES AND MCKERRACHER JJ
DATE OF ORDER:	3 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Order 3 made on 16 December 2010 be amended to read:

“3. The applicant pay the respondents’ costs of the appeal and application for leave to appeal including, there being no opposition by the applicant, their costs of travelling to and attending at the hearing in Sydney.”

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 630 of 2010

BETWEEN:	MAX CHRISTOPHER DONNELLY Appellant
AND:	INGE AND EUGENE MAXWELL-SMITH Respondent
JUDGES:	BENNETT, RARES AND MCKERRACHER JJ
DATE:	3 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The Court made orders and delivered its reasons on 16 December 2010: Donnelly v Maxwell-Smith [2010] FCAFC 154. Order 3 was in the following terms:

“3. The applicant pay the respondents’ costs of the appeal and application for leave to appeal including, by consent, their costs of travelling to and attending at the hearing in Sydney.”

2. On 4 January 2011 the solicitors for Mr Donnelly wrote to the Registrar drawing attention to an error in that order attributing his consent to the payment of Mr and Mrs Maxwell-Smith’s costs of travelling to and attending the hearing in Sydney. They pointed out that during the hearing senior counsel had said, as recorded in [38] of our reasons, that Mr Donnelly did not oppose the making of such an order.
3. The orders have not yet been entered. It is appropriate to order that Order 3 be amended to reflect the intention of the Court pursuant to O 35 r 7(2)(e) and (3) of the Federal Court Rules so that it reads:

“The applicant pay the respondents’ costs of the appeal and application for leave to appeal including, there being no opposition by the applicant, their costs of travelling to and attending at the hearing in Sydney.”

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett, Rares and McKerracher.

Associate:

Dated: 3 February 2011