Irving v Smith [2009] FCA 711

FEDERAL COURT OF AUSTRALIA

Irving v Smith [2009] FCA 711

PRACTICE AND PROCEDURE – whether appeal should be dismissed for want of prosecution – whether service on appellant of respondent's motion properly effected

Federal Court Rules O 7 r 4, O 52 r 2, O 52 r 38 MARY GAYWIN IRVING v MURRAY SMITH

VID 832 of 2008

NORTH J

29 JUNE 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 832 of 2008

BETWEEN: MARY GAYWIN IRVING

Appellant

AND: MURRAY SMITH

Respondent

JUDGE: NORTH J

DATE OF ORDER: 29 JUNE 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed for want of prosecution pursuant to O 52 r 38(1)(a) of the Federal Court Rules. 2. The appellant pay the respondent's costs of the appeal.

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 eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 832 of 2008

BETWEEN: MARY GAYWIN IRVING

Appellant

AND: MURRAY SMITH

Respondent

JUDGE: NORTH J

DATE: 30 JUNE 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is a motion, notice of which was filed by the respondent on 18 March 2009. It seeks an order that pursuant to O 52 r 38(1)(a) of the Federal Court Rules that the appeal be dismissed for want of prosecution.

Service of the motion 2 The notice of appeal was filed on 3 October 2008. On 27 November 2008 Mr Mapleston, who previously acted as solicitor for the appellant, ceased to act. In the notice of withdrawal filed in the Court on 4 December 2008 Mr Mapleston indicated that the appellant's last known address for service was care of Longreach Australia Pty Ltd, Level 6, 409 St Kilda Road, Melbourne. 3 The motion currently before the Court was served on the appellant at that address on 15 June 2009. An application of this type is required to be served in the manner prescribed in O 7 r 4 (see O 52 r 2(b)(ii)). Order 7 rule 4(1)(a) provides that: (1) Where personal service of a document is not required, the document may be served– (a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day in which the Registry in that State or Territory is open; Order 7 rule 4(2) provides that: … the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left… the person has no address for service in the proceeding, the person's usual or last known place of business or of abode shall be the person's proper address. 4 In this case the appellant has, since the withdrawal of Mr Mapleston, no address for service and hence the proper address for her under O 7 r 4(2) includes her last known place of business, namely Level 6, 409 St Kilda Road, Melbourne. As service was effected at 2.20 pm on a Monday, the requirements of O 7 r 4 have been met. Alternatively, that address might be viewed as the appellant's last known address for service, in which case the terms of O 7 r 4(2) would similarly apply. I am therefore satisfied that service of the motion has been properly effected. The evidence for that conclusion is the affidavit of service of Martin Telley sworn 19 June 2009.