FEDERAL COURT OF AUSTRALIA

Winn v Blueprint Instant Printing Pty Ltd (No 3) [2011] FCA 742

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal, including any reserved costs and the costs of the appellant’s application for a stay heard on 23 December 2010, taxed on an indemnity basis and paid in accordance with section 109 of the Bankruptcy Act 1966 (Cth).

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.

REASONS FOR JUDGMENT

INTRODUCTION

1    On 24 June 2011, I published reasons for judgment in this proceeding stating that in my opinion, the appeal was without merit and should be dismissed.

2    The parties were advised on 21 June 2011 that judgment would be delivered at 1.45pm on 24 June 2011. The appellant, who is self represented, was advised of this by voicemail message on her mobile telephone on 21 June 2011 and 22 June 2011, by email on 22 June 2011 and by letter sent via express post on 22 June 2011.

3    At 10.19am on 24 June 2011, the appellant forwarded a facsimile to judge’s chambers which relevantly stated that the appellant would be unable to attend court that day for medical reasons, as she would be attending a hospital.

4    The letter further stated:

3.    As the judgment will be given in my absence, I request that submissions as to costs be heard at a later date convenient to the court and the respondent but when I can attend court any day / time next week.

4.    If the court has made a judgment adverse to me, I seek a stay of the order pending application for special leave to appeal to the High Court on the grounds of the invalid bankruptcy notice VN 358 / 2009 and denial of procedural fairness in being refused permission to speak at the hearing of the creditor's petition.

5.    If the court has included costs orders in the judgment and these are adverse to me, I seek a stay of the orders pending application for special leave to appeal as above.

6    If the Court has upheld the appeal and awarded costs generally in my favour, I seek that the respondent pay my costs and expenses of and incidental to the appeal VID 1039, the creditor's petition MLG 65 of 2010, the application to set aside the bankruptcy notice MLG 920 of 2009, the appeal VID 921 of 2009 against the order in MLG 920 of 2009, the application to set aside the order for substituted service heard by Burchardt FM and the associated appeal (that I had not served on the respondent), and the application for a stay of order heard by Gray J on 23 December 2011, all of which costs would not have been incurred if (a) the respondent had not led ITSA to issue Bankruptcy Notice 358 / 09 by misrepresentation that the notice was within the six year limit, by attaching only the Taxing Master's order of 9 November 2005 or (b) the notice had properly been declared invalid at first instance.

7.    I expect to be at the hospital all day and cannot take calls in the hospital precinct.

8.    I will obtain medical certificates today at completion of attendance and forward these.

I appreciate consideration of these circumstances.

5    In the light of the appellant’s letter, on 24 June 2011, I did not make orders dismissing the appeal or in relation to costs, but I ordered that the parties file and serve any material on which they sought to rely in relation to costs or a stay on or before 29 June 2011 and fixed a hearing for 1.15pm on 30 June 2011.

COSTS

6    The respondents sought their costs of the appeal, including any reserved costs and the costs of the appellant’s application for a stay heard on 23 December 2010, to be taxed on an indemnity basis and paid in accordance with s 109 of the Bankruptcy Act 1966 (Cth).

7    The principles relevant to indemnity costs are well established: see, for example, Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate”) at 230-234; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (“Ugly Tribe”) at [7]-[12]. The circumstances of the case must be such as to warrant a departure from the usual course of ordering costs on a party/party basis. In Colgate, Sheppard J set out a non-exhaustive summary of circumstances that may warrant the exercise of the discretion to award indemnity costs, including:

(a)    making allegations of fraud knowing them to be false or making irrelevant allegations of fraud;

(b)    particular misconduct that causes loss of time to the Court and to other parties;

(c)    the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law;

(d)    the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;

(e)    an imprudent refusal of an offer of compromise; or

(f)    an award of indemnity costs against a contemnor.

8    As the respondents submitted, I have found that the appeal was without merit and largely constituted reiteration and reventilation in various guises of the appellant’s previously litigated but unfounded complaints.

9    The present appeal was, in my opinion, commenced and continued in circumstances where the appellant should have known that it had minimal prospects of success, particularly following Ryan J’s dismissal of her appeal against the refusal to set aside the bankruptcy notice on 31 March 2011. The appellant relied on numerous groundless allegations and contentions which should not have been made.

10    Further, as the respondents submitted:

(b)    The appellant misconducted herself in respect to the appeal and hence needlessly and unnecessarily added to the respondents costs:

(i)    producing three notices of appeal, each of which were prolix, ill considered, vague and repetitive;

(ii)    the appellant's submissions were likewise prolix, repetitive, ill considered and vague and exceeded the length allowed for by order of the court;

(iii)    filing submissions late;

(iv)    the Appeal Books were inadequately constructed and incomplete, the transcript was omitted despite the first respondent's written request for the same;

(v)    the appellant's reliance on disputed facts and the appellant's voluminous repetitive submissions that insinuated rather than articulated arguments;

(vi)    communicating with the Court after the hearing and without leave, requiring responses from the respondents; and

(vii)    causing extra costs by requiring extra hearings including:

a.    this hearing for costs and the appellant's second application for a stay;

b.    three different hearings for the settlement of the Index to the Appeal Book; and

c.    the application for the stay before Gray J.

…

4.    In [Winn v Blueprint Instant Printing (No 2), 26 March 2010, unreported] at [12], the Court of Appeal awarded costs against the appellant on an indemnity basis for the following factors which are relevant to this case:

(a)    constant breaches of the court's timetabling orders;

(b)    “filing two proposed notices of appeal that were prolix, repetitive and in large sections unintelligible and attempting to appeal other interlocutory orders made both by the Trial Division and by Lansdowne ASJ”;

(c)    filing [an affidavit] containing material which was prolix, irrelevant, privileged, inadmissible and otherwise unhelpful; and

(d)    failing to put before the court material required for the hearing of the of the appeal, despite orders to do so;

(e)    the application for leave to appeal was commenced and continued in circumstances where the appellant, properly advised, should have known that she had no chance of success.

5.    Many of the features of this appeal are strikingly similar to those before the Court of Appeal, in particular the lack of any merits, disorganisation, prolixity and refusal to accept previous decisions.

11    I also observe that since Smith J in Winn v Blueprint Printing Pty Ltd [2008] VSC 522 described the appellant in her litigation with Blueprint as “an extreme example of a person misusing the law and the legal system to try to avoid her legal obligations” by “a holding operation” to delay her creditor, the first respondent (“Blueprint”), the appellant filed a considerable number of unsuccessful appeals and applications in this court in relation to Blueprint. The appellant also joined Garland Hawthorn Brahe as second respondent to the present appeal without, as she acknowledged, any proper basis.

12    Regrettably, the history of the litigation reveals that the appellant has exploited the law’s concern for procedural fairness and the readiness of courts and their personnel to afford appropriate assistance to unrepresented litigants, in order further to delay her creditors.

13    In my opinion, in the circumstances, the appellant should pay the respondents’ costs of the appeal on an indemnity basis.

Stay

14    The appellant’s letter to judge’s chambers dated 24 June 2011, foreshadowed an application to stay the making of orders in this appeal pending the determination of an application for special leave to appeal to the High Court on the grounds of:

(a)    the invalidity of bankruptcy notice VN 358/ 2009; and

(b)    denial of procedural fairness in being refused permission to speak at the hearing of the creditor’s petition.

15    The appellant’s written submission filed on 29 June 2011 stated that she had not had the time or ability to read all of the judgment but considered it to be incorrect. The submission indicated that the appellant intended to seek special leave to appeal to the High Court from the decision of Ryan J dismissing her appeal from the decision of Phipps FM’s dismissal of her application to set aside the bankruptcy notice and from the decision in the present appeal. It stated that the appellant sought a stay of orders until the High Court had heard and determined both applications for special leave. The appellant attached an application in relation to the decision of Ryan J filed, according to the stamp, on 28 April 2011 and an application in relation to the present appeal, which was apparently not yet filed.

16    The appellant did not appear at the hearing on 30 June 2011 and provided no explanation for her non-attendance.

17    The appellant made no formal application for a stay and filed no affidavit in support addressing the relevant criteria, including the balance of convenience. The respondents opposed any stay.

18    In Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 964, Branson J described an application for a stay of an order dismissing an appeal from the making of a sequestration order as akin to an application for a stay to preserve the subject-matter of litigation pending an application for special leave to appeal. Her Honour derived guidance from Brennan J’s statement in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684 that:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

19    As Spender J (with whom Merkel and Hill JJ agreed) stated, in Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1999] FCA 644 at [10]:

[T]he primary reason for the refusal of a stay is the assessment of the prospects of gaining special leave. It is always, of course, invidious for a court to be asked to assess the prospects of a successful appeal from its considered judgment, but in this case there is a further consideration. There is not simply a question of whether the judgment is right or wrong. Rather, it is a question of whether a grant of special leave to appeal that judgment is likely.

20    In my opinion, the appellant’s prospects of obtaining special leave to appeal are poor. Ryan J persuasively analysed and dismissed the alleged bases of invalidity of the bankruptcy notice. (See Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 293). The allegations of procedural unfairness and other claims in relation to the creditor’s petition were dealt with in detail in my reasons for judgment and dismissed. Irrespective of whether either judgment is in error, no question of law of public importance or conflict in any of the authorities applicable to the proposed grounds was apparent.

21    Moreover, the balance of convenience does not favour a stay. The appellant’s affidavit of 13 May 2011 contained a bare and insufficient assertion of solvency and no undertakings to prevent the dissipation of assets from her estate were offered.

22    Nor is the utility of a stay of orders dismissing the present appeal apparent. The appellant’s application for a stay of the sequestration order was refused by Gray J on 23 December 2010 and a stay on an order dismissing an appeal from the sequestration order would not be effective to stay the sequestration order.

23    As the respondents submitted, the appellant is indebted to the first respondent in the sum of $32,156.15 plus statutory interest and is subject to 13 outstanding costs orders (three of which are for indemnity costs). The appellant is indebted to the second respondent in the sum of $14,325.70 plus statutory interest and subject to an order for costs made by Kaye J on 29 June 2007, which remains untaxed.

24    In such circumstances, even had the application foreshadowed by the appellant been formally made, it would be inappropriate to stay the orders dismissing the appeal.

Associate:

Dated:    30 June 2011