FEDERAL COURT OF AUSTRALIA
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for extension of time filed on 3 December 2015 be dismissed.
2. Ms Winn pay the respondent’s costs of and incidental to the proceeding to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Before the Court is an application for extension of time in which to lodge an appeal from a decision of the Federal Circuit Court of Australia in Winn v Leigh [2015] FCCA 2256. It is useful to note a number of preliminary points.
2 First, this proceeding is closely related to other proceedings currently before the Court in QUD 1092 of 2015 and QUD 833 of 2015. This is because the proceedings in those matters arise from the same substratum of facts as in this case. In essence: the parties have been involved in a long-running dispute which resulted in Ms Winn’s bankruptcy, and Ms Winn sought orders under the Bankruptcy Act 1966 (Cth) that the trustee prove and quantify any debt, for annulment of her bankruptcy and for an inquiry into the trustee’s conduct (the substantive matter). I also note that this proceeding is related to a separate proceeding in this Court in respect of which judgment has been given, namely Winn v Leigh [2014] FCA 518. To summarise the relevant proceedings:
The judgment of the Federal Circuit Court the subject of an application for extension of time and leave to appeal in this Court in QUD 1092 – that is, Winn v Leigh [2014] FCCA 573 delivered on 14 February 2014 – involved orders made by the primary Judge where, in the course of the primary judgment, his Honour observed:
○ the substantive matter between the parties had been set down for hearing on 14 February 2014;
○ Ms Winn had not complied with timetabling directions and had on the morning of 14 February 2014 sought an adjournment of the hearing for medical reasons;
○ the respondent did not seek an adjournment, but submitted that if the matter was adjourned it sought its costs thrown away;
○ his Honour considered the medical evidence scant, and noted that while Ms Winn was self-represented she had legal training.
Materially, the primary Judge ordered that:
○ the hearing be adjourned to 24 March 2014;
○ Ms Winn pay the costs of the respondents on an indemnity basis; and
○ material be filed in anticipation of the hearing on 24 March 2014.
Following the orders of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573 the substantive matter was set down for hearing in the Federal Circuit Court on 24 March 2014. There was no appearance by Ms Winn at the Federal Circuit Court hearing of 24 March 2014. The primary Judge gave judgment ex tempore. In summary, the primary Judge made the following orders on a final basis:
○ that pursuant to r 13.03A(1)(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules) all outstanding applications be dismissed;
○ Ms Winn pay the respondent’s costs.
These orders are the subject of the application for extension of time in this case, QUD 1102. While no reasons for these orders were published at the time, in Winn v Leigh [2015] FCCA 2256 delivered on 20 August 2015 the primary Judge explained:
1. On 24 March 2014, I dismissed an application filed under the Bankruptcy Act 1966.
2. The application was made in a long-running dispute which had resulted in the applicant’s bankruptcy.
3. The case dismissed sought to have the bankruptcy annulled.
4. The orders made dismissing the application record that it was dismissed pursuant to r.13.03A (1)(a), r.13.03A(1)(b) and r.13.03A(1)(e) of the Federal Circuit Court Rules 2001.
5. The particular rule provides the grounds to exercise dismissal powers if a party is in default because:
a. under subsection (1)(a), the party fails to comply with an order of the court in the proceeding;
b. under subsection (1)(b), the party fails to file and serve a document required under the rules, and
c. under subsection (1)(e), the party fails to prosecute the matter with due diligence.
6. The applicant did not appear in court on 24 March 2014.
7. She had sent a medical certificate to the court prior to 24 March 2014, relying on the information supplied as a reason for her non-attendance.
8. On the day I dismissed her application, I gave oral reasons. I took into account the applicant’s claimed condition, and did not dismiss the application on her simple failure to appear, otherwise the order would have stated that the application was dismissed pursuant to r.13.03C.
9. The respondent also sought a series of costs orders after I dismissed the application.
10. I made those costs orders against the applicant.
The orders of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573 delivered on 14 February 2014 were the subject of an application for leave to appeal by Ms Winn to the Federal Court. On 15 May 2014 in Winn v Leigh [2014] FCA 518 Rangiah J refused that application.
On 12 May 2014 Ms Winn filed an application in the Federal Circuit Court seeking orders to the effect that all orders made by the primary Judge on 24 March 2014 be set aside pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules. This application was dismissed by the primary Judge in Winn v Leigh [2015] FCCA 2256, delivered on 20 August 2015. That judgment is now the subject of appeal to this Court in QUD 833 of 2015.
3 I have set out the background to the current proceeding in detail by way of explanation for what is, with respect, a most confused array of applications both in the Federal Circuit Court and this Court.
4 Second, and perhaps more importantly, the parties are ad idem in seeking an order that the current proceedings be dismissed. Where they differ is in respect of an order as to costs – each party submits that its costs be borne by the other.
5 It is clear that the costs issue is the true sticking point between the parties in respect of determination of this proceeding.
6 At the hearing before me Ms Winn was self-represented. She informed me however that she is a barrister. Her previous lawyers, Boss Lawyers, withdrew from acting for Ms Winn on the morning of the hearing before me.
Submissions
7 In summary, Ms Winn’s submissions in support of her claim for dismissal with costs are as follows:
On 22 December 2015 the respondents filed a notice of objection to competency in respect of the draft appeal in this matter.
some time prior to the scheduled hearing Ms Winn instructed Boss Lawyers to represent her.
On 21 March 2016 Boss Lawyers contacted the respondent’s lawyers with a view to obtaining orders by consent in both QUD 1092 and QUD 1102. Boss Lawyers also informed the respondent’s lawyers that their notice of objection to competency had been filed out of time.
On 22 March 2016 Mr Patrick Spelman of the respondent’s lawyers emailed Boss lawyers a copy of an unsealed application and an unsealed sworn affidavit.
It appears that a sealed copy of the application for extension of time had not been served on the respondent.
The respondent has attended directions since 10 December 2015 and has taken steps over the intervening four months without informing Ms Winn or her lawyers that he was not served with a sealed copy of Ms Winn’s application.
The respondent purports only to have ever been served with an unsealed application. An unsealed copy of an application without a court number is not a valid document.
A notice of objection to the competency of an appeal must be filed within fourteen days of receiving the notice of appeal: r 36.72(1) of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). The respondent cannot rely on the unsealed copy of the application it received from Ms Winn on 9 December 2015 because it was not an issued court document and has no validity.
Ms Winn received advice from Boss Lawyers on 16 March 2016 to the effect that she should proceed with the proceeding in QUD 833 of 2015, not her application in QUD 1102.
The respondent has elected to continue the appeal as opposed to challenging its competency at the earliest opportunity, has delayed determination of the objection to competency, and has further sought its costs for the whole proceeding.
The respondent should pay Ms Winn’s costs in accordance with the principles in Marchant v GB Radio [2002] FCA 465.
8 The respondent rejects Ms Winn’s arguments, submits that he has never made an issue of the fact that Ms Winn never served him with an unsealed copy of her application for extension of time, and seeks his own costs which follow the dismissal of Ms Winn’s application.
Consideration
9 In my view the appropriate orders are to dismiss Ms Winn’s application for extension of time and order Ms Winn to pay the respondent’s costs of and incidental to the proceedings, to be taxed if not otherwise agreed. I have formed this view for the following reasons.
10 First, as is clear from s 43(2) of the Federal Court of Australia Act 1976 (Cth) the award of costs is in the discretion of the Court or Judge. The only limitation on the power of the Court under s 43 to award costs is that the power must be exercised judicially: Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; Probiotec Limited v University of Melbourne (2008) 166 FCR 30 at [47], [50].
11 Second, in this proceeding Ms Winn has filed an application for extension of time in which to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules. Rule 36.06 of the Federal Court Rules provides that:
A notice of appeal under r 36.01 or an application under r 36.05 must be served in one of the following ways:
(a) by serving a signed and sealed copy of the document personally on the party;
(b) by delivering a signed and sealed copy of the document to that party’s address for service in the proceeding in the court appealed from.
12 I understand that Ms Winn has not, at any time, actually served a sealed copy of her application on the respondent – rather she sent the respondent, by facsimile transmission, an unsealed copy of her application. Notwithstanding this apparent oversight by Ms Winn, the respondent has proceeded on the basis that the application for extension of time was filed. This was a correct assumption. In the circumstances I consider it would be improper to permit Ms Winn to use against the respondent her own failure to comply with the Federal Court Rules by way of service of a sealed copy of her application on the respondent.
13 Third, Ms Winn is incorrect in submitting that the entire proceeding in QUD 1102 is invalid for want of Ms Winn serving a sealed copy of her application for extension of time on the respondent. Ms Winn’s application was clearly filed with the Federal Court Registry on 3 December 2015 and is available electronically to the parties. The respondent was clearly aware of the proceeding, having been served with an unsealed copy of Ms Winn’s application. The matter has been listed for directions before the Court on multiple occasions, and was listed for hearing on 23 March 2016. This is not a case where, for example, judgment has been given in default of a respondent being served with process and thus being unaware of the proceeding.
14 Fourth, in her submissions and at the hearing Ms Winn submitted, in summary, that as the respondent raised the invalidity of the proceeding for the first time the day before the hearing, she was not in a position to meet such argument with such little notice, and the respondent ought be penalised in costs.
15 To the extent that Ms Winn claims improper conduct on the part of the respondent, I do not accept this.
16 As I have already noted, it is only the respondent who could be prejudiced from the want of proper service by Ms Winn, and the respondent has clearly not at any stage asserted that the entire proceeding is invalid because he was not properly served with a sealed copy of the application for extension of time.
17 Ms Winn points to an email from Mr Spelman for the respondent to Ms Harley of Boss Lawyers on 22 March 2016, however it is important to look at the relevant part of Mr Spelman’s email in context. Mr Spelman was clearly communicating with Boss Lawyers in relation to the proper apportionment of costs. Materially, Mr Spelman wrote:
Costs in QUD 1102/15
Although not raised in any of the Applicant’s submissions or material, we note that you are of the view that our client’s notice of objection to competency in QUD 1102/15 was filed out of time and therefore our client is not entitled to its costs in those proceedings. However, as discussed on the phone our client’s notice of objection to competency in QUD 1102/15 was filed within timeframe required by r 36.72.
The earliest we received notice of your client’s application for extension of time in QUD 1102/15 was on 9 December 2015 when your client sent us the attached fax. We note, amongst other matters, the application in the fax is an unsealed copy of your client’s application, which is inadequate to constitute service of the application. In any event, our client filed its notice of objection to competency on 22 December 2015, which is 13 days after the date we received the attached facsimile. That is within the timeframe required by rule 36.72.
(emphasis in original.)
18 It is clear from this correspondence that the point raised by Mr Spelman about the failure of Ms Winn to serve a sealed copy of the application for extension of time was referable only to the timing of the notice of objection to competency filed by the respondent’s lawyer, and costs. Further, at most in his correspondence to Boss Lawyers, Mr Spelman said that service of the application for extension of time was “inadequate” – not (as Ms Winn submits) that the entire proceeding was invalid.
19 Fifth, I do not accept Ms Winn’s submission that the decision of the Federal Court in Marchant is applicable in these circumstances, and that the respondent should be penalised in costs for failing to raise its claims of invalidity early. The circumstances in Marchant are not comparable with the facts before me. In this case the respondent filed a notice of objection to competency in respect of the draft grounds of appeal on 22 December 2015, mere days after the application for extension of time was filed. While the notice of objection to competency could be said to be premature in circumstances where an extension of time has not been granted by the Court to file a notice of appeal, the respondent can scarcely be criticised for alerting Ms Winn to his position should the appeal proceed. In respect of what Ms Winn describes as the respondent’s position on the validity of the application for extension of time for want of her proper service of process, I have already set out my views. That aspect of her argument has no merit.
Conclusion
20 As I have already noted, Ms Winn is a litigant in person, and is also a barrister. To that extent she has an advantage over litigants with no legal training.
21 In my view her submissions in respect of the respondent’s alleged conduct can best be described as her clutching at straws to avoid the usual consequence of an application being dismissed, namely costs following the event (Oshlack v Richmond River Council (1998) 193 CLR 72). In my view the costs of the respondent should be paid by Ms Winn.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
