FEDERAL COURT OF AUSTRALIA

Winn v Leigh [2016] FCA 683

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed 29 April 2016 be dismissed for want of prosecution pursuant to rule 35.32 of the Federal Court Rules 2011 (Cth).

2.    The respondent be released from his undertaking given on 13 November 2015 as set out in Order 1 of the orders of that date.

3.    The interlocutory application filed by the applicant on 19 October 2015 be dismissed.

4.    The costs of the respondent be paid by the applicant, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    On 7 June 2016 the respondent made an oral application in Court for dismissal (with costs) of Ms Winn’s application for extension of time and leave to appeal pursuant to r 35.32 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). After hearing the parties, and considering the matter, I made the order sought by the respondent. I also made orders releasing the respondent from an undertaking he had given on 13 November 2015 in respect of costs in this matter below in the Federal Circuit Court, and dismissed a related interlocutory application of Ms Winn filed on 19 October 2015 in which she had sought a stay on enforcement of those costs.

2    At the time of making these orders I told the parties that I would deliver written reasons. These are those reasons.

BACKGROUND

3    Ms Winn is a barrister, and is a bankrupt under the Bankruptcy Act 1966 (Cth). In the Federal Circuit Court Ms Winn sought an order that her bankruptcy be annulled, but her application to that effect was dismissed on 24 March 2014 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 (Cth) (the Federal Circuit Court Rules). Subsequently Ms Winn sought to have the decision of the Federal Circuit Court of 24 March 2014 set aside pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules. This application was dismissed on 20 August 2015: Winn v Leigh [2015] FCCA 2256 (the FCCA Decision).

4    On 23 November 2015 Ms Winn filed a supplementary notice of appeal from the FCCA Decision (following earlier notices of appeal filed on 10 September 2015 and 8 October 2015).

5    On 15 March 2016 the respondent filed a notice of objection to the competency of the appeal, on the basis that the orders of the Federal Circuit Court Judge in the FCCA Decision were interlocutory and required leave.

6    Subsequently on 29 April 2016 Ms Winn filed an application for extension of time and leave to appeal from the FCCA Decision.

7    On 1 April 2016 I made the following orders:

1.    In accordance with r 4.05(2) of the Federal Court Rules 2011 (Cth) the appellant file an address for service in these proceedings, which includes her email address …

2.    On or before 4 pm on 29 April 2016, the appellant file and serve an application for leave to appeal and extension of time in this proceeding.

3.    On or before 4 pm on 29 April 2016, the appellant file and serve an affidavit in support of the application referred to in Order 2.

4.    On or before 4 pm on 29 April 2016, the appellant file and serve any amended index to Part A and Part B of the appeal book as currently filed.

5.    On or before 4 pm on 6 May 2016, the respondent file and serve any affidavits in relation to the appellant’s application referred to in Order 2 and any response to any amended index referred to in Order 4.

6.    On or before 4 pm on 20 May 2016, the appellant file and serve her outline of submissions and chronology of the relevant events.

7.    On or before 4 pm on 1 June 2016, the respondent file and serve his outline of submissions and chronology, together with a list of material the respondent requires to be included in Part C of the appeal book.

8.    On or before 4pm on 3 June 2016, the appellant file and serve any outline of submissions in reply.

9.    On or before 4pm on 8 June 2016, the appellant must file and serve Part C of the appeal book. The appellant must file two copies of Part C of the appeal book.

10.    On or before 4pm on 8 June 2016, the appellant must file and serve a list of authorities and legislation to which the appellant intends to refer.

11.    On or before 4pm on 9 June 2016, the respondent must file and serve a list of authorities and legislation to which the respondent intends to refer.

12.    The appellant’s application referred to in Order 2 of these orders, the respondent’s notice of objection to competency and the appeal be listed for hearing at 10.15am on 14 June 2016 for one day.

13.    Costs be reserved.

8    On 3 June 2016 I vacated orders 7 to 11 of 1 April 2016 in this matter. I did so in circumstances where Ms Winn had not complied with order 6 of those orders, wherein Ms Winn was required to file and serve her outline of submissions and chronology by 20 May 2016. I then made the following directions:

1.    …

2.    On or before 4 pm on 6 June 2016, the appellant file and serve any amended index to Part A and/or Part B of the appeal book as currently filed.

3.    On or before 4 pm on 6 June 2016, the appellant file and serve her outline of submissions and chronology of the relevant events.

4.    In the event of non-compliance by the appellant with orders 2 and 3, the matter be listed at 9 am on 7 June 2016 for mention and submissions as to whether the appeal ought be dismissed summarily.

5.    On or before 4 pm on 10 June 2016, the respondent file and serve his outline of submissions and chronology, list of authorities and legislation to which he intends to refer, together with a list of material the respondent requires to be included in Part C of the appeal book.

6.    The parties be granted leave to file and serve the outlines of submissions in accordance with orders 3 and 5 above, to a maximum of 20 pages in length, including annexures or attachments.

7.    On or before 10 am on 13 June 2016, the appellant file and serve any outline of submissions in reply.

8.    …

9.    …

10.    …

9    On 3 June 2016 Ms Winn did not appear in Court, but rather was represented by Mr Lambros of Bennett & Philp Lawyers.

10    On 6 June 2016 Ms Winn filed an outline of submissions, chronology and amended index. Late in the afternoon of 6 June 2016, however, the lawyers for the respondent contacted the Court, and requested that the mention of the matter anticipated by order 4 of 3 June 2016 proceed.

11    At the hearing on 7 June 2016 Ms Wheatley of Counsel appeared for the respondent in support of the oral application for dismissal of the proceedings. Mr Lambros of Bennett & Philp appeared, but only to inform the Court that his firm no longer acted for Ms Winn. Ms Winn then represented herself.

SUBMISSIONS OF THE PARTIES

12    In respect of the application for dismissal, the respondent submitted in summary:

    Although Ms Winn filed documents on 6 June 2016, this was merely formal (and inadequate) compliance with aspects of orders 2 and 3 of 3 June 2016.

    The proposed amended index provided by the applicant seeks to significantly alter many of the document descriptions and dates from the previously settled index, and seeks further to rely on an affidavit of Ms Winn which was allegedly filed on 6 June 2016. No such affidavit has been filed and no leave to file that affidavit has been given by the Court.

    Ms Winn’s purported outline of submissions is completely inadequate and does not comply with the orders as made. In particular, it does not address the substantive grounds of appeal which Ms Winn seeks leave to advance.

    There is a history of non-compliance by Ms Winn.

    The continuation of the proceeding would be unfair to the respondent, particularly as the respondent is required to file submissions in answer to a case which is unclear.

13    In response, Ms Winn submitted, in summary, as follows:

    She had been abandoned by her lawyers with little notice and had to prepare the submissions and chronology by herself, including retyping the index.

    Preparation of the index is an administrative function, as it is not a pleading.

    The submissions of the respondent raise a much larger issue, namely the content of the notice of appeal. Ms Winn had no notice that this was to be addressed at the hearing of 7 June 2016.

    She had told the respondent that she was not proceeding on 20 grounds, but rather there were approximately 8 original grounds and she wanted her Counsel to go through the material and focus on those grounds. This has not happened because she has had three different lawyers on this matter.

    There has only been a very small period of time when she has been acting for herself. It has been during those times that she has had to develop arguments herself.

    She had an accident and broke her foot, which meant that she could not meet new lawyers.

    Because of her health issues she knew that she could not conduct the matter herself.

    She has endeavoured to comply with orders of the Court.

    An option is for the Court to vacate the hearing date and reschedule the hearing for the near future.

    She has arranged for other solicitors and Senior Counsel to assist her formally and informally.

    She would be in a position to identify which grounds of appeal would proceed, file a basic affidavit, and prepare further submissions, for filing on 8 June 2016, in order that the hearing could proceed on 14 June 2016. This would give the respondent time to respond.

    She did not envisage preparing 20 pages of submissions.

CONSIDERATION

14    This proceeding is part of broader litigation between the parties which I described in Winn v Leigh [2016] FCA 320. It is clear from the procedural history of this case that, notwithstanding that Ms Winn is legally qualified, she has had considerable difficulty articulating her case. Indeed listed for hearing on 14 June 2016 were her application for extension of time and leave to appeal from the FCCA Decision, her appeal from the FCCA Decision, and a notice of objection to the competency of Ms Winn’s appeal.

15    In this case the respondent has not sought summary dismissal of the applicant’s case on the basis that it is frivolous or vexatious – rather the respondent has sought summary dismissal of Ms Winn’s application for extension of time and leave to appeal on the basis of r 35.32 of the Federal Court Rules which provides:

35.32    Dismissing application for want of prosecution

A respondent to an application under rule 35.12 or 34.14 may apply to the Court for an order that the application be dismissed:

(a)    for an applicant’s failure to comply with a direction of the Court; or

(b)    for an applicant’s failure to comply with these Rules; or

(c)    for an applicant’s failure to attend a hearing relating to the application; or

(d)    for want of prosecution.

16    In particular, the respondent has relied on his claim that the applicant failed to comply with orders 2 and 3 of the Court of 3 June 2016 that:

2.    On or before 4 pm on 6 June 2016, the appellant file and serve any amended index to Part A and/or Part B of the appeal book as currently filed.

3.    On or before 4 pm on 6 June 2016, the appellant file and serve her outline of submissions and chronology of the relevant events.

17    It is well-settled that, prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give it full time and opportunity for the presentation of its case: Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92. Dixon J explained in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 that:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.

18    Similar principles were expressed by the High Court in Agar v Hyde (2000) 201 CLR 552 at 575-576 and Spencer v Commonwealth of Australia (2010) 241 CLR 118 at 131-132, 139. While these authorities concerned applications for summary dismissal on the basis of frivolous or vexatious claims, the fundamental principle that a litigant is generally entitled to his or her day in Court is relevant in the present context.

19    Notwithstanding this principle, in my view the circumstances of this case are such that the respondent is entitled to the order he seeks for dismissal of the proceedings. I have formed this view for the following reasons.

Failure to comply with directions

20    First, while Ms Winn did purport to file submissions, an amended index and a chronology in compliance with orders 2 and 3 of 3 June 2016, I am satisfied that in fact Ms Winn did not comply with those orders. In Smith v Barron (2004) 139 FCR 566 French J (as his Honour then was) discussed proper compliance with directions, and observed at 575:

In my opinion, the questions the Court is asked to consider in determining whether there has been compliance with an order that a pleading be filed, are:

1.    Has any document be [sic] filed at all, and if so

2.    Does the document filed as a matter of form and substance comply with the order made?

21    His Honour continued:

… The answer to the [second] question may involve an assessment and evaluation of the substance of the document filed and whether, as a matter of substance, it obeys the order of the Court.

22    In that case, in relation to whether a defence had been filed, his Honour found at 577:

In this case I am driven to the conclusion that what was filed was not in truth a defence to the claim at all. It was never intended to be the defence. It was filed simply to avoid the effect of the self-executing default order made by the District Registrar. It did not comply with the Federal Court Rules. It did not reflect any real attempt to plead matters …

Submissions

23    Federal Court of Australia Practice Note APP 2 paragraph 5.2 provides guidance to parties in respect of outlines of submissions filed in appellate proceedings. Relevantly submissions must:

(a)    contain a concise statement of the issues on appeal; and

(b)    contain an outline of the argument to be presented on each issue, specifying the steps in the argument, and any legislation, authorities or findings of fact to be relied upon in support of each step.

24    The submissions filed by Ms Winn on 6 June 2016 were scant, being 12 paragraphs in length. It is revealing to set them out in full:

1.    The Applicant seeks an extension of time pursuant to R 35.14 of the Federal Court Rules 2011 to make an application under Rule 35.11 for leave to appeal from orders of the Federal Circuit Court made on 20 August 2015 in proceeding BRG 1127 of 2012.

2.    The application is supported by an affidavit of the Applicant sworn on 29 April 2016.

3.    An application for leave to appeal is required within fourteen days of the date of order, under Rule 35.13 Federal Court Rules 2011.

4.    On 10 September 2015 the Applicant filed a Notice of Appeal from the orders of 20 August 2015, in the belief that that was the correct process, within the required twenty-one days for filing an appeal. To that extent, the Applicant has complied and not delayed.

5.    The Applicant had a bereavement (Affidavit 29 April 2016 Annexure JW-4) and compromised health (Annexures JW-5 and JW-6) from April 2015 until mid December 2015, and for that reason, the Applicant obtained legal representation for the appeal, to relieve her in a difficult situation where she was aware that she could not properly attend to the appeal herself.

6.    She was legally represented until February 2016, and relied upon the solicitor who had carriage of her matter. The solicitor did not advise the Applicant whether or not leave to appeal was required. He apparently did not consider it. The Applicant ought not to be prejudiced as a result of, in this case, the absence of awareness of the solicitor acting as to the correct process: Jackamarra v Krakouer (1998) 915CLR [sic] 516 at 543.

7.    When the Applicant became aware that leave may be required, she immediately took steps to obtain that leave.

8.    The orders made on 20 August 2015 were not provided on that date, although the judgment was handed to parties on that date. Later that evening at 6.10pm Rodger Barnes Green emailed the draft orders to Judge Coates’s chambers (Affidavit paragraph 5).

9.    The orders were posted to me after 20 August 2015, in the ordinary course of mail delivery, if the order was sent on 21 August 2015, I would have received it one to three days later.

10.    Therefore, the time to be accounted for, between the filing of the Notice of Appeal and receiving the orders, is just a few days.

11.    It is submitted that:

a.    the Applicant filed a Notice of Appeal in time;

b.    immediately took steps to file an application for leave once alerted to that;

c.    will be significantly prejudiced if she is not able to proceed with the application for leave to appeal;

d.    the Respondent has not suffered prejudice by reason of the delay.

12.    In the circumstances, the Applicant seeks an order that extension of time be granted.

25    As a matter of law, in exercising the discretion to grant or refuse an extension of time guidelines for the Court to consider include:

    whether the applicant has provided an acceptable explanation for the delay in lodging the application;

    whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and

    the merits of the substantial application.

(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10]).

26    Further, in considering whether to grant leave to appeal from an interlocutory judgment it is well-settled that the Court should have regard to two questions, namely:

    whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered; and

    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; Ashby v Slipper [2016] FCAFC 63 at [41]).

27    Brevity in a litigant’s submissions does not necessarily equate with failure to produce submissions. In this case, however, at best, Ms Winn asserts in her filed submissions that she did not file an application for leave to appeal in time because her lawyer did not advise her to do so, and because she had health problems. Such explanation is both relevant and understandable (although perhaps less so when considered in light of Ms Winn’s own legal qualifications). However these submissions on Ms Winn’s part do not in any way address the merits of the FCCA Decision the subject of these appellate proceedings, or the question of how that decision could be said to be attended by any (much less, sufficient) doubt to warrant reconsideration. In my view absence of such submissions is particularly problematic in a number of respects:

    In relation to an extension of time application – it may be relatively simple for an applicant to assert a viable reason for delay in filing, and indeed the Court may be prepared to take a sympathetic approach to such an explanation. It is however incumbent on an applicant to make submissions in respect of the merits of the case so as to, in essence, demonstrate to the Court a sound reason to waive prescribed time limits and grant the indulgence sought by the applicant.

    Similar, although not identical, considerations apply in relation to Ms Winn’s application for leave, in that meaningful submissions would include contentions relating to the merits of the decision of the Federal Circuit Court, such as to persuade this Court that the proposed appeal has merit.

    It follows that the merits of the proposed substantive appeal, and contended flaws in the first instance decision supporting review of that decision, are key issues in the proceeding currently before the Court. Submissions filed purportedly in support of an application for extension of time and leave to appeal which do not address these issues cannot be said to be in compliance with a direction for the provision of such submissions.

28    In summary, Ms Winn has filed both a notice of appeal, and an application for extension of time and leave to appeal annexing draft grounds of appeal. Even assuming that Ms Winn proposed to rely only on the grounds in the draft notice of appeal, she has placed material before the Court in the form of those grounds and in respect of which, in proper compliance with order 3 of the directions of 3 June 2016, she was required to make submissions. She did not.

Amended index

29    Order 2 of 3 June 2016 requiring Ms Winn to file an amended index to Part A and or Part B of the Appeal Book clearly contemplated the inclusion of additional material which has become relevant since the index was finalised. This would include the notice of objection to competency of the appeal, the application filed by Ms Winn, and the additional judgment of the primary Judge in Winn v Leigh (No 2) [2016] FCCA 1292.

30    It appears that Ms Winn has attempted to comply with order 2 of 3 June 2016. However, equally clearly, it is clear that she has not complied with that order. Objectionable aspects of the document purporting to be an “amended index” and filed by Ms Winn on 6 June 2016 include:

    The inclusion of an additional affidavit sworn by Ms Winn as item 51. The inclusion of this document is of concern because not only was leave not granted for its filing, but I specifically refused leave to the applicant at the hearing on 3 June 2016 to file a further affidavit.

    The curious inclusion of affidavits of Ms Winn as “Respondent’s Affidavit Evidence” at items 49 and 51.

    The inclusion of new material not previously in the index, including:

○    items 58-81 under “Other Material”, being new matters in the nature of emails and letters;

○    transcripts of hearings (for example item 52);

○    previous orders related to this appeal (items 58-60).

    Many changes to dates appearing throughout the amended index (for example items numbers 29.3F, 33.15, 36.8, 36.29, 36.32, 37.2, 37.1B, 40.4, 40.6, 43.9, 45.12, 45.20-45.28). The variations were both minimal (for example item 43.9 where the date changed from 13.05.11 to 12.05.11) and substantial (for example item 36.8 dated 2000/2007 but changed to 18.07.1997).

    Many instances of the addition of words and rewording of sentences when compared with the previously filed index. Such structural changes included:

○    the name of senders in relation to various emails and letters (for example items 45.1-45.7, 45.9-45.19, 45.21, 45.22, 45.28-45.26 and 46.1-46.7);

○    the addition of named medical centres and medical tests (for example items 37.3A-37.5, 38.5A-38.5D, 38.15D-38.15G and 38.16B-38.16G);

○    frequent addition of commas (for example items 38.3A-38.3H);

○    rearrangement of sentences, for example commonly rephrasing “Email from Associate to …” to read “Associates email to …” (eg items 38.3F, 38.3G, 38.13B and 38.13C) and “letter from …” to “…’s letter” (eg items 36.17-36.22 and 46.1-46.4).

31    None of these amendments were tracked in the document filed by Ms Winn on 6 June 2016. While the Federal Court Rules do not strictly require mark-up of amendments to an index filed in Court appellate proceedings, it is incumbent on a party filing an amended index to mark-up changes. Failure to do so where substantial amendments have been made entitles the Court to reject the amended document, as being both confusing and oppressive, and indeed not an “amended index” within the meaning of Court’s orders.

Chronology

32    So far as concerns the chronology filed by Ms Winn on 6 June 2016, the respondent similarly complains of non-compliance in respect of the orders of the Court. The purpose of a properly prepared chronology is to assist the Court understand relevant issues (in particular issues of fact) and decide the appeal (cf comments of Mahoney AP in Woods v Harwin [1993] NSWCA 291).

33    While both the Federal Court Rules (for example, r 36.55) and Practice Note APP 2 paragraph 5.4 refer to the filing of a chronology in appellate proceedings, they do not provide guidance as to the contents or form of a chronology. Notwithstanding this, principles relevant to the preparation of a chronology include:

    the chronology should list objectively material events relevant to the proceeding, not merely those assisting one party;

    the events listed should cross-reference to evidence in the appeal book;

    it is appropriate to identify key persons in relation to those events;

    the chronology should be a neutral document. It should not be prepared in a tendentious manner, and should not include events which are controversial. If there is controversy about an event, a comment should be included to this effect.

(see comments in Woods v Harwin; Colman A, Lyon V and Hopkins P, The Practice and Procedure of the Commercial Court (Informa, 2008) at 268; Zuckerman A, Zuckerman on Civil Procedure (3rd ed, Sweet & Maxwell, 2013) at 1010; Leabeater J, McCafferty L, Purchas J and O’Sullivan S, Civil Appeals: Principle and Procedure (Sweet & Maxwell, 2010) at 305).

34    The document filed by Ms Winn as a chronology on 6 June 2016 contained dates and events. However none of the events listed were cross-referenced to material in the appeal book. Further, many of the events listed in the chronology are clearly expressed in a partisan fashion and are controversial, and indeed it is difficult to see that a number of them are material to the proceeding. I note, for example:

    “Blueprint only creditor and its [sic] obtained orders by non disclosure to court”.

    “Leigh submitted incorrect facts to Federal Court without Winn’s knowledge”.

    “ITSA required Leigh to email the amount of debt to me – Leigh failed to comply”.

    “Meeting held – Leigh laughed and refused to answer”.

    “Winn lodged complaint to ITSA Regulation [sic] re Leigh’s conduct. Winn withdrew complaint as process of no assistance”.

    “Leigh prolonged administration without proof of debt lodged”.

    “Winn asked Leigh how much his fees were at that stage; his fees equalled the value of her property”.

    “Winn proved to Leigh no debt owed to GHB – Leigh refused to act”.

    “Mediation – Rodgers told Winn before mediation it is futile”.

    “RBG contacted Nicholsons for confidential information – breach led to Nicholsons ceasing to act”.

    “Rodgers informed Winn Leigh has changed flight and can attend hearing”.

    “Plastiras Lawyers informed Winn they could not do the case”.

    “Winn contacted Associate that Leigh filed late and cannot file in time in reply and that Leigh sought leave to file amended Grounds. Associate replied to Winn that Coates J would not read her correspondence as not sworn”.

    “Winn diagnosed and with mediation but pain for two weeks”.

35    In my view Ms Winn did not comply with order 3 of 3 June 2016 in relation to filing a chronology, as the document she filed on 6 June 2016 cannot properly be described as a chronology for the purposes of this litigation.

Circumstances surrounding failure to comply

36    Second, from the Bar Table Ms Winn submitted that she had made every effort to comply with the directions of the Court of 3 June 2016. She claimed that she had been let down by her lawyers, and that she had new lawyers and Senior Counsel available to assist her.

37    Further, I note that the failure of Ms Winn to comply with the 3 June 2016 orders was not linked to a self-executing order, whereby the matter would be automatically dismissed in the event of her non-compliance with those orders.

38    It may be that Ms Winn endeavoured to comply with the directions of the Court. However the intentions of a litigant are not always decisive in these circumstances. As Wilcox and Gummow JJ observed in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395-396:

It is to be noted that the power given by [Order 10 of the Federal Court Rules 1976] is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default of contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.

39    Similarly I note the following comments of Perram J in Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 4) [2009] FCA 461 at [8]:

A minor failure to comply would not mean that the order was not substantially obeyed. A more difficult question is whether a finding of substantial non-compliance with such an order can be averted by demonstrating that the non-compliance was blameless or beyond the control of the party in breach. However, to embrace the view that a party does not breach an order of a court because of innocent mistake or supervening interference would result in court orders being, in effect, defeasible depending upon the individual circumstances faced by those who found themselves confronted with them. Such a view is likely to promote uncertainty and to detract from the need for parties to understand their responsibility to ensure that orders are obeyed.

40    In this case, Ms Winn’s failure to comply with orders 2 and 3 of 3 June 2016 must be read in the following context:

    Ms Winn has a history of non-compliance in this proceeding. I note for example:

○    Ms Winn did not comply with the orders of 1 April 2016. As a result the matter was required to be relisted on 3 June 2016 for further directions;

○    in paragraphs 7, 14 and 16-20 of the draft notice of appeal annexed to the application for extension of time and leave to appeal Ms Winn seeks – again – orders from this Court relating to the orders of the Federal Circuit Court of 14 February 2014. Rangiah J dismissed an application for leave to appeal against those orders: Winn v Leigh [2014] FCA 518. In Winn v Leigh [2016] FCA 319 I dismissed as an abuse of process a further application by Ms Winn in which she sought to agitate, again, matters relating to those orders;

○    Ms Winn has sought to rely on a further affidavit sworn by her on 6 June 2016. On 3 June 2016 I refused leave for her to rely on a further affidavit;

○    Order 4 of 13 November 2015 provides that Ms Winn not file any further amended supplementary notices of appeal without leave of the Court. Notwithstanding this, the draft notice of appeal annexed to the application for extension of time and leave to appeal is in different terms to the notice of appeal already filed by Ms Winn with leave.

    While Ms Winn is self-represented, she is a legally qualified barrister. In this respect, Ms Winn is not subject to the possible disadvantages in knowledge and expertise which may be experienced by litigants in person who are not lawyers endeavouring to comply with Court orders.

    I note that, for reasons not properly explained, Ms Winn’s appointed lawyers ceased acting for her some time between the directions hearing of 3 June 2016 and the directions hearing of 7 June 2016. While the lack of legal representation is in no way an impediment to the Court hearing the applications of an individual litigant, it is clear that Ms Winn sought to rely on lawyers to represent her in these proceedings to prosecute her case. I note however that, to date in these proceedings, Ms Winn has retained (and then ceased to retain) three firms of lawyers. She claimed orally that she had retained “other solicitors, who will take over now, and I also have senior counsel who are willing to assist me formally and informally” (transcript 7 June 2016 p 17 ll 18-19). Notwithstanding that, as at 7 June 2016 no lawyers had entered an appearance for Ms Winn. I have difficulty accepting that Ms Winn would be able to retain a fourth firm of lawyers for the hearing which was listed for 14 June 2016.

    The directions hearing of 7 June 2016 was only one week before the application for extension of time and leave to appeal, and the actual appeal, were listed for hearing. Ms Winn submitted that she would be able to file submissions addressing the grounds of appeal by the following day, namely 8 June 2016. In my view however, an indulgence by the Court to that effect would be unfair to the respondent, both procedurally and in respect of the costs which the respondent would be required to incur. In this respect, I accept the submission of Ms Wheatley that, as at 7 June 2016, the respondent was facing two different draft notices of appeal, that none of the grounds of appeal in the draft notices of appeal had apparently been abandoned by Ms Winn, and the respondent would be obliged to file his own submissions within two days of receipt of Ms Winn’s submissions (assuming those submissions were produced and meaningful).

    The final hearing of this matter had been previously listed for 4 February 2016 and 23 March 2016, and vacated. Ms Winn advanced the proposition that the hearing date of 14 June 2016 be vacated (transcript 7 June 2016 p 17 ll 15-19). I consider it likely that Ms Winn is not, in fact, ready for trial. In my view however vacating the hearing date at this stage, in the face of opposition by the respondent, would be unfair to the respondent, and unacceptable to the Court from a case management perspective.

Conclusion

41    Failure to comply with directions of the Court clearly does not in all circumstances warrant dismissal of the proceedings in their entirety. Indeed the fact that r 35.32 is entitled “Dismissing application for want of prosecution” indicates that, before the Court makes an order for dismissal in accordance with this rule, the Court must be satisfied that the failure of the applicant to comply with directions or otherwise act in breach of this rule is, in fact, a failure of the applicant to prosecute the proceedings.

42    In this case Ms Winn did not comply with my orders of 3 June 2016, however I am satisfied that this failure was not merely a technical failure of compliance with orders which could be remedied such that the case could proceed in an orderly manner to trial. The nature of Ms Winn’s failure to comply indicating serious problems articulating her case; the fact that the nature of her case remained uncertain so close to the hearing and, crucially, had not been clarified by properly prepared submissions as ordered; the fact that she had a history of non-compliance and continued in this pattern of non-compliance to the detriment of both the respondent and the Court in its management of this case; and the almost certain substantial prejudice to the respondent both procedurally and in costs should the Court be prepared to indulge Ms Winn in her failure to comply with its orders, support an order by this Court dismissing the proceedings for want of prosecution of the case within the meaning of r 35.32.

UNDERTAKING AND INTERLOCUTORY INJUNCTION

43    At the directions hearing on 7 June 2016 Ms Wheatley for the respondent asked the Court, as a consequence of its order dismissing Ms Winn’s application for extension of time and leave to appeal, to dismiss the interlocutory application filed by Ms Winn on 19 October 2015 and to release the respondent from his undertaking given on 13 November 2015 as set out in order 1 of 13 November 2015.

44    In her interlocutory application of 19 October 2015 Ms Winn sought the following order:

That there be a stay on the cost order made by the Federal Circuit Court on:

(i)    20 August 2015;

(ii)    24 March 2014;

(iii)    14 February 2014.

45    Determinations of the Federal Circuit Court on each of these dates are the subject of the application for extension of time and leave to appeal in these proceedings. More particularly:

    the decision of 20 August 2015 is the FCCA Decision the subject of these appellate proceedings;

    the hearing of 24 March 2014 was the hearing at which the primary Judge made orders, which Ms Winn subsequently sought to have set aside at the FCCA Decision; and

    the hearing of 14 February 2014 in the Federal Circuit Court was adjourned with costs against Ms Winn until the 24 March 2014 hearing.

46    In circumstances where I have dismissed Ms Winn’s application for an extension of time and leave to appeal from the FCCA Decision, it follows that her application for a stay on the costs orders of the primary Judge in the FCCA Decision and in respect of the hearings of 24 March 2014 and 14 February 2014 should be dismissed. This is particularly so in relation to orders arising from the hearing of 14 February 2014 which have already been dealt with by this Court in Winn v Leigh [2014] FCA 518 and Winn v Leigh [2016] FCA 319.

47    The undertaking of the respondent of 13 November 2015 was related to Ms Winn’s interlocutory application of 19 October 2015. In summary, and as is clear from the transcript of the directions hearing of 13 November 2015, the respondent consented to an undertaking not to take steps to enforce costs orders made in his favour in proceedings in the Court below until Ms Winn’s appellate proceedings involving the FCCA decision were resolved. In particular I note the following exchange between the Bench and Ms Wheatley:

MS WHEATLEY: Thank you, your Honour. Your Honour, the appellant has filed an interlocutory application of 19 October - - -

HER HONOUR: Yes.

MS WHEATLEY: I don’t propose to address the substance of it. We obviously have a view, your Honour, about that. But what we are interested in from the respondent’s point of view is efficiently and effectively dealing with the real issues of the appeal, which - - -

HER HONOUR: So – if I can just interrupt you. So my understanding of your position is this: the interlocutory application presents costs, enforcement costs – is that right?

MS WHEATLEY: That’s so, your Honour.

HER HONOUR: So you’re saying – what you’re saying to Mr Perkins and his client, is, “You’re not going to do anything about those costs until the whole thing’s resolved so perhaps park” – if I can put it that way – “the interlocutory application rather than spending time on it.”

MS WHEATLEY: That’s so, your Honour. If I may, a least one of the orders has already been the subject of appeal and, again, I don’t mean to go into the substance of the matters, but we, obviously, have a view about them but all of those matters will cost time, money and effort from all of the parties and the court. And we see that as unnecessary in real terms. We can provide the undertaking as we’ve drafted it in the first paragraph that we will not enforce the orders without 28 days written notice, or order of the court. And order 2 is simply that that application be adjourned with liberty to apply on three business days’ notice. So that if, by chance, the respondent did provide that written notice in ground 1, which I doubt it would happen during the course of the appeal, but, of course the order - - -

(Transcript 13 November 2015 pp 3-4.)

48    The undertaking provided by the respondent was in the following terms:

The Court notes the undertaking of the respondent, which is provided only on the following bases that, without any admission or acceptance of the appellant’s entitlement to a stay of any costs orders in BRG1127/2012, the respondent undertakes not to enforce any costs orders (whether properly the subject of this appeal or not) made in BRG1127/2012 without order of the Court or upon the discontinuance or dismissal of the appeal.

49    It is not contentious that the Federal Circuit Court file BRG1127/2012 refers to related litigation between Ms Winn and the respondent in the Federal Circuit Court, and includes hearings and orders made on 20 August 2015, 24 March 2014 and 14 February 2014.

50    In circumstances where Ms Winn’s appeal concerning the FCCA Decision has been determined by my decision to dismiss her application for an extension of time and leave to appeal, it is appropriate to release the respondent from his undertaking not to enforce extant costs orders in his favour against Ms Winn in the Federal Circuit Court proceedings.

COSTS

51    It is appropriate in these proceedings that costs follow the event. Accordingly, I will make an order that effect.

Associate:

Dated:    9 June 2016