Federal Court of Australia

Winn v Boss Lawyers Pty Ltd [2021] FCA 1652

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 24 October 2021 be dismissed.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    There are two matters listed today for hearing. The first is an appeal from a decision of a judge in the Sydney Registry of the Federal Circuit Court of Australia (the Sydney judge) given on 18 May 2021 dismissing the application of the appellant, Julene Winn, in Winn v Boss Lawyers Pty Ltd [2021] FCCA 1067 (the notice proceeding). In the notice proceeding, the trial judge decided not to transfer the proceeding to the Brisbane Registry, and refused to set aside a bankruptcy notice issued by the Official Receiver on 29 June 2020 that the respondent to this appeal, Boss Lawyers Pty Ltd, had served on Ms Winn during the second half of 2020, in circumstances to which I will come. The second is an application for leave to appeal from a decision of a judge in the Brisbane Registry of the Federal Circuit and Family Court of Australia, Division 2 (the Brisbane judge) given on 14 September 2021 in Boss Lawyers Pty Ltd v Winn [2021] FedCFamC2G 44, which dismissed Ms Winn’s application in a case that sought to have declared invalid proceedings on Boss Lawyers’ bankruptcy petition because she had not been properly served (the petition proceeding). The petition was founded on her act of bankruptcy in not complying with the bankruptcy notice. The Brisbane judge rejected Ms Winn’s contention to summarily dismiss the petition, but adjourned the hearing of the petition until after the determination of the appeal from the Sydney judge’s decision in relation to the validity of the bankruptcy notice.

The applicable legislative provisions

2    Relevantly, s 41(5) and (6A) of the Bankruptcy Act 1966 (Cth) provides:

(5)    A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time fixed for compliance with the notice, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

...

(6A)     Where, before the expiration of the time fixed for compliance with a bankruptcy notice:

(a)      proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b)      an application has been made to the Court to set aside the bankruptcy notice;

the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

3    The Bankruptcy Regulations 1996 (Cth) have been repealed, but at the relevant times in 2020 and 2021, reg 16.01 provided:

Service of documents

(1)     Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be:

(a)     sent by post, or by a courier service, to the person at his or her last-known address; or

(b)     left, in an envelope or similar packaging marked with the person's name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility; or

(c)     left, in an envelope or similar packaging marked with the person's name, at the last-known address of the person; or

(d)     personally delivered to the person; or

(e)     sent by facsimile transmission or another mode of electronic transmission:

(i)    to a facility maintained by the person for receipt of electronically transmitted documents; or

(ii)     in such a manner (for example, by electronic mail) that thedocument should, in the ordinary course of events, be received by the person.

(2)     A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person:

(a)     in the case of service in accordance with paragraph (1) (a) or (b) - when the document would, in the due course of post or business practice, as the case requires, be delivered to the person's address or document exchange facility; and

(b)     in the case of service in accordance with paragraph (1) (c), (d) or (e) - when the document is left, delivered or transmitted, as the case requires.

Background

4    On 21 October 2021 at a case management hearing for both matters at which Ms Winn appeared, I fixed them both for hearing today after Ms Winn told me that “10 December 2021 is fine.” She indicated on that occasion that she wished to call fresh evidence in the appeal, in respect of a matter that the Registrar had not allowed her to include in the appeal papers when settling the appeal book index from the notice proceeding. I made orders that the two matters be heard together today and that Ms Winn prepare and file by 28 October 2021 an appeal book for her application for leave to appeal from the petition proceeding, and file and serve Part C of the appeal book in the appeal using the index settled by the Registrar by 3 December 2021. I made orders for the filing of submissions and chronologies dealing with both matters.

5    Ms Winn filed submissions and a chronology by 12 November 2021, in accordance with the timetable, in support of her “supplementary” notice of appeal. That contained 24 grounds, but in the submissions she abandoned ground 22. Ms Winn did not file any Part C or any appeal book in respect of the application for leave to appeal despite the orders made on 21 October 2021. Yesterday, Mark Harley, a principal of Boss Lawyers, tried to provide papers for an appeal book comprising copies of filed documents.

Ms Winn’s non-appearance

6    Ms Winn has not appeared today. She did not answer her mobile phone when my associate tried to call her after the proceedings commenced. On Thursday, 25 November 2021, she had emailed the Registry saying:

[Late] last week I was advised by my surgeon Dr Shaw that I require urgent major abdominal surgery, and had three specialists’ appointments to arrange that.

(emphasis added)

7    She said that her admission for surgery was scheduled for the next day, 26 November 2021, and attached some documents. She asserted that she was unable to prepare any further submissions or do any preparation for the hearing on 10 December 2021 and would not be able to appear today. She stated that the length of her stay in hospital was unknown and that, “the best outcome after surgery is recovery time of six weeks.” She sought an adjournment to February 2022. The documents that she attached to her email included

    a medical certificate by her general practitioner dated 18 November 2021 that stated that she:

•    requires surgical intervention

•    would not be fit to do any further work on submissions in the matter, and would be unable to attend court until February 2022;

    an email purporting to require her to attend for an appointment the previous day, 17 November 2021, at the Prince Charles Hospital;

    another email dated 18 November 2021 asserting that her appointment with Dr Shaw was now scheduled for 19 November 2021 at the St Vincent’s Hospital;

    an email dated 18 November 2021 referring to an appointment she had with a Dr Lee at St Vincent’s Hospital, Chermside, on 22 November 2021; and

    an email dated 24 November 2021 thanking her for choosing St Vincent’s Private Hospital Northside which contained preadmission materials for her admission on 26 November 2021.

8    On 26 November 2021, the Registry responded to Ms Winn’s email stating, relevantly:

The Court confirms receipt of the appellant’s email of 25 November 2021 below.

Justice Rares is not prepared to consider adjourning the appeal in the absence of an affidavit from the appellant’s doctor outlining:

•    The relevant details of the appellant’s medical condition; and

•    How the medical condition will impede her from participating in the appeal, including tasks such as preparing documents and attending the appeal by telephone / video conference.

9    On 3 December 2021, Ms Winn emailed the Registry asserting that she was in hospital after major abdominal surgery with no advised date of discharge. On 6 December 2021, the Registry responded noting that her email was not an affidavit and did not address any of the matters referred to in its email of 26 November 2021. It confirmed that I would not consider adjourning the appeal in the absence of an affidavit from Ms Winn’s doctor outlining the relevant details of her medical condition and how that would impede her from participating in the appeal, including tasks such as preparing documents and appearing in the appeal by telephone or video conference. It reminded her that the appeal was listed for hearing today.

10    On 8 December 2021 the Registry emailed the parties with a Microsoft Teams link for today’s hearing, which is being conducted by audio visual means. About one hour and 20 minutes after that email was sent, Ms Winn sent an email only to the Registry, headed “URGENT ATTENTION: CHIEF JUSTICE ALLSOP Federal Court Appeals,” with the name of the matter, that asked Chief Justice to consider her request for an adjournment of today’s hearing “for medical reasons, refused in emails below”, and set out the email chain to which I have referred.

11    The Registry forwarded Ms Winn’s email to the Chief Justice to Boss Lawyers and invited its comments on her request to adjourn the proceedings today. Boss Lawyers responded that they had not been served with that email. Boss Lawyers noted that numerous judgments, including those the subject of the hearings today, had referred to the fact that that Ms Winn is a barrister, a member of the Queensland Bar and has a long history of invoking medical reasons as to why matters in which she is a party ought be adjourned or could not proceed. Boss Lawyers objected to any adjournment of the appeal.

12    I am not satisfied that there is any sufficient medical reason why Ms Winn cannot be present today. She is aware of the proceeding and has chosen not to attend or to put on proper medical evidence. As a barrister, she is well aware of how to present and prepare an affidavit for herself, as well as one for a medical practitioner, and an application for an adjournment. It is remarkable that Ms Winn, despite her history of medical interactions, was not able to find any medical practitioner who was prepared to make an affidavit outlining her inability to be able to participate in this hearing today. She has chosen to put before the Court only generalised statements that she has undergone some unspecified form of abdominal surgery on 26 November 2021 with no evidence of how or why she is unable to appear. The material which she has chosen to place before the Court is wholly inadequate to explain the impact of any operation on her ability to conduct this litigation which she seeks to pursue.

Procedural history of the notice proceeding

13    Ms Winn filed the notice proceeding in the Sydney Registry of the Circuit Court. On learning that the notice proceeding was listed for hearing on by audio visual link to Sydney, Boss Lawyers on 6 April 2021 informed the Registrar in the Circuit Court that it wished the proceeding to be transferred to Brisbane (the transfer application) under r 8.01 of the Federal Circuit Court Rules 2001 because both parties were located there.

14    The Sydney Judge dismissed the transfer application. Despite not having applied for the transfer, Ms Winn seeks to argue that the notice proceeding miscarried because his Honour refused to grant a transfer on Boss Lawyers’ application.

15    Ms Winn claimed in the notice proceeding that she had not been properly served with the bankruptcy notice. It is necessary to set out in some detail the history of service, because the Sydney judge’s reasons do not address them, except peremptorily. That failure to find the facts has created an unnecessary burden on this Court’s exercise of its appellate jurisdiction in the disposition of this appeal.

16    The Official Receiver issued the bankruptcy notice on 29 June 2020 upon the application of Boss Lawyers as the creditor. It required within six months of service that Ms Winn pay to Boss Lawyers, as the creditor, the amount of the debt of $24,097.87 claimed, or make arrangements to its satisfaction for settlement of the debt. The debt identified in the bankruptcy notice was based on two judgments that were annexed, namely:

    an order of the Court of Appeal of the Supreme Court of Queensland entered on 12 June 2020 that Ms Winn pay costs in the assessed sum of $20,202.89 and

    an order of the Magistrates Court of Queensland made on 16 November 2017 as a QCAT or (Queensland Civil and Administrative Tribunal) “Default Decision Registration” that ordered her to pay a total sum of $3,894.98 for costs thrown away.

17    The bankruptcy notice contained an error in the address line under Ms Winn’s name, because it transposed from 32 to 23 the number of her street address and then omitted entirely the name of the street, but it gave the suburb and its location Queensland.

18    Boss Lawyers filed the creditor’s petition on 10 February 2021.

19    In his affidavit of 10 February 2021, Mr Harley, deposed that on 29 June 2020, he had served Ms Winn with the bankruptcy notice and its attachments by email to both her ozemail and Queensland Bar email addresses, being her last known email addresses in accordance with the provisions of the then reg 16.01(1)(e) of the Bankruptcy Regulations.

20    Mr Harley deposed that Ms Winn had used the ozemail addressed that he also used to serve the bankruptcy notice on 29 June 2020, to communicate in the QCAT, Court of Appeal and the Magistrates Court proceedings between her and Boss Lawyers. He also deposed that she was a barrister licensed to practice law in Queensland and that he had found her Queensland Bar email address by searching the website of the Queensland Bar Association.

21    For more abundant caution, on 24 September 2020, Mr Harley sent a letter with a physical copy of the bankruptcy notice and its attachments in a pre-paid envelope to each of Ms Winn’s residential address and her post office box.

22    He did so because Ms Winn had communicated to him, in an email, that he had been unable to locate but believed she sent after 29 June 2020, that she had blocked Boss Lawyers’ email address from her email server.

23    On 16 March 2021, Ms Winn commenced the notice proceeding in Sydney by filing an application to set the bankruptcy notice aside on the ground that it was “invalid under [s] 41(2) and (5) of the Bankruptcy Act 1966 and common law”, after she learnt of the existence of the petition that was listed in Brisbane for its first return date on 17 March 2021.

24    In her affidavit of 12 March 2021 in the notice proceeding, she deposed that:

    on 1 March 2021, she served on Boss Lawyers “a Notice of Dispute of Validity of Bankruptcy Notice on Ground of Misstatement of Debt” in relation to the QCAT order.

    the bankruptcy notice contained an incorrect address for her (because of the matters that I described at [17])

    had received Boss Lawyers’ letter dated 24 September 2020 and the attached bankruptcy notice on 19 October 2020 when she attended at the post office and opened her post office box.

25    For reasons which she did not explain, Ms Winn only communicated her notice of dispute on 10 March 2021 by email to Boss Lawyers. The notice stated that:

Notice is herein given that the validity of BN250042 attached (bearing incorrect address with letter dated 24 September 2020) is disputed on a ground of misstatement of a debt.

26    Although she contended, in her affidavit of 12 March 2021, that the bankruptcy notice was invalid on numerous grounds, none of those included that she had not received Boss Lawyers’ emails of 29 June 2020 or its letter of 24 September 2020, that was correctly addressed to her home address.

27    In her affidavit of 22 March 2021 filed in the petition proceeding, Ms Winn sought an adjournment because of her then medical circumstances, her pending application to set aside the bankruptcy notice and the fact that on 8 March 2021 she had filed in the Supreme Court of Queensland an application to set aside the cost assessor’s decision on which the bankruptcy notice was in part based, and attached a copy of that application. She did not spend any time setting out any evidence concerning any issues about the service of the bankruptcy notice.

28    On 21 April 2021, Ms Winn filed an amended application in the notice proceeding claiming orders that:

    the bankruptcy notice be set aside under s 30(1)(b) of the Bankruptcy Act;

    a declaration that there had not been valid service on her of the bankruptcy notice;

    a declaration that she should be allowed to go behind the costs orders because the debt was overstated and did not exceed $20,000; and

    a declaration that the bankruptcy notice was invalid under s 41(5) of the Act.

29    On 6 April 2021, a Registrar of the Circuit Court granted Boss Lawyers leave to make an oral application for the notice proceeding to be transferred to the Brisbane Registry and made an order purportedly pursuant to s 41(6A) of the Act extending the time for compliance with the requirements of the bankruptcy notice up to and including 18 May 2021, when the matter was listed. The Registrar’s orders recorded a notation that the parties disputed the date of service: whether as Ms Winn asserted it was, 14 October 2020, or as Boss Lawyers asserted, it was, 29 June 2020.

30    On 13 May 2021, the associate to the Sydney judge emailed the parties that his Honour refused the request to transfer the matter and confirmed that it remained fixed for hearing by his Honour on 18 May 2021.

The Sydney judge’s dismissal of the notice proceeding

31    Unfortunately, without making any of the above findings of fact, the Sydney judge simply asserted that he found that Boss Lawyers had served Ms Winn by email on 29 June 2020, and that, by force of s 41(6A) of the Act, it was “crystal clear that the application to set aside the bankruptcy notice must be made before the act of bankruptcy.” He found that Ms Winn’s evidence demonstrated that the email had been served on the email address that she continued to use and was included in her originating process (I note that she prefaced her ozemail address in the application in the notice proceeding with “NOT AN ADDRESS FOR SERVICE”). His Honour found that her own evidence was inconsistent with the assertions in her first affidavit, and established that Boss Lawyers had sent the bankruptcy notice to her last known email address for service in accordance with reg 16.01(1).

32    Notably, Ms Winn did not give evidence in the notice proceeding that she had not received the bankruptcy notice by email or, indeed, with the 24 September 2020 letter sent to her home address. She only engaged with Mr Harley’s evidence of service by asserting that she had attended on 19 October 2020 at the Post Office, at which her post office box address was located, and found the letter addressed there containing the bankruptcy notice.

Ms Winn’s written submissions in the appeal

33    In her written submissions filed on 12 November 2021, Ms Winn asserted that the service of the bankruptcy notice was invalid although none of the 23 pressed grounds of appeal identified why that might be so. I take into account that Ms Winn is a practising barrister and has at least some apparent knowledge of how appellate processes work, including in relation to challenging adverse findings of fact in a notice of appeal. The “Supplementary notice of appeal” is a rambling list of assertions that does not identify any clearly articulated appellable error. It makes numerous complaints about the Sydney judge’s adverse comments about Ms Winn’s conduct of the litigation, which, like Ms Winn’s submissions, did not address the validity or otherwise of the bankruptcy notice or its service on her.

34    On the material before me, I am unable to see any basis on which to find that the Sydney judge’s conclusory statement that Ms Winn had been served by email on 29 June 2020 was in error. I am satisfied by the evidence to which I have been referred, including Ms Winn’s deliberate omission of any reference to, or denial of, Mr Harley’s evidence of serving her by email, that she was served. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 385 [64], Heydon, Crennan an Bell JJ said:

[a] failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.

35    I am of opinion that this principle also applies where the litigant witness fails to give the relevant evidence in affidavits upon which he or she relies, so that it can be inferred that the evidence would not assist the litigant: Jones v Dunkel (1959) 101 CLR 298, indeed would have exposed facts unfavourable to the party: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 525–526 [230] per Weinberg, Bennett and Rares JJ; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E–419D per Handley JA.

36    It is highly unsatisfactory that Ms Winn continues to choose to communicate by email for her own purposes with parties and the Court and then, if Mr Harley’s recollection were correct, act so that others cannot use email to communicate with her. Whatever may be the position, Ms Winn did not adduce evidence that identified, when she had put any block on emails from Boss Lawyers or whether that was in place on 29 June 2020. While Mr Harley referred to this as a possibility there is no evidence that Ms Winn had blocked Boss Lawyers emails on 29 June 2020, and, I infer that she had not.

37    In the ordinary course of events, as reg 16.01(1)(e)(ii) identifies, Mr Harley’s emails should have been received by Ms Winn on 29 June 2020.

38    Moreover, her evidence as to her discovery of the bankruptcy notice at her post office box is wholly unsatisfactory. First, she gave no evidence to dispute that she received the letter of 24 September 2020 enclosing the bankruptcy notice at her home address. That is remarkable, because she has chosen only to assert that she received that letter when she went to her post office box nearly a month after it was sent.

39    I am also satisfied that Ms Winn received the letter dated 24 September 2020, a Thursday, enclosing the bankruptcy notice at her home address, on the seventh working day after it had been posted, namely on 6 October 2020 (I note that 5 October 2020 was the Queen’s Birthday holiday observed in Queensland). Yet Ms Winn did not engage with the presumption in s 160(1) of the Evidence Act 1995 (Cth) that unless evidence sufficient to raise doubt is adduced, a postal article sent by pre-paid post addressed to a person at a specified address in Australia, is deemed to have been received at that address on the seventh working day after having been posted. In Leveraged Equities Ltd v Goodridge (2011) 191 FCR 71 at 119 [399]–[400], Jacobson J, with whom Finkelstein J at 75 [1] and Stone J at 75 [2] agreed that it was:

…trite law that there is a prima facie presumption of fact that an envelope addressed and posted and not afterwards returned reached its destination in the ordinary course of post.

40    His Honour said that the presumption in s 160 “is to be made unless evidence sufficient to raise doubt about the presumption is adduced.” Ms Winn adduced no such evidence, despite the letter that she attached to her affidavit bearing both addresses on its face.

41    I am satisfied that her failure to address this issue is a reason to consider as a contrivance her assertion that she only learnt of the bankruptcy notice on 19 October 2020. The absence of any evidence from her to dispute her receipt by email of the notice on 29 June 2020 entitled the Sydney judge to arrive at his ultimate finding. It followed that his Honour was correct to find that the act of bankruptcy (based on non-compliance with the notice) occurred on 29 December 2020, and that, because Ms Winn had only applied to set the bankruptcy notice aside by commencing the proceeding in the Federal Circuit Court on 16 March 2021, the Court had no jurisdiction under s 41(6A) to extend it.

42    His Honour observed that Ms Winn had put forward a number of spurious contentions as to why the bankruptcy notice should be set aside, that he dismissed as being without substance and which I do not need to address.

43    That is because s 41(6A) of the Bankruptcy Act could not apply. Ms Winn had not instituted any proceeding to set aside the judgments or orders in respect of the bankruptcy notice, and nor had she made any application to the court to set it aside prior to its expiry on 29 December 2020.

44    Had Ms Winn established that she had not been served on 29 June 2020, the six month period for compliance with the bankruptcy notice would not have expired until 6 April 2021, being six months after the date deemed by s 160 of the Evidence Act would have been when Ms Winn received the 24 September 2020 letter. She would have been able to make an argument that she had commenced the proceeding in the Supreme Court in time, being just over five months after service on 6 October 2021.

45    In Guss v Johnstone (2000) 171 ALR 598 at 609 [55], Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ held that the grant of a stay of an order on which a bankruptcy notice was founded that occurred after the act of bankruptcy had been committed would not cancel the act of bankruptcy. In James v Abrahams (1981) 34 ALR 657 at 662, Deane and Lockhart JJ held that the language of s 41(6A), including its express stipulations as to time, makes it impossible to imply any general power in the Federal Court to extend the time for compliance with a bankruptcy notice in a case which does not fall within s 41(6A). The same applied, of course, to the jurisdiction of the Circuit Court, or now the Federal Circuit and Family Court of Australia Division 2.

46    Their Honours noted that the Court had power to extend time where either limb of the s 41(6A) had been engaged by, relevantly, an application to set the bankruptcy notice aside or appeal from the decision on which it was founded, as held by the Full Court in Streimer v Tamas (1981) 37 ALR 211. In that case, a judge had overlooked extending the time for compliance with a bankruptcy notice under s 41(6A) when he adjourned overnight. The Full Court held that no act of bankruptcy was committed because the Court could extend the time retrospectively once an application for an extension of time or a challenge to the judgment debt had been made within the time prescribed in the chapeau of s 41(6A).

The transfer decision

47    In her supplementary notice of appeal, Ms Winn challenged the Sydney judge’s further decision not to transfer the proceeding, even though she was not the applicant for transfer and had commenced the proceedings in the Sydney Registry. She asserted that his Honour committed some form of error in not dealing with that application by Boss Lawyers before determining whether her proceeding was within the Circuit Court’s jurisdiction. That was a misconception. It is the duty of every Court, and in particular a court of limited jurisdiction, to determine whether it has jurisdiction in a matter: The Queen v Ross-James; Ex parte Green (1984) 156 CLR 185 at 193 per Gibbs CJ with whom Mason J agreed at 203; at 213 per Wilson and Dawson JJ; at 222–223 per Deane J. Once his Honour found that he did not have jurisdiction, it was not necessary for him to deal with any application for transfer, nor did Ms Winn suggest there was any prejudice to her in his not doing so.

48    Ms Winn also seeks orders that his Honour’s criticisms of her behaviour and lack of professionalism in his reasons somehow should be expunged. This Court does not have jurisdiction to edit his Honour’s reasons for judgment unless an exception to the principle of open justice makes it necessary to do so in the interests of justice: Scott v Scott [1913] AC 417 at 437–438 per Viscount Haldane LC; Dickason v Dickason (1913) 17 CLR 50; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 663–664 [29]–[33] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. It would be most unusual, once reasons for judgment have been published on the internet and available for a considerable time, that any circumstance could be suggested in which an appellate court could suppress or edit parts of those reasons. I am not satisfied there is any basis for doing so.

49    Ms Winn also challenged the Sydney judge’s order that she pay Boss Lawyers’ costs fixed at $9,000. In the proceeding before his Honour, Boss Lawyers had appeared and prepared extensive written submissions. His Honour found it was appropriate for Boss Lawyers to obtain counsel.

50    When I raised with Mr Harley during the hearing of the appeal whether costs could be awarded today and below, given that Boss Lawyers, as solicitors, were acting for themselves, having regard to Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, he informed me that the costs were ordered by his Honour only in respect of disbursements for counsel’s fees. In those circumstances, there is no evidence before me that his Honour made any error in respect of the order for costs: see too Spencer v Coshott [2021] NSWCA 235 at [63]–[67] per Simpson AJA with whom Bell P and Emmett AJA agreed.

51    Ms Winn did not apply or seek leave on the hearing of the appeal to adduce any fresh evidence relating to the appeal from the Sydney judge.

52    In my opinion, the grounds of appeal from the Sydney judge’s decision are without substance. They include reliance upon articles in the International Covenant on Civil and Political Rights. They also assert some unspecified breach of the Circuit Court’s procedures and that its judgment amounted to a violation of Ms Winn’s human rights.

53    For these reasons, the appeal must be dismissed.

The application for leave to appeal

54    The application for leave to appeal from the Brisbane judge’s decision arises in the context where his Honour had to deal with yet another contention by Ms Winn that she had not been properly served. Ms Winn did not address any argument in her submissions that dealt with the Brisbane judge’s decision or why she should have leave to appeal from it.

55    In her application for leave to appeal, Ms Winn asserted that the Brisbane judge erred:

    in finding that he had jurisdiction to rule that the Registrar’s order made on 9 April 2021 extending the time was incorrect;

    in finding that service of the petition before the time for compliance with the bankruptcy notice expired was valid;

    in finding that posting the petition after the time of the hearing was valid service;

    in finding that posting a petition “bearing a past hearing date” was valid service; and

    by failing to consider that she had filed an appeal on 30 May 2021 challenging the validity of the bankruptcy notice.

56    The draft notice of appeal repeats those assertions. There does not appear to have been an affidavit in support of the application for leave to appeal.

Background to the petition proceeding

57    Boss Lawyers filed the creditor’s petition on 10 February 2021. It was returnable in the Registrar’s list on 17 March 2021. Ms Winn filed a notice of appearance in the petition proceeding on 16 March 2021 giving her residential address as her address for service. However, she did not appear before the Registrar on the return date of 17 March 2021. Mr Harley informed the Registrar that the petition had not yet been served on her. It was adjourned to 24 March 2021. After the hearing on 17 March 2021, Mr Harley sent by express post a copy of the creditor’s petition to Ms Winn with a notice of the adjourned hearing date on 24 March 2021. He made an affidavit of service on the same day.

58    Ms Winn did not seek to cross-examine Mr Harley before the Brisbane judge, but asserted that she had not been personally served with the creditor’s petition or supporting documents and, therefore, somehow the proceeding was invalid, and that until she had been personally served no further steps could be taken in the proceeding.

59    His Honour correctly observed that Ms Winn was wrong for two reasons. First, under r 6.06(2)(a) of the Federal Circuit Court Rules 2001, having filed an appearance on 16 March 2021 containing an address for service, being her home address, Mr Harley was entitled to use it to serve her there, so that it was no longer necessary to personally serve her by hand. This was because, his Honour found, r 6.06(2)(a) provided that personal service was not required if “there are current proceedings for which there is a notice of address for service for the person to be served.”

60    His Honour found the second reason that Ms Winn’s proposition was also without substance was because of reg 16.01(1) of the Bankruptcy Regulations and the provisions of s 160 of the Evidence Act. His Honour found that the documents Mr Harley posted on 17 March 2021 were presumed to have been received by Ms Winn on 26 March 2021, and that there was no evidence to the contrary of that presumption.

61    Accordingly, when his Honour dealt with the matter on 14 September 2021, Ms Winn’s claim that she had not been served was nonsense as the Brisbane judge cogently explained.

62    Ms Winn made a further meritless argument that, because the petition had not been served on her prior to the first return date, it somehow became invalid. There is no statute, rule or reason why that could happen. The validity of a creditor’s petition does not depend on whether or not it is served prior to the first return date fixed for hearing. Debtors who seek to evade service are not unknown, and often, courts have to make orders for substituted service after attempts to serve the debtor well after the first return date have failed.

63    Ms Winn made a number of other spurious arguments to his Honour, including that it was necessary to amend the petition to change the return date, and that despite the hearing before the Brisbane judge occurring on 14 September 2021, being nearly six months after she entered her appearance, she did not have sufficient notice before the hearing. Ms Winn then asserted to his Honour that somehow, the petition was invalid because s 44(1)(c) of the Bankruptcy Act required it to be presented not less than six months after the act of bankruptcy on which the petition was founded had been committed. That proposition only needs to be stated to see how baseless it was. The act of bankruptcy occurred on 29 December 2020 and the petition was presented promptly thereafter on 10 February 2021.

64    She then asserted that because the Registrar had purportedly extended the time for compliance with the bankruptcy notice to 18 May 2021, the petition had been presented before the time for compliance had expired. His Honour correctly found that, since the application to set the bankruptcy notice aside was made well after the expiry of any time in which it could be made under s 41(6A), the Registrar had no power to make an order under the Act extending the time for compliance, and so the Registrar’s order was invalid and had no effect.

65    Regardless of whether that analysis was correct, as I have said, based on Guss 171 ALR at 609 [55], the act of bankruptcy had been committed on 29 December 2020 and any orders the Registrar made subsequently could not reverse or affect that fact. The Registrar’s order was made without jurisdiction as I have found. In any event, that order could not affect the commission of the act of bankruptcy that the Sydney judge found, and which I have upheld in accordance with Guss 171 ALR at 609 [55].

66    In my opinion, the draft grounds of appeal are wholly without substance and constitute an abuse of process of the Court.

67    His Honour appears to have adjourned the hearing of the petition to await the determination of the appeal from the Sydney judge that I have dismissed. It may be necessary for the petitioning creditor to obtain an extension of time under s 52(5) of the Bankruptcy Act before the petition would expire 12 months after its presentation on 10 February 2021, if it is not able to be heard and determined before 10 February 2022.

68    The Brisbane judge was correct to find that there was no basis on which the petition should be dismissed on the arguments that Ms Winn advanced. He adjourned the creditor’s petition for hearing to 7 October 2021. However, the matter did not proceed on that date.

69    During the case management hearing on 21 October 2021, Boss Lawyers undertook that it would not proceed on the creditor’s petition against Ms Winn until the determination of the appeal and the application for leave to appeal (and any appeal filed pursuant to the grant of leave). It will no longer be bound by that undertaking.

Conclusion

70    In my opinion, the appropriate orders are that:

    in proceeding NSD 494 of 2021, the appeal be dismissed and Ms Winn pay Boss Lawyers’ costs if any.

    in proceeding QUD 311 of 2021, the application for leave to appeal be dismissed and Ms Winn pay Boss Lawyers’ costs if any.

Associate:

Dated:    18 January 2022