Bennett & Philp Lawyers v Winn - [2019] QCA 196

[2019] QCA 196

COURT OF APPEAL

McMURDO JA

Appeal No 4279 of 2019
DC No 66 of 2018

BENNETT & PHILP LAWYERS Applicant

JULENE WINN Respondent

BRISBANE

THURSDAY, 26 SEPTEMBER 2019

JUDGMENT

McMURDO JA: There is an application by a respondent in the proceeding in this court for an order that proceeding to be struck out, essentially for want of prosecution. The proceeding in this court is an application by Ms Winn, who is legally qualified, but unrepresented, for leave to appeal against a judgment of Judge Reid delivered on 1 February 2019. Judge Reid declined to set aside an order for security of costs which had been made by Judge Koppenol in favour of the present respondent against Ms Winn. Judge Reid further ordered that Ms Winn’s District Court proceeding be dismissed.

The District Court proceeding was one in which Ms Winn sought leave to appeal to that court from a decision of a magistrate. Leave to appeal to the District Court was required because the amount involved was under $25,000. In fact, the amount involved was approximately $3,000. That was the amount of an invoice issued by the respondent, a law firm, to Ms Winn, which Ms Winn wished to challenge, firstly by obtaining an order from the Magistrates Court for that bill to be assessed. A magistrate declined to make that order and dismissed her application. Consequently, putting aside orders for costs which have been made against Ms Winn, the amount involved in her dispute is of that order of $3,000.

As I have said, Judge Reid delivered his judgment on 1 February 2019, having reserved the matter from the hearing on 16 November 2018. I have read his Honour’s reasons for judgment. I have read also Ms Winn’s proposed notice of appeal to this court and the grounds which are set out in that document. I have not embarked on any consideration of the merits of her proposed appeal, but I do observe that there is no manifestly persuasive ground of appeal within that document, nor does it reveal any question of general importance for the consideration of the Court of Appeal.

On 23 April this year, Ms Winn filed her application. For whatever reason, it appears that she did not serve that upon the respondent. On 29 April, the parties received an email from the registrar of the Court of Appeal, setting out a proposed timetable for the conduct of this proceeding. Ms Winn failed to file and serve her outline of argument and list of authorities, according to those directions. On 18 June 2019, she served the document that contained that notice of appeal to which I have referred. On the following day, 19 June, orders were made by the President vacating the existing timetable and setting a new timetable for the conduct of the case, culminating in a half-day hearing in this court on 10 October. That timetable required Ms Winn to file her outline of submissions and her list of authorities…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCA 196
Decision Date: 26 SEPTEMBER 2019

CaseChat Overview and Summary

Bennett & Philp Lawyers v Winn is an appeal case heard by the Court of Appeal in Queensland. The applicant, Bennett & Philp Lawyers, is a law firm that issued an invoice to the respondent, Julene Winn, for approximately $3,000. Ms Winn sought to appeal a decision made by the District Court, which declined to set aside an order for security of costs made in favour of the law firm. The Court of Appeal was presented with an application by Ms Winn for leave to appeal against the District Court's judgment, but her application was dismissed for want of prosecution.

The legal issues that the Court of Appeal had to decide included whether the application for leave to appeal should be struck out due to Ms Winn's failure to prosecute and whether the costs should be assessed on an indemnity basis. The Court found that Ms Winn had neglected the prosecution of the matter and had not filed the necessary documents within the specified timeframe. The Court also considered the recent decision of the High Court in Bell Lawyers Pty Ltd v Pentelow, which held that the common law of Australia does not allow for the Chorley exception for self-represented litigants who are solicitors. However, the Court of Appeal decided not to order indemnity costs, as it did not believe that the case warranted such costs.

The Court of Appeal dismissed the application for leave to appeal for want of prosecution and ordered that the application be dismissed with costs. The Court also noted that the amount of costs to be assessed would be on the standard basis, not the indemnity basis. This decision highlights the importance of timely prosecution of legal proceedings and the consequences that can result from a lack of diligence on the part of the applicant.

Orders