Boss Lawyers v Winn
[2022] FedCFamC2G 52
•3 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boss Lawyers v Winn [2022] FedCFamC2G 52
File number(s): BRG 41 of 2021 Judgment of: JUDGE EGAN Date of judgment: 3 February 2022 Catchwords: BANKRUPTCY – Application for sequestration order – adjournment application based upon inadequate affidavit justification discussed – application for adjournment refused – sequestration order made. Legislation: Bankruptcy Act 1966 (Cth), s.43 Cases cited: Winn v Boss Lawyers Pty Ltd [2021] FCA 1652
MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 2 February 2022 Date of hearing: 3 February 2022 Solicitor for the Applicant: Mr Harley of Boss Lawyers Respondent: Ms Winn ORDERS
BRG 41 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BOSS LAYWERS
Applicant
AND: JULENE WINN
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 FEBRUARY 2022
IT IS ORDERED THAT:
1.A sequestration order is made against the estate of Julene Winn.
2.The Petitioning Creditor’s costs be paid out of the bankrupt’s estate in accordance with the priority to which it is entitled as agreed or taxed in accordance with the Bankruptcy Act 1966 (Cth).
AND IT IS NOTED THAT:
1.A consent to act as trustee signed by Christopher John Baskerville has been filed under s. 156A of the Bankruptcy Act 1966 (Cth).
2.The act of bankruptcy occurred on 29 December 2020.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
By a creditors petition filed on 10 February 2021, the applicant applied to the Court for a sequestration order pursuant to the provisions of s. 43 of the Bankruptcy Act 1966 (Cth) against the estate of the respondent, Julene Winn.
The creditors petition was based upon the applicant having had a judgment of the Queensland Court of Appeal entered in its favour against the respondent, on 12 June 2020 in the amount of $24,097.87.
The creditors petition lapses on 10 February 2022 – one year after its filing.
For much of the time since the filing of the creditors petition, the respondent has, by the production of various medical certificates, asserted that she has suffered from a series of “medical conditions” which have prevented her from attending Court so as to make submissions on her own behalf as to why a sequestration order ought not to be made against her estate. The earliest such medical certificate was dated 12 March 2021. [1]
[1] Exhibit 2
By way of an attempt to illustrate the ongoing approach of the applicant to have listed court dates adjourned, the Court caused relevant documentation to be exhibited, those exhibits being marked 1 - 10 inclusive.
The applicant’s medical practice of choice for the purpose of her obtaining medical certificates which were supportive of her not being able to participate in court proceedings was the “Hypermarket Medical Centre” practice situated at Aspley, a suburb of Brisbane. The second most recent medical certificate obtained by the applicant from such practice was dated 1 February 2022. [2] Shortly before the last listed hearing date of the matter on 21 January 2022, the respondent produced another medical certificate from the Hypermarket Medical Centre practice dated 13 January 2022 which suggested that the applicant would require “ … up to 4 months to recover back to her baseline health to be able to address issues in court or prepare submissions” . [3]
[2] Annexure JW-1 to the Affidavit of Julene Winn filed on 2 February 2022.
[3] Annexure JW-1 to Winn Affidavit filed on 2 February 2022.
The most recent medical certificate was one obtained from the “Strathpine 7 Day Medical Centre” practice dated 3 February 2022, that being a medical practice situated at Strathpine, a suburb of Brisbane. The Court accepts that the applicant personally attended at such practice today in order to obtain a consultation with the practitioner named Dr Dias, who purportedly signed the certificate. The applicant sent an email to that effect, and had attached to it the medical certificate of Dr Dias. [4]
[4] Exhibit 10
The most recent medical certificate sought to be relied upon recorded that the respondent was unfit to attend court from 3 February 2022 until 4 February 2022. The one day period of unfitness up until 4 February 2022, considered appropriate by Dr Dias, stands in stark contrast to the expressed opinion of Dr Powell in the medical certificate dated 1 February 2022, where Dr Powell considered that the applicant’s period of unfitness would extend up until 25 March 2022.
It is of obvious significance that notwithstanding the opinion of Dr Powell expressed on 1 February 2022 that the applicant was “ … not fit to prepare, instruct, or participate in any court hearings until 25 March 2022 inclusive”, the applicant was in fact able to participate in court proceedings to the extent that she filed her affidavit on 2 February 2022, and subsequently sent email correspondence to Judge’s Chambers.
The above history must be looked at in the context of findings made by Rares J in Winn v Boss Lawyers Pty Ltd [2021] FCA 1652. The Judgment of Rares J handed down on 10 December 2021 related to appeal proceedings brought by the respondent against judgments of Judges of the Federal Circuit Court respectively made in Sydney and Brisbane. In His Honour’s reasons, His Honour addressed the question of the applicant’s non-appearance before the Court on the day of the appeal hearing. In roundly criticising the applicant for her non-appearance, and the circumstances surrounding her request for an adjournment of the hearing before Justice Rares, His Honour relevantly found as follows: 6-12
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.”
This Court is similarly unimpressed with the respondent’s lack of transparency relating to her claimed unfitness to attend or participate in court proceedings. It ought to have been obvious to the respondent that she ought to have obtained an affidavit from any medical practitioner who was prepared to purportedly certify that she was unfit to attend court today. That is particularly so in circumstances where the applicant had consistently opposed any adjournment of the prior listed hearing dates based upon claims of medical unfitness, and where it would have been obvious to the respondent that because there was such a marked discrepancy between the views of Dr Powell and Dr Dias as to the likely extent of the applicant’s claimed unfitness, the applicant’s lawyer would have likely sought to have had any such medical practitioner cross-examined.
In the case of NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, Lindgren J made the following comments in circumstances where medical certificates had been presented to the Registry in an attempt to have the hearing of a matter before Lindgren J adjourned:
“[3]The appellants notified the Registry two days ago, on 15 December 2003, that they wished to apply for an adjournment of the hearing today. A friend of theirs, Ms Irina Radionova, attended at the Registry and produced two medical certificates both dated Saturday 13 December 2003 and issued by Aristoff Medical Practice Pty Limited; one certificate in respect of each appellant. The solicitor for the Minister indicated that the Minister would oppose an adjournment. It was explained to Ms Radionova that, in these circumstances, an adjournment could not be granted unless the Minister had the opportunity to be heard on the application.”
[4] Upon the matter being called on this afternoon, Ms Anna Volonski, a friend of the female appellant, was in attendance. She is not a lawyer and has attended Court, in substance, to observe and hear what happened on the application.
[5] The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend Court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend Court from 13/12/2003 to 13/01/2004 inclusive.’
[6]The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a Court hearing.
[7]I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend Court’ – apparently each was able to attend upon the medical practitioner.
[8]If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a Court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.”
In MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392, Justice Logan refused an application for an adjournment in circumstances similar to the request made today. At [9] – [13] of His Honour’s judgment, it was said:
“[9]In respect of this particular medical certificate, I make the following observations. Firstly, and again inferentially, the appellant was sufficiently healthy both physically and mentally to attend upon Dr Haroun yesterday. Secondly, the particular medical condition from which the appellant suffers is quite unknown. The certificate is noteworthy for its generality. Yet further, whatever medical condition it is would seem, more likely than not, to be the most transient of conditions. I make that observation because the unfitness attested is only from yesterday until today. Yet further, whatever medical condition it may be, it is one which, in the opinion of Dr Haroun, renders the appellant unfit for work, not, notably, to attend at Court, at least for the purpose of voicing personally an adjournment application, if not, also, for the purpose of making submissions in respect of his appeal on the merits. It is, of course, possible to envisage circumstances where someone might suffer from an overwhelming, yet transient, condition which does, albeit temporarily, render them unfit to appear at Court so as to prosecute their appeal. But one should not be left to speculate on such subjects. Finally, it must be said also, that the medical certificate concerned is not the subject of sworn or affirmed evidence. All in all, the medical evidence is, in my view, quite unsatisfactory as a basis for the support of an adjournment application.
[10]Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11]Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a Court is entitled to be conscious of:
… the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court, as well as the interests of the parties.
[12]Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.
[13]The result then is one where there is not, in my view, any sufficient foundation for a conclusion that the appellant is unable because of some particularised medical condition to attend at Court today to prosecute his appeal. It is just a case where he is not present to prosecute that appeal. That being so, there is a want in the prosecution of the appeal. That is, an event which entitles the Minister to apply for its dismissal. I dismiss the appeal accordingly, with costs.”
The respondent is a barrister. She well ought to have appreciated that by not ensuring that an affidavit relating to her alleged unfitness to participate in court proceedings was obtained from any medical practitioner she sought to rely upon in support of her application for an adjournment, she was falling below the standard expected of not only a barrister, but also of a reasonable litigant.
The application for the adjournment of the hearing today is without merit and is refused.
Consideration of the Material Filed on Behalf of the Applicant
The applicant relied upon the material set out in the list of documents filed on 2 February 2022. The Court has read the documents so listed, and finds that the relevant Rules required to be complied with have so been complied with. The Court is satisfied that the Bankruptcy Notice was validly served, and that the creditors petition was brought within the relevant time. The Court is further satisfied that there are no grounds upon which a sequestration order ought not to be made. The judgment debt has not been paid.
Accordingly, a sequestration order is made against the estate of Julene Winn.
The costs of and incidental to the proceeding should follow the event.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 February 2022
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