Julene Winn v Blueprint Instant Printing Pty Ltd (ACN 055 267 096)
[2010] VSCA 35
•3 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3916 of 2008
| JULENE WINN | Applicant |
| v | |
| BLUEPRINT INSTANT PRINTING PTY LTD (ACN 055 267 096) | Respondent |
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| JUDGES | ASHLEY JA and HABERSBERGER AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 February 2010 |
| DATE OF JUDGMENT | 3 March 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 35 |
| JUDGMENT APPEALED FROM | Winn v Blueprint Instant Printing Pty Ltd [2008] VSC 522 (Smith J) |
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Practice and Procedure – Application for leave to appeal – Judgment refusing to extend time for appeal against Taxing Master’s order striking out application for taxation review because of lengthy delays by applicant – Further application for a review held to be abuse of process – Indemnity costs – Supreme Court (General Civil Procedure Rules) 2005, r 63.56.1.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Appearance in person via video link | |
| For the Respondent | Mr T J Scotter | Herbert Geer |
ASHLEY JA:
I agree with Habersberger AJA, for the reasons which his Honour gives, that Ms Winn’s application by summons for leave to appeal against the orders of Smith J made 28 November 2008 should be dismissed; and that Blueprint’s security for costs application by summons should be dismissed without adjudication upon the merits.
HABERSBERGER AJA:
Introduction
There are two interlocutory applications which came before the Court in the circumstances described in the reasons, also published today, for the Court’s ruling on 26 February 2010 refusing Ms Winn’s adjournment application. The first was a summons filed on 11 December 2008 by Ms Julene Winn seeking leave to appeal against the orders made by Smith J on 28 November 2008. The second was a summons filed on 9 September 2009 by Blueprint Instant Printing Pty Ltd (‘Blueprint’) seeking security for costs of the appeal. The Court heard argument on the former and adjourned both applications to 3 March 2010 on the basis that the Court’s decision and reasons for judgment on that application would be published that day. It was also indicated that further directions concerning the applications would be given at that time.
The Application for Leave to Appeal
As previously stated, by her summons filed on 11 December 2008, Ms Winn sought leave to appeal against the orders made by Smith J on 28 November 2008. The summons was filed within the time prescribed by r 64.03(3) of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) but was not served until late on 17 December 2008 and therefore was not within the time prescribed by r 65.04(2) of the Rules.
An affidavit in support of the summons was sworn by Ms Winn on 17 December 2008. It was served at 4.46 pm on that day but not filed until 19 December 2008. The affidavit was, therefore, not filed and served within the time set out in the initial directions of Master Lansdowne (as her Honour then was). An exhibit to the applicant’s affidavit was a Notice of Appeal dated 16 December 2008.
Ms Winn also failed to file and serve an outline of submissions within the time set out in the directions of Master Lansdowne (14 January 2009) and within the subsequently extended time (13 February 2009). Accordingly, on 19 February 2009 Lansdowne AsJ ordered, in part, that the 11 December 2008 summons be adjourned to 20 August 2009 for directions and was not to be considered for re-listing until the following matters had been complied with:
2.1the applicant has filed her outline of submissions (not exceeding 6 pages in length);
2.2the applicant confirms in writing that all affidavit material has been filed;
2.3proof is supplied that the last two documents have been served on the respondent; and
2.4 the applicant has paid any costs ordered and fixed today.
Ms Winn paid the costs ordered by Lansdowne AsJ in March 2009. However, as she had not filed or served any outline of submissions by 19 August 2009, the date for the directions hearing was vacated. Also, having been informed that the respondent, Blueprint Instant Printing Pty Ltd (‘Blueprint’), intended to apply for security for costs the Associate Judge ordered that Blueprint file and serve its affidavit in support of that application on or before 9 September 2009. There was also a direction that the time for service of Ms Winn’s outline of submissions in support of her application for leave to appeal be extended to 26 August 2009.
Blueprint filed a summons seeking security for costs on 9 September 2009 supported by an affidavit sworn by Fiona Michelle Jenkins on 8 September 2009. It also filed its outline of submissions in support of that application on 9 September 2009. The accompanying directions provided that Ms Winn was to file and serve any affidavit in response and her outline of submissions by 30 September 2009.
Ms Winn filed her outline of submissions in opposition to Blueprint’s security for costs application on 7 October 2009. She stated that she had not received its material which was ‘post stamped 15 September 2009’ until 18 September 2009.
On 1 October 2009, Ms Winn filed an affidavit sworn by her on 30 September 2009 in opposition to Blueprint’s security for costs application and:
in support of my application for leave to appeal in this Honourable Court against the decisions of the Supreme Court on 28 November 2008, 1 October 2007, 2 August 2006 and of the Taxing Master on 13 December 2005 and in support of my appeal against the costs order of Master Lansdowne on 20 [sic] February 2009.
Ms Winn’s affidavit of 30 September 2009 was 137 pages long and exhibited approximately another 820 pages of documents. Despite this volume of material, what was not put before the Court by Ms Winn, according to the affidavit of Blueprint’s solicitor, Alexandra Madeleine Santamaria, sworn on 1 February 2010, were all of ‘the affidavits filed by or on behalf of Blueprint in relation to the hearing before Smith J’.
Exhibit ‘JW30’ to Ms Winn’s affidavit was a document entitled ‘Substituted Proposed Notice of Appeal’. It commenced by stating:
TAKE NOTICE that the appellant intends to appeal to the Court of Appeal against the orders of Justice Smith of 28 November 2008 and the orders made by Justice Kaye on 1 October 2007, Justice Byrne on 2 August 2006, the Taxing Master on 9 November 2005 and 13 December 2005 on Supreme Court file 4215 of 2002 and Master [sic] on 19 February 2009 in Court of Appeal file 3916 of 2008.
Although they are extremely lengthy, it is desirable to set out in full the grounds of appeal in the Substituted Proposed Notice of Appeal:
1. The Court erred in the exercise of its jurisdiction in that it:
a)failed to hear and determine the appeal filed 11 April 2006;
b) failed to conduct the two appeals as rehearings de novo;
c)failed to order that the Review by the Taxing Master, per Notice filed 23 November 2005, be conducted as required by r 63.56.1(5);
d)failed to consider properly or at all the relevant issues and evidence:
(i)Blueprint three years after judgment filed bills for taxation that claimed as costs in 4215 of 2002 Rod Goodwin's costs in 4215[sic]/4216 of 2002 against which the appellant has a counterclaim;
(ii)the Taxing Master (a) failed to proportionally tax Blueprint's two bills to assess costs in 4215 only; to disallow other unclaimable costs; to assess Garland Hawthorn Brahe's liability for Blueprint's costs; and (b) failed to set a date of Review at two Callovers and to conduct the Review required by r 63.56.1(5);
(iii)Herbert Geer (for Blueprint) and Garland Hawthorn Brahe (for the appellant) together (a) incurred $74,545.06 costs against the appellant in litigating, without her instruction, an application for leave to appeal a non-monetary VCAT order in her favour; (b) issued a bankruptcy proceeding against her to force payment of the costs subject of, and before, the Review;
(iv)the 2 August 2006 order staying the appeal until the appellant paid $1,750 to Blueprint is invalid and contrary to r 63.56.1(5);
(v)the 1 October 2007 order refusing application to set aside (iv) and to order a Review is erroneous and contrary to r 63.56.1(5);
(vi)the 9 November 2005 order denies the appellant the right of review under r 63.56.1 and procedural fairness, and is invalid;
e)made findings adverse to the appellant about irrelevant matters and delay, as reason not to order the Review, that (i) relate to the time after the failure of the Taxing Master to list the Review for hearing at two Callovers on 13 December 2005 and 31 January 2006 and to conduct the Review required by r 63.56.1(5) and after the failure of the Court on 1 May 2006 to hear the appeal against that failure to review; and that are (ii) irrelevant to the Taxing Master's failure to review; (iii) contrary to the evidence; and (iii) procedurally unfair;
f)failed to consider properly or at all the appellant's submissions and affidavits and made findings contrary to that and other evidence;
g) denied procedural fairness in that it:
(i)permitted Blueprint to rely on (i) a court book, (ii) chronology, (iii) two other 'lists' that had not been served on the appellant;
(ii)failed to inform the appellant that it intended to make findings adverse to her interests and reputation and failed to give her an opportunity to make submissions in relation to those matters;
(iii)failed to inform the appellant that it intended to take into consideration and to make findings adverse to her in relation to ‘events before application for Review', ‘two other proceedings', ‘1 October 2007 judgment', ‘costs orders', ‘legal representation' and ‘legal qualifications' and failed to give her a fair or any opportunity to make submissions in relation to those matters;
(iv)failed to give the appellant notice of handing down of judgment and so failed to give her the opportunity (i) to instruct her solicitor (ii) to attend court from interstate and (iii) to give instructions for, and to make, submissions in relation to costs;
(v)rejected the evidence of medical and other extenuating circumstances that had previously been accepted by the Court;
(vi)based its decision on findings for which there was no evidence;
(vii)created an apprehension of bias in that it:
(a) failed to take into consideration:
i. the appellant's evidence and based its decision on the submissions (and legal and factual errors) of Blueprint;
ii. the law, facts and evidence that support the appellant's right to a Review of taxation;
iii. the Court's failure to conduct the Review required by r 63.56.1 and Blueprint's unlawful claim for costs;
(b)accepted statements of Blueprint without evidentiary proof and which were contrary to the evidence before the Court;
h)decided without consideration of the Objections in the Notice of Review, that there were no grounds for Review when r 63.56.1(5) requires:
(i)the Taxing Master to conduct a Review filed pursuant r 63.56.1;
(ii)the Review to be conducted upon Objections stated in the Notice;
i)made findings that misrepresent the appellant, are damaging to her interests, prejudicial to her rights including of appeal, untrue, contrary to the evidence, unfair and irrelevant to the substantive matter of attendance at a Callover to be informed of a hearing date on the taxation of Blueprint's costs and the issues of g) (vii) (a) iii;
j)based its decision on findings irrelevant to the substantive issue of the Taxing Master's failure to review the taxation pursuant to r 63.56.1.
2.The Court failed to consider the operation of, and to apply, the Court Rules, relevant law and orders made in the proceeding.
3.The Court misapplied the law and facts in that it dismissed the appeal filed 6 March 2008 as an abuse of process on the erroneous findings that:
a)the application [sic] on '2 August 2006' was the same as that before Master Daly on 22 and 29 February 2008;
b)the orders made in Practice Court on '2 August 2006' were appealed and dismissed in the Practice Court on 1 October 2007;
c)the application filed 9 November 2007 was an abuse of process when the appeal filed 11 April 2006 was listed, but not heard, as at 29/2/08;
d)the 'summons filed 21 February 2008' was a re-litigation of the application determined on '2 August 2006'.
4.The Court erred in the exercise of its jurisdiction and discretion in that it:
a) awarded costs on an indemnity basis for the:
(i) 'summons filed 21 February 2008';
(ii) notice of appeal filed 6 March 2008;
(iii)costs reserved by Master Daly on 29 February 2008.
b) awarded costs for the:
(i)application heard by Master Daly in February 2008;
(ii)appeal filed 11 April 2006 that was not heard;
(iii)same proceeding twice (the summons and the appeal).
5.The Court erred in failing to give any or sufficient reason for:
a) awarding indemnity costs against the appellant for:
(i)the application dismissed on 29 February 2008;
(ii) the ‘summons’ and ‘notice of appeal’;
b) dismissing the Notice of Appeal filed 11 April 2006;
c)awarding costs against the appellant for the appeal filed 11 April 2006.
6.The Court made erroneous administrative decisions and interlocutory orders and decisions that affected the judgment: on 11 November 2005; 13 December 2005; 1 May 2006; prior to 3 August 2006; 2 August 2006; 1 October 2007; 26 November 2007; 3 December 2007 to 29 February 2008; and 28 November 2007 to 29 February 2008.
7.From 13 December 2005 on the Court erred in the exercise of its jurisdiction and denied the appellant procedural fairness:
a)failed to set a hearing date and conduct the Review required by r 63.56.1;
b) denied the appellant appearance by audio/video link.
8. Blueprint's conduct throughout the proceeding is an abuse of process.
On 7 October 2009 Ms Winn filed her outline of submissions in support of her leave to appeal application. On 14 October 2009 she filed her substituted outline of submissions. It was stated in the substituted outline that she sought to have set aside all of the orders referred to in the Substituted Proposed Notice of Appeal.
Apart from the summons filed on 11 December 2008, there were no filed notices of appeal or applications for leave to appeal against any of these additional decisions. Regrettably, the above account of recent history is a typical example of how Ms Winn has consistently failed to comply with the Rules and with the orders of this Court. The only matter brought before this Court by Ms Winn is her summons filed 11 December 2008 seeking leave to appeal against the orders made by Smith J on 28 November 2008. They were:
1. The Summons filed 21 February 2008 be dismissed.
2. The Notice of Appeal filed 6 March 2008 be dismissed.
3.Ms Winn pay the respondent’s costs of the summons and notice of appeal, such costs to be paid on an indemnity basis.
4.Ms Winn pay the costs reserved by Master Daly on 29 February 2008 such costs to be paid on an indemnity basis.
5. The Notice of Appeal filed 11 April 2006 be dismissed.
6. Ms Winn pay the costs of that Notice of Appeal.
Leave to Appeal
This matter was prepared and argued by both sides on the basis that leave to appeal was necessary to appeal because the orders of Smith J were interlocutory.[1] In my opinion, that is certainly the situation with respect to the orders dismissing the summons filed on 21 February 2008 and the notice of appeal filed on 6 March 2008. It is not quite so clear with the order dismissing the notice of appeal filed 11 April 2006. In any event, in respect of that order the Court indicated at the outset of the hearing that it would treat the application for leave to appeal, if necessary, as the hearing of the appeal and that the President had, pursuant to s 11(1A) of the Supreme Court Act 1986, determined that the Court be constituted by two Judges of Appeal.
[1]Section 17A(4)(b) of the Supreme Court Act 1986 (Vic).
Test for Leave to Appeal
It was common ground that in order for leave to appeal to be granted, Ms Winn must establish that the decision of Smith J was attended by sufficient doubt to warrant it being reconsidered on appeal, and that substantial injustice would be caused to Ms Winn if the decision was allowed to stand.[2] As Weinberg JA said recently in Worldwide Enterprises Pty Ltd v Silberman:[3]
In effect, the question whether a decision is attended with sufficient doubt to warrant the grant of leave to appeal is the same as whether the proposed appeal has sufficient prospects of success.
[2]Niemann v Electronic Industries Ltd [1978] VR 431, 433 (McInerney J), 436-8 (Murphy J), 444-5 (Gillard J – dissenting in the result but not on the appropriate test).
[3][2010] VSCA 17 [18] (Bongiorno JA agreed with Weinberg JA).
The History of the Dispute
In order to understand the applicant’s complaints about the orders made by Smith J, it is necessary to set out a brief history of this dispute. The following concentrates on the main events in this saga without setting out all of the detail which would take far too long. In September 2001 orders were made in four proceedings before the Victorian Civil and Administrative Tribunal (‘VCAT’), two involving Ms Winn and Blueprint and two involving Ms Winn and a Mr Goodwin. Ms Winn’s proceeding against Blueprint involved a claim under the Fair Trading Act 1999 for a sum of $1,887. Although an order was made that Blueprint return certain specified materials to Ms Winn, her application was otherwise dismissed. Blueprint’s claim against Ms Winn was also dismissed. In respect of the dispute with Mr Goodwin, Ms Winn’s claim against him was dismissed and she was ordered to pay $375 in costs. Mr Goodwin’s claim against Ms Winn in the sum of $4,264 was successful.
In January 2002, Ms Winn commenced three proceedings in this Court – one against Blueprint (No 4215 of 2002) and two against Mr Goodwin (Nos 4216 and 4217 of 2002) – seeking leave to appeal from the orders made by VCAT. On 2 August 2002, Byrne J dismissed with costs her application in each proceeding. On 29 November 2002, the Court of Appeal dismissed with costs Ms Winn’s application for leave to appeal in each proceeding. On 23 July 2003, Ms Winn’s application dated 24 December 2002 for special leave to appeal to the High Court of Australia was deemed abandoned pursuant to the High Court’s Rules. On 6 February 2004, a second application by Ms Winn dated 1 August 2003 for special leave to appeal to the High Court was deemed abandoned pursuant to its Rules.
By a letter dated 24 May 2005 Ms Winn requested Blueprint to have its costs taxed in proceeding No 4215 of 2002. Ms Winn later said that this had been done in error, but that she needed to know the quantum of costs for the purposes of a claim against her former solicitors. On 24 June 2005, Blueprint issued two summonses for taxation of its costs in proceeding 4215 of 2002 in respect of the costs orders made respectively on 2 August 2002 and 29 November 2002. Blueprint claimed $23,673 in respect of the costs of the application for leave to appeal from VCAT and $21,975.55 in respect of the costs of the application for leave to appeal to the Court of Appeal. On 9 November 2005 Master Bruce taxed the costs and allowed $17,139.20 in respect of the first costs order and $12,716.75 in respect of the second costs order. Ms Winn attended at the commencement of the hearing and sought an adjournment and a stay of the taxations. She told the Taxing Master that she had been unable to prepare her itemised objections because of health problems. Those applications were refused. Ms Winn then left the hearing and the taxation proceeded.
On 23 November 2005 Ms Winn filed, pursuant to r 63.56.1(1) of the Rules, an application for review of the taxation (‘the application for taxation review’). The notice was filed within the time prescribed by r 63.56.1(4). At a callover on 13 December 2005, Master Bruce dismissed with costs an application by Ms Winn for the disclosure of certain documents by Blueprint which were said to be critical to the review of the taxation. The application for taxation review itself was adjourned to the next callover.
At a callover on 31 January 2006, Master Bruce struck out with costs Ms Winn’s application for taxation review. The following was noted in the ‘Other Matters’ part of the order:
The Court notes there is no basis for granting the Plaintiff the adjournment requested by the Plaintiff in her facsimiles to the Taxing Master dated 27 and 30 January 2006.
Ms Winn said in her 30 September 2009 affidavit that she did not know about the callover on 31 January until 27 January 2006. She then contacted the associate to the Taxing Master to advise that she could not attend the callover for medical reasons and because she was interstate on that date. On 30 January 2006 Ms Winn requested, by letter to the associate to the Taxing Master, that in her absence a hearing date be set for the review after 1 April 2006 for medical reasons. She said that she also sent supporting medical documents relating to her forthcoming surgery on 31 January 2006.
On 11 April 2006 Ms Winn filed a notice of appeal dated 6 April 2006 against the Taxing Master’s order of 31 January 2006. The principal relief sought was that the order of the Taxing Master be set aside and that ‘the matter be remitted to the Taxing Master for the Taxing Master to conduct a review of taxation’. The notice of appeal also included an application for an order extending the time for Ms Winn to appeal. Ms Winn said that she had not received a copy of the order until 10 February 2006, after the time limit for an appeal had expired. Nevertheless, she delayed a further two months before taking any step to overturn the Taxing Master’s order.
The appeal came on for hearing in the Practice Court on 1 May 2006 but was adjourned to the Listing Master for the fixing of a hearing date.
The appeal was fixed for hearing on 3 August 2006. On 31 July 2006 Ms Winn notified the Listing Master that due to her recurrent medical problems she could not travel to Melbourne for the hearing and requested that the hearing date be vacated. On 3 August 2006 Byrne J ordered that Ms Winn’s application be adjourned to 21 August 2006 and that she pay Blueprint’s costs of the day fixed in the sum of $1,750. His Honour also ordered that if the costs were not paid by 5.00 pm on 17 August 2006 the adjourned date be vacated and the application be stayed until they were paid or until further order. Liberty to apply was reserved. (It appears that the authenticated order mistakenly stated that it had been made on 2 August 2006. For the sake of consistency I will refer hereafter to this order as being made on 3 August 2006.)
Also before the Court on 3 August 2006 was an appeal by Ms Winn against an order made by Bongiorno J on 27 March 2006 dismissing with indemnity costs her summons alleging contempt by Blueprint of the VCAT orders. Byrne J ordered Ms Winn to pay Blueprint’s costs of the day of this appeal also fixed in the sum of $1,750.
Neither sum of $1,750 was initially paid by Ms Winn. According to Ms Winn, in late August 2006 she filed an application to set aside the orders of 3 August 2006. The hearing was listed for 4 September 2006. However, for some unknown reason a registry officer cancelled the issue of, and returned, her summons, affidavit and filing fee. Rather surprisingly, Ms Winn then did nothing with respect to these orders for many months.
On 29 March 2007, Blueprint’s solicitors wrote to Ms Winn demanding payment of taxed costs totalling $33,356.15 by 13 April 2007, failing which bankruptcy proceedings would be issued. Following further demands by letters dated 23 April and 7 May 2007, Blueprint issued a bankruptcy notice on 25 June 2007. Ms Winn said that she was unaware of this notice until mid October 2007. She also said that on 15 April, 14 May and 16 July 2007 she informed Blueprint that she was not able to progress her appeal for medical reasons.
Eventually, Ms Winn applied, by summons dated 20 July 2007, to set aside the orders of 3 August 2006. This application was heard and determined by Kaye J on 1 October 2007. Ms Winn represented herself on this occasion. His Honour dismissed the application with costs. His Honour stated that he did not have to decide whether or not the application was legitimately made under r 46.08 of the Rules because in his view the application had to fail in any event. There had been ‘inordinate delay on behalf of the applicant’ in making the application to set aside the orders of Byrne J. Secondly, his Honour held that the application was ‘without merit’ because ‘no adequate basis’ had been shown why orders ought not to have been made against Ms Winn for costs on 3 August 2006 or staying the appeal unless and until those costs had been paid by her. The result was, as his Honour noted, that Ms Winn’s appeal filed 11 April 2006 and her application for leave to extend the time of that appeal remained stayed.
By a letter dated 22 October 2007, Ms Winn then wrote to the associate to the new Taxing Master, Master Wood (as his Honour then was), requesting that the application for taxation review filed on 23 November 2005 be re-listed for hearing. After setting out the history of the matter as she saw it, she continued:
I filed an appeal (still pending) but I now believe that another avenue may be available for having the Review proceed (obviously the appeal can be discontinued). Would you please inform me as to whether:
(a)the Taxing Master can reinstate the Review into the Taxation List, upon this request, and list the matter for the next Callover;
(b)the Taxing Master will hear application (made under Rule 46.08) to set aside the order of 31 January 2006 and to reinstate the Review matter in the list.
The associate to Master Wood replied by a letter dated 24 October 2007 advising Ms Winn that if she had an application to make, it needed to be done in open court.
On 9 November 2007, pursuant to r 46.08, Ms Winn filed an application seeking that Master Wood set aside the orders made by the Taxing Master on 9 November 2005 and 31 January 2006 and that he list for hearing her application for taxation review. In her affidavit in support sworn on 8 November 2007, Ms Winn stated that her appeal against the order made on 31 January 2006 was ‘still pending’ and that she made this application ‘in the event that the appeal is not appropriate’. The summons was returnable on 27 November 2007.
Blueprint first became aware of this application when the Court wrote to the parties that it would be heard on 28 November 2007 by another Master and not the Taxing Master. This change resulted in the hearing being further adjourned to 12 December 2007. The summons filed on 9 November 2007 was not served on Blueprint until 4 December 2007.
According to Ms Winn, on 30 November 2007 she posted to Blueprint a cheque for $1,750, a copy of the relevant order of 3 August 2006 and a letter with details of the cheque and a request for a receipt. Ms Winn further said that as soon as she sent these documents to Blueprint she wrote a letter to the associate to the Listing Master dated 30 November 2007 enclosing a copy of the order of 3 August 2006 and asking for her appeal filed ‘10 [sic] April 2006 to be listed for hearing as she had now paid the $1,750 costs’. She said that she faxed these documents (four pages including the cover sheet) to the Listing Master’s associate at 4.07 pm on 3 December 2007. Ms Winn said that she also forwarded to Mr Lassen of Herbert Geer Rundle, the solicitors for Blueprint, by facsimile on 4 December 2007, a copy of the documents forwarded to the Listing Master’s associate. The facsimile printout produced in support of this assertion shows a successful 26 page transmission to Herbert Geer Rundle’s facsimile number at 3.16 pm on 4 December 2007.
According to Blueprint, the cheque was received by it on 5 December 2007, and there was no identification of the debt to which this payment should be allocated. Yet there were ten costs orders outstanding in favour of Blueprint, six of them in this proceeding, and one of the ten was also for payment of costs fixed at $1,750. Accordingly, by a letter dated 7 December 2007, Blueprint’s solicitors wrote to Ms Winn stating that the cheque for $1,750 was being accepted by Blueprint as partial payment of a costs order made on 2 August 2002 and taxed on 9 November 2005.
Before Smith J, Ms Winn’s counsel accepted that the first date on which she specified that the $1,750 was in payment of the costs ordered to be paid by her by Byrne J on 3 August 2006 in this proceeding was 18 December 2007.[4] When this was put to Ms Winn in the hearing before us, she said that she did not recall this being said but if it had been it was a mistake on the part of her counsel. However, it is unnecessary to investigate this aspect further because, as will be discussed below, Smith J in effect considered the issues as if the stay had been lifted by the payment of the $1,750.
[4]The transcript of the hearing (‘T’) is exhibit ‘JW25’ to the affidavit of Julene Winn sworn on 30 September 2009. T 78.7-16.
The hearing of the 9 November 2007 summons was adjourned to 5 February 2008 and then to 22 February 2008 and again to 29 February 2008. On that day, Master Daly dismissed Ms Winn’s summons. In the ‘Other Matters’ part of the order it was noted that:
The application impermissibly seeks to circumvent the appeal against the orders of Master Bruce issued on 11 April 2006, and ought to be dismissed, without adjudication as to the merits of the appeal or the original order subject to appeal.
The Master ordered that Ms Winn pay Blueprint’s costs of and incidental to the hearing and reserved to the judge hearing the appeal the question of whether Blueprint’s costs should be payable on an indemnity basis.
On 6 March 2008 Ms Winn filed a notice of appeal against the orders of Master Daly. The appeal was returnable in the Practice Court on 21 April 2008.
In the meantime, on 21 February 2008 Ms Winn issued a summons returnable initially on 17 March 2008 which was later amended, pursuant to r 46.05.1(1), to 21 April 2008. That document summoned Blueprint:
to attend before the Court on the hearing of the appeal filed 11 April 2006 by the Plaintiff against the order of the Taxing Master of 31 January 2005 [sic], seeking:
1An order, pursuant to Supreme Court Rule 63.53.1(5), that the Taxing Master conduct the Review of Taxation upon the Plaintiff’s Application filed on 23 November 2005;
2 The other orders sought in the Notice of Appeal.
That summons apparently replaced a summons in identical terms issued on 4 February 2008 and returnable on 18 February 2008. Thus, there was a gap of nearly five months between Ms Winn paying the $1,750 and her bringing on her application to re-activate her appeal.
As previously stated, both the notice of appeal filed on 6 March 2008 and the summons filed 21 February 2008 were returnable on 21 April 2008. However, they were then adjourned to 8 May 2008 on Ms Winn’s application on the basis of her mother’s serious illness and Ms Winn’s own illness. On that day the appeal and the summons were further adjourned to 26 June 2008 again on Ms Winn’s application. It was said that her mother was then hospitalised. On that day, Ms Winn was represented by counsel instructed by the firm of solicitors Davies Moloney. The two matters were referred to the Listing Master for fixing for hearing. Eventually, they were heard by Smith J on 19 November 2008. Ms Winn was again represented by counsel instructed by Davies Moloney.
Consideration of the Issues
The first point to note is that throughout this saga, Ms Winn’s approach has been influenced by her view that she has an unfettered right to have the taxation reviewed because r 63.56.1(5) requires the Taxing Master to conduct the taxation review. At this time that sub-rule provided:
(5)Upon the application, the Taxing Master —
(a)shall reconsider and review the taxation upon the objections stated in the notice; and
(b)shall make an order confirming the taxation or make such further or other order as may be necessary.
Ms Winn relies on the use of the word ‘shall’.
In my opinion, this is not a correct reading of r 63.56.1 as a whole. One starts with r 63.56.1(1), which is the provision which gives the Taxing Master the power to review a taxation. It states that where any party interested objects to an order of the Taxing Master allowing or disallowing any item in a bill:
the Taxing Master may, on the application of that party, review the order. [Emphasis added]
Then, r 63.56.1(2) to (4) sets out certain procedural requirements and r 63.56.1(5) and (6) sets out the manner in which the taxation review is to be conducted.
None of this, however, takes away from the Court’s power to control its own procedures. Thus, in an appropriate case, the Taxing Master always has the power to strike out or even dismiss an application for taxation review on default by the applicant without reconsidering and reviewing the taxation order, that is, without considering the merits of the application. Ms Winn was, therefore, not correct in submitting both in her written outline of submissions and orally that the Taxing Master did not have the power to strike out her application for taxation review because of her non-appearance on 31 January 2006.
Thus, I have concluded that grounds 1(c), 1(d)(iv), (v) and (vi), 1(g)(vii)(a)ii and iii, 1(h), 1(j), and 7(a) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
Further, one cannot help feeling that Ms Winn’s erroneous belief that she had a right to have the taxation reviewed irrespective of other considerations meant that she was not as concerned as she might otherwise have been to bring on as quickly as possible her out of time appeal from the Taxing Master’s order.
The question now before the Court is whether Ms Winn can show that Smith J’s decision on her various attempts to overcome the order made by the Taxing Master on 31 January 2006 is attended by sufficient doubt to warrant leave to appeal being granted and whether substantial injustice would be caused to her if the decision was allowed to stand. I will deal with each of the challenged orders in turn.
First, I turn to Smith J’s order dismissing Ms Winn’s appeal against the Master’s dismissal of her summons of 9 November 2007. His Honour held that both of these applications sought:
to re-litigate the matters that were the subject of the application before Byrne J and in respect of which his Honour made his stay order. Whether that order still stands or not, to seek to re-litigate those matters is an abuse of process.[5]
[5][2008] VSC 522 [28].
Nothing said by Ms Winn in her written or oral submissions has persuaded me that there is any doubt about the correctness of this part of his Honour’s judgment. In my opinion, it was an abuse of process to issue the summons dated 9 November 2007 seeking to have the Taxing Master set aside the orders of 9 November 2005 and 31 January 2006 and list for hearing her Taxation Review on the grounds that she did not attend the earlier hearings, thus bringing into play the provisions of r 46.08, when:
(a)she still had on foot an appeal against the Master’s order of 31 January 2006 striking out her application to review the order of 9 November 2005; and
(b)that appeal had been stayed pending the payment of costs, or those costs having been paid the appeal was awaiting the fixing of a new hearing date.
As Ms Winn herself apparently recognised in her letter to Master Wood’s associate dated 22 October 2007, if she wanted to pursue her new approach her appeal would have to be discontinued, as otherwise she would have two inconsistent applications on foot. Even that might not have been enough because the new approach was always open to the criticism that it was merely an attempt to circumvent the stay ordered by Byrne J whilst the costs he had ordered remained unpaid. In any event, the appeal was not discontinued before the summons dated 9 November 2007 was issued. Further, the summons dated 21 February 2008 seeking to bring on the appeal from the Taxing Master’s order of 31 January 2006 was issued before Master Daly made her order on 29 February 2008.
Thus, I have concluded that grounds 1(b) (in part), 3(a) and 3(c) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
Further, grounds 3(b) and 3(d) of the Substituted Proposed Notice of Appeal are simply based on wrong assertions of fact. The former alleges that Smith J made the ‘erroneous finding’ that the orders made on 3 August 2006 had been ‘appealed and dismissed in the Practice Court on 1 October 2007’. When asked by the Court to point to the passage in his Honour’s judgment where that finding was made, Ms Winn could not do so. All that was referred to was the following statement by his Honour:
Ms Winn’s application by summons dated 20 July 2007 in relation to Byrne J’s order came before Kaye J on 1 October 2007.
As Smith J went on to say, Kaye J refused to set aside the order of Byrne J, whether or not it was correctly brought under r 46.08.
Ground 3(d) asserts that Smith J, in discussing the appeal filed 6 March 2008 as an abuse of process, made the ‘erroneous finding’ that ‘the summons filed 21 February 2008 was a re-litigation of the application determined on 2 August 2006’. This is simply false. There was no such finding. His Honour held that both the summons filed 9 November 2007 and the appeal filed 6 March 2008 were an abuse of process for the reasons quoted above.
Thus, I have concluded that grounds 3(b) and 3(d) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
Secondly, Ms Winn challenges his Honour’s award of indemnity costs against her both in relation to the application before the Master and the appeal against her order. In my opinion, it was open to his Honour to decide, in the exercise of his discretion, that indemnity costs should be awarded given that he had found that both the initial application and the appeal were an abuse of process. Ms Winn has not shown that his Honour’s discretion miscarried.
Thus, I have concluded that grounds 4(a)(ii) and (iii), 4(b)(i) and (iii) (in part) and 5(a) (in part) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
Next, I turn to Smith J’s order dismissing Ms Winn’s summons of 21 February 2008 which needs to be considered together with his Honour’s order dismissing her appeal, notice of which was filed on 11 April 2006. One of Ms Winn’s main submissions was that his Honour dismissed her appeal from the order of the Taxing Master made on 31 January 2006 without hearing argument on it and without giving reasons. The first point to note is that Ms Winn’s counsel did address argument on the issue of whether the appeal from the Taxing Master should be allowed.[6] Secondly, despite the dispute about whether the payment of the $1,750 was appropriated by Ms Winn to the stay order before Blueprint appropriated it to another order, Smith J in effect treated the stay as having been lifted, without actually making that finding. This has to be the case, because, otherwise, the application by the summons of 21 February 2008 would have been dismissed at that point. Smith J was not sitting on appeal from Byrne J’s stay order. The application to Kaye J having failed, the only way the matter could proceed was either by successfully appealing Byrne J’s order to the Court of Appeal or by paying the $1,750 costs to lift the stay.
[6]T 5.6-9, 6.16-10.21, 12.5-9, 20.7-24.6, 25.20-28.15, 83.9-11.
Thus, everything in Smith J’s judgment from paragraph 31 on is concerned with the question of whether the appeal against the order of 31 January 2006 should be allowed when it was brought out of time and a further 31 months had since elapsed. Issues relevant to the exercise of the discretion in such a matter are the extent of the delay, the reason for the delay, the merits of the application and prejudice to the other party.
Smith J considered all of these issues, albeit he focussed on the extent and reason for the delay between the making of the order and the hearing before him, rather than that between the making of the order and the filing of the notice of appeal.[7] Presumably this was because he did not consider the latter delay alone would have been an insurmountable hurdle for Ms Winn. In his reasons, his Honour referred to Ms Winn’s ‘numerous delays’ adding up to ‘a long time’.[8] His Honour rejected the explanation given by Ms Winn for the delay in seeking to have her appeal brought on for hearing,[9] held that she had not demonstrated any merits in respect of her application to review the taxation of costs[10] and found that to allow opportunity for a review of the taxation at this stage would cause prejudice to Blueprint.[11]
[7]His Honour was aware that the appeal was out of time. See T 19.25-26.
[8][2008] VSC 522 [32]-[33].
[9][2008] VSC 522 [32]-[33].
[10][2008] VSC 522 [34].
[11][2008] VSC 522 [34].
Once again, nothing said by Ms Winn has persuaded me that there is any doubt about the correctness of this part of his Honour’s judgment. There had been considerable delay in bringing on for hearing the application for leave to appeal out of time from the Taxing Master’s order, in circumstances where such an application needed to be argued as soon as possible. There was a delay of two months in Ms Winn actually making the application, then a gap of nearly four months before the hearing which was not attributable to Ms Winn, but then a further delay of about 28 months after Byrne J had imposed the stay, including a delay of 16 months in payment of the costs and nearly another three months before the summons of 21 February 2008 was issued. Thus, Smith J was considering an appeal from an order made nearly three years ago. The question of delay was debated between Ms Winn’s counsel and his Honour.[12]
[12]T 3.4-10, 5.10-17, 7.12-30.
Smith J did not accept Ms Winn’s principal explanation for these delays, namely her ‘assertions of various physical and mental ailments including an allegation of chronic fatigue syndrome and other matters’. He pointed out that Ms Winn’s own conduct ‘put in doubt her claim of ill-health’ in that throughout the period she had shown ‘extraordinary energy and activity in preparing lengthy affidavits herself and filing numerous applications’.[13] The accuracy of this statement cannot be doubted.
[13][2008] VSC 522 [32]. See also T 7.31–8.3.
His Honour also held that Ms Winn’s evidence in support was ‘inadequate’.[14] Despite the criticism of Kaye J about ‘the medical material’ before him, there was no affidavits from Ms Winn or her mother’s treating doctors explaining what medical problems each of them was facing, and over what periods, thus laying the groundwork for a submission that the lengthy delays on Ms Winn’s part could be justified or explained.
[14][2008] VSC 522 [32]. See also T 8.5-13.
His Honour also pointed out that Ms Winn’s ‘explanations also do not extend to explaining why, having engaged solicitors from time to time, they were not instructed to advance her applications promptly or why she did not retain legal representation, if she was suffering ill health and unable to attend court’.[15] This is particularly the case where Ms Winn was attempting, at least for some of this time, to conduct litigation in Victoria from Queensland.
[15][2008] VSC 522 [32].
Turning to the question of merits of the whole application, Smith J set out the major point identified by Ms Winn’s counsel, namely that the Taxing Master should have taken steps to ensure that the costs were properly allocated between the Blueprint proceeding and the two Goodwin proceedings. His Honour held that this point was met by ‘the evidence of the taxation which shows that the Taxing Master approached the taxing of the costs bearing that very concern in mind’. This was a reference to the affidavit of Blueprint’s costs consultant, Antoinette Josephine Austin sworn on 22 September 2008 in a Federal Magistrates’ Court proceeding relating to Ms Winn’s possible bankruptcy and exhibited to the affidavit of Fiona Michelle Jenkins sworn on 14 October 2008. Mrs Austin was present throughout the taxation, whereas Ms Winn was not. Further, Ms Winn incorrectly submitted that Mrs Austin’s affidavit related only to the taxation of the trial costs. Whilst the bill in question was that for the trial alone, the part of Mrs Austin’s affidavit referred to by Smith J described the approach taken by the Taxing Master with respect to both the trial bill and the Court of Appeal bill.
Despite the argument by Ms Winn’s counsel that the result of the taxation showed that there were numerous items where there had been no allocation, I consider that the evidence to which his Honour referred justified his conclusion that:
There might be issues of detail here and there in the taxation but that is all and she [Ms Winn] has not demonstrated the sort of clear issue needed to have her application taken seriously.[16]
[16][2008] VSC 522 [34]. See also T 12.24–13.7, 13.27–17.27, 24.15–25.19, 81.9–82.22.
On the question of prejudice to Blueprint, Smith J pointed out that no proposal had been put forward for payment of the outstanding costs orders. His Honour specifically asked Ms Winn’s counsel about this.[17] If Ms Winn successfully applied to have the appeal against the striking out order of the Taxing Master heard, then Blueprint would be prejudiced in that the costs the subject of all of the subsequent costs orders would, in effect, have been thrown away, in circumstances where it appeared unlikely that they would ever be paid. Further, his Honour stated that granting the relief sought by Ms Winn would likely be accompanied by an order directing that the taxation review be conditional upon:
[17]T 19.6-8.
· Ms Winn paying all outstanding costs orders;
· Paying into court the sum originally taxed by the Taxing Master which would be held pending the outcome of any review.[18]
Yet, his Honour noted, ‘Ms Winn has not, through her counsel, made any offer of any such kind to date’.[19]
[18][2008] VSC 522 [35].
[19][2008] VSC 522 [36].
There was, therefore, undoubted prejudice to Blueprint in extending the time for the appeal to be heard after such a long delay, during which Blueprint had incurred substantial costs. His Honour correctly took that into account in deciding that he would not do so.
In my opinion, therefore, his Honour was not in error in dismissing the summons of 21 February 2008, which sought to re-activate the previously stayed appeal, and in dismissing the notice of appeal, which included the application for an order extending the time for Ms Winn to appeal.
Thus, I have concluded that grounds 1(a), 1(b) (in part), 1(d)(i), (ii) and (iii), 1(e) and 5(b) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success. Insofar as the order dismissing the notice of appeal filed on 11 April 2006 should be regarded as a final order and therefore these grounds are part of the appeal itself, then a fortiori I am not persuaded that they should be upheld.
Smith J also expressed ‘grave doubt’ about Ms Winn’s bona fides and found that this was:
an extreme example of a person misusing the law and the legal system to try to avoid her legal obligations. It would appear that Ms Winn has been engaged in a holding operation to delay having to pay the total of the taxed costs awarded against her. She has been accommodated a number of times and has had ample opportunity to seek the review that she now seeks. In the meantime, Blueprint has been delayed for a long time in recovering its costs and has been put to great expense in pursuing them. It is only now, faced with being made bankrupt, that Ms Winn has attempted to take the steps that she had to take to seek a review …[20]
Ms Winn has submitted that findings such as this resulted in procedural unfairness to her in that she was not informed that findings adverse to her would be made and that she was not given a fair or any opportunity to make submissions in relation to those matters.
[20][2008] VSC 522 [33]. See also T 10.31-11.9.
This submission cannot be sustained. As previously stated, Ms Winn was represented by counsel in the hearing before Smith J and her counsel on her behalf had every opportunity to respond to the criticisms made of her conduct by counsel for Blueprint and to answer his Honour’s questions relevant to these issues.
Whilst I accept Ms Winn’s submission that just because she has sought to review the taxation of Blueprint’s costs does not put her on trial, his Honour’s comments in this regard were legitimately directed towards, and relevant to, the discretionary issues he was considering.
Thus, I have concluded that grounds 1(g)(ii) and (iii) and 1(i) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
The next order of Smith J which is challenged by Ms Winn is the order that she pay indemnity costs in respect of the dismissal of her summons dated 21 February 2008. Where it has been found that there has been lengthy unexplained delays in bringing a matter on for hearing and that the applicant has been misusing the law and the legal system to try to avoid her legal obligations, in particular possible bankruptcy, it seems to me that a judge is entitled in the exercise of his or her discretion to regard the application as one appropriate for an order for indemnity costs. Further, counsel briefed to hear judgment on behalf of Ms Winn decided after reading the judgment not to seek to argue against the award of indemnity costs.[21]
[21]T 94.22-29.
Thus, I have concluded that grounds 4(a)(i), 4(b)(iii) (in part) and 5(a) (in part) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
Next, Ms Winn complains about Smith J ordering her to pay the costs of the notice of appeal filed on 11 April 2006. Contrary to her submissions, Smith J did consider whether he should allow Ms Winn’s appeal against the order of the Taxing Master made on 31 January 2006. He explained why he was not prepared to do so. Whilst his Honour did not expressly say so, it is obvious that his Honour then ordered that Ms Winn pay these costs because her application had been unsuccessful. It was simply an example of the usual rule that costs follow the event. Counsel for Ms Winn did not oppose such an order when the matter was raised at the handing down of the judgment.[22]
[22]T 96.28-30.
Thus, I have concluded that grounds 4(b)(ii) and 5(c) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
Finally, I wish to say something about two other aspects of Ms Winn’s submission that she was denied procedural fairness. First, Ms Winn complains that his Honour permitted Blueprint to rely on a court book, a chronology and two other lists. In fact, there were three lists handed up – one of all of the exhibits to the affidavits,[23] one of previous costs orders[24] and one of the dates on which various solicitors had been retained by Ms Winn in this dispute.[25]
[23]T 43.8-12.
[24]T 52.15-16.
[25]T 89.8-12.
Whilst there should be no derogation from the principle that a party should not send material to a judge without earlier or at the same time providing the same material to the other side,[26] in the end there was no procedural unfairness to Ms Winn. The court book was simply a logical ordering of all of the affidavits and exhibits on both sides relevant to the applications before his Honour. Presumably, Ms Winn’s counsel’s brief should have included all of those affidavits and exhibits. It appears from the transcript that when Ms Winn’s counsel pointed out that he had not been supplied with a copy of the court book, he was allowed to look at Blueprint’s counsel’s copy.[27] Copies of the chronology and the lists appear to have been handed to Ms Winn’s counsel and no objection was taken to his Honour using them as aide-memoires. In his reply, counsel for Ms Winn referred to and made submissions in respect of both the list of previous costs orders[28] and the list of Ms Winn’s solicitors.[29]
[26]Dominion Capital Pty Ltd v Pico Holdings Inc (2001) 4 VR 195 [14] (Habersberger J).
[27]T 13.9-18, T 77.9-18.
[28]T 75.23-76.13.
[29]T 89.15-90.20.
Secondly, Ms Winn complains that the Court:
failed to give the appellant notice of handing down of judgment and so failed to give her the opportunity (i) to instruct her solicitors, (ii) to attend court from interstate, and (iii) to give instructions for, and to make, submissions in relation to costs.
This complaint is without merit. As the transcript shows, counsel for Ms Winn attended the handing down of judgment. He neither sought to make any submissions about costs nor to seek to have the matter stood over to another day so that he could seek instructions about the orders proposed by his Honour.
Thus, I have concluded that grounds 1(g)(i) and (iv) of the Substituted Proposed Notice of Appeal have no reasonable prospect of success.
The few remaining grounds of appeal are, in my opinion, also without any reasonable prospect of success. Grounds 6, 7(b) and 8 are totally misconceived and irrelevant. Grounds 1(f), 1(g)(v), (vi) and (vii)(a)i, and 2 are so generalised and lacking in particulars that it is impossible to take them into account. During the hearing Ms Winn was unable to point to any of these so-called ‘factual errors’.
All of the above conclusions also mean, in my opinion, that no substantial injustice will be caused to Ms Winn if the decision of Smith J is allowed to stand.
Conclusion
In my opinion, therefore, the application by summons for leave to appeal against the orders of Smith J made on 28 November 2008 should be dismissed.
In the circumstances, it is now unnecessary to consider Blueprint’s application for security for costs. In my opinion, the appropriate order is that Blueprint’s summons filed on 9 September 2009 be dismissed without any adjudication on the merits.
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