Windsor v Sydney Medical Service Co-operative Ltd (No. 3)

In the case of Windsor v Sydney Medical Service Co-operative Ltd, Dr Windsor sought to set aside orders made on 17 March 2008 that struck out her statement of claim and ordered her to pay costs to SMS. She also sought to dismiss an earlier motion filed by SMS on 13 June 2007, and to set aside a certificate of taxation issued on 18 July 2008. Dr Windsor sought these orders, along with payment of money and costs, from the Federal Court of Australia. The central legal issues the court had to decide were whether Dr Windsor was precluded from seeking to set aside the orders of 17 March 2008 due to an analogous principle to estoppel or waiver, and whether the certificate of taxation should be set aside because it was issued in breach of the Federal Court Rules.

The court found that there was no analogous principle to estoppel or waiver that would prevent Dr Windsor from seeking to set aside the orders of 17 March 2008. Even if such a principle existed, it would not run against statute. The court also found that the order striking out the statement of claim was interlocutory and did not finally determine the rights of the parties, meaning that SMS was not entitled to have a bill of costs taxed until the principal proceeding was concluded. Therefore, the certificate of taxation was issued in breach of the Federal Court Rules. However, the court declined to set aside the orders of 17 March 2008 or the certificate of taxation, as doing so would not facilitate Dr Windsor's further prosecution of the proceeding and would not prejudice her in any way.