Windsor v Sydney Medical Service Co-Operative Ltd

The matter in question is a dispute between Dr Windsor and Sydney Medical Service Co-Operative Ltd (SMS), which was brought before the Federal Court. The central issue revolves around an application for summary judgment made by SMS and a subsequent motion filed by Dr Windsor to set aside orders made in 2008. Dr Windsor's motion sought to overturn the 2008 orders and the associated certificate of taxation, which quantified the costs SMS was entitled to claim. The primary Judge dismissed the motion, finding that setting aside the orders would not alter the legal basis for the payment of costs, and that there was no basis for SMS to repay the costs received from Dr Windsor.

The legal issues before the court were whether the primary Judge erred in declining to set aside the 2008 orders and the certificate of taxation. Dr Windsor argued that the orders should be set aside as she had not appealed the 2008 judgment but instead filed an amended pleading. Additionally, she contended that SMS was not entitled to have its bill of costs taxed until the principal proceedings were concluded. The court had to determine if the primary Judge's decision involved an exercise of discretion and whether there was sufficient doubt in the decision to warrant an appeal.

The primary Judge found that setting aside the 2008 orders would serve no practical purpose, as Dr Windsor had not appealed the judgment and had proceeded with an amended pleading. Furthermore, the court held that SMS was not entitled to have its bill of costs taxed until the conclusion of the principal proceedings, but the payment of costs had already been made prior to the filing of the amended pleading. The primary Judge concluded that setting aside the certificate of taxation would not reverse the legal basis for the payment of costs or provide a basis for SMS to repay the costs received from Dr Windsor. Consequently, the primary Judge dismissed Dr Windsor's 2009 motion with costs.

Dr Windsor has applied for leave to appeal the interlocutory judgment. Both parties agree that the primary Judge's decision involved an exercise of discretion, and Dr Windsor must demonstrate that there is sufficient doubt in the decision to warrant an appeal and that a refusal of leave would result in substantial injustice.