Winn v Bennett and Philp Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Winn v Bennett & Philp Pty Ltd [2019] QDC 16

PARTIES:

JULENE WINN
(applicant)

v

BENNETT & PHILP PTY LTD
(respondent)

FILE NO/S:

66/2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 February 2019

DELIVERED AT:

Maryborough

HEARING DATE:

16 November 2018

JUDGE:

Reid DCJ

ORDER:

(I)        Application to set aside orders made on 13 August 2018 dismissed

(II)       Subject to submissions to the contrary, the applicant pay the respondent’s costs of and incidental to the application, including reserved costs, to be assessed on the standard basis.

CATCHWORDS:

CASES: 

Application to set aside order for security of costs – application for leave to appeal Magistrate’s order – whether power to order security for costs – consideration of alternative powers to order security – whether to set aside earlier order – whether applicant absent – relevant considerations – determination not to set aside earlier orders

Bell v Bay-Jespersen [2004] QCA 68

Brooks v Worchild [2006] QCA 93

CBA v Nagamuthu [2002] QCA 484

Queensland Uniform Civil Procedure Rules 1999 (Qld) rr 667, 668, 671, 772, 743A

COUNSEL:

J Winn (applicant) in person
S R C Slasberg (solicitor) for the respondent

SOLICITORS:

Applicant in person
Bennett & Philp Solicitors for the defendant

Introduction

1. This is an application pursuant to r 772(4) and/or r 667(2)(a) of the Queensland Uniform Civil Procedure Rules 1999 to set aside certain orders (being order 2 and 3) made on 13 August 2018 by another Judge in this court, when ordering that the applicant provide security for courts of the appeal.

Background

1. The applicant engaged the respondent, a firm of solicitors, to act on her behalf in proceedings in the Federal Court in relation to an application concerning her bankruptcy.  She was unsuccessful with that application.  Subsequently the defendant delivered a bill of costs in the sum of $3,077.14 which the applicant paid.  Almost 12 months later she sought to have the costs assessed.  That application was opposed.

1. The matter came before the Magistrates Court on 16 June 2017. It was adjourned, ultimately to 10 October, to enable the applicant to file additional material. On the day of the resumed hearing proceedings were listed for 9.00 am. The applicant sent an email to the court, at 8.49 am, advising she was ill and unable to attend court. She sought an adjournment. The learned Magistrate indicated she was not prepared to adjourn the matter, especially in circumstances where the applicant had provided written submissions and filed material on which she relied. Having refused to adjourn the matter Her Honour reconsidered the written material and submissions and held that the application to appoint an assessor should fail. The learned Magistrate was of the view that although the matter had initially been adjourned so the applicant could file further material to comply with r 743A(5) of the UCPR the applicant in her material and submissions did not address the matters necessary in order for the court to exercise its discretion to order…