Winn v Blueprint Instant Printing Pty Ltd

[2011] HCATrans 317

[2011] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M32 of 2011

B e t w e e n -

JULENE WINN

Applicant

and

BLUEPRINT INSTANT PRINTING PTY LTD ACN 005 267 096

Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON THURSDAY, 10 NOVEMBER 2011, AT 10.33 AM

Copyright in the High Court of Australia

MS J. WINN appeared in person.

MR T.J. SCOTTER:   Your Honour, I appear on behalf of the respondent.  (instructed by Herbert Geer)

HIS HONOUR:   Now, Ms Winn, there is a summons of 31 August which has been filed – just one moment, let me make sure – I might be getting the wrong file.  You have a summons of 14 October.  Is that right?

MS WINN:   Yes, your Honour, and it is dated 31 August.  It was actually presented.

HIS HONOUR:   Yes, by which you seek leave to file an amended application for leave, leave to file an amended written case and leave to file an amended notice of appeal.  Is that right?

MS WINN:   That is in M32, your Honour.

HIS HONOUR:   Yes, which is the matter, I think, with which we are dealing at the moment.  Now, you have filed an affidavit sworn on 8 November in which you say, amongst other things, that you asked for a later date for hearing of this summons.  Is that right?

MS WINN:   I had asked for a later date, your Honour.  I am not relying on that today.

HIS HONOUR:   You are not, very well.  Then the question of leave to file an amended application for special leave, how long do you seek?

MS WINN:   I was contemplating 2 December, your Honour, because I have actually been working on the documents when I have been able to.  It was a matter of just obtaining representation to look at those documents.  If I had been able to finish today or whenever this hearing was listed it would have been sent to the Court in advance so that I could show the Court that it was not a case of needing months and months.  Now, I have been working on the documents.

HIS HONOUR:   When would your amended written case be available?

MS WINN:   I was contemplating the same date, your Honour – 2 December.

HIS HONOUR:   Yes, and likewise the notice of appeal?

MS WINN:   Yes, your Honour.

HIS HONOUR:   Why should you have any extension beyond 10 pages?

MS WINN:   The written – the factual background was quite extensive.  One of the grounds of appeal in this matter is that there has been, it is submitted, a miscarriage of justice and it is not possible to show that to the Court without including the background.

HIS HONOUR:   Am I right in understanding that this relates to a bankruptcy notice where as long ago as 9 November 2007 you sought to set aside the bankruptcy notice.  Is that right?

MS WINN:   That particular bankruptcy notice was – it was quite a long time ago, your Honour.  I cannot remember the actual date of ‑ ‑ ‑

HIS HONOUR:   It is not the bankruptcy notice that founded the orders which are the subject of matter M69?

MS WINN:   No, it is not, your Honour.

HIS HONOUR:   Why do you need more than 10 pages to explain anything about that case, about the ‑ ‑ ‑

MS WINN:   What I was intending to suggest, your Honour, was that the same – the one factual background be considered for both matters if that is possible.  If not, then I probably – not really wanting to ask for beyond 10 in both of them.  If an extended factual background can be permitted for one of the applications, then it would only require a shorter addition to that if those original facts could be considered in the second application.  If they cannot be ‑ ‑ ‑

HIS HONOUR:   Ms Winn, I am not going to bargain with you.  You have this opportunity to tell me why more than 10 pages is necessary to explain that you have a point and it should be the subject of special leave to appeal to this Court.  It is far from readily apparent to me why that should be so.

MS WINN:   I beg your pardon, your Honour, could I just ask again ‑ ‑ ‑

HIS HONOUR:   It is far from readily apparent to me why you need more than 10 pages to explain what is the point which you say is worthy of special leave to this Court.

MS WINN:   Your Honour, I think I have missed something there.  It is not your Honour’s fault.  I asked for the entire application to be beyond 10 – there are actually a significant number of grounds of appeal.  I am aware that the High Court is interested in very important matters that have wider

application or that relate to miscarriage of justice but there are a significant number of grounds of appeal. 

In order to even state those it – I think my application for special leave was three or four pages.  With amendment it may be possible to reduce that, leaving out some of the grounds of appeal, but I would certainly be arguing that indeed the number of grounds of appeal may, in fact, be argued as suggesting that the judgment was unsound because many of those points made in the appeal were contrary to the statutory rules, contrary to the relevant legislation and also contrary to the prevailing precedents operating in Victoria in relation to these matters so it seemed to me there were a number of significant grounds of appeal which took up a number of pages.

It was the factual background which took up the number of pages.  I can reduce that, but I was not convinced that the matter would still come in under 10 pages but I am aware that there is a need to be succinct and that is what I have been attempting to do in revising these papers over the last few months when I have been able to.

HIS HONOUR:   Yes.  Is there anything else you want to say in support of the application to file an amended application, amended written case and amended notice in matter M32?

MS WINN:   Each of the documents was filed within time.  It was the circumstances in which I have been functioning that have made it difficult for me to have those matters in a state that I was happy with.  I was aware that they were too long, that they were verbose and that I really needed to improve them and I am capable of doing that.  I just needed extra time.  I have a background of bereavement and a background of inconsistent health this year and in addition to that the second matter came up in May and June and I was required to deal with that as well following the making of a sequestration order which has taken its own toll as from 26 November last year.

So having the second matter, which also was important to have rectified, from my perspective certainly exacerbated my ability to be able to complete M32 in a satisfactory way, but the documents were filed in time.  I sought leave to improve them to the satisfaction of the Court.

HIS HONOUR:   Yes, thank you, Ms Winn.  Mr Scotter, the application for special leave is made, I think, by a litigant in person and is, I would have thought, not a matter which ought to have been served on your party.  Is that right?

MR SCOTTER:   That is right.  The respondent does not know, for example, whether the written case has been filed in time because it has not been served. 

HIS HONOUR:   Nor should it have been served, yes.

MR SCOTTER:   I agree with your Honour, that is right, yes.  Ms Winn speaks of the amended case.  There is what appears to be some form of amendment exhibited to her affidavit of 2 November.  I am not sure if that is what is intended to be filed or a shortened version of it.  I do not know.

HIS HONOUR:   My question becomes whether, in effect, you have any standing to oppose her application.  I understand you may have – or your clients, more accurately, may have a considerable practical interest in the outcome, but should I hear you at all in response to the application?

MR SCOTTER:   I would make the obvious point, obviously, your Honour.  We have responded to the summons and we are therefore required to attend in relation to it.  I take your Honour’s point in relation to the form of the case.  To a certain extent because of the way the Rules work it is a matter for the Court before it becomes a matter for my client.  I suppose the only other matters I would draw – and I cannot advance that any further than that.  The only other matters I would draw to your Honour’s attention were that as your Honour has correctly identified, this application for special leave is completely futile because it is not the bankruptcy notice which founded the sequestration order and second ‑ ‑ ‑

HIS HONOUR:   No doubt that is your client’s view, but it is perhaps not a matter into which we should embark at all, I think, Mr Scotter. 

MR SCOTTER:   No, I understand, your Honour.  Really, the only other point as your Honour correctly identifies, is a practical one.  My client is yet again here expending further costs to which it has little or no chance of recouping and it says that the grounds which are set out in the affidavit, which again has been served 2 November for the reasons why – and a proper case has not been filed, ie, the medical circumstances which are relied upon which has simply been created by the applicant is inadequate and in fact the list itself only refers to, I think, three appointments and the one appointment notice within the relevant period, but in my submission it is not adequate to support the application made.  Having said that, I can understand if the Court were to be then presented with a shorter written case there would be some sense in that as well, but I have nothing further in respect of that, your Honour.

HIS HONOUR:   Yes, thank you, Mr Scotter. 

Ms Winn, I am minded to make orders granting you leave to file an amended application for special leave, an amended written case and an amended notice of appeal on or before 4 pm Australian Eastern Summer Time – so Melbourne time – on 2 December.  I am not minded to grant you any extension of the length of your written case.  The amended written case must comply with the Rules.  I am minded to make the costs of the application for these extensions costs in the application for special leave.  Is there anything further that you would say in answer to those proposals?

MS WINN:   No, that is fine, your Honour.

AT 10.46 AM THE MATTER WAS ADJOURNED