Winn v Blueprint Instant Printing Pty Ltd
[2008] VSC 522
•28 November 2008
| IN THE SUPREME COURT OF VICTORIA | ||
| AT MELBOURNE | Not Restricted | |
COMMON LAW DIVISION
No. 4215 of 2002
| JULENE MARGUERITE WINN | Plaintiff |
| v | |
| BLUEPRINT INSTANT PRINTING PTY LTD | Defendant |
---
JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2008 | |
DATE OF JUDGMENT: | 28 November 2008 | |
CASE MAY BE CITED AS: | Winn v Blueprint Printing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 522 | |
---
Practice and Procedure – costs – taxation – attempted appeal from Master’s order dismissing appeal from order striking out review application - further application for a review – appeal and application dismissed – indemnity costs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Gillies | Davies Moloney |
| For the Defendant | Ms L Barrett | Herbert Geer and Rundle |
HIS HONOUR:
Ms Winn has issued 2 applications
· a summons filed 21 February 2008 in which she seeks an order that the taxing Master conduct a review of taxation upon the plaintiff’s application filed on 23 November 2005
· A notice of appeal filed 6 March 2008 in which she seeks a rehearing de novo of the application filed on 9 November 2007 pursuant to rule 46.08 to set aside the Taxing Master’s order made on 31 January 2006 striking out the application for review of taxation.
These proceedings are the latest proceedings issued in a matter that commenced some years ago.
In 2002, Ms Winn was the unsuccessful applicant in three matters in which she sought leave to appeal from orders made by VCAT. On 2 August 2002 Byrne J dismissed her application for leave to appeal with costs. She sought leave to appeal to the Court of Appeal but it refused her leave, ordering costs against her on 29 November 2002.
On 9 November 2005 Master Bruce taxed the costs of the respondent Blueprint Instant Printing Pty Ltd (“Blueprint”) in relation to the hearing before Byrne J in the sum of $17,139.20 and in respect of the application to the Court of Appeal in the sum of $12,716.95. Ms Winn appeared in person at the taxation of costs hearing but applied for an adjournment and a stay of the proceeding. She has deposed that she was unwell at the time. Mr Lassen, the solicitor for Blueprint, has deposed that the reason Ms Winn sought the adjournment was that she required the advice and representation of a cost consultant and had been unable to engage one. I note that she had been on notice of the hearing since 26 July 2005 and had not notified the other party until 7 November 2005 that she sought an adjournment. He added that on that earlier date she had sought an adjournment on the basis of ill-health.[1] Ms Winn also told the Taxing Master that she had sent the letter requesting a taxing of costs in error and that she had only sent the letter because she needed to know what the cost claim was so she could bring a claim against her former solicitors. She also asserted that there had been tampering with the court documents in that the court documents were in preceding 4215 in which Blueprint was the respondent when they should have been documents in proceedings 4216 and 4217 in which Rod Goodwin was respondent. The Taxing Master ruled that there was no application before him for a stay and declined to deal with that issue. As to the adjournment application, the Taxing Master stated that there was no basis for the application. Among other things, however, he stated that given the allegations made by Ms Winn in relation to the costs of the two Goodwin matters, he proposed to deal with each item in each bill on an item by item basis. He informed Ms Winn that it was a matter for her as to whether she stayed or not. Ms Winn said that in those circumstances she saw little point in staying and she left. I accept the evidence of the respondent’s cost consultant Ms Austin that the taxation was conducted as foreshadowed by the Taxing Master. In particular, where an item of cost related solely to Blueprint, the costs claimed were generally allowed in their entirety. Where, however, there was a cost for services for the matters, involving Mr Goodwin as well as Blueprint, such as an appearance at court, the costs were apportioned.
[1] I note that in her affidavit of 20 June 2008 she included dates during which she “had had ill-health/certified incapacity”. She identified 17 to 28 October 2005 and 31 January to 13 February 2006 but not the time when the costs were taxed.
On 23 November 2005, Ms Winn applied for a review of the taxation of costs pursuant to rule 63.56 (1)(v). This was apparently filed in time. On 13 December 2005 she was unsuccessful in her application before the Taxing Master for disclosure of documents and was ordered to pay the costs of Blueprint. On 27 January 2006, she wrote to the Taxing Master stating that for medical reasons she was unable to attend court in Melbourne for a callover of the matter on 31 January 2006 and provided further information about obtaining certificates of attendance in a fax of 30 January 2006.
At the callover on 31 January 2006, the application was struck out by the Taxing Master upon the non-attendance of the applicant. In the order, the Taxing Master noted that “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”. The order made was that the application to review be struck out with costs.
On 9 February 2006, Ms Winn wrote to the Associate to the Taxing Master seeking the date of the Review Hearing. In response, she received on 10 February 2006 a copy of the order. It was not until 11 April 2006, however, that Ms Winn contacted the Associate to the Taxing Master asking in essence what procedure existed that would enable her to have the decision made by the Taxing Master set aside. On 11 April 2006 she was advised that in view of the time that have elapsed she would need to apply to a judge for an extension of time for a review. No satisfactory explanation has been offered by her for the elapsing of that time. Here, as elsewhere, she has sought to rely upon the general allegation of ill-health supported by copies of usually not very helpful medical certificates. Accepting them on their face, she did have some basal cell carcinomas removed at about that time but it is unclear why they had to be done when they were and there is no suggestion that she needed to be hospitalised.
Ms Winn has deposed that she took the Associate’s explanation to mean that she needed to have the matter dealt with by a judge. She states “On that basis on 11 April 2006 I filed an appeal against the Order of the Taxing Master.” I do not accept that attempted explanation.
On 11 April 2006, she filed a Notice of Appeal from the order of 31 January 2006. This matter was set down for hearing on 3 August 2006. Ms Winn sought an adjournment on the grounds of ill health. The application came before Byrne J on 3 August 2006. On that day he ordered that the application be adjourned to 21 August 2006 in the Practice Court. He also ordered, however, that Ms Winn pay Blueprint’s costs of the day fixed in the sum of $1750.00; and that, if those costs were not paid by 17 August 2006, the adjourned date be vacated and the application be stayed until paid or until further order.
The sum of $1750 was not paid by 17 August 2006 and, at the request of the solicitors for Blueprint, the hearing date 21 August 2006 was vacated. Ms Winn did not appear in court on that day.
Over seven months later, in April and May 2007, there was an exchange of emails and faxes which included indications by Ms Winn of her intention to forward to the solicitors for Blueprint papers relevant to a review of taxation of costs.
On 25 June 2007 Blueprint’s solicitors caused a bankruptcy notice to be issued by the official receiver. The debt alleged in this notice was the costs ordered to be paid and which had been taxed by the Taxing Master.
By summons dated 20 July 2007, Ms Winn applied to have the 2006 order of Byrne J set aside. She also sought an order extending the time for bringing the notice of appeal and applied to have that appeal heard with the summons.
Blueprint had difficulty achieving service of the bankruptcy notice and on 6 September 2007 filed an application for substituted service of the Bankruptcy Notice.
On 19 September 2007 Ms Winn’s application by summons relating to the order of Byrne J was adjourned to 1 October 2007, it not having been served on Blueprint at that point. On 25 September 2007, in accordance with the order made by Registrar Moore on 21 September 2007, Blueprint forwarded a Bankruptcy Notice by way of substituted service to Ms Winn. On 27 September 2007 Ms Winn’s summons concerning the orders of Byrne J was forwarded to the solicitors for Blueprint. On 29 October 2007 Ms Winn raised objections concerning the bankruptcy notice and sought its withdrawal by Blueprint.
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. He heard the application and ruled on it on that day. In his reasons, his Honour referred to the history of the matter including the foregoing matters. His Honour noted that the application to set aside the order of Byrne J of August 2006 was made pursuant to order 46.08. His Honour was troubled as to whether that rule applied in the circumstances of the matter before him, but did not have to resolve that matter because in his view the application had to fail in any event. In brief his reasons were:
·The inordinate delay on the part of the applicant in making her application to set aside the order of Byrne J. His Honour emphasised the situation that parties wishing to have an order set aside must act expeditiously and there had been delay of the order of 12 months. In his view that was sufficient in itself to warrant refusal of the application;
·The application was without merit. The stay orders were made on an application for adjournment on material which his Honour described as “exiguous”. No adequate basis had been shown why the order ought not to have been made against the applicant for costs on that day;
·His Honour also considered that no basis had been made out for setting aside the order made by Byrne J, the matter being stayed unless and until the costs were paid.
As his Honour noted the result of refusing the application to set aside Byrne J’s orders of August 2006 was that the appeal and application for leave to extend the time of appeal from the order of the Master dated 31 January 2006 was stayed. Thus those orders were still in operation.
I note that Ms Winn was present during the hearing before Kaye J.
Undeterred, by letter dated 22 October 2007, Ms Winn wrote to the Associate to the Taxing Master requesting that the application for review of taxation filed on 23 November 2005 be re-listed for hearing. After setting out the history of the matter as she saw it, she commented
“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 letter concluded with a request that the Associate inform her as to what action she should take to have the Review finally proceed.
By letter dated 24 October 2007, the Associate to the Taxing Master advised Ms Winn that it was inappropriate for a party in a proceeding before the Court to correspond directly with the court without providing the other party with a copy of the correspondence and that if she wished to make an application that it needed to be done properly in open court with any party affected being notified. The letter concluded stating that a copy of her letter had been sent to Herbert Geer and Rundle, the solicitors for Blueprint.
It appears that the letter to Herbert Geer and Rundle from the Supreme Court was not received by them until 2 November 2007. On that day, Herbert Geer and Rundle wrote to Ms Winn stating, inter alia, that her assertion that an appeal were still pending was incorrect. The letter pointed out that not only had the appeal been stayed by Byrne J on 2 August 2006, her application to set that order aside had been dismissed with costs on 1 October 2007.
Notwithstanding Kaye J’s indication that her past inordinate delay from the making of Byrne J’s order in August 2006 was reason enough to defeat her application before him, she prepared to challenge orders made in November 2005 and January 2006. Thus, on 9 November 2007 Ms Winn caused to be issued a summons seeking to set aside Master Bruce’s orders of 9 November 2005 and 31 January 2006. This was not served on Blueprint for some time and the first notice received by its solicitors was a letter from the Deputy Registrar of this court dated 22 November 2007 to Blueprint advising it that its application listed for 28 November 2007 before the Taxing Master would now be heard before the Master in Court 2. By letter dated 26 November 2007, Herbert Geer and Rundle wrote to the Deputy Registrar setting out the history of the matter, stating that the application was not its application and submitting that the application was incompetent and should not proceed. It also submitted that it was entirely inappropriate for an application to be filed on 9 November 2007 and not served until just before the hearing. By letter of the same day, Herbert Geer and Rundle forwarded its correspondence with the Supreme Court to her and requested her, as had been previously requested in the correspondence, that if she was going to write to the Supreme Court or make applications she send copies of any correspondence to Herbert Geer and Rundle.
On 4 December 2007, Ms Winn served Blueprint with the summons dated 9 November 2007 in which she sought to set aside Master Bruce’s orders of 9 November 2005 and 31 January 2006.
Presumably, to try to overcome the effect of Byrne J’s 2006 order, on about 30 November 2007, Ms Winn forwarded a cheque drawn on Westpac for $1750.00 to Blueprint. She did not identify the debt to which this payment should be allocated. Blueprint received the cheque on 5 December 2007, the day after being served with the 9 November 2007 summons. At the time of the payment, there were 10 costs orders outstanding in favour of Blueprint, six of them in the current proceeding and at least one other requiring payment of $1750.00. On 7 December 2007, Herbert Geer and Rundle wrote to Ms Winn stating that the cheque for $1750.00 was being accepted by Blueprint as partial payment of the first costs order made on 2 August 2002. I note that it was not until a letter dated 18 December 2007 that Ms Winn asserted that the payment had been made in respect of the 2006 order of Byrne J.
Two months later, while the 9 November proceedings were still on foot, Ms Winn issued a summons on 21 February 2008, seeking an order that the Taxing Master conduct a review. It was held in abeyance by her until June 2008.
In the meantime, Ms Winn’s summons of 9 November 2007 was heard on 29 February 2008 by Master Daley. She dismissed it, awarding Blueprint costs. The question whether those costs should be on an indemnity basis was left open for the determination of the judge hearing the appeal from that order.
On 6 March 2008, Ms Winn finally issued a notice of appeal seeking to appeal the orders of Master Daley made on 29 February 2008. It too was not served for some months.
On 18 June 2008 Ms Winn served Blueprint with the summons dated 21 February 2008 in which she sought an order that the Taxing Master conduct a review. She also served the notice of appeal dated 6 March 2008.
The 9 November summons before Master Daley and the notice of appeal from her decision on it seek 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. Master Daley had no option but to dismiss the proceedings. Indemnity costs should be awarded against Ms Winn in both those proceedings.
The other proceeding, the summons of 21 February 2008, may be seen as an application made in response to the 2006 stay order of Byrne J which operates subject to payment of $1750.00 “or further order”.
I proceed on the basis that, there being no time limit in his Honour’s order for payment of the $1750.00, the fact that Ms Winn waited 15 months to pay the amount of $1750.00 does not prevent the payment complying with the order. But she has the difficulty that she did not appropriate that payment expressly as a payment pursuant to the relevant order. There were in fact other orders which acquired payments of the same amount. Not having appropriated the payment to a particular order, she cannot now complain that Blueprint did not appropriate that payment to the order which she now seeks to have lifted to have a review conducted of the original taxing decision. Thus strictly speaking, the stay applies and she needs an order lifting that stay. Alternatively, if the stay was lifted by the payment, she needs an order re-listing her review application in any event. She attempts to achieve those results in her summons seeking an order for a review of the taxation.
Ms Winn is seeking a dispensation from the court. In normal circumstances, it would be necessary to consider whether the application has any merit, her explanations for not having sought this remedy for nearly three years and whether and to what extent the granting of the application would cause unfair prejudice to Blueprint.
Ms Winn faces a fundamental problem on the first two issues because her conduct of the matter casts grave doubt on her bona fides generally. She is a qualified lawyer. Counsel on her behalf asserted, however, that she is not a practitioner and lacks practical experience. Counsel referred to this as the explanation for her “struggle” with the legal processes (6), together with ill‑health and her living in Queensland. This argument sits ill with her practice of describing herself in affidavits and in correspondence with the court as “Barrister-at law” and other professional descriptions.[2] The documents in this matter also reveal that she has had chambers at Level 3 Quay Central, 95 North Quay, Brisbane. She, in any event, shows a ready facility for producing court documents and conjuring up applications of different kinds known to the law. She is plainly an intelligent person, and from time to time has had the practical assistance, and presumably, the advice of lawyers; Garland Hawthorn and Brahe (February 2002 -- May 2002), Baker and Armstrong (September 2002), Brian Ward and Partners (July and August 2005), White Cleland (December 2007), McNab McNab and Stark (March 2008) and Davies Maloney (June 2008 to the present). Generally she appears to have not had legal assistance when she decides to issue proceedings but, with her legal training and all these years of litigation, will have acquired such experience that she can no longer expect an explanation of lack of practical experience to be accepted. After the decision of Kaye J, she would have known that the 9 November 2007 application before Master Daley would be dismissed with costs.
[2]E.g.”barrister” and “lawyer”
Ms Winn’s principal explanation for her numerous delays over the years, including her delays of
· nearly two years in advancing the appeal,
· almost 16 months in making the payment ordered by Byrne J and
· almost three years in formally seeking the re-fixing of a review of the costs taxation
is principally based upon assertions of various physical and mental ailments including an allegation of chronic fatigue syndrome and other matters. I note, however, that throughout the period she has shown extraordinary energy and activity in preparing lengthy affidavits herself and filing numerous applications. Her own conduct puts in doubt her claim of ill-health. Her evidence in support is inadequate. Her 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.
The history of this matter in fact reveals 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 - namely, to comply with the order of Byrne J by paying the amount fixed costs and seeking an order for a review.
Whether her claim has any merits or not, the court should not assist her. The reality is, however, that she has not demonstrated any merits. The major point identified by counsel for her, that the taxing Master should have taken steps to ensure that the costs were properly allocated between Blueprint and Goodwin, is 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. There might be issues of detail here and there in the taxation but that is all and she has not demonstrated the sort of clear issue needed to have her application taken seriously. Further, to allow the opportunity for a review of the taxation at this stage would be likely to result in further costs being incurred by Blueprint and no proposal has been put forward that would enable that prejudice to be addressed. Further, no proposal has been put forward for payment of all outstanding cost orders at this point.
If my assessment of the merits is incorrect, and proceeding on that assumption, the delays and costs caused by Ms Winn and the absence of satisfactory explanations for her conduct, would require that any order directing a review of the taxation be conditional on
· 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.
I note that Ms Winn has not, through her counsel, made any offer of any such kind to date.
The applications before me should be dismissed with costs, such costs to be paid on an indemnity basis. As noted above, the costs reserved by Master Daley should also be paid by Ms Winn and paid on an indemnity basis.
---
6
0
0