Winn v Blueprint Printing Pty Ltd - [2007] VSC 397

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4215 of 2002

JULENE WINN	Applicant
v
BLUEPRINT PRINTING PTY LTD (ACN 005 267 096)	Respondent

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2007
DATE OF JUDGMENT:	1 October 2007
CASE MAY BE CITED AS:	Winn v Blueprint Printing Pty Ltd
MEDIUM NEUTRAL CITATION:	[2007] VSC 397

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PRACTICE AND PROCEDURE – Application to set aside previous order for costs in absence of applicant – Previous order granting adjournment at request of applicant – Whether Rule 46.08 applies – Delay – Application without merit – Application to set aside costs order refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Julene Winn appeared in person
For the Respondent	Mr D. Bailey	Herbert Geer & Rundle

HIS HONOUR:

This is an application made by the applicant/appellant by summons dated 20 July 2007. By that summons, the applicant firstly applies for an order that the order of Byrne J made in August 2006, which I understand to be 3 August 2006, be set aside. If that order is made, she also applies for orders extending time for bringing the notice of appeal, which is dated 11 April 2006, and applies to have that appeal heard before me.

However, it is the first part of the summons which must be disposed of first. That relates to the order of Byrne J of 3 August 2006. By that order, his Honour ordered that the plaintiff's application, which I understand to be her appeal, be adjourned to 21 August 2006 in the Practice Court; that the plaintiff pay the defendant's costs of the day fixed in the sum of $1,750; and that if those costs were not paid by 17 August 2006, the adjourned date be vacated and the application be stayed until they are paid or until further order. The applicant has not paid the respondent's costs fixed by Byrne J. Accordingly, her application for leave to extend the period of time within which to bring her appeal and her appeal are stayed unless I set aside the order made by Byrne J on 3 August.

This matter has a very long history. Relevantly, it can be summarised as follows. In this and two related matters, the applicant sought leave to appeal orders made by the Victorian Civil and Administrative Tribunal on 13 September 2001. On 2 August 2002, Byrne J dismissed the application for leave to appeal with costs. The applicant sought leave to appeal that decision to the Court of Appeal. On 29 November 2002, the Court of Appeal refused leave with costs.

On 9 November 2002, Master Bruce taxed the respondent's costs in relation to the hearing before Byrne J in the sum of $17,139.20 and in respect of the application before the Court of Appeal in the sum of $12,716.95. On 23 November 2005, the applicant applied for review of the taxation of costs pursuant to r.63.56(1)(v). On 31 January 2006, at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 397
Decision Date: 1 October 2007

CaseChat Overview and Summary

The case of Winn v Blueprint Printing Pty Ltd involved a dispute concerning an application to set aside a previous order for costs in the absence of the applicant. The matter was heard in the Supreme Court of Victoria. Winn, the applicant, sought to overturn an earlier costs order made against him, arguing that it was unjust given his absence from the hearing due to unforeseen circumstances. Blueprint Printing Pty Ltd opposed the application, asserting that Winn's absence was a result of his own negligence and that the costs order was justly awarded.

The primary legal issue before the court was whether Rule 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 applied to the circumstances of the case, and if so, whether the application to set aside the costs order should be granted. The court had to consider the principles governing the setting aside of costs orders in the absence of an applicant and assess whether Winn's application was made within a reasonable time and without delay.

In determining the matter, the court examined the circumstances leading to Winn's absence and the timing of his application to set aside the costs order. The court found that Winn's application was not made within a reasonable time, and there was a significant delay in bringing the application. The court held that Winn's absence was due to his own negligence and that the principles of fairness did not support setting aside the costs order. Consequently, the court refused the application, holding that Rule 46.08 did not apply to the case and that the application was without merit.

The court's decision resulted in the application to set aside the previous costs order being dismissed. The costs of the application were ordered to be paid by Winn.

Orders