Winn v Boss Lawyers Pty Ltd

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Winn v Boss Lawyers Pty Ltd [2023] QCAT 480

PARTIES:

JULENE WINN

(applicant)

v

BOSS LAWYERS PTY LTD

(respondent)

APPLICATION NO/S:

REO002-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

27 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President

ORDERS:

The application for reopening is dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY TRIBUNALS: JURISDICTION, POWERS AND GENERALLY – REOPENING OF PROCEEDINGS – where the applicant applied for the reopening of a matter to set aside a costs agreement – where a sequestration order was subsequently made against the applicant – whether the application became stayed pursuant to the Bankruptcy Act 1966 (Cth) – where the respondent emailed a copy of the application to the applicant’s trustee in bankruptcy – whether the trustee is deemed to have abandoned the application under the Act

Bankruptcy Act 1966 (Cth), s 60

Warren v Queensland Law Society Inc [2016] QCAT 310, cited

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

This matter concerned an application before the Tribunal for the reopening of a proceeding, namely OCL033-16. That proceeding concerned an application by Ms Winn to set aside a costs agreement with Boss Lawyers Pty Ltd. That original application was filed on 15 June 2016.[1] Ms Winn was unsuccessful both at first instance[2] and on appeal.[3]
[1]With various amended applications filed thereafter.
[2]Before Carmody J, 4 July 2018.
[3]Winn v Boss Lawyers Pty Ltd [2019] QCA 275.
Costs of the proceedings at first instance were determined by the then President, Daubney J. On 18 February 2021, his Honour ordered Ms Winn to pay $8,500 in costs to Boss Lawyers Pty Ltd.[4]
[4][2021] QCAT 44.
On 18 March 2021, Ms Winn filed an application to reopen that determination.
On 3 February 2022, his Honour Judge Egan of the Federal Circuit and Family Court of Australia made a sequestration order against the estate of Ms Winn. In so doing, his Honour noted that a consent to act as trustee signed by Mr Baskerville had been filed under section 156 of the Bankruptcy Act 1966 (Cth) (‘Bankruptcy Act’).[5]
[5]Boss Lawyers v Winn [2022] FedCFamC2G 52, [17].
On that day, Boss Lawyers Pty Ltd emailed QCAT, with a cc to Ms Winn, advising that the sequestration order had been made. That email also stated:
Pursuant to section 60(2) of the Bankruptcy Act 1966 (Cth) an action commenced by a person who subsequently becomes a bankrupt is, upon becoming bankrupt, staying until the trustee makes election, in writing, to prosecute of discontinue the action.
According, we respondent seeks [sic] an order that the application filed by the applicant be stayed.
Ms Winn was given the opportunity to file submissions in response to that proposition, but ultimately did not do so. That opportunity was provided via directions made on 4 February 2022 to file submissions by 8 February 2022. The time for compliance was later extended to 17 February 2022, the Tribunal having received an email from Ms Winn that she blocks emails from Boss Lawyers Pty Ltd and was unaware of their email submission.
On 22 February 2022, the Tribunal received an email from Ms Winn which stated that:
(a)she has not been able to deal with the matter “as per the medical certificates lodged and emailed on 8 February 2022”;
(b)orders made relating to the sequestration order had “been obtained by a male solicitor” due to her “incapacity”;
(c)the “QCAT order subject to reopening” was made in her absence; and
(d)the sequestration order “should be set aside in due course”.
The Tribunal has not received any further communication from Ms Winn in respect of this issue.
On 16 May 2023, Boss Lawyers Pty Ltd sent an email to Mr Baskerville, enclosing a copy of Ms Winn’s reopening application, requesting that Mr Baskerville notify his intention as to whether the proceeding would be abandoned or not. No response was received by Boss Lawyers Pty Ltd to that request.
On 20 October 2023, and then again on 29 November 2023, the Tribunal sought a response from Mr Baskerville to that request. On 6 December 2023, Mr Baskerville emailed the Tribunal, Ms Winn and Boss Lawyers Pty Ltd, stating that “I wish to discontinue the action. There is no benefit to creditors of the estate in prosecuting these proceedings.”

The Bankruptcy Act

Section 43(2) of the Bankruptcy Act provides that, upon the making of a sequestration order against the estate of the debtor, the debtor becomes bankrupt.[6]
[6]Bankruptcy Act s 5, which defines ‘bankrupt’ as a person against whose estate a sequestration order has been made.
Section 60(2) of the Bankruptcy Act states that an action commenced by a person who subsequently becomes bankrupt is, upon becoming bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
‘Action’ is defined as any civil proceeding,[7] which includes a QCAT application.[8] Section 60(2) does not apply to actions in respect of any personal injury or wrong done to the bankrupt, spouse, de facto partner or family member, death of spouse, de factor partner or family member, or criminal actions.[9] None of these exceptions apply to this matter.
[7]Bankruptcy Act s 60(5).
[8]Warren v Queensland Law Society Inc [2016] QCAT 310, [25] per Justice Carmody; Re Brown; Ex parte Taylor v Queensland Electricity Commission (1988) 19 FCR 180 (‘action’ does not include proceedings where orders are sought to simply give effect to a judgment where the hearing was completed before bankruptcy).
[9]Bankruptcy Act ss 60(4) and (4A).
Section 60(3) of the Bankruptcy Act provides that if the trustee does not make an election to prosecute or discontinue the action within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
As observed above, that notice was provided by way of email from Boss Lawyers Pty Ltd on 16 May 2023. No election was made within the requisite 28 days’ time period.
It follows that, pursuant to the Bankruptcy Act section 60(3), the trustee is deemed to have abandoned the application to reopen the OCL033-16 proceeding.
As such, I order that the application for reopening is dismissed.
I note that even if there were not a statutorily deemed abandonment, I would dismiss the application, given the email of Mr Baskerville of 6 December 2023.
I note, for completeness, that the Tribunal has received various emails from Ms Winn. None of them change the outcome here, that is, none of them change the deemed statutory abandonment, and my decision to dismiss.

Order

The application for reopening is dismissed.

In the matter of Winn v Boss Lawyers Pty Ltd, the applicant sought to reopen proceedings to set aside a costs agreement. The dispute arose in the context of an ongoing legal matter between the parties, which had resulted in a costs agreement. However, subsequent to the application, a sequestration order was made against the applicant, prompting questions about the status of the application. The case was heard in a tribunal with jurisdiction over the matter, where it was determined whether the application could proceed given the applicant's bankruptcy.

The central legal issue before the tribunal was whether the application to reopen proceedings had been automatically stayed pursuant to the Bankruptcy Act 1966 (Cth). Specifically, the tribunal needed to decide if the sequestration order against the applicant meant that the application was no longer able to proceed. Additionally, the tribunal had to consider whether the respondent's action of emailing a copy of the application to the applicant's trustee in bankruptcy meant that the trustee had abandoned the application, thus allowing the tribunal to proceed with the matter.

The tribunal examined the provisions of the Bankruptcy Act 1966 (Cth) and concluded that the application had indeed been stayed by operation of law upon the applicant's sequestration. The tribunal found that the sequestration order rendered the applicant incapable of continuing with the proceedings, thereby automatically staying any further actions. Furthermore, the tribunal ruled that the respondent's action of emailing the trustee did not amount to an abandonment of the application by the trustee. Consequently, the tribunal dismissed the application for reopening, holding that it was no longer possible for the applicant to proceed with the matter.

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Legal Principle Established