Winn v Brian Ward & Partners Pty Ltd (No.3) - [2007] FMCA 1211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WINN v BRIAN WARD & PARTNERS PTY LTD (No.3)

[2007] FMCA 1211

PRACTICE AND PROCEDURE – BANKRUPTCY – Application in a case – application for stay of judgment relating to costs pending decision of Supreme Court.

Legal Practices Act 1996
Legal Profession Act 2004, Part 8.1

Applicant:

JULENE WINN

Respondent:

BRIAN WARD & PARTNERS PTY LTD

File number:

MLG 351 of 2007

Judgment of:

McInnis FM

Hearing date:

11 July 2007

Delivered at:

Melbourne

Delivered on:

11 July 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr T. J. Scotter

Solicitors for the Respondent:

Brian Ward & Partners Pty Ltd

ORDERS

The Application in a case filed on 4 July 2007 be dismissed.
The Applicant shall pay the Respondent's costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 351 of 2007

JULENE WINN

Applicant

And

BRIAN WARD & PARTNERS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The application now before the Court is an Application in a Case filed 4 July 2007 by the Applicant. In the application the Applicant seeks the following orders:
“1.That adjudication of the Application for Review of Registrar's Orders be stayed until the Supreme Court of Victoria has determined the question of the validity of the judgment in proceeding TO2585937 made on 2 October 2006 by the Melbourne Magistrates Court, (being the judgment used by the Respondent to support Bankruptcy Notice VN221/07).
2.That the Respondent pay the Applicant's costs of and incidental to this application.”
The Applicant has submitted that it is appropriate for the Court to grant the orders sought in the Application in a Case and has relied upon an affidavit sworn by her on 3 July 2007 together with a document entitled “Memorandum” which appears to be dated 4 July 2007 and has otherwise made oral submissions in support of this application.
To understand the application, it is noted that the substantive proceedings before this Court are proceedings by the Applicant by way of application for review of a Registrar's decision filed 2 May 2007 seeking to set aside orders made by the Registrar on 12 April 2007. Those orders of the Registrar included an order which was the subject of consent by the Respondent setting aside the relevant Bankruptcy Notice but further, an order which is the subject of significant dispute between the parties that the Applicant pay the Respondent's costs of the application, which the Registrar fixed in the amount of $1,500.00.
The Application in a case is opposed. The application refers to Supreme Court proceedings, which appear to have been prepared by the Applicant, and, for present purposes, I am prepared to accept either have been or are about to be commenced in the Supreme Court of Victoria. Those proceedings seek declaratory relief. Essentially the declaratory relief appears to rely upon alleged breaches of the Legal Practices Act 1996 which appears to have been repealed by Part 8.1 of the Legal Profession Act 2004.
Significantly, the purported proceedings in the Supreme Court also seek a declaration that orders made by the Melbourne Magistrates' Court on 2 October 2006 be declared null and void ab initio. It is clear from the submissions made by the Applicant that that issue is a core issue of concern to her throughout not only the proceedings that is before this Court, namely the application for review of the Registrar's orders, but also otherwise a matter of concern which is evidence from correspondence which this Court has considered between the parties.
The question for this Court to determine is whether at this late stage, having conducted a hearing on 18 June 2007 and having notified the parties that the Court is now ready to deliver a judgment in the substantive hearing, it is appropriate that I grant the order sought in the Application in a Case. I considered it appropriate at the time the Court became aware of the Application in a Case to then notify the parties that not only would that matter be listed for hearing but that it would also be listed this day before any delivery of judgment in the substantive matter. The notice of listing dated 5 July 2007 specifically states the following:
“TAKE NOTICE that the delivery of judgment is subject to the hearing of the interlocutory application listed at 9.30 am on 11 July 2007 seeking a stay before delivery of judgment.”
In my view, it is entirely appropriate that where a stay application is made by any party prior to the delivery of judgment and the making of orders for the Court to hear and determine that application before it proceeds to deliver its judgment. If the Court were minded to accede to the application in the case, then it is self‑evident, that the Court would then postpone or defer delivery of its anticipated judgment and orders in the substantive matter.
Accordingly, it remains for the Court to consider whether the Applicant has persuaded this Court that it is proper in the circumstances to make an order of a stay, which, in a somewhat unusual way, is a stay of the Applicant's own application before this Court.
The stay is sought, however, pending the outcome of the proceedings which I have described as Supreme Court proceedings which the Applicant seeks to pursue by way of declaratory relief and, in a sense, a determination of the validity of the order made by the Melbourne Magistrates' Court on 2 October 2006, which, it is common ground, formed the basis upon which the relevant Bankruptcy Notice was issued. It is noted that was a judgment set aside by consent of the Respondent, which then in turn led the Respondent to consent to the Bankruptcy Notice itself being set aside.
Counsel for the Respondent has submitted that this Application in a Case has been filed too late, given that the hearing has already occurred. It is also submitted that, in any event the State Magistrates' Court order which was entered has now been set aside, the Bankruptcy Notice which was based upon that judgment has by consent been set side and that it's not appropriate, as I understand the submission for the Respondent, for this Court to further delay the delivery of judgment in the Applicant's substantive application to review the Registrar's decision.
In my view, it is not appropriate for this Court to delay any further the delivery of its judgment in this matter and to make appropriate orders in relation to the application for review. Whether or not there is a pending dispute between the parties in the Supreme Court and whether or not that Court, after due consideration of the application, will or will not entertain the application are not matters which should be of concern to a Court in bankruptcy dealing with an application for review of a Registrar's decision, which in any event has already set aside a Bankruptcy Notice and has done so in circumstances where the judgment which was the foundation of that Bankruptcy Notice by consent has been set aside and a rehearing ordered in the state Magistrates' Court.
The issue of whether or not there has been any breach of the Legal Practice Act by the Respondent is no doubt an issue which may be agitated by the parties either in the state Magistrates' Court or indeed in the Supreme Court. It may be a little surprising if the proceedings continued in the Supreme Court whilst there was a pending issue still unresolved in the State Magistrates' Court. Nevertheless, it is not for this Court to be concerned about that issue, as no doubt the state Courts will be able to resolve that issue, having regard to the appropriate and relevant law. It would be inappropriate for this Court, and indeed presumptuous to otherwise make further comment or adjudicate that issue.
Before this Court, however, is the question of whether it should stay the delivery of judgment and the making of orders in relation to the Applicant's application for a review of the Registrar's decision. The mere fact that there may be pending proceedings either in the state Magistrates' Court, or indeed, as foreshadowed, in the Supreme Court of Victoria, seeking, amongst other things, declarations that the state Magistrates' Court order is null and void is not, in my view, a matter which would persuade this Court to delay any further the delivery of its decision and reasons in the matter before it.
As I understand it, the Applicant may wish to argue the validity of the state Magistrates' Court judgment, either before that Court or elsewhere, although I note that in any event the order and judgment obtained in the absence of the Applicant in that Court has by consent been set aside and a rehearing, presumably, been scheduled. In those circumstances, I cannot see the current application either in the State Magistrates' Court or the prospective application in the Supreme Court as being anything other than speculation or a prospective hearing. In my view, the fact that those proceedings are pending are not relevant in the exercise of the Court's discretion to refuse the application for a stay in the present case. Those matters will be dealt with no doubt on their merits according to law. I can see no reason why this Court should further delay in this instance its determination and indeed resolution of the substantive application before the Court, namely the review of the Registrar's decision. Accordingly, for those reasons it follows that the Application in the Case filed 4 July 2007 should be dismissed.

Costs

In this matter the Court has dismissed the Application in a Case filed 4 July 2007. The Respondent has sought an order for costs, which is opposed. In my view, there is no reason why costs should not follow the event, given the nature of the application.
However, in this matter I do not regard it as appropriate for the court to fix costs; it is more appropriate for that matter to be determined upon taxation, if there needs to be one, by a Registrar, given the duration of the hearing and the other matters which may be involved, which no doubt the Registrar can taken into account in the exercise of discretion upon taxation. Hence I will order that the Applicant shall pay the Respondent's costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 11 July 2007