Winn v Garland Hawthorn Brahe (a firm)
[2009] VSC 93
•1 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 3503 of 2005
| JULENE WINN | Plaintiff |
| v | |
| GARLAND HAWTHORN BRAHE (a firm) | Defendant |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2008 (supplementary written submissions dated 19 and 21 November 2008) | |
DATE OF JUDGMENT: | 1 April 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 93 | |
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Practice and procedure – Application to set aside orders made in absence of applicant – Whether applicant provided reasonable explanation for failure to attend – Whether arguable case on the merits – Prejudice – Interests of justice – Application refused – Supreme Court (General Civil Procedure) Rules 2005 rr 46.08, 49.02
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Seifman | Colman Maloney |
| For the Defendant | Mr E Moon | Garland Hawthorn Brahe |
HER HONOUR:
This is an application to set aside orders made by Cummins J on 29 September 2008, at the hearing of an application by the plaintiff, Julene Winn. Ms Winn did not appear, in person or by lawyers, before Cummins J. However, she was represented by solicitors and counsel before me.
In order to understand why his Honour dismissed Ms Winn’s application in her absence, and why I propose to dismiss her application to set aside his Honour’s orders, it is necessary to understand something of the long and unfortunate history of this proceeding.
Proceedings in other courts
During 2001 and 2002, the defendant firm of solicitors acted for Ms Winn, in relation to applications for leave to appeal against decisions in three proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”), to which Ms Winn had been a party.
In late November 2003, the solicitors issued a proceeding against Ms Winn in the Magistrates’ Court, seeking recovery of their costs. The trial of that proceeding was apparently adjourned, at Ms Winn’s request, on at least 3 occasions in 2004 and early 2005. More than 5 years later, that trial has still not occurred, due to Ms Winn’s actions in this court.
The history of this proceeding
Summons for taxation
This proceeding was commenced on 17 February 2005, when Ms Winn issued a summons for taxation of the September 2003 bills of costs rendered by the solicitors. She also sought a stay of the Magistrates’ Court proceeding.
In her affidavit in support of the summons, Ms Winn said, amongst other things, that the solicitors had provided her with a quote of $5,000 for their work, but then charged her more than $45,000. Several affidavits were filed around this time, by her and by a member of the solicitors’ firm.
In late May 2005, Master Bruce, who was the taxing master until March 2006, ordered a stay of the Magistrates’ Court proceeding, pursuant to s 116(1)(b) of the Legal Practice Act 1996. He also made directions for the taxation of the bill of costs, including listing the proceeding for callover on 26 July 2005, and listing the taxation for hearing on 10 and 11 August 2005.
On 22 July 2005, the solicitors filed a bill of costs in taxable form, totalling $38,708.35, including disbursements of $9,524.15.
Ms Winn did not attend the callover on 26 July 2005. Instead, she wrote to the court that morning, citing illness as the reason for her non-attendance. She also requested an extension of time for filing her objections to the taxable bill of costs. Neither her letter nor the attached medical certificate disclosed the nature of the illness; nor did they suggest that the illness was of a nature such that it might have any impact on future hearing dates. Master Bruce granted her an extension of time to file her objections, and re-listed the taxation for hearing on 30 and 31 August 2005, being dates on which she had indicated she would be available.
Ms Winn filed notices of objection to the bill of costs on 15 and 29 August 2005. The notices primarily alleged that the solicitors were not entitled to payment for specific items, or in general, because of the way in which they had conducted the litigation.
Shortly before court on 30 August 2005, being the first day of the taxation, Ms Winn wrote to the taxing master, informing him that she was unable to attend court that day, due to an unspecified illness. She requested a two week adjournment. The solicitors did not consent to the adjournment, however, Master Bruce adjourned the taxation to the following day.
Shortly before court on 31 August 2005, Ms Winn wrote again to the taxing master, indicating that she would not be appearing, due to an unspecified illness. She referred to a medical certificate, which indicated that she could not attend court on 30 and 31 August, due to an unspecified medical condition. She also sought an extension of time to further amend her objections. The master did not proceed with the taxation, but ordered that Ms Winn was to show cause at the callover on 27 September 2005 as to why his earlier order staying the Magistrates’ Court proceeding should not be lifted.
On 23 September 2005, Ms Winn sought the solicitors’ consent to an adjournment of the callover, to enable her to obtain legal representation from a costs consultant. The solicitors did not consent to such an adjournment.
Orders were made at the callover on 27 September 2005, in Ms Winn’s absence, extending the time for her to file and serve further amended objections until 21 October 2005, listing the matter for further callover on 25 October 2005 and fixing the summons for taxation for hearing on 16 December 2005.
On 24 October 2005, Ms Winn wrote to the taxing master, seeking an adjournment of the callover fixed for the following day, on medical grounds. She attached two medical certificates, covering most of October 2005, which said that she had been unable to prepare documents due to a variety of symptoms, including allergic symptoms, conjunctivitis, headaches, lethargy and generalised itching. She wrote again to the taxing master on the morning of the callover, indicating that she needed more time to engage a costs consultant.
At the callover on 25 October 2005, the matter was adjourned to a further callover on 29 November 2005, and the hearing date of 16 December 2005 was confirmed.
On 28 November 2005, Ms Winn filed her third set of objections to the solicitors’ bill.
At the callover on 29 November 2005, the hearing date of 16 December 2005 was confirmed again.
Both Ms Winn and the solicitors appeared on 16 December 2005. Master Bruce commenced the taxation on that day, and completed up to item 160 of the 183 items in the bill. He reduced the items taxed by him by $3,330. The taxation was effectively adjourned part-heard to 17 February 2006, subject to mention at a callover on 31 January 2006.
On 27 January 2006, Ms Winn wrote to the taxing master, seeking the adjournment of the callover on 31 January for medical reasons. She indicated that she would be having some sort of surgery at a skin care clinic in Queensland on 31 January. She also sought an indefinite adjournment of the taxation fixed for 17 February, on the basis that there was a possibility that the parties would reach settlement of the matter, and she would still be visiting Queensland on 17 February.[1] The solicitors did not consent to either adjournment.
[1]It appears that Ms Winn eventually moved from Melbourne to live permanently in Queensland, at some stage later in 2006.
At the callover on 31 January 2006, which proceeded in Ms Winn’s absence, the master confirmed the hearing on 17 February 2006 and noted in other matters that “the court finds no basis for granting the plaintiff an indefinite adjournment”.
On 7 February 2006, Ms Winn wrote to the taxing master, seeking the adjournment of the hearing on 17 February 2006, on the basis that she would be having further unspecified surgery on 16 February. She also enclosed a certificate which showed that she had been “unfit for duty” for one day only after her earlier surgery.
On 9 February 2006, the court wrote to Ms Winn indicating that she would have to provide evidence in support of her adjournment request, which the master would consider on 17 February 2006. In this correspondence, the master’s associate suggested that Ms Winn obtain legal advice.
On 13 February 2006, Ms Winn faxed the court an affidavit setting out further details of her surgery to remove skin cancers. She requested that the taxation be re-listed for a date after 1 March 2006.
On 16 February 2006, the day of her second surgery, she wrote again to the court, attaching a further medical report about her skin surgery. She also set out specific matters which she asked the court to take into consideration in the event that the taxation proceeded in her absence on the following day. On this occasion, she asked for the taxation to be re-listed in or after April 2006.
On 17 February 2006, the master adjourned the taxation until 3 April 2006, on an estimate of 2 days.
On 30 March 2006, Ms Winn wrote to the new taxing master, Master Wood, requesting that the taxation be listed at 11:30 a.m. on 3 April, in order to allow her to attend a directions hearing in the County Court, in another proceeding, listed for 10.30 a.m. that day. The court accommodated her request.
Shortly before court on 3 April 2006, Ms Winn wrote to the taxing master, informing him that she would be unable to attend court for the following two days, due to “a recurrence of illness”, details of which were not provided. She requested an adjournment of at least two weeks, and specified certain dates in April and May when she would be unavailable.
Orders were made on 3 April 2006, adjourning the taxation to 5 and 6 June 2006. Further orders were made that, if Ms Winn did not appear, or was not represented, on those dates, the taxation would proceed on the basis of the objections she had previously filed.
On 15 May 2006, Ms Winn filed an affidavit which contained submissions objecting to various items in the solicitors’ bill of costs, including items which had already been taxed. She asserted that the solicitors’ conduct of the matters, as a whole, and in each of the steps they took, involved “erroneous advice and work and unnecessary and negligently performed work.”
On 30 May 2006, Ms Winn requested by fax that the taxation hearing be listed for a late start on 5 June, in order to enable her to appear in the County Court earlier that day. Once again, her request was accommodated by the court.
The taxation was completed by Master Wood on 6 June 2006, and the solicitors’ costs, claimed at $38,708.35, were reduced to $21,642.90, including disbursements. The master made no order as to the costs of the taxation. Ms Winn appeared in person at that hearing.
In her various notices of objection, Ms Winn had alleged that the costs should be reduced due to negligence on the part of the solicitors. Master Bruce, who had determined the first part of the taxation, noted on one occasion in “other matters” that questions of negligence should more appropriately be decided in the Magistrates’ Court proceeding, rather than through the taxation process. Master Wood apparently proceeded on the same basis when completing the taxation and making his orders of 6 June 2006.
The first review
On 19 June 2006, Ms Winn filed notice of an application for the taxing master to review his decision of 6 June 2006 under r 63.56.1. Her notice sought review of 63 items in the bill of costs. She claimed that 59 of those items should be taxed at nil, meaning she would pay less than $1,000 for all the work undertaken by the solicitors in relation to the three VCAT proceedings.
The application for review was listed for callover on 25 July 2006. Ms Winn did not appear on that occasion. Directions were made for the filing and service of submissions by both parties and the review was fixed for hearing on 19 October 2006. The master ordered that, if any party failed to appear on 19 October, the matter would be determined on their written submissions.
On 20 August 2006, two days before her submissions were due, Ms Winn wrote to the court seeking an extension of time to file the submissions. The only details she provided were a medical certificate which stated that she would be unfit for court from 30 July to 4 August 2006, due to an unspecified medical condition.
On 29 August 2006, she wrote again to the court, seeking an extension of time to 31 August for filing her submissions. On this occasion, she offered as an explanation the fact that she needed the extension, due to “the volume of commitments I have had to be accomplished in the weeks before 2 September 2006 and to my having had a migraine yesterday and today”. She did not provide any details of the voluminous “commitments” to which she was referring.
On 31 August 2006, she sent the court an affidavit containing her submissions. The solicitors' submissions in reply were filed on 2 October 2006.
Ms Winn appeared in person at the review of the taxation on 19 October 2006. After hearing argument, Master Wood ordered that:
(a) His orders of 6 June 2006 be vacated.
(b) The summons for taxation be dismissed.
(c) The stay of the Magistrates’ Court proceeding ordered by Master Bruce on 25 May 2005 be lifted.
(d) Ms Winn pay the solicitors’ costs of the taxation from August 2005, fixed in the sum of $10,000.
On 24 October 2006, Ms Winn requested the taxing master to provide written reasons for his decision on the review of taxation.
His reasons for decision were sent to the parties around 26 October 2006, pursuant to r 63.56.1(7).
Master Wood said that most of Ms Winn’s objections should properly be characterised as allegations of negligence. Based on the opinion of senior counsel[2], which Ms Winn produced at the hearing, the master said he could not say that the negligence allegations had no basis. But, having considered the relevant authorities, he noted that it was not his task on a taxation review to determine whether the solicitors had been negligent; rather, that question should more appropriately be determined in any negligence action by Ms Winn against the solicitors.
[2]Mr C Maxwell QC, as he then was.
The master also declined Ms Winn’s application to have costs taxed in a gross sum under r 63.71(1), which permits such a course where costs are incurred “improperly or without reasonable cause or are wasted by undue delay or negligence or by any other misconduct or default.” He noted that the exercise of such a power may inflict upon the solicitors the implication of having been guilty of professional misconduct, without there having been a trial of that issue.
One of the reasons which Master Wood gave for awarding costs against Ms Winn was that the taxation process had been prolonged unnecessarily by the number of adjournments occasioned by Ms Winn. He was also influenced by the fact that, even though she described herself in her affidavits as a lawyer, she had withheld until the last moment the senior counsel’s advice upon which she had relied at the taxation.
The appeal
By notice of appeal filed on 3 November 2006, Ms Winn sought to challenge the taxing master’s orders of 19 October 2006. The notice of appeal was made returnable before the judge in the practice court on 29 November 2006.
The matter was referred by the practice court judge to Kaye J. His Honour heard argument on 29 and 30 November 2006 and reserved his decision. Both parties appeared on these two days. Kaye J made orders and published his reasons for decision on 14 December 2006.
The appeal to Kaye J was a hearing de novo. The primary issue which his Honour had to consider was whether the matters raised in Ms Winn’s notice of objections were suitable for consideration as objections to a bill of costs, or whether they were matters that needed to be determined in a separate proceeding.
After considering in some detail the relevant authorities, his Honour went on to consider the nature of Ms Winn’s objections, which he held fell into nine broad categories of objection. He held that all of the categories were, on their face, matters with which taxing masters have traditionally dealt, and none of them would involve the unravelling of a complex set of facts which would better be considered in a separate negligence proceeding.
Kaye J allowed the appeal, set aside the taxing master’s 19 October 2006 orders, and ordered that Ms Winn’s application for review proceed before the taxing master. His Honour granted the solicitors a certificate under s 4 of the Appeal Costs Act 1998.
On 15 April 2007, Ms Winn requested the matter be listed before Kaye J for argument as to costs. The matter was duly listed on 29 June 2007, after Ms Winn had, on 14 June 2007, confirmed her availability to attend on the 29th. However, shortly before court on the 29th, she informed the judge’s associate in writing that she would be unable to attend that day due to “viral flu illness”. No medical certificate was provided. She enclosed written submissions and indicated that she understood that the judge would make “appropriate costs orders” in her absence. His Honour delivered ex tempore reasons for his costs ruling on 29 June 2007.
The second review
The taxing master listed the application for review in the callover on 27 March 2007; both parties were legally represented at the callover. The review was fixed for hearing on 6 and 7 August 2007.
The second review was heard on 6 and 7 August 2007. Ms Winn appeared in person. Master Wood reserved his decision.
On 31 August 2007, the master sent his written reasons to the parties; they were detailed and ran to more than 40 pages. The master had regard to all of the notices of objection and affidavits filed by Ms Winn, both in this proceeding and in an earlier proceeding in this court (No 9490 of 2004, in which Ms Winn had, amongst other things, applied for leave to issue a summons for taxation out of time). He also had regard to an additional 145 pages of documents which Ms Winn handed up at the conclusion of the review, as well as further material which she sent by facsimile a few days later.
He referred to the reasons for decision of Kaye J, and the way in which his Honour had characterised the various objections. The master proceeded to review the bill of costs on the merits, that is to say, he considered (as he was bound to do by the decision of Kaye J) the substance of each of Ms Winn’s objections.
The result of the master’s very detailed consideration of the merits of Ms Winn’s objections was that the amount allowed in the original taxation was reduced by $1,317.20, to $20,325.70.
The third review
On 14 September 2007, Ms Winn filed an application for review by a judge under r 63.57 of the taxing master’s orders of 31 August 2007. Her notice of review was, at her request, made returnable on 3 October 2007, in the practice court.
On 3 October 2007, Kaye J ordered by consent that the hearing of the third notice of review be referred to the listing master, to be listed before a judge for a two-day hearing.
The matter was listed for pre-trial directions before the listing master on 5 November 2007. Both parties appeared on that date. Prior to that time, Ms Winn had informed the court that she would not be available to attend a hearing on 5 or 19-23 November 2007 “due to professional commitments”. The listing master ordered that any proposed amended notice of review be delivered by 3 March 2008, and fixed the matter for hearing on 31 March 2008, on an estimated duration of 3 days.
Ms Winn filed an amended notice of review on 3 March 2008.
On 27 March 2008, Ms Winn sought an adjournment of the review hearing fixed for 31 March 2008, until a date after 1 May 2008. She provided a bundle of medical certificates showing that over the period since February 2008, she had seen doctors about hypertension and lethargy. She also said that she had tried to get legal representation for the 31st, but the (unspecified number of) lawyers she had contacted (over an unspecified period of time) “were unavailable next week”.
Unfortunately, due to the unavailability of a judge to hear the matter, the hearing date of 31 March had to be vacated in any event.
The listing master’s associate then sought advice as to the parties’ availability for the rest of 2008.
On 13 May 2008, the solicitors advised the court of their availability. On 20 May 2008, Ms Winn advised the court of an extensive number of dates, in each month for the rest of 2008, in which she would not be available, including all Wednesdays and Thursdays from 21 July to 15 November. She offered no explanation at all for such extensive and regular unavailability. On 20 May 2008, the listing master’s associate advised the parties by email that the matter would be listed on 3 September 2008, on an estimated duration of three days.
That evening, Ms Winn replied that those dates were not convenient, as they included a Wednesday. Two days later, she wrote and offered an even further reduced list of available dates in September. Once again, Ms Winn did not proffer any explanation for the extensive periods of unavailability.
On 27 May 2008, the solicitors wrote to Ms Winn confirming the trial date of 3 September 2008, noting that Ms Winn had previously made numerous attempts to adjourn hearings on short notice, and putting her on notice that any application to vacate the 3 September hearing should be made at the earliest possible time.
On 5 June 2008, the listing master’s associate wrote to the parties, indicating that the Ms Winn’s complete unavailability on Wednesdays and Thursdays posed difficulties for the court. However, as Ms Winn had now indicated that the matter might only take two days, the listing master proposed to list it on Monday 29 September 2008, on an estimated duration of two days.
Both parties confirmed that the date and estimate were suitable, and, in late July 2008, the listing master’s associate confirmed the listing with both parties.
Ms Winn’s September affidavit, discussed below, says that: the listing master’s staff left a voicemail message for her on 23 September; she returned the call on 23 and 24 September, and left a message and her email address; and she received an email from the listing master on 26 September 2008, to which she replied, informing the master of her circumstances and the need to have the hearing adjourned.
Ms Winn gave a slightly different version of these phone calls, in her 12 October affidavit, to which I shall refer later. The version set out above is the version which was before Cummins J on 29 September 2008. Her 12 October affidavit seems to suggest that she was the one who initiated contact with the listing master’s staff from the 23rd onwards.
The 26 September 2008 email from a member of the listing master’s staff contained a routine enquiry, of the sort made to all parties, as to Ms Winn’s readiness for the trial due to commence on 29 September 2008.
Ms Winn responded by email the same day, saying that she was “currently experiencing difficulty” in attending court in Melbourne “for medical reasons”. Her email told the court, for the first time, that she was suffering from chronic fatigue syndrome; however, no medical certificate supporting such a diagnosis was provided at that time. She said she had not informed the solicitors of the problem.
In that email, Ms Winn also offered as an explanation for her unavailability to appear the fact that her mother had had extended periods of hospitalisation that year and had “recently” had a fall. This was the first time that Ms Winn had mentioned her mother’s situation as a reason for her non-attendance.
She requested that the trial be re-listed “for the week of 20 October 2008 or later as with some further time the situation will hopefully improve”.
The listing master’s staff responded that the matter would remain listed on 29 September 2008, and that any application to adjourn the trial date should be made to the trial judge.
In her response, Ms Winn asserted that her medical condition was “exacerbated by aeroplane travel”, and that “this is not a matter where someone can appear for me”. This last assertion was inconsistent with a number of previous communications, in which Ms Winn had informed the court that she was seeking legal representation; indeed, she had sought and obtained several earlier adjournments or extensions for the very purpose of enabling her to obtain representation. Ms Winn’s response offered no explanation as to why this had suddenly become a matter which required her personal attendance.
The listing master’s staff then responded with the contact details for the judge who would be hearing the matter, Cummins J. She also said that she had been trying, unsuccessfully, to contact Ms Winn since late in the previous week.
Even though she had been told to make any adjournment application to Cummins J, in the afternoon of Friday the 26th, Ms Winn faxed the Chief Justice’s chambers, requesting the vacation of the trial date fixed for the coming Monday. She sent another fax on Monday morning, to the Chief Justice and listing master’s chambers.
Attached to the Monday faxes was an affidavit sworn by Ms Winn on Sunday, 28 September (“the September affidavit”), and a covering letter. The covering letter sought to have the matter re-listed in “late October or later”; the September affidavit sought re-listing in “November or December.”
The September affidavit said that Ms Winn was unable to travel to Melbourne for the hearing on 29 September. Ms Winn deposed that her mother had been sick since April 2008, and had had a fall in the week of 12 September 2008. No medical evidence was provided in relation to her mother’s fall, nor did Ms Winn identify what, if any, injury her mother had suffered as a result of the fall a fortnight earlier.
In relation to Ms Winn’s own medical condition, the September affidavit said she had “a relapse” of chronic fatigue syndrome in 2008. Attached to the affidavit were two doctors’ reports or certificates, dated July and August 2008, respectively, which will be considered in further detail later in these reasons. Both doctors’ opinions appeared to be based essentially on Ms Winn’s reporting of her symptoms. Ms Winn had never previously provided those certificates to the court. Indeed, as mentioned earlier, she never mentioned chronic fatigue syndrome to the court until she sought to adjourn the hearing in late September 2008.
The matter was listed before Cummins J at 10:30 a.m. on 29 September 2008. The solicitors were represented by counsel; nobody appeared for Ms Winn on that day.
It is clear from the transcript of the morning’s hearing that his Honour had received and read the material that Ms Winn had sent to the listing master and Chief Justice’s chambers, seeking an adjournment. After some discussion with counsel, his Honour stood the matter down until 2:15 p.m., at which time he gave ex tempore reasons, dismissing Ms Winn’s notice of review and awarding costs against her.
His Honour’s reasons outline in some detail the history of correspondence between the court and the parties, and the numerous adjournments that had been granted to Ms Winn in the past.
He noted that the medical certificates she had supplied were historical, rather than current. He found that there was “no demonstrated likelihood that [Ms Winn] will prosecute her claim on the sought for adjournment date, which simply is ‘in November or December.’”
Cummins J observed that there was no material before the court as to why Ms Winn was not legally represented, apart from her bald assertion that it was “not appropriate” that she be represented. His Honour noted that, although Ms Winn was technically a litigant in person, she was in fact a barrister of the Supreme Court of Queensland. Given that fact, his Honour stated Ms Winn “can be taken to be well aware that if [she] chooses not to have a representative come before the court, or herself not come before the court after the court has constantly exercised indulgence to her, there will come a time when the matter will no longer be deferred”.
His Honour commented that the history of the matter was “characterised by constant delay and obfuscation by the plaintiff. The constant delay, vacation and waste of costs is a matter which brings the court, if permitted to continue, into disrepute.” He expressed concern that the administration of justice not be wasted by costs and unjustifiable delay.
He concluded that Ms Winn had had ample opportunity to prosecute her claim and had failed to do so. In coming to that conclusion, he found that there was no unfairness to Ms Winn because:
… as a barrister, she knows the processes of the court, she knows the consequences of choosing not to come to court, not to provide contemporaneous persuasive material and not to have a representative before the court. She cannot expect the other party and the court constantly to waste their and its resources on her prevarication.
His Honour dismissed the third notice of review, and ordered Ms Winn to pay the solicitors’ costs of the notice of review on a party-party basis, fixed in the sum of $4,500, based on a schedule of costs provided by the solicitors on 29 September 2008. During the course of submissions as to costs, their counsel informed the court of an earlier offer of compromise, in which the solicitors had offered to accept $12,000 in full and final settlement of their claim.
The present application
By summons filed on 29 October 2008, Ms Winn seeks an order that Cummins J’s orders be set aside pursuant to r 46.08, and an order that the third notice of review be re-listed for hearing.
The summons was originally made returnable before the judge in the practice court on 7 November 2008. On 6 November 2008, Ms Winn requested the hearing date be adjourned to 13 November 2008, as she had not served the summons. In the correspondence requesting the adjournment, Ms Winn said that she was “recovering from a medical condition” and that she has been caring for an elderly parent “who has been disabled since hospitalisation in April this year and who has a series of medical appointments and procedures in the coming weeks.” The request was granted, and the summons adjourned to 13 November 2008.
Ms Winn subsequently appointed solicitors, and was represented by counsel at the hearing before me on 13 November 2008. The solicitors have since filed a notice withdrawing from acting.
In addition to her earlier affidavits, Ms Winn also relies on affidavits sworn by her on 12 and 27 October and 12 November 2008.
As the application proceeded before me in a busy practice court, with necessary time constraints, I gave the parties an opportunity to file supplementary written submissions if they wished to do so. Both sides chose to do so, and I have also had regard to those supplementary written submissions.
The orders which Ms Winn seeks to set aside
Ms Winn’s summons seeks an order that Cummins J’s orders be set aside. The only formal orders made by Cummins J were in respect of the third notice of review, which his Honour dismissed.
His Honour also had before him Ms Winn’s correspondence and the September affidavit, seeking the vacation of the hearing date on the grounds of Ms Winn’s and her mother’s ill-health. It appears that, because there was no formal application before him seeking an adjournment, his Honour made no formal order in that regard. Nevertheless, it is clear from the transcript that his Honour considered as a preliminary question whether or not to proceed in the absence of Ms Winn, given the matters set out in her material.
In her supplementary written submissions, in what appears to be an additional or alternative argument, Ms Winn says that, to the extent that Cummins J refused to grant the adjournment sought in the September affidavit, she seeks an order setting aside that ruling under r 46.08. However, in the absence of a formal order in relation to the adjournment application, there is no relevant “order” to set aside.
The court’s jurisdiction
There was a dispute between the parties in oral submissions as to whether Ms Winn’s application to set aside Cummins J’s orders should have been made under r 46.08 or r 49.02.
Ms Winn’s summons only seeks orders under r 46.08, which relevantly provides:
The Court may set aside or vary an order which affects a person where the application for the order—
(a) was made on notice to that person, but the person did not attend the hearing of the application; or
(b)was not made on notice to that person.
Order 46 applies to “an interlocutory or other application in a proceeding” (r 46.01).
Order 49 applies to a trial. Rule 49.02 provides that, when a trial of a proceeding is called on and a party is absent, the court may (amongst other things) “proceed with the trial generally or so far as concerns any claim for relief in the proceeding” (r 49.02(1)(b)). The court may set aside or vary any judgment, order or verdict obtained where a party is absent at the trial (r 49.02(2)).
The solicitors initially argued that Ms Winn’s application should have been made under r 49.02, not r 46.08, as the hearing before Cummins J was the trial of the review of the taxing master’s order, and was not an “interlocutory or other application in a proceeding”. However, in their subsequent written submissions, the solicitors conceded that the review of taxation was governed by order 46.[3]
[3]It is therefore not necessary for me to consider the various authorities which discuss the nature and extent of orders to which r 46.08 applies, such as: Delmo v Merrigal Pty Ltd (Unreported, Supreme Court of Victoria, Murphy J, 29 April 1988); Collie v Merlaw Nominees Pty Ltd [2003] VSC 424 per Nettle J; Jenkins v Visualeyes Pty Ltd [2003] VSC 14 per Balmford J; and Scott v Casualife Furniture International Ltd (Hong Kong) [2005] VSC 463 per Mandie J.
The position might be otherwise, had Cummins J made a formal order on the informal application to adjourn the trial date. Because an application to vacate a trial date is interlocutory, Ms Winn argues that it is therefore also governed by order 46. However, as Kaye J noted in another proceeding involving Ms Winn, Winn v Blueprint Printing Pty Ltd[4], r 46.08 is concerned with applications to set aside orders that have been made without any adjudication on the merits. In that other Winn proceeding, Byrne J had heard and determined on the merits, albeit in Ms Winn’s absence, her written application to adjourn the substantive hearing fixed before him. Byrne J had made a formal order on her adjournment application. Kaye J observed, without deciding, that the proper jurisdictional basis for any interference with the adjournment decision would be the court’s inherent jurisdiction, not r 46.08.[5]
[4][2007] VSC 397.
[5]At [7].
At the end of the day, nothing appears to turn on these jurisdictional questions, because substantially the same considerations would be relevant to the court’s decision under either of the relevant rules or the court’s inherent jurisdiction.
Can Ms Winn make the current application?
The solicitors argue that an application to set aside under r 46.08 can only be made by a respondent who failed to appear at the hearing of the initial application, and that it does not apply where the non-appearing party is the original applicant.
The solicitors point out that r 46.08 refers to an order made on an application “made on notice”. In this case, Ms Winn was the party who made the application by the third notice of review, therefore the application was not made on notice to her. The solicitors argue that she therefore cannot apply under r 46.08.
But it seems from the decision of Mandie J in Scott v Casualife Furniture International Ltd (Hong Kong)[6] that r 46.08 is not to be construed in such a narrow manner. In that case, the applicant had obtained an initial order without notice to the respondent. The applicant then applied to vary the order pursuant to r 46.08. Mandie J found that an applicant who obtains an order in the first place is not precluded from seeking to set aside or vary the order under r 46.08, noting:
The evident intent of rule 46.08 is to enable a person affected by an order to seek to have it set aside or varied in circumstances where the person did not attend for some reason or other, including the absence of notice.[7]
[6][2005] VSC 463.
[7]Ibid at [16] (emphasis added).
In the Blueprint Printing decision mentioned earlier, Kaye J did not suggest that Ms Winn could not make an application to set aside under r 46.08 because she was the party who had failed to turn up at the hearing of her own application.
I am satisfied that Ms Winn has capacity to bring the application under r 46.08.
Principles relevant to the application to set aside
Whether made under r 46.08, r 49.02 or the court’s inherent jurisdiction, a judge has a broad discretion as to whether or not to set aside orders obtained in the absence of one party.
The applicant who seeks to have such orders set aside must ordinarily show, firstly, a reason why he or she did not attend and, secondly, that the applicant has an arguable case why a different order might be made than was made in his or her absence. In addition, any such application must be made without undue delay, and issues of prejudice to the respondent are also relevant. [8]
[8]Rosing v Ben Shemesh [1960] VR 173 per Full Court; Winn v Blueprint Printing Pty Ltd [2007] VSC 397 per Kaye J at [6].
Relying in particular on the decisions of this court in Conrea Nominees Pty Ltd v Doherty[9] and Adams v Cronin[10], the solicitors argue that, in the exercise of its discretion, the court will rarely set aside a judgment that has been properly entered against an absent party, where the absent party was aware of the date of the hearing, but chose not to attend court.
[9]Unreported, Supreme Court of Victoria, Southwell J, 22 July 1992.
[10]Unreported, Supreme Court of Victoria, Court of Appeal, 6 September 1996.
In the Conrea case, Southwell J considered an application under r 49.02, to set aside an order dismissing the plaintiffs’ claim, made in their absence. His Honour described the history of the proceeding as revealing a “sorry tale of inaction”, particularly (but not exclusively) by the plaintiffs.[11] The plaintiffs’ solicitor was informed of the trial date about 3 weeks before trial, but had decided to cease acting (although he had not obtained leave to do so). When the matter was called on for trial, none of the plaintiffs appeared. There was a factual dispute as to whether the plaintiffs were in fact aware of the hearing date, the details of which are not relevant here.
[11]At 2-3.
On the matter of principle, his Honour held that the plaintiffs could not succeed in an application to set aside judgment under r 49.02(3) “if it be shown that they knew of the hearing date and chose to be absent themselves.”[12]
[12]At 5.
The Adams case considered a proceeding which had, like this one, been “beset with delay”[13], with a long history of adjournments. Mrs Adams, having sacked her solicitors shortly after she engaged them, failed to attend at the County Court trial, of which date she was well aware. The trial judge dismissed her claim in her absence. She appealed to the Court of Appeal.
[13]Per Winneke ACJ at 2.
In dismissing the appeal, Winneke ACJ, with whom Phillips and Hayne JJA agreed, made the following observations[14]:
[14]At 7-10.
(a) Mrs Adams had a right to move the court to set aside the judgment under r 49.02. However, in the exercise of its discretion under that rule, a court will rarely set aside a judgment which has been properly entered against an absent party where that party, being aware of the date of the trial, has failed to attend at court (citing, with approval, the decision of Southwell J in the Conrea case).
(b) Mrs Adams had chosen to appeal, rather than apply to set aside, the judgment. Although that was the wrong procedure, the court was nevertheless prepared to hear the matter on its merits, because Mrs Adams was now unrepresented.
(c) The history of the litigation showed that every effort had been made to accommodate Mrs Adams. There had been earlier trial dates set aside to accommodate her. The court had regard to her state of health and her dissatisfaction with the legal profession. Notwithstanding a clear indication, prior to the hearing date, that no further adjournment application would be accepted, Mrs Adams failed to appear. It was Mrs Adams’ responsibility to prosecute the case with due diligence, and clear warning had been given that no further indulgence would be granted. In those circumstances, the trial judge was entitled to dismiss Mrs Adams’ claim.
There is no reason in principle why such considerations should not apply with equal force in the case of an application to set aside an order made on an interlocutory or other application, as they do at the trial itself.
Although it will generally be necessary for a party seeking to set aside an order or judgment made in their absence to establish that they at least have an arguable claim or defence, as the case may be, that may not be sufficient in itself to justify setting aside the order. The predominant consideration is the reason why the party did not attend at the hearing or trial.[15]
[15]In addition to the two cases just discussed, see also Shocked v Goldschmidt [1998] 1 All ER 372 per Court of Appeal.
Ms Winn referred the court to the well-known High Court decision in Queensland v JL Holdings Pty Ltd[16], and to the decision of Byrne J of this court in Maurice Blackman v Burmingham[17]. At one stage, she seemed to be suggesting that those two cases expounded the test for the exercise of the court’s discretion on an application to set aside an order or judgment made in the absence of a party. In fact, they do no such thing; the authorities dealing with that matter have been discussed above. Rather, the JL Holdings decision (which will be discussed later in these reasons, in another context) considered the principles which a court should apply in considering an application to amend pleadings, and the decision of Byrne J involved a substantially-uncontested application to vacate a trial date.
[16](1997) 189 CLR 146.
[17][2008] VSC 15.
The mere fact that Ms Winn decided to make yet another last-minute adjournment application does not, in itself, excuse her non-attendance. Rather, I need to determine whether, on the evidence, she has provided a satisfactory explanation for her non-attendance.
Explanation for non-attendance
Here, Cummins J found (and it is undoubtedly the case) that Ms Winn knew of the date for the hearing, which had been fixed at her request, but chose not to attend or be represented.
Ms Winn’s knowledge
Ms Winn clearly knew of the date fixed for the hearing. It had been fixed back in early June 2008, specifically to accommodate her inability to appear on Wednesdays or Thursdays, as well as all her other extensive commitments. The listing had been confirmed in writing by the listing master’s associate in late July 2008, after both parties confirmed its suitability.
She had either been told, or had acknowledged, on several previous occasions in this proceeding[18], that the court may proceed in her absence. She chose not to attend, either by herself or by legal representatives, with full knowledge that the matter may proceed in her absence. Instead, she chose to make another last-minute adjournment application.
[18]It is also clear from the decision of Kaye J in the Blueprint Printing decision, that she was aware that judges and masters of this court may proceed in the absence of a party, even where the party has sent in a written request for an adjournment.
The solicitors had warned her, back in May 2008, that, because of her numerous attempts to adjourn hearings on short notice, any application to vacate the hearing of the third notice of review should be made at the earliest possible time.
Non-attendance in person
Ms Winn offers two explanations for her personal non-attendance:
(a) Her own health; and
(b) Her mother’s health.
Ms Winn’s own health
Over the 4 years since Ms Winn commenced this proceeding, she has relied on medical grounds as a basis for many adjournment applications. On some of those occasions, she provided the court with a medical certificate, on others she did not. Much of that medical evidence was “to say the least, exiguous” (to adopt the language of Kaye J in the Blueprint Printing case, when he described Ms Winn’s flimsy medical evidence in that case).
In this proceeding, the range of medical conditions identified by her, or in medical certificates, over the years, includes skin cancer, conjunctivitis, headaches and migraines, allergic symptoms, lethargy, generalised itching, viral flu and hypertension. Some of those symptoms may be referable to chronic fatigue syndrome, others are clearly not.
The September affidavit said that she had had “a relapse of chronic fatigue syndrome this year”. She had never previously mentioned that syndrome in any of her previous adjournment applications in this proceeding. If Ms Winn had suffered in past years from chronic fatigue syndrome, and was experiencing a recurrence of symptoms, she should have informed the court of that fact in one of her many adjournment applications.
As Cummins J correctly observed, the medical evidence exhibited to her September affidavit was historical, not current, as at the end of September.
There was a report, dated 11 July 2008, from Dr Rodd Brockett, described as a “visiting physician and intensivist”. He said he believed (from what Ms Winn said to him) that Ms Winn was suffering from chronic fatigue syndrome, with the onset of the illness in 1988, a return to work in 1993 and another relapse in 2001.
Dr Brockett said the condition seemed to be exacerbated by various stressors, particularly flying. He said he was aware that Ms Winn had been unable to fly on 11 February and 14 and 15 April 2008 (none of which dates had anything to do with this litigation), due to her chronic fatigue syndrome, and that it may be difficult for her to go back to Victoria for court cases due to ongoing symptoms. He said that it was possible, if she flew to Melbourne, that she would be unable to even get out of bed the next day, because of severe aches, pains and tiredness. Apart from the issue of flying, Dr Brockett said nothing about her future prognosis, or her ability to appear or to instruct lawyers in September.
There was also a very short certificate, dated 1 August 2008, from Dr Alan Jones of the Chermside Medical Centre. He appears not to be the general practitioner who had referred Ms Winn to Dr Brockett. The certificate said no more than that Ms Winn had “suffered from CFS for most of this year and has not been medically in a position to perform her usual duties in a timely manner. As such, due to medical reasons she would require consideration for extra time to complete court documents for the period February until August 21st.” It said nothing about her future prognosis, or her ability to appear or instruct lawyers in September.
If, as Dr Brockett’s July report states, flying to Melbourne had previously caused, and was likely to continue to cause, medical problems to Ms Winn, she should have:
(a) Informed the court and the solicitors about that in July, or at least a reasonable time before the September hearing; and/or
(b) Instructed lawyers to appear for her.
Instead, she said nothing at all about her chronic fatigue syndrome, or any problems with flying, until just before the Monday hearing.
In fact, there is a further procedure which Ms Winn could have employed, if flying was her primary problem, namely to argue the matter by video-link from Brisbane. The September affidavit alleges that Ms Winn telephoned the Supreme Court registry to ask if there was a facility available for her to appear by video-link, but she was informed that “there was no such facility”. Video-links have been regularly used in this court for a number of years, in civil and criminal matters, particularly from major cities such as Brisbane; it therefore seems rather surprising that somebody in the registry would have denied the existence of such a facility.
Unfortunately, because the September affidavit, like so many of Ms Winn’s affidavits, does not provide details of important and relevant matters, such as names and dates, it is not possible to verify whether she made any such enquiry and, if so, its result. However, I will assume for present purposes that she was advised as she says.
Her mother’s position
In seeking the adjournment of the September 2008 hearing, Ms Winn informed the court that, in April 2008, her elderly mother had become seriously ill and had been in hospital from then until June 2008. Since that time, her mother had been recuperating at home, with Ms Winn’s assistance, which included taking her for regular medical consultations.
Ms Winn also said in her September affidavit that “in the week of 12 September”, her mother had a fall at home and was injured. She said her mother saw the doctor on 12 and 19 September and had x-rays taken, but was not hospitalised. In an affidavit sworn on 12 November 2008 and relied upon before me, Ms Winn said that her mother had fallen and first seen her doctor on 11 September 2008. In neither affidavit were any details provided of the nature or seriousness of any injury, or as to the availability of any other person(s) to assist her mother for a couple of days.
Ms Winn had not suggested, at any time between April 2008 and the late September correspondence, that her mother’s health was in any way relevant to listing considerations, or to her ability to appear at the hearing of the third notice of review.
If her mother’s fall on 11 September was serious enough to potentially prevent Ms Winn from coming to Melbourne a fortnight later, then, given the history of this matter, Ms Winn should have either:
(a) Warned the solicitors and the court at the earliest possible time that the hearing on 29 September might be in jeopardy; and/or
(b) Obtained legal representation to appear for her. The period of two weeks between her mother’s fall and the hearing date would have been more than sufficient time to locate and retain suitable lawyers.
Absence of legal representation
There was no material before Cummins J, or me, to suggest that Ms Winn had made any attempts to obtain legal representation for the September hearing, notwithstanding that she had known of her own and her mother’s health problems for a considerable period of time.
Ms Winn offers two different explanations for the fact that she was not legally represented.
The “unsuitability to instruct others” excuse
In one of her emails to the listing master’s associate on 26 September 2008, Ms Winn had baldly asserted that “this is not a matter where someone can appear for me.”
Costs consultants and other lawyers regularly appear at the hearing of taxations and taxation reviews, in matters of varying degrees of complexity. Ms Winn has not pointed to any feature of the taxation review in this case, which would suggest that she could not have been competently represented by another lawyer before Cummins J.
Indeed, Ms Winn had, on several earlier occasions, requested adjournments or extensions of time for the very purpose of enabling her to obtain legal representation for the taxation. She has not explained this change of position.
Having regard to the nature of the task, and the history of this proceeding, I am satisfied that there was nothing about the review before Cummins J which would have been unsuitable for, or incapable of, argument by another lawyer.
The “inability to instruct” excuse
In her 12 November 2008 affidavit, filed in support of the current application, Ms Winn offers a different explanation for the absence of legal representation. Paragraph 17 of that affidavit asserts that “I sought to represent myself and expected to be able to do so. When I was unable to represent myself, I was therefore also unable to instruct anyone else.”
Just because a person is not well enough to travel interstate, or to appear in court to argue their own case for two days, it does not automatically follow that they are not well enough to instruct lawyers either; some evidence would be needed for the court to come to such a conclusion. There is simply no medical evidence to support the suggestion that Ms Winn was not well enough to instruct somebody else in late September. Furthermore, the preparation by her of various correspondence and the September affidavit, all over a period of two or three days, tends to cast some doubt on the assertion that Ms Winn was too ill to instruct other lawyers at that time.
But, even if she was in fact too ill to instruct others at the end of September, given the nature of chronic fatigue syndrome and her past history, it was irresponsible of her not to have instructed lawyers earlier, at a time when she was well enough to do so.
Other relevant considerations
There are several other matters which may be relevant to a consideration of the reasonableness of Ms Winn’s explanation for her non-attendance, as well as to discretionary matters such as prejudice and the interests of justice. They include the relatively small amount in issue in this proceeding, as well as Ms Winn’s legal training and experience.
The amount in dispute
Throughout this proceeding, Ms Winn had asserted that she should only have to pay the solicitors a total sum of no more than $1,000, for all their work in relation to the three VCAT proceedings. She argues that they should receive nil for the items dealt with in the third notice of review.
When the solicitors filed their bill of costs in taxable form, in July 2005[19], they sought almost $39,000. By the completion of the taxation in June 2006, the taxing master had assessed the solicitors’ entitlement at almost $22,000; that represented a substantial finding in favour of Ms Winn.
[19]After several years of Ms Winn pressing them to produce one in taxable form, as she was entitled to require that they do.
In August 2007, at the second review, the taxing master assessed the costs at just over $20,000. That is to say, the combined effect of the first and second reviews and the appeal to Kaye J was only a further reduction in favour of Ms Winn of about $2,000.
This means that, since June 2006, Ms Winn effectively has been arguing over a sum in the vicinity of $20,000.
Cummins J was informed of the solicitors’ offer of compromise, dated March 2008, in which they offered to accept $12,000 in full and final settlement of their costs. If regard is had to the offer of compromise, Ms Winn has, since March 2008, been fighting about little more than $10,000.
Ms Winn’s knowledge and experience
It is also relevant to have regard to a self-represented litigant’s knowledge and understanding of court processes. A court may be more accommodating in the case of a litigant in person who, by reason of factors such as language, education, intellect or experience, has problems in understanding what is expected of them by way of court procedures.
Ms Winn describes herself in her affidavits as a “barrister”. Kaye J found that Ms Winn was admitted to practice as a barrister and solicitor in Victoria on 16 August 2005, and admitted to the Queensland Bar on 28 September 2006.[20]
[20]Winn v Garland Hawthorn Brahe (Ruling No. 1) [2007] VSC 360 at [2].
It is difficult to come to any firm conclusions, on the limited evidence before me, as to the extent of Ms Winn’s actual professional experience. On the one hand, she appears to have frequently used her professional commitments as a reason why she would be unavailable for hearings on so many dates, or why she had been unable to comply with various court timetables. On the other hand, her 12 November 2008 affidavit asserts that “I have not been able to practise as a result of extenuating personal circumstances since my admission, including those detailed herein.”
Even if it is accepted that Ms Winn has had little actual experience as a barrister, it remain the fact that, unlike many litigants in person, she has some knowledge of court procedures, by reason of her legal education and professional training.
Ms Winn has also had considerable experience of court processes, as a party to at least the following litigation: the three VCAT proceedings and the applications for leave to appeal from them; the Blueprint Printing proceeding, referred to earlier in these reasons; the Supreme Court proceeding against the solicitors which preceded this one; and the County Court proceeding(s), which she relied upon on two occasions in requesting a late hearing time.
Merits of the third application for review
If the orders of Cummins J are set aside, Ms Winn wants the third notice of review to be determined by a judge.
Although a number of earlier cases[21] had suggested that a taxing officer’s discretion as to quantum should never be interfered with, in Australian Coal and Shale Employees’ Federation v The Commonwealth[22] Kitto J said that the proposition was not an absolute one, and the following principles apply.[23] A court will review a decision of the taxing officer where it is contended that he or she has proceeded upon a wrong principle. But, where no principle is involved, and the question is, whether the taxing officer has correctly exercised a discretion which he or she possesses and is purporting to exercise, the court is reluctant to interfere. In the case of a discretionary decision, the court will generally only interfere where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong. Where the question is one of amount only, the court will only interfere in a very exceptional case.
[21]For example: Alsop v Lord Oxford (1833) 1 My & K 564, 39 ER 794; Re Catlin (1854) 18 Beav. 508, 52 ER 200; In the Estate of Ogilvie (1910) P 243; Coon v Diamond Tread Co (1938) Ltd (1950) 2 All ER 385.
[22](1953) 94 CLR 621.
[23]At 628.
Kitto J’s comments have been approved and applied in subsequent decisions.[24]
[24]For example, Magna Alloys & Research Pty Ltd v Coffee (No 2) [1982] VR 97 at 102 per Fullagar J; Anglo-Italian Holdings Pty Ltd v Varallo [2005] VSCA 257.
Ms Winn’s affidavit of 12 October 2008 asserts that there is a “genuine dispute over the legal costs”, but does not descend into any detail about the merits. It merely refers to the third notice of review.
Her affidavit of 12 November 2008 provides a little more detail. In general, the affidavit argues that the solicitors are not entitled to costs for work negligently performed and which was of no use to her. Specifically, it alleges that the review of taxation by the taxing master did not take into account the following:
(a) the solicitor filed three applications unnecessarily (judgment of Kaye J)
(b) [the solicitor] failed to include the main grounds of appeal (opinion of C Maxwell QC) and
(c) [the solicitor] filed the applications out of time (judgment of Byrne J of 2/8/02);
(d) most of the legal costs charged by the solicitor were incurred as a result of that late filing in (c).
An examination of the third notice of review discloses that Ms Winn has challenged virtually every item in the bill of costs. She says that all of the items which she challenges should be taxed at nil. The vast majority of the matters raised by her are properly characterised as matters of quantum only, and raise no point of principle or relevant miscarriage of discretion. As such, they are matters which a judge should ordinarily be reluctant to consider on a review. There is nothing exceptional about this case which would justify the court interfering with the taxing master’s decision in relation to such matters, particularly given the history of this proceeding.
However, it cannot be said that there are no points of principle raised in the third notice of review, particularly those which consider whether the taxing master correctly interpreted and applied relevant provisions of the Legal Practice Act 2006, and whether he properly followed the decision of Kaye J in the appeal.
I was not taken to any supporting material which would enable me to assess the strength of the criticisms of the taxing master’s decision. Nevertheless, I proceed for present purposes on the assumption that Ms Winn can demonstrate an arguable case in respect of some of the points raised in the third notice of review.
However, as mentioned earlier, the existence of an arguable case is a necessary, but not sufficient, matter in deciding whether to set aside an order or judgment obtained in the absence of a party.
Natural justice argument
In her supplementary written submissions, Ms Winn raises a point which was not argued orally. She seems to be arguing that Cummins J’s orders should be set aside because they involve a denial of natural justice. As a matter of principle, I accept that a denial of natural justice may be relevant to an application to set aside.
She notes that Cummins J had said in court that a copy of the ruling and orders would be sent to Ms Winn in the mail. She asserts (without any supporting evidence) that she only received the orders.
Ms Winn says that failure to provide her with the ruling (by which I take her to be referring to the transcript) was a denial of natural justice. It is not clear how it is said that the failure (if there was one) to provide her with a copy of the transcript after the hearing constitutes a denial of natural justice, or how she has been prejudiced by any such failure (particularly given that she has apparently obtained the transcript at some stage).
Ms Winn also says that the ruling contains “adverse findings about [her] that directly affect her interests and reputation.” She does not identify any specific adverse findings, but I assume she is referring to Cummins J’s observations that the history of the matter was characterised by “constant delay and obfuscation” by Ms Winn, and similar observations. She argues that Cummins J was obliged to give her notice of his intention to make such findings and to give her an opportunity to make submissions as to why no such adverse findings should be made.
That submission ignores the facts of this case. Ms Winn had ample notice of the hearing and an opportunity to be heard. She was well aware from previous experience that the substantive application for review might proceed in her absence, if she chose not to appear in person or by a lawyer. She knew (indeed, she requested) that the application for an adjournment proceed in her absence, and she put before the court an affidavit and correspondence supporting her application. Importantly, she has not pointed to anything that she says she would have wanted to put before Cummins J, but was denied the opportunity to do. She simply disagrees with his Honour’s characterisation of her conduct.
I am not persuaded that there is any merit in Ms Winn’s denial of natural justice arguments.
Conclusion
At the beginning of these reasons, I set out in considerable (and, no doubt, rather tedious) detail the history of this proceeding, in order to demonstrate the extraordinary number of indulgences which the court has granted to Ms Winn over the years, by way of adjournments, extensions, or accommodating her specific preferences for listing times or dates.
Given that long and sorry history, Ms Winn’s decision not to appear on 29 September 2008 and, instead, to make yet another last-minute adjournment application, was not a reasonable one. She should have either retained lawyers to act for her (as she had said she would do on so many earlier occasions), or made proper and earlier disclosure of any relevant health problems to the solicitors and the court. She was, or should have been, well aware, both from her previous experience as a party as well as her legal training as a barrister, of the possible consequences of choosing not to attend.
Whilst I do not suggest that a person with a small claim is entitled to lesser justice than a person with a large claim, decisions must sometimes be made having regard to some sense of proportionality. Here, Ms Winn has spent almost 4 years in this proceeding alone, arguing over a relatively small amount of money, in circumstances where the legal costs of this proceeding are likely to exceed the amount being fought over. It is legitimate for the court to have regard to the fact that the solicitors have had to devote substantial resources (in terms of time and money), for many years, arguing about a relatively small amount of money, in circumstances where it seems highly unlikely they would recover all of the actual costs occasioned by Ms Winn’s conduct.
In making those observations, I am well aware of the comments of the High Court in the JL Holdings case, to the effect that, although case management considerations may be relevant, justice, not case management, must be the court’s paramount consideration. However, I respectfully agree with the observation of Finkelstein J in Black & Decker (Australasia) Pty Ltd v GCMA Pty Ltd[25] to the effect that the JL Holdings decision is often (wrongly) relied upon in cases where a simple costs order will not do justice to the parties. I am not satisfied that a simple costs order will do justice here.
[25][2007] FCA 1623.
I am satisfied that the orders made by Cummins J were properly entered against an absent party who, being well aware of the trial date, and the possible consequences of non-attendance, failed to attend the court.
Even if it is accepted that some of Ms Winn’s arguments on the third notice of review are arguable, or not “utterly devoid of merit”[26], that is not sufficient to overcome the fact that I am not satisfied that she has offered a satisfactory explanation for her non-attendance before Cummins J.
[26]To adopt the language used by the Court of Appeal in the recent decision of Jorgenson v Slater & Gordon [2009] VSCA 39.
It follows that the application will be dismissed. I will hear from the parties on the question of costs.
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