Winn v Leigh
[2014] FCCA 573
•14 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WINN v LEIGH | [2014] FCCA 573 |
| Catchwords: BANKRUPTCY – Trial – adjournment – costs. |
| Legislation: Bankruptcy Act 1966 |
| Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 |
| Applicant: | JULENE WINN |
| Respondent: | DAVID LEIGH |
| File Number: | BRG 1127 of 2012 |
| Judgment of: | Judge Coates |
| Hearing date: | 14 February 2014 |
| Date of Last Submission: | 14 February 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 14 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms A Wheatley |
| Solicitors for the Respondent: | Rodgers Barnes & Green Lawyers |
ORDERS
That the Applicant file and serve any further affidavit material that she intends to rely upon by 4:00pm 28 February 2014.
That the Respondent file and serve any further affidavit material that he intends to rely upon by 4:00pm 14 March 2014.
That the Applicant file and serve any affidavit material in reply that she intends to rely upon by 4:00pm 19 March 2014.
That the Respondent is granted leave to file an Amended Grounds of Opposition.
That the Application be adjourned to 9:30am on 24 March 2014 for final hearing (with an estimated hearing time of 1 day) in the Federal Circuit Court of Australia sitting at Brisbane.
That the Applicant pay the Respondent’s cost of and incidental to these proceedings on an indemnity basis fixed in the sum of $7982.00 by no later than 4.00pm on 14 March 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1127 of 2012
| JULENE WINN |
Applicant
And
| DAVID LEIGH |
Respondent
REASONS FOR JUDGMENT
This matter was set down for trial today. In October, several directions were made in order to have the matter ready. The applicant has not complied with the directions. Material on the applicant’s application is incomplete. Earlier this morning, she said she would seek an adjournment. The respondent says that material in the respondent’s case has not been filed because the applicant has not complied with the directions. I fully accept that a respondent cannot file material in answer to evidence and propositions being put by an applicant if the applicant has not put that evidence before the Court.
The respondent is prepared to proceed today. The respondent does not seek an adjournment, but if I grant an adjournment, the respondent seeks costs thrown away and seeks that if those costs are not paid, the matter be stayed or dismissed.
In Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27, the High Court seems to be setting a new and more rigid path for the lower courts to follow in relation to adjournments. At paragraph 5 of his judgment, the Chief Justice said:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfairness prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to the ANUs statement of claim should not have been allowed. The discretion of the primary judge miscarried.
The applicant produced a medical certificate dated 1 February 2014. It is from a Dr Marius Bosch of Medicross Strathpine, which I assume is a medical practice. Dr Bosch says this. The applicant:
...is a patient attending our practice. She is known with depression, anxiety and lengthened bereavement for many years. She is currently struggling with tendonitis and arthritis of her left hand and is only able to type with her right hand in preparing of her court documents. She is requesting adjournment of the court hearing on 15 February 2014 on the above grounds.
The medical certificate is not extremely helpful. What the Court would need to know is the length of time which the applicant has been incapacitated from depression and anxiety and lengthened bereavement and tendonitis and arthritis of her left hand. The doctor’s certificate gives me no relevant information. Assuming I can rely on that certificate, the closest I got in questioning the applicant as to when she would be ready for trial would be sometime in March. She also has told me that she has been left to prepare this matter herself and expected legal assistance has not been forthcoming.
It may be, and it probably will be the case, that the applicant remains an unrepresented litigant. There have been numerous judgments of recent years with regard to unrepresented litigants. The Federal Court recently, in the case SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, clearly stated the test to be applied, which is that a trial shall be fairly held. In short, I need to ensure fairness not only to a self‑represented litigant but to represented parties. It would be a travesty if a self‑represented litigant merely exploited the position that they were self‑represented to gain some sort of consideration which would not otherwise be extended.
Having said that, the applicant, who is a self‑represented litigant, from my understanding, has had some legal training. If that is the case, then she perhaps may be in a very different position from somebody who has not had legal training. In any event, she raises an application. She expects the application to be heard. Despite my view that she puts forward a fairly flimsy excuse for non‑compliance with trial directions, I am prepared to grant an adjournment. It is on this basis that costs thrown away be paid within 28 days. If costs thrown away are not paid, then I will give consideration to any application by the respondent which then comes before the Court.
The schedule of this Court’s rules are for party‑and‑party costs. Item 6 is for preparation for final hearing of a one‑day matter in general federal proceedings, and that is in the amount of $5988. Item 13(c) is the daily hearing fee for a full day’s hearing, which is what this matter was set down for, of $1994. Those two amounts are ordered to be paid by the applicant within 28 days. I will set this matter down for hearing regardless on 24 March 2014. I have made the orders with regard to the filing of material. I will now hear from the applicant as to when she will comply out of time with the orders I made in October.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 24 March 2014
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