Winn v Leigh

Case [2016] FCA 683

FEDERAL COURT OF AUSTRALIA

Winn v Leigh [2016] FCA 683

Appeal from: Application for extension of time and leave to appeal: Winn v Leigh [2014] FCCA 573
File number: QUD 833 of 2015
Judge: COLLIER J
Date of judgment: 9 June 2016
Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – decision of Federal Circuit Court – whether application for extension of time and leave to appeal should be dismissed under r 35.32 of the Federal Court Rules 2011 for want of prosecution – whether failure to comply with programming directions – submissions did not address merits of the substantive issue – amended index substantially different from index previously filed – amendments made to the index not marked up – chronology included controversial and irrelevant facts and did not make reference to the appeal book – applicant has a history of non-compliance – applicant is legally qualified – release from undertaking – application dismissed
Legislation:

Bankruptcy Act 1966 (Cth)

Federal Circuit Court Rules 2001 (Cth) rr 13.03A(1)(a), 13.03A(1)(b), 13.03A(1)(e), 16.05(2)(a)

Federal Court Rules 2011 (Cth) rr 35.32, 36.55
Cases cited:

Agar v Hyde (2000) 201 CLR 552

Ashby v Slipper [2016] FCAFC 63

AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193

Burton v Shire of Bairnsdale (1908) 7 CLR 76

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 4) [2009] FCA 461

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Smith v Barron (2004) 139 FCR 566

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Winn v Leigh [2014] FCA 518

Winn v Leigh [2015] FCCA 2256

Winn v Leigh (No 2) [2016] FCCA 1292

Winn v Leigh [2016] FCA 319

Winn v Leigh [2016] FCA 320

Woods v Harwin [1993] NSWCA 291

Colman A, Lyon V and Hopkins P, The Practice and Procedure of the Commercial Court (Informa, 2008)

Leabeater J, McCafferty L, Purchas J and O’Sullivan S, Civil Appeals: Principle and Procedure (Sweet & Maxwell, 2010)

Zuckerman A, Zuckerman on Civil Procedure (3rd ed, Sweet & Maxwell, 2013)
Date of hearing: 7 June 2016
Registry: Queensland
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 51
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms A Wheatley
Solicitor for the Respondent: RBG Lawyers

ORDERS

QUD 833 of 2015
BETWEEN:

JULENE WINN

Applicant
AND:

DAVID JOHN LEIGH

Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

7 JUNE 2016

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal filed 29 April 2016 be dismissed for want of prosecution pursuant to rule 35.32 of the Federal Court Rules 2011 (Cth).

2.The respondent be released from his undertaking given on 13 November 2015 as set…

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AGLC
Winn v Leigh [2016] FCA 683
Case
[2016] FCA 683
Decision Date

CaseChat Overview and Summary

In Winn v Leigh, the applicant, Ms Winn, sought an extension of time and leave to appeal a decision of the Federal Circuit Court. The respondent, Mr Leigh, objected to the competency of the appeal and sought its dismissal. The primary issue for the Court was whether the application for extension of time and leave to appeal should be dismissed under rule 35.32 of the Federal Court Rules 2011 (Cth) for want of prosecution. The Court considered whether Ms Winn had failed to comply with the Court's programming directions, whether her submissions had addressed the merits of the substantive issue, and whether her amended index was substantially different from the previously filed index.

The Court found that Ms Winn had a history of non-compliance in the proceedings, despite being a legally qualified barrister. She had failed to comply with previous orders, had repeatedly sought to raise the same issues, and had not filed an amended index as directed. Furthermore, her submissions did not address the merits of the substantive issue, and her amended index was substantially different from the previously filed index without proper markup. The Court also noted that Ms Winn had a history of changing legal representation and had not yet retained new lawyers for the upcoming hearing. The Court concluded that dismissing the application for extension of time and leave to appeal was necessary to maintain procedural fairness and to prevent unnecessary costs to the respondent.

The Court dismissed the application for extension of time and leave to appeal for want of prosecution under rule 35.32 of the Federal Court Rules 2011. The respondent was released from his undertaking, and the interlocutory application filed by Ms Winn was also dismissed. The Court ordered that the respondent's costs be paid by Ms Winn, to be taxed if not otherwise agreed.

Orders

Orders of the court

1. The application for extension of time and leave to appeal filed 29 April 2016 be dismissed for want of prosecution pursuant to rule 35.32 of the Federal Court Rules 2011 (Cth).

2. The respondent be released from his undertaking given on 13 November 2015 as set out in Order 1 of the orders of that date.

3. The interlocutory application filed by the applicant on 19 October 2015 be dismissed.

4. The costs of the respondent be paid by the applicant, such costs to be taxed if not otherwise agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

At the time of making these orders I told the parties that I would deliver written reasons. These are those reasons.BACKGROUND Ms Winn is a barrister, and is a bankrupt under the Bankruptcy Act 1966 (Cth). In the Federal Circuit Court Ms Winn sought an order that her bankruptcy be annulled, but her application to that effect was dismissed on 24 March 2014 pursuant to r 13.03A(1)(a), r 13.03A(1)(b) and r 13.03A(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules). Subsequently Ms Winn sought to have the decision of the Federal Circuit Court of 24 March 2014 set aside pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules. This application was dismissed on 20 August 2015: Winn v Leigh [2015] FCCA 2256 (the FCCA Decision). On 23 November 2015 Ms Winn filed a supplementary notice of appeal from the FCCA Decision (following earlier notices of appeal filed on 10 September 2015 and 8 October 2015). On 15 March 2016 the respondent filed a notice of objection to the competency of the appeal, on the basis that the orders of the Federal Circuit Court Judge in the FCCA Decision were interlocutory and required leave. Subsequently on 29 April 2016 Ms Winn filed an application for extension of time and leave to appeal from the FCCA Decision. On 1 April 2016 I made the following orders:1.In accordance with r 4.05(2) of the Federal Court Rules 2011 (Cth) the appellant file an address for service in these proceedings, which includes her email address …2.On or before 4 pm on 29 April 2016, the appellant file and serve an application for leave to appeal and extension of time in this proceeding.3.On or before 4 pm on 29 April 2016, the appellant file and serve an affidavit in support of the application referred to in Order 2.4.On or before 4 pm on 29 April 2016, the appellant file and serve any amended index to Part A and Part B of the appeal book as currently filed.5.On or before 4 pm on 6 May 2016, the respondent file and serve any affidavits in relation to the appellant’s application referred to in Order 2 and any response to any amended index referred to in Order 4.6.On or before 4 pm on 20 May 2016, the appellant file and serve her outline of submissions and chronology of the relevant events.7.On or before 4 pm on 1 June 2016, the respondent file and serve his outline of submissions and chronology, together with a list of material the respondent requires to be included in Part C of the appeal book.8.On or before 4pm on 3 June 2016, the appellant file and serve any outline of submissions in reply.9.On or before 4pm on 8 June 2016, the appellant must file and serve Part C of the appeal book. The appellant must file two copies of Part C of the appeal book.10.On or before 4pm on 8 June 2016, the appellant must file and serve a list of authorities and legislation to which the appellant intends to refer.11.On or before 4pm on 9 June 2016, the respondent must file and serve a list of authorities and legislation to which the respondent intends to refer.12.The appellant’s application referred to in Order 2 of these orders, the respondent’s notice of objection to competency and the appeal be listed for hearing at 10.15am on 14 June 2016 for one day.13.Costs be reserved.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In this case, Ms Winn’s failure to comply with orders 2 and 3 of 3 June 2016 must be read in the following context:·Ms Winn has a history of non-compliance in this proceeding. I note for example:oMs Winn did not comply with the orders of 1 April 2016. As a result the matter was required to be relisted on 3 June 2016 for further directions;oIn paragraphs 7, 14 and 16-20 of the draft notice of appeal annexed to the application for extension of time and leave to appeal Ms Winn seeks – again – orders from this Court relating to the orders of the Federal Circuit Court of 14 February 2014. Rangiah J dismissed an application for leave to appeal against those orders: Winn v Leigh [2014] FCA 518. In Winn v Leigh [2016] FCA 319 I dismissed as an abuse of process a further application by Ms Winn in which she sought to agitate, again, matters relating to those orders;oMs Winn has sought to rely on a further affidavit sworn by her on 6 June 2016. On 3 June 2016 I refused leave for her to rely on a further affidavit;oOrder 4 of 13 November 2015 provides that Ms Winn not file any further amended supplementary notices of appeal without leave of the Court. Notwithstanding this, the draft notice of appeal annexed to the application for extension of time and leave to appeal is in different terms to the notice of appeal already filed by Ms Winn with leave.·While Ms Winn is self-represented, she is a legally qualified barrister. In this respect, Ms Winn is not subject to the possible disadvantages in knowledge and expertise which may be experienced by litigants in person who are not lawyers endeavouring to comply with Court orders.·I note that, for reasons not properly explained, Ms Winn’s appointed lawyers ceased acting for her some time between the directions hearing of 3 June 2016 and the directions hearing of 7 June 2016. While the lack of legal representation is in no way an impediment to the Court hearing the applications of an individual litigant, it is clear that Ms Winn sought to rely on lawyers to represent her in these proceedings to prosecute her case. I note however that, to date in these proceedings, Ms Winn has retained (and then ceased to retain) three firms of lawyers. She claimed orally that she had retained “other solicitors, who will take over now, and I also have senior counsel who are willing to assist me formally and informally” (transcript 7 June 2016 p 17 ll 18-19). Notwithstanding that, as at 7 June 2016 no lawyers had entered an appearance for Ms Winn. I have difficulty accepting that Ms Winn would be able to retain a fourth firm of lawyers for the hearing which was listed for 14 June 2016.·The directions hearing of 7 June 2016 was only one week before the application for extension of time and leave to appeal, and the actual appeal, were listed for hearing. Ms Winn submitted that she would be able to file submissions addressing the grounds of appeal by the following day, namely 8 June 2016. In my view however, an indulgence by the Court to that effect would be unfair to the respondent, both procedurally and in respect of the costs which the respondent would be required to incur. In this respect, I accept the submission of Ms Wheatley that, as at 7 June 2016, the respondent was facing two different draft notices of appeal, that none of the grounds of appeal in the draft notices of appeal had apparently been abandoned by Ms Winn, and the respondent would be obliged to file his own submissions within two days of receipt of Ms Winn’s submissions (assuming those submissions were produced and meaningful).·The final hearing of this matter had been previously listed for 4 February 2016 and 23 March 2016, and vacated. Ms Winn advanced the proposition that the hearing date of 14 June 2016 be vacated (transcript 7 June 2016 p 17 ll 15-19). I consider it likely that Ms Winn is not, in fact, ready for trial. In my view however vacating the hearing date at this stage, in the face of opposition by the respondent, would be unfair to the respondent, and unacceptable to the Court from a case management perspective.Conclusion

Ratio Decidendi

Legal Principle Established

In response, Ms Winn submitted, in summary, as follows:·She had been abandoned by her lawyers with little notice and had to prepare the submissions and chronology by herself, including retyping the index.·Preparation of the index is an administrative function, as it is not a pleading.·The submissions of the respondent raise a much larger issue, namely the content of the notice of appeal. Ms Winn had no notice that this was to be addressed at the hearing of 7 June 2016.·She had told the respondent that she was not proceeding on 20 grounds, but rather there were approximately 8 original grounds and she wanted her Counsel to go through the material and focus on those grounds. This has not happened because she has had three different lawyers on this matter.·There has only been a very small period of time when she has been acting for herself. It has been during those times that she has had to develop arguments herself.·She had an accident and broke her foot, which meant that she could not meet new lawyers.·Because of her health issues she knew that she could not conduct the matter herself.·She has endeavoured to comply with orders of the Court.·An option is for the Court to vacate the hearing date and reschedule the hearing for the near future.·She has arranged for other solicitors and Senior Counsel to assist her formally and informally.·She would be in a position to identify which grounds of appeal would proceed, file a basic affidavit, and prepare further submissions, for filing on 8 June 2016, in order that the hearing could proceed on 14 June 2016. This would give the respondent time to respond.·She did not envisage preparing 20 pages of submissions.CONSIDERATION This proceeding is part of broader litigation between the parties which I described in Winn v Leigh [2016] FCA 320. It is clear from the procedural history of this case that, notwithstanding that Ms Winn is legally qualified, she has had considerable difficulty articulating her case. Indeed listed for hearing on 14 June 2016 were her application for extension of time and leave to appeal from the FCCA Decision, her appeal from the FCCA Decision, and a notice of objection to the competency of Ms Winn’s appeal. In this case the respondent has not sought summary dismissal of the applicant’s case on the basis that it is frivolous or vexatious – rather the respondent has sought summary dismissal of Ms Winn’s application for extension of time and leave to appeal on the basis of r 35.32 of the Federal Court Rules which provides:35.32 Dismissing application for want of prosecutionA respondent to an application under rule 35.12 or 34.14 may apply to the Court for an order that the application be dismissed:(a) for an applicant’s failure to comply with a direction of the Court; or(b) for an applicant’s failure to comply with these Rules; or(c)for an applicant’s failure to attend a hearing relating to the application; or(d) for want of prosecution. In particular, the respondent has relied on his claim that the applicant failed to comply with orders 2 and 3 of the Court of 3 June 2016 that:2.On or before 4 pm on 6 June 2016, the appellant file and serve any amended index to Part A and/or Part B of the appeal book as currently filed.3.On or before 4 pm on 6 June 2016, the appellant file and serve her outline of submissions and chronology of the relevant events.