FEDERAL COURT OF AUSTRALIA
Winn v Leigh [2016] FCA 320
Appeal from: Application for extension of time: Winn v Leigh [2015] FCCA 2256 File number: QUD 1102 of 2015 Judge: COLLIER J Date of judgment: 1 April 2016 Catchwords: PRACTICE AND PROCEDURE – application for extension of time – sealed copy of application not served on respondent – whether proceeding was invalid due to lack of service of sealed copy – notice of objection to competency of appeal filed – whether costs should be made against the respondent for not raising claims of invalidity earlier – application for extension of time dismissed – costs awarded against the applicant on a standard basis Legislation: Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth) s 43(2)
Federal Court Rules 2011 (Cth) rr 36.05, 36.06, 36.72(1)
Federal Circuit Court Rules 2001 (Cth) rr 13.03A(1)(a), 13.03A(1)(b), 13.03A(1)(c), 16.05(2)(a)
Cases cited: Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27
Marchant v GB Radio [2002] FCA 465
Oshlack v Richmond River Council (1998) 193 CLR 72
Probiotec Limited v University of Melbourne (2008) 166 FCR 30
Date of hearing: 23 March 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms AL Wheatley Solicitor for the Respondent: RBG Lawyers ORDERS
QUD 1102 of 2015 BETWEEN: JULENE WINN
Applicant
AND: DAVID JOHN LEIGH
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
1 APRIL 2016
THE COURT ORDERS THAT:
1.The application for extension of time filed on 3 December 2015 be dismissed.
2.Ms Winn pay the respondent’s costs of and incidental to the proceeding to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
Before the Court is an application for extension of time in which to lodge an appeal from a decision of the Federal Circuit Court of Australia in Winn v Leigh [2015] FCCA 2256. It is useful to note a number of preliminary points.
First, this proceeding is closely related to other proceedings currently before the Court in QUD 1092 of 2015 and QUD 833 of 2015. This is because the proceedings in those matters arise from the same substratum of facts as in this case. In essence: the parties have been involved in a long-running dispute which resulted in Ms Winn’s bankruptcy, and Ms Winn sought orders under the Bankruptcy Act 1966 (Cth) that the trustee prove and quantify any debt, for annulment of her bankruptcy and for an inquiry into the trustee’s conduct (the substantive matter). I also note that this proceeding is related to a separate proceeding in this Court in respect of which judgment has been given, namely Winn v Leigh [2014] FCA 518. To summarise the…
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- AGLC
- Winn v Leigh [2016] FCA 320
- Case
- [2016] FCA 320
- Decision Date
CaseChat Overview and Summary
The court found that the application for an extension of time was indeed invalid due to the failure to serve a sealed copy of the application as required by the Federal Court Rules. However, the court rejected Winn's argument that the entire proceeding was invalid as a result of this non-compliance. The court held that Leigh had been aware of the application and had proceeded on the basis that it was valid, and it would be improper to allow Winn to benefit from her own failure to comply with the Federal Court Rules. The court also dismissed Winn's argument that Leigh should be penalised in costs for raising the issue of invalidity late, finding that Leigh's notice of objection to competency served its purpose of alerting Winn to his position should the appeal proceed.
The court concluded that the appropriate orders were to dismiss Winn's application for an extension of time and order Winn to pay Leigh's costs of and incidental to the proceeding, to be taxed if not otherwise agreed. The court exercised its discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) and found that Winn's arguments were without merit. The court held that Winn's conduct in this matter could best be described as her "clutching at straws to avoid the usual consequence of an application being dismissed, namely costs following the event".
The final orders of the court were that Winn's application for an extension of time filed on 3 December 2015 be dismissed, and that Winn pay Leigh's costs of and incidental to the proceeding to be taxed if not otherwise agreed.
Orders
Orders of the court
1. The application for extension of time filed on 3 December 2015 be dismissed.
2. Ms Winn pay the respondent’s costs of and incidental to the proceeding 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent rejects Ms Winn’s arguments, submits that he has never made an issue of the fact that Ms Winn never served him with an unsealed copy of her application for extension of time, and seeks his own costs which follow the dismissal of Ms Winn’s application.Consideration In my view the appropriate orders are to dismiss Ms Winn’s application for extension of time and order Ms Winn to pay the respondent’s costs of and incidental to the proceedings, to be taxed if not otherwise agreed. I have formed this view for the following reasons. First, as is clear from s 43(2) of the Federal Court of Australia Act 1976 (Cth) the award of costs is in the discretion of the Court or Judge. The only limitation on the power of the Court under s 43 to award costs is that the power must be exercised judicially: Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; Probiotec Limited v University of Melbourne (2008) 166 FCR 30 at [47], [50]. Second, in this proceeding Ms Winn has filed an application for extension of time in which to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules. Rule 36.06 of the Federal Court Rules provides that:A notice of appeal under r 36.01 or an application under r 36.05 must be served in one of the following ways:(a)by serving a signed and sealed copy of the document personally on the party;(b)by delivering a signed and sealed copy of the document to that party’s address for service in the proceeding in the court appealed from. I understand that Ms Winn has not, at any time, actually served a sealed copy of her application on the respondent – rather she sent the respondent, by facsimile transmission, an unsealed copy of her application. Notwithstanding this apparent oversight by Ms Winn, the respondent has proceeded on the basis that the application for extension of time was filed. This was a correct assumption. In the circumstances I consider it would be improper to permit Ms Winn to use against the respondent her own failure to comply with the Federal Court Rules by way of service of a sealed copy of her application on the respondent. Third, Ms Winn is incorrect in submitting that the entire proceeding in QUD 1102 is invalid for want of Ms Winn serving a sealed copy of her application for extension of time on the respondent. Ms Winn’s application was clearly filed with the Federal Court Registry on 3 December 2015 and is available electronically to the parties. The respondent was clearly aware of the proceeding, having been served with an unsealed copy of Ms Winn’s application. The matter has been listed for directions before the Court on multiple occasions, and was listed for hearing on 23 March 2016. This is not a case where, for example, judgment has been given in default of a respondent being served with process and thus being unaware of the proceeding. Fourth, in her submissions and at the hearing Ms Winn submitted, in summary, that as the respondent raised the invalidity of the proceeding for the first time the day before the hearing, she was not in a position to meet such argument with such little notice, and the respondent ought be penalised in costs.