Winn v Leigh

Case [2016] FCA 319

FEDERAL COURT OF AUSTRALIA

Winn v Leigh [2016] FCA 319

Appeal from: Application for extension of time and leave to appeal: Winn v Leigh [2014] FCCA 573
File number: QUD 1092 of 2015
Judge: COLLIER J
Date of judgment: 1 April 2016
Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal from decision of Federal Circuit Court – leave to discontinue refused – application dismissed – abuse of process – costs awarded against applicant on standard basis
Legislation:

Federal Court of Australia Act 1976 (Cth) s 43(2)

Federal Court Rules 2011 (Cth) rr 26.12, 26.12(7), 30.25
Cases cited:

Ashby v Slipper [2014] FCA 973

Coshott v Prentice [2014] FCAFC 88

Oil Basins Limited v Watson [2014] FCAFC 154

Oshlack v Richmond River Council (1998) 193 CLR 72

Winn v Leigh [2014] FCA 518
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 1092 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 and leave to appeal filed on 2 December 2015 be dismissed.

2.Ms Winn pay the costs of the respondent 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:

  1. Before the Court is an interlocutory application filed on 10 March 2016 by the applicant in the substantive proceeding, Ms Winn. Issues for determination concern:

    ·an order sought by the applicant, Ms Winn, that the leave of the Court be granted pursuant to r 26.12 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) for her to discontinue an application filed on 2 December 2015. In that application Ms Winn sought an extension of time in which to file a notice of appeal, and leave to appeal, from the decision of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573 (delivered on 14 February 2014); and

    ·an order sought by Ms Winn that there be no orders as to costs.

  2. The primary judgment of his Honour below in respect of which Ms Winn sought an extension of time and leave to appeal was delivered in the context of broader litigation between the parties, which I have recently outlined in my judgment in QUD 1102 of 2015 Winn v Leigh [2016] FCA 320.

    Background

  3. In the primary judgment the subject of this proceeding his Honour observed, in summary:

    ·the substantive matter between the parties was set down for hearing in the Federal Circuit Court on 14 February 2014;

    ·Ms Winn did not comply with timetabling directions and had on the…

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AGLC
Winn v Leigh [2016] FCA 319
Case
[2016] FCA 319
Decision Date

CaseChat Overview and Summary

The case of Winn v Leigh involved an application by Ms Winn for an extension of time and leave to appeal from a decision of the Federal Circuit Court. The primary judgment, delivered by his Honour, was part of broader litigation between the parties, where Ms Winn had not complied with timetabling directions and sought an adjournment on medical grounds. Despite the Federal Circuit Court granting the adjournment and ordering Ms Winn to pay the costs of the respondents on an indemnity basis, Ms Winn sought to discontinue the proceeding in QUD 1092. The parties agreed that the proceeding should not continue, but differed on whether Ms Winn should be granted leave to discontinue and the proper order for costs.

The court had to determine whether to grant Ms Winn leave to discontinue the proceeding or dismiss her application and whether to award costs on a standard or indemnity basis. Ms Winn argued that she had received legal advice against continuing the application, and she intended to pursue the substantive issues in another related proceeding. She also claimed the respondent was uncooperative and had impliedly consented to the discontinuance. The respondent argued that Ms Winn's conduct was inconsistent and that the application was an abuse of process as it mirrored an earlier application dismissed by another judge. The respondent further contended that it did not consent to the discontinuance and sought indemnity costs.

The court dismissed the application for extension of time and leave to appeal, finding that Ms Winn's conduct amounted to an abuse of process. The court held that the application was a re-run of an earlier dismissed matter and was an attempt to circumvent the previous decision. Consequently, the court awarded costs against Ms Winn on a standard basis. The court found that the respondent did not consent to the discontinuance and that the proceeding was an abuse of process, justifying the costs order. The court's decision underscored the importance of adhering to procedural rules and the consequences of misusing court processes.

Orders

Orders of the court

1. The application for extension of time and leave to appeal filed on 2 December 2015 be dismissed.

2. Ms Winn pay the costs of the respondent 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

The primary judgment of his Honour below in respect of which Ms Winn sought an extension of time and leave to appeal was delivered in the context of broader litigation between the parties, which I have recently outlined in my judgment in QUD 1102 of 2015 Winn v Leigh [2016] FCA 320.Background In the primary judgment the subject of this proceeding his Honour observed, in summary:·the substantive matter between the parties was set down for hearing in the Federal Circuit Court on 14 February 2014;·Ms Winn did not comply with timetabling directions and had on the morning of 14 February 2014 sought an adjournment of the hearing for medical reasons;·the respondent did not seek an adjournment, but submitted that if the matter was adjourned it sought its costs thrown away;·his Honour considered the medical evidence scant, and noted that while Ms Winn was self-represented she had legal training. Materially, the primary Judge ordered that:·the hearing be adjourned to 24 March 2014;·Ms Winn pay the costs of the respondents on an indemnity basis; and ·material be filed in anticipation of the hearing on 24 March 2014.The current interlocutory application before the Court The parties in this proceeding are ad idem that the proceeding constituted by QUD 1092 should not continue. Their points of difference lie in respect of:·whether the Court should grant Ms Winn leave to discontinue (or, instead, dismiss her application); and·the proper order as to costs. In respect of both issues, Ms Winn’s submissions can be summarised as follows:·she has received legal advice to the effect that she should not continue this application;·she has taken steps to discontinue, although she is not actually abandoning issues of substance raised by QUD 1092 because she wishes to pursue those issues in a related proceeding, QUD 833 of 2015;·the respondent has been uncooperative, including filing material when he knew that she wished to discontinue;·the respondent impliedly consented to discontinuance by her of QUD 1092 by including in the list of material to be read in QUD 1092 an outline of submissions prepared by Counsel for the respondent in QUD 1102 on 14 March 2016. I note that Ms Winn attached this outline as annexure JW-3 to her affidavit sworn 19 March 2016 in this proceeding;·like her application in QUD 1102, the application for extension of time and leave to appeal in this proceeding was never validly served because a sealed copy was never served by her on the respondent. This point was only raised by the respondent the day prior to the hearing of this matter, and to that extent the respondent should be penalised by a costs order;·unlike the respondent, Ms Winn has sought to minimise costs. The respondent’s position can be summarised in the following terms:·The conduct by Ms Winn of QUD 1092 can properly be described as “a moveable feast”. Until recently Ms Winn sought to include material from this proceeding in QUD 1102 of 2015 – she now seeks to include material from this proceeding in QUD 833 of 2015.·It is clear that the draft notice of appeal in this proceeding is the same as that before Rangiah J in QUD 79 of 2014, in respect of which his Honour gave judgment in Winn v Leigh [2014] FCA 518. It follows that the application for extension of time and leave to appeal before the Court in this proceeding is an attempted re-run of the matter before Rangiah J, and should be dismissed as an abuse of process.·The respondent rejects any suggestion that it impliedly consented to discontinuance of QUD 1092 by Ms Winn. To the extent that the respondent sought to read material from QUD 1092 in the proceedings in QUD 1102 it did so to minimise costs in accordance with r 30.25 of the Federal Court Rules.·Because the proceeding is an abuse of process the Court should award indemnity costs against Ms Winn.Consideration

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent’s position can be summarised in the following terms:·The conduct by Ms Winn of QUD 1092 can properly be described as “a moveable feast”. Until recently Ms Winn sought to include material from this proceeding in QUD 1102 of 2015 – she now seeks to include material from this proceeding in QUD 833 of 2015.·It is clear that the draft notice of appeal in this proceeding is the same as that before Rangiah J in QUD 79 of 2014, in respect of which his Honour gave judgment in Winn v Leigh [2014] FCA 518. It follows that the application for extension of time and leave to appeal before the Court in this proceeding is an attempted re-run of the matter before Rangiah J, and should be dismissed as an abuse of process.·The respondent rejects any suggestion that it impliedly consented to discontinuance of QUD 1092 by Ms Winn. To the extent that the respondent sought to read material from QUD 1092 in the proceedings in QUD 1102 it did so to minimise costs in accordance with r 30.25 of the Federal Court Rules.·Because the proceeding is an abuse of process the Court should award indemnity costs against Ms Winn.Consideration In my view the appropriate order is to dismiss the proceeding in QUD 1092 of 2015 for abuse of process, rather than grant Ms Winn leave to discontinue. I take this view for the following reasons. The opening paragraphs of the judgment of Rangiah J in Winn v Leigh [2014] FCA 518 read as follows:1.The applicant has applied for leave to appeal against two orders made by a judge of the Federal Circuit Court on 14 February 2014. The orders were:(5)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.(6)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 2014.2.The applicant’s principal proceeding in the Federal Circuit Court was for orders under the Bankruptcy Act 1966 (Cth) that the trustee prove and quantify any debt, for annulment of the bankruptcy and for an inquiry into the trustee’s conduct.3.The hearing of the application was set down for 14 February 2014, but the applicant apparently sought an adjournment (although she disputes that she, in fact, sought that adjournment). His Honour granted the adjournment but decided to order the applicant to pay the respondent’s costs thrown away. His Honour’s reasons state:7.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.8.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.