Winn v Leigh as Former Trustee of the Estate of JULENE Winn (No.3)

[2020] FCCA 3083

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN (No.3) [2020] FCCA 3083

Catchwords:
BANKRUPTCY – Ongoing illness of applicant requiring repeated adjournments – no utility in listing matter at any time in the future until the applicant produces evidence that she is capable of prosecuting her claims – hearing of applications stayed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.15.

Federal Circuit Court Rules 2001 (Cth), rr.13.03B(1)(a), 16.01.

Applicant: JULENE WINN

Respondent: DAVID JOHN LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN

Intervener: THE OFFICIAL TRUSTEE

File Number: BRG 1072 of 2018

Judgment of: Judge Egan

Hearing date: 9 November 2020

Date of Last Submission: 9 November 2020

Delivered at: Brisbane

Delivered on: 9 November 2020

REPRESENTATION

Applicant: No appearance

Respondent: No appearance

Counsel for the Intervener: Ms Ahern

Solicitor for the Intervener: McCullough Robertson

ORDERS

1. Pursuant to the provisions of s. 15 of the Federal Circuit Court of Australia Act 1999 (Cth) and r. 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the hearing of the Originating Application filed on 10 December 2018 and the hearing of the Applicant’s Applications in a Case filed on 21 April 2020 and 18 June 2020 be stayed, until the Applicant:

   i)files an affidavit attaching medical reports from each of her treating specialist medical practitioners, whereby such practitioners advise that the Applicant was, immediately prior to the filing of the affidavit, fit and able enough to proceed with her legal proceedings in this matter; and

   ii)Engages lawyers for the purpose of prosecuting her claims in this Court.

2. Each party have liberty to apply on the giving of seven (7) days’ notice, each to the other.

3. The costs of and incidental to this application be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1072 of 2018

JULENE WINN

Applicant

And

DAVID JOHN LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN

Respondent

THE OFFICIAL TRUSTEE

Intervener

REASONS FOR JUDGMENT

1. By order of the Federal Court of Australia, proceedings filed in that court were transferred for hearing in the Federal Circuit Court of Australia at Brisbane on 18 October 2018.  Since the time that this Court has had jurisdiction in this proceeding, there have been about six occasions on which the applicant has sought an adjournment of hearings of the Court because of her poor medical condition.  The Court has acceded to the applicant’s application for an adjournment on each such occasion. 

2. The applicant has on foot various applications which were last listed for hearing on 3 September 2020.  Those applications were adjourned for hearing to today.  Ms Winn has again sought the adjournment of today’s hearing because of her poor medical condition. 

3. It is the responsibility of this Court to endeavour to ensure that matters are heard and determined as expeditiously as possible, and for the least cost possible.  It is unfortunate that the applicant has a multitude of medical conditions that prevent her from enabling the court to function effectively, such that expense is not unnecessarily incurred to parties other than the applicant.  It is frustrating for both the Court and for the other parties to regularly be called upon to appear before this Court only to be faced with an application for an adjournment of a hearing because of the applicant’s poor medical condition.  That is the situation which has occurred too often in the past, and this Court is not prepared to allow it to continue.

4. The Court accepts the submissions on behalf of the intervener save as to the question of costs.  It is appropriate that the question of costs be decided if this matter is ultimately to be determined, or alternatively, if it is demonstrated that there is no likelihood of the matter ever progressing to a final hearing, such that the intervener or some other party is minded to make an application for costs in such circumstances and at that time. 

5. The Court has wide powers to make orders dealing with how a matter is most appropriately to proceed once filed or transferred for hearing in this jurisdiction.  In the present case, the Court sees no utility in again listing the matter for the hearing of an interlocutory application in January 2021, or indeed at any other time, in circumstances where past history would suggest that if the Court was to do so, there is a likelihood that such matter would be the subject of a further adjournment application made by the applicant. 

6. In such circumstances, the Court considers it appropriate to stay the hearing of the substantive application, and any other application filed on behalf of the applicant, pursuant to r. 16.01 of the Federal Circuit Court Rules 2001 (Cth), until such time as:

   i)the applicant files an affidavit attaching medical reports from each of her specialist medical practitioners, whereby such practitioners advise that the applicant is as and is, as and from a future time (yet to be determined), fit and able to proceed with her legal proceedings in this matter; and

   ii)engages lawyers for the purpose of prosecuting her claims in this Court. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 13 November 2020