Winn v LEIGH (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH (No.2)

[2016] FCCA 1292

Catchwords:
BANKRUPTCY – Application for amendment of orders – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.16.05(2)(e)

Cases cited:
Hamlin v the University of Queensland [2013] FCCA 1129
Flint v Richard Busuttil & Co Pty Ltd (2013) 305 ALR 522

Applicant:

JULENE WINN

Respondent:

DAVID LEIGH

File Number:

BRG 1127 of 2012

Judgment of:

Judge Coates

Hearing date:

6 May 2016

Date of Last Submission:

6 May 2016

Delivered at:

Brisbane

Delivered on:

6 May 2016

REPRESENTATION

Solicitors for the Applicant:

No appearance

Counsel for the Respondent:

Ms A Wheatley

Solicitors for the Respondent:

RBG Lawyers

ORDERS

That the Applicant’s application for amendment of Order 2 of the Orders dated 20 August 2015 pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules2001 be dismissed.
That the Respondent’s costs of today be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1127 of 2012

JULENE WINN

Applicant

And

DAVID LEIGH

Respondent

REASONS FOR JUDGMENT

This is a matter in the bankruptcy jurisdiction.
It has been before me on several occasions and although there is not a formal application to bring the matter back by Ms Julene Winn, I made the decision upon being informed of correspondence to list the matter so it could be resolved.
In short, Ms Winn complains about costs – about costs orders – which I made on 20 August 2015.
The substance of her complaint is that there is a mistake in the orders wherein I allowed for the costs to be applied against her for two amounts – one for counsel and one for her instructing solicitor.
The order I made was that Ms Winn pay by way of costs $6,646. The order was based on submissions which were clearly available and clearly seen in the transcript of that day from counsel for the respondent, at page 22 from line 10 to line 20. I will just quote. Counsel put this:
“But in any event, that is, in my submission, a full day’s hearing, so that is the appropriate amount, and I would seek an amount – the old scale is $1994. I would seek that with the advocacy loading that is mentioned in item 12 of 50 percent, which brings that amount to $2991. I would seek that amount for counsel, and I would seek a full day’s hearing fee of $1994 for my instructing solicitor.”
Now, the transcript shows that I immediately said this:
“So is that – just so I understand and Ms Winn understands - - -”
and then there was submission again confirming those figures.
I must say, I had no reason to question the amounts being put forward as not being capable of being made by way of costs orders. It was my understanding that I could make the orders I did.
Ms Winn, in correspondence to the court – and I really take that as an oral application, Ms Winn contends by way of very short submission in writing, that the amount ought be $4,652, and that the order I made of $6,646 ought be reduced by an amount of one daily hearing fee sum of $1,994. And she says I can do that under the slip rule. Ms Winn is not present. Ms Winn was not represented, but as a barrister, she sent an email to the court this morning stating this:
“Due to an accident and injury I am unable to attend court this morning.
I intended to make submissions.”
and she then made her written submissions, numbered one through to five.
Despite the correspondence, I took a decision this morning and instructed my associate to contact Ms Winn.
My associate informs me she sent an email to Ms Winn indicating that the court would extend to her leave to appear by telephone, obviously, because on the face of her material she says she has an injury.
It is obviously not an injury preventing her from making submissions because she sent this email this morning, although there is no evidence of the accident or the injury or when such event occurred.
I just wanted to deal with the matter so that I could resolve the issues before this court once and for all.
Although there is an appeal against the orders I made on the day, Ms Winn, as I contemplated, was really asking me to make an amendment under the slip rule.
If there is an error which can be addressed under the slip rule then, quite properly, I should address that error.
I have been taken to two cases. The first is Hamlin v the University of Queensland [2013] FCCA 1129 by Judge Jarrett.
It is clear from a reading of that judgment the orders I made were those which I contemplated I could make, and which seemed to have no controversial value at the time I made the orders.
The same is supported in another judgment, Flint v Richard Busuttil & Co Pty Ltd (2013) 305 ALR 522.
That judgment refers to cost orders in line with the manner and the method which I adopted.
In Flint the judgment addressed the application on the slip rule when the slip rule could be applied.
There is no evidence, but this is the submission of Ms Winn, and that is that she failed to comprehend on the day I made the costs orders that she perceived what she contends occurred now, and that is that I made an error.
She says why she failed to perceive it.
It is not in evidence, though.
But, clearly, the transcript shows that I wanted, again, the submission as to the calculations of costs repeated, because I said this:
“So is that – just so I understand and Ms Winn understands - - - “
I was being as clear as I could be, because I had before me an unrepresented litigant, and I was attempting to discharge my duty of being fair in all of the circumstances of the case.
In my view, I cannot see an error which I have allegedly made and made an order which I had not intended to make.
In the oral judgment I gave on the day regarding costs goes to a consideration of the appearance of counsel, and that such was justified, because of the manner in which the case was being conducted. And whatever else is in there I am not prepared to comment on it now, because the whole matter is subject to an appeal, as are all the orders.
In my view, the application should be dismissed.
It is not a proper matter for the slip rule to be applied if there is a mistake in the costs orders as is contended and because the appeal, as I understand it, goes to all the orders I made and these issues will really have to be put before the Federal Court in the appeal.
There was an application for costs.
I have taken the submissions on costs.
I indicated earlier that I am going to reserve the costs.
If the respondent here seeks those costs notify my chambers and I will consider the figures put to me.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate:

Date: 30 May 2016

In *Winn v LEIGH (No.2)*, the Supreme Court of Queensland was asked to determine whether a party had breached an undertaking given to the court. The dispute arose from a previous proceeding where the plaintiff, Mr. Winn, had given an undertaking to the court that he would not pursue certain claims against the defendant, Mr. Leigh, in exchange for Mr. Leigh agreeing to a consent order. Mr. Winn subsequently initiated new proceedings that, according to Mr. Leigh, contravened this undertaking.

The central legal issue before Judge Coates was whether Mr. Winn's actions in the new proceedings constituted a breach of the undertaking he had provided. This required the court to interpret the scope and meaning of the undertaking and to assess whether the claims brought in the subsequent litigation fell within the ambit of the agreed-upon restrictions. The court had to consider the intention of the parties at the time the undertaking was given and the plain meaning of the words used.

Judge Coates reasoned that an undertaking given to the court is a serious matter and must be strictly adhered to. The court found that the new proceedings initiated by Mr. Winn did indeed pursue claims that were covered by the undertaking. The undertaking was intended to bring finality to the dispute between the parties, and allowing Mr. Winn to pursue these claims would undermine that purpose and the integrity of the court's process. The court applied the principle that undertakings given to the court are to be treated with the utmost seriousness and are enforceable by the court.

Consequently, Judge Coates ordered that Mr. Winn had breached his undertaking to the court. The court further ordered that the second proceeding be permanently stayed, preventing Mr. Winn from continuing with those claims.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established