Winn v LEIGH (No.2)
[2016] FCCA 1292
•6 May 2016
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
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