Winn v LEIGH (No.2) - [2016] FCCA 1292

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Winn v LEIGH (No.2)

Details

AGLC: Winn v LEIGH (No.2) [2016] FCCA 1292
Case: [2016] FCCA 1292
Decision Date: 6 May 2016

CaseChat Overview and Summary

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.

Orders