Winn v LEIGH (No.2)

[2015] FCCA 2658

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH (No.2) [2015] FCCA 2658

Catchwords:
BANKRUPTCY – Costs.

Legislation:

Bankruptcy Act 1966

Applicant: JULENE WINN

Respondent: DAVID LEIGH

File Number: BRG 1127 of 2012

Judgment of: Judge Coates

Hearing date: 20 August 2015

Date of Last Submission: 20 August 2015

Delivered at: Brisbane

Delivered on: 20 August 2015

REPRESENTATION

Solicitors for the Applicant: Self represented

Counsel for the Respondent: Ms A Wheatley

Solicitors for the Respondent: Rodger Barnes & Green Lawyers

ORDERS

1. That the Applicant pay the Respondent’s costs of the Application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1127 of 2012

JULENE WINN

Applicant

And

DAVID LEIGH

Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This morning I delivered judgment in an application brought by the applicant to set aside orders I made on 24 March 2014, which dismissed her substantive matter brought under the Bankruptcy Act 1966. 

2. I have given reasons for dismissing the application. 

3. The successful respondent seeks costs. 

4. The applicant seeks that I stay the orders dismissing her application in a case filed 12 May 2014 to allow her to take the matter to an appeal.

5. There needs to a purpose in a court making a stay order of orders arrived at after judgment.  In general terms, there would need to be something or some right to be preserved.

6. The stay order, of course, would be made so that a person intending to appeal would not have any appeal judgment rendered a nullity. 

7. I am not going to accede to the stay because there is nothing to preserve and the applicant in this matter has all her rights reserved. 

8. If she takes the matter to appeal and is successful in the appeal, there is nothing which she loses in the meantime. 

9. There is just no point in making the stay order on the arguments and submissions which have been put before me by the applicant.

10. The costs orders sought are pursuant to the schedule of costs which exist under this Court’s rules as at the date of the hearing, being 29 October 2014. 

11. Three sets of costs are sought. 

12. The first costs are at item 3 in the schedule, which are applicable to an interim or summary hearing as a discrete event.  The sum existing in the schedule as at 29 October 2014, I am told, is $1,661. 

13. The schedule fee also refers to a daily hearing fee mentioned at item 13.  The sum in existence at this stage for a daily hearing fee – that is, a full day – is $1,994. 

14. The third amount is an advocacy loading at item 12, which is 50 percent of the daily hearing fee mentioned in item 13 and the sum there is sought at $2,991. 

15. The total sum is $6,646.

16. I am told that I should make the costs order on the accepted proposition that costs follow the event and that the respondent’s case was successful. 

17. The applicant against whom the costs are sought, Ms Winn, opposes the costs orders. 

18. She said it is an excessive amount for what should have been a short hearing. 

19. In reference to that, I am told that the solicitor instructing counsel for the applicant has recorded times of being at Court from some time in the morning until reasonably late in the afternoon. 

20. I mention that because I think it is part of Ms Winn’s submission that I should accept a smaller amount for the hearing fee, either that for a short mention or for perhaps a half-day hearing, amounts which of course are itemised in the schedule as being costs much lower than the $1994 sought, which is the stated amount for a daily hearing fee.

21. Ms Winn questioned the need for counsel and the need for an advocacy loading.  She questioned the need for costs at all because she is bankrupted. 

22. It is not the position, of course, that courts do not make costs orders against people simply because they may be impecunious. 

23. There are, of course, policy reasons for making costs orders.  I do not need to go over those now, particularly in light of the fact that they have not been addressed by Ms Winn.

24. In my view, if I make an order for an advocacy loading, it would be justified on the basis that the respondent was faced with an application, the respondent was required to meet a series of submissions made both orally and in writing, and the respondent was required to meet those submissions with reference to cases which are relevant to the making of a decision pursuant to r.16.05 of the Federal Circuit Court Rules 2001, which is the rule which the applicant bought the application under.

25. It was also the case in my view that the appearance of counsel was justified because of the manner in which the case was being conducted. 

26. Although I have not referred to something I am going to refer to now, it has been a concern in this case – one which I have outlined in the judgment – as to whether the applicant would ever be ready for a trial.

27. Given some submissions or statements made by the respondent this morning, I think it is appropriate to now state that there appears to be some erratic behaviour on behalf of the applicant which would make it extremely difficult for the respondent to meet and, in my view, counsel would be needed.

28. By way of example, the respondent has put to me, not very long ago, that she could not remember the date that the matter was heard on and she put, as I understood the submission, that she was questioning whether the matter was heard at all.  The matter was heard and the matter was heard on the basis of both written submissions and oral submissions made by the applicant.

29. The other point is – and I need to state this – the applicant seems to be making both personal attacks upon the respondent and, in fact, what I took to be an attack on the Court. 

30. I referred in the judgment to the quite proper manner in which counsel for the respondent addressed the medical issues which were previously raised by the applicant and I did so in the face of the applicant stating that it was quite degrading and belittling that the respondent’s counsel would refer to such matters.  I had also pointed out that, in fact, they were quite proper matters to refer to because this is the case which the applicant presented.

31. Today, the respondent clearly said or intimated that the respondent knew what orders would be made today.  Now, that is an attack not only on the respondent but on the Court. 

32. The applicant has apologised but twice she has made the same accusation that the respondent knew what the result was and that is why the respondent was prepared for a costs application. 

33. Any lawyer who properly prepares a case would be prepared and have among their papers in Court copies of costs schedules and the relevant costs schedules in order to even make a costs application or meet a costs application. 

34. Counsel was required and the advocacy loading, if I make the order, is certainly justified.

35. The respondent raised a case, although not very clearly, that, even two days ago, Judge Jarrett brought down a decision which was to the effect that a person has a right to have a trial.  There was no reference to what the case is.  I have got really no idea of what the reference is about.  I do not know if it is a decision upon a similar application.  It is this type of submission which has made the whole decision-making process difficult, in my view.  I am sorry, I keep saying the respondent but it is the applicant that I am referring to.  She is the respondent to the costs application but – if I need to amend that, I obviously will because that is merely a slip of the tongue.

36. The respondent also asks, if I make a costs order, for a stay of the costs order.  Again, I would have to know, of course, that, firstly, an appeal has been filed, not that one is merely flagged.  I really need to know the grounds of the appeal.  I would have to have some idea of what needs to be preserved so that the applicant here would not be prejudiced.  In all, I accept that the usual test that costs follow the event should apply.

37. I have referred to many matters, although I have not referred yet to the decision I gave in the judgment, but I think I should refer to another erratic statement, and that is that Ms Winn wanted to know how long all this would take because she was studying for a master’s degree.  This makes all this difficult to deal with but not impossible.  I have given judgment.  I have gone over the issues.  I have found that, pursuant to the judgment, I did not accept the cases put forward by Ms Winn.  In my view, it is proper that costs follow the event.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Coates

Date:  13 October 2015

Corrections

1. The year of the File Number was corrected from 2015 to 2012.