Vu v Community Association Deposited Plan No 270263

AND: COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263

REASONS FOR JUDGMENT 1 The applicant is aggrieved by two decisions of the Federal Magistrates Court in which costs were awarded against her. Both matters involved bankruptcy petitions which were dismissed. She appealed from one and applies for an extension of time to appeal from the other. She also filed two notices of motion. One seeks that the date fixed for the hearing of the appeal during the November Full Court sittings be vacated. The second seeks orders that the full transcript of the two proceedings before the Federal Magistrates Court be made available to the applicant free of charge or, alternatively, that she be given leave to access the full transcript from the court file. At the hearing Mr Lange of counsel, who appeared at short notice for the applicant, indicated that he did not propose to move on the notice of motion seeking that the hearing date be vacated.

The application for an extension of time 2 The application is well out of time. Order 52 r 15 of the Federal Court Rules fixes a period of 21 days from the date of the judgment in which an appeal must be filed. Judgment was delivered on 24 February last year. 3 In his judgment Raphael FM noted that the parties had agreed that the petition should be dismissed but he ordered that the applicant should be responsible for the costs incurred until she had established that she was solvent. He also ordered that the applicant pay the costs of the costs argument. Mr Trevor Hall, a solicitor who then appeared for the applicant, had resisted the petitioning creditor's application for costs, arguing that the petition had been wrongfully issued because the applicant was always solvent. All she had to do was prove it and she would be entitled to have the petition dismissed with costs following the event. 4 His Honour rejected this argument because, he said: It is based upon an assumption that the petition should never have been issued. But petitions are themselves based on an act of bankruptcy. In this case the act of bankruptcy was the failure to comply with the bankruptcy notice. The existence of an act of bankruptcy has never been denied and therefore the justification for issuing the petition has never been denied. I cannot see that the creditor was wrong to have issued the petition in the first place which is what I believe is required to establish Mr Hall's argument. Having issued the petition the debtor could have put on, at a very early stage, a notice of opposition claiming solvency, and established that. Mr Hall elides from an argument that it is the respondent debtors' responsibility to establish the facts alleged, namely, her solvency, but that obligation cannot be ignored. 5 The Court's discretion to extend the time to file and serve a notice of appeal is not unfettered. Order 52 r 15(2) provides that leave may be given "for special reasons". A special reason is merely one which takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 at 195. Nevertheless, once a special reason is shown there is no automatic right to an order. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ("Hunter Valley Developments") at 348-9 Wilcox J (approved by the Full Court in Parker v The Queen [2002] FCAFC 133) extracted the following principles for the exercise of the Court's discretion from the case law (I have listed them in a slightly different order than they appear in his Honour's judgment): (1) The applicant must show an "acceptable explanation for the delay". Action taken by the applicant, other than by way of making an application for a review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. (2) Any prejudice to the respondent, including in defending the proceedings caused by the delay, is a material factor, militating against the grant of an extension. But absence of prejudice alone is not enough to justify the grant of an extension. (3) The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. (4) Applications for an extension of time are not to be granted unless it is proper to do so. The legislated time limits are not to be ignored. It must be "fair and equitable in the circumstances" to extend time. 6 In Wilson v Alexander [2003] FCAFC 272, 135 FCR 273 the Full Court emphasised that applications to extend time should be brought promptly. 7 In addition, I am required to interpret and apply the rules in the way that best promotes their overarching purpose - the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth), s 37M(1) and (3). For this purpose I am bound by s 37M(2) to take into account: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 8 The applicant supported her application with an affidavit affirmed on 17 August 2010. The affidavit annexed a draft notice of appeal nominating the following grounds of appeal: (1) His Honour erred in exercising his discretion in awarding costs to the Applicant/Creditor (Respondent in these proceedings) and/or ordering costs at all notwithstanding the fact that the application had been dismissed. (2) His Honour erred in failing to consider relevant matters and taking into account irrelevant matters. (3) Counsel for the appellant was incompetent and, at the time of judgment, the debt was not owing which is supportable by a proper reconciliation of monies owed and paid at that time. 9 The applicant described herself as an "information technology consultant". She deposed that she was represented in the proceeding before Federal Magistrate Raphael by Mr Hall. The proceeding involved a creditor's petition for bankruptcy arising out of alleged unpaid strata levies. The applicant said she repeatedly instructed Mr Hall that her belief was that she did not owe the money and attached a reconciliation statement to her affidavit. She said she had shown him tax invoices and bank receipts. She also said that during the period of the claimed debts and during the proceeding she was suffering from "prolonged and pervasive chronic depression and anxiety" which meant that she was unable to understand why the respondent believed she owed the money when she was sure she did not. She claimed that Mr Hall ignored her instructions and defended the petition solely on the basis that she was solvent. She also claimed that, under protest, she agreed to Mr Hall's strong advice that she agree to a proposal to settle the proceeding by paying an amount of money. The petition was then dismissed but the Federal Magistrate ordered that she pay the respondent's costs, which were more than double the amount being claimed on the petition. 10 Over the following months she said she tried to seek other legal advice. She said that was difficult because she could not afford to pay a lawyer and had to find pro bono representation. She did not pay the costs and consequently the respondent lodged a second creditor's petition to claim both outstanding levies and the costs the subject of the Federal Magistrate's order. She said that eventually a friend introduced her to Mr Waterstreet, of counsel, who agreed to represent her. She stated: Eventually, I was introduced by a friend to Charles Waterstreet, Barrister. He listened to my problem and agreed to represent me. 11 She claimed that after she provided Mr Waterstreet with her documents, "his assistant" reviewed them and settled "the reconciliation table of moneys owed and paid" which she annexed to her affidavit. 12 She also claimed that the initial cause of the dispute was that an electronic payment of her monthly levy had not been paid on time because of an administrative error on the part of the bank and she annexed to her affidavit a copy of a letter from the ANZ Bank in support. She asserted that "[t]he subsequent roll-on effect meant that future levy payments intended for later quarterly levies were being applied to an earlier unpaid levy amount." 13 She said that in January 2008 the respondent brought proceedings in the Local Court claiming an amount of $564.90 that had been owing for only one month. She said she could not understand the Local Court proceeding. She claimed to have been bedridden with serious depression at the time. She stated that the Local Court proceeding led to a default judgment. She claimed that sums due for strata levies were regularly deducted from her account as and when they fell due but they were wrongly applied by the Community Association to the money claimed in the default judgment. In the result, she asserted, "[t]his then led to future levies being unpaid and led to a series of local court default judgments for alleged unpaid strata levies". I was informed at the hearing that there were five local court default judgments in total. 14 The affidavit is silent about the dates those judgments were entered. Presumably the reason for the default judgments was that she did not appear when the matter was listed for hearing and neither did Mr Waterstreet, or indeed any other lawyer. It appears that at no time has she applied to have any of them set aside. 15 She defended the second creditor's petition which was heard before Federal Magistrate Driver. At that time she disputed that she had been indebted to the respondent in the first place, but his Honour refused to go behind a Local Court judgment. Like Raphael FM he rejected the petition on the ground that he was satisfied the applicant was solvent, but ordered she pay the respondent's costs. His judgment is the subject of the appeal that is currently on foot. It was delivered on 22 June 2010, just under two months before the application for an extension of time in which to appeal Raphael FM's judgment was made. 16 The applicant concluded her affidavit as follows (without alteration): [18] ...In support of those grounds that the trial miscarried on the basis that my counsel, Trevor Hall, was incompetent and failed to accept my instructions and protest that the alleged debt was not owing. Further, that the Federal Magistrate erred in awarding costs for a dismissed bankruptcy proceedings over such a small amount owing. [19] The decision of Federal Magistrate Raphael forms part of a chain of errors that has lead to an extremely large debt arising from an initially very small amount, which itself arose through no fault of my own. In order to properly deal with the entire matter, the judgment of federal Magistrate Raphael should be dealt with together with my appeal of the decision of Federal Magistrate Driver which is currently before the court. If the extension of time is granted, I would lodge this appeal and seek to have the two heard together. 17 The affidavit is silent about when the applicant went looking for another lawyer, what steps she took to find one and when Mr Waterstreet agreed to represent her. She does not give the date "the assistant" prepared the reconciliation table, but the inference I draw from the table is that it was probably in March this year. The application was not filed until 17 August and there is no explanation for the delay of five months from then. In fact, there is no real explanation for any of the delay. 18 Written submissions presented to the Court on the applicant's behalf apparently prepared (but not signed) by Mr Waterstreet proposed "at least five reasons" the application should be granted. 19 First, it was submitted, "[t]he entirety of the dispute is long-standing and ongoing" and for that reason, "the agitation" of the earlier decision causes no "delay-related prejudice" to the respondent. The applicant claimed that the respondent cannot point to "any significant prejudice that would disentitle the hearing of an otherwise valid appeal". 20 Secondly, the applicant submitted that the two appeals raise substantially the same legal issues, namely, the exercise of discretions in awarding costs against a debtor that successfully defends a bankruptcy petition. 21 Thirdly, the applicant referred to the ground relating to incompetence of counsel and submitted (without alteration): one of the grounds in the draft notice of appeal is that counsel for applicant was incompetent. That allegation, of its nature, carries with it some delay. The applicant had to withdraw her previous representation, find new representation, explain the case history and gather the evidence. In this case, the prior representation did not release the applicant's file as a result of a dispute regarding payment, which made these tasks more difficult. Moreover, the applicant was recovering from a clinical depression which would have made the decision to withdraw from her previous representation more difficult. Further, it is not an allegation that is wantonly made and required due consideration. 22 The fourth submission is in these terms (without alteration): [W]hen I came into case, the applicant was facing a second bankruptcy petition and had begun proceedings in the Consumer Trader and Tenancy Tribunal (CTTT). Moreover, it slowly became apparent that it was necessary to lodge applications to set aside default judgments in the Local Court. The multiple branches of this case made it difficult to consider and prepare the current application and necessary documentation. 23 Her fifth and final submission is that the applicant is impecunious: which naturally carries with it the risk of delay. The nature of my brief is direct-access and pro-bono. Without a solicitor to collect the evidence and prepare the paperwork, progress has been steady but slow. This is particularly so in light of the many arenas of this dispute. 24 At the hearing the applicant identified the special reasons as:

• The applicant's mental illness.
• The failure of the applicant's legal representative to attend diligently to her affairs at the time, later refined as failing to act on her instructions.
• The impecuniosity of the applicant resulting in difficulties seeking legal representation.
• The nature of the error being one that merits review by the Court.
• There absence of evidence of prejudice to the respondent. 25 The evidence concerning the applicant's mental state appears in her affidavit and in an annexure to her affidavit. The submission that the applicant was recovering from a clinical depression is unpersuasive. The medical evidence is weak. A letter from Dr Menzies, a psychiatrist, annexed to her affidavit, certifies that he was treating her for an "Adjustment Disorder with Anxiety and Depressive features" on 2 October 2008 and planned to treat her with "psychotherapy and possibly medication in anticipation that this will assist her to overcome her depression, fears and anxieties and will allow her to resume some normalcy in her life". He recorded a history she gave him of a "prolonged and pervasive struggle with chronic depression and anxiety, causing her to be (in her words) 'paralysed with fear and inaction' and unable to cope with the tasks of daily life for some 5 years now". There is no evidence of the effect of the treatment, or indeed, whether she undertook it. There is no evidence about what her psychiatric state was in February 2009 - four months later, when Raphael FM's judgment was pronounced, or at any time in the eighteen month period between the time of judgment and the filing of this application. Mr Lange properly conceded that there was "nothing to indicate a continuance of the condition". Still, I am prepared to infer that it is unlikely that the applicant would have recovered from her depression overnight and may well have continued to suffer from it at the time judgment was pronounced. But the applicant made no claim in her affidavit that depression prevented her from filing an appeal on time, or that her depression made it difficult for her to leave her previous counsel. On the contrary, she testified that she tried to get other legal advice. She invokes the depression only to explain why she was unable to understand the respondent's contention that she was in debt. 26 I accept that an allegation of incompetence of a legal representative is not "wantonly made" and requires due consideration but there is no evidence about when the applicant received the advice or what steps she took to obtain other advice. She led no evidence that incompetence of her representative had anything to do with her failure to appeal in the eighteen months that have passed since the judgment was delivered. 27 There is no evidence to support the submission that the previous legal representative did not release the applicant's file. 28 It is difficult to see why "the multiple branches of this case made it difficult to consider and prepare the current application and necessary documentation". In any event that does not explain why the applicant did not file the appeal within time. 29 I reject the submission that the error allegedly made by the Federal Magistrate was of such importance that it merits the Court dealing with the appeal despite the lengthy delay. The proposed appeal relates to the exercise of a discretion with regard to costs where the well-established principles in House v King (1936) 55 CLR 499 apply. 30 Absence of prejudice is not a special reason, though it bears upon the exercise of the discretion in the event that special reasons are shown. 31 The reason the applicant did not file her appeal in time appears to be that she was trying to seek legal advice, which she said was difficult because she could not afford to pay a lawyer. I am prepared to assume that this is sufficient to amount to a special reason, bearing in mind that "special" only means out of the ordinary. 32 I turn now to consider the discretionary matters. The respondent submits it is prejudiced in that it has incurred further expense by proceeding to have its costs taxed and the costs would be thrown away should leave be granted. I am not satisfied that this is so. The only way the costs of the taxation would be thrown away is if the applicant is ultimately successful, not if leave is granted. A submission from the bar table that the costs would not have been incurred had an appeal been filed within time was not supported by evidence. Nevertheless, as Wilcox J said in Hunter Valley Developments, mere absence of prejudice does not justify the grant of an extension. Absence of prejudice is a relevant consideration but it is not the only consideration. 33 I reject the second submission that there is an identity of issues in the appeal and the proposed appeal. The petitions involve different debts and there is an additional issue here - the alleged incompetence of her legal representative, which is not a ground of the current appeal. 34 The applicant's assertion that she is impecunious is not supported by evidence, unless it is merely shorthand for the submission that she could not afford a lawyer. At all material times she has owned the apartment in which she lives. Federal Magistrate Driver's reasons referred to evidence she gave in that case that showed that she has a substantial equity in the apartment and owns shares to the value of approximately $24,000. Even if her assertion were true, there is no necessary connection between impecuniosity and a failure to file an appeal within time. The Court will waive filing fees in genuine cases of impecuniosity. She was able to file her appeal from Driver FM's judgment on time. 35 I now turn to consider the merits of the proposed appeal. No particulars were provided about the relevant considerations it is alleged the Federal Magistrate failed to take into account or the irrelevant considerations to which he allegedly had regard. The affidavit did not advert to them. The alleged error of which the applicant speaks in the affidavit is that it was an error to award costs over such a small amount of money. If that is the basis for the proposed appeal, it does not enjoy sufficient prospects of success. As for the allegation of incompetence, it seems to be based on a failure to act on the applicant's instructions that she was not in debt. But it seems fairly clear that she was, in fact, in debt. There were five default judgments. At the time of the hearing before Raphael FM no application had been made to set them aside. Her complaint seems to be about how the original debt came to be incurred and it appears to be misplaced. As Mr Klooster, counsel for the respondent, argued, the origin of her misfortune was error on the part of her bank. 36 I was not taken to any authority that showed that the Federal Magistrate had fallen into appealable error. 37 The written submissions did not deal with how incompetence of the applicant's legal representative was a ground for disturbing the Federal Magistrate's decision and did not explain how it might have affected the exercise of his discretion. Incompetence of counsel, in certain circumstances, may result in a miscarriage of justice but generally speaking a party is bound by the way counsel conducts the case. In R v Birks (1990) 19 NSWLR 677 ("Birks") at 685 Gleeson CJ (with whom McInerney J agreed) said: 2. As a general rule an accused person is bound by the way the trial conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention. 38 In R v Ignjatic (1993) 68 A Crim R 333, where Hunt CJ at CL, with whom Finlay and James JJ agreed, referred to the decision in Birks and the principles established by it and said at 336: Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere. 39 In Jazairy v Najjar (1998) 27 MVR 498 and Varmedja v Varmedja [2008] NSWCA 177 ("Varmedja"), the NSW Court of Appeal appears to have assumed that these principles apply equally in civil proceedings. In Varmedja at [102] Tobias JA, Hodgson and McColl JJA agreeing, said (obiter) that even if there was incompetence on the part of counsel, "that of itself is insufficient to attract appellate intervention unless it was so serious, grave or "flagrant" as to have caused an actual miscarriage of justice". 40 Here, the applicant has pointed to nothing that would rise to the level of flagrant incompetence. For all we know, Mr Hall simply made a forensic judgment that may or may not have been poor, let alone negligent. Mr Lange argued that the Federal Magistrate's error was in failing to take into account the reason for the non-payment, namely the applicant's assertion that the debt was not owed. He accepted, however, that there was no evidence of that before the Federal Magistrate. What he argued was that the applicant's failure to present that evidence in accordance with the applicant's instructions meant that material to which the Federal Magistrate was bound to have regard was never put before him and that caused his discretion to miscarry. 41 He drew the Court's attention to two decisions of this Court: Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372 ("Sarina") and Saparas v Touma [2000] FCA 308, 171 ALR 275. Neither authority supports the proposition that the circumstances surrounding the failure to pay must be taken into account on the question of costs and the discretion miscarries if it is not. Indeed, Sarina appears to support the Federal Magistrate's approach. 42 In Sarina, at the hearing of a bankruptcy petition, the debtor satisfied the court of his solvency. He simply refused to pay the debt. The primary judge dismissed the petition but ordered the debtor to pay costs up to and including the day on which the debtor first alleged he was able to pay his debts. The appeal and cross-appeal raised a number of grounds, including the validity of the costs order. The Full Court held there was no error of law in the exercise of the primary judge's discretion to award costs. 43 The debtor argued that the costs discretion miscarried because it was exercised for a reason that was contrary to the evidence. The primary judge's reason was that the creditor Council could not be criticised for failing to anticipate the debtor's defence of solvency. It was argued that the evidence showed the Council knew he was able to pay the debt (for example, it knew his land was worth more than the debt). 44 The Court rejected the argument, noting (at 378) that even if the Council knew the value of his land, it did not know the debtor's overall financial position (for example, there may have been other liabilities of which it was unaware). 45 In Saparas the applicant applied for a sequestration order against the respondent's estate. At the hearing the respondent opposed the application on the sole ground that he was solvent. O'Connor J found that the respondent was solvent and dismissed the petition. The applicant submitted that costs should not follow the event because the Court should have regard to the respondent's unwillingness to pay his debt. Her Honour rejected the submission. 46 Mr Lange accepted that the mere fact that one judge who dismissed an application for a sequestration order, having found the debtor to be solvent, awarded costs in the debtor's favour, does not mean that the Federal Magistrate in this case committed an appealable error by not following the same course. 47 Mr Lange was unable to point to any irrelevant consideration to which his Honour had regard. 48 Mr Lange also submitted that the Federal Magistrate placed too great a weight on the applicant's refusal to pay the debt and the balancing exercise miscarried. But that is not a proposed ground of appeal and, of itself, would be insufficient to set aside the decision. 49 I am not persuaded that it would be fair and equitable to extend the time to appeal. The delay is substantial. The applicant carries the onus of persuading the Court that it should exercise its discretion in her favour. It was therefore incumbent on her to provide a full and frank explanation for the delay. As the Full Court said in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] it is not sufficient to refer to circumstances that explain only part of the period after which an order for leave to appeal is sought. The explanation the applicant provided was inadequate. Moreover, I am not persuaded that the proposed appeal enjoys reasonable prospects of success.

The motion for access to transcript 50 This motion can be quickly disposed of. The written submissions were unhelpful. As one might expect, the transcripts do not appear on the Court file. Mr Lange candidly admitted there was no power in the rules to make an order that the Court provide the transcript of the hearings before the Federal Magistrates Court. In any case there is no evidence to support the submission made in support of the motion that the applicant's financial circumstances are "dire".

Conclusion 51 I therefore dismiss the application and the notices of motion.

Orders 52 The application for an extension of time to file and serve a notice of appeal is dismissed with costs. 53 The applicant's motion to vacate the hearing date is dismissed with no order as to costs. 54 The applicant's motion seeking access to transcript is dismissed with no order as to costs.

• I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.