Winn v Leigh

1. The application for extension of time filed on 3 December 2015 be dismissed.
2. Ms Winn pay the respondent's costs of and incidental to the proceeding to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Before the Court is an application for extension of time in which to lodge an appeal from a decision of the Federal Circuit Court of Australia in Winn v Leigh [2015] FCCA 2256. It is useful to note a number of preliminary points. 2 First, this proceeding is closely related to other proceedings currently before the Court in QUD 1092 of 2015 and QUD 833 of 2015. This is because the proceedings in those matters arise from the same substratum of facts as in this case. In essence: the parties have been involved in a long-running dispute which resulted in Ms Winn's bankruptcy, and Ms Winn sought orders under the Bankruptcy Act 1966 (Cth) that the trustee prove and quantify any debt, for annulment of her bankruptcy and for an inquiry into the trustee's conduct (the substantive matter). I also note that this proceeding is related to a separate proceeding in this Court in respect of which judgment has been given, namely Winn v Leigh [2014] FCA 518. To summarise the relevant proceedings: The judgment of the Federal Circuit Court the subject of an application for extension of time and leave to appeal in this Court in QUD 1092 - that is, Winn v Leigh [2014] FCCA 573 delivered on 14 February 2014 - involved orders made by the primary Judge where, in the course of the primary judgment, his Honour observed: ○ the substantive matter between the parties had been set down for hearing on 14 February 2014; ○ Ms Winn had not complied with timetabling directions and had on the morning of 14 February 2014 sought an adjournment of the hearing for medical reasons; ○ the respondent did not seek an adjournment, but submitted that if the matter was adjourned it sought its costs thrown away; ○ his Honour considered the medical evidence scant, and noted that while Ms Winn was self-represented she had legal training. Materially, the primary Judge ordered that: ○ the hearing be adjourned to 24 March 2014; ○ Ms Winn pay the costs of the respondents on an indemnity basis; and ○ material be filed in anticipation of the hearing on 24 March 2014. Following the orders of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573 the substantive matter was set down for hearing in the Federal Circuit Court on 24 March 2014. There was no appearance by Ms Winn at the Federal Circuit Court hearing of 24 March 2014. The primary Judge gave judgment ex tempore. In summary, the primary Judge made the following orders on a final basis: ○ that pursuant to r 13.03A(1)(a), (b) and (c) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules) all outstanding applications be dismissed; ○ Ms Winn pay the respondent's costs. These orders are the subject of the application for extension of time in this case, QUD 1102. While no reasons for these orders were published at the time, in Winn v Leigh [2015] FCCA 2256 delivered on 20 August 2015 the primary Judge explained: 1. On 24 March 2014, I dismissed an application filed under the Bankruptcy Act 1966. 2. The application was made in a long-running dispute which had resulted in the applicant's bankruptcy. 3. The case dismissed sought to have the bankruptcy annulled. 4. The orders made dismissing the application record that it was dismissed pursuant to r.13.03A (1)(a), r.13.03A(1)(b) and r.13.03A(1)(e) of the Federal Circuit Court Rules 2001. 5. The particular rule provides the grounds to exercise dismissal powers if a party is in default because: a. under subsection (1)(a), the party fails to comply with an order of the court in the proceeding; b. under subsection (1)(b), the party fails to file and serve a document required under the rules, and c. under subsection (1)(e), the party fails to prosecute the matter with due diligence. 6. The applicant did not appear in court on 24 March 2014. 7. She had sent a medical certificate to the court prior to 24 March 2014, relying on the information supplied as a reason for her non-attendance. 8. On the day I dismissed her application, I gave oral reasons. I took into account the applicant's claimed condition, and did not dismiss the application on her simple failure to appear, otherwise the order would have stated that the application was dismissed pursuant to r.13.03C. 9. The respondent also sought a series of costs orders after I dismissed the application. 10. I made those costs orders against the applicant. The orders of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573 delivered on 14 February 2014 were the subject of an application for leave to appeal by Ms Winn to the Federal Court. On 15 May 2014 in Winn v Leigh [2014] FCA 518 Rangiah J refused that application. On 12 May 2014 Ms Winn filed an application in the Federal Circuit Court seeking orders to the effect that all orders made by the primary Judge on 24 March 2014 be set aside pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules. This application was dismissed by the primary Judge in Winn v Leigh [2015] FCCA 2256, delivered on 20 August 2015. That judgment is now the subject of appeal to this Court in QUD 833 of 2015. 3 I have set out the background to the current proceeding in detail by way of explanation for what is, with respect, a most confused array of applications both in the Federal Circuit Court and this Court. 4 Second, and perhaps more importantly, the parties are ad idem in seeking an order that the current proceedings be dismissed. Where they differ is in respect of an order as to costs - each party submits that its costs be borne by the other. 5 It is clear that the costs issue is the true sticking point between the parties in respect of determination of this proceeding. 6 At the hearing before me Ms Winn was self-represented. She informed me however that she is a barrister. Her previous lawyers, Boss Lawyers, withdrew from acting for Ms Winn on the morning of the hearing before me.