FEDERAL COURT OF AUSTRALIA Winn v Blueprint Instant Printing Pty Ltd [2010] FCA 1513 Citation: Winn v Blueprint Instant Printing Pty Ltd [2010] FCA 1513 Appeal from: Blueprint Printing Pty Ltd v Winn [2010] FMCA 951 Parties: JULENE WINN v BLUEPRINT INSTANT PRINTING PTY LTD (ACN 005 267 096) and GARLAND HAWTHORN BRAHE File number: VID 1039 of 2010 Judge: GRAY J Date of judgment: 23 December 2010 Legislation: Bankruptcy Act 1966 (Cth) s 77(1)(a) Cases cited: House v The King [1936] HCA 40 (1936) 55 CLR 499 applied Date of hearing: 23 December 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 17 The appellant appeared in person Counsel for the first respondent: Mr T Scotter Solicitor for the first respondent: Herbert Geer Counsel for the second respondent: Ms C Gosper Solicitor for the second respondent: Garland Hawthorn Brahe Lawyers Pty Ltd IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1039 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JULENE WINN Appellant AND: BLUEPRINT INSTANT PRINTING PTY LTD (ACN 005 267 096) First Respondent GARLAND HAWTHORN BRAHE Second Respondent JUDGE: GRAY J DATE OF ORDER: 23 DECEMBER 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The motions the subject of the notice of motion filed on 10 December 2010 be dismissed. 2. The respondents' costs of the motions be costs of the appeal of the respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1039 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JULENE WINN Appellant AND: BLUEPRINT INSTANT PRINTING PTY LTD (ACN 005 267 096) First Respondent GARLAND HAWTHORN BRAHE Second Respondent JUDGE: GRAY J DATE: 23 DECEMBER 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 26 November 2010, the Federal Magistrates Court of Australia made a sequestration order against the estate of the appellant, Julene Winn. That sequestration order was made on the basis of an act of bankruptcy resulting from a failure to comply with a bankruptcy notice previously served on the appellant. 2 The appellant had endeavoured unsuccessfully to set aside that bankruptcy notice. The judgment of the Federal Magistrates Court refusing to set aside the bankruptcy notice is also the subject of an appeal to this Court, in proceeding number VID 817 of 2009. The appeal has been heard and judgment has been reserved. The appellant told me that she has received information that the judgment will not be delivered before February 2011. 3 The present appeal is from the sequestration order made on 26 November 2010. The appeal was commenced on 30 November 2010. On 10 December 2010, the appellant filed a notice of motion, seeking a stay of execution of the sequestration order and consequential orders, until both the appeal in proceeding number VID 817 of 2009 and the present appeal have been determined. At the same time, the appellant filed an affidavit that addressed her grounds of appeal. She subsequently filed a supplementary notice of appeal, on 22 December 2010. Counsel for the two creditors involved in the proceeding below has appeared to oppose the application for a stay. 4 It is common ground that the two crucial issues for me to consider in relation to a stay are the question whether there is an arguable ground of appeal, and the issue of the balance of convenience. 5 The material that the appellant has filed in relation to her grounds of appeal, and the submissions she has made to me today by video link from Queensland, do not suggest readily that there is an arguable ground of appeal. The supplementary notice of appeal contains a number of extravagant claims. It seeks to raise issues that amount to attempts to re-litigate issues determined against the appellant in other courts, or issues not previously pursued to a conclusion in appropriate forums. In some instances, there are grounds critical of decisions that involve the exercise of judicial discretions, without apparent recognition that an appeal from an exercise of discretion is unlikely to succeed simply on the basis that the discretion could, or perhaps even should, have been exercised in favour of the appellant. The appellant claims to be familiar with the principles enunciated in House v The King [1936] HCA 40 (1936) 55 CLR 499, at 506-507, concerning the correct approach to an appeal from an exercise of discretion, but her familiarity with those principles is not reflected in the supplementary notice of appeal. Nevertheless, for the purposes of the stay application, I am prepared to accept that, somewhere in the supplementary notice of appeal, there might be found an arguable ground of appeal. 6 It is in relation to the balance of convenience, that the appellant has the greatest difficulty. She has not filed any material concerning the balance of convenience. Early in the hearing of the application, I asked the appellant whether she was contending that refusal of a stay would debar her from proceeding with the appeal. She pointed out to me that the earlier appeal has already been heard, and did not suggest that for her to continue to have the status of a bankrupt would prevent her from prosecuting the present appeal. 7 I asked the appellant whether she would be able to say that she wished to seek legal representation for the appeal, and needed money for such representation. She did not respond that she needed such money. Indeed, even in reply, when the seriousness of that issue became apparent, she has only indicated that she might wish to seek legal representation at some stage. For the most part, in the multitude of legal proceedings that have brought her to this position, the appellant has opted to appear for herself. In swearing her affidavit of 10 December 2010, she describes her occupation as barrister, although she concedes that she has not practised law. I therefore do not proceed on the basis that the appellant has a need for money to procure legal representation on the hearing of her appeal. 8 The appellant has not provided any material, as to the question whether she is solvent. She claims that she was prevented from filing such material in the Federal Magistrates Court, a claim which cannot be accepted readily. There certainly has been no impediment to her filing such material in this Court, and she has not done so. 9 I asked the appellant whether she had anything to say about the filing of a statement of affairs. She said that she has not received any communication from the trustee in bankruptcy, seeking anything from her. Counsel for the respondents tendered a letter from the trustee in bankruptcy, in which the trustee asserts that he or his staff have made a number of telephone calls to the appellant's residence, to her former place of work, and to mobile telephone numbers associated with her, without success and that, on 6 December 2010, correspondence confirming the appointment of the trustee in bankruptcy was sent by registered post to her residential address. The appellant says she has not received it. The trustee in bankruptcy asserts that a form for a statement of affairs was included within that correspondence, and that the appellant is required to have completed the statement of affairs and forwarded it to the trustee in bankruptcy within 14 days of receipt of that form. The appellant says that she has not received that form, and therefore she has not taken any steps to comply with her obligation to file a statement of affairs. 10 I also raised with the appellant her obligation, found in s 77(1)(a) of the Bankruptcy Act (1966) (Cth), ("the Bankruptcy Act") forthwith after becoming a bankrupt, to give to the trustee all books in her possession relating to any of her examinable affairs, and her passport, if any. She told me that she did not have a passport, and she was unaware of any obligation to provide books to the trustee. 11 In relation to issues of statements of affairs, and obligations such as that found in s 77(1)(a) of the Bankruptcy Act, the appellant made further submissions in reply. At best, she offered an undertaking that, if informed of obligations, or requested to do something, she would do it. This is an insufficient form of undertaking for the Court to accept in this situation. If an undertaking were to be accepted, involving taking steps to progress the administration of the bankrupt estate, it would need to be in very clear terms, and not conditional on the making of requests. 12 The appellant also indicated that she was prepared to conduct the appeal expeditiously, but she has not offered any clear undertakings that would have the effect of reassuring the Court that there would be no dissipation of assets in her estate, if a stay were granted. Although the trustee in bankruptcy, in his letter, did not assert that such a dissipation was likely, he drew attention to the risk. In this case, at least in one respect, there is some reality to the risk. The appellant has informed me that she is still attempting to prosecute a proceeding in the Magistrates Court of Victoria against one of the creditors. Indeed, she relied on the fact that she would be unable to continue to prosecute that proceeding, if no stay were granted. It appears that that proceeding is more than three years old and has yet to reach finality. The appellant informed me that it was due to be mediated at some stage next year. The difficulty of allowing the appellant to make her own decisions about whether to continue such things as a legal proceeding, and thereby perhaps to expend money, is manifest. One of the underlying reasons for the vesting in a trustee in bankruptcy of pre-existing causes of action is to allow a more objective determination as to whether legal proceedings should be continued or not. As I assess the situation, there is a possibility that creditors may suffer if a stay is granted, in the absence of proper undertakings, or other steps to protect the appellant's assets from dissipation in the meantime. The absence of any material as to solvency, or as to what the appellant's assets might be, contributes to my unease about granting a stay in these circumstances. 13 The approach of the appellant to issues of the balance of convenience in relation to a stay suggests to me that she fails to appreciate the seriousness of her position as a bankrupt. She has an absolutely unshakeable belief in all of her grounds of appeal. She believes that she will win both appeals and be free of any issue of bankruptcy. It seems to me that, therefore, she is unwilling to grapple with the position that she is in. 14 When pressed about her failure to provide material about the balance of convenience, the appellant was prone to resort to claims of multiple medical conditions and the need to keep appointments and to have surgery. At no stage has she provided any medical evidence in relation to any of these conditions. 15 In relation to the balance of convenience, the appellant did offer the suggestion that the fact that she is bankrupt would have an impact on her professional standing. When I questioned her about this, she was vague about the future, suggesting simply that when she attains good health she might wish to practise law. There is no affidavit material about this issue, as there is none in relation to the balance of convenience, generally. 16 For these reasons, it seems to me that the balance of convenience lies heavily against the granting of a stay and that I ought to refuse the orders sought in the notice of motion filed on 10 December 2010. 17 The orders I make are as follows: 1. The motions the subject of the notice of motion filed on 10 December 2010 be dismissed. 2. The respondents' costs of the motions be costs of the appeal of the respondents. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 8 February 2011