FEDERAL COURT OF AUSTRALIA Winn v Leigh [2016] FCA 319 Appeal from: Application for extension of time and leave to appeal: Winn v Leigh [2014] FCCA 573 File number: QUD 1092 of 2015 Judge: COLLIER J Date of judgment: 1 April 2016 Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal from decision of Federal Circuit Court – leave to discontinue refused – application dismissed – abuse of process – costs awarded against applicant on standard basis Legislation: Federal Court of Australia Act 1976 (Cth) s 43(2) Federal Court Rules 2011 (Cth) rr 26.12, 26.12(7), 30.25 Cases cited: Ashby v Slipper [2014] FCA 973 Coshott v Prentice [2014] FCAFC 88 Oil Basins Limited v Watson [2014] FCAFC 154 Oshlack v Richmond River Council (1998) 193 CLR 72 Winn v Leigh [2014] FCA 518 Date of hearing: 23 March 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms AL Wheatley Solicitor for the Respondent: RBG Lawyers ORDERS QUD 1092 of 2015 BETWEEN: JULENE WINN Applicant AND: DAVID JOHN LEIGH Respondent JUDGE: COLLIER J DATE OF ORDER: 1 APRIL 2016 THE COURT ORDERS THAT: 1. The application for extension of time and leave to appeal filed on 2 December 2015 be dismissed. 2. Ms Winn pay the costs of the respondent 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. REASONS FOR JUDGMENT COLLIER J: 1 Before the Court is an interlocutory application filed on 10 March 2016 by the applicant in the substantive proceeding, Ms Winn. Issues for determination concern: an order sought by the applicant, Ms Winn, that the leave of the Court be granted pursuant to r 26.12 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) for her to discontinue an application filed on 2 December 2015. In that application Ms Winn sought an extension of time in which to file a notice of appeal, and leave to appeal, from the decision of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573 (delivered on 14 February 2014); and an order sought by Ms Winn that there be no orders as to costs. 2 The primary judgment of his Honour below in respect of which Ms Winn sought an extension of time and leave to appeal was delivered in the context of broader litigation between the parties, which I have recently outlined in my judgment in QUD 1102 of 2015 Winn v Leigh [2016] FCA 320. Background 3 In the primary judgment the subject of this proceeding his Honour observed, in summary: the substantive matter between the parties was set down for hearing in the Federal Circuit Court on 14 February 2014; Ms Winn did not comply 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. 4 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. The current interlocutory application before the Court 5 The parties in this proceeding are ad idem that the proceeding constituted by QUD 1092 should not continue. Their points of difference lie in respect of: whether the Court should grant Ms Winn leave to discontinue (or, instead, dismiss her application); and the proper order as to costs. 6 In respect of both issues, Ms Winn's submissions can be summarised as follows: she has received legal advice to the effect that she should not continue this application; she has taken steps to discontinue, although she is not actually abandoning issues of substance raised by QUD 1092 because she wishes to pursue those issues in a related proceeding, QUD 833 of 2015; the respondent has been uncooperative, including filing material when he knew that she wished to discontinue; the respondent impliedly consented to discontinuance by her of QUD 1092 by including in the list of material to be read in QUD 1092 an outline of submissions prepared by Counsel for the respondent in QUD 1102 on 14 March 2016. I note that Ms Winn attached this outline as annexure JW-3 to her affidavit sworn 19 March 2016 in this proceeding; like her application in QUD 1102, the application for extension of time and leave to appeal in this proceeding was never validly served because a sealed copy was never served by her on the respondent. This point was only raised by the respondent the day prior to the hearing of this matter, and to that extent the respondent should be penalised by a costs order; unlike the respondent, Ms Winn has sought to minimise costs. 7 The respondent's position can be summarised in the following terms: the conduct by Ms Winn of QUD 1092 can properly be described as "a moveable feast". Until recently Ms Winn sought to include material from this proceeding in QUD 1102 of 2015 – she now seeks to include material from this proceeding in QUD 833 of 2015. it is clear that the draft notice of appeal in this proceeding is the same as that before Rangiah J in QUD 79 of 2014, in respect of which his Honour gave judgment in Winn v Leigh [2014] FCA 518. It follows that the application for extension of time and leave to appeal before the Court in this proceeding is an attempted re-run of the matter before Rangiah J, and should be dismissed as an abuse of process. the respondent rejects any suggestion that it impliedly consented to discontinuance of QUD 1092 by Ms Winn. To the extent that the respondent sought to read material from QUD 1092 in the proceedings in QUD 1102 it did so to minimise costs in accordance with r 30.25 of the Federal Court Rules. Because the proceeding is an abuse of process the Court should award indemnity costs against Ms Winn. Consideration 8 In my view the appropriate order is to dismiss the proceeding in QUD 1092 of 2015 for abuse of process, rather than grant Ms Winn leave to discontinue. I take this view for the following reasons. 9 The opening paragraphs of the judgment of Rangiah J in Winn v Leigh [2014] FCA 518 read as follows: 1. The applicant has applied for leave to appeal against two orders made by a judge of the Federal Circuit Court on 14 February 2014. The orders were: (5) That the Application be adjourned to 9:30am on 24 March 2014 for final hearing (with an estimated hearing time of 1 day) in the Federal Circuit Court of Australia sitting at Brisbane. (6) That the Applicant pay the Respondent's cost of and incidental to these proceedings on an indemnity basis fixed in the sum of $7982.00 by no later than 4.00pm on 14 March 2014. 2. The applicant's principal proceeding in the Federal Circuit Court was for orders under the Bankruptcy Act 1966 (Cth) that the trustee prove and quantify any debt, for annulment of the bankruptcy and for an inquiry into the trustee's conduct. 3. The hearing of the application was set down for 14 February 2014, but the applicant apparently sought an adjournment (although she disputes that she, in fact, sought that adjournment). His Honour granted the adjournment but decided to order the applicant to pay the respondent's costs thrown away. His Honour's reasons state: 7. Despite my view that she puts forward a fairly flimsy excuse for non-compliance with trial directions, I am prepared to grant an adjournment. It is on this basis that costs thrown away be paid within 28 days. If costs thrown away are not paid, then I will give consideration to any application by the respondent which then comes before the Court. 8. The schedule of this Court's rules are for party-and-party costs. Item 6 is for preparation for final hearing of a one-day matter in general federal proceedings, and that is in the amount of $5988. Item 13(c) is the daily hearing fee for a full day's hearing, which is what this matter was set down for, of $1994. Those two amounts are ordered to be paid by the applicant within 28 days. 10 Later in the judgment his Honour observed: 6. The applicant's proposed notice of appeal contains ten grounds. Two grounds challenge the order granting the adjournment. Six grounds deal with the costs order. One ground alleges that his Honour should have made other directions about the conduct of the final hearing. The last ground alleges apprehend bias against the primary judge. During the hearing, the applicant indicated that she only pursued the grounds dealing with costs and apprehended bias. 11 After examining the submissions of the parties and the material before the Court, Rangiah J refused Ms Winn's application for leave to appeal, and ordered that she pay the respondent's costs. 12 It is plain from these reasons of his Honour that Ms Winn has already sought leave to appeal against the decision of the Federal Circuit Court in Winn v Leigh [2014] FCCA 573, and that leave was refused by Rangiah J. The application for extension of time and leave to appeal filed by Ms Winn in QUD 1092 before me is, as the respondent submits, an attempt to relitigate in the Federal Court a matter already determined by this Court. 13 Ms Winn submits that she could have discontinued the matter at any time without the consent of the respondent or the leave of the Court. This is not correct. Rule 26.12 of the Federal Court Rules provides: Discontinuance (1) A party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48. (2) The party may file the notice of discontinuance: (a) without the leave of the Court or the other party's consent: (i) at any time before the return date fixed in the originating application; or (ii) if the proceeding is continuing on pleadingsat any time before the pleadings have closed; or (b) with the opposing party's consent--before judgment has been entered in the proceeding; or (c) with the leave of the Court--at any time. Note 1: For when pleadings close, see rule 16.12. Note 2: The Court may give leave subject to conditions including costssee rule 1.33. (3) The notice of discontinuance must: (a) state the extent of the discontinuance; and (b) if the discontinuance is by consent--be signed by each consenting party. (4) However, a litigation representative or a representative party must not discontinue a party's claim without first obtaining the leave of the Court. (5) An application for a winding up order under section 459P or 461(1) (a) of the Corporations Act 2001 may be discontinued only with the leave of the Court. (6) A notice of discontinuance filed by one party does not affect any other party to the proceeding. (7) Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued. 14 Ms Winn's application for extension of time and leave to appeal was filed on 2 December 2015, and the application was first listed to come before the Court on 10 December 2015. The return date for this matter by when Ms Winn could have discontinued her application without recourse to either the respondent or the Court has long since passed. 15 The respondent submits that the preferred course in these circumstances is for the Court to dismiss Ms Winn's application rather than to permit her to discontinue. In circumstances where Ms Winn has clearly sought to relitigate a matter already determined by the Federal Court, I consider it appropriate that the current application be dismissed for abuse of process rather than discontinued. In so observing, I also note that I do not accept Ms Winn's submission that the respondent impliedly consented to Ms Winn discontinuing the application in this proceeding by reason that his Counsel referred to material in this matter in QUD 1102 of 2015. In my view this submission is without legal merit to the point of being fanciful. 16 I also reject Ms Winn's submission that costs should be awarded against the respondent because he did not, at an earlier stage of the proceeding, alert Ms Winn that she had not served him with a sealed copy of her application, and further alert Ms Winn that in the circumstances the application was entirely incompetent. In my view this submission is contorted to the point of nonsense. 17 In respect of costs, even were I minded to grant leave to Ms Winn to discontinue her application for an extension of time and leave to appeal, the appropriate order would be to order costs against her as contemplated by r 26.12(7) of the Federal Court Rules. While s 43(2) of the Federal Court of Australia Act 1976 (Cth) vests a discretion in the Court to make an order as to costs, I note respectfully the observation of Flick J in Ashby v Slipper [2014] FCA 973 at [20] that: The right to discontinue a proceeding is a recognition of the fact that a party should not be forced to litigate a case: Trade Practices Commission v APM Investments Pty Ltd [1983] FCA 359; (1983) 74 FLR 276 at 280 per Woodward J. But where a party seeks to discontinue a proceeding, be it with consent or with leave, that party usually is required to pay the costs of the discontinuance: El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 at [17] per Foster J; Travaglini v Raccuia [2012] FCA 620 at [36] per McKerracher J. 18 In the current circumstances, I consider that an award of costs against Ms Winn is even more fitting where the Court dismisses her substantive application for abuse of process. No reasons of substance have been put to me why costs should not follow the event in the ordinary course: Oshlack v Richmond River Council (1998) 193 CLR 72. 19 Having said that however, I am not persuaded in the circumstances that Ms Winn should pay the respondent's costs on an indemnity basis. As the Full Court recently reiterated in Oil Basins Limited v Watson [2014] FCAFC 154, whether or not indemnity costs should be awarded in any given case depends on whether the particular facts and circumstances of the case warrant the making of such a costs order (at [117]). Such factors as the unreasonableness of the party against whom costs are to be awarded, and whether the proceedings constitute an abuse of process, are relevant (see, for further example, observations of the Full Court in Coshott v Prentice [2014] FCAFC 88 at [21]). 20 In this case while I consider that Ms Winn's application for extension of time and leave to appeal is an abuse of process, there appears to be no reason why the respondent could not have sought summary dismissal of the application immediately after it was filed rather than continued to incur costs in opposing an application which was clearly an abuse of process. Clearly the respondent has to meet the case brought against him, and is justified in taking proper steps to do so. However in a case where both parties were aware of the earlier decision of Rangiah J in Winn v Leigh [2014] FCA 518 it would have been reasonable of the respondent to seek dismissal of the current proceeding before now. 21 The appropriate order is to dismiss Ms Winn's application for extension of time and leave to appeal, with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 31 March 2016