Winn v Boss Lawyers Pty Ltd[2023] QCAT 480

REASONS FOR DECISION

1. [1]
   This matter concerned an application before the Tribunal for the reopening of a proceeding, namely OCL033-16.   That proceeding concerned an application by Ms Winn to set aside a costs agreement with Boss Lawyers Pty Ltd.  That original application was filed on 15 June 2016.^[1]  Ms Winn was unsuccessful both at first instance^[2]and on appeal.^[3] 
2. [2]
   Costs of the proceedings at first instance were determined by the then President, Daubney J.    On 18 February 2021, his Honour ordered Ms Winn to pay $8,500 in costs to Boss Lawyers Pty Ltd.^[4]  
3. [3]
   On 18 March 2021, Ms Winn filed an application to reopen that determination.
4. [4]
   On 3 February 2022, his Honour Judge Egan of the Federal Circuit and Family Court of Australia made a sequestration order against the estate of Ms Winn.  In so doing, his Honour noted that a consent to act as trustee signed by Mr Baskerville had been filed under section 156 of the Bankruptcy Act 1966 (Cth) (‘Bankruptcy Act’).^[5]
5. [5]
   On that day, Boss Lawyers Pty Ltd emailed QCAT, with a cc to Ms Winn, advising that the sequestration order had been made.  That email also stated:

Pursuant to section 60(2) of the Bankruptcy Act 1966 (Cth) an action commenced by a person who subsequently becomes a bankrupt is, upon becoming bankrupt, staying until the trustee makes election, in writing, to prosecute of discontinue the action.

According, we respondent seeks [sic] an order that the application filed by the applicant be stayed.

6. [6]
   Ms Winn was given the opportunity to file submissions in response to that proposition, but ultimately did not do so.  That opportunity was provided via directions made on 4 February 2022 to file submissions by 8 February 2022.  The time for compliance was later extended to 17 February 2022, the Tribunal having received an email from Ms Winn that she blocks emails from Boss Lawyers Pty Ltd and was unaware of their email submission.
7. [7]
   On 22 February 2022, the Tribunal received an email from Ms Winn which stated that:

   1. she has not been able to deal with the matter “as per the medical certificates lodged and emailed on 8 February 2022”;
   2. orders made relating to the sequestration order had “been obtained by a male solicitor” due to her “incapacity”;
   3. the “QCAT order subject to reopening” was made in her absence; and
   4. the sequestration order “should be set aside in due course”.
8. [8]
   The Tribunal has not received any further communication from Ms Winn in respect of this issue.
9. [9]
   On 16 May 2023, Boss Lawyers Pty Ltd sent an email to Mr Baskerville, enclosing a copy of Ms Winn’s reopening application, requesting that Mr Baskerville notify his intention as to whether the proceeding would be abandoned or not.   No response was received by Boss Lawyers Pty Ltd to that request.   
10. [10]
    On 20 October 2023, and then again on 29 November 2023, the Tribunal sought a response from Mr Baskerville to that request.   On 6 December 2023, Mr Baskerville emailed the Tribunal, Ms Winn and Boss Lawyers Pty Ltd, stating that “I wish to discontinue the action.  There is no benefit to creditors of the estate in prosecuting these proceedings.”  

The Bankruptcy Act

11. [11]
    Section 43(2) of the Bankruptcy Act provides that, upon the making of a sequestration order against the estate of the debtor, the debtor becomes bankrupt.^[6]
12. [12]
    Section 60(2) of the Bankruptcy Act states that an action commenced by a person who subsequently becomes bankrupt is, upon becoming bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
13. [13]
    ‘Action’ is defined as any civil proceeding,^[7] which includes a QCAT application.^[8] Section 60(2) does not apply to actions in respect of any personal injury or wrong done to the bankrupt, spouse, de facto partner or family member, death of spouse, de factor partner or family member, or criminal actions.^[9] None of these exceptions apply to this matter.
14. [14]
    Section 60(3) of the Bankruptcy Act provides that if the trustee does not make an election to prosecute or discontinue the action within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
15. [15]
    As observed above, that notice was provided by way of email from Boss Lawyers Pty Ltd on 16 May 2023.   No election was made within the requisite 28 days’ time period.
16. [16]
    It follows that, pursuant to the Bankruptcy Act section 60(3), the trustee is deemed to have abandoned the application to reopen the OCL033-16 proceeding.
17. [17]
    As such, I order that the application for reopening is dismissed.
18. [18]
    I note that even if there were not a statutorily deemed abandonment, I would dismiss the application, given the email of Mr Baskerville of 6 December 2023.
19. [19]
    I note, for completeness, that the Tribunal has received various emails from Ms Winn.  None of them change the outcome here, that is, none of them change the deemed statutory abandonment, and my decision to dismiss.

20. Order

20. [20]
    The application for reopening is dismissed.