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Winn v Bennett & Philp Pty Ltd QDC 16
DISTRICT COURT OF QUEENSLAND
Winn v Bennett & Philp Pty Ltd  QDC 16
BENNETT & PHILP PTY LTD
District Court, Brisbane
1 February 2019
16 November 2018
Application to set aside order for security of costs – application for leave to appeal Magistrate’s order – whether power to order security for costs – consideration of alternative powers to order security – whether to set aside earlier order – whether applicant absent – relevant considerations – determination not to set aside earlier orders
Bell v Bay-Jespersen  QCA 68
Brooks v Worchild  QCA 93
CBA v Nagamuthu  QCA 484
Queensland Uniform Civil Procedure Rules 1999 (Qld) rr 667, 668, 671, 772, 743A
J Winn (applicant) in person
Applicant in person
- This is an application pursuant to r 772(4) and/or r 667(2)(a) of the Queensland Uniform Civil Procedure Rules 1999 to set aside certain orders (being order 2 and 3) made on 13 August 2018 by another Judge in this court, when ordering that the applicant provide security for courts of the appeal.
- The applicant engaged the respondent, a firm of solicitors, to act on her behalf in proceedings in the Federal Court in relation to an application concerning her bankruptcy. She was unsuccessful with that application. Subsequently the defendant delivered a bill of costs in the sum of $3,077.14 which the applicant paid. Almost 12 months later she sought to have the costs assessed. That application was opposed.
- The matter came before the Magistrates Court on 16 June 2017. It was adjourned, ultimately to 10 October, to enable the applicant to file additional material. On the day of the resumed hearing proceedings were listed for 9.00 am. The applicant sent an email to the court, at 8.49 am, advising she was ill and unable to attend court. She sought an adjournment. The learned Magistrate indicated she was not prepared to adjourn the matter, especially in circumstances where the applicant had provided written submissions and filed material on which she relied. Having refused to adjourn the matter Her Honour reconsidered the written material and submissions and held that the application to appoint an assessor should fail. The learned Magistrate was of the view that although the matter had initially been adjourned so the applicant could file further material to comply with r 743A(5) of the UCPR the applicant in her material and submissions did not address the matters necessary in order for the court to exercise its discretion to order the solicitors’ account to be assessed. She held namely, the material did not material to show the work charged for was not performed or that the work was performed otherwise than in accordance with the parties’ costs agreement. In particular reliance was placed by her Honour on Robertson v Boe William (2013) QCA 252 in determining that the material was not sufficient to justify an order appointing a costs assessor.
- The learned Magistrate also ordered that the applicant’s affidavits of 25 May and 15 September 2017 be placed in a sealed envelope, and not be opened without a further order of a court. She fixed costs of the application which she ordered that the applicant pay.
- It is not apparent from the judgment why that order placing material in an envelope was made but I assume it was because of the nature of allegations the applicant had made concerning the respondent solicitors. Ultimately that question is not of importance in this application.
- Subsequently the applicant sought orders in the Magistrates Court pursuant to r 667(2)(a) and 668(3)(b) of the UCPR setting aside the orders of 10 October and for the appointment of a costs assessor. In fact, the applicant appears to have filed two almost identical applications on 15 November and 6 December.
- Rule 668 applies where facts arise or are discovered after an order is made which, if known of or which had arisen at the time of the order would have resulted in a different outcome. In such circumstances, pursuant to r 668(3)(b) the court may set aside or vary the earlier order. Rule 667 effectively provides that a court may set aside an order made in the absence of a party. Clearly the applicant was absent from the hearing of 10 October but of course the question remained whether the Magistrate hearing the matter would exercise his or her discretion to accede to the application.
- On 15 December 2017 those applications were dismissed by Acting Magistrate Carmody. The applicant was again ordered to pay the respondent’s costs, fixed on this occasion in the sum of $1,744.
- In her judgment the learned Acting Magistrate identified that both rules 667 and 668 provide that a court may, in the exercise of its discretion, order that earlier orders be set aside. She identified in paragraph 5 of her reasons factors of relevance to the exercise of the discretion including, importantly, the merit of the applicant’s case. His Honour said at paragraph 26 of her Honour’s reasons:
“(26) In conclusion, the discretion to set outside fails because:
- (a)the order was made after a full hearing and submissions on all relevant issues;
- (b)there is no satisfactory explanation for the delay between the day of the order (10 October) and the first application filed on 19 November;
- (c)in any event the applicant’s case remains, as described by Her Honour ‘as hopeless’ and therefore
- (d)there is no useful purpose in setting aside the decisions such as correcting an injustice or unfairness;
- (e)the more appropriate remedy is an appeal out of time.
- Her Honour then said:
“(29) Setting aside the order would only needlessly increase the successful party’s costs and place an unjustified burden on finite judicial and administrative resources.”
District Court Proceedings
- On 11 January 2010 the applicant filed a notice of appeal seeking leave to appeal against that decision of 15 December; that is, against the decision to dismiss the applications made pursuant to rr 667 and 668 to set aside the earlier orders. The right to appeal against a decision of the Magistrate’s Court is governed by s 45(1) of the Magistrate’s Court Act. Where the amount involved is less than minor civil dispute level (relevantly $25,000) leave is required. Leave is to be given if the judge “is satisfied that some important principle of law or justice is involved.”
- The respondent on 29 June 2018 filed an application seeking security for costs of the appeal.
- The matter came before a Judge of this court on 13 August. The applicant was represented by counsel who made clear that his solicitor, and he, were “only instructed to appear in relation to directions and an adjournment today” (T1-3, l 21/22). He said: “We are not instructed to appear on the application for security for costs but only the adjournment of the matter” (T1-3, l 21/29). Counsel based his application for an adjournment on the failure of the respondent to have filed an outline of submissions in the appeal in accordance with the relevant practice direction. Such outline was required by 1 May but had still not been filed at the time the matter came before the court.
- It seems from the course of submissions made before His Honour that the respondent, rather than filing an outline, had sought a directions hearing. At the heart of the issue was the fact that whilst the applicant had various transcripts she intended to rely on, she would not provide them to the respondent, who was reluctant to spend money, said to amount to about $1,000 to obtain them, having regard to the amount involved in the proceedings (a $3,077.14 bill) and what the respondents saw as the gross weakness of the applicant’s case on appeal.
- For his part counsel for the applicant submitted that until the applicant knew the detail of the respondent’s submissions on the appeal she was unable to sensibly respond to the application for security for costs. His Honour rejected that submission, indicating that the nature of the respondent’s submission was readily apparent from the manner in which it had conducted the two proceedings before the magistrate. Put simply, it seems his Honour’s view was that the submission would merely say that the magistrates were clearly correct and the applicant’s position below was untenable.
- There is much to be said for that practical approach to whether the application should be adjourned. In my view the submission that the applicant was unable to sensibly respond to the application for security costs until the outline of submissions on appeal was filed was disingenuous.
- Counsel for the applicant also submitted that an appellant in a District Court appeal from the Magistrates Court is not required to provide the transcript. He referred to practice direction no.5 of 2016 which states, in paragraph 3;“In the absence of any other order of the court, the onus of obtaining a copy of the transcript and other documents in the custody of the court or entity from which the appeal was brought lies upon the parties”.
- Despite the fact that counsel was instructed to appear only for the purposes of the adjournment, His Honour went on to consider the merits of the application for security for costs.
- Mr Slasberg who is from the respondent’s solicitors, submitted that, in essence, the applicant’s case on the appeal if leave was granted was that:
- (i)The same magistrate who heard the application on 10 October should also have heard the application of 15 December.
- (ii)That the High Court decision in Allesch v Maunz  HCA 40 was authority for the proposition that a party who provided a reasonable excuse for not appearing on the day of a hearing ought have any order made on that day contrary to the party’s interests set aside.
- (iii)The court failed to take into account the applicant’s medical certificate provided to the court on the morning of 10 October.
- (iv)The court failed to take into account relevant matters raised under r 668, which were said to be new facts that arose after the first hearing, but the solicitor submitted that this related only to issues of further medical certificates relating to her illness at the time of the hearing.
- (v)The work the solicitors did was of no benefit to her. The solicitors however submitted that the applicant’s prospects of success on the application were extremely limited, having regard to the decision in Robertson v Boe Williams (supra).
- When His Honour said to counsel for the applicant: “It’s put against your client that her appeal is hopeless”, Counsel replied:
“I’m not arguing the security for costs application. This is an adjournment in relation to a failure by Bennett & Philp.”
- His Honour then indicated that if he refused the application for the adjournment he would hear the application for security for costs. Counsel again reiterated that he did not have instructions in relation to the merits of that application.
- There was then discussion about a medical certificate which suggested that the plaintiff was unable to prepare for or attend court proceedings between 10 and 24 August.
- The solicitor for the respondent referred to what he said was a “very long standing pattern of conduct that goes back to 2003” in respect of the applicant’s avoiding court hearings by various means and referred to a number of decisions including what was referred to as a decision of Winn v Brahe (in fact Winn v Garland Hawthorn Brahe  VSC 93). He described her as having “preyed on the goodwill of this court and respondent”.
- Counsel submitted that if the matter was not adjourned “our client will suffer great injustice because she has not been able to adequately respond to the application for security for costs because the outline of argument has failed to be filed as per the practice direction”.
- His Honour then gave brief reasons in these terms:
“You have said everything that could have been said in support of the application for the adjournment. I have regard to the submissions of Mr Slasberg and I am of the opinion that Bennett & Philp, even though they breached the requirement to file their outline of argument by the due date and have still not filed the outline of argument, are entitled now to bring an application for security for costs. The history of this matter is that there have been two magistrates who have ruled against Ms Winn, on each occasion calling her case ‘hopeless’, is a very significant point in my opinion. An application for security for costs against the natural person is something that is very, very carefully considered, as all matters are, by the court, but where it appears – and there is certainly a strong argument – that Ms Winn’s appeal involving a legal account for $3,000 only, which she paid and then contested about 12 months later, an appeal involving such a small amount of money, and one which would inevitably involve the respondent, Bennett & Philp Pty Ltd, in expenditure of significant funds, is one that I think the court should uphold today. The application by Mr Slasberg is for the sum of $15,000 by way of security for costs to be provided by Ms Winn, and I think, based on my experience, that that amount is a very conservative figure for an appeal, for the costs of an appeal.”
- His Honour then made orders that:
- The appellant’s application for a further adjournment of the respondent’s application filed 29 June 2018 is refused;
- The appellant is to provide security for the costs in the sum of $15,000, in a form acceptable to the court registry, within 14 days of the date of this order, in default of which the appeal stands dismissed;
- The appellant pays the respondent’s costs of and incidental to this application, to be agreed or assessed on a standard basis.
- The order for security for costs was not complied with. As I earlier said, the application before me was to set aside orders (2) and (3), set out in the previous paragraph. Subject to consideration of that application the effect of his Honour’s order is that the appeal is dismissed.
Power to order security for costs
- The application originally came before his Honour Judge Rackemann on 31 October. His Honour adjourned it to 16 November when it came before me. During the course of submissions before him, his Honour raised the question of whether the original judge had power to order that the applicant provide security for costs of an application for leave to appeal.
- Rule 772 of UCPR empowers the court to order “an appellant” to give security for the prosecution of the appeal. In this case however the applicant seeks an order pursuant to s. 45(2) of the Magistrates Court Act for leave to appeal the decision of the acting Magistrate made in December 2017.
- A question is thus whether the term “appellant” in r. 772 includes a party seeking leave to appeal. The term is not defined in the Magistrates Court Act, the District Court of Queensland Act or in the dictionary, being sch. 4, to the UCPR.
- There are a number of decisions where, without argument on the point, the Court of Appeal has ordered security for costs on an application to it for leave to appeal (see for example Brooks v Worchild  QCA 93 and CBA v Nagamuthu  QCA 484). In neither case is it clear whether the order for security for costs was being made pursuant to r. 772, which covers security for costs of an appeal, or r. 670 which covers security for costs on an application that a plaintiff may make.
- In Bell v Bay-Jespersen  QCA 68, a husband in proceedings against his wife sought to appeal against the decision of McKenzie J dismissing his application for judicial review of a Magistrate’s determination in relation to a protection order under the Domestic and Family Violence Protection Act. A question arose as to whether leave to appeal was required.
- Determination of the question was of importance because the wife had sought an order for security of costs of the appeal. As I have earlier pointed out r. 771 of the UCPR confers on the Court of Appeal, and in my case the District Court, power to order security for the prosecution of an appeal. MacPherson JA in his judgment, with which McMurdo P and White J as her Honour then was, agreed said at paragraph 12:
“On what I have said, there is currently no appeal to this court but only an application for leave to appeal. Consistently with the decision in Stone v Copperform Pty Ltd  1 Qd R 106 the Court of Appeal has no power under UCPR 772 to make an order for security for costs of an application for leave to appeal, as distinct from the costs of an appeal as such.”
- His Honour then continued at paragraphs 13 and 14:
(13) “Rule 772 of the UCPR is, however, not the only source of power to make an order for security for costs of proceedings in the Supreme Court. Rule 670 of the Rules confers on the court authority to order a plaintiff to give security for the defendant’s costs of and incidental to the proceeding. On any view of it, the husband’s application for leave to appeal to this Court is a “proceeding” within the meaning of that Rule. The expression “the court” is defined in Schedule 4 to the Rules by reference to Rule 3(2), where the court is declared to include the Supreme Court. For reasons explained in Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd  1 Qd R 8, 12-14, the Supreme Court includes the Full Court, whose jurisdiction was transferred to the Court of Appeal by s 29 of the Supreme Court of Queensland Act 1991 at the time when the Court of Appeal was constituted under that Act in 1991.
- (14)It follows that in referring to the “court”, and in Rule 3(2) to the Supreme Court in this context, UCPR 670 vests in the Court of Appeal the power to order the plaintiff to give security for the defendant’s costs of the proceeding to obtain leave to appeal from the Court of Appeal. Regrettably, when the Supreme Court Act 1995 was enacted, the broader definitions in s 1 of the Judicature Act 1876 of “plaintiff” and “defendant”, which then applied generally to the earlier Rules of the Supreme Court of 1900, were confined to Part 13 of that Act, which may explain why they were not later carried over to the Uniform Civil Procedure Rules in 1999. Those definitions as they stood were plainly wide enough to comprehend the wife as “plaintiff” in her application for security, as well as the husband as “defendant” or respondent to it, in contrast to the somewhat limited ambit of those terms as defined in Schedule 4 to the Rules of 1999. The power to stay proceedings either generally or on such terms as may be just, which was originally contained in s 4(7) of the Judicature Act, was nevertheless perpetuated in s 244(7) of the Supreme Court Act 1995. In my opinion, that provision, when read in conjunction with UCPR 670, is sufficiently wide to enable the Court of Appeal to order a stay of the husband’s application for leave to appeal pending the provision by him in favour of the wife of security for the costs of his application for leave to appeal.”
- That reasoning in my view applies also to this matter. S. 69 of the District Court of Queensland Act provides:
“(1) Subject to this Act and to the rules of court, the District Court has, for the purposes of exercising the jurisdiction conferred by this part, all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act, and may in any proceeding in like manner and to like extent—
- (a)grant such relief or remedy; and
- (b)make any order, including an order for attachment or committal in consequence of disobedience to an order; and
- (c)give effect to every ground of defence or matter of set-off whether equitable or legal;
as may and ought to be done in like cases by a judge of the Supreme Court.
- (2)Without affecting the generality of subsection (1) , the District Court shall, in any proceedings in which jurisdiction is conferred under this part, have power to grant relief—
- (c)by staying the proceedings or part thereof; and
- That provision in ss.(c) reflects the power of the Supreme Court to grant a stay pursuant to s. 244(7) of the Supreme Court Act 1995 referred to by MacPherson J in paragraph 14 set out above. Thus, in relation to the order made in August 2018, whilst his Honour appears not to have had power to order security for costs pursuant to r. 772 of the UCPR, he did have power under r. 671 to make an identical order in respect of the application for leave to appeal.
Applications before me
- The applications by Ms Winn filed on 21 September to set aside orders 2 and 3 made on 13 August is said to be made under r. 772(4) and/or under r. 667(2)(a). In my view the order made in August 2018 should be seen as an order made under r. 671. Rule 667 relevantly provides:
“(1) The court may vary or set aside an order before the earlier of the following –
- (a)the filing of the order;
- (b)the end of seven days after the making of the order.
- (2)The court may set aside an order at any time if—
- (a)the order was made in the absence of a party; or
- In this case the order was made on 13 August and the application to set it aside filed on 21 September, clearly more than seven days after the making of the order.
- Thus it is necessary if the matter is to be considered for the applicant to bring himself within in the provisions of ss.(2) which provide for the setting aside of orders at any time in any of the circumstances enumerated in the sub-section. The question relevantly is whether the order made below was an order made in the absence of a party.
- In my view it was and I am prepared to approach the matter on the basis that she was not represented at the time of the making of the order for security for costs. Her counsel made clear that he and his solicitors were instructed only for the purposes of applying for an adjournment. In the process of considering that matter his Honour determined the matter for security of costs. It is obvious from the transcript that Ms Winn’s barrister and solicitor were in fact present in court when his Honour pronounced his decision and gave his reasons but nevertheless I conclude I should act on the basis that she was absent because her legal services were not instructed to be “present” for the purposes of submissions concerning the application for security of costs. Thus while they were fully aware of that ruling, and I have no doubt Ms Winn became aware of it shortly after, the time for filing the application to set aside the order is not constrained in the way provided by ss.(1) of s. 667.
Setting Aside Earlier Orders
- The question then is whether Ms Winn has satisfied me that this is an appropriate matter for setting aside the order for security of costs.
- She has failed to do so.
- In coming to that determination I am particularly influenced by the fact that she was unable to articulate any important question of justice or law which might cause a judge to ultimately conclude that the application for leave to appeal should succeed. In reality she really submitted only that $3,077.14, being the amount of the bill, was a matter of significant importance to her. In my view that does not make the determination of the matter an important principle of law or justice, a pre-requisite to grant leave of appeal.
- In my view the following factors are also of significant importance in determining not to set aside the order for security for costs:
- The size of the bill was not large;
- The original application in the Magistrates Court was adjourned to enable the applicant to file further material resulting in further expense and delay for the respondent;
- At the hearing on 10 October in the Magistrates Court, the applicant, eleven minutes before the hearing, sent an email requesting a further adjournment. The matter was however then determined on written submissions and on filed material. The applicant, though absent, thus had her first “day in court” when the matter was determined against her on the merits;
- The applicant had a second “day in court” on the hearing of her application seeking to set aside the orders of 10 October. Again her applications were dismissed after consideration of the merits.
- The reasons for the dismissal of the applications of 15 December, referred to in paragraphs 9 and 10 hereof are significant and suggest that the applicant’s prospects of success on the appeal, if leave to appeal were granted, are not strong;
- There has been significant delay in the prosecution of the matter by the applicant, including the delay between August 2018 and the filing of this application. Although not constrained by the provisions of ss.(1) of r. 667 it does seem to me relevant that the applicant must in fact have been aware of the order, yet took further significant time to file her application. The real delay I am referring to however is the whole of the delay since the initial filing of the application in the Magistrates Court in about June 2017. It is now in excess of 18 months later and the proceeding has been little advanced. I have no doubt that the cause of much of such delay has been the applicant’s conduct of the proceedings, including her frequent requests to adjourn applications.
- In the circumstances I can see little reason to exercise my discretion to set aside the order made for security for costs. His Honour had power to order such security pursuant to provisions of r. 670. The applicant has not complied with the order. The applicant’s prospects of succeeding on appeal, indeed of even obtaining leave to appeal, are limited and in circumstances where the sum of money involved is only a little in excess of $3,000.00 it is in my view important that the litigation not be unnecessarily protracted.
- The application to set aside the orders made on 13 August 2018 is dismissed.
- Subject to any submission the parties may wish to make of the contrary, I order that the applicant pay the respondent’s costs of and incidental to the application, including reserved costs, to be assessed on the standard basis.
- Published Case Name:
Winn v Bennett & Philp Pty Ltd
- Shortened Case Name:
Winn v Bennett & Philp Pty Ltd
 QDC 16
01 Feb 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC66/18 (No Citation)||13 Aug 2018||Respondent's application for security for costs granted.|
|Primary Judgment|| QDC 16||01 Feb 2019||Applicant's application to set aside orders made on 13 August 2018 (orders to provide security for costs) dismissed: Reid DCJ.|
|QCA Interlocutory Judgment|| QCA 196||26 Sep 2019||Respondent's application for the applicant's application for leave to appeal be dismissed for want of prosecution; application granted: application for leave to appeal dismissed for want of prosecution: McMurdo JA.|