Case: Ogawa v University of Melbourne (No 2) [2004] FCA 1275 
Outcome: cited
Although Ms Winn outlined her personal and other circumstances that were said to explain the delay in the filing of the notice of appeal, I do not consider that she has demonstrated " special reasons" sufficient to warrant a grant of leave to file a notice of appeal out of time. Especially is that so where: (1) The only real issue between the parties is Ms Winn's liability to pay the costs order. The nature of the costs order is not a "special reason" given the futility of the orders sought in the draft notice of appeal and the reluctance, in principle, to allow leave in relation to a disputed costs order: see eg, Merit Protection Commissioner v Nonnenmacher [1999] FCA 274 ; (1999) 86 FCR 112 and Ogawa v University of Melbourne (No 2) [2004] FCA 1275 ; (2) Ms Winn seeks to have the Court revisit a contention which she has pursued without success before Registrar Mussett and before McInnis FM. The contention is without foundation. The only substantive issue between the parties (a dispute about the validity of the bankruptcy notice) was resolved in her favour before the Registrar. Ms Winn seeks to re-agitate that issue when none exists. Registrar Mussett set aside the bankruptcy notice with Brian Ward's consent. Ms Winn cannot revive that question merely to seek to reverse the costs order against her; (3) Ms Winn's contentions do not take account of the nature of the Registrar's discretion to make orders as to costs under s 79 of the Federal Magistrates Act 1999 (Cth) ("the FMC Act "). Costs do not always follow the event. A variety of circumstances, including the conduct of the parties during or preceding the litigation, will be relevant: Cummings v Lewis [1992] FCA 334. Where a party unreasonably prolongs a proceeding or pursues issues and arguments which are untenable, an adverse costs order may result, even where the party succeeds on its substantive claims: Newcrest Mining (WA) Limited v Commonwealth of Australia (1993) 40 FCR 507. If Ms Winn had wished to file an appeal against the costs order made by the Registrar on the basis that the discretion under s 79 of the FMC Act had miscarried, then that is something she should have done before the FMC when she had an opportunity to do so. She did not. She should not now be permitted to do so by the current application; (4) the validity of the bankruptcy notice was resolved when Brian Ward voluntarily agreed that it be set aside and that the judgment debt, to which it related, was unenforceable; (5) Ms Winn's persistent pursuit of issues relating to the validity of the bankruptcy notice has resulting in numerous costs orders against her and the considerable expenditure of Court resources and the resources of Brian Ward in defending the proceedings. Brian Ward offered to settle the proceeding with no order as to costs prior to the hearing before McInnis FM and notified Ms Winn of its intention to pursue an order for indemnity costs if she refused that offer. Ms Winn did not respond. The proceedings have been unduly prolonged by the choices Ms Winn has made not only to the detriment and inconvenience of Brian Ward, but also, so far as the material before the Court reveals, to herself.