Cristovao v Butcher Paull and Calder
[2011] WASCA 9
•14 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRISTOVAO -v- BUTCHER PAULL & CALDER [2011] WASCA 9
CORAM: PULLIN JA
MURPHY JA
HEARD: 10 DECEMBER 2010
DELIVERED : 14 JANUARY 2011
FILE NO/S: CACV 42 of 2008
BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
BUTCHER PAULL & CALDER
First respondentROBERT BUTCHER
Second respondentSUSAN MACKAY
Third respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :CRISTOVAO -v- BUTCHER PAULL & CALDER & ORS [2008] WADC 49
File No :CIV 1874 of 2005
Catchwords:
Practice and procedure - Applications for stay of taxation and other applications - Turns on own facts
Legislation:
Nil
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First respondent : Mr P D Quinlan SC
Second respondent : Mr P D Quinlan SC
Third respondent : Mr P D Quinlan SC
Solicitors:
Appellant: In person
First respondent : McCallum Donovan Sweeney
Second respondent : McCallum Donovan Sweeney
Third respondent : McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Cristovao v Butcher Paull & Calder [2008] WADC 49
REASONS OF THE COURT: The appellant, Mr Cristovao, who represents himself, has filed several applications which are referred to below. There is another appeal, CACV 56 of 2006, in which he has filed similar applications which were also listed for hearing.
The registry staff had to spend several hours on the day before the hearing to sort out what documents had to be placed before the court. Mr Cristovao has a tendency to file documents which do not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA), r 20 and r 21. Sometimes he files documents which are handwritten and sometimes they are typewritten. Sometimes he has included two file numbers on his documents so that the registry staff are uncertain as to which file the application should be placed upon. Sometimes, despite the two numbers, the applications have nothing to do with either appeal. His applications sometimes seek relief which cannot be granted.
At the end of the hearing, these difficulties were pointed out to Mr Cristovao who apologised for the inconvenience he caused. Mr Cristovao has the capacity to file documents in accordance with the rules. To try and prevent some of the confusion, Mr Cristovao was informed that, as a result of these difficulties, registry staff would now be instructed not to accept for filing documents in this appeal unless the documents comply with r 20 and r 21.
The applications listed for hearing in this appeal
The four applications listed for hearing in this appeal are:
(a)an application dated 1 September 2010 seeking:
•A stay of execution pursuant to Order 59 rule 8 of the Supreme Court, objection
•Defendant's Bill of costs for taxation;
(b)'Notice of originating motion' dated 24 October 2010 which reads:
This Honourable Court shall exercise its discretion and powers to consider as to wether [sic] or not it should refer the findings of misconduct, illegalities or criminal conduct by the offending party or parties, to the Legal Profession Complaints Committee of Western Australia and to other relevant authorities, if it deems necessary to do so.
and that:
Respondents costs be adjourned sine die until the Applicant's Application of Declaration of Invalidity of the said ('Altered/Fabricated Purported Affidavit') ('document') allegedly sworn dated the 21 March 2003, in the Family Court be finalised';
(c)notice of motion dated 29 November 2010 in effect seeking orders that subpoenas be issued to compel the attendance at court of various persons, including members of the respondent, former solicitors of the appellant, the law complaints officer of the Legal Complaints Committee and others; and
(d)an amended chamber summons for a stay of execution dated 29 November 2010 seeking:
Orders that the defendant's legal costs be throw[n] out in observance [sic] to Supreme Court Roles [sic] Rules Order 66 rule 5(1)(a) and (b); and … the Defendant's pay Appellant legal costs and refund Appellant's costs in observance to Supreme Court Rules Order 66 rule 5(e).
35 other orders are also sought, some harking back to the appellant's complaint about the 'Altered/Fabricated ‑ Purported Affidavit‑in‑chief' (proposed order 28) dated 21 March 2003.
The background to these applications
The substantive proceedings in the District Court
In 2005, Mr Cristovao sued his former solicitors, the respondents, in the District Court (CIV 1874 of 2005) for negligence in relation to the handling of a case Mr Cristovao is pursuing in the Family Court. Central to the District Court case was an allegation that an affidavit apparently sworn by Mr Cristovao on 21 March 2003 and filed in the Family Court proceedings was deficient in some way and that the respondents who were acting for him were responsible for the deficiency. Mr Cristovao constantly reverts to his complaint about this document. It is not clear what the nature of the complaint is but at times he refers to the affidavit as the 'Altered/Fabricated - Purported Affidavit'.
The District Court action is dismissed
The District Court action came to an end on 21 August 2009 when Judge Groves ordered that the statement of claim be struck out, the action dismissed and judgment be entered for the respondent.
An appeal to this court against the dismissal of the District Court Action is dismissed
The appellant in CACV 108 of 2009 appealed against the judgment of the District Court action. On 3 December 2009, that appeal was dismissed by the Court of Appeal.
This appeal - an appeal against an interlocutory decision in the District Court
During the now dismissed District Court proceedings, Keen DCJ made an order that Mr Cristovao pay the respondents' costs of various interlocutory applications. The judge gave reasons for his decision: see Cristovao v Butcher Paull & Calder [2008] WADC 49.
On 29 April 2008, Mr Cristovao commenced this appeal against the orders made by Keen DCJ.
The interlocutory appeal is discontinued
On 12 December 2008, Mr Cristovao filed an application for a stay of the orders made by Keen DCJ and on 22 December 2008, Buss JA ordered that the application be referred to the hearing of the appeal. On 27 January 2009, the applicant filed an application to review the decision of Buss JA which was heard by Owen and Wheeler JJA on 4 February 2009. Their Honours dismissed the review application and ordered the appellant to pay the respondents' and proposed third party's costs of the application.
On 6 February 2009, other solicitors who were then representing Mr Cristovao filed a notice of discontinuance. Pursuant to r 59(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA) the appellant was liable to pay the respondents' costs of the appeal.
The respondents proceed to tax costs
On 5 July 2010, the respondents lodged a bill of costs for taxation in relation to the costs of this appeal by virtue of the discontinuance and in relation to the costs of the review application before Owen and Wheeler JJA by virtue of their Honours' order made on 4 February 2009.
When the bill was listed for taxation before Registrar Powell, Mr Cristovao filed an application for a stay of execution. Registrar Powell referred that application to the Court of Appeal by order dated 2 September 2010. That is the first application referred to above.
The respondents have tried to guess the basis of Mr Cristovao's application. They submitted that it might be on the basis that this court should exercise its implied power of staying proceedings which are an abuse of process.
It is difficult to read Mr Cristovao's papers, but what can be extracted from them, and what Mr Cristovao confirmed during oral submissions, is that he wants the taxation of costs stayed until three other proceedings are dealt with, those other proceedings being:
(a)the hearing of an application pursuant to O 26A of the Rules of the Supreme Court 1971 (WA) dated 20 August 2009 said to have been made by Mr Cristovao in the District Court action referred to above;
(b)Mr Cristovao's Magistrates Court action PERGCLM 7383 of 2010 against Tan and Tan (other former lawyers of Mr Cristovao) in relation to certain consent orders in the District Court action signed by that firm on 25 September 2007; and
(c)an impending application by Mr Cristovao in his Family Court proceedings seeking a 'declaration of invalidity' in relation to his 'Altered/Fabricated - Purported Affidavit' of 21 March 2003.
Mr Cristovao's application in the District Court is no longer an extant application. The District Court action has been dismissed. Undisposed of interlocutory applications fell away as a result. As indicated above, the appeal against the judgment of dismissal in the District Court action has also been dismissed because leave to appeal was refused. Even if the 20 August 2009 application were capable of being heard and granted, such orders would not affect the respondents' entitlement to costs as a result of Mr Cristovao filing a notice of discontinuance of this appeal.
As to the Magistrates Court action against Tan & Tan, the respondents are not parties to that action. In that action, Mr Cristovao claims against other former solicitors. Those proceedings do not involve the respondents. What happened in those proceedings could not affect the respondents' entitlement to costs following a discontinuance of this appeal.
As to the Family Court action, the respondents are not parties to those proceedings in relation to the primary relief sought in that action. Mr Cristovao is trying to obtain an order from the Family Court joining the respondents as a party for the purpose of pursuing his complaint about the affidavit which is central to his overall complaint. However, that has nothing to do with the costs which follow upon his discontinuance of this appeal.
As a result, the first application has no merit. It must be dismissed.
The second application referred to above must also be dismissed. The second application simply seeks to re‑agitate Mr Cristovao's complaints about the 'Altered/Fabricated Purported Affidavit' of 21 March 2003. Mr Cristovao ignores the fact that this was the subject of complaint in the District Court, an action which has been dismissed and which has been the subject of an appeal to this court and dismissed. This appeal had nothing to do with that affidavit. As already stated, this appeal was about a costs order made in the District Court.
The third application must be dismissed. This seeks leave to subpoena various witnesses for the purpose of continuing to complain about the 'Altered/Fabricated‑Purported Affidavit'. That application should be dismissed for the above reasons and to ensure that the position is clear, an order will be made that no subpoena be issued without the leave of the court.
The fourth application, so far as it amends the first application, is dismissed for the reasons given above. Insofar as it seeks an order pursuant to O 66 r 5 against the respondents, it must be dismissed. That is a provision which authorises the court to make an order against solicitors personally because of their conduct of litigation on behalf of a party to the proceedings. In this case, the respondents are the party to the proceedings, not the solicitors acting in the proceedings and if any costs order were made against them, it would be made in the ordinary way in the exercise of the court's discretion.
For those reasons, all four applications must be dismissed.