Cristovao v Butcher Paull & Calder [No 3]
[2011] WASCA 10
•14 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRISTOVAO -v- BUTCHER PAULL & CALDER [No 3] [2011] WASCA 10
CORAM: PULLIN JA
MURPHY JA
HEARD: 10 DECEMBER 2010
DELIVERED : 14 JANUARY 2011
FILE NO/S: CACV 56 of 2006
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 :CRISFORD DCJ
Citation :CRISTOVAO -v- BUTCHER PAULL & CALDER & ORS [2006] WADC 75
File No :CIV 1874 of 2005
Catchwords:
Practice and procedure - Application 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):
Bandwill Pty Ltd v Spencer-Laitt [2000] WASC 210; (2000) 23 WAR 390
Cristovao v Butcher Paull & Calder [2006] WASCA 235
Ireland v Norilya Minerals Pty Ltd [2010] WASCA 203
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
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 42 of 2008, 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 respondents.
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 District Court case and before the judgment dismissing it was sealed, Crisford DCJ made an order refusing leave for a Mr De Alwis to appear as amicus curiae (19 May 2006). Mr Cristovao appealed against that decision in this appeal.
The interlocutory appeal is dismissed
On 10 November 2006, the Court of Appeal refused leave to appeal. As a result, this appeal was dismissed: Cristovao v Butcher Paull & Calder [2006] WASCA 235. Mr Cristovao was ordered to pay costs to the respondents to be taxed: The respondents proceeded to tax costs
In consequence, on 8 February 2007, the respondents filed a bill of costs which was taxed before Registrar Johnston and the allocatur signed on 14 May 2007. On 21 May 2007, the appellant applied to have the allocatur set aside but this was dismissed by Registrar Johnston by order dated 31 July 2007 after a hearing attended by Mr Cristovao. On 13 March 2008, the respondents filed an application for a Property (Seizure and Sale) Order in relation to their taxed costs. This prompted Mr Cristovao, on 13 June 2008, to file an application for an urgent order to suspend the orders made by Registrar Johnston. This was supported by an affidavit sworn 19 June 2008.
The hearing for a suspension order
The application for a suspension order was heard by McKechnie J on 19 June 2008. McKechnie J dismissed the application and ordered Mr Cristovao to pay the respondents' costs of the application to be taxed.
The respondents proceed to tax costs in relation to the hearing before McKechnie J
On 6 July 2010, the respondents filed a bill of costs pursuant to McKechnie J's order. The bill related to the application dismissed by McKechnie J. On 2 September 2010, the bill was listed for taxation before Registrar Powell.
Mr Cristovao applies for a stay of the taxation of costs ordered by McKechnie J
Mr Cristovao lodged an application for:
•A stay of execution pursuant to O 59 r 8 of the Supreme Court, objection
•Defendant's Bill of costs for taxation.
Mr Cristovao asked for the taxation to be adjourned until other 'associate proceedings be finalised'. The respondents did not consent. Registrar Powell did not consider he had power to stay the taxation and referred the application to the Court of Appeal by order dated 2 September 2010. That is the first application referred to above.
How it was that a General Division judge came to consider an application to stay an order relating to costs ordered by the Court of Appeal was not explored. Nor was the question explored about why Registrar Powell, who was considering taxation of costs made as a result of an order of the General Division judge, McKechnie J, could refer an application to the Court of Appeal for consideration. It may also be observed that this appeal was dismissed back in November 2006 and an order to that effect was sealed on 14 December 2006.
Mr Cristovao has filed affidavits in support of his applications. The basis for the appellant's applications is not entirely clear.
The respondent 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. They submitted that the jurisdiction to stay proceedings on grounds that they are, or would be, an abuse of process is to be exercised sparingly. They referred to Bandwill Pty Ltd v Spencer‑Laitt [2000] WASC 210; (2000) 23 WAR 390, 403 ‑ 404. See also Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [27] ‑ [28] and Ireland v Norilya Minerals Pty Ltd [2010] WASCA 203 [28]. They also submitted there is nothing constituting an abuse of process in proceeding to taxation of costs ordered by a court.
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 does not want to pay any taxed costs 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 could no longer be 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 on all grounds was refused. In any event, even if the 20 August 2009 application was capable of being heard and granted, such orders would not affect the respondent's entitlement to costs of its unsuccessful application before McKechnie J.
As to the Magistrates Court action against Tan & Tan, the respondents are not parties to the action. In that action, Mr Cristovao claims against these other former solicitors. Those proceedings do not involve the respondents. Whatever happens in those proceedings could not affect the respondents' entitlement to the costs ordered by McKechnie J.
As to the Family Court action, the respondents are not parties to the Family Court action 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 of his unsuccessful application before McKechnie J.
As a result, the first application should be dismissed.
The second and third applications referred to above must 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 made the subject of an appeal to this court and dismissed. This appeal has nothing to do with that affidavit. As already stated, this appeal was about whether the District Court was right to refuse to allow Mr De Alwis to appear as amicus.
The third application must be dismissed. This is an application seeking orders that subpoenas issue to compel the attendance of various people 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, which Mr Cristavao said 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 proceedings. In this case, the respondents are the party to the proceedings, not the solicitors acting in these 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, the four applications are dismissed.
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