Cristovao v Butcher Paull & Calder & Ors - [2006] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CRISTOVAO -v- BUTCHER PAULL & CALDER & ORS [2006] WASCA 235

CORAM: PULLIN JA
BUSS JA

HEARD: 8 SEPTEMBER 2006

DELIVERED : 10 NOVEMBER 2006

FILE NO/S: CACV 56 of 2006

BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
BUTCHER PAULL & CALDER
First Respondent
ROBERT BUTCHER
Second Respondent
SUSAN 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:

Appeal - Leave to appeal - Turns on own facts

Legislation:

District Court of Western Australia Act 1969 (WA), s 79(1)(b)
Legal Practice Act 2003 (WA), s 4, s 203
Rules of the Supreme Court 1971 (WA), O 36 r 2

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr A T Macknay
Second Respondent      :     Mr A T Macknay
Third Respondent          :     Mr A T Macknay

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 & Ors [2006] WADC 75
Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990
Schagen (1993) 8 WAR 410
Smith v The Queen (1985) 159 CLR 532
Wilson v Metaxas [1989] WAR 285

Case(s) also cited:

Nil

PULLIN JA: This is an application by the appellant, Mr Cristovao, for leave to appeal against some interlocutory orders made in District Court proceedings. Section 79(1)(b) of the District Court of Western Australia Act 1969 (WA) provides that:
"A party to an action or matter who is dissatisfied with -
…
(b)a judgment that is not a final judgement … may by leave of the Court of Appeal, appeal to the Court of Appeal."
The judgment of Crisford DCJ the subject of this appeal, being an interlocutory judgment, is not a final judgment, and therefore leave to appeal is necessary. Although there are no rigid or exhaustive criteria which govern such applications, generally speaking it is necessary for an applicant to show that the decision appealed against is wrong or attended with sufficient doubt to justify the grant of leave, and that substantial injustice would be done if it remained unreversed: Wilson v Metaxas [1989] WAR 285 and Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990.
The notice of appeal reads:
"1.Leave for Mr Viji DE Alwis to appear as amicus curie [sic] or McKenzies friend refused.
2.Application to set aside orders made by Principal Registrar Gething on 8th March 2006. refused.
3.Application to issue subpoenas for Mr D G Dundas, Mr A Macknay, and Mr B Goetze refused. "
Grounds of appeal containing a total of 38 grounds were filed. They included submissions, unsupported allegations and irrelevant material. They can be read, however, as containing complaints that Judge Crisford erred in the exercise of her discretion to refuse Mr de Alwis leave to appear and to refuse to allow cross‑examination, and that Principal Registrar Gething erred in the exercise of his discretion.
The history of the matter is as follows. On 23 August 2005 Mr Cristovao issued a writ in the District Court suing his former solicitors. In the indorsement of claim, the relief claimed included an order that the District Court grant Mr De Alwis leave to appear as amicus curiae, or as McKenzie friend, for Mr Cristovao, as an urgent order. That writ, which is annexure 1 to his affidavit of 22 May 2006, alleges negligence by the solicitors in the handling of a matter of Mr Cristovao's in the Family Court of Western Australia. Further details of the allegations are provided in the statement of claim of 5 January 2006.
On 2 September 2005 the first and second defendants appeared to the writ. On 14 December 2005, the third defendant appeared to the writ (all defendants are present respondents). The respondents filed a defence on 30 January 2006. There is an issue about whether the defence was filed out of time, the respondents asserting that, pursuant to O 3 r 3 of the Rules of the Supreme Court 1971 (WA) ("the rules"), the relevant calculation resulted in them having until 30 January 2006 to file a defence. That defence was apparently described in correspondence with Mr Cristovao as a holding defence, and a further defence was filed within 14 days, that being the period prescribed under the rules to amend once without leave. Also on 30 January 2006 Mr Cristovao filed a chamber summons for default judgment or summary judgment.
On 8 February 2006 the respondents filed an affidavit of Mr Dundas in support of a chamber summons which they had issued, seeking to remove a "purported affidavit" of Mr Cristovao's, signed 30 January 2006, from the Court file, or to strike out offending parts of that affidavit. The Dundas affidavit deals with a number of matters. It deposes that Mr Dundas is a solicitor in the firm acting for the respondents in the defence of Mr Cristovao's action. It deals with alleged deficiencies in the jurat of the affidavit of Mr Cristovao with which it is concerned and with the question of whether the document was sworn or affirmed before a person authorised for that purpose. It also deals with the status of Mr De Alwis, deposing to information to the effect that the Legal Practitioners Disciplinary Tribunal ordered in 2002 that Mr De Alwis be suspended for 12 months, commencing 12 July 2002, and that the Supreme Court, on 26 June 2003, ordered that Mr De Alwis be suspended from practice, pending the hearing of a reference by the Tribunal concerning him. It appears, from the information to which Mr Dundas refers, that the Legal Practitioners Disciplinary Tribunal on 29 August 2003 resolved to submit a report to the Full Court of the Supreme Court of Western Australia recommending that Mr De Alwis was not a fit and proper person to remain on the roll of practitioners. It is also deposed by Mr Dundas that he was informed by the Associate to the President of the Court of Appeal on 6 February 2006 that the hearing of that reference was at that time listed for 17 February 2006.
On 9 February 2006, Mr Cristovao's notice of motion for default judgment, and the defendants' summons for the strike out of the affidavit, came before Registrar Kingsley for directions. It appears from Mr Cristovao's affidavit of 22 May 2006 that he was deeply unhappy with the course of proceedings before Registrar Kingsley. Registrar Kingsley ordered that the application for Mr De Alwis to appear as amicus curiae be refused (it would appear that that related to an application that Mr De Alwis appear before Registrar Kingsley). The affidavit of Mr Cristovao sworn 30 January 2006 was sealed, to be opened on the hearing of the defendants' application to strike it out, and the application was otherwise adjourned to a special appointment.
The contentious affidavit of Mr Cristovao was rewitnessed by a person qualified to witness it. The present respondents maintained their objection to the affidavit, as resworn, on the basis that it contained scandalous material. The respondents therefore filed an amended chamber summons to remove that further affidavit from the Court file, or strike out portions of it, and the application also sought that the costs of that application be paid forthwith, either by the plaintiff, or by the person responsible for preparing the affidavit, if that person was not the plaintiff. That application was discussed at a directions hearing heard before Principal Registrar Gething.
At the outset of that directions hearing the Principal Registrar advised Mr Cristovao that the two issues to be dealt with on that occasion were working out a date suitable to Mr Cristovao and to the respondents for the hearing of the summary judgment application, and dealing with the respondents' application in respect of the affidavits. Counsel for the respondents advised the Principal Registrar that, depending upon the outcome of the application in respect of the affidavit, he would be seeking programming orders to enable the respondents to answer the affidavit of Mr Cristovao.
On that occasion, Mr De Alwis sought to heard as an intervener, rather than in any capacity representing Mr Cristovao. There was no written application of that kind before the Principal Registrar, the application by Mr De Alwis being made orally. Mr De Alwis asserted that, since he had helped Mr Cristovao prepare the affidavits the subject of the respondents' application, and was therefore at risks of costs, he should be heard. As a result of inquiries made by the Principal Registrar, counsel for the respondents advised that he would abandon the application to the extent that it sought costs against third parties other than Mr Cristovao. There was therefore no reason for Mr De Alwis to intervene. It appears Mr De Alwis was unhappy with that result. However, the Principal Registrar then heard from Mr Cristovao.
So far as the date of the hearing of the special appointment was concerned, the Principal Registrar consulted both counsel for the respondents and Mr Cristovao, and chose a date on which they both agreed that they were free.
After considerable argument, the Principal Registrar accepted Mr Cristovao's request that the chamber summons to strike out parts of the affidavit and the summary judgment application should be heard together. That course was obviously disadvantageous for the respondents, since it would require them to answer an affidavit to which they objected. However, the Principal Registrar obviously formed the view that that was the easiest course for Mr Cristovao, since he appeared to have some difficulty in separating out the issues involved in the two applications. The Principal Registrar listed those two matters for a whole day before a Judge on 24 May 2006. After some further discussion, during which it became clear that Mr Cristovao would wish Mr De Alwis to represent him on 24 May 2006, the Principal Registrar ordered that any application by Mr Cristovao to be represented by a person other than counsel or solicitor at the hearing on 24 May 2006 be brought no later than 2 May 2006. As he explained to Mr Cristovao, that would mean that Mr Cristovao would know well before 24 May whether he would be able to be assisted on that day by Mr De Alwis, or whether he would have to make some other arrangement.
On 2 May 2006, Mr Cristovao filed a notice of motion seeking that Mr De Alwis be granted leave to appear as amicus curiae "to place my case before Court in the interests of Justice and that the Court may dispense quality Justice". Mr Dundas swore a further affidavit in opposition to that notice of motion, dated 9 May 2006. It annexed a letter from Mr Goetze, which letter advised that the current status of the report from the Legal Practitioners Disciplinary Tribunal to the Full Court was that it was relisted for 31 May 2006.
On 11 May 2006 the matter was listed before Judge Crisford, who, at the commencement of the hearing on that day, advised that the first matter before her was to monitor the progress of orders made by the Principal Registrar, being programming orders for filing of submissions. There was a brief discussion about that matter. Her Honour then advised that "the only matter then before me this morning is the notice of motion dated 2 May 2006 in relation to Mr De Alwis being granted leave to appear as amicus curiae". Mr Cristovao handed up a further affidavit relating to that matter. Having heard brief submissions to supplement the written materials, her Honour advised that she would deliver judgment in relation to that application on 19 May 2006.
The matter was called on again, however, on 17 May 2006. That was because, on 15 May, Mr Cristovao had filed a notice of motion, purportedly pursuant to O 36 r 2(3) of the rules, seeking orders that Mr Dundas, Mr Goetze and Mr Macknay be tendered for cross‑examination. That rule permits the Court to order the attendance for cross‑examination of a person making an affidavit. Only Mr Dundas had made an affidavit. There was some argument in relation to that notice of motion on 17 May. However, since Mr Cristovao asked for further time to consider the matter, it was adjourned until the following day, 18 May. On that occasion, her Honour took the opportunity of clarifying with Mr Cristovao the role which he wished Mr De Alwis to play in any proceedings. He agreed that he wanted Mr De Alwis to play an active role in the proceedings and to make submissions on the law to the Court. Her Honour also asked Mr De Alwis directly whether he was suspended from practice, and he agreed that he was.
On 19 May 2006, her Honour dismissed both of Mr Cristovao's applications; that is, the application pursuant to O 36 r 2(3), and the application that Mr De Alwis be permitted to represent him, either as amicus curiae, or as McKenzie friend, in the hearing of the summary judgment application and the application to strike out portions of the affidavit listed for 24 May. Her Honour published reasons for those decisions: Cristovao v Butcher Paull & Calder & Ors [2006] WADC 75.
On 24 May 2006, because of proceedings which he commenced in this Court, Mr Cristovao sought in the District Court an adjournment of the hearing listed for that day. It was not opposed by the respondents, and the hearing was adjourned sine die, with costs reserved.
On 22 May 2006, Mr Cristovao filed his notice of appeal, the details of which are set out above.
Her Honour's decision dealt with the first and third of these matters, but not with the second. It appears from par 79 of Mr Cristovao's affidavit of 22 May 2006, and from an outline of defendants' submission in reply to, inter alia, a motion dated 26 April 2006 which is annexed to that affidavit, that there is a notice of motion filed by Mr Cristovao seeking to set aside the Principal Registrar's orders. However, whether that has been dealt with or not, I do not know. Judge Crisford did not purport to deal with it.
Although there may be an issue about whether the grant or refusal of leave for an unqualified person to represent a litigant is a decision from which an appeal lies to this Court, the competency of the appeal in relation to the first and third decisions referred to is conceded by the respondents for the purpose of this proceeding.
Also on 22 May 2006, Mr Cristovao filed an application in the appeal, seeking orders that Mr De Alwis assist him as amicus curiae or McKenzie friend in the appeal, and that there be a "stay order" staying all further action in the District Court until "a finality is reached in this appeal".
An appellant's case was also filed on the same date, which addressed the issues in both the interlocutory appeal and the application for a stay. The orders sought, as set out in that case, are:
"Applicant applies for
Orders that:
1.Mr Viji De Alwis be granted leave to assist me in this appeal and the Application for the Stay Order;
2.An Urgent order to Stay the further Hearing of this matter by the District Court on the 24^th May 2006 at 10.00 AM or thereafter until this Appeal is heard to a finality;
3.That the orders made by Principal Registrar Gething on the 8^th March 2006 be set aside;
4.That the parties be ordered to observe the normal Practise [sic] Directions regarding the filing of the affidavits and their Outline of submissions;
5.That Mr Viji De Alwis be granted leave to appear as amicus curiae or as McKenzie Friend;
6.That the Plaintiff be issued with the subpoenas to require Mr David Dundas, Mr Bruce Goertze [sic] and Mr Ashley Macknay attend for cross examination.
7.That the matter be sent back to the District Court to be heard by a Judge other than Her Honour Judge Crisford."
On 24 May 2006, Mr Cristovao's stay application was listed urgently in this Court before McLure JA at 9 am. Her Honour dealt, on that occasion, with the stay application, and with an application that Mr De Alwis speak for Mr Cristovao as an amicus curiae or McKenzie friend in that stay application. Her Honour refused the application for Mr De Alwis to assist Mr Cristovao and dismissed the application for a stay order. As I have noted, the hearing in the District Court was then adjourned in any event.
On 29 May 2006, Mr Cristovao filed an application for review of McLure JA's decision. The orders wanted were:
"1.That Mr Vini [sic] De Alwis be granted leave to assist the court in this Appeal to place the Appellant's case before the court as amicus curiae or as McKenzie friend;
2.Leave to appeal;
3.All the orders made by her Honour Justice McLure be set aside;
4.That the interlocutory appeal be remitted to the Court of Appeal - Single Judge to be heard by a Judge other than Justice McLure.
In the alternative
5.That this Honourable court hear the appellant's interlocutory appeal."
On 19 July 2006, Registrar Eldred ordered that the appeal proceed using electronic transcript of the hearing before Judge Crisford. She also ordered that Mr Cristovao prepare appeal books containing the appeal notice, appellant's case and application for a stay all dated 22 May, the affidavit of Mr Cristovao also dated 22 May and the application for review of 30 May. Mr Cristovao was ordered to file four copies of those appeal books and serve a copy on the respondents by 11 August 2006. He did not do so.
By notice dated 19 July 2006, the Registrar also ordered that Mr Cristovao's application for review of the single Judge's decision, filed 30 May 2006, be heard on Friday, 25 August 2006 at 2.15 pm, and that his application for leave to appeal also be heard on that date.
Apparently, as a response to certain correspondence from Mr Cristovao, and in order that he be clear about the matters with which the Court would deal, the Court of Appeal Registrar also sent to Mr Cristovao a letter dated 21 August 2006 relevantly in the following terms:
"The 'full hearing' of the appeal has not been listed on 25 August 2006.
On 25 August 2006 the Court of Appeal will consider:
1.Whether to grant leave to Mr De Alwis to act as your McKenzie friend or as amicus curiae in this appeal. The Court of Appeal will determine that issue, pursuant to your review application or pursuant to par 1 of the 'orders wanted' in your appellant's case, as it considers appropriate.
2.Any other issues raised by your Application for Review.
3.Your application for leave to appeal."
This Court, on 25 August 2006, considered the first point. It dismissed the application for the review of McLure JA's decision, and an oral application made on that day for leave to allow Mr De Alwis to appear as a McKenzie friend at the hearing of 25 August 2006 was also dismissed. The application for leave to appeal was then adjourned to be heard on Friday 8 September 2006. It was made clear to Mr Cristovao that if he wished to gain the services of a solicitor, he should arrange to do so, but that if on 8 September he appeared without a solicitor, the application for leave to appeal would be heard.
On 7 September 2006, Mr Cristovao wrote to the Registrar asking for the 8 September 2006 hearing date to be vacated. That request was refused.
On 8 September 2006, Mr Cristovao appeared with an interpreter who assisted him. Mr Cristovao said that he wanted to speak in Portuguese. Mr Cristovao then spoke in Portuguese but often answered questions of the Court in Portuguese without waiting for any interpretation of what was said by the Court, indicating that he did understand what was said. He had spoken in English on 25 August 2006 and appeared to speak and understand English well. He did not show much interest in the procedural requirements of the litigation and, like many people appearing without counsel, appeared not to understand all of those requirements despite them being explained to him.

On 8 September 2006 he applied for an adjournment. He said that he had approached a lawyer but that a deposit was required before the lawyer would act for him. He said that he was going to make a trip to Portugal to raise capital. The application for the adjournment was opposed by the respondent. The Court dismissed the application for the adjournment, stating that it would give its reasons later. My reasons for refusing the adjournment application are as follows.
Mr Cristovao has known since May 2006, when McLure JA refused to permit Mr De Alwis leave to appear to assist Mr Crisovao, that he required the assistance of a lawyer. He chose not to retain one, hoping that his application to review McLure JA's decision would succeed. That application did not succeed. He was informed on 25 August that he would have to be ready to argue the matter when he appeared on 8 September if he did not have a lawyer to assist him. He has filed no affidavit to provide any evidence about the attempts that he has made to find a solicitor and, in the absence of that evidence, there is no basis for the adjournment. His application was for an adjournment sine die. It is not in the interests of either party that the proceedings be adjourned sine die. This appeal concerns interlocutory procedural orders and it is important that these proceedings be dealt with as soon as possible so that the parties can concentrate on the action in the District Court which remains on foot. For those reasons I refused the application for an adjournment.
I now turn to the application for leave to appeal.
As indicated above, Mr Cristovao must demonstrate that Judge Crisford's decisions were wrong, or attended with sufficient doubt to justify the granting of leave to appeal; that is, that there was sufficient doubt about her Honour's decision refusing leave for Mr De Alwis to represent Mr Cristovao and the decision refusing to order the three named persons to attend for cross‑examination,
I will deal first with the order of Judge Crisford refusing leave to allow Mr De Alwis to appear.
Section 203 of the Legal Practice Act 2003 (WA), relevantly provides:
"(1)A legal practitioner struck off the Roll of Practitioners or suspended from practice is not entitled ‑
(a)to engage in legal practice until the legal practitioner has been re-admitted, or the period of suspension has elapsed, as the case requires;
(b)without limiting paragraph (a) to represent any person in a statutory tribunal or a court."
Section 4 of that Act provides:
"4.Meaning of 'engage in legal practice'
A person engages in legal practice if the person directly or indirectly -
(a)whether in the name of that person or that of any other person -
(i)sues out any writ or process;
(ii)commences, carries on, solicits, defends, or appears, in any action, suit, or other proceedings in any court of civil or criminal jurisdiction in this State; or
(iii)acts as a barrister or solicitor of the Supreme Court in any cause, matter or suit, information or complaint, civil or criminal, or under any commission for the examination in this State of witnesses, or others, issued by any court in or out of this State;
(b)performs or carries out or is engaged in any work in connection with the administration of law; or
(c)draws or prepares any deed, instrument, or writing relating to or in any manner dealing with or affecting -
(i)real or personal estate or any interest in real or personal estate; or
(ii)any proceedings at law, civil or criminal, or in equity."
Mr De Alwis is therefore not entitled to represent Mr Cristovao. If Mr De Alwis was to appear, then leave had to be granted. A person may only take part in proceedings as a McKenzie friend or an amicus curiae with the leave of the court. Whether a person may appear is very much a matter of practice and procedure and is within the discretion of the Judge to decide. See Schagen (1993) 8 WAR 410 and Smith v The Queen (1985) 159 CLR 532. In my opinion, nothing has been advanced to show that her Honour's discretion miscarried.
Furthermore, there would be no substantial injustice if leave were not granted. Mr Cristovao says that he is intending to raise funds to secure the services of a solicitor to assist him and, in my opinion, based on the material which Mr Cristovao says has been prepared with the assistance of Mr De Alwis, he would be much better served by having a solicitor rather than Mr De Alwis appear for him.
I now turn to the second paragraph in the notice of appeal. This refers to the order of Principal Registrar Gething. That order is not the subject of an appeal to this Court. Judge Crisford did not purport to deal with Principal Registrar Gething's order, and so leave to appeal in terms of par 2 of the notice of appeal should be refused. In any event, Principal Registrar Gething's orders were entirely procedural and no substantial injustice would be suffered had the orders been the subject of the application for leave.
I now turn to the third paragraph in the notice of appeal. This relates to the order concerning the affidavit and subpoenas.
There are two questions involved. One is whether the Court has power pursuant to O 36 r 2 to order the attendance for cross examination of persons who are not deponents. No such power appears. The second is whether Mr Dundas should have been ordered to attend for cross examination. So far as Mr Dundas was concerned, the point of his affidavit was to establish that Mr De Alwis was at that time suspended from practice. Before her Honour Judge Crisford, Mr De Alwis conceded that he was at that time suspended from practice. Judge Crisford noted in [10] of her reasons, delivered on 19 May 2006, that it was common ground that Mr De Alwis was a legal practitioner currently suspended

from practice. In [11], her Honour found that she was able to determine the application to have Mr De Alwis appear without recourse to any affidavit material filed by the defendants, including any affidavit filed by Mr Dundas. Her Honour's refusal to order the issue of subpoenas was therefore not in any respect wrong or attended with doubt. In any event, there could be no injustice from the refusal of leave because it was common ground that Mr De Alwis was a legal practitioner currently suspended from practice and there was no issue which required any cross‑examination. Leave to appeal should therefore be refused in relation to the third paragraph in the notice of appeal.

I would refuse leave to appeal and dismiss the appeal.
BUSS JA: I agree with Pullin JA.