Cristovao v Forensic Documents Examiners Pty Ltd
[2014] WADC 100
•8 AUGUST 2014
CRISTOVAO -v- FORENSIC DOCUMENTS EXAMINERS PTY LTD [2014] WADC 100
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 100 | |
| Case No: | APP:84/2013 | 10 FEBRUARY, 11 MARCH AND 1 MAY 2014 | |
| Coram: | DAVIS DCJ | 8/08/14 | |
| PERTH | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for security for costs and to join additional parties to the appeal dismissed Appeal dismissed | ||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO FORENSIC DOCUMENTS EXAMINERS PTY LTD |
Catchwords: | Appeal from Magistrates Court Appeal from magistrate's decision on a review of taxation costs Application for security for costs by appellant from the respondent Application by appellant to join parties to the appeal Application by respondent to strike out the appeal Court's own motion to strike out the appeal Allegation of fraud tainting judgment and orders made in the Magistrates Court Whether allegations of fraud able to be determined on appeal |
Legislation: | District Court Rules 2005 O 51, r 57(2) Magistrates Court (Civil Proceedings) Act 2004 s 25(5), s 31, s 31(3), s 40, s 40(3), s 40(4), s 43(4), s 43(5) Rules of the Supreme Court 1971 O 18 |
Case References: | Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 Avsar v Westland Healthcare Ltd [2008] WASCA 35 Cabassi v Vila (1940) 64 CLR 130 Dodds v Kennedy [2011] WASCA 32 Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173 Jonesco v Beard [1930] AC 298 McDonald v McDonald (1965) 113 CLR 529 McHarg v Woods Radio Pty Ltd [1948] VLR 496 Michael v Hawkins [2013] WADC 110 Michael v Hawkins [2014] WASCA 64 Mossensons (a firm) v Coastline Associates (Unreported; WASCA; Library No 970661B; 6 November 1996) Parker v Transfield Pty Ltd [2000] WASCA 382 Rhodium Australia Pty Ltd v Stateway Pty Ltd [2013] WADC 129 Ridout v O'Brien [2004] WASC 137 Schweppes Ltd v Archer (1934) 34 SR (NSW) 178 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 Tey v Optima Financial Group Pty Ltd [2012] WASCA 193 Tobin v Dodd [2004] WASCA 288 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
FORENSIC DOCUMENTS EXAMINERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE COCKRAM
File No : PER GCLM 1691 of 2010
Catchwords:
Appeal from Magistrates Court - Appeal from magistrate's decision on a review of taxation costs - Application for security for costs by appellant from the respondent - Application by appellant to join parties to the appeal - Application by respondent to strike out the appeal - Court's own motion to strike out the appeal - Allegation of fraud tainting judgment and orders made in the Magistrates Court - Whether allegations of fraud able to be determined on appeal
Legislation:
District Court Rules 2005 O 51, r 57(2)
Magistrates Court (Civil Proceedings) Act 2004 s 25(5), s 31, s 31(3), s 40, s 40(3), s 40(4), s 43(4), s 43(5)
Rules of the Supreme Court 1971 O 18
Result:
Application for security for costs and to join additional parties to the appeal dismissed
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondent : Mr D Singh
Solicitors:
Appellant : Not applicable
Respondent : Friedman Lurie Singh & D'Angelo
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Avsar v Westland Healthcare Ltd [2008] WASCA 35
Cabassi v Vila (1940) 64 CLR 130
Dodds v Kennedy [2011] WASCA 32
Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173
Jonesco v Beard [1930] AC 298
McDonald v McDonald (1965) 113 CLR 529
McHarg v Woods Radio Pty Ltd [1948] VLR 496
Michael v Hawkins [2013] WADC 110
Michael v Hawkins [2014] WASCA 64
Mossensons (a firm) v Coastline Associates (Unreported; WASCA; Library No 970661B; 6 November 1996)
Parker v Transfield Pty Ltd [2000] WASCA 382
Rhodium Australia Pty Ltd v Stateway Pty Ltd [2013] WADC 129
Ridout v O'Brien [2004] WASC 137
Schweppes Ltd v Archer (1934) 34 SR (NSW) 178
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75
Tey v Optima Financial Group Pty Ltd [2012] WASCA 193
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
1 DAVIS DCJ: On 7 October 2013 Mr Cristovao, who is self-represented, filed a notice of appeal from a decision of Magistrate Cockram made on 25 September 2013. The magistrate's decision related to a review of a taxation of a bill of costs, pursuant to costs orders made a year earlier, on 28 September 2012.
2 This matter came before me to determine whether Mr Cristovao's appeal should be struck out and, if it is not, whether I should allow Mr Cristovao's application for security of costs from the respondent and to join additional parties to the appeal.
3 This matter has a long history and the grounds for the appeal are not easy to understand. As Mr Cristovao is a self-represented litigant it is necessary to determine what exactly his appeal is about and whether there is any merit to it: Tobin v Dodd [2004] WASCA 288 [13] - [18].
Background to Mr Cristovao's appeal
4 The following background facts are taken from my review of the Magistrates Court File: see s 40(4) of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA). I have also had regard to the transcript of the proceedings in the Magistrates Court, where those transcripts are available.
5 Mr Cristovao commenced action against the respondent (FDE) in the Magistrates Court by filing a general procedure claim form on 8 February 2010. When no appearance was filed, Mr Cristovao applied for default judgment on 1 June 2010. Filed with this application was an affidavit of service of the general procedure claim sworn by Mr Cristovao's then solicitor, Mr Geoffrey Dutton. He deposed that he had served Mr Cristovao's general procedure claim form by post addressed to the registered office of FDE in Melbourne. Default judgment was entered on 1 June 2010.
6 On 18 January 2011 FDE filed an application to set aside the default judgment, together with two affidavits sworn in support of that application, one sworn by a director of FDE on 14 January 2011 to whom I shall refer as AL, and a further affidavit sworn on 13 January 2011 by Kerrie Seear, a personal assistant employed by FDE.
7 The application to set aside default judgment was heard on 14 February 2011. Magistrate Boon made orders setting aside the default judgment and giving FDE leave to defend.
8 Mr Cristovao did not file any appeal from Magistrate Boon's decision.
9 After some further interlocutory applications, Mr Cristovao's claim eventually proceeded to trial before Magistrate Cockram on 27 and 28 June 2012. Magistrate Cockram handed down his decision on 11 September 2012, dismissing Mr Cristovao's claim against FDE. Written reasons for decision were provided by the magistrate.
10 Following that decision FDE applied for costs orders. Mr Cristovao argued that FDE was not entitled to an order for costs, pursuant to s 25(5) and s 31 of the MCCPA, because the value of his claim (notwithstanding that he lodged a general procedure claim) was less than the minor cases jurisdictional limit of $10,000.
11 On 28 September 2012, again providing written reasons, Magistrate Cockram found that there were exceptional circumstances which justified him making an order for Mr Cristovao to pay FDE's costs pursuant to MCCPA s 31(3). The costs orders made by Magistrate Cockram on 28 September 2012 were:
1. Claimant to pay the defendant's allowable costs.
2. Claimant to pay the defendant's other costs incurred after 10 June 2011 including the reasonable airfare and accommodation costs of [FDE's directors] to attend court on 27 and 28 June 2012 to give evidence and any reserved costs save for the costs of the defendant's unsuccessful application for security of costs lodged 7 September 2011.
3. All costs to be assessed if not agreed.
12 Mr Cristovao did not file any appeal from either of Magistrate Cockram's decision of 11 September 2012 or Magistrate Cockram's costs orders of 28 September 2012.
13 FDE filed a bill of costs for assessment in November 2012. Mr Cristovao filed an objection to the bill of costs. The primary reason for objection was that the case was a minor case claim.
14 The bill of costs was assessed by Registrar Miles of the Magistrates Court on 31 January 2013.
15 By a four-page letter dated 3 February 2013 sent by facsimile to the Principal Registrar of the Magistrates Court, Mr Cristovao alleged that the taxation of FDE's bill of costs had been conducted in an 'illegal and unlawful manner'. The first matter he raised was that the Registrar did not comply with the minor cases provisions in the MCCPA. He repeated his argument that the case was a minor case because of the fact that his claim was less than $10,000. He said that Registrar Miles had a duty to protect his (Mr Cristovao's) rights as a self-represented litigant. He alleged that FDE had made dishonest claims that were unreasonable. He then set out in that letter, on page 3 what he described as 'further notice of fraud committed upon the courts and that fraud must unravel itself'. The fraud was said to be that:
On 14.01.2011, FDE through its director [AL] did commit a fraud upon the court in the background proceedings by swearing an Affidavit of the same date to which is attached his misleading Affidavit containing 87 pages dated 24.12.2010 marked as 'ALA'. Its purpose is for FDE to set aside the default judgment dated 01.06.2010 made in favour of the Plaintiff in the background proceedings …
….
On 18.01.2011 ... the then solicitor for FDE unwittingly used the fraudulent 'ALA' affidavit to successfully mislead the Perth Magistrate Court in the background proceedings for the purpose of setting aside the default judgment. For this reason a fraud was committed upon the Perth Magistrate Court on 14.2.2011.
16 By notice of appeal dated 16 February 2013, Mr Cristovao then appealed from Registrar Mile's assessment of costs. The grounds of appeal read as follows:
1. The Miles's Decision is incompetent and does not accord with the requirements of Article 2(3)(b) of the ICPPR [International Covenant of Civil and Political rights] and therefore it violates the Human Rights of the Claimant.
2. The Miles's Decision is incompetent and thereby rendered null and void by reason of the Miles contravention in terms of the following:
2.1 Registrar Miles is in jurisdictional error when:
2.1.1 he misinterpreted Cockram's Order No 2;
2.1.1[sic] he included the 'Outlawed Defendant's Solicitors Costs' in the Defendant's Other Costs;
2.1.2 he violated the Human Rights of the Claimant in accordance with Article 2(3)(b) of the ICPPR.
18 Mr Cristovao filed two further sets of submissions dated 19 September and 25 September 2013. In the submissions of 19 September 2013 (which were 11 pages long), he again raised the issue of fraud. Mr Cristovao referred to what he said was FDE's false testimony, stating among other things that the court 'must take notice of the falsity of the facts as contained in the 'ALA Affidavit dated 24.12.2011, filed in the Magistrates Court at Perth on 14.01.2011 that was falsely used to set aside the Default Judgment of the Claimant'.
19 At the hearing before Magistrate Cockram on 25 September 2013 the magistrate advised Mr Cristovao he had received his written submissions, and that he knew that Mr Cristovao disagreed with the fact of the costs orders which had been made. Magistrate Cockram told Mr Cristovao more than once that Mr Cristovao had brought the parties to court that day because he had lodged an appeal against the registrar's taxation or assessment of the costs. That involved the magistrate going through each item of the bill to see in fact what the costs should be, and that is what the parties were there to do. The magistrate reminded Mr Cristovao that if he disagreed with the fact of the costs orders made on 28 September 2012, his remedy was to appeal against those orders.
20 Magistrate Cockram reviewed the taxation of costs and made some reductions to the final costs allowable to FDE.
21 Mr Cristovao then lodged his appeal in this court.
Mr Cristovao's appeal in this court
22 Mr Cristovao set out in his appeal notice the following:
Decision Details
1. Magistrate Cockram Costs Orders dated 28.9.2012 in PER/GCLM/1691 of 2010 is a Contradiction in Terms:
1.1 In one breath, he pronounced in Order 1 the Minor Cases Allowable Costs;
1.2 Whereas in the other breath he contradicted himself by pronouncing Other Costs which contains the proscribed Legal Costs applicable only to General Procedure Cases. The relevant legislation, namely the Magistrates Court (Civil Proceedings) Act 2004 (the WA Act) does not allow for both kinds of costs in a Minor Case (Void Contradictory Costs Order).
1.3 Registrar Miles assessed bill of Costs dated 28.11.2012 at $26,149.32, which is based on the Void Contradictory Costs (the Void Miles Assessed Costs).
2. The Appellant appealed the Void Miles Assessed Costs in PER/GCLM/1691/2010 to Magistrate Cockram, a judge of his own cause, who at a direction hearing dated 21.08.2013, issued time of the essence orders for FDE to provide the specificities of the Itemised Impugned Bill of Costs dated 28.11.2012, but due to the Respondent's non-compliance by the latest date 5.9.2013, his Honour avoided the Appellant's Contempt Applications, and Submissions for Non-Compliance and instead assessed the former FDE Bill of Costs dated 28.11.2012 (the Avoidance of a Judge of his Own Cause).
3. As a result of the Avoidance of a Judge of his own Cause, His Honour substituted a $21,134.85 assessed bill of costs in place of the Void Miles Assessed Costs of $26,149.32 (Cockram Assessed Bill).
4. Cockram Assessed Bill is based on the fact that Geoff Dutton as solicitor for the Appellant in PER/GCLM/1691 of 2010 having filed Form 3 (General Procedure) instead of Form 4 (Minor Case Procedure) for a Minor Claim of $4,500.00 (Reason for Cockram Assessed Bill).
5. Reason for Cockram Assessed Bill did not take into account relevant information but took into account irrelevant information about the FDE prejurious Affidavit 'ALA' dated 24.12.2010 and filed in the Magistrates Court in Perth on 14.1.2011 to set aside the Default Judgment of PER/GCLM/1691/2010 dated 28.8.2010 obtained by the Plaintiff against FDE (the Jurisdictional Error of Cockram).
APPEAL DETAILS
1) The Reason for Cockram Assessed Bill of Costs dated 25.09.2013 does not take into account the principle of law that FORM NOT TO BE ALLOWED TO TRIUMPH OVER THE SUBSTANCE OF THE LAW (The Substance)
2) The Substance is that a Minor Case Claim is always a Minor Case Claim when the claim is below the jurisdictional limit of $10k (the Law).
3) By Reason of the Law, Dutton Legal should not be penalized nor his insurers but for reason of expediency he has to be joined as the third party to this appeal (the Joinder).
4) The Jurisdictional Error of Cockram caused the Cockram Assessed Bill of Costs to be null and void as that Order for the Plaintiff to pay FDE the sum of $21,134.85 does not exist (the Null Order).
5) The Non-Compliance as the element of Cockram Assessment Bill of Costs also vitiate the Null Order the second time (the Double Null Order).
…
Grounds of Appeal
1. Form or procedure should not be allowed to prevail over the substance of the law i.e. a Minor Case shall always be Minor Case no matter what happens unless the parties agreed to change it into a General Procedure Case.
2. If the Plaintiff is finally made liable for the Costs Orders of Magistrate Cockram dated 25.09.2013, Dutton Legal shall be ultimately liable for it as the Appellant is never responsible for this act of Form prevailing over Substance.
3. Magistrate Cockram denied the Appellant his natural justice by refusing to entertain his valid arguments re the FDE Non-Compliance, and FDE'S Affidavit 'ALA' Perjurious dated 24.12.2010, or in terms of the Null Order and the Double Null Costs Order as explained above.
4. An Appeal is brought on the ground of denial of natural justice under s. 32(3)(b) of the Magistrates Court (Civil Proceedings) Act, 2004 (WA Act).
5. Even if the Jurisdictional Error of Magistrate Cockram is not accepted, it is still a non-existent decision and is invalid but not unlawful 1
Magistrate Cockram on the 21.8.2013 ordered for the Defendant FDE to provide itemized terms of the legal costs that originate from the Form 3 General Procedure Claim when it should have been a Minor case without the legal costs of FDE's previous solicitors and Friedman Lurie Singh and D'Angelo, had it not been for the error of Geoff Dutton that caused Magistrate Cockram Error referred to in paragraph 4 of the Amended Notice of Appeal dated 10.10.2013 in the Decision Details as the Reason for the Cockram Assessed Bill.
24 On 21 October 2013 Registrar Kingsley refused to accept for filing the amended appeal notice which purported to join another party to the appeal pursuant to the Rules of the Supreme Court 1971 (RSC) O 18. Mr Cristovao raised an issue about this decision by both filing an affidavit sworn 14 November 2013 and also writing to the principal registrar by letter of 22 November 2013.
25 On 19 November 2013 FDE filed an application dated 7 November 2013 to strike out the appeal. One of the grounds for the strike out was that FDE had not been served with the appeal notice (a ground later abandoned; FDE had filed a notice of appointment of solicitors in the appeal). The other strike out ground was that the appeal was incompetent and did not comply with the provisions of District Court Rules 2005 (DCR) O 51. In submissions filed in support of the application it was submitted that the appeal notice did not contain any cogent or acceptable reasons or particulars as to why the decision being appealed was allegedly wrong.
26 These matters came before me on 10 February 2014. Mr Cristovao applied for an adjournment because he was engaging solicitors. I specifically raised with Mr Cristovao whether he was appealing from Magistrate Cockram's assessment of costs because of the amounts of costs he allowed, or whether the appeal was from the magistrate's dismissal of Mr Cristovao's argument that no order for costs should have been made against him at all. Mr Cristovao told me the following (ts 14):
But the reason that his Honour - the reason his Honour, Cockram, apply it is a reason. Because I recall I ask his Honour why the reason, why the reason apply the section 31. And his Honour explained to me that he has consider the claim as being initiated with the general (indistinct) form 3. And then I explain to his Honour that Mr Geoff Dutton initiate the proceedings started on 8 February 2010, up to February 2011. So Mr Dutton has carry the proceedings for one year, which I was not aware what was been doing during that - here. And if in fact the form 3 has been wrongly filed in court I was not aware of and I believe I should have explanation for Mr Dutton.
27 Mr Cristovao confirmed that he had raised these arguments in the hearing as to costs before Magistrate Cockram in September 2012 (ts 15 and 17). He also confirmed that when FDE's costs came to be taxed he raised the same arguments at the taxation hearing (ts 16). He went further to say (ts 18):
And - but the one before because I ask his Honour could you please, your Honour, make clear why the legal costs - why your Honour took the decision on the legal costs referred to the solicitors was my ask. Can you please explain to me the reasons why? Because they supposed to not be allowed to be entitled as the costs according with the court rules 44, section 44 and 30.2. So his Honour - that's when his Honour then responded to me and he said but don't forget because I have consider and I believe he is in the judgment, he has considered the general (indistinct) claim form. And by that reason he has took in consideration the form, that's why he allocate the solicitor's legal costs. That is the fact, your Honour.
28 I then asked Mr Cristovao (ts 18) to confirm that he was arguing in this appeal that the costs orders that Magistrate Cockram made on 28 September 2012 were 'Void and contradictory' and 'Null and void' and he responded:
May I explain? I believe is a misunderstanding here. I appeal now, this appeal is against the amounts, which has been decided by his Honour
- And then:
Your Honour, I already explain I'm not object his Honour first set the allowable costs. What it is my contentions it is that the solicitors are not entitled to legal costs because this thing is a minor case claim.
30 I adjourned the matter to enable Mr Cristovao time to instruct solicitors and consider the court's motion and listed the matter for mention before me on 11 March 2014.
31 Mr Cristovao did not engage solicitors. He filed two further applications. The first was by chamber summons dated 19 February 2014 seeking orders for the purpose of consolidating his appeal with another District Court action he has commenced by writ in CIV 3217 of 2013 on the grounds that there was a 'common issue of the Fraud arising from [AL]'s Affidavit perjurious dated 24.12.2010' and the consolidation was capable of achieving costs savings for all parties. The second application was dated 7 March 2014, described as 'Reamended Summons in Chambers' and sought security for costs from FDE, purportedly pursuant to RSC O 67 r 5 and also that 'other appropriate parties' be joined to the appeal pursuant to RSC O 18. The parties he sought to join were FDE's current solicitors and Mr Dutton.
32 On 11 March 2014 I ordered that Mr Cristovao's application, FDE's strike out application and the court's own motion to strike out the appeal (notice of which was given to the parties on 10 February 2014) be listed for hearing before me on 1 May 2014.
33 Mr Cristovao filed a number of affidavits and written submissions in support of his appeal and in opposition to both FDE's strikeout application and to address the issues that I raised when I gave the parties notice of the court's own motion to strike out his appeal.
Mr Cristovao's arguments in the hearing before me
34 From the submissions which Mr Cristovao filed dated 28 April 2014, a letter dated 30 April 2014 and the discussions I had during the course of the hearing with him on 1 May 2014, it became apparent that Mr Cristovao's main argument in relation to his appeal was different from the arguments which he had confirmed with me on the hearing of 10 February 2014.
35 His argument was, as he put it in par 6 of the submissions filed 28 April 2014, that Magistrate Cockram's decision of 25 September 2013 'is rendered a nullity because it did not take into account the relevant consideration the Perjurious Affidavit of [AL] Affidavit dated 21.12.2010'.
36 As I understood from Mr Cristovao's submissions, both written and oral, he was not relying on his 'Appeal Details' or Grounds of Appeal 1 and 2 (as are set out in [22] above) but was relying on the remaining Grounds of Appeal 3, 4 and 5. As he argued before me on 1 May 2004, and which I confirmed with him more than once, Mr Cristovao relied upon the fraud he said was in the affidavit sworn by AL at the time when FDE applied to set aside the default judgment obtained by Mr Cristovao in the Magistrates Court.
37 I should observe that throughout his submissions Mr Cristovao referred to an affidavit sworn by AL on 24 December 2010. This was an affidavit filed in the Federal Court, as I understood from Mr Cristovao, to set aside a statutory demand issued by Mr Cristovao to FDE following the default judgment. Mr Cristovao explained that this affidavit was annexed to AL's affidavit sworn on 14 January 2011 and filed in the Magistrates Court when FDE made its application to set aside the default judgment.
38 That affidavit of AL sworn on 14 January 2011 is not on the Magistrates Court file. There is, however, no doubt that it was filed, served and referred to Magistrate Boon at the hearing of FDE's application to set aside the default judgment. There is reference to that affidavit having been served on Mr Cristovao in an affidavit of service filed by FDE's solicitors. There is also reference to the affidavit in the submissions filed by the solicitors then acting for FDE for the hearing of the application to set aside the default judgment.
39 For reasons which I explain below, it is not necessary for me to have regard to the affidavit of AL sworn 14 January 2011. If it were necessary, I am sure that a copy could be obtained either from Mr Cristovao or from FDE's solicitors (if not its current, then its former solicitors).
40 For the purpose of this matter, I proceed on the basis that the affidavit of AL sworn 14 January 2011 contains what was as set out in the submissions filed by FDE's solicitors for the hearing of the application to set aside default judgment. What is in the submissions is consistent with what Mr Cristovao has told me about the affidavit. AL deposed to both the reasons for the delay in seeking to have the judgment set aside and the merits (that is, whether FDE had an arguable defence). AL deposed that FDE first became aware of the default judgment when on 23 December 2010 it received a statutory demand issued by Mr Cristovao consequent upon the judgment, to which was attached a copy of a Notice of Interstate Registration from the Melbourne Magistrates Court, Victoria.
41 Mr Cristovao maintained that AL committed a fraud, or perjury, in his affidavit because he lied about not receiving the general procedure claim form. As Mr Cristovao explained to me, there was a fraud because of the affidavit of service sworn by his then solicitor Mr Dutton which I have referred to in [5] above.
42 Mr Cristovao argued (although he did not express it in exactly this way) that this fraud has tainted the orders which have been made in the Magistrates Court proceedings, including the costs order made by Magistrate Cockram on 28 September 2012, the subsequent taxation of costs in favour of FDE and the review of those costs by Magistrate Cockram on 25 September 2013.
43 In particular Mr Cristovao argued that Magistrate Cockram was aware of the issue of the fraud when he reviewed the taxation, pointing to the submissions he had filed in the Magistrates Court as I have set out in [18] (ts 70) and some exchanges in the transcript of the proceedings on 25 September 2013.
Can Mr Cristovao's appeal succeed on the ground of fraud or perjury?
44 A party who claims that an adverse judgment was obtained by the fraud of the other party, and wishes to set aside that judgment, must bring a new action: Jonesco v Beard [1930] AC 298, 300 - 301; McDonald v McDonald (1965) 113 CLR 529, 533; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 699 and 701; Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 [11] - [14].
45 In such an action, the fraud complained of is put in issue and must proceed to trial in the ordinary way: McHarg v Woods Radio Pty Ltd [1948] VLR 496; Ridout v O'Brien [2004] WASC 137.
46 An appeal is not the proper way to bring allegations of fraud or perjury which a person claims has tainted a judgment of a court. This is because any allegation of fraud is a serious matter. It needs to be tried with evidence from all parties. Further, the party asserting that a judgment was obtained by fraud must show that the facts as found after the trial, either by themselves or in combination with previously known facts, provide a reason for what has been described as the 'drastic and exceptional relief' of setting aside a judgment:Cabassi v Vila (1940) 64 CLR 130,147 - 148;Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538 and 539 (Kirby P).
47 As Master Newnes (as he then was) put it in Ridout v O'Brien [59]:
To set aside a judgment on the ground that it has been obtained by fraud is a drastic step. Fraud is a grave allegation and is not lightly to be entertained. In an action of this kind, both the nature of the allegation and the public interest in the finality of litigation require that it be based on substantial grounds.
48 Mr Cristovao has in fact issued proceedings against FDE, AL and Mr Dutton in his action CIV 3217 of 2013. In the writ filed on 7 October 2013 Mr Cristovao has claimed unjust enrichment, out-of-pocket expenses and consequential damages. In par 4 of the indorsement of claim he states:
The Deceit and profit benefit from perjury is caused by the fabricated evidence of the Second Defendant (AL) in his Affidavit dated 24.12.2010 ([AL]'s Affidavit) filed in the Federal Court of Tasmania and subsequently filed in Magistrates Court at Perth in PER/GCLM 1691/2010 for the purpose of the Deceit and profit benefit from perjury by the Second Defendant …
49 Mr Cristovao is thus trying to advance the same matters set out in the writ in the action CIV 3217 of 2013 as the basis for this appeal in relation to a decision on a taxation of costs.
50 For the reasons I have explained above, his allegation of fraud is not an issue which this court should either hear or determine on appeal.
51 For the same reasons, it was also not an issue which Magistrate Cockram ought to have considered at the review of taxation on 25 September 2013.
52 This appeal is not the appropriate forum for Mr Cristovao to bring his claim that a judgment adverse to him in the Magistrates Court was obtained by fraud. The allegation of fraud, if it is to be pursued, must be pursued and proved in an action to which all necessary parties are joined and the matter is tried with evidence from all concerned.
53 For these reasons, Mr Cristovao's appeal cannot continue and must be struck out.
54 In the circumstances it is not necessary for me to comment on the merits of Mr Cristovao's claim of fraud, nor is it strictly necessary for me to deal with his other applications or grounds of appeal. In the circumstances of this case, however, and for the sake of completeness, I consider it is important to do so.
Mr Cristovao's claim of fraud in CIV 3217 of 2013
55 While I have stated that Mr Cristovao's allegation of fraud, if it is to be pursued, must be pursued by way of action, I need to make it clear this should not be taken by Mr Cristovao as some form of approval of his continuing with his District Court action CIV 3217 of 2013. It is certainly not an indication that it is appropriate to pursue his claim for fraud in this court, or that his claim will succeed at the end of the day.
56 As I have explained, it is not for me to determine in this appeal the merits of his allegation of fraud against AL in relation to the affidavit of 14 January 2011. However, I have observed at least two difficulties with Mr Cristovao's claim, which confirm that the fraud allegation cannot be determined on appeal. These are:
(a) The affidavit of Ms Seear (referred to in [6] above) addressed the issue of whether the general procedure claim form had been received at the registered office of FDE in Melbourne. She deposed to the fact that every time she received mail at the registered office she wrote down the name of the document on a list that she kept electronically, and recorded the date on which she forwarded the document to AL. She had reviewed the list that she kept and there was no record of a general procedure claim form being forwarded in February or March 2010 or at all since then.
(b) The setting aside of a default judgment is a discretionary decision in which the court takes into account not only the explanation for the delay but also the merits of the defence: Parker v Transfield Pty Ltd [2000] WASCA 382 [3] and [4]; Hall v Hall [2007] WASC 198 [61] - [67].
57 In addition, before any trial of Mr Cristovao's allegation of fraud against AL can proceed, there may be other procedural challenges or applications brought by the other parties in the action.
Mr Cristovao's application for security for costs
58 Mr Cristovao's application for security for costs cannot succeed. The respondent to an appeal may apply for security for costs from the appellant: see Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173; Dodds v Kennedy [2011] WASCA 32 [8] - [10]. The appellant cannot seek security for costs of the appeal from the respondent.
Mr Cristovao's application to join additional parties to the appeal
59 Mr Cristovao's application to join additional parties to this appeal cannot succeed. He cannot join parties to an appeal who were not parties to the proceedings below.
FDE's application to strike out the appeal
60 Mr Cristovao's appeal purported to be an appeal from Magistrate Cockram's decision of 25 September 2013. This decision was an assessment of FDE's bill of costs.
61 The assessment of costs is a discretionary matter. It involves an evaluation of each item and discretionary decisions as to whether an item should be allowed and the amount which should be allowed: Schweppes Ltd v Archer (1934) 34 SR (NSW) 178; Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621, 627; Tey v Optima Financial Group Pty Ltd [2012] WASCA 193 [16] - [17].
62 On an appeal from an assessment of costs there must be identified some error of principle made by the magistrate in exercising his discretion. An error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. An appeal court will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong: Schweppes Ltd v Archer.
63 An error in principle may be inferred where the amount allowed for an item is so low or high that no taxing officer, acting reasonably, could have taxed the item at the amount allowed: Mossensons (a firm) v Coastline Associates (Unreported; WASCA; Library No 970661B; 6 November 1996); Tey v Optima Financial Group.
64 There are no grounds of appeal which set out any such error by the learned magistrate when he carried out his assessment of FDE's bill of costs on 25 September 2013.
65 As there are no proper grounds for the appeal from the decision of Magistrate Cockram of 25 September 2013, the appeal should be struck out: Avsar v Westland Healthcare Ltd[2008] WASCA 35 [26].
The court's own motion to strike out the appeal
66 In relation to the court's own motion, in so far the appeal relates to the costs orders made by Magistrate Cockram on 28 September 2012, as set out in 'Appeal Details' and Grounds of Appeal 1 and 2 of Mr Cristovao's Notice of Appeal (see also [26] – [29] above) it must also be struck out.
67 It has recently been confirmed by the Court of Appeal that the amendment to s 40(3) of the MCCPA which gives the court power to extend the time for appealing has no retrospective operation: Michael v Hawkins [2014] WASCA 64.
68 Mr Cristovao could therefore not bring any appeal from Magistrate Cockram's costs orders made 28 September 2012 outside the 21-day period which then applied (and which expired on 19 October 2012).
69 To the extent that his Notice of Appeal alleges an error made by Magistrate Cockram when he made his costs orders on 28 September 2012, Mr Cristovao's appeal is out of time and the provisions of the MCCPA as it stood at the time do not allow this court to grant any extension of time for his appeal.
Conclusions
70 For the reasons I have discussed the whole of Mr Cristovao's appeal must be struck out. Section 43(6) of the MCCPA permits me to give judgment accordingly, without a full hearing. It is appropriate, therefore, to dismiss Mr Cristovao's appeal. His applications for security for costs and to join additional parties to the appeal must also be dismissed.
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