Cristovao v Registrar Caporale - [2012] FCA 1329

FEDERAL COURT OF AUSTRALIA
Cristovao v Registrar Caporale [2012] FCA 1329

Citation: Cristovao v Registrar Caporale [2012] FCA 1329

Parties: ROGERIO CRISTOVAO v REGISTRAR CAPORALE and REGISTRAR SCOTT: FORENSIC DOCUMENT EXAMINERS PTY LTD (ACN 118 201 157) v ROGERIO CRISTOVAO

File numbers: TAD 27 of 2012
TAD 56 of 2010

Judge: MURPHY J

Date of judgment: 27 November 2012

Catchwords: ADMINISTRATIVE LAW – application for judicial review of registrar’s decision – application for extension of time in which to seek judicial review - whether registrar should have accepted irregular affidavit for filing – whether registrar should have accepted application for filing – application for injunctive relief

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011
Oaths Act 2001 (Tas)

Cases cited: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
Cristovao v Forensic Document Examiners Pty Ltd [2011] FCA 1131
Cristovao v Scott [2012] FCA 1009
Director of Public Prosecutions v Marijancevic [2011] VSCA 355
Fastlink Calling v Macquarie Telecom (2008) 217 FLR 366
Forensic Document Examiners Pty Ltd v Cristovao [2011] FCA 843
Gamage v Minister for Immigration and Citizenship [2009] FCA 1373
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158
Ruddock v Vardalis (No 2) (2001) 115 FCR 229
Smith v The Queen (1985) 159 CLR 532

Date of hearing: 21 September 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 68

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Forensic Document Examiners Pty Ltd appeared through its director, A Lacroix

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 27 of 2012

BETWEEN:
ROGERIO CRISTOVAO
Applicant

AND:
REGISTRAR CAPORALE
First Respondent

REGISTRAR SCOTT
Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

27 NOVEMBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for review of the decision of Registrar Scott of 24 December 2010 to accept an affidavit for filing is dismissed.
2.The application for an extension of time within which to bring an application for review of the decision of District Deputy Registrar Caporale of 18 April 2012 is refused.
3.The Applicant pay the Respondent’s costs.

Note:Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 56 of 2010

BETWEEN:
FORENSIC DOCUMENT EXAMINERS PTY LTD (ACN 118 201 157)
Applicant

AND:
ROGERIO CRISTOVAO
Respondent

THE COURT ORDERS THAT:
1.The application for injunctive relief is dismissed.
2.The Respondent, Mr Cristovao, to pay the Applicant's costs.

Note:Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 27 of 2012

BETWEEN:
ROGERIO CRISTOVAO
Applicant

AND:
REGISTRAR CAPORALE
First Respondent

REGISTRAR SCOTT
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 1329
Decision Date: 27 November 2012

CaseChat Overview and Summary

The matter in Cristovao v Registrar Caporale involved an application for judicial review by the applicant, Mr Cristovao, of decisions made by the Registrar Scott and Deputy District Registrar Caporale. The applicant sought review on the grounds that the decisions were made in breach of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The primary focus of the case was the validity of an affidavit sworn by Mr Lacroix, which the Registrar Scott accepted for filing. Mr Cristovao argued that the affidavit was improperly sworn and should not have been accepted for filing. He contended that the jurat of the affidavit was defective due to several omissions and errors, including the absence of the state in which the affidavit was sworn, the identification of the person administering the oath, the printed name of the witness, the witness’s stamp, the witness’s title, and the witness’s “digital numbers.” Additionally, Mr Cristovao argued that the preceding pages of the affidavit were signed only by the witness and not by Mr Lacroix himself.

The court was required to determine whether the Registrar Scott should have accepted the irregular affidavit for filing and whether the Deputy District Registrar Caporale should have accepted the application for filing. The court had to consider the grounds of review provided by Mr Cristovao, which included claims of errors of law, fraud, and lack of evidence justifying the decisions. Specifically, the court needed to examine if the decisions breached the ADJR Act by involving errors of law, being induced or affected by fraud, or lacking evidence. Furthermore, the court had to address Mr Cristovao's allegations of fraud and bad faith concerning the Registrar Scott's decision and the administrative errors of the respondents.

The court held that the application for review of the Registrar Scott's decision to accept the affidavit for filing was dismissed. The court found that the Registrar Scott's acceptance of the affidavit was not in breach of the ADJR Act and that the alleged defects in the jurat did not render the affidavit invalid. Consequently, the application for an extension of time to seek judicial review of the Deputy District Registrar Caporale's decision was also refused. The court held that Mr Cristovao's claims of errors of law, fraud, and lack of evidence did not substantiate a successful application for judicial review. Furthermore, the application for injunctive relief was dismissed, and Mr Cristovao was ordered to pay the costs of the proceedings. The court concluded that the decisions of the Registrar Scott and Deputy District Registrar Caporale did not warrant judicial review under the ADJR Act.

Orders

Orders of the court

1. The application for review of the decision of Registrar Scott of 24 December 2010 to accept an affidavit for filing is dismissed.

2. The application for an extension of time within which to bring an application for review of the decision of District Deputy Registrar Caporale of 18 April 2012 is refused.

3. The Applicant pay the Respondent’s costs.

Note: Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The application for injunctive relief is dismissed.

2. The Respondent, Mr Cristovao, to pay the Applicant's costs.

Note: Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 5 of the ADJR Act relevantly provides: Applications for review of decisions(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:…(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;(g) that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;… The application stated the following grounds of review (without alteration): 1.The failure of the First and Second Respondent to deal with their own errors arising from their own respective Administrative decisions that impinges upon their respective conflict of interests.2.The First Respondent cannot be a judge of her own cause arising from the ramifications of her Administrative error of the said Registrar Scott’s decision (the administrative error of the first respondent). 3.The Second Respondent was in conflict of interests when he was trying to set aright the Administrative error of the First Respondent by refusing to accept for filing the Amended Fresh Applications (the administrative error of the second respondent). 4.Particulars of Fraud or bad faith rule 31.01(2):1)the bad faith between the first and second respondents are indicated in grounds 5.1 and 5.2 above. 2)The Registrar Scott’s decision has an underlying fraud or bad faith of FDE as indicated at page 6/29 of the Applicant’s letter dated 25.4.2012 at page 2 & 3 in paragraphs 4 through 9 (The Fraud of FDE).3)The law makes it mandatory that the fraud of FDE must not remain in the court’s records and that it must be eradicated by unravelling the fraud. The thrust of Mr Cristovao’s argument is that Mr Lacroix’s Affidavit was not properly sworn and for that reason should not have been accepted for filing by Registrar Scott. Mr Cristovao’s argument related to Mr Lacroix’s Affidavit were clear from the affidavits he filed in support of his application in TAD 27 of 2012, his submissions in TAD 56 of 2010, and from his oral submissions. The essence of his argument is that the jurat of Mr Lacroix’s Affidavit is defective by reason that:(a)the state in which it was sworn is not stated; (b)the “identification” of the person witnessing the affidavit is not apparent;(c)the printed name of the witness is not stated; (d)the witness’s stamp is not affixed; (e)the witness’s title is not stated; and (f)the witness’s “digital numbers” are not stated. Mr Cristovao also complains that the preceding pages of Mr Lacroix’s Affidavit were signed only by the witness and not by Mr Lacroix himself. It is not clear to me what Mr Cristovao means by the “identification” he says should have appeared in the jurat, but I have taken it to mean some identification of the person administering the oath.

Ratio Decidendi

Legal Principle Established

I refused to allow Mr Chin to appear in the proceedings as an advocate, but I did allow him to sit with Mr Cristovao to provide advice and make suggestions to him, provided it did not disrupt the proceedings.Consideration of merits of ADJR application Mr Cristovao’s application for judicial review seeks review of the decisions of Registrar Scott and Deputy District Registrar Caporale on the grounds that they were made in breach of subs 5(1)(f), (g), and (h) of the ADJR Act. Section 3 of the ADJR Act provides: Interpretation(1) In this Act, unless the contrary intention appears:…decision to which this Act applies means a decision of anadministrative character made, proposed to be made, or required tobe made (whether in the exercise of a discretion or not and whetherbefore or after the commencement of this definition):(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;other than:(c) a decision by the Governor-General; or(d) a decision included in any of the classes of decisions set out in Schedule 1. Whether or not the decisions which Mr Cristovao seeks to review are properly to be characterised as decisions of an administrative character within the meaning of s 3 of the ADJR Act, or as exercises of delegated judicial power, is unnecessary to resolve. For the purposes of considering the merits of Mr Cristovao’s applications for review under the ADJR Act, I am content to treat them as decisions of an administrative character. Section 5 of the ADJR Act relevantly provides: Applications for review of decisions(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:…(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;(g) that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;… The application stated the following grounds of review (without alteration): 1.The failure of the First and Second Respondent to deal with their own errors arising from their own respective Administrative decisions that impinges upon their respective conflict of interests.2.The First Respondent cannot be a judge of her own cause arising from the ramifications of her Administrative error of the said Registrar Scott’s decision (the administrative error of the first respondent). 3.The Second Respondent was in conflict of interests when he was trying to set aright the Administrative error of the First Respondent by refusing to accept for filing the Amended Fresh Applications (the administrative error of the second respondent). 4.Particulars of Fraud or bad faith rule 31.01(2):1)the bad faith between the first and second respondents are indicated in grounds 5.1 and 5.2 above. 2)The Registrar Scott’s decision has an underlying fraud or bad faith of FDE as indicated at page 6/29 of the Applicant’s letter dated 25.4.2012 at page 2 & 3 in paragraphs 4 through 9 (The Fraud of FDE).3)The law makes it mandatory that the fraud of FDE must not remain in the court’s records and that it must be eradicated by unravelling the fraud.

Citation:		Cristovao v Registrar Caporale [2012] FCA 1329
Parties:		ROGERIO CRISTOVAO v REGISTRAR CAPORALE and REGISTRAR SCOTT: FORENSIC DOCUMENT EXAMINERS PTY LTD (ACN 118 201 157) v ROGERIO CRISTOVAO
File numbers:		TAD 27 of 2012 TAD 56 of 2010
Judge:		MURPHY J
Date of judgment:		27 November 2012
Catchwords:		ADMINISTRATIVE LAW – application for judicial review of registrar’s decision – application for extension of time in which to seek judicial review - whether registrar should have accepted irregular affidavit for filing – whether registrar should have accepted application for filing – application for injunctive relief
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 Oaths Act 2001 (Tas)
Cases cited:		ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 Cristovao v Forensic Document Examiners Pty Ltd [2011] FCA 1131 Cristovao v Scott [2012] FCA 1009 Director of Public Prosecutions v Marijancevic [2011] VSCA 355 Fastlink Calling v Macquarie Telecom (2008) 217 FLR 366 Forensic Document Examiners Pty Ltd v Cristovao [2011] FCA 843 Gamage v Minister for Immigration and Citizenship [2009] FCA 1373 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 Ruddock v Vardalis (No 2) (2001) 115 FCR 229 Smith v The Queen (1985) 159 CLR 532
Date of hearing:	21 September 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Forensic Document Examiners Pty Ltd appeared through its director, A Lacroix

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	TAD 27 of 2012

JUDGE:	MURPHY J
DATE OF ORDER:	27 NOVEMBER 2012
WHERE MADE:	MELBOURNE

BETWEEN:	FORENSIC DOCUMENT EXAMINERS PTY LTD (ACN 118 201 157) Applicant
AND:	ROGERIO CRISTOVAO Respondent