Cristovao v Registrar Scott

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FEDERAL COURT OF AUSTRALIA

Cristovao v Registrar Scott [2013] FCAFC 92

Citation: Cristovao v Registrar Scott [2013] FCAFC 92
Appeal from: Cristovao v Registrar Caporale [2012] FCA 1329
Parties: ROGERIO MARTINS CRISTOVAO v REGISTRAR SCOTT
File number: TAD 1 of 2013
Judges: NORTH, SIOPIS AND MCKERRACHER JJ
Date of judgment: 16 August 2013
Catchwords: ADMINISTRATIVE LAW – appeal from dismissal of application for judicial review – whether registrar should have accepted an irregular affidavit for filing – whether costs order made by registrar validly made – whether primary judge afforded the appellant procedural fairness
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(f), 5(1)(g), 5(1)(h)
Federal Court of Australia Act 1976 (Cth) s 35A
Federal Court Rules 2011 (Cth) rr 2.27(d), 3.04
Cases cited: Conlan v Pratt (No 2) [2013] FCA 105
Director of Public Prosecutions v Marijancevic [2011] VSCA 355
Forensic Document Examiners Pty Ltd v Cristavao [2011] FCA 843
The Queen v Davison (1954) 90 CLR 353
Date of hearing: 24 May 2013
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 39
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: The Respondent did not appear, filing a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 1 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ROGERIO MARTINS CRISTOVAO
Appellant
AND:

REGISTRAR SCOTT
Respondent

JUDGES:

NORTH, SIOPIS AND MCKERRACHER JJ

DATE OF ORDER:

16 AUGUST 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 1 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ROGERIO MARTINS CRISTOVAO
Appellant
AND:

REGISTRAR SCOTT
Respondent

JUDGES:

NORTH, SIOPIS AND MCKERRACHER JJ

DATE:

16 AUGUST 2013

PLACE:

PERTH

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. Mr Cristovao seeks to appeal orders 1 and 3 of three orders made by a judge of this Court. Order 1 dismissed Mr Cristovao’s application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision of Registrar Scott on 24 December 2010 to accept an affidavit for filing.  Order 3 was a related costs order.  The second order which related to an application for an extension of time to appeal from another decision of a District Deputy Registrar was not the subject of appeal. 

  2. The focus then is on the decision made by Registrar Scott.  This decision arose from the issue of a statutory demand by Mr Cristovao against Forensic Document Examiners Pty Ltd (ACN 118 201 157) (Forensic) seeking payment of $7,865 pursuant to the provisions of Pt 54 of the Corporations Act 2001 (Cth) (CA). The statutory demand was made in respect of a default judgment Mr Cristovao had secured in a Magistrates Court in Western Australia against Forensic. It is unnecessary to…

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Details
Case
[2013] FCAFC 92
Decision Date

CaseChat Overview and Summary

The case of Cristovao v Registrar Scott involved an appeal against the dismissal of an application for judicial review brought by the appellant, Mr Cristovao, against the registrar of the Federal Court of Australia. Mr Cristovao challenged the registrar's decision to accept an affidavit filed by Mr Lacroix on behalf of Forensic. The primary judge dismissed the application for review, finding it to be without merit. The appellant argued that the affidavit was defective in several respects, including the lack of identification of the state in which it was sworn, the absence of the witness's title, and the failure to affix the witness's stamp. The primary judge examined these issues in detail, considering relevant provisions of the Evidence Act 1995 and the Federal Court Rules 2011. The judge found that the affidavit did not contain any significant deficiencies and was validly sworn. Additionally, the judge rejected the appellant's argument that he had only discovered the irregularities after the applications were heard, stating that the limited irregularities were apparent from the date the affidavit was served.

The legal issues before the court included whether the registrar should have accepted the affidavit, whether the costs order made by the registrar was valid, and whether the primary judge had afforded the appellant procedural fairness. The court examined the requirements for affidavits under the Evidence Act and the Federal Court Rules. It found that the registrar's decision to accept the affidavit was appropriate, and the costs order was validly made. The court also determined that the primary judge had provided the appellant with procedural fairness by allowing him to present evidence and arguments on the affidavit's validity.

The court dismissed the appeal, affirming the primary judge's decision that Mr Cristovao's application for judicial review was without merit. It held that the registrar had correctly accepted the affidavit, and the primary judge had properly exercised his discretion in ruling on the application. The court emphasised that it was not the role of the court to provide endless opportunities for litigants to refine their cases simply because they were dissatisfied with the outcome. The appeal was dismissed with the costs of the appeal being awarded against the appellant.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry 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

Before the primary judge contentions were raised under subs 5(1)(f), (g) and (h) of the ADJR Act which respectively provide as follows:5 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 … 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 grounds adopted by the primary judge without alteration in support of the application for review were the following: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. Essentially, Mr Cristovao argued that the affidavit filed by Mr Lacroix for Forensic was defective in a number of specified respects including a failure to indicate the State in which it was sworn, the failure to identify the person witnessing the affidavit, the failure to print the name of the witness, the failure to affix the witness’s stamp, the failure to designate the title of the witness and the failure to specify the witness’s ‘digital numbers’. The primary judge considered all these complaints in detail with regard to the Evidence Act 1995 (Cth) and its Schedule as well as Div 29.1 of the Federal Court Rules 2011 (Cth) (the Rules) and the content of Federal Court Form 59. His Honour was not satisfied that there was any relevant deficiency apparent in the affidavit but went further than that to take evidence from both the witness to the affidavit (a Clerk of the List employed the Supreme Court of Tasmania) as well as Mr Lacroix. His Honour was totally satisfied that Mr Cristovao’s application for judicial review was completely without merit (at [54]). He also rejected Mr Cristovao’s argument that he had only discovered the irregularities in the affidavit after the applications before Marshall J and Middleton J were heard. His Honour noted that the very limited irregularities in the affidavit of Mr Lacroix were able to be observed by Mr Cristovao from the date he was served with it. His Honour made it clear that it was not the role of the Court to provide endless opportunities under the guise of a litigant’s right of review and appeal for him to attempt to refine and improve his case simply because he was dissatisfied with the outcome (at [53]).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.