Cristovao v Registrar Trott - [2019] FCAFC 88

FEDERAL COURT OF AUSTRALIA
Cristovao v Registrar Trott [2019] FCAFC 88

Appeal from: Cristovao v Trott [2018] FCA 1605

File number: WAD 508 of 2018

Judges: DERRINGTON, COLVIN AND JACKSON JJ

Date of judgment: 30 May 2019

Catchwords:
ADMINISTRATIVE LAW – appeal from judicial review of decisions of Registrars to refuse to accept documents for filing

PRACTICE AND PROCEDURE – orders of Full Court entered in an appeal proceeding – unsuccessful appellant lodged multiple interlocutory applications to vary or set aside judgment before entered – where orders had been entered – filings refused on basis that an abuse of process or frivolous or vexatious

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Federal Court Rules 2011 (Cth), rr 2.26, 39.04)

Cases cited:
ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099

Cristovao v Tan & Tan Lawyers [2018] FCAFC 41

Louis Vuitton Malletier SA v Knierum [2004] FCA 1584

Lowbeer v De Varda [2018] FCAFC 115

Shaw v Buljan (2016) 153 ALD 252

Smith v New South Wales Bar Association (1992) 176 CLR 256

Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) (2007) 239 ALR 724

Date of hearing: 28 May 2019

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 35

Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter

Counsel for the Respondents: Submitting appearances were filed for each respondent

ORDERS

WAD 508 of 2018

BETWEEN:
ROGERIO MARTINS CRISTOVAO

Appellant

AND:
REGISTRAR TROTT

First Respondent

DEPUTY PRINCIPAL REGISTRAR MATHIESON

Second Respondent

REGISTRAR STANLEY (and another named in the Schedule)

Third Respondent

JUDGES:

DERRINGTON, COLVIN AND JACKSON JJ

DATE OF ORDER:

30 MAY 2019

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT
THE COURT:
Background

This is an appeal from the decision of a judge of this Court made on 26 October 2018 in which her Honour dismissed an application for the review of a number of decisions of several Registrars of this Court.
In so far as they are relevant, those decisions were to refuse to accept certain documents for filing which had been lodged by the appellant, Mr Cristovao. Those documents were interlocutory applications, sometimes accompanied by affidavits, seeking to vary or set aside orders of the Full Court of this Court. He also sought review of letters sent by the first and second respondents on 17 and 27 April 2018 respectively, in which his requests for the provision of legal advice were denied. Those letters were neither decisions nor reasons for decisions and we will return to them shortly.
The litigation history of this matter has been set out in the decision of the learned primary judge and there is no need to repeat it. It suffices to…

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: [2019] FCAFC 88
Decision Date: 30 May 2019

CaseChat Overview and Summary

In this case, Cristovao appealed against the decision of the Registrars to refuse to accept documents for filing, which was reviewed by the court. The appellant, Cristovao, argued that the Registrars were obliged to provide him with legal assistance, and he complained that the letters from the first and second respondents to him on 17 and 27 April 2018 should be reviewed as erroneous decisions not to provide him that advice. However, the court found that this argument was misconceived, as neither of those letters amounted to a decision under an enactment and nothing in them was subject to review under the AD(JR) Act or s 39B of the Judiciary Act.

The court further held that the Registrars of the Federal Court might provide advice as to the administrative workings of the rules, but it is not part of their function to provide legal advice. The Registrars acted entirely properly in informing Mr Cristovao of their decision and the reasons for it. They were right to decline to respond to the numerous questions asked of them. Each responded to legitimate queries raised by Mr Cristovao, and provided an explanation as to why it was not appropriate for the Registry to give him legal advice. Mr Cristovao made a number of allegations which speculated as to the reasons as to why he was not given assistance by the Registry, but none of them had any substance. The court found that the appellant's arguments were spurious, and rejected them. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.

Subsequent to the hearing of the appeal, Mr Cristovao sent an email to the Court in which he sought to make further submissions concerning the substance of the appeal. The Court found it inappropriate to receive or consider those uninvited submissions. Unless otherwise ordered, the hearing of matters is to occur in open Court and not through correspondence. The Court did not deal with those additional submissions.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant is to pay the respondents’ costs of the appeal.

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

Part of the appellant’s written argument was to the effect that the Registrars of the Court were obliged to provide him with legal assistance and they failed to do so. He complained that the letters from the first and second respondents to him on 17 and 27 April 2018 should be reviewed as erroneous decisions not to provide him that advice. However, that argument was also misconceived. First, as her Honour correctly observed, neither of those letters amounted to a decision under an enactment and nothing in them was subject to review under the AD(JR) Act or s 39B of the Judiciary Act. Secondly, whilst the Registrars of the Federal Court might provide advice as to the administrative workings of the rules, such as advising litigants-in-person they have used the wrong form and which is the correct one, it is not part of their function to provide legal advice. That rule applies in relation to litigants in person as much as to legal practitioners. Here the Registrars acted entirely properly in informing Mr Cristovao of their decision and the reasons for it. They were right to decline to respond to the numerous questions asked of them. Each responded to legitimate queries raised by Mr Cristovao, and provided an explanation as to why it was not appropriate for the Registry to give him legal advice. He was given all the assistance which ought to have been provided. Mr Cristovao made a number of allegations which speculated as to the reasons as to why he was not given assistance by the Registry. None of them had any substance. They were, as her Honour observed, spurious, and her Honour was right to reject them. Conclusion In summary, on the hearing of the appeal Mr Cristovao sought merely to re-agitate the arguments which he had advanced to the learned primary judge. He made no real attempt to identify any error in her Honour’s reasons. We are satisfied that none exists. It follows that Mr Cristovao has not shown that the decision of the learned primary judge was attended with any error. The appeal must be dismissed. There is no reason why the appellant should not pay any costs of the appeal, noting that the respondents filed submitting appearances.Postscript Subsequent to the hearing of the appeal Mr Cristovao sent to the Court an email in which he sought to make further submissions concerning the substance of the appeal. It is inappropriate for the Court to receive or consider those uninvited submissions. Unless otherwise ordered, the hearing of matters is to occur in open Court and not through correspondence. We do not deal with those additional submissions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Cristovao v Trott [2018] FCA 1605
File number:	WAD 508 of 2018
Judges:	DERRINGTON, COLVIN AND JACKSON JJ
Date of judgment:	30 May 2019
Catchwords:	ADMINISTRATIVE LAW – appeal from judicial review of decisions of Registrars to refuse to accept documents for filing PRACTICE AND PROCEDURE – orders of Full Court entered in an appeal proceeding – unsuccessful appellant lodged multiple interlocutory applications to vary or set aside judgment before entered – where orders had been entered – filings refused on basis that an abuse of process or frivolous or vexatious
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Judiciary Act 1903 (Cth) Federal Court Rules 2011 (Cth), rr 2.26, 39.04)
Cases cited:	ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099 Cristovao v Tan & Tan Lawyers [2018] FCAFC 41 Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 Lowbeer v De Varda [2018] FCAFC 115 Shaw v Buljan (2016) 153 ALD 252 Smith v New South Wales Bar Association (1992) 176 CLR 256 Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) (2007) 239 ALR 724
Date of hearing:	28 May 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Submitting appearances were filed for each respondent

JUDGES:	DERRINGTON, COLVIN AND JACKSON JJ
DATE OF ORDER:	30 MAY 2019