Cristovao v Scott - [2012] FCA 1009

FEDERAL COURT OF AUSTRALIA
Cristovao v Scott [2012] FCA 1009

Citation: Cristovao v Scott [2012] FCA 1009

Parties: ROGERIO CRISTOVAO, REGISTRAR CATHERINE SCOTT, DEPUTY REGISTRAR DANIEL CAPORALE and FORENSIC DOCUMENT EXAMINERS PTY LTD (ACN 118 201 157)

File numbers: TAD 27 of 2012
TAD 56 of 2010

Judge: MURPHY J

Date of judgment: 12 September 2012

Catchwords: INJUNCTIVE RELIEF – application for injunction to restrain sale of interest in property

Legislation: Administrative Decisions (Judicial Review) Act 1997 (Cth)
Transfer of Land Act 1893 (WA)

Cases cited: Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583
Fastlink Calling v Macquarie Telecom (2008) 217 FLR 366

Date of hearing: 11 September 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Mr Cristovao appeared in person

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

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 27 of 2012

BETWEEN:
ROGERIO CRISTOVAO
Applicant

AND:
REGISTRAR CATHERINE SCOTT
First Respondent

DEPUTY REGISTRAR DANIEL CAPORALE
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 56 of 2010

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

AND:
ROGERIO CRISTOVAO
Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

12 SEPTEMBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for an urgent injunction to stay the execution of the costs order of Registrar Scott dated 17 March 2011 is dismissed.
2.Orders 1, 2 and 3 of the Orders of Justice Middleton dated 31 August 2012 be vacated and in their place the following orders are made:
(a)The applicant in each proceeding, Mr Rogerio Cristovao, is to file in Court and serve upon the solicitors for Forensic Document Examiners Pty Ltd, being Page Seager Lawyers, level 2, 179 Murray Street, Hobart, Tasmania (marked to the attention of Mr Mark Rapley), all evidence and material to be relied upon in the applications by 4 pm on Monday, 17 September 2012. Service is to be effected by both fax transmission and by ordinary post that day.
(b)Forensic Document Examiners Pty Ltd is to file in Court and serve upon Mr Cristovao all evidence and materials in response to the applications brought by Mr Cristovao including any submissions, by 4 pm on Wednesday, 19 September 2012.
(c)Mr Cristovao is to file in Court and serve upon the solicitors for Forensic Document Examiners Pty Ltd (at the same address and by the same method as in Order 1 of these Orders) any reply evidence or materials including any submissions, by 4 pm on Thursday, 20 September 2012.

3.The hearing date of the applications in each proceeding remains fixed at 11:15 am Melbourne time on Friday, 21 September 2012.

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

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 27 of 2012

BETWEEN:
ROGERIO CRISTOVAO
Applicant

AND:
REGISTRAR CATHERINE SCOTT
First…

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 1009
Decision Date: 12 September 2012

CaseChat Overview and Summary

Cristovao v Scott is an Australian case where Cristovao sought an injunction to restrain the sale of his half interest in a property due to an unsatisfied judgement debt. The matter was heard in the Federal Court, where Justice Middleton presided. The primary legal issue was whether Cristovao should be granted an urgent injunction to prevent the sale of his interest in the property to satisfy the debt. Cristovao argued that the sale should be stopped because he believed the costs order was obtained fraudulently. The court considered the balance of convenience, the amount of the judgement debt, and Cristovao's potential to pay the debt to resolve the matter without prejudice to his rights to contest the costs order.

Justice Middleton rejected Cristovao's application for an injunction, stating that there was an unrealistic aspect to the application that related to the balance of convenience. Cristovao could potentially pay the $16,000 judgement debt and prevent the sale, without affecting his rights to contest the costs order. The court emphasised that its decision not to grant an injunction was not a final view on the merits of Cristovao's case. Cristovao intended to cross-examine the opposing party's witness to establish the alleged fraud, and any determination on the matter would have to wait for the evidence presented in court.

The final orders of the court included dismissing Cristovao's application for an injunction and setting new deadlines for filing and serving evidence related to the applications. The hearing date for the applications remained fixed at 11:15 am Melbourne time on Friday, 21 September 2012. Justice Middleton also noted that entry of orders was dealt with in Order 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for an urgent injunction to stay the execution of the costs order of Registrar Scott dated 17 March 2011 is dismissed.

2. Orders 1, 2 and 3 of the Orders of Justice Middleton dated 31 August 2012 be vacated and in their place the following orders are made:

(a) The applicant in each proceeding, Mr Rogerio Cristovao, is to file in Court and serve upon the solicitors for Forensic Document Examiners Pty Ltd, being Page Seager Lawyers, level 2, 179 Murray Street, Hobart, Tasmania (marked to the attention of Mr Mark Rapley), all evidence and material to be relied upon in the applications by 4 pm on Monday, 17 September 2012. Service is to be effected by both fax transmission and by ordinary post that day.

(b) Forensic Document Examiners Pty Ltd is to file in Court and serve upon Mr Cristovao all evidence and materials in response to the applications brought by Mr Cristovao including any submissions, by 4 pm on Wednesday, 19 September 2012.

(c) Mr Cristovao is to file in Court and serve upon the solicitors for Forensic Document Examiners Pty Ltd (at the same address and by the same method as in Order 1 of these Orders) any reply evidence or materials including any submissions, by 4 pm on Thursday, 20 September 2012.

3. The hearing date of the applications in each proceeding remains fixed at 11:15 am Melbourne time on Friday, 21 September 2012.

Note: Entry of orders is dealt with in Order 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

There is also an unrealistic aspect to Mr Cristovao's application which arguably relates to the balance of convenience. I was informed that the judgement debt is in the order of $16,000. Mr Cristovao apparently has a half interest in a property of some significant value. It remains open to Mr Cristovao to pay the $16,000, (including by borrowing that amount if he does not have it available) and paying the judgement debt without prejudice to his rights to continue to contest the validity of the costs order. If he took that course the sale would not proceed and it is likely that any legal rights he has would remain extant.Conclusion For these reasons I reject the application for an urgent injunction to stop the sale. I reiterate that in doing so I am expressing no final view as to the prospects of Mr Cristovao’s case. Mr Cristovao made it clear that he intends to cross-examine Mr Lacroix as to his affidavit, and expresses confidence in establishing that it is fraudulent. The decision as to any irregularity, and its consequences, must await this and any other evidence which the parties seek to put before the Court.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Cristovao v Scott [2012] FCA 1009
Parties:		ROGERIO CRISTOVAO, REGISTRAR CATHERINE SCOTT, DEPUTY REGISTRAR DANIEL CAPORALE and FORENSIC DOCUMENT EXAMINERS PTY LTD (ACN 118 201 157)
File numbers:		TAD 27 of 2012 TAD 56 of 2010
Judge:		MURPHY J
Date of judgment:		12 September 2012
Catchwords:		INJUNCTIVE RELIEF – application for injunction to restrain sale of interest in property
Legislation:		Administrative Decisions (Judicial Review) Act 1997 (Cth) Transfer of Land Act 1893 (WA)
Cases cited:		Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583 Fastlink Calling v Macquarie Telecom (2008) 217 FLR 366
Date of hearing:	11 September 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicant:	Mr Cristovao appeared in person
Counsel for the Respondent:	Forensic Document Examiners Pty Ltd appeared through its director, A Lacroix

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

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

JUDGE:	MURPHY J
DATE OF ORDER:	12 SEPTEMBER 2012
WHERE MADE:	MELBOURNE

BETWEEN:	ROGERIO CRISTOVAO Applicant
AND:	REGISTRAR CATHERINE SCOTT First…