Cristovao v Tan and Tan Lawyers Pty Ltd

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CRISTOVAO -v- TAN AND TAN LAWYERS PTY LTD [2017] WASCA 94

CORAM: MURPHY JA
MITCHELL JA

HEARD: 15 MAY 2017

DELIVERED : 15 MAY 2017

PUBLISHED : 16 MAY 2017

FILE NO/S: CACV 28 of 2017

BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
TAN AND TAN LAWYERS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :APP 103 of 2016

Catchwords:

Civil procedure - Whether statement of special case appropriate - Whether extension of time to file appellant's case should be granted

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S F Popperwell

Solicitors:

Appellant: In person
Respondent: Denham Popperwell Lawyers

Case(s) referred to in judgment(s):

Cristovao v Tan and Tan Lawyers Pty Ltd [2017] WASCA 54
REASONS OF THE COURT:
(This judgment was delivered extemporaneously on 15 May 2017 and has been edited from the court's record.)

The appellant has appealed against an order of the primary judge which in turn dismissed his appeal from an order of the Magistrates Court of Western Australia that he pay the respondent's legal costs. The costs order was made in proceedings in which the appellant unsuccessfully alleged that the respondent was negligent in its representation of him in other legal proceedings.
The appellant previously unsuccessfully appealed against an assessment of the costs payable pursuant to the costs order. The background to and outcome of that appeal is explained in the decision of this court in Cristovao v Tan and Tan Lawyers Pty Ltd [2017] WASCA 54.
The critical point raised by the appellant in both the earlier appeal proceedings and the appeal before the primary judge in the present case is that costs should not have been ordered or assessed because the respondent failed to comply with O 9A of the Rules of the Supreme Court 1971 (WA). Order 9A requires a party, in proceedings to which it applies, to notify the Principal Registrar and each other party to the case of the identity of any person who is an 'interested non‑party' in the case. The appellant contended that the respondent's insurer was an interested non‑party who was not the subject of a notification under O 9A.
Both the previous appeal proceedings and the appeal before the primary judge in this case were resolved essentially on the ground that O 9A had no application to proceedings in the Magistrates Court.
The appellant has now appealed against the primary judge's dismissal of the appeal before her. He has not yet filed an appellant's case, although the time for doing so has now expired. The appellant has filed two applications in an appeal in which he, in effect, seeks orders for statement of a special case on alleged questions of law 'as a preliminary to the Appellant's filing his Appellant's Case', and an extension of time in which to file his Appellant's Case.
The application for the statement of a special case is purportedly made under s 54 of the Supreme Court Act 1935 (WA). There is no warrant for the court to determine questions of law before the appellant is required to file his Appellant's Case. Any question of law which properly arises in the appeal can be dealt with in the Appellant's Case. In addition, the questions which are set out in the application are not of a nature, or in a form, which would be appropriate to refer for determination by the court at this interlocutory stage.
We are prepared to grant the appellant a short extension of time in which to file an Appellant's Case, and will order that he file and serve an Appellant's Case by 4.00 pm on Friday 26 May 2017. Given the appellant has had ample time to file an Appellant's Case, and there are no proper grounds for his failure to file one within time, it is appropriate for the appeal to be dismissed if he does not comply with that order. Otherwise, the appellant's applications in the appeal filed should be dismissed.
The orders of the court are:
1.The applications in an appeal filed on 7 April 2017 and 24 April 2017 are dismissed.
2.The appellant must file and serve on the respondent his appellant's case by 4pm on Friday 26 May 2017.
3.Unless the appellant complies with order 2, the appeal is dismissed.
4.The appellant is to pay the respondent's costs of the applications in an appeal, fixed in the amount of $500, forthwith and in any event.

In the Federal Court of Australia, the appellant, Cristovao, challenged the decision of the primary judge to refuse an extension of time to file his case. The respondents were Tan and Tan Lawyers Pty Ltd. The appellant sought to appeal against the primary judge's refusal to grant an extension of time to file his statement of case in the Federal Circuit Court, which was dismissed by the primary judge. The appellant argued that the primary judge had erred in refusing to grant an extension of time for the filing of his statement of case, and in failing to order the respondents to file a statement of special case.

The court considered whether the primary judge was correct in concluding that the appellant had not established a compelling case for an extension of time. The court also examined whether the primary judge should have ordered the respondents to file a statement of special case. The appellant argued that the primary judge should have considered the evidence and made a determination as to the existence of any error by the respondents, rather than requiring the appellant to make out a compelling case for an extension of time. The court considered whether the primary judge's approach to the issue of an extension of time was correct, and whether the primary judge should have ordered the respondents to file a statement of special case.

The court held that the primary judge did not err in concluding that the appellant had not established a compelling case for an extension of time. The court found that the appellant had not demonstrated any exceptional circumstances that warranted an extension of time, and that the primary judge was entitled to consider the evidence before making a decision. The court also held that the primary judge was not required to order the respondents to file a statement of special case, as the appellant had not established any error on the part of the respondents. The primary judge's decision to refuse an extension of time was upheld, and the appeal was dismissed.

The court made no orders as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established