Cristovao v Tan and Tan Lawyers Pty Ltd [No 2]
[2017] WASCA 171
•14 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRISTOVAO -v- TAN AND TAN LAWYERS PTY LTD [No 2] [2017] WASCA 171
CORAM: MITCHELL JA
BEECH JA
HEARD: 13 SEPTEMBER 2017
DELIVERED : 13 SEPTEMBER 2017
PUBLISHED : 14 SEPTEMBER 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 - Bankruptcy of party after appeal instituted - Appeal deemed to be abandoned - Turns on own facts
Legislation:
Bankruptcy Act 1966 (Cth), s 60(3), s 60(4)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms P Fenwick
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
Cristovao v Tan and Tan Lawyers Pty Ltd [2017] WASCA 94
Fletcher v Westpac [2012] WASCA 154
Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158
REASONS OF THE COURT:
(This judgment was delivered extemporaneously on 13 September 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 background to this appeal, and previous proceedings concerning the same subject matter, is explained in Cristovao v Tan and Tan Lawyers Pty Ltd [2017] WASCA 94 and Cristovao v Tan and Tan Lawyers Pty Ltd [2017] WASCA 54.
On 15 May 2017, this court dismissed an application in an appeal filed by the appellant and made a springing order requiring an appellant's case to be filed by 4.00 pm on 26 May 2017. An appellant's case was filed on 26 May 2017. On 29 May 2017, the Court of Appeal Registrar issued a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) or (ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The appeal was listed for 21 July 2017 for that purpose.
On 13 July 2017, the Federal Court of Australia made an order that the appellant's estate be sequestered under the Bankruptcy Act 1966 (Cth). That order engaged s 60(2) of the Bankruptcy Act, which had the effect of staying this appeal until the appellant's trustee in bankruptcy made an election, in writing, to prosecute or discontinue the appeal. After the respondent notified this court of the sequestration order, the hearing of the appeal which had been listed for 21 July 2017 was vacated.
Notice of the appeal was given by the respondent to the Official Trustee, who is the trustee of the bankrupt estate, on 19 July 2017. The Trustee has not made an election to prosecute or discontinue the appeal.
In these circumstances, s 60(3) of the Bankruptcy Act applies. That subsection provides:
If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
That provision is subject to certain exceptions, none of which are arguably applicable in the present case. The appellant relies on the exception in s 60(4)(a) of the Bankruptcy Act, which relates to an action in respect of 'any personal injury or wrong done to the bankrupt'. The meaning of that phrase is summarised in Fletcher v Westpac [2012] WASCA 154 [18] ‑ [22]. An appeal against an order that the appellant pay legal costs in proceedings in the Magistrate's court clearly does not have that character.
Section 60(5) defines 'action' to mean any civil proceeding, whether at law or in equity. This appeal is clearly an 'action' for the purposes of s 60 of the Bankruptcy Act.
The appellant has sought to make a number of allegations against the Court of Appeal Registrar. None of those allegations have been shown to have any substance or to affect the application of s 60 of the Bankruptcy Act to this appeal.
The appellant also made a number of written submissions challenging the correctness or validity of the sequestration order made by the Federal Court. However, the orders of the Federal Court are valid until set aside on appeal or pursuant to s 75(v) of the Constitution: Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 [22] ‑ [23], [53], [152], [216], [257], [344]. This court does not have any jurisdiction to set aside the Federal Court's sequestration order, to which this court must give effect.
It is appropriate that this court give effect to the deemed abandonment of the appeal pursuant to s 60(3) of the Bankruptcy Act, arising from the extant order of the Federal Court, by a formal order that the appeal be dismissed. To allow for the contingency that appellant might be successful in his appeal against the sequestration order, it is appropriate to give him liberty to apply to set aside the dismissal of this appeal in that event. Otherwise, there are no circumstances (such those identified in Fletcher [31]) to warrant keeping this appeal on foot.
The formal orders of the court are:
1.The appeal is dismissed on the ground that it is deemed, by s 60(3) of the Bankruptcy Act 1966 (Cth), to have been abandoned.
2.The appellant have liberty to apply to set aside order 1 of these orders in the event that order 1 of the orders made on 13 July 2017 by the Federal Court of Australia in WAD544/2016 (that the estate of the appellant be sequestered under the Bankruptcy Act) is set aside on appeal.
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