Cristovao v Trott - [2019] FCA 360

FEDERAL COURT OF AUSTRALIA
Cristovao v Trott [2019] FCA 360

Appeal from: Cristovao v Trott [2018] FCA 1605

File number: WAD 508 of 2018

Judge: MCKERRACHER J

Date of judgment: 8 March 2019

Date of publication of reasons: 14 March 2019

Catchwords:
PRACTICE AND PROCEDURE – non-appearance – programming orders made for substantive appeal before the Full Court

Held: interlocutory application for separate trials dismissed

Legislation: Federal Court Rules 2011 (Cth) r 30.01

Cases cited: Cristovao v Registrar Scott [2013] FCAFC 92

Date of hearing: 8 March 2019

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 12

Counsel for the Appellant: The Appellant did not appear

Counsel for the First Respondent: The First Respondent submits to any order of the Court, save as to the question of costs

Counsel for the Second Respondent: The Second Respondent did not appear

Counsel for the Third Respondent: The Third Respondent submits to any order of the Court

Counsel for the Fourth Respondent: The Fourth Respondent submits to any order of the Court, save as to the question of costs

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

JUDGE:

MCKERRACHER J

DATE OF ORDER:

8 MARCH 2019

THE COURT ORDERS THAT:
1.The appeal be listed for hearing before a Full Court in Perth on 28 May 2018 at 10:15am.
2.The hearing be listed for an estimate of half (½) a day.
3.In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, the appellant must file his outline of submissions and a chronology of the relevant events.
4.In accordance with Practice Note APP2, not later than 4.00 pm 5 business days before the hearing of the appeal, the appellant must file four copies of Part C of the Appeal Book.
5.Outlines of submissions not exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis only.
6.The appellant file a list of authorities and legislation in accordance with Practice Note CM 2.
7.The appellant’s amended interlocutory application seeking orders pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) be dismissed.

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

REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPT
MCKERRACHER J:

I note that there is no appearance for Mr Cristovao. I’m informed that inquiries have been made outside the court and his name has been called and there is still no appearance. In those circumstances, this being his interlocutory application, I could dismiss it for…

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.

Continue reading Cristovao v Trott

Details

AGLC: Cristovao v Trott [2019] FCA 360
Case: [2019] FCA 360
Decision Date: 8 March 2019

CaseChat Overview and Summary

The interlocutory application of the appellant, Mr Cristovao, was dismissed by the Full Court of the Federal Court of Australia in the matter of Cristovao v Trott. The appellant sought orders for a case stated and separate trials in the context of an appeal against a decision of the Family Court of Australia. The respondent, Mr Trott, did not appear to oppose the substantive appeal, which had been programmed for hearing before the Full Court.

The court was required to determine whether the appellant had any basis for seeking a case stated, which is a request for the court to state the case for the consideration of a higher court. The court also had to consider whether there was any justification for ordering separate trials in the substantive appeal. The court found that there was no authority or precedent to support the appellant's request for a case stated and that the substantive appeal would proceed as scheduled. The court further found that there was no proper basis for ordering separate trials in the substantive appeal.

The court held that the application for a case stated was without merit and declined to make any orders in that regard. The court also dismissed the application for separate trials, finding that there was no justification for such an order. The court proceeded to set down programming orders for the substantive appeal, including a hearing date, estimated duration, and filing requirements for the appellant's submissions and documents. The court made clear that the orders did not address any other applications that may have been foreshadowed in other correspondence.

The court's final orders included the dismissal of the appellant's amended interlocutory application and the setting down of programming orders for the substantive appeal. The appellant was required to file various documents and outlines of submissions in accordance with the court's directions. The court made no orders in relation to any other applications that may have been foreshadowed in other correspondence.

Orders

Orders of the court

1. The appeal be listed for hearing before a Full Court in Perth on 28 May 2018 at 10:15am.

2. The hearing be listed for an estimate of half (½) a day.

3. In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, the appellant must file his outline of submissions and a chronology of the relevant events.

4. In accordance with Practice Note APP2, not later than 4.00 pm 5 business days before the hearing of the appeal, the appellant must file four copies of Part C of the Appeal Book.

5. Outlines of submissions not exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis only.

6. The appellant file a list of authorities and legislation in accordance with Practice Note CM 2.

7. The appellant’s amended interlocutory application seeking orders pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) be dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no authority put forward to justify the need or desire for a case stated. I am unaware of any possible precedent for it in these circumstances. This is Mr Cristovao’s appeal. Mr Cristovao wishes to proceed with an appeal, the Court has set down an appeal for him, and the matter will duly proceed. I am satisfied that there is no proper basis for, and no purpose would be served by, making the orders. I decline to do so. CONCLUSION On that basis, the application is dismissed. There is no other application properly before the Court, although the making of an application for ‘summary judgment’ has been foreshadowed in other correspondence. These orders do not address any such application or any other application.

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
Judge:	MCKERRACHER J
Date of judgment:	8 March 2019
Date of publication of reasons:	14 March 2019
Catchwords:	PRACTICE AND PROCEDURE – non-appearance – programming orders made for substantive appeal before the Full Court Held: interlocutory application for separate trials dismissed
Legislation:	Federal Court Rules 2011 (Cth) r 30.01
Cases cited:	Cristovao v Registrar Scott [2013] FCAFC 92
Date of hearing:	8 March 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	The First Respondent submits to any order of the Court, save as to the question of costs
Counsel for the Second Respondent:	The Second Respondent did not appear
Counsel for the Third Respondent:	The Third Respondent submits to any order of the Court
Counsel for the Fourth Respondent:	The Fourth Respondent submits to any order of the Court, save as to the question of costs

JUDGE:	MCKERRACHER J
DATE OF ORDER:	8 MARCH 2019