FEDERAL COURT OF AUSTRALIA
Cristovao v Trott [2018] FCA 1605
File number: WAD 295 of 2018 Judge: BANKS-SMITH J Date of judgment: 26 October 2018 Catchwords: ADMINISTRATIVE LAW- application for review of decisions made by Registrars of the Federal Court of Australia - where Registrars refused to accept documents for filing under r 2.26 of the Federal Court Rules 2011 (Cth) - where documents included application to set aside appeal decision - where orders entered - whether Registrars' conduct induced or affected by fraud - whether all letters from Registrars comprised decisions Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11, 16(1)
Federal Court Rules 2011 (Cth) rr 2.26, 31.01(1), 39.01, 39.04, 39.05, Div 39.4
Rules of the Supreme Court 1971 (WA) O 9A
Cases cited: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WADC 36
Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WASCA 54
Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41
Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
Louis Vuitton Malletier SA v Knierum [2004] FCA 1584
Lowbeer v De Varda [2018] FCAFC 115
McCullum v Ifield [1969] 2 NSWR 329
New Pinnacle Group Silver Mining Co v Luhrig Coal & Ore Dressing Appliances Co (1902) 2 SR (NSW) 50
Nyoni v Murphy [2018] FCAFC 75
Onley v Catlin SyndicateLtd as the Underwriting Member of Lloyd's Syndicate 2003 [2018] FCAFC 119
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132
Satchithanantham v National Australia Bank Limited [2009] FCA 1171; (2009) 260 ALR 567
Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; (2010) 268 ALR 222
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stubbs v The Queen [2017] ACTCA 58
Tov-Lev v Lowbeer (No 2) [2014] FCA 379
Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41; (2007) 239 ALR 724
Date of hearing: 14 September 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 75 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: The Respondents filed submitting notices save as to costs ORDERS
WAD 295 of 2018 BETWEEN: ROGERIO MARTINS CRISTOVAO
Applicant
AND: REGISTRAR TROTT
First Respondent
DEPUTY PRINCIPAL REGISTRAR MATHIESON
Second Respondent
REGISTRAR STANLEY (and another named in the Schedule)
Third Respondent
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
26 OCTOBER 2018
THE COURT ORDERS THAT:
1.The time for filing an application for review from the decisions the subject of the review application be extended to 11 June 2018.
2.The application for judicial review filed on…
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- Cristovao v Trott [2018] FCA 1605
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- [2018] FCA 1605
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CaseChat Overview and Summary
The primary legal issue before the court was whether the Registrars' conduct induced or affected by fraud, or whether all letters from the Registrars comprised decisions. The court also considered whether the application was made within the requisite time and whether the application was an abuse of process. Additionally, the court examined the authority of the Registrars to refuse to accept the interlocutory application for filing and the potential for the interlocutory application to be considered as an abuse of process.
The court found that the Registrars' conduct was not induced or affected by fraud and that not all letters from the Registrars comprised decisions. The court held that the application was made within the requisite time and that there was no abuse of process. The court further found that the Registrars had the authority to refuse to accept the interlocutory application for filing as it did not reflect the intention of the Court and was not interlocutory in nature. The court dismissed the application for judicial review.
The court dismissed the application for judicial review filed on 11 June 2018 and extended the time for filing an application for review from the decisions the subject of the review application to 11 June 2018.
Orders
Orders of the court
1. The time for filing an application for review from the decisions the subject of the review application be extended to 11 June 2018.
2. The application for judicial review filed on 11 June 2018 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The applicant made a range of oral and written submissions that can be encompassed by the following:(a)the Registrars have not challenged his review application and have not said he is wrong;(b)there are no facts or details that show how the Full Court judgment reached finality;(c)the first respondent said he (the applicant) was a vexatious litigant and that is why he has been treated differently and as if his application is an abuse of process;(d)there was an unintentional error and r 39.05 should be invoked;(e)the applicant tried to inform the Full Court that the orders should be set aside before they were entered and so r 39.04 applies;(f)he wished to rely on Onley v Catlin SyndicateLtd as the Underwriting Member of Lloyd's Syndicate 2003 [2018] FCAFC 119 (Allsop CJ, Lee & Derrington JJ);(g)the cases of Stubbs v The Queen [2017] ACTCA 58 (Elkaim & Bromwich JJ, Robinson AJ) and Lowbeer v De Varda [2018] FCAFC 115 (Reeves, Farrell & Colvin JJ) support his position;(h)some 14 justices have looked at the issue of costs and that Tan & Tan are forbidden by law from double‑dipping, and faced with that 'brick wall' the first respondent should have known there was an issue to be considered: the first respondent failed to look at the case and he could not properly determine that the matter has reached finality;(i)the applicant did not seek legal advice but sought procedural assistance and did not receive it; and(j)the Registrars are seeking to obstruct, frustrate and delay the due course of justice.Consideration Part 39 of the Rules relevantly deals with entry of judgments and orders. Rule 39.01 provides that a judgment or order takes effect on the date on which the judgment is pronounced or the order is made. Entry of judgment or orders is a different step to their pronouncement. Entry is dealt with by r 39.31 to r 39.35 of the Rules. In this case, it is not in issue that the orders of the Full Court were entered. They were entered by a Registrar of the Court. The date that the entry was stamped is 29 March 2018. A copy of the entered order was apparently provided to the applicant by the first respondent. Rule 39.04 provides that the Court may vary or set aside a judgment or order before it has been entered. Rule 39.05 provides that the Court may vary or set aside a judgment or order after it has been entered if:(a)it was made in the absence of a party; or(b)it was obtained by fraud; or(c)it is interlocutory; or(d)it is an injunction or for the appointment of a receiver; or(e)it does not reflect the intention of the Court; or(f)the party in whose favour it was made consents; or(g)there is a clerical mistake in a judgment or order; or(h)there is an error arising in a judgment or order from an accidental slip or omission. The discretion under r 39.04 is invoked in limited circumstances. Generally, such an order will be made to deal with technical or incidental changes to the form or content of orders, or to remove an ambiguity. The rule does not provide an unfettered discretion to reargue or reconstruct a case. It may be exercised if the court is convinced that it has proceeded on a wrong basis or where there is some matter calling for review: see generally Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 at [8] (Finkelstein J); Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41; (2007) 239 ALR 724 at [6] (French & Kiefel JJ); and the High Court's consideration of a similar rule in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 (Brennan, Dawson, Toohey & Gaudron JJ). The High Court in Smith v New South Wales Bar Association noted in particular that where reasons for judgment have been given, it is not likely that the discretion will be exercised unless there is some matter calling for review.