Cristovao v Trott

Case [2018] FCA 1605

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

Shaw v Buljan [2016] FCA 829

Smith v New South Wales Bar Association (1992) 176 CLR 256

Stubbs v The Queen [2017] ACTCA 58

SZVCP v Cho [2017] FCA 310

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

Walton v Gardiner (1993) 177 CLR 378
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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AGLC
Cristovao v Trott [2018] FCA 1605
Case
[2018] FCA 1605
Decision Date

CaseChat Overview and Summary

Cristovao, a self-represented litigant, filed an application for judicial review against the Registrars of the Federal Court of Australia, challenging the Registrars' decisions to refuse to accept documents for filing under rule 2.26 of the Federal Court Rules 2011 (Cth). The documents in question included an interlocutory application seeking to set aside the judgment of the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41. The Full Court had dismissed an appeal by Cristovao against a sequestration order made against him. The Registrars had refused to accept the interlocutory application for filing, and the applicant now sought to review the Registrars' decisions.

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

The applicant is self‑represented. He set out the grounds of review in a 'statement of claim' attached to the application. He also filed an affidavit in support of his application and two sets of submissions. The Registrars filed submitting notices.Background By the interlocutory application, the applicant sought to set aside the judgment of the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 (Bromberg, Mortimer & Lee JJ) delivered 27 March 2018. Litigation between the applicant and Tan & Tan (an incorporated legal body) has proceeded over many years and in various courts, and is summarised by the Full Court in its reasons. I will not repeat the history, but provide a summary of some of the relevant events:(a)the applicant issued proceedings in the Magistrates Court of Western Australia against Tan & Tan alleging professional negligence;(b)the claim was dismissed with costs;(c)Tan & Tan had in place a professional indemnity insurance policy for claims against it which responded (relevantly) to cover defence costs;(d)the applicant argued that the costs should not be assessed because Tan & Tan had failed to disclose that it had an insurance policy in place with Law Mutual Western Australia (LMWA): the applicant alleged that under O 9A of the Rules of the Supreme Court 1971 (WA), Tan & Tan was obliged to disclose that there was an insurer that was an interested party (Rule);(e)the Registrar held that the Rules of the Supreme Court did not apply to proceedings in the Magistrates Court and proceeded to assess the costs;(f)the costs awarded against the applicant were in the sum of $34,671.94;(g)that costs order became the subject of a bankruptcy notice;(h)the applicant appealed the Registrar's decision to a Magistrate, and to the District Court of Western Australia (Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WADC 36) and Court of Appeal (Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WASCA 54);(i)there were also other proceedings between the parties in the District Court, Supreme Court and Court of Appeal;(j)in July 2017 the primary judge made a sequestration order and ordered that the creditor's costs be taxed and paid from the estate of the applicant;(k)the applicant appealed the sequestration order to the Full Court;(l)the Full Court dismissed the appeal;(m)the applicant sought to lodge an interlocutory application challenging the Full Court judgment and seeking to have it set aside;(n)the first, third and fourth respondents refused to accept the interlocutory application for filing, and the second respondent corresponded with the applicant about the application; and(o)the applicant now seeks review of the decisions of the Registrars.Summary of reasons for dismissal of appeal by the Full Court The Full Court summarised the grounds before it as follows (at [11]):Doing the best one can with the document and the submissions filed in support, it appears that the contentions made by the appellant can be categorised as follows:(a)the primary judge erred in failing to "recuse himself" from the hearing of the creditor's petition on the basis he was a member of an earlier Full Court which had made a decision adverse to the appellant (Recusal Contention);(b)the primary judge exhibited "manifest partiality" and "unwittingly vacated his own seat of judgment" in rejecting the contention of the appellant that the Rule applied in the Magistrates Court (Pre-Judgment Contention);(c)the primary judge erred in being satisfied, pursuant to s 52(1) of the Bankruptcy Act 1966 (Cth) (Act), that the debt upon which the petitioning creditor relied was still owed because the primary judge should have exercised his discretion to go behind the costs judgment and should have found there was no debt "in truth and reality" owed to the respondent (Debt Owing Contention);(d)the primary judge erred in failing to be satisfied by the appellant, pursuant to s 52(2)(b) of the Act, that there was "other sufficient cause" why a sequestration order ought not be made (Sufficient Cause Contention).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c)that the person who purported to make the decision did not have jurisdiction to make the decision;(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;(g)that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;(i)that the decision was otherwise contrary to law.(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a)taking an irrelevant consideration into account in the exercise of a power(b)failing to take a relevant consideration into account in the exercise of a power;(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;(d)an exercise of a discretionary power in bad faith;(e)an exercise of a personal discretionary power at the direction or behest of another person;(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(i)any other exercise of a power in a way that constitutes abuse of the power. Section 16(1) of the ADJR Act sets out the power of the Court to make orders on an application for an order of review in respect of a decision and relevantly provides:16Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review(1)On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

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.