Re His Honour Judge Keen

[2012] WASC 250

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE HIS HONOUR JUDGE KEEN; EX PARTE CRISTOVAO [2012] WASC 250

CORAM:   McKECHNIE J

HEARD:   4 JULY 2012

DELIVERED          :   4 JULY 2012

FILE NO/S:   CIV 1959 of 2011

MATTER                :Ex parte application by the plaintiff seeking leave from His Honour Judge Keen in Chambers pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA)

EX PARTE

ROGERIO MARTINS CRISTOVAO
Plaintiff

AND

BUTCHER PAULL & CALDER
First Defendant

ROBERT J BUTCHER
Second Defendant

SUSAN WANITA McKAY
Third Defendant

RAYMOND TAN
Fourth Defendant

GREGORY CALDER
Fifth Defendant

Catchwords:

Review order - Matters already litigated - Limitation period expired - No new principles

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     In person

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Fifth Defendant            :     No appearance

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

Baines v The State Bank of New South Wales (1985) 2 NSWLR 729

Cristovao v Butcher Paull & Calder [No 3] [2011] WASCA 10

Janov v Morris (1981) 3 All ER 780

1. McKECHNIE J:  The notice of originating motion was first filed on 2 June 2011, over a year ago.  On 17 January 2012 the applicant filed an amended notice of originating motion and a further affidavit dated 16 January 2012.  It is that amended notice to which I have had regard.

2. The amended application seeks to invoke the inherent jurisdiction of the court and also sought are:

   (a)a declaratory judgment pursuant to s 25(6) of the Supreme Court Act 1935 (WA) (the Act);

   (b)disputed issues to be reserved for a Court of Appeal judge pursuant to s 43 of the Act;

   (c)a trial of new issues to be decided afresh pursuant to s 59 of the Act.

3. The application also seeks leave to administer interrogatories.  There are seven purported grounds for the application.

4. The applicant is a frequent and unsuccessful litigant especially in matters which he now tries to raise again.  In Cristovao v Butcher Paull & Calder [No 3] [2011] WASCA 10:

   The substantive proceedings in the District Court

   In 2005, Mr Cristovao sued his former solicitors, the respondents, in the District Court (CIV 1874 of 2005) for negligence in relation to the handling of a case Mr Cristovao is pursuing in the Family Court.  Central to the District Court case was an allegation that an affidavit apparently sworn by Mr Cristovao on 21 March 2003 and filed in the Family Court proceedings was deficient in some way and that the respondents who were acting for him were responsible for the deficiency.  Mr Cristovao constantly reverts to his complaint about this document.  It is not clear what the nature of the complaint is but at times he refers to the affidavit as the 'Altered/Fabricated - Purported Affidavit'.

   The District Court action is dismissed

   The District Court action came to an end on 21 August 2009 when Judge Groves ordered that the statement of claim be struck out, the action dismissed and judgment be entered for the respondents [5] ‑ [6]. 

5. Mr Cristovao appealed against the judgment of the District Court action to the Court of Appeal. That appeal was dismissed on 3 December 2009 because Mr Cristovao failed to comply with r 32(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) made by the Court of Appeal on 10 November 2009.

6. Although the effect of the judgment of the Court of Appeal does not create a res judicata (Baines v The State Bank of New South Wales (1985) 2 NSWLR 729), while that judgment remains, this fresh action which seeks largely to re‑litigate matters involved in those proceedings must be struck out as an abuse of process (Janov v Morris (1981) 3 All ER 780).

7. In Janov v Morris, Watkins J said:

   A prospective litigant must be deemed to know that on taking out a writ endorsed with a claim for monetary or other relief, his conduct of the action thereby brought into being will be governed thereafter by rules and orders of the court. A failure to conform to any one of these may cause him to be penalised even to the extent of having his action struck out.

   In the event of his action being ordered to be struck out for failure to obey a peremptory order, he may appeal against that order seeking, if necessary, an extension of time within which to do so. The outcome of such an appeal will to some extent depend on the excuse for failure preferably set forth in affidavit form provided for the court's consideration. If a litigant neglects to avail himself of that procedure and brings a fresh but precisely similar action to that ordered to be struck out, without any explanation then or at any later time for a failure to obey the peremptory order, he should not be surprised that the commencement of the second action is found to be an abuse of the process of the court and for that reason it, too, is struck out.

   To behave in such a way is in my judgment to treat the court with intolerable contumely. This is a matter which can properly be taken into account in the exercise of the court's discretion. This is how I judge this plaintiff to have conducted himself (785).

8. Apart from the plaintiff's assertions of perjury and fabrication there is no evidence that either event occurred.

9. The heart of the application appears to be an allegation in relation to what is claimed to be a forged affidavit lodged in the Family Court on 21 March 2003.  If there was such a document and if it gave rise to any cause of action, the time limited for bringing that action has expired.  The present proceedings are not an application under s 38 of the Limitation Act and so for the purposes of these proceedings the application is an abuse of process as outside the limitation period.

10. Application for leave is refused.