Re His Honour Magistrate Bromfield
[2013] WASCA 17
•31 JANUARY 2013
RE HIS HONOUR MAGISTRATE BROMFIELD; EX PARTE CRISTOVAO [2013] WASCA 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 17 | |
| THE COURT OF APPEAL (WA) | 31/01/2013 | ||
| Case No: | CACV:88/2012 | 20 DECEMBER 2012 | |
| Coram: | PULLIN JA MURPHY JA | 20/12/12 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO |
Catchwords: | Appeal Grounds of appeal No reasonable prospect of succeeding Appeal dismissed |
Legislation: | Magistrates Court Act 2004 (WA), s 36 Magistrates Court (Civil Proceedings) Act 2004 (WA), s 19(2) Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), r 26(1), r 26(2) Supreme Court Act 1935 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(i) |
Case References: | Cristovao v Butcher Paull & Calder [2008] WADC 49 Cristovao v Butcher Paull & Calder [2011] WASCA 9 Re His Honour Judge Keen; Ex parte Cristovao [2012] WASC 250 Re His Honour Magistrate Bromfield SM; Ex parte Cristovao [2012] WASC 253 Re Mr Karl O'Callaghan, Police Commissioner of Western Australia; Ex parte Cristovao [2012] WASC 249 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE HIS HONOUR MAGISTRATE BROMFIELD; EX PARTE CRISTOVAO [2013] WASCA 17 CORAM : PULLIN JA
- MURPHY JA
ROGERIO MARTINS CRISTOVAO
Appellant
- EX PARTE
ROGERIO MARTINS CRISTOVAO
Appellant
(Page 2)
FILE NO/S : CACV 90 of 2012 MATTER : An appeal against McKechnie J's order dismissing an application by the appellant 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
Appellant
(Page 3)
ON APPEAL FROM:
For File No : CACV 88 of 2012
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : RE HIS HONOUR MAGISTRATE BROMFIELD SM; EX PARTE CRISTOVAO [2012] WASC 253
File No : CIV 1339 of 2012
For File No : CACV 89 of 2012
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : RE MR KARL O'CALLAGHAN, POLICE COMMISSIONER OF WESTERN AUSTRALIA; EX PARTE CRISTOVAO [2012] WASC 249
File No : CIV 3138 of 2011
For File No : CACV 90 of 2012
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : RE HIS HONOUR JUDGE KEEN; EX PARTE CRISTOVAO [2012] WASC 250
File No : CIV 1959 of 2011
Catchwords:
Appeal - Grounds of appeal - No reasonable prospect of succeeding - Appeal dismissed
(Page 4)
Legislation:
Magistrates Court Act 2004 (WA), s 36
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 19(2)
Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), r 26(1), r 26(2)
Supreme Court Act 1935 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(i)
Result:
Appeals dismissed
Category: B
Representation:
CACV 88 of 2012
Counsel:
Appellant : In person
Solicitors:
Appellant : In person
CACV 89 of 2012
Counsel:
Appellant : In person
Solicitors:
Appellant : In person
(Page 5)
CACV 90 of 2012
Counsel:
Appellant : In person
Solicitors:
Appellant : In person
Case(s) referred to in judgment(s):
Cristovao v Butcher Paull & Calder [2008] WADC 49
Cristovao v Butcher Paull & Calder [2011] WASCA 9
Re His Honour Judge Keen; Ex parte Cristovao [2012] WASC 250
Re His Honour Magistrate Bromfield SM; Ex parte Cristovao [2012] WASC 253
Re Mr Karl O'Callaghan, Police Commissioner of Western Australia; Ex parte Cristovao [2012] WASC 249
(Page 6)
1 REASONS OF THE COURT: These three appeals were listed so that the appellant could be given the opportunity to show cause why the appeals should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. The court concluded that none of the grounds on any of the appeals had any reasonable prospect of succeeding and all three appeals were dismissed on 20 December 2012 with reasons to follow. These are the reasons.
2 The background is that the appellant was, before 2005, involved in proceedings in the Family Court concerning his ex-wife. He was represented by solicitors Butcher Paull & Calder. In the course of acting for him, that firm of solicitors prepared an affidavit which was sworn by the appellant on 21 March 2003 and filed in the Family Court. The appellant has been involved in a great deal of litigation and most of it centres on this affidavit. He alleges that part of this affidavit was forged.
3 From the bar table, the appellant explained that his allegation was that after he swore the affidavit, a par 43 was inserted which stated that he (the appellant) owed the solicitors $14,000. From the bar table he contended that this was incorrect and that he only owed approximately $4,000.
4 The appellant likes to give the affidavit a name. In the past he has described it as the 'Altered/Fabricated-Purported Affidavit': see Cristovao v Butcher Paull & Calder [2011] WASCA 9 [5]. In these proceedings he calls it, inter alia, the 'Perverted Affidavit'.
5 The appellant sued his solicitors in the District Court. In Cristovao v Butcher Paull & Calder [2008] WADC 49, Keen DCJ described the content of the statement of claim. He said:
The plaintiff filed a statement of claim dated 5 January 2006. For the purposes of the present applications it is not necessary for me to carry out a detailed analysis of that statement of claim. It is sufficient to note that the plaintiff engaged the first defendant firm and 'sought their advice, professional help and assistance and immediate action on his behalf so that he could resume his business and the Livelihood immediately'. The business was that of the plaintiff as a butcher.
The case as put against the defendants was one of negligence on the part of the defendants in failing to assist the plaintiff to recover plant and machinery and tools of his trade. Also negligence was alleged against the defendants in respect of the sale of the plaintiff's plant, machinery and tools of trade by public auction. Further allegations of negligence were
(Page 7)
- made encompassing alleged delay on the part of the defendants in property settlement matters. It was also alleged in the statement of claim that the defendants failed to follow the plaintiff's instructions in a number of respects and took action contrary to the plaintiff's instructions. It was also alleged that the defendants were negligent in failing to act professionally in attending to the client's business 'diligently, courtoualy (sic), appropriately and in a timely fashion'. Negligence was alleged by failure to keep the plaintiff duly informed of his solicitor/client costs and party/party costs, failure to maintain a healthy solicitor/client relationship, engaging in illegal conduct said to be fraudulently and dishonestly interpolating fresh material into an affidavit that had been sworn by the plaintiff and finally continuing to act for the plaintiff after the plaintiff had withdrawn instructions to the defendants.
The statement of claim had been prepared by the plaintiff himself and runs to some 15 pages [4] - [6].
6 The reference made by Keen DCJ to an affidavit is a reference to the 'Perverted Affidavit'.
7 During the course of the District Court proceedings, various unsuccessful interlocutory applications were made by the appellant. The solicitors sought costs orders in respect of them. Costs orders were made by Keen DCJ: see Cristovao v Butcher Paull & Calder [2008] WADC 49.
8 The appellant appealed against those costs orders, but that appeal was later discontinued as explained in Cristovao v Butcher Paull & Calder [2011] WASCA 9 [10].
9 The District Court proceedings against the solicitors came to an end on 21 August 2009 when Groves DCJ ordered that the statement of claim be struck out, the action dismissed and judgment entered for the solicitors. The appellant appealed against the judgment of Groves DCJ.
10 On 10 November 2009, this court made a springing order requiring the appellant to file the appellant's case by 1 December 2009. The order was not complied with and, on 3 December 2009, judgment was entered dismissing the appeal in Cristovao v Butcher Paull & Calder (CACV 108 of 2009).
Appeal CACV 89 of 2012
11 The appellant complained to the police about the 'Perverted Affidavit'. The police investigated the allegations and decided there was insufficient evidence to support his allegations. The appellant was
(Page 8)
- advised by the police that the investigation of his complaint had been finalised.
12 The appellant then decided that the best way to deal with this was to bring proceedings against the Police Minister and others. The title to the originating process seeking a writ of mandamus said he was seeking to have the Police Minister replace the Commissioner of Police. The body of the application sought a declaration from the court that the Minister of Police 'has a duty, as the executive branch of the Western Australian Government, to appoint a fit and proper person to perform the public duties for the proper management and control of the Police Force'. For good measure, he named as defendants the Legal Profession Complaints Committee, two detective superintendents and a detective sergeant along with the Police Commissioner. His application for the writ to compel the Minister to remove the Police Commissioner was said to be made 'contingent upon the event' that the Legal Profession Complaints Committee, the Commissioner of Police and named detectives 'were to continue to refuse to perform their public duties to investigate the dishonest act of' one of the solicitors.
13 McKechnie J dismissed the appellant's application for a writ of mandamus: Re Mr Karl O'Callaghan, Police Commissioner of Western Australia; Ex parte Cristovao [2012] WASC 249. His Honour's reasons were short. They read:
The applicant applies for a writ of mandamus compelling the Minister for Police to replace the Commissioner of Police. He names as defendants The Legal Profession Complaints Committee, the Police Commissioner, two detective superintendents and one detective sergeant.
At the heart of his application, and indeed at the heart, it would appear, of all his applications, Mr Cristovao seems to think that an affidavit filed in Family Court proceedings was a forgery. However, apart from his belief in this fact there is no clear evidence to support it. I say that having read in detail his affidavit and the various annexures attached to it.
The applicant's actions against the solicitors have been dismissed. There is no expert evidence to support the applicant's opinion. There is no evidence to suggest that any of the defendants have refused to act in such a way that would attract a writ of mandamus.
Judging by the letter by Detective Sergeant Foster, in response to the applicant's letter of 14 June 2011, it appears that the police did thoroughly investigate the allegations made by Mr Cristovao before concluding that 'there is insufficient evidence to support the allegation made and the investigation of your complaint has now been finalised'. The applicant's
(Page 9)
- constant repetition of allegations of serious misconduct by all who have a view different from his does not convert his assertions into evidence.
There are many reasons why a court would be extremely cautious in making absolute a mandamus in the terms sought by the applicant but it is unnecessary to explore them as there is no factual basis for the making of an order.
The application is dismissed [1] - [6].
14 The appellant appeals against that decision. The grounds of appeal are preceded by a sentence alleging that McKechnie J 'erred in law and in fact'. The grounds however, reveal no error. They do however reveal the appellant's continuing obsession with the affidavit which he also calls the 'BPC Purported Affidavit' or the 'Deficient Illegal BPC Affidavit'. None of the grounds reveals any error. None of the grounds has any reasonable prospect of success and as a result, pursuant to r 43, the appeal should be dismissed.
CACV 88 of 2012
15 The appellant was a plaintiff in proceedings against Taylor Woodgate Pty Ltd in the Magistrates Court. From the bar table, the appellant explained that he had retained Mr Horton of Taylor Woodgate as a handwriting expert to provide forensic evidence to prove that the 'Perverted Affidavit' contained a forgery. He paid some money to Taylor Woodgate and, when he was not satisfied with Taylor Woodgate, he sued to recover his money. It was a minor claim and he brought the proceedings in the Magistrates Court. The Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) applied. Rule 26(1) of the Rules reads 'You must attend a pre-trial conference'. Rule 26(2) states 'If you do not attend a pre-trial conference, the registrar at the pre-trial conference may give default judgment against you'. A pre-trial conference was listed for hearing on 5 July 2011 and the appellant and the other party were notified. The appellant did not attend. The claim was dismissed pursuant to s 19 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). Section 19(2) provides that:
If a party does not comply with this Act, rules of court, or an order or direction made by the court, the court may ... give judgment against the party without a trial.
- Section 19(3) provides that the court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
(Page 10)
16 His Honour Magistrate Bromfield said:
The position this morning is that the claimant being obliged to be in attendance at the listing conference and being satisfied that they have been notified, the court can if it considers appropriate, dismiss the claim (ts 2).
17 His Honour then added:
Right, well I now make an order dismissing the claim pursuant to section 19 of the Magistrates Court (Civil Proceedings) Act. I make the observation that the court may set aside a judgment given under subsection 19(2), may do so on condition as to the payment of costs or as to other matters (ts 2).
- His Honour then ordered that the claim be dismissed.
18 The appellant was advised by the Magistrates Court of this order on 10 August 2010. The appellant was advised that he could apply to have the action reinstated.
19 He said from the bar table that he applied for the reinstatement of the action in the Magistrates Court, but the application was dismissed. Instead of appealing that decision, the appellant launched proceedings in the Supreme Court seeking a review of Magistrate Bromfield's order. The review was sought under s 36 of the Magistrates Court Act 2004 (WA) which relevantly restricts review applications to cases of jurisdictional error.
20 The application for a review order came before McKechnie J in Re His Honour Magistrate Bromfield SM; Ex parte Cristovao [2012] WASC 253. McKechnie J observed that the appellant had listed 10 grounds in support of his assertion that 'Magistrate Bromfield is in jurisdictional excesses'. McKechnie J said:
The applicant has listed 10 grounds in support of his assertion that, 'Magistrate Bromfield is in jurisdictional excesses'. The grounds are not related specifically to the actual hearing before Magistrate Bromfield and seem to have been gleaned from some textbook or other.
A right to review or a power to review under s 36 of the Magistrates Court Act is not an appeal and its right is limited to and the power to grant a review order are limited to those matters set out specifically in s 36(1).
The magistrate plainly acted within jurisdiction and it was open for him to make the order he made. There is no substance in the application for review. I therefore dismiss the application [11] - [13].
(Page 11)
21 The appellant has appealed against McKechnie J's order dismissing the application. There are seven grounds of appeal which reveal no error. There is no reasonable prospect that any of the grounds could succeed and as a result the appeal should be dismissed.
CACV 90 of 2012
22 This is an appeal against McKechnie J's order which, in effect, dismissed proceedings the appellant commenced in the General Division of the Supreme Court by a notice of originating motion. The originating motion and its amended version was a blunderbuss application. In it, and by its heading, the appellant indicated that he was wanting the General Division to (a) review orders for costs made in the Court of Appeal; (b) review the costs orders of Keen DCJ in CIV 1874 of 2005 which had been taxed in the sum of $63,377.28; (c) review proceedings brought in the Magistrates Court concerning action the appellant had taken against solicitors who had acted before Butcher Paull & Calder; and (d) grant relief under various sections of the Supreme Court Act 1935 (WA).
23 At the heart of the application is, once again, the 'Perverted Affidavit'. The amended notice of originating motion states that the appellant suffered 'loss and damages' as a result of actions by one of his former solicitors. Once again, Butcher Paull & Calder is named as a party. The appellant is still wanting to sue them in relation to the 'Perverted Affidavit' despite the fact that the proceedings he brought against Butcher Paull & Calder had been dismissed by Groves DCJ as indicated above and the appeal against that judgment had been dismissed.
24 McKechnie J's reasons in Re His Honour Judge Keen; Ex parte Cristovao [2012] WASC 250 read:
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.
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;
(Page 12)
- (c) a trial of new issues to be decided afresh pursuant to s 59 of the Act.
The application also seeks leave to administer interrogatories. There are seven purported grounds for the application.
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].
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.
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) [1] - [6].
25 His Honour also added:
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
(Page 13)
- for the purposes of these proceedings the application is an abuse of process as outside the limitation period [9].
- His Honour's reference to the Limitation Act was presumably in relation to what appeared to be the appellant's attempt to bring again the proceedings against Butcher Paull & Calder and against the solicitor who acted for him before that, both of which proceedings have been dismissed.
26 The appellant has appealed against McKechnie J's dismissal of his application. The appellant has five grounds of appeal, none of which reveals any error on the part of McKechnie J. Several of the grounds refer to McKechnie J's comment at the end of his reasons about the Limitation Act. It is not necessary to consider those grounds because his Honour's conclusion that the proceedings are an abuse of process is correct and there is no ground of appeal challenging the correctness of that part of his Honour's reasons. None of the grounds of appeal has any reasonable prospect of successfully overturning the judgment and, as a result, the appeal should be dismissed.
27 The appellant's obsession with his allegations about the affidavit of 21 March 2003 and his persistence in bringing unsuccessful litigation associated with his allegations means that the time has come to refer the papers to the Attorney General so that the Attorney General may consider whether to bring proceedings against the appellant for an order under the Vexatious Proceedings Restriction Act 2002 (WA). Not only does he vex other parties, but he wastes the time of judicial officers and registry staff because of his irregular conduct of the litigation. The irregular conduct of the litigation was commented on in Cristovao v Butcher Paull & Calder [2011] WASCA 9 [1] - [3].
28 The appellant continues to behave in the same irregular fashion in relation to these matters. Thus in appeal CACV 88 of 2012, Mr Cristovao filed an appellant's case which turned out not to be the appellant's case in relation to appeal CACV 88 of 2012, but the appellant's case in relation to CACV 89 of 2012. Then in appeal CACV 89 of 2012, he filed an appellant's case giving it that number but, upon review, it became evident that it was the appellant's case relating to CACV 88 of 2012. Another irregularity was his attempt to seek from the General Division in CACV 90 of 2012 an order reviewing an order for costs made by the Court of Appeal.
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