Cristovao v Forensic Documents Examiners Pty Ltd

Federal Court of Australia|2011-09-30|Before: Ms P, Marshall J, Middleton J

REASONS FOR JUDGMENT

This is an application for leave to appeal a decision of Marshall J decided on 28 July 2011.
The background to the application is set out it in the reasons of the primary judge and needs no repeating. The application for leave is supported by a statement of grounds and material in support filed by the applicant, including affidavit material.
Whether leave to appeal is required or not, in my view there is no substance in the matters raised by the applicant. I agree with the reasons of the primary judge.
In considering the question of costs the Court looks to the relief granted in the substantive hearing. The relief granted was that the statutory demand was set aside. The respondent was wholly successful and was entitled to be treated as such.
The primary judge so found and applied the relevant principles set out in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 (see paragraph 12 of the primary judge's reasons).
In my view, he correctly so decided and correctly exercised his discretion in not granting an extension of time to seek a review because any review would be futile and bound to fail.
The applicant has not shown any reason by contention or evidence to show that there are any circumstances which justify a different order as to costs.
Looking at the specific grounds raised in the statement of grounds relied upon by the applicant, I make the following observations.

Grounds 6, 7 and 11 There was no lack of transparency. The parties were given the opportunity to put submissions. Transcript of the proceedings before Registrar Scott need not be made available, even if available, which it apparently is not. It is apparent that the costs order was made by Registrar Scott after considering submissions. In any event, the primary judge effectively reviewed the decision and found it to be correct. No miscarriage of justice has been demonstrated by the applicant. The fact remains, as stated by the primary judge, the setting aside of the statutory demand meant that the respondent was a wholly successful party before the Court. 9. In further submissions made by the applicant it was submitted that the issue was whether there was any need for an extension of time to review the decision of the Registrar Scott. Even if no extension of time was required, both the primary judge and I have considered the matter on the merits, namely, whether the order of costs in question was properly made in the exercise of discretion. As the primary judge said, there is no basis upon which the Court would exercise its discretion judicially other than making a costs order to the same effect as made by the Registrar. 10. I want to mention one other matter arising out of when the matter first came before me on 25 August 2011. I adjourned that application to 30 September 2011 and ordered the filing of material relevant to the events occurring on 17 February 2011 before Registrar Scott. 11. I was, on the material before me on 25 August 2011, concerned that the applicant may not have, in fact, consented to the orders "as a package" made before Registrar Scott. By this I mean, I was concerned that the applicant did not consent to the order setting aside the statutory demand without also an order that there be no order as to costs. I have now received submissions on this matter from the parties and, on the basis of the material before me, have come to a clear view. The applicant consented to the order setting aside the statutory demand. In fact, and this is significant, no appeal had been brought before the primary judge against that order. It is true that the applicant did not consent to an order of costs being made against him. However, Registrar Scott accepted this, and made an order for the application for costs by the applicant to be adjourned. 12. After taking into account the written submissions of the parties on that question Registrar Scott made an order on 17 March 2011 that the applicant pay the respondent's costs. It seems to me, even on the basis of the applicant's own material before me, that he was aware that the setting aside of the statutory demand was to occur by consent on the basis that he did not agree to pay the costs, but was prepared to have the question of costs argued at another time. This procedure did in fact occur. 13. I make other very brief observations on the material of the applicant filed since 25 August 2011. Despite the contentions of the applicant, I find no breach of the rules of natural justice nor any evidence of any impartiality by Registrar Scott. The process was proper and appropriate in the circumstances, and the applicant had full opportunity to present his case on costs. 14. I do not need to further detail or consider the other allegations or matters raised in the applicant's material. I have said, even on the applicant's own material, I am satisfied he consented to the terms of the order made by Registrar Scott and was aware of the processes put in place as to the determination of the question of costs. Nothing else in the applicant's material indicates any unfairness or, as he would put it, travesty of justice. It is not the role of the Court to investigate the events raised by the applicant occurring on 7 October 2010, or the other events not relevant to the costs order made by Registrar Scott. 15. In my view, therefore, the application for leave should be dismissed. 16. [DISCUSSION ENSUED REGARDING COSTS] 17. As the application for leave has been unsuccessful, costs will follow the event, there being no special circumstances justifying a different order. 18. Therefore, the Court orders: 1. The application for leave to appeal be dismissed. 2. The applicant pay the costs of the respondent of and in connection with the application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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