Matters arising on appeal
14 It was correctly accepted by the learned primary judge that the Registrars' letters of 4 and 10 April 2018 and 2 and 16 May 2018 reflected the making of decisions for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) and her Honour dealt with the matter on that basis. The application was also considered as an application for review under s 39B of the Judiciary Act 1903 (Cth).
15 In her reasons the learned primary judge identified the grounds on which the appellant advanced his argument however her Honour noted the insurmountable difficulty faced by the appellant in pursuing his application under r 39.04, being that the judgment had been entered on 29 March 2018, which was prior to the filing of the first of Mr Cristovao's applications.
16 In any event her Honour observed, and correctly in our opinion, that the power in r 39.04 to set aside a judgment or order is only used if the court is concerned that it has proceeded on a wrong basis or where there is some matter calling for review: 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) 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.
17 In that last mentioned case the High Court observed 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.
18 Here, as the orders of the Full Court had been entered, as at the date of the filing of the appellant's applications r 39.04 could not apply. Although Mr Cristovao had suggested that he made some assertion when judgment was delivered that he would seek to set it aside, the fact is that he made no such application until it was too late.
19 Her Honour then considered the exercise of power by the Registrars under r 2.26 to refuse to accept a document if he or she is satisfied that the document is an abuse of process or is frivolous or vexatious. That rule requires the Registrar to form an opinion as to whether the document sought to be filed meets either of the identified criteria. As her Honour observed there was nothing shown by the appellant to suggest that the Registrars did not actually and honestly form the opinions that the appellant's applications and affidavits constituted an abuse of process or were frivolous and vexatious.
20 We agree with her Honour's reasons on that point and Mr Cristovao did not identify any error in those reasons. We also agree with the conclusion of the learned primary judge (at [45]-[46]):
45 … There is no evidence to support a conclusion that the Registrars acted other than reasonably in exercising the power under r 2.26 which authorises them to make a decision as to whether to accept documents for filing.
46 On the face of the interlocutory application, taken in the context of the orders that had already been entered, it was entirely reasonable that the Registrars would form an opinion that the appeal had been finalised and the orders would not be varied under r 39.04. It was also entirely reasonable for them to form the opinion that the appeal process in this Court had been concluded. There is no further right of appeal in this Court. The determination of the appeal by the Full Court brought the appeal process to an end. In such circumstances, there was a sound basis for considering the application was 'doomed to fail' and so was an abuse of process (Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane & Dawson JJ)). For the same reasons there was a sound basis for considering the application and affidavit were frivolous and vexatious.
21 We also agree with the observations of her Honour to the effect that, although r 2.26 refers to a finding that is to be made on the face of the documents lodged, the rule clearly permits Registrars to have regard to the content of the file of the Court in relation to the matter in which the document is filed, including any judgment delivered in it. Were it otherwise the Registrars would be denied knowledge of the orders which gave rise to the application. The orders and the fact that they were properly entered inform the context in which the Registrars make their decision: Shaw v Buljan (2016) 153 ALD 252, [55].
22 Moreover, the power in r 2.26 is conferred on those who maintain, organise and keep the files of the Court and it is directed to them in that capacity. Their office requires them to be knowledgeable of the contents of each file and, as part of the administrative framework of the Court, they can be assumed to know that information.
23 The learned primary judge also considered whether Mr Cristovao's application could have succeeded under r 39.05 even though no relief to that effect was sought. However, as there was no evidence to support any of the grounds identified in that sub-rule, her Honour was right to identify that no support could be garnered from there either.
24 The above considerations disclose that the exercise of power under r 2.26 was within the scope of the rule. Indeed, it can be said with confidence that, given the circumstances, the Registrars were right to refuse to accept the documents for filing as the hearing of any application would have been futile.
25 Her Honour dealt with a number of arguments advanced by Mr Cristovao in relation to the matters under s 5(1) of the AD(JR) Act, but none had any merit. The appellant has not shown any error in the primary judge's reasons in that respect. Indeed, it can be said that he did not attempt to do so.
26 Frequently during the course of the hearing Mr Cristovao's argument circled back to his fundamental complaint that he ought not to have been required to pay the costs ordered against him because the party in whose favour the order was made was indemnified by an insurer. He claimed that this amounted to double-dipping on their part. Although it is apparent that he believes the substance of his argument, it is misconceived. The primary judge's reasons carefully and patiently identified why that was so. Indeed, this was an argument dealt with in detail by the Full Court in Cristovao v Tan & Tan Lawyers [35]-[44] as follows:
35 Here, the reasons relied upon to contend the costs judgment was a nullity were misconceived. This is for at least two reasons.
36 The first is that the Rule had no application. As is evident from its text (see [15] above), the Rule is directed to ensuring that the Court is apprised of the funding or the exercise of third party control over a proceeding and provides that those exercising control are subject to the requirement under the Rules of the Supreme Court to cooperate in conducting cases in accordance with what in this Court is referred to as the "overarching purpose": see s 37M(1) of the FCAA. Additionally, there was no reason to doubt the conclusion of the Court of Appeal that the Rule simply had no application to the Magistrates Court proceeding.
37 The second reason is more fundamental: this is the flaw in the related argument advanced by the appellant that there can be no costs owing to the respondent because it has been indemnified by LMWA and LMWA has paid any costs of the respondent. Although counsel for the respondent did not provide any detailed oral or written submissions on this argument advanced by the appellant, the reasons why the appellant's argument is misconceived should be explained in some detail.
38 Fundamental to the recovery of costs is the principle (often traced to Harold v Smith [1860] 5 H & N 381; 157 ER 1229 and Gundry v Sainsbury [1910] 1 KB 645) that if a party to an action has an agreement with a solicitor that the party will not have to pay any costs, then that party cannot recover party and party costs against the adversary. As Barrett J said in Wentworth v Rogers [2002] NSWSC 709 at [35], the "existence of a liability of the client to pay costs lies at the centre of [the] concept [of party and party costs]".
39 It follows, as McHugh J noted in Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 595:
Since a party cannot recover costs if that party is not liable in any circumstances to pay his or her solicitors' costs, the taxing officer had to determine whether there was an agreement between the respondents and their solicitors that the respondents would not have to pay their solicitors' costs in any event.
(Citations omitted)
40 The argument of the appellant that this principle means that where a successful litigant is entitled to a costs indemnity from a third party, costs cannot be recovered against the unsuccessful litigant, as this would result in a breach of the indemnity principle, has been rejected on numerous occasions: see, for example, New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR(NSW) 50; Adams v London Improved Motor Coach Builders, Limited [1921] 1 KB 495 and, perhaps most relevantly for present purposes, McCullum v Ifield [1969] 2 NSWR 329.
41 In McCullum, Taylor J held that a defendant who had not incurred any liability for costs to his solicitor (as the solicitor was retained by the defendant's third party insurer, the Government Insurance Office), was nevertheless entitled to recover the costs of the litigation against the plaintiff. This is an apposite analogy to the present circumstances.
42 The relevant principles were the subject of detailed examination by the New South Wales Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 where McColl JA, after a thorough review of over 100 years of common law concerning the application of the indemnity principle, concluded (at 220 [95]) that the principle would not prevent the recovery of adverse costs, provided there was a third party "with an interest in the litigation [who incurred costs] in proceedings brought in another's name". Essentially this was because, as explained at 219-220 [93]:
…"costs" was understood as an indemnity to the real party bringing the action without regard to the "liability of the nominal party, whose name must necessarily appear on the record". In such cases the indemnity principle operated on the substance rather than the form to produce a sensible and just result.
43 Hence if the 'real' party who incurred the costs of litigation had an "interest in the litigation", party and party costs may be rightfully recovered. McColl JA did not elaborate upon what constitutes an "interest in the litigation", but consistent with McCullum, such interest will plainly be established by the contractual (or in that case statutory) obligation to indemnify an insured for judgments and settlements on claims in respect of which the insurer is on risk and where the insurer is under a statutory or contractual liability "to indemnify a defendant against all costs and expenditures of and incidental to the proceedings" and thereby exercises "its right to defend the proceedings in the defendant's name": see McCullum at 331.
44 The appellant's long expressed concern has no foundation in the principled application of the indemnity principle and the primary judge was not in error in not going behind the costs judgment even if he had been expressly asked to do so at the s 52(1) stage (which he was not).
27 The appellant has not shown any reason why that conclusion of the Full Court was not correct. Indeed, to those authorities may be added the decision in Coshott v Woollahra Municipal Council [2008] NSWCA 176 as applied in Noye v Robbins [2010] WASCA 83 at [326]-[328] (Owen JA, Buss JA agreeing) which concerned payment of legal costs as part of a solicitors mutual scheme where the indemnity principle did not prevent the recovery of legal costs paid by the scheme.
28 Mr Cristovao also claimed that the circumstances of his case were the same as those considered in Lowbeer v De Varda [2018] FCAFC 115 which was a decision delivered after that of the Full Court in Cristovao v Tan & Tan Lawyers. A claim of that kind would not provide a proper basis for an application to set aside the decision of the Full Court. However, in any event, the circumstances in Lowbeer were quite different. In Lowbeer a petition for a sequestration order based upon an alleged debt arising under a costs order was dismissed. On appeal, it was held that the primary judge had not been shown to be in error in finding that there were substantial reasons to question whether in truth and reality the petitioning creditor who obtained the costs order had any liability to pay legal costs because of evidence that another party (the Congregation) was the only party liable to pay the legal costs.
29 The reasons of the Full Court in Cristovao v Tan & Tan Lawyers were correctly adopted by the learned primary judge and there is no merit in Mr Cristovao's argument that he was not indebted to Tan & Tan Lawyers in the amount relied upon by them to found the sequestration order.
30 To the above it can be added that, even if it were the case that his arguments that he was not indebted to Tan & Tan Lawyers had some merit, it is now far too late to consider them. The issue of whether he was so indebted was finally determined by the decision in Cristovao v Tan & Tan Lawyers and there was no appeal from that decision. It follows that the issue is now settled and cannot be reopened, even by the raising of new arguments which had not come to mind earlier.