Cristovao v Scott

DATE OF ORDER: 12 SEPTEMBER 2012 WHERE MADE: MELBOURNE

REASONS FOR JUDGMENT 1 This judgment relates to an urgent interlocutory application made by the applicant, Mr Rogerio Cristovao, for a stay of execution of a costs order of Registrar Scott dated 17 March 2011. I heard the application last night largely outside normal court hours. Mr Cristovao is self represented. The application was opposed by Mr Adrian Lacroix, a director of the respondent, Forensic Document Examiners Pty Ltd ("Forensic"). The application sought to stay a sale the following day by Baycorp (WA) Pty Ltd ("Baycorp") of at least Mr Cristovao's interest in real property at 28 Duffield Avenue, Beaconsfield, WA ("the property"). The property was the subject of a seizure and sale order made in the Magistrates Court at Perth in execution of a costs order made by this Court. 2 The application was not made in compliance with rr 2.13 or 17.01 of the Federal Court Rules 2011, that is, it did not comply with the rules in form. The application was made by letter dated 10 September 2012 addressed to two registrars of the Court ("the 10 September 2012 letter"), copied to Page Seagers Lawyers the solicitors for Forensic and to K Homan, Assistant Bailiff, Baycorp. The failure to comply with the rules affected the application as the letter did not contain any return date or time and did not indicate who were the parties to the application. Although the letter was copied to Baycorp it is difficult to know what that organisation made of it, and whether they were given sufficient information to decide whether to seek to be heard on the application. The application was also short served as the letter was sent on 10 September 2012 and the application was to be heard no later than 11 September 2012. 3 As the sale was listed for the following day and the application had real urgency I set aside the requirement for the applicant to comply with the rules and decided to hear his application, notwithstanding the various shortcomings. This was not without some disadvantage for the respondent, Forensic, and perhaps also for Baycorp. The solicitors for Forensic were unable to appear on the few hours notice given. Baycorp did not appear but I have no information as to the reason for its non-appearance. 4 Mr Lacroix sought to appear for Forensic. However r 4.01(2) of the Rules provides that a corporation must not proceed in the Court other than by a lawyer. By r 1.34 the Court may dispense with compliance with this rule. In Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583 I discussed the operation of the discretion to allow a person who is not legally qualified to represent a company. 5 In my view it is appropriate that Mr Lacroix be given leave to appear for Forensic because it is appropriate for the orderly disposition of the application that the company be represented. His submissions were of assistance. It is relevant too that he is a director of the company with a detailed knowledge of the facts relevant to the application by Mr Cristovao. He is the deponent of an affidavit which Mr Cristovao contends is central to the dispute. I note also that the company is not before the Court unable to represent itself out of choice. It is a respondent. In these proceedings it is usually represented by solicitors but on this occasion the application was brought on by Mr Cristovao with such urgency and on such short notice that its solicitors were unavailable. 6 I heard submissions from both Mr Cristovao and Mr Lacroix, and was taken to various of the documents filed. On several occasions I offered Mr Cristovao the opportunity to determine the substantive proceedings, rather than dealing only with the application to stop the sale, because that appeared to be the most efficient way to deal with the application. However Mr Cristovao declined to take that course, contending that he was only ready to make the urgent application to stop the sale. Mr Lacroix also said that Forensic was not ready to deal with the substantive proceedings. 7 Perhaps inevitably because both parties were not legally represented, and because the application was made urgently and not in a proper format, both parties made submissions which, in part, amounted to "giving evidence from the bar table." I took that into account in reaching my decision.