Cristovao v Tan & Tan Lawyers Pty Ltd

KERR J: 1 On 18 September 2017 matter WAD 405 of 2017 Rogerio Martins Cristovao v Tan & Tan Lawyers Pty Ltd & Anor was referred to me on behalf of the Chief Justice to hear and determine the Second Respondent's notice of objection to competency and for case management. 2 The proceedings that have come before me for those reasons were initiated by a document filed by Mr Cristovao on 15 August 2017 and amended on 18 September 2017. That document is expressed to be an Amended Notice of Appeal from the Federal Circuit Court of Australia. By that notice Mr Cristovao (a) states that he seeks relief under s 39B(1A) of the Judiciary Act 1903 (Cth) (the Judiciary Act) in respect of a decision made in WAD 332 of 2017 decided by Siopis J on 13 July 2017: Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 794 (Cristovao); and (b) seeks to initiate an appeal against another decision of his Honour made the same day in WAD 544 of 2016 in Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786 (Tan). 3 In Tan his Honour ordered that Mr Cristovao's estate be sequestered under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). 4 In Cristovao his Honour had dismissed, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) an originating application expressed to be for relief under s 39B of the Judiciary Act in which the Applicant had sought, inter-alia, that his Honour's decision in Tan be held in abeyance pending the "quelling of the controversy" [between himself and the Registrar of the Court of Appeal of the Supreme Court of Western Australia] as referred to in that proceeding. In so far as that application can be understood on the materials before the Court the asserted "controversy" had arisen because the Registrar had not provided Mr Cristovao with the court records he had asked for relevant to whether Tan and Tan Lawyers Pty Ltd's defence in the Magistrate's Court to his claim for professional negligence had been funded by that company's professional indemnity insurers. An unmet costs order made against him in that proceeding had been the basis for the application in Tan for his sequestration. 5 As is apparent from this brief background, the decisions Mr Cristovao seeks to impugn were each made by a judge of this Court and not by the Federal Circuit Court. 6 Notwithstanding, when the parties appeared before me on 3 October 2017 counsel for each of the First and Second Respondents took no objection on that account. 7 Given the absence of objection, having regard to his status as an unrepresented litigant, I indicated to the parties that I was prepared to order that compliance with any rules be dispensed with that would prevent Mr Cristovao's Amended Notice being dealt with as if it had been properly filed in this Court. 8 However, Ms McDonald for the Second Respondent later drew attention to a further difficulty. The Amended Notice sought to pursue in WAD 405 of 2017 what were in fact, two distinct matters. 9 That contention was not contested. It is plainly correct. 10 Mr Cristovao has a right of appeal in Tan. In so far as that matter is concerned the contention raised by the Second Respondent's Amended Notice of objection to competency goes only to whether the Second Respondent has properly been made a respondent in that appeal. 11 By contrast, in the proceedings arising out of his Honour's decision in Cristovao the position is contested. The question as to whether Mr Cristovao can appeal a decision as was made by Siopis J pursuant to s 31A of the FCA Act to summarily dismiss an originating application, without first obtaining leave, was put squarely in issue by the Second Respondent's Amended Notice of objection to competency. 12 In consequence, when I earlier made orders dispensing with compliance with any rules that would prevent Mr Cristovao's Amended Notice of Appeal from the Federal Circuit Court of Australia filed on 18 September 2017 from serving its intended purpose I did so on the basis that it involved two distinct matters: the first being an appeal from his Honour's decision in Tan and the second being an appeal or purported appeal from his Honour's decision in Cristovao. 13 Had I not, for the reasons explained below, reached a conclusion that Mr Cristovao's appeal from his Honour's decision in Cristovao is incompetent, I would have made procedural orders having regard to the separate character of each matter. However given my conclusion such orders are unnecessary. 14 Having dealt with the procedural background I turn to the two matters now before the Court.

The appeal from the primary judge's decision in Tan 15 On 18 April 2017 Siopis J heard a petition which had been filed by Tan & Tan Lawyers Pty Ltd for orders for the sequestration of Mr Cristovao's estate. On 13 July 2017, for the reasons he published, his Honour ordered that Mr Cristovao's estate be sequestered under the Bankruptcy Act. 16 As noted the current proceedings (WAD 405 of 2017) have been initiated by a single document filed by Mr Cristovao. I have ordered that notwithstanding its formal defects that document can be accepted as instituting two discrete matters - the second of which is an appeal from the primary judge's decision in Tan. 17 Prior to my so ordering the Second Respondent had filed an Amended Notice of objection to competency. 18 In so far as that Amended Notice relates to Mr Cristovao's appeal from the primary judge's decision in Tan the only relevant contention it raises is that the Second Respondent is not a proper party to that appeal. I heard the parties on that point. 19 Ms McDonald submitted that the Second Respondent was not a party to the matter of WAD 544 of 2016 and accordingly cannot be a proper party to any appeal arising from the decision of the primary judge in that matter. 20 Mr Cristovao's written and oral submissions did not advance any reason why that seemingly self-evident proposition should not be accepted. 21 That may be because the Second Respondent's status in Mr Cristovao's appeal against the primary judge's decision in Tan is simply an artefact of a circumstance in which he commenced two proceedings in a rolled-up way. 22 In the second matter (subject to competence) the Second Respondent is undoubtedly a necessary and proper party. However nothing before me provides any reason why that might apply to the first. 23 Accordingly I am satisfied that proper grounds exist for me to exercise the power conferred by s 25(2B)(a) of the FCA Act to remove the Second Respondent as a party to that appeal from the primary judge's decision in Tan. 24 In the course of the hearing on October 3, I indicated I would make an order to that effect and discussed with the parties an appropriate timetable for the conduct of the appeal in the Full Court. Mr Cristovao estimated the required hearing time would be between one and three hours. That appears to me to be a plausible estimate. I outlined to the parties the directions that I contemplated making regarding preparations for the appeal. No alternative proposals were suggested. I make orders accordingly. 25 The Full Court is not to be burdened with confusing or incorrectly filed appeal materials. Taking into account the less than satisfactory way in which this appeal was instituted I asked Mr Cristovao if he would require the assistance of the Registrar to settle and prepare the appeal book. He indicated he would benefit from such assistance. I therefore waive the requirement under the rules for the applicant to apply in writing for such assistance pursuant to r 36.52 of the Federal Court Rules 2011 (Cth) and direct that that assistance be provided. To avoid issues later arising, I have ordered that Mr Cristovao seek such assistance within 14 days.

The 'appeal' from the primary judge's decision in Cristovao 26 On 13 July his Honour Siopis J ordered that the proceedings commenced by Mr Cristovao by way of originating summons filed on 13 July 2017 (WAD 322 of 2017) "be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth)". 27 His Honour's reasons in respect of the matter then before him were as follows: [4] The background to the originating application is that Mr Cristovao has an appeal (CACV 28 of 2017) pending before the Court of Appeal. An issue in that appeal is whether a costs order made against Mr Cristovao in the Magistrates Court of Western Australia (the Magistrates Court) was validly made. The costs order, and subsequently, the costs assessment, were made in respect of an unsuccessful claim for professional negligence that Mr Cristovao brought against Tan & Tan. [5] It is Mr Cristovao's liability under this costs order, which is the debt upon which Tan & Tan's creditor's petition was founded. [6] It is Mr Cristovao's contention in the Court of Appeal proceeding that the costs order made in the Magistrates Court was not validly made because there had been non-compliance with O 9A of the Rules of the Supreme Court 1971 (WA) (the RSC) by Tan & Tan because it had not advised Mr Cristovao that its defence was being funded by its professional indemnity insurers, Law Mutual (WA). [7] I observe that it has been held previously by the Court of Appeal in an earlier appeal proceeding brought by Mr Cristovao (CACV 90 of 2016), that O 9A of the RSC did not apply to proceedings in the Magistrates Court. The appeal currently pending before the Court of Appeal seeks to re-agitated the same point. [8] The claim which Mr Cristovao makes in this originating application is that the Registrar of the Court of Appeal is in dereliction of her duties. On the material before the Court, it appears that the alleged dereliction is that the Registrar has failed to provide Mr Cristovao with a document signed by a court officer showing that the Court of Appeal was aware that Tan & Tan is being supported financially in a "clandestine manner by an interested non-party". Mr Cristovao sought this "proof" in a letter, dated 4 May 2017. Mr Cristovao concluded that letter by stating that if "such proof" was not forthcoming he wanted the Court of Appeal to provide him with reasons why it was exempting Tan & Tan from the due observance of O 9A of the RSC. [9] There is also before the Court a letter, dated 8 July 2017, wherein Mr Cristovao complained to the Attorney General of Western Australia and the Chief Justice of the Supreme Court of Western Australia that the Registrar of the Court of Appeal was favouring the opposite party by refusing to make public the "Court's records" referred to in his letter, dated 4 May 2017. Mr Cristovao's letter of 8 July 2017, went on to say that on the expiry of seven days from the date of the letter, he would: have no choice but to submit the issue of the controversy of the above subject matter to the Federal Court of Australia thereby invoking its jurisdiction under s 39(B)(1A)(c) [sic] of the Judiciary Act, 1903. [10] Mr Cristovao's originating application, also, claimed that the "dereliction of duties of the Court of Appeal Registrar" favouring "the opposite party" was a contravention of the "federal laws" under s 9 of the Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) and s 28 of the Age Discrimination Act 2004 (Cth) (the Age Discrimination Act). [11] Further, by way of interlocutory relief, Mr Cristovao also sought that the judgment on the creditor's petition (Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao[2017] FCA 786) which was listed to be delivered on 13 July 2017 be held in abeyance pending the "quelling of the controversy". [12] At the hearing at 11:15 am today for the delivery of the judgment, Mr Cristovao was not present in Court. Mr Popperwell, who was present, advised that his client had not been served with Mr Cristovao's originating application. [13] Before delivery of judgment on the creditor's petition, I summarily dismissed Mr Cristovao's originating application filed on 13 July 2017 under s 31A of the Federal Court of Australia Act 1976 (Cth) and said that I would publish reasons for judgment later. [14] These are the reasons. [15] The claims which Mr Cristovao makes in his origination application do not fall within the jurisdiction of the Federal Court. [16] First, neither Tan & Tan nor the Registrar of the Court of Appeal is a Commonwealth officer and, therefore, s 39B(1) of the Judiciary Act 1903 (Cth) has no application to their conduct. [17] Secondly, insofar as Mr Cristovao seeks to allege in his originating application, that the conduct of the Registrar of the Court of Appeal is unlawfully discriminatory under the Racial Discrimination Act or the Age Discrimination Act, there is no evidence that Mr Cristovao has made any such complain to the Australian Human Rights Commission and that the Australian Human Rights Commission has terminated the complaint. Further, Mr Cristovao has not obtained leave to bring any such claim in the Federal Court. Accordingly, the Federal Court has no jurisdiction to entertain Mr Cristovao's complaint insofar as he would seek to allege discriminatory conduct. [18] It follows that Mr Cristovao's originating application has no reasonable prospect of success and is, accordingly, summarily dismissed.

The objection to competency: the Second Respondent's position 28 The Second Respondent has filed an Amended Notice of objection to competency. 29 The Notice asserts (omitting matters relevant only to Tan): [4] The Appellant's claim in WAD 332 of 2017 was dismissed under section 31A of the Federal Court of Australia Act 1976 (the Act) by orders made on 13 July 2017. [5] A decision to grant summary judgment under section 31A is taken to be an interlocutory judgment for the purposes of appeal: s 24(1D)(b) of the Act. [6] Leave is required to appeal the grant of summary judgment under s 31A of the Act; s 24(1SA) of the Act. [7] An application for leave to appeal from an interlocutory judgment or order must be filed within 14 days of the date on which the judgment was pronounced or the order was made (or before a date fixed by the Court from which leave to appeal is sought): rule 35.13 of the Federal Court Rules 2011. [8] The 14 days which the Appellant had to file an application for leave expired on 27 July 2017. The Appellant has not filed an application for leave to appeal the decision made in WAD 332 of 2017. [9] Insofar that the Notice of Appeal purports to be an appeal from the decision made in WAD 332 of 2017, it is incompetent as leave to appeal has not yet been granted. … [11] The Appellant does not have standing to appeal, or to seek leave to appeal, the decision of Justice Siopis in WAD332 of 2017, as the capacity to exercise and take proceedings over or in respect of property as might have been exercised by the Appellant, vested in the Trustee of the estate of the Appellant, on the Appellant becoming bankrupt, pursuant to s 58 and 116 of the Bankruptcy Act 1966 (Cth). 30 In support of that application the Second Respondent read the affidavit of Mr Stefan Pedersen Tomasich dated 29 September 2017. A copy of Mr Cristovao's originating summons as was summarily dismissed by his Honour is an attachment to that Affidavit (SPT6). 31 The Second Respondent filed written submissions dated 29 September 2017. They expand on but do not depart from the propositions set out at [29] above.

The objection to competency: Mr Cristovao's position 32 Mr Cristovao submits that his appeal is not from an interlocutory decision. It may be brought without leave. 33 Mr Cristovao filed written submissions dated 30 September (received by me by facsimile transmission on 1 October 2017) responding to the Second Respondent's Amended Notice of objection to competency. 34 At his request I have taken into account Mr Cristovao's Grounds of Appeal as filed under cover of his Amended Notice of Appeal from the Federal Circuit Court of Australia on 18 September 2017 which I have treated, notwithstanding its formal deficiencies, as having initiated (subject to its competency) an appeal in this matter. 35 Mr Cristovao filed a reply to the first Notice of objection to competency on 28 August 2017. I have read and taken that material into account. 36 I also received two documents dated 21 July 2017 and 25 July 2017 respectively. Those documents were sent to my associate on 2 October 2017. At Mr Cristovao's request I have also taken those documents into account as submissions. 37 Mr Cristovao's position as I apprehend it to be on the basis of those materials and his oral submissions is that he is entitled to bring an appeal without first obtaining leave of the Court or a judge. The clearest and most concise statement of his contention is as set out in the document dated 21 July 2017 referred in [36] above. That document is a letter sent by Mr Cristovao to the Client Service Officer of the Federal Court of Australia. 38 Its content is as follows: Ref: NOTICE OF APPEAL DATED AND FILED ON 17 JULY 2017, APPEALING THE DECISIONS OF SIOPIS J IN WAD/332/2017 AND WAD/544/16 DATED 13.07.17 (1) I refer to your email letter to me dated, 19 July 2017 at 2:47 PM, and I would like to respond to it as follows: (2) My originating application in WAD/332 of 2017 is an application to invoke the jurisdiction of the Federal Court of Australia to quell a controversy arising from the Court of Appeal Registrar J Eaton (Previous-Federal Court, Registrar) refusing to provide me with the court records with regard to the Controversy affecting the integrity of the procedural law in RSC 1971 Order 9A that was refused to be litigated by the Court of Appeal in CACV 28 of 2017 (the Matter Arising). (3) The Matter Arising is concerned with s. 76(ii) of the Commonwealth Constitution of Australia Act, 1901 which states: COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 76 - Additional original jurisdiction. The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (ii) arising under any laws made by the Parliament; 3.1 The Matter Arising is also concerned with s. 39B(1A)(c) of the Judiciary Act, 1903 (Cth) which states as follows: (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. 3.2 The Matter Arising is concerned with the any laws made by the Commonwealth Parliament and they are: 3.2.1 Racial Discrimination Act, 1975 (Cth Act): s. 9 which states: RACIAL DISCRIMINATION ACT 1975 - SECT 9 - Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. (3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australia ship or aircraft) if that person was engaged, or applied, for that employment outside of Australia. (4) The succeeding provisions of this Part do not limit the generality of this section. 3.3 Age Discrimination Act, 2004 (Cth) which provides: 28 Goods, services and facilities. It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's age: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or In the manner in which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person. (4) Therefore my WAD/332 of 2017 is an originating Application to quell the Controversy thereby invoking the Federal Court of Australia's original jurisdiction and is a separate matter altogether from WAD/544 of 2016. The former is therefore not an interlocutory judgment of Siopis J and it does not [require] leave of the Federal Court for its appeal pursuant to s. 24(1D) because: 4.1 It is not a judgment by consent. 4.2 It is not a decision of Siopis J granting or refusing summary judgment under s. 31A. 4.3 You may note that paragraph 1 of Siopis J Judgment states that my Originating Application is summarily dismissed pursuant to s. 31A(2) (sic: s.31A(2) of the Federal Court of Australia Act, 1976 (the Cth Act) is a misnomer. 4.3.1 The reason it is a misnomer is because that Siopis J judgment is not a summary judgment but a final order which does not require leave of court to appeal pursuant to s.24(1A) and s.24(1D) of the Act as quoted by you. (5) The Sequestration Order of Justice Siopis delivered on 13.7.2017 in WAD/544 of 2016 is also not a judgment by consent nor is it a summary judgment under s. 31A of the Act and is a final order all pursuant to s. 24(1A) and s.24(1D) of the Act as quoted by you. 5.1 Therefore both the Appeal against Siopis Orders in WAD/322 of 2017 and WAD544/2016 does not require any leave to appeal. If you have reason to consider that it otherwise, please explain.

Consideration 39 Paragraph 4 of Mr Cristovao's correspondence referred to above suggests that he may presume that no decision dismissing a substantive proceeding pursuant to s 31A(2) of the FCA Act could properly be characterised as interlocutory. Such an assumption is understandable on the part of an unrepresented litigant. As Pagone J observed in Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 507 at [4]: [it] may seem curious to a litigant who is not trained in law to describe as "interlocutory" a decision which effectively brings an end to a proceeding …. but such a decision is interlocutory, and not final, within the meaning of s 24(1A), because the judgement from which the appeal is sought was not made on the merits of the case … [it] did not decide the merits of the underlying dispute… 40 However, as the Second Respondent submits, it is settled law that a decision summarily dismissing a proceeding on the basis that it lacks reasonable prospects of success or does not disclose a reasonable cause of action can be an interlocutory decision notwithstanding its practical effect: Re Luck [2003] HCA 70; (2003) 78 ALJR 177 at [8] - [9]; Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [16] per Kenny J. 41 Section 24(1D)(b) of the FCA Act has since statutorily entrenched that established position. It provides that a decision granting or refusing summary judgement under s 31A is to be taken to be an interlocutory judgment for the purposes of s 24(1A) and 24(1C) of that Act. 42 In turn s 24(1A) provides that an appeal shall not be brought against an interlocutory decision unless the Court or a judge gives leave to appeal. 43 Neither of the exceptions to that rule provided for by s 24(1C) (matters affecting the liberty of the subject and proceedings for contempt) are relevant to this proceeding. 44 It is uncontentious that Mr Cristovao has not applied for leave to appeal. To the contrary, throughout these proceedings he has denied any requirement on his part to do so. 45 The 14 days (r 35.13) available to Mr Cristovao to make such an application expired on 27 July 2017. He is now out of time to do so. 46 Those circumstances establish a sufficient basis for me to make the orders the Second Respondent seeks. Without such leave his intended appeal is plainly incompetent. 47 There may be occasions when a judge or the Court might consider it appropriate, on their own motion, to treat a purported appeal as if it were an application for leave to appeal and determine that question but in my opinion these proceedings involve nothing as would call upon that course to be followed. Mr Cristovao put no materials before his Honour to suggest that his claims under the Racial Discrimination Act 1975 (Cth) (the RD Act) and the Age Discrimination Act (Cth) (the AD Act) were other than colourable. That position remained unaltered in the course of these proceedings. Nothing in Mr Cristovao's submissions advanced the slightest foundation for those claims. 48 Not only has Mr Cristovao strongly resisted any requirement that he seek leave but also in my opinion, any appeal that he might bring has insufficient prospects of success to warrant me considering adopting such a course. 49 The primary judge was undoubtedly correct when he concluded that neither Tan & Tan Lawyers Pty Ltd nor the Registrar of the Court of Appeal were an officer of the Commonwealth such that s 39B could confer jurisdiction on this Court in respect of the "controversy" Mr Cristovao asserted was required be quelled. 50 The conclusion reached by his Honour that a precondition for Mr Cristovao making a claim under either of the RD Act or the AD Act had not been met was also sound. 51 The enactment of s 39B(1A)(c) of the Judiciary Act has transformed the Federal Court of Australia from a court of limited jurisdiction to one of general civil jurisdiction with authority to hear cases in all non-criminal matters arising under Commonwealth law. Accordingly it may be that the reason that this Court cannot entertain a claim under the RD Act or the AD Act unless and until the Australian Human Rights Commission has been apprised of and terminated a complaint could have been expressed by his Honour as arising in consequence of the settled construction of the Australian Human Rights Commission Act 1986 (Cth), having regard to ss 46PO and 46PP, rather than by reason of lack of jurisdiction: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354; French v Gray, Special Minister of State [2013] FCA 263; (2013) 217 FCR 404 per Besanko J at [143]-[161]. 52 However, in the circumstances of Mr Cristovao's originating application before his Honour, even if the latter might have been an alternative way of stating the position that applied, it amounted to a distinction without a difference; the same outcome was required to be arrived at. 53 His Honour's ultimate conclusion that the Court could not entertain Mr Cristovao's claims in the circumstances before him plainly was correct.

The bankruptcy issue 54 Section 60(2) of the Bankruptcy Act provides that an action commenced by a person who subsequently becomes bankrupt is stayed until his or her trustee makes election in writing to prosecute or discontinue the action. However Mr Cristovao's purported appeal was commenced after his bankruptcy. It is therefore a separate and distinct proceeding and is not affected by that provision: Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124. 55 Although I gave leave to Mr Cristovao to file and serve any notice he had provided to his trustee relevant to these proceedings I am satisfied that there is nothing in the Bankruptcy Act which requires me to stay or otherwise not determine the Second Respondent's Amended Notice of objection to competency. 56 I make the orders sought by the Second Respondent. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.