Cristovao v Tan & Tan Lawyers Pty Ltd

1. The Appellant's oral application made in these proceedings that I recuse myself is dismissed.
2. The Appellant's interlocutory application dated 18 December 2017 is dismissed.
3. The Appellant's interlocutory application dated 29 November 2017 is dismissed.
4. The Appellant pay the Respondent's costs of his interlocutory application dated 18 December 2017 to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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 then Second Respondent's notice of objection to competency and for case management of such of the proceeding as Mr Cristovao was entitled to maintain as an appeal to a Full Court. 2 On 12 October 2017 after written and oral submissions from the parties I gave judgment in Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 1201 (Cristovao (No 1)). In short summary I identified that matter WAD 405 of 2017 involved not one, but two, distinct claims. I concluded that Mr Cristovao was entitled to maintain an appeal to the Full Court in respect of the decision in Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786 (In the matter of Cristovao) in which Siopis J ordered that Mr Cristovao's estate be sequestered under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). However, I also held that Mr Cristovao's purported appeal against the decision made by Siopis J in Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 794 (Tan) should be summarily dismissed as incompetent. My published reasons explained those circumstances. I incorporate them by reference. 3 In consequence of those conclusions I made the following orders: 1. The Appellant's appeal from the decision of Siopis J in Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786 be listed for hearing before a Full Court in Perth on a date to be fixed during the Full Court and Appellate Sitting period 12 February - 9 March 2018. 2. Pursuant to s 25(2B)(a) of the Federal Court of Australia Act 1976 (Cth), the Second Respondent is removed as a party to that appeal. 3. The hearing of the appeal be listed for an estimate of 2 hours. 4. In accordance with Practice Note APP2, the Appellant file and serve Parts A and B of the Appeal Book within 14 days of the Registrar approving the indexes. 5. In accordance with Practice Note APP2, no later than 4.00 pm 20 business days before the hearing, the Appellant must file and serve on the Respondent its outline of submissions and a chronology of the relevant events. 6. In accordance with Practice Note APP2, no later than 4.00 pm 15 business days before the hearing, the Respondent must file and serve on the Appellant its outline of submissions, a chronology of the relevant events and a list of materials it requires to be included in Part C of the Appeal Book. 7. In accordance with Practice Note APP2, no later than 4.00 pm 10 business days before the hearing, the Appellant must file and serve on the Respondent any submissions in reply. 8. In accordance with Practice Note APP2, no later than 4.00 pm 5 business days before the hearing, the Appellant must: (a) file four copies; and (b) serve on the Respondent an appropriate number of copies, of Part C of the Appeal Book. 9. Outlines of submissions are not to exceed 10 pages in length, including any annexures, and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis. 10. Each party file and serve a list of authorities and legislation in accordance with the List of Authorities and Citations Practice Note (GPN-AUTH). 11. The requirement for the Appellant to apply in writing for assistance to settle the indexes of Part A and Part B of the appeal book pursuant to r 36.52 of the Federal Court Rules 2011 (Cth) be waived, and the Registrar directed to provide such assistance. 12. The Appellant to seek such assistance within 14 days of this order. 13. The proceedings insofar as they purport to initiate an appeal against the decision of Siopis J in Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 794 be dismissed on the basis that the appeal is incompetent. 14. Mr Cristovao is to pay the Second Respondent's costs to be taxed if not agreed. 4 On 29 November 2017 Mr Cristovao filed an interlocutory application, which was accepted for filing on 6 December 2017. The application was in the following terms: 1. By virtue of the affidavit of the Respondent's solicitor Ms Phylicia Fenwick's dated, affirmed, filed and served 18 April 2017, in support of the Creditor's Petition dated 22 November 2016 (Fenwick's Affidavit) which also identifies the Creditor-Petitioner's professional indemnity insurer (Law Mutual) as the beneficiary of the alleged quantum of $34,671.94 allegedly owed by the Appellant to the Creditor (the Alleged Quantum), the Appellant now seeks the following Orders: 1.1 That this Interlocutory Application in Form 35 be heard and determined by this Honourable Court as soon as practicable, before the currently unscheduled date of the hearing of the appeal proper that is due before the Full Federal Court of Australia (the Pre-Appeal Interlocutory Application Hearing). 1.2 Leave be and is granted to the Appellant to amend his Amended Appeal Notice dated 15.09.2017 (Leave to Amend). 1.3 The Pre-Appeal Interlocutory Application Hearing do pre-determine the following two issues before the hearing of the Appeal Proper, which aims to establish that the Bankruptcy Proceedings hitherto taken up by the Creditor-Petitioner is valid in law and not an abuse of process of court (the Integrity of the Bankruptcy Proceedings): 1.3.1 the validity of the Creditor's Petition based on the Alleged Quantum; 1.3.2 the validity of the debt which forms the basis of the Creditor's Petition. 2. The Indemnity Insurer Law Mutual (WA) in its capacity as the professional indemnity insurer of the Respondent as the alleged Creditor be and is added as a party to these proceedings for the purposes of the court's determination as to whether it is the rightful beneficiary of the Alleged Quantum (Law Mutual Be Joined as Party). 3. After the event of the Law Mutual Be Joined as Party, the author of the Fenwick's Affidavit in 2 pages dated 18th April 2017, be and is required by this Court to give evidence in court in respect of the validity of her paragraphs 4 and 5 of the Fenwick's Affidavit. 4. The Respondent do file and serve a true copy of the contract duly entered into between Professional Indemnity Insurer Law Mutual as the interested non-party and the Respondent itself as to their joint efforts in the commencement of the impugned case PER/GCLM/7383/2010 which bore fruition to the Alleged Quantum (the Alleged Champertous and Maintenance Contract). 5. The Alleged Champertous and Maintenance Contract should have been notified to the Principal Registrar of the Magistrates Court and to the oppose party and a copy of it deposited with the Court and should contain the following elements: 5.1 The indemnity Insurer Law Mutual (WA) is the identified interested non-party in the case. 5.2 The Indemnity Insurer Law Mutual (WA) is not contractually bound to indemnify the Respondent for costs order made by the Court against the latter. 5.3 The Indemnity Insurer Law Mutual (WA) has Subrogation Rights to be indemnified by the Appellant of any costs order made by the court despite the fact that the indemnity insurer was a non-party in the case. 5.3.1 The Indemnity Insurer Law Mutual (WA) as the litigation funder of the Respondent did purchase the prospect of an investment return by investing monies in the Respondent's litigation (Law Mutual's Purchase). 5.3.2 The Indemnity Insurer Law Mutual (WA) has a duty to explain to the Court that the Law Mutual's Purchase did not taint or infect the litigation of the Respondent to render them as an abuse of the process of court by being: 5.3.2.1 a subrogation of that dispute by having first settled the Respondent's Professional Indemnity Insurance Claim about the Appellant then unsolved debt of the Alleged Quantum as such is the import of the Fenwick's Affidavit; 5.3.2.2 subsequently embarking on a joint effort to sue the Appellant for the Alleged Quantum. 5.4 The Indemnity Insurer Law Mutual (WA) has a duty to this court to identify the non-risk to the administration of justice caused by the Law Mutual's Purchase: which provides the Appellant's prima facie case of the tort of maintenance and champerty having already been committed upon the Appellant by the Respondent (the Non-Risk to Administration of Justice); 5.5 The Non-Risk to Administration of Justice is based on the rationale that Law Mutual shall not DISTORT THE PURITY OF THE LITIGIOUS PROCESS by aiding the prosecution of suits of any kind by the Respondent upon the Appellant, which the former must "bring upon its own bottom and it its own expenses" which is evidenced by the suborning of witness like that of the Fenwick Affidavit: this process is against public policy (the Distortion of Purity of the Litigious Process). 5.6 The Indemnity Insurer Law Mutual (WA) has a duty to ward off the evil of the Distortion of Purity of the Litigious Process as it should have no interest other than to profit from the dispute as a litigation funder but not because of the subrogation of that dispute, where it intends to have more than regaining its investment costs as borne out by the Fenwick's Affidavit in terms of the alleged Quantum. 5.7 The alleged Creditor-Petitioner's claim of the Alleged Quantum on the faked Bankruptcy Proceedings before this court constitutes a double-dipping, which is the subrogated rights of Law Mutual which caused the Distortion of Purity of the Litigious Process. 6. If Order 4 above were not satisfied by the Respondent, the Court must then determine on the basis of the elements of Order 4 as enumerated in Order No. 5 to 5.7, that the circumstances of the case warrants this Honourable Court finding that the Integrity of the Bankruptcy Proceedings is indeed lacking, thereby rendering the alleged Creditor's Petition of the Respondent null and void and invalid in law. 7. Any other Orders that this Honourable Court deems fit. (Emphasis in original) 5 Mr Cristovao filed an affidavit in support and both he (self-represented) and Ms Fenwick (solicitor for the Respondent) filed written submissions. The Respondent's submissions opposed the application. 6 Mr Cristovao's interlocutory application was listed for hearing on 14 December 2017 by video link between Perth and Hobart. Mr Cristovao was informed of that listing by my associate in the following terms: Dear parties WAD405/2017 Rogerio Martins Cristovao v Tan & Tan Lawyers Pty Ltd The appellant's recently filed interlocutory application has been listed for hearing on 14 December 2017 at 12.14 [sic] AEST (9.15 am AWST) before Justice Kerr. Please note that his Honour sits in Hobart and the parties will appear by videolink from the Federal Court in Perth. 7 When the matter was called on 14 December 2017 there was no appearance by Mr Cristovao. The Court adjourned briefly to permit enquires to be made. My associate thereafter made several attempts to contact Mr Cristovao on the landline telephone number listed on his original Notice of Appeal but obtained no response. 8 Having regard to Mr Cristovao's unexplained absence and the Court having resumed, Ms Fenwick submitted that there would be no injustice or unfairness if the Court were to proceed to determine the matter having regard to the written materials before the Court. 9 I accepted Ms Fenwick's submission, in the light of the fact that before the Court were written submissions from Mr Cristovao in support of the interlocutory application, written submissions from the Respondent and further written submissions in reply from Mr Cristovao. I then gave ex tempore reasons conditionally dismissing Mr Cristovao's interlocutory application. I ordered: 1. Unless the Appellant applies to the Court no later than 4.00 pm on Monday 18 December 2017, the Appellant's interlocutory application dated 29 November 2017 be dismissed without further order of the Court. 2. Any such application must be supported by an affidavit establishing why the Appellant did not appear at the hearing of the interlocutory application on 14 December 2017. 10 My reasons, revised from the transcript, are published as Cristovao v Tan & Tan Lawyers Pty Ltd (No 2) [2017] FCA 1624 (Cristovao (No 2)). I incorporate them by reference. 11 However, late the same day, Mr Cristovao sent a facsimile letter to the attention of my associate in the following terms: Ref: WAD 405/2017 Cristovao v. Tan and Tan Lawyers Pty Ltd - Remote Hearing scheduled for 14 December 2017 at 12:14 PM WAST before his Hon Kerr Justice. I refer to the above matter and to your emails dated 6th December 2017 addressed to the parties with regard to the hearing of my Interlocutory Application at the Federal Court of Australia Perth Registry by way of video conference as stated in the above heading (the Email Communications). I would like to state to you as follows: 1. When I first received said Email Communications, I had formed the erroneous intention to attend the Federal Court Registry at Perth for the Remote Hearing at the stipulated time of 12:14 PM WAST which is equivalent to 9.14 AM AEST (My Erroneous Belief). 2. I only released My Erroneous Belief when I attended the Remoted Hearing at the Perth Registry of the Federal Court at 12.00 WAST when I was told by the court staff that Justice Kerr heard my case at 9.15 WAST this morning. I am therefore disappointed (My Disappointment). 3. Resulting from My Disappointment, I did contact the Perth Federal Court Registry Officer, who told me that Justice Kerr Orders will be issued within a few hours and be emailed to me (the Pending Justice Kerr Orders). Based on the facts of My Erroneous Belief, My Disappointment and the Pending Justice Kerr Orders, I would not give you notice that: 1. I do regret the fact that I was unable to be heard this morning; 2. If the decision is unfavourable to me, I would like to appeal against it, as I have been unwittingly denied my natural justice to be heard before Justice Kerr. 3. In order to facilitate my pending appeal if necessary, I would appreciate if His Honour Justice Kerr would provide me with a written judgment having regard to all the jurisdictional facts that is before His Honour. 4. This letter is despite the fact that I have received the Order from the Registrar at 1.50 pm as it is intended to clarify matters in case there is any subsequent dispute. 5. In the meantime, I shall comply with the Order as stated in item 4 above. (Emphasis in original) 12 Mr Cristovao subsequently filed an affidavit (sworn on 18 December 2017) deposing to the truth of the account he had communicated to my associate. The affidavit was accepted for filing on 22 December 2017, after the expiry of the time allowed for by Order 2 of my orders of 14 December 2017. However, it is apparent from the court file that the affidavit was lodged with the Perth Registry for filing on 18 December 2017 by facsimile. 13 On 18 December 2017 Mr Cristovao also filed what I accept to be an interlocutory application, although it was prepared on a Federal Circuit Court form. That application seeks orders expressed as follows: 1. The Interlocutory Application dated 27.11.2017 of the Applicant was inadvertently missed attendance by the Applicant on 14.12.2017 at 9.15 am WA Time under a misconception that it was to be heard instead at 12.15 pm WA Time. 2. Costs in the cause. 3. Any other relief deemed fit by this court. 14 Mr Cristovao subsequently filed six pages of written submissions. His submissions refer, inter alia, to an apprehension of preconceived bias on my part. However, that aside, even though Mr Cristovao had by then had the opportunity to analyse and respond to my findings in Cristovao (No 2) (which in his submission he refers to as a "draft judgment"), his submissions do not descend to particulars in identifying any asserted error. 15 Thus, for example, I had reasoned in Cristovao (No 2) as follows: 3. I note that, pursuant to r 36.10 of the Federal Court Rules 2011 (Cth) (the rules), the Appellant requires leave of the Court to amend his Amended Notice of Appeal, given that more than 28 days have passed since the original notice of appeal was filed on 17 July 2017, and amended on 18 September 2017. 4. The Respondent submits at [6] of its written submissions: A party seeking leave to amend bears the onus of satisfying the Court that grounds exist for exercising that discretion in his or her favour: Dye v Commonwealth Securities Ltd [2010] FCA 720 at [25]. The Appellant has not identified what amendments he proposes to make to the Amended notice of appeal. A relevant factor to the Court exercising its discretion is the likelihood of the appeal succeeding on the ground sought to be introduced: Burns v Grigg [1967] VR 871. Such [a] factor cannot be assessed without identification of the amendments sought. 5. The Respondent submits that the application for leave to amend should be dismissed. 6. Without the Appellant having provided to the Court or the Respondent a draft Further Amended Notice of Appeal or any indication of the amendments he proposes, the Court is not in a position to assess the new or amended grounds of appeal, whether they could be advanced as valid grounds, or the prospects of success. 7. In the absence of any particularisation of the new or amended grounds of appeal sought to be included by Mr Cristovao, the Respondent has, understandably, made no submissions that it would be prejudiced by having to respond, but the absence of such a claim of prejudice should be discarded as immaterial in those circumstances. 8. As the Court is not in a position to know with any clarity the new ground Mr Cristovao seeks to have the Full Court determine and the Respondent has not had an opportunity to make submissions in relation to it, the Court is not in any position to exercise its discretion to grant leave to further amend the notice of appeal. The application for leave to amend is therefore dismissed. 16 Mr Cristovao's written submissions did not engage with the correctness or otherwise of that reasoning. Further, notwithstanding that by then Mr Cristovao knew why his interlocutory application in that regard had not been granted, his submissions still made no attempt to identify the amendments he was seeking leave to make. 17 Nor did the submissions identify a basis for the Court to make any of the other orders he had originally sought. 18 Rather Mr Cristovao's written submissions advanced an entirely new proposition. 19 In lieu of identifying any considerations which, without the benefit of his oral submissions, may have led the Court to err in dismissing his interlocutory application dated 29 November 2017, Mr Cristovao instead pressed for a quite different outcome. Thus he submitted (at [17]) that on the hearing of his application (listed for hearing on 22 January 2018) "the court must seek the answer and it is its duty to seek this specific answer from the respondent on the single issue: ... when the professional indemnity insurer Law Mutual (WA) did paid [sic] the Respondent its legal costs in the sum of $34,671.94." Mr Cristovao's submissions filed in support of his interlocutory application accordingly sought orders that were entirely new and that had not been included in his 18 December 2017 interlocutory application. Mr Cristovao did not seek leave to amend his interlocutory application. The orders he now sought as identified in his submissions were: 18. That the Respondent/Creditor at all material times did not and does not have the Authority to Act for and on behalf of the professional indemnity insurer Law Mutual (WA) as the former has already been paid by the latter of his legal costs in the sum of $34,671.94 (the Reimbursement of the Respondent). 19. Following the Reimbursement of the Respondent, by the professional indemnity insurer Law Mutual (WA) the Respondent had abused the process of court by seeking the Sequestration Orders of the Federal Bankruptcy Court against the estate of the Appellant as the former had no such standing to do so. 20. The Respondent do pay the Appellant's costs. 21. Any other orders that this court deems fit. 20 When this matter ultimately came before the Court for hearing on 22 January 2018 Ms Fenwick submitted that Mr Cristovao's application should be dismissed at the threshold. 21 Ms Fenwick declined to cross-examine the Appellant on his affidavit. She accepted that what he had deposed to as an explanation for his not having appeared when the matter had been originally listed on 14 December 2017 was the truth but such an explanation did not, she submitted, amount to a sufficient reason for the issues that had been conditionally determined in his absence to be reconsidered. She submitted: …The interlocutory application filed 6 December 2017 was listed for the hearing on 14 December at 12.15 Western Standard Time. I will call this the December application. The applicant did not appear at the hearing, nor was the court successful in getting in touch with him by telephone. With the benefit of the applicant and respondent's written submissions dated 8 and 11 December 2017 respectively, and the applicant's submissions responsive to the respondent dated 14 December 2017, your Honour made the orders that the 6 December application would be dismissed without further order of the court unless the applicant applied to the court with supporting affidavit explaining his non-attendance by 4 pm on 18 December 2017. The applicant did file an interlocutory application with a supporting affidavit sworn 18 December 2017 on 22 December 2017. I will call those the 22 December application and applicant's affidavit, respectively. In the 22 December application, the applicant said he would be denied natural justice if the 6 December application is not re-heard. The applicant has deposed in his affidavit that he did not appear at the hearing of the 6 December application due to misunderstanding of the listed time. The 22 December application should be dismissed - first, because by order 1 of your Honour's orders dated 14 December 2017, the applicant had until 4 pm on 18 December 2017 to apply to the court. The applicant did not make a formal request to re-list the matter within time. As I have noted before, his application dated 18 December 2017 was not filed until 22 December. Now, the respondent does note that the applicant wrote a letter to the court explaining his non-attendance on the day of the hearing, but there was no request in that letter for the matter to be re-listed. Second, at paragraph 21 of the reasons handed down by your Honour on the 14th of December, your Honour said that liberty would be granted for the 6 December application to be restored for reconsideration only if by some gross mischance the applicant has encountered an accident on the way to court. The applicant has deposed in the applicant's affidavit that he did not attend the hearing due to an erroneous belief that it was scheduled at 12.15 pm Western standard time rather than 9.15 Western Standard time. The respondent notes that the email from the Associate to his Honour to the parties referred to in paragraph 4 of the applicant's affidavit correctly cites the listed time of the hearing, being 9.15 am Australian Western Standard Time, on 14 December 2017. The email referred to in paragraph 6 of the applicant's affidavit has nothing to do with the hearing on 14 December - in fact, that email was dated - was sent some two months before the 6 December application was filed. Given that the applicant did not miss the hearing due to encountering an accident, but rather because of his own misunderstanding, the 6 December application should not be relisted. Third, the respondent submits that at the time of the hearing on 14 December 2017, his Honour had the benefit of written submissions of the applicant and respondent and also the reply submissions of the applicant. The respondent notes that at paragraph 7 of the applicant's second outline of written submissions received by the respondent's solicitor on 21 January 2018 that the applicant submits that he was not served with the respondent's submissions filed 11 December 2017. The respondent solicitor did send an email to the applicant's email address … on 11 December 2017 at 4.07 pm, attaching the submissions. The email address is the same one the applicant has provided as his address for service in his notice of appeal filed 15 August 2017 and subsequent court documents. In any event, the applicant has submitted to this court at paragraph 8 of his written outline of submissions that he received a further copy of the respondent's submissions dated 11 December 2017 and that he filed the response to the same, which is the 14 December 2017 submissions. Acknowledgment that his Honour had considered all the written submissions of the parties was noted at paragraph 20 of his Honour's judgment dated 14 December 2017. In the circumstances it is the respondent's submission that the applicant has not been deprived of the opportunity to present his case to the court and was not denied natural justice as a result of his nonattendance at the hearing of the 6 December application. I also note that the respondent made minimal oral submissions at that hearing. The application brought - is brought - the application brought today to the court to consider whether the 6 December application should be relisted for hearing - having regard to his Honour's orders and reasons dated 14 December 2017, the applicant has not in his second outline of written submissions made any submission in fact or law that would support a finding that the 6 December application should be relisted. The 22 December application should be dismissed with costs awarded to the respondent. (transcript p 3 line 29 - p 5 line 6) 22 Ms Fenwick's submissions had the benefit, and merit, of brutal simplicity but, having regard to the Appellant's status as an unrepresented litigant, I hesitated to proceed on that basis without at least first testing whether, despite there having been nothing in his written submissions to the point, there might be something Mr Cristovao might raise in oral argument to justify the Court reconsidering its earlier conditional orders. 23 I therefore asked Mr Cristovao whether he had identified any error in respect of the reasons I had delivered in Cristovao (No 2) and, more generally, why the conclusions reached by the Court should be reconsidered. 24 The ensuing discussion occupies ten pages of transcript. 25 It would serve no purpose to recite the detail of what was and was not advanced by Mr Cristovao by way of oral submissions in response. Should the transcript be required by a reviewing court it is available. The short of it however is that Mr Cristovao, notwithstanding a number of clear requests for him to identify any error he asserted in respect of the reasoning in Cristovao (No 2), did not do so. 26 However what did become clear was that that was because Mr Cristovao remained of the opinion that I had been wrong (and had demonstrated bias against him) in Cristovao (No 1) when I had concluded that such of the proceedings in WAD 405 of 2017 as purported to initiate an appeal against the decision of Siopis J in Tan was to be dismissed as incompetent. 27 In Tan his Honour had summarily dismissed proceedings that had been commenced by Mr Cristovao by way of originating application filed on 13 July 2017 pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). His Honour had reasoned 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-agitate 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 opposition 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 originating 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 complaint 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. 28 Mr Cristovao's understanding, as explicitly expressed in the course of his oral submission that I should recuse myself (transcript p 16 lines 24-31), is that the orders I made in Cristovao (No 1) which had had the effect of preventing him from pursuing an appeal against Siopis J's decision in Tan had "invalidated" his capacity to pursue his rights in the appeal I remain responsible for case managing. 29 It is understandable that an unrepresented litigant might continue to hold the view that in an appeal against a decision regarding his sequestration under the Bankruptcy Act he ought to be able to raise issues of the kind rejected by Siopis J in Tan. On such an understanding he would see those issues as practically interrelated and would want the Full Court to have regard to submissions and evidence going to the correctness of his Honour's decision in Tan. Cristovao (No 1) denies the Appellant that opportunity - it prevents him advancing propositions relevant to Tan but not otherwise material to the appeal in In the matter of Cristovao listed for hearing before a Full Court on 7 March 2018. 30 That acknowledged, Mr Cristovao had the opportunity to, but did not seek leave to, appeal the decision made in Cristovao (No 1). The time available for him to take advantage of that opportunity has expired. It is not open to Mr Cristovao to ask the judge appointed to case manage his appeal to proceed as if that decision had not been made (see ss 25(2B)(aa) and 25(2B)(bc) FCA Act). It is not an indication of actual bias against him in that regard that I have declined to do so. 31 Nor do I accept the possibility that a party might understandably hold a view of the kind I have referred to at [29] is capable of establishing apprehended bias. The leading authority in relation to apprehended bias is Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner). In that case Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [6]: …[A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 32 Their Honours continued at [8]: [The application of the apprehension of bias principle] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 33 Of course, the hypothesised fair minded lay observer referred to in Ebner cannot be expected to have a detailed comprehension of why it might be that an appeal might lie as of right in In the matter of Cristovao but not in Tan. Indeed, for that reason in Cristovao (No 1) I referred at [39] to the observations of Pagone J in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 at [4] to acknowledge that it might seem curious to a litigant not trained in law to describe as interlocutory a decision which effectively brings an end to a proceeding. 34 That, accepted, the hypothesised fair minded lay observer does not make "snap judgments" (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [14] (Johnson)); and is "neither complacent nor unduly sensitive or suspicious" (Johnson at [53]). Where the decision maker is a judicial officer the fair minded lay observer (the reasonable observer) will have regard to the fact that a judge's "training, tradition and oath or affirmation" of office can be expected to equip the officer with the ability "to discard the irrelevant, the immaterial and the prejudicial": Johnson at [12]. The fair minded lay observer must also be attributed to have knowledge of "all the circumstances" of the case: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. Although not taken to be a lawyer, the reasonable and fair minded hypothetical person is to be taken to be informed about the core considerations relevant to his or her arriving at an apprehension that a judge might be biased. 35 As Lord Hope of Craighead said in Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 at [3]: Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment. 36 As his Lordship held, the person is of the sort who "always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious…" (at [2]). 37 A fair minded lay observer who took the trouble to inform himself or herself on matters relating to appeals in this Court might still find it curious that a decision disposing of a matter on the basis that it should be summarily dismissed pursuant to s 31A(2) of the FCA Act (as Siopis J did in Tan) in law is interlocutory and does not stand as a decision finally disposing of a matter on its merits. However the fair minded lay observer would be satisfied that the distinction is well established and, unless legislation or a decision of the High Court intervenes, binds all judges of this Court. 38 A fair minded lay observer would therefore not think that what I held in Cristovao (No 1), having regard to that distinction, could, within the meaning of Ebner, supply the required logical connection to the possibility of my deviating from the course of deciding case management issues in Mr Cristovao's appeal on their merits. What I decided in Cristovao (No 1) does not prevent me, as Mr Cristovao submits, dealing with the real issues, it simply narrows those real issues to those he is entitled, as a matter of law, to pursue in his appeal. 39 I reject Mr Cristovao's submission that I ought to have recused myself. 40 Accordingly I return to Ms Fenwick's submissions. Whether or not there is sufficient reason to accept Mr Cristovao's explanation for failing to appear need not be decided. It is always material to such questions for a Court to also give attention to the merits. 41 Mr Cristovao was provided with the opportunity to do so, but in oral submissions has advanced no submission warranting my doing other than adhering to the conclusions I had reached on the papers in respect of the merits of his interlocutory application dated 29 November 2017. 42 I dismiss Mr Cristovao's interlocutory application dated 18 December 2017. Given that no application was made to amend that application it is unnecessary to say anything further regarding the apparent disconnect between his interlocutory application of 18 December 2017 and his submissions in support as noted at [17] to [19] above. 43 My order in Cristovao (No 2) dismissing his interlocutory application of 29 November 2017 was conditional upon there not being an affidavit filed by 18 December 2017 to establish why Mr Cristovao had not appeared at the hearing. Having taken advantage of the opportunity to file such an affidavit, and having been provided with the opportunity to make oral submissions, but having failed to advance any adequate reason that his earlier application should have been granted, I will now order it dismissed on unconditional terms. 44 Mr Cristovao must pay the Respondent's costs of his application of 18 December 2017 to be taxed if not agreed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.