Cristovao v Tan & Tan Lawyers Pty Ltd

1. The Appellant's interlocutory application filed 31 January 2018 is dismissed. THE COURT NOTES THAT:
2. The Respondent does not dispute that it was indemnified by a professional indemnity insurer for its legal costs incurred in the proceedings commenced by the Appellant in the Magistrates Court of Western Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 The Appellant has filed an interlocutory application dated 31 January 2018 in which he seeks orders for standard discovery pursuant to rr 20.13 and 20.14 of the Federal Court Rules 2011 (Cth). The discovery he seeks is in relation to matters that are not currently the subject of any ground of appeal in this matter. Nor has the Appellant sought leave to advance any additional specific ground of appeal to which the discovered documents might be said to be relevant. 2 The rules governing discovery in the Federal Court of Australia relate to the Court's original jurisdiction, and given that I am managing the preparation of an appeal to the Full Court, it is not open to me to make the orders for discovery that are sought. 3 Further, the orders sought by the Appellant go beyond anything required by standard discovery. They would also require the Respondent to provide statutory declarations confirming certain matters, including: 3.4 A Statutory Declaration of the Respondent stating that it has the legal entitlement to recover twice over the alleged debt of the Appellant, first: from the Invoice, second: from the subject matter of the Creditor's Petition in these proceedings in WAD 544 of 2016 (the Double-Dipping Entitlement). (Emphasis in original) 4 The Appellant also seeks orders that: 3.6 Assuming the Validity of the Master Policy, the Insured Respondent confirm to the Appellant and to the Court that it has fulfilled the Conditions for the item 11 at page 18 of 23 of the 2008/2009 Master Policy in that: 3.6.1 The Insured Respondent has been determined by the Insurer Law Mutual to be guilty of a dishonest or fraudulent act or omission of a Part of the Insured Respondent, in relation to the latter's dealings with the Appellant in so far as it relates to the Invoice (the Deemed Admission of Dishonesty or Fraud of the Respondent). 3.6.2 The Insured Respondent has been indemnified of the alleged Debt of the Invoice as is evidenced by the Banking Transaction Evidence (the Deemed Admission of the Indemnification of the Invoice of the Insured Respondent by the Insurer Law Mutual). (Emphasis in original) 5 No present justification has been advanced for the Court to make orders of such a kind, given that there are no grounds of appeal relating to the matters referred to in the orders sought. 6 As a matter of theoretical possibility, it may be possible for a single judge authorised by the Chief Justice to manage a case in anticipation of its hearing by a Full Court to make orders that the Full Court receive further evidence in the appeal. However, in my view, even if such power exists, it would only be in exceptional circumstances appropriate for a single judge to make such a decision. I refer to the judgment of Logan J in Coshott v Burke [2017] FCAFC 230 at [2]: As a matter of general principle, it is a perversion of an exercise of appellate jurisdiction to seek to convert a court of appeal into a court of original jurisdiction, see Coulton v Holcombe (1986) 162 CLR 1 at 7, and notably and, recently, Coshott v Crouch [2017] FCAFC 135 at [51] - [54]. 7 Farrell J and I joined in those remarks, as we did with his Honour's further observations at [3] that: …there may be cases where the interests of justice require, exceptionally, that a court exercising appellate jurisdiction nonetheless permit a point not taken below to be raised on appeal. I accept that exceptional circumstances may be found to arise more readily in the case of a self-represented litigant, but it remains the exception to the rule and such a conclusion is rarely to be reached by a single judge case managing a matter prior to the hearing of an appeal. 8 It remains open to the Appellant to seek leave of the Full Court to add a further ground of appeal in relation to a question of law not taken before the primary judge at first instance. If the Appellant succeeds in persuading the Full Court to permit him to advance such a proposition it would be open to him to request the Full Court to receive further evidence such as the professional indemnity insurance policy in the appeal. 9 However, I note that the Respondent does not dispute the fact that Tan & Tan Lawyers Pty Ltd, in whose benefit the original orders for costs which form the basis of his sequestration were made, had been indemnified by its professional indemnity insurer for legal fees incurred in defending the action commenced by Mr Cristovao in the Magistrates Court of Western Australia. Discovery is not required to establish that fact. There is no controversy between the parties in that regard. 10 When a person's sequestration is sought it always remains open to a court to look behind the form of a judgment should there be a reason to doubt the truth and reality of the debt upon which his or her sequestration has been sought: Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212 per Barwick CJ at pages 224 to 225. 11 However, it is for Mr Cristovao to persuade the Full Court that any further ground of appeal which he might seek to advance gives rise to a proper basis for questioning whether behind the costs order of the Magistrates Court upon which his sequestration was based, there was in truth and reality a debt due to the petitioning creditor. 12 The primary judge, Siopis J, on the basis of the materials and affidavits before him, was not satisfied that Mr Cristovao had established any sufficient cause why the sequestration order ought not be made: Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786 at [54]. Whether his Honour erred in reaching that conclusion is the subject matter of this appeal. 13 I accept that Mr Cristovao previously has applied to amend the grounds of his appeal however he has never specified the terms of any new ground that he would seek to rely on. For that reason, I ruled that his application for leave to amend must be dismissed: see Cristovao v Tan & Tan Lawyers Pty Ltd (No 2) [2017] FCA 1624 and Cristovao v Tan & Tan Lawyers Pty Ltd (No 3) [2018] FCA 20. 14 In the present circumstances, the appropriate course is for this Court to dismiss the Appellant's interlocutory application for standard discovery and the other orders in the nature of discovery sought, and to leave to Mr Cristovao such further steps in these proceedings as he is advised or sees fit. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.