Consideration
34 Part 39 of the Rules relevantly deals with entry of judgments and orders.
35 Rule 39.01 provides that a judgment or order takes effect on the date on which the judgment is pronounced or the order is made.
36 Entry of judgment or orders is a different step to their pronouncement. Entry is dealt with by r 39.31 to r 39.35 of the Rules. In this case, it is not in issue that the orders of the Full Court were entered. They were entered by a Registrar of the Court. The date that the entry was stamped is 29 March 2018. A copy of the entered order was apparently provided to the applicant by the first respondent.
37 Rule 39.04 provides that the Court may vary or set aside a judgment or order before it has been entered.
38 Rule 39.05 provides that the Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in a judgment or order; or
(h) there is an error arising in a judgment or order from an accidental slip or omission.
39 The discretion under r 39.04 is invoked in limited circumstances. Generally, such an order will be made to deal with technical or incidental changes to the form or content of orders, or to remove an ambiguity. The rule does not provide an unfettered discretion to reargue or reconstruct a case. It may be exercised if the court is convinced that it has proceeded on a wrong basis or where there is some matter calling for review: see generally 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] FCAFC 41; (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 (Brennan, Dawson, Toohey & Gaudron JJ). The High Court in Smith v New South Wales Bar Association noted in particular 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.
40 As to r 39.05, the power is more circumscribed than in the pre-entry context, and may be exercised in the stipulated circumstances provided for.
41 In this case, on the face of the application the applicant seeks by the interlocutory application to rely on r 39.04. The orders were entered and the applicant does not suggest otherwise. The orders were not revised or recalled before entry. There was no application filed prior to entry to seek to vary or amend the orders. Even accepting the applicant's evidence that he wanted or started to say something about that issue over the telephone after the Full Court delivered its judgment on 27 March 2018, the fact remains that no application was filed prior to entry of the orders. That is the context in which the Decisions are to be considered.
42 Rule 2.26 of the Rules empowers a Registrar to refuse to accept a document if he or she is satisfied that the document is an abuse of process of the Court or is frivolous or vexatious. The Registrars were so satisfied.
43 In Satchithanantham v National Australia Bank Limited [2009] FCA 1171; (2009) 260 ALR 567 at [43], Foster J stated as follows:
There is a great deal to be said for the arguments advanced by Counsel for the first respondent in support of the proposition that the Registrar's decision was plainly correct. But the first respondent does not need to go that far. The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing "on its face" is "an abuse of the process of the Court or is frivolous or vexatious" (the words are "if the document appears to the Registrar … to be …") (Emphasis added). That opinion must be honestly and actually formed. It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing. The Registrar must form that opinion reasonably (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report). This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision.
44 There is no meaningful distinction between the former O 46 r 7A and r 2.26: Nyoni v Murphy at [32].
45 There is no evidence before me that would provide a basis for concluding that the Registrars did not actually and honestly form the opinions expressed in their letters that comprise the Decisions to the effect that the application and affidavit comprised an abuse of process or were frivolous or vexatious. 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.
47 The terms of the application and affidavits and their reference to r 39.04 provide a reasonable basis for the formation of the Registrars' opinions.
48 I accept that r 2.26 refers to a finding that is to be made on the face of the interlocutory application and documents filed with it, but in my view the context and purpose of the rule clearly permits the Registrars to have regard to the decision of the Full Court to which the applicant referred in the interlocutory application. Otherwise, the Registrars would have been denied knowledge of the very orders that give rise to the application. The orders and the fact they were entered properly inform the decision of the Registrars and form part of the legitimate context to which they may have regard: Shaw v Buljan [2016] FCA 829 at [55] (Charlesworth J).
49 On its face, the application and affidavit sought to invoke r 39.04. Those documents did not invoke r 39.05. They made no claim of the kind provided for in r 39.05. Nor, to my mind, could the applicant have reasonably invoked r 39.05: there was no evidence to support reliance on any of the provisions of s 39.05. The orders were not made in the applicant's absence; there is no suggestion the orders were obtained by fraud; the decision was not interlocutory; it was not for an injunction or the appointment of a receiver; there is no suggestion the orders do not reflect the intention of the Court (as is apparent from the reasons); there was no issue of consent; and there is no suggestion of any clerical error or other error justifying the application of the slip rule (see generally Nyoni v Murphy at [46]-[47]). I note, however, that the letter from the second respondent of 27 April 2018 suggests that the applicant raised r 39.05(b) and (c) in correspondence. Nothing on the face of the application or affidavit suggests reliance on those provisions. Both documents recite reference to r 39.04. In any event, there is no basis enunciated to ground an allegation that the decision of the Full Court was procured by fraud. The decision of the Full Court was not interlocutory.
50 I do not consider there is any foundation for the claim that the Decisions of the Registrars were induced or affected by fraud as referred to in s 5(1)(g) of the ADJR Act. Their Decisions are expressly based on the fact that orders were made by the Full Court following an appeal and were entered. Whilst the applicant said he relies only upon s 5(1)(g) of the ADJR Act, taking into account that he is self-represented, I have also considered whether his complaints might fall within any of the other provisions of s 5(1). I am satisfied on the evidence that the Registrars cannot be said to have acted contrary to such provisions. In this context I have also taken into account Markovic J's consideration of s 5(1)(e) and s 5(2)(g) and the test for unreasonableness in SZVCP v Cho [2017] FCA 310 at [29]-[40]. I do not consider the Decisions can be said to be legally unreasonable.
51 In reaching my conclusions, I have taken into account the various submissions made by the applicant and referred to at [33] above.
52 As to the submission at [33(a)], the fact that the respondents have filed submitting notices means nothing more than that they do not wish to be heard on the application and will abide by the decision. It is not a concession.
53 As to the submission at [33(b)], the facts upon which the opinions were reached are obvious: the Full Court had delivered its reasons and orders had been made and entered.
54 As to [33(c)], the first respondent did not say the applicant was a vexatious litigant. The letters refer to the terms of r 2.26 itself: that is, that he was satisfied that the documents were frivolous or vexatious. 'Vexatious' qualifies the relevant document, not the applicant.
55 As to [33(d)], r 39.05 was not invoked on the face of the documents. However, in any event there is no evidence to support a contention of unintentional error on the part of the Full Court. The orders are consistent with its reasons.
56 As to [33(e)], the submission has already been dealt with at [41] above.
57 The submissions at [33(f)], [33(g)] and [33(h)] can be dealt with collectively. The applicant seeks to reargue his claim that Tan & Tan is not entitled to the benefit of any costs order because it was insured for exposure to costs. The applicant categorises Tan & Tan's conduct as 'double-dipping' or fraud. That claim has been argued by the applicant and lost (see Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WADC 36 at [28]-[34] and the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd at [28]-[44]). It was not for the Registrars, in exercising their power under r 2.26, to consider or adjudicate upon whether such argument had any merit. Their role was an administrative one.
58 The applicant's reference to 14 justices having considered the double-dipping or fraud aspect is apparently a reference to the collective number of judges who heard and determined Stubbs v The Queen; Lowbeer v De Varda; Tov-Lev v Lowbeer (No 2) [2014] FCA 379 (Rares J)) and Ramsay Health Care v Compton.
59 None of those cases assist the applicant on this application. First, they are not concerned with the principles that apply on a review from an administrative decision of a Registrar. As already addressed, it is not for the Registrar to assess the merits of matters that have already been assessed and determined by the Full Court and by an appellate process. The applicant is seeking to re-agitate his claims in an impermissible manner. Second, and regardless, those cases do not support any contention that the Full Court's reasons as to the right of Tan & Tan to recover costs were wrong. They are quite distinguishable.
60 Stubbs v The Queen deals with a criminal conviction of a lawyer who received legal aid funding on behalf of his client but also, without disclosing such fact, received payments from his client's mother for his services. By statute, a legal practitioner in receipt of a grant of legal aid was precluded from demanding or accepting payment for services in respect of which a legal aid grant was made. In such circumstances the lawyer was convicted of obtaining property by deception. The scenario is factually and legally distinct from that relating to Tan & Tan's entitlement to a costs order.
61 In Lowbeer v De Varda, the Full Court upheld a decision that no debt in reality was owed on a costs order because those costs were in fact incurred by a third party (the Congregation) and not by the successful litigant (Mr Lowbeer). There was insufficient evidence to establish that there was any contractual right of indemnity as between the Congregation and Mr Lowbeer such that the Congregation was obliged to indemnify Mr Lowbeer. Mr Lowbeer was not able to establish that the Congregation had any right to subrogation. The difficulties faced by Mr Lowbeer in establishing a valid debt were not faced by Tan & Tan or its insurer. Tan & Tan was entitled to a contractual right of indemnity from its insurer, its insurer had an interest in the litigation, and the long-established authorities that apply in such circumstances were referred to and applied by the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd at [38]-[44].
62 Ramsay Health Care v Compton does not concern issues of indemnities. It takes the 'double-dipping' allegation no further. The Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd took into account the principles (as discussed in Ramsay Health Care v Compton) that apply in ascertaining whether or not there is in truth and reality a debt owing to a petitioning creditor (at [34]).
63 Nor does the decision in Onley v Catlin Syndicate Ltd assist. It concerns a scenario where an insurer sought to deny an obligation to indemnify an insured for defence costs on the basis of alleged fraudulent non-disclosure. That is not this case. In fact, one of the key claims of the applicant in this case rests on the submission that Tan & Tan's insurer in fact paid the relevant costs.
64 As to the submissions referred to above at [33(i)] and [33 (j)], regardless of how the applicant classifies the request, it is clear from the letter from the second respondent of 27 April 2018 to the applicant that the applicant did in fact seek legal advice. It was entirely appropriate that no such advice be provided by a Registrar. The Registrar properly categorised such requests as requests for legal advice.
65 However, some assistance was provided to the applicant. For example, the first respondent informed the applicant that an affidavit is required in support of an interlocutory application. The Registrars suggested that the applicant seek legal advice and also provided information as to the Self Representation Service and potential community legal resources. The applicant was informed in writing that he could seek a review of a decision of a Registrar (separately, there was evidence before me that a Registrar of the Federal Circuit Court also assisted the applicant in explaining how this application for review should be commenced in either this Court or the Federal Circuit Court, and the time period during which it was to be commenced). I note that the applicant also suggested that he was not assisted because he is self-represented or because of his Portuguese heritage. Such claims are entirely unsupported by and inconsistent with the evidence and, in my view, spurious.
66 There is no evidence to support the applicant's contention that the Registrars were seeking to obstruct, frustrate and delay the due course of justice. As is apparent on the face of their communications, their letters to the applicant were courteous and objective.