Cristovao v Trott

1. The appeal be listed for hearing before a Full Court in Perth on 28 May 2018 at 10:15am.
2. The hearing be listed for an estimate of half (½) a day.
3. In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, the appellant must file his outline of submissions and a chronology of the relevant events.
4. In accordance with Practice Note APP2, not later than 4.00 pm 5 business days before the hearing of the appeal, the appellant must file four copies of Part C of the Appeal Book.
5. Outlines of submissions not 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 only.
6. The appellant file a list of authorities and legislation in accordance with Practice Note CM 2.
7. The appellant's amended interlocutory application seeking orders pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 I note that there is no appearance for Mr Cristovao. I'm informed that inquiries have been made outside the court and his name has been called and there is still no appearance. In those circumstances, this being his interlocutory application, I could dismiss it for default of appearance but what I propose to do is deal with some other matters which will be on the record. I note that Mr Cristovao was informed yesterday by my associate that his application would be proceeding today. 2 First, I should say that it will become apparent that the matter before me today pertains to the management of an appeal to the Full Court that Mr Cristovao has instigated from a judgment of a judge of this Court. The relief sought today has been filed in the appeal file. There needs to be directions made for an appeal. I propose now to make very standard management directions in relation to that appeal. Those directions will be: (1) The appeal be listed for hearing before a Full Court in Perth on 28 May 2018 at 10:15am. (2) The hearing be listed for an estimate of half (½) a day. (3) In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, Mr Cristovao, the appellant, must file his outline of submissions and a chronology of the relevant events. (4) In accordance with Practice Note APP2, not later than 4.00 pm 5 business days before the hearing of the appeal, Mr Cristovao, the appellant, must file four copies of Part C of the Appeal Book. (5) Outlines of submissions not 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 only. (6) Mr Cristovao, the appellant, file a list of authorities and legislation in accordance with Practice Note CM 2. 3 I should note that in the course of some of the materials that Mr Cristovao has filed, and the materials are not particularly easy to follow, that he has suggested that I recuse myself from hearing the interlocutory application today on two grounds. As Mr Cristovao has not appeared, he has not formally made the application but I will address it. 4 The first ground is that I was a member of the Full Court in Cristovao v Registrar Scott [2013] FCAFC 92 which reached a conclusion which was adverse to Mr Cristovao. The second ground is that he says I am a member of the Law Society of Western Australia and, therefore, might be perceived as being biased against his case. 5 On the first ground, as Mr Cristovao will know from his previous attempts to invite a judge to recuse himself due to having been previously involved in a Full Court decision adverse to him, such a ground is not (without substantially more) an appropriate ground for recusal and I decline to recuse myself on that ground. 6 On the second ground, while the ground could not possibly afford a proper basis for recusal, in any event, I am not, and have not been for the vast majority of the time that I have been a serving judge, a member of the Law Society. Mr Cristovao's reference to support his understanding of that membership was seemingly in fact a reference to my name on a Law Society webpage in relation to a seminar I was invited to chair by the Law Society and did so. I repeat, I am not a member but, even if I had been, that would not be a proper basis for recusal. 7 I notice that it is now 10 am, 15 minutes after the matter was listed for hearing at 9.45 am. 8 Mr Cristovao's interlocutory application, which was listed before me as part of management of the appeal, was in quite extensive terms. I set it out verbatim as follows: The Applicant as Appellant applies for the Interlocutory orders set out in this application. 1. The Applicant be and is allowed by this Honourable Court to make this Interlocutory Application before a single judge of the Federal Court of Australia to seek the two outstanding issues be answered …by this Court in relation to Questions of Law to have a Case Stated pursuant to r.30.01(1) Federal Court Rules 2011 (the Rules) under heading C: below. A: THE SUMMARY OF THE APPLICATION The Applicant's human rights has been placed in jeopardy by denial of Natural Justice by the legal system working in a reasonably-perceived conspiracy with the would-be perpetrators to defraud the Appellant in making their efforts to achieve the purpose of causing the Appellant to be made a bankrupt under circumstances where there is no genuine debt owing and payable by the Appellant to his pseudo-creditor in terms of the following: 1) The learned Primary Judgment of Her Hon. Banks-Smith J. in WAD 295 of 2018 at [11] where the "Long Established Principle" is inadvertently misquoted and inadvertently misapplied by Her Honour in these words: (the Misapplied Long-Established Principle): "... where there is a third party with an interest in the litigation who incurs such cost, then party/party costs may be rightfully recovered". 2) In the context of the present case before this court, that Long-Established Principle does not apply under the following circumstances: (the Non-Entitlement of the Respondent): 2.1. The Insurer (LMWA) was/is never at all material times the Third Party with an Interest in the Litigation (The Insurer's Non-Third Party in the Litigation); 2.2. The Respondent never did incur nor is it capable of ever incurring such costs in the litigation by virtue of its being at all material times the Insurer's Non-Third Party with an interest in the litigation (Non-Indebtedness of the Appellant); 2.3. By virtue of the Insurer's Non-Third Party with an interest in the litigation and the Non-Indebtedness of the Appellant, the Respondent does not have any entitlement to rightfully recover any party/party costs (the Respondent's Non-Entitlement). 3) At paragraph 1.3.2.4. at page 5 of the Appellant's Notice of Appeal dated 8.11.2018 in WAD 508 of 2018 which reads: "At [11], Her Honour Justice Banks-Smith contradicted Tan and Tan Lawyers' Admission that the Insurer (LMWA) is a Non-Interest Third Party in the Litigations and thereby incorrectly infers the Double-Dipping Cost Claim, being fraudulently claimed by Tan and Tan Lawyers against the Appellant resulting from an interested party Subrogation of Rights which is not the case here in the present circumstances before this Court (the Contradiction of the Primary Decision Maker)". A. 1: PARTICULARS OF THE RESPONDENT'S NON-ENTITLEMENTS AND NON-INDEBTNESS OF THE APPELLANT: 1) The Full Court Judgement dated 27 March 2018 in WAD 405/2017 upon which the Primary Judge Her Hon. Banks-Smith J. draws the Long-Established Principle: runs counter to the provision of the Insurance Contract Act, 1984 (the Cth Act) under the underlined heading: 67 Rights with respect to money recovered under subrogation, which provides: a. Section 67 (1) (a) "an insurer is liable under a contract of general insurance in respect of loss; …" b. Section 67 (1) (b) "the insurer has a right of subrogation in respect of the loss; …" c. Section 67 (1) (c) "an amount is recovered (whether by the insurer of the insured) from another person in respect of the loss." A. 2: CLAUSE 11 OF THE MASTER POLICY CANCELLED/SUBSTITUTED SUBROGATION RIGHTS OF THE INSURANCE CONTRACT ACT, 1984 (THE CTH ACT) S.67 (1) (b): THE CANCELLATION PREVAILS BECAUSE THERE IS NO FRAUD OR DISHONESTY OF THE INSURED TO THE INSURER. 2) The Master Policy Provisions at Clause 11 repeats the synergetic effects of the two limbs of s.67 (1) (a) and (b) of the Insurance Contract Act, 1984 (Cth) but it left out the Subrogation Rights of the Insurer (LMWA) in s.67(1) (a) and (b) as it (Clause 11) provides a Non-Subrogation Rights of the Insured (Respondent) as detailed by the Appellant's paragraph 1.3.2.1. of the said Appellant's Appeal Notice WAD 508 of 2018 which reads: "Tan and Tan Lawyers have No-Subrogation Rights (to act on behalf of the Insurer (LMWA) in compliance with the Master Policy clause number 11 derived from the Insurer (LMWA) after the settlement) against the Appellant because the terms of the Master's Policy provide that such rights cannot be invoked (where there is an absence of fraud or dishonesty. At [58 and 61]) in that claim between the Insurer (LMWA) and Tan and Tan lawyers (Insured). Therefore, the alleged debt of $34,671.94 is by no means (sic: existent) existing [or payable] by the appellant to Tan and Tan Lawyer" [My Emphasis]. B: THE FACTS OF THE CASE: 1. The learned Primary Judgment of Her Hon. Banks-Smith J., depended on the Issue of Finality of the Full Court Judgement dated 27 March 2018 in WAD 405 of 2018, which never reached that point of Finality (the False Point of Finality). 2. The learned Primary Judgment of Her Hon. Banks-Smith J., relied on the Long-Established Principle to establish the False Point of Finality (the Reliance of the Primary Judge). 3. The Reliance of the Primary Judge is unfounded as proven by the Particulars of the Respondent's Non-Entitlements and the Non-Indebtedness of the Appellant. C: THE CASE STATED QUESTIONS SOUGHT BY THE APPELLANT/APPLICANT: There are two issues for the Special Court to State the Case for … the Appeal Court: 1) Non-Third Party (the Insurer) with an Interest in the Litigation (First Issue); 2) The Respondent's Non-Subrogation as per the fundamental term of the Master Policy Contract's Clause 11 between Insurer (LMWA) and Insured (Respondent) which replaces the legislated version: s.67 (1) (b) of the Insurance Contracts Act, 1984 (Cth) (Second Issue). 1) The Appellant applies to this Court for the Case Stated on the First Issue on the Premise of the Non-Third Party (the Insurer) with an Interest in the Litigation. a) The decision of the learned Primary Judge (Her Hon. Banks Smith) should be set aside as she had exercised her discretion vested in her by s 5(1) of the ADJR Act 1977 (the Act) without taking into account considerations that she was bound to take into account, in terms of the following questions: Q1: Did the learned Primary Judge (Her Hon. Banks Smith) erred in law and facts when she applied the non-applicability of the Long-Established principle at [11] of the Primary Judgement to the Master Policy Contract's Clause 11 under circumstances: a) when the Insurer was already a Non-Third Party as already admitted to by the Respondent themselves to the full court in this Appeal: b) when … there is already in the prior judgment/findings of the full court in these proceedings of the real existence of a Non-Interest Third Party with Interest in the litigation? (A) If the answer is Yes: does it follow that this court should consequently rule on the NON-ENTITLEMENT of the Respondent: who ought not to be reimbursed TWICE for the same legal works that the Respondent had performed in the course of the litigation as the Insured of the Insurer. (B) the reimbursed sum is precipitated at $34,671.94 which sum has already been settled between the Insurer and Insured referred to as the unlawful Double-Dipping (The Unlawful Double Dipping) Does this court sanction an unlawful transaction? (C) If the answer is No, say why? Q.2: Did the Primary Judge (Her Hon. Banks Smith) fail to take into account that there was no prior finding of Dishonesty or Fraud by the Insured against the Insurer (the Fraud): the s.67 (1) (b) of the Insurance Contracts Act, 1984 (Cth) for the existence of the Insurer's Non-Interest Third Party with Interest in the Litigation that has been contracted out between the Insure and Insurer by virtue of Clause 11 of the Master Policy: (the Exception). (a) Can the Exception be enlivened if there exist the Fraud? (b) if the Answer is yes, say why? (c) If the Answer is NO, say why? 2) The Appellant applies to this Court for the Case Stated on the Second Issue on the Premise of the Respondent's Non-Subrogation as per the Fundamental Term of Clause 11 of the Master Policy Contract between Insurer and Insured. a) The decision of the learned Primary Judge (Her Hon. Banks Smith) should be set aside as she had exercised her discretion vested in her by s 5(1) of the ADJR Act 1977 (the Act) without taking into count considerations that she was bound to take into account, in terms of the following questions: Q3: Did the Primary Judge (Her Hon. Banks Smith) fail to take into account that there was no prior finding of Dishonesty or Fraud by the Insured against the Insurer (the Fraud): the s.67 (l) (b) of the Insurance Contracts Act, 1984 (Cth Act) is also relevant for the existence of the Non-Subrogation Rights that has been contracted out between the Insured and Insurer by virtue of Clause 11 of the Master Policy? (a) If the answer is No, say why? (b) If the answer No, say why not? Q4: Did the Primary Judge (Her Hon. Banks Smith) erred in law and facts when she applied the non-applicability of the Long-Established principle at [11] of the Primary Judgement to the Master Policy Contract's Clause 11: because there is already in the prior judgment/findings in these proceedings of the real existence of a Non-Subrogation Rights … (a) If the answer is No, say why not with reference to Non-Subrogation Rights Equals Non-Indebtedness? (b) If the Answer is Yes, say why with reference to how the Respondent's position as Pseud-Debtor can be converted into the allegedly genuine debtor: (b.1) Can the Respondent be capable of attaining false subrogation of rights? (b.2) Can the false subrogation rights be enforced by this court when it is tainted with dishonesty and fraud of the Respondent/Insured (the Fraud-Tainted Subrogation Rights)? (b.3) Can the Fraud-Tainted Subrogation Rights be contrary to public policy of double-dipping that is against the conscience of the members of the public? Q5: If the Answer is Yes to each of the questions in (b.1): (b.2) and (b.3) … and … say why? (a) If the Answer is No to Q.5: … above, say why? 06: Did the learned Primary Judge erred in law and facts when she applied the non-applicability of the Long-Established principle at [11] of the Primary Judgement by ignoring Respondent's first secret bill of costs and the relevant hitherto secret clause 11 of the Master Policy (both remaining undisclosed to the prior courts up until the 8.02.2018) from which UNITES the two missing jurisdictional facts before the Full Court which renders its decision voidable: they are: (A) The Insurer's Non-Third Party with an Interest in the Litigation; (B) The Respondent's Non-Subrogation to claim from the Appellant? (a) If the Answer is yes say why with reference to: a.1: any specific provisions law governing the legal profession in Western Australia in respect of the said secret bill of costs that was undisclosed to the prior courts up until the 8.02.2018: a.2: any specific provisions law governing the relevant applicable Consumer Law; and a.3. the public policy for the enforcement of two foregoing provisions of the law. (b) If the Answer is not say why? Q7: Were the learned Primary Judge entitled to ignore clause 11 of the Master Policy without the consent of the Parties? (a) lf the Answer is yes say why? (b) If the Answer is not say why? Q8: Were the learned Primary Judge entitled to refuse to take into account the relevant considerations of the Respondent's admissible evidence in the form of the Respondents admission before the prior courts dated 8.2.2018 that the Insurer (LMWA) was at all material times NEVER an interested Third Party in all the litigations? (a) lf the Answer is yes say why? (b) If the Answer is NO say why NOT? Q.9: If any of the answers to the preceding questions 1 to 8 is NOT NECESSARY TO ANSWER, say why NOT? … 9 The decision under appeal is a decision of a judge of the Court to dismiss a judicial review application of decisions to decline to accept for filing certain of Mr Cristovao's other interlocutory applications. The appeal has been listed for hearing and directions have just been made. 10 Rule 30.01 of the Federal Court Rules 2011 (Cth), on which the application relies, relates to separate questions being determined in trials. There is no relevant trial. This is an appeal. 11 There is no authority put forward to justify the need or desire for a case stated. I am unaware of any possible precedent for it in these circumstances. This is Mr Cristovao's appeal. Mr Cristovao wishes to proceed with an appeal, the Court has set down an appeal for him, and the matter will duly proceed. I am satisfied that there is no proper basis for, and no purpose would be served by, making the orders. I decline to do so.