FEDERAL COURT OF AUSTRALIA

Cristovao v Registrar Scott [2013] FCAFC 92

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    Mr Cristovao seeks to appeal orders 1 and 3 of three orders made by a judge of this Court. Order 1 dismissed Mr Cristovao’s application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision of Registrar Scott on 24 December 2010 to accept an affidavit for filing. Order 3 was a related costs order. The second order which related to an application for an extension of time to appeal from another decision of a District Deputy Registrar was not the subject of appeal.

2    The focus then is on the decision made by Registrar Scott. This decision arose from the issue of a statutory demand by Mr Cristovao against Forensic Document Examiners Pty Ltd (ACN 118 201 157) (Forensic) seeking payment of $7,865 pursuant to the provisions of Pt 54 of the Corporations Act 2001 (Cth) (CA). The statutory demand was made in respect of a default judgment Mr Cristovao had secured in a Magistrates Court in Western Australia against Forensic. It is unnecessary to go into the detail of the default judgment other than to note that on the following day, 24 December 2010, Forensic applied to set aside the statutory demand pursuant to s 459G CA. It also filed an affidavit to support that application. The affidavit was sworn by its director, Mr Lacroix. The affidavit discussed the detail of the dispute with Mr Cristovao and contended that there was a genuine dispute in relation to the debt which was the subject of demand. Additionally, Mr Lacroix deposed to the fact that Forensic had not been served with the Magistrates Court proceedings and for that reason did not file any defence and, until receipt of the demand, had been unaware of any judgment against it.

3    When the application to set aside the statutory demand came before Registrar Scott on 17 February 2011, it was set aside with the express consent of Mr Cristovao. Registrar Scott adjourned the hearing of the question of costs so as to permit the parties to make written submissions on that question. Submissions were received and on 17 March 2011, Registrar Scott ordered that costs should follow the event and that Mr Cristovao should pay Forensic’s costs. Over two months later, Mr Cristovao filed an application for an extension of time to review that costs order. It was refused with costs on 28 July 2011 by Marshall J. On 11 August 2011, Mr Cristovao sought leave to appeal the orders of Marshall J. That application was heard and refused with costs by Middleton J on 30 September 2011.

4    Mr Cristovao’s attempts continued. On 22 February and 15 March 2012, he attempted to file applications seeking to overturn the original decision by Registrar Scott setting aside the statutory demand even though he had consented to that course. Registrar Scott refused to accept those applications and invited Mr Cristovao to submit a fresh application. On 28 March 2012, Mr Cristovao attempted to a file further application together with an affidavit in support including a request to send the documents to another registry. The documents were forwarded by Registrar Scott to a Deputy District Registrar to determine whether they should be accepted for filing. That District Deputy Registrar refused to accept the documents. That was the subject of review under the ADJR Act before the primary judge but is not the subject of an appeal to this Court.

5    Mr Cristovao then engaged in a sequence of correspondence with various parties including registrars, the former Chief Justice of the Court, with North J and with the Federal Attorney-General. Numerous further attempts were made to file applications and to restrain execution of the costs order against him.

6    However, Forensic in the meantime sought to execute the costs order and took steps to achieve the sale of property owned by Mr Cristovao in Western Australia. That matter was dealt with separately and, again, is not the subject of appeal to this Court.

7    The heart of Mr Cristovao’s complaint is that the affidavit in support of the application to set aside the statutory demand should never have been received.

8    Before the primary judge contentions were raised under subs 5(1)(f), (g) and (h) of the ADJR Act which respectively provide as follows:

5    Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court … for an order of review in respect of the decision on any one or more of the following grounds:

…

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision…

9    The grounds adopted by the primary judge without alteration in support of the application for review were the following:

1.    The failure of the First and Second Respondent to deal with their own errors arising from their own respective Administrative decisions that impinges upon their respective conflict of interests.

2.    The First Respondent cannot be a judge of her own cause arising from the ramifications of her Administrative error of the said Registrar Scott’s decision (the administrative error of the first respondent).

3.    The Second Respondent was in conflict of interests when he was trying to set aright the Administrative error of the First Respondent by refusing to accept for filing the Amended Fresh Applications (the administrative error of the second respondent).

4.    Particulars of Fraud or bad faith rule 31.01(2):

1)    the bad faith between the first and second respondents are indicated in grounds 5.1 and 5.2 above.

2)    The Registrar Scott’s decision has an underlying fraud or bad faith of FDE as indicated at page 6/29 of the Applicant’s letter dated 25.4.2012 at page 2 & 3 in paragraphs 4 through 9 (The Fraud of FDE).

3)    The law makes it mandatory that the fraud of FDE must not remain in the court’s records and that it must be eradicated by unravelling the fraud.

10    Essentially, Mr Cristovao argued that the affidavit filed by Mr Lacroix for Forensic was defective in a number of specified respects including a failure to indicate the State in which it was sworn, the failure to identify the person witnessing the affidavit, the failure to print the name of the witness, the failure to affix the witness’s stamp, the failure to designate the title of the witness and the failure to specify the witness’s ‘digital numbers’. The primary judge considered all these complaints in detail with regard to the Evidence Act 1995 (Cth) and its Schedule as well as Div 29.1 of the Federal Court Rules 2011 (Cth) (the Rules) and the content of Federal Court Form 59.

11    His Honour was not satisfied that there was any relevant deficiency apparent in the affidavit but went further than that to take evidence from both the witness to the affidavit (a Clerk of the List employed the Supreme Court of Tasmania) as well as Mr Lacroix. His Honour was totally satisfied that Mr Cristovao’s application for judicial review was completely without merit (at [54]). He also rejected Mr Cristovao’s argument that he had only discovered the irregularities in the affidavit after the applications before Marshall J and Middleton J were heard. His Honour noted that the very limited irregularities in the affidavit of Mr Lacroix were able to be observed by Mr Cristovao from the date he was served with it. His Honour made it clear that it was not the role of the Court to provide endless opportunities under the guise of a litigant’s right of review and appeal for him to attempt to refine and improve his case simply because he was dissatisfied with the outcome (at [53]).

12    In any event, his Honour noted that even if there were merit in the application, there was no explanation as to why it was substantially out of time, having regard to the time limits within which to seek judicial review as established under s 11 of the ADJR Act. The application to set aside Registrar Scott’s decision of 24 December 2010 was not pursued until 25 July 2012, more than 18 months after the decision to accept the affidavit for filing was made.

13    Ultimately, the complete absence of merit in the application and the substantial prejudice to Forensic were the factors most strongly against granting any extension of time (at [64]).

14    His Honour dismissed the application.

GROUNDS OF APPEAL

15    The grounds of appeal to this Court were confused to say the least. Doing our best we can to discern them, the grounds were that:

1.    the primary judge erred in fact by failing to take into account relevant factors and taking into account irrelevant facts;

2.    the primary judge erred in law by failing to accord Mr Cristovao natural justice ‘by refusing to accept his evidence and his written and oral submissions’;

3.    the primary judge failed to follow the principles of law set out in Director of Public Prosecutions v Marijancevic [2011] VSCA 355 and confused the issues relating to Registrar Scott’s decision with those relating to Registrar Caporale’s decision leading his Honour to dismiss Mr Cristovao’s application contrary to law; and

4.    the primary judge was biased against Mr Cristovao.

16    Mr Cristovao confirmed on the hearing of the appeal that his appeal related only to Registrar Scott’s decision of 24 December 2010. Accordingly, the appeal is well out of time with no suitable explanation for the delay.

PARTICULARS OF APPEAL

17    The heart of Mr Cristovao’s complaint is that the Registrar had a duty to refuse the affidavit of Mr Lacroix filed on 2 January 2013 for filing because of the irregularities (both in form and substance) in the affidavit. At this point it is also relevant to note r 2.27(d) of the Rules which provides that a document will not be accepted for filing if a Registrar has refused to accept the document – here the affidavit. Mr Cristovao’s remedy appears to lie in r 3.04 of the Rules which provides that a person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do. We have assumed, without deciding, that the ADJR Act was available to Mr Cristovao to challenge the Registrar’s decision. However it is to be noted that the most obvious avenue of review is already set out in the Rules.

18     For reasons not explained, many of the particulars of the grounds are struck out but, in any event, it was apparent that Mr Cristovao felt aggrieved by the receipt of the affidavit for filing, not only because the affidavit suffered from irregularity but also because its content was asserted to be false. There is no acceptable or admissible evidence to support the assertion that the content of the affidavit is false.

19    Although much of the argument before us was focussed upon the alleged falsity of the content of the affidavit for which there was no admissible support, in any event, it is difficult to see how the Registrar could possibly be challenged for accepting an affidavit for filing in circumstances where the content of the affidavit was false. There is no possible basis upon which a Registrar or other court officer could be expected to anticipate the falsity. (It would be a more frequent complaint that filing of an affidavit was refused.)

20    As to the formalities, these issues were examined in great detail by the primary judge and found to be entirely lacking, alternatively, well within the scope of r 29.06 of the Rules which provides that an affidavit may be accepted for filing in this Court despite an irregularity in form. The primary judge quite correctly concluded (at [47]) that any irregularity in the swearing of the affidavit was not sufficiently serious such that the only acceptable course was for the Registrar to refuse to accept it for filing.

Other documents relied upon in support of the appeal

21    In addition to speaking to his grounds and particulars of appeal, Mr Cristovao relied upon a facsimile transmission dated 15 May 2013 to the Court. This document appears to make the submission that even if the grounds of appeal did not succeed, it should not be possible to claim legal costs for solicitors’ time spent when those solicitors had not been appointed by Forensic.

22    This is a topic which has no place in the grounds of appeal and is, in any event, quite unsupported. The costs order under attack in the appeal was simply an order that costs should follow the event on the setting aside of the statutory demand. There is no evidence before us that the solicitors for Forensic were not duly appointed at the time they acted upon Forensic’s application to set aside the notice of demand. Further, it is by no means apparent that there should be any obligation for an applicant as distinct from a respondent company to file any such notice in the Court.

23    The second document relied upon on the arguing of the appeal was a ‘notice’ dated 21 May 2013 which, in substance, sought to appeal the orders of Middleton J. No plausible grounds to support that proposed appeal were filed. A document dated 21 May 2013 and faxed to the Court on the same day was entitled:

APPELLANT’S OUTLINE OF ARGUMENTS IN SUPPORT TO THE NON-EXISTENCE OF SOLICITORS ALLEGEDLY APPOINTED BY RESPONDENT, AND INVALIDITY, VOIDABILITY, ILLEGALITY AND FICTIONAL NATURE OF THE IMPUGNED COSTS ORDERS OF REGISTRAR SCOTT DATED 17.03.2011 FOR HEARING BEFORE THE PANEL OF JUDGES SCHEDULE ON 24.05.2013 (original formatting)

24    Mr Cristovao also spoke to this document but one topic aside, raised no other matter beyond the arguments alluded to above. The additional matter was an indication that the presiding judge of this Court should, in substance, recuse himself.

25    Mr Cristovao was taken directly to that submission in the course of advancing arguments on his appeal. In response Mr Cristovao made it abundantly clear that he had no objection to the presiding judge sitting on the appeal and proffered his apology which the presiding judge made clear on two occasions was unnecessary.

26    In an affidavit filed on 20 May 2013 Mr Cristovao submitted (at [3]) that the primary judge had denied him ‘equal justice before the law’. He set out the examples of such ‘denial’ in his affidavit and made clear in his arguments that they were the only examples on which he was relying. The first example was where the primary judge said (at p 14 of the transcript):

… I am not going to allow you to cross-examine or to make submissions which go to the merits of the dispute between you and [Forensic] going back for many, many years as to who was right and wrong in what you said and what he said in those various affidavits.

27    As to the last complaint, namely, alleged bias, we should say at once that we see no evidence whatsoever of bias or even ostensible bias on the part of the primary judge who accorded Mr Cristovao far more opportunity to advance his case and to demonstrate his complaints than was required in the circumstances. To the extent that it was asserted that there was bias on the part of the primary judge or apprehended bias, it is plain that these assertions are supported only by the contention that his Honour reached a conclusion which differed from that advanced by Mr Cristovao. In relation to that, Mr Cristovao submitted that the primary judge was not bringing an impartial mind to the issue. We reject this submission. There is nothing in what his Honour says which supports such a contention.

28    Mr Cristovao in his affidavit then referred to a passage (at p 15 of the transcript) in which his Honour said:

No, I won’t allow that question, Mr Cristovao … if it is deficient it’s a matter for me not for him.

29    As to that, Mr Cristovao again complained of bias. Again, it does not afford any basis for such a contention.

30    A complaint was also raised about the comment of the primary judge (at p 8 of the transcript) where his Honour said:

[It] is perfectly clear, without you asking him any questions, that his address is not there, a legible version of his signature is not there and each page is not signed by Mr Lacroix. So there is no need to ask those questions.

31    Mr Cristovao complained that the primary judge was applying two sets of laws, ‘one for the RICH and the other for the POOR’. There is no substance in this submission.

32    A complaint was also made that the deponent to the affidavit referred in his evidence to spending time with the solicitors for a period of almost 10 hours working on preparing the affidavit having only received the statutory demand the day before. On examining the bill of costs, it was contended that a period of 10 hours could not be supported by reference to the bill of costs. Once again, while this was not a topic in respect of which there is any admissible or supportable evidence, it was plainly not an issue on the appeal before us, was not apparently part of the review by the primary judge, is otherwise explicable and was irrelevant to the notice of appeal.

SUBMISSIONS MADE FOLLOWING THE HEARING

33    For completeness, we note that following the hearing of the appeal, Mr Cristovao faxed a two page letter to the Court on 1 July 2013. This letter contained submissions to the effect that the decision of the High Court of Australia in The Queen v Davison (1954) 90 CLR 353 precluded the Registrar from exercising judicial power and making a costs order against him. Mr Cristovao submitted that at the time of making the costs order the Registrar was not a judicial officer and had no jurisdiction to make any judicial determinations; rather she was a court functionary who could only make administrative decisions.

34    Even if Mr Cristovao had been given leave to file supplementary written submissions following the hearing of the appeal which essentially raised a new point that was not ventilated before the primary judge (which he was not), given his self-represented status without the benefit of a contradictor, it is beneficial to set out the difficulties with this line of attack. They are summarised in Conlan v Pratt (No 2) [2013] FCA 105 where McKerracher J noted (at [8]):

This point of law has been re-visited on a number of occasions in a series of cases dealing with the question of delegation of judicial power. The High Court has repeatedly held under Ch III of the Constitution judicial power may be delegated providing that the delegation is subject to the supervision and control by Ch III judges: see Harris v Caladine (1991) 172 CLR 84 and Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 150 CLR 49. In addition in other courts, mainly this Court, see also Amos v Monsour Pty Ltd (formerly Monsour Legal Costs Pty Ltd) [2010] FCA 741; Totev v Sfar (2008) 167 FCR 193; Re Socket Screw & Fastener Distributors (NSW) Pty Ltd (in prov liq) (1994) 51 FCR 599; Taylor v Deputy Commissioner of Taxation (Cth) (1999) 42 ATR 220; Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554 and on appeal in Chisholm v Official Trustee in Bankruptcy [2000] FCA 1234.

35    The Federal Court of Australia was created by the passing of the Federal Court of Australia Act 1976 (Cth) (FCA). The relevant section of that legislation is s 35A FCA which is entitled ‘Powers of Registrars’:

(1)    Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:

…

(f)    the power to make an order as to costs; …

(2)    A Registrar shall not exercise the powers referred to in paragraph (1)(f) except in relation to costs of or in connection with an application heard by a Registrar.

36    The relevant costs order was made by Registrar Scott on 17 March 2011. The relevant instrument of delegation in force at 17 March 2011 was signed by Gray J on 6 July 2010, where pursuant to s 35A(1) FCA, he delegated particulars powers to Registrar Scott including the power to make costs orders. As the proceeding was a substantive proceeding before Registrar Scott, she was entitled by s 35A(2) FCA to make the costs order of 17 March 2011.

37    Indeed, Mr Cristovao’s unsuccessful interlocutory application to seek an extension of time to review Registrar Scott’s costs decision, which was the subject of Marshall J’s decision in Forensic Document Examiners Pty Ltd v Cristavao [2011] FCA 843, illustrates how the Registrar’s powers in this particular instance were subject to supervision and review by a judicial officer.

38    In short Davison does not assist Mr Cristovao, but in any event, as noted (at [17]) there is constitutional protection of judicial power achieved by a full review from a decision of a registrar to a judge pursuant to r 3.04 which in a practical sense with a very fulsome hearing, was the power exercised by the primary judge.

CONCLUSION

39    There being no basis upon which the appeal could succeed, the appeal must be dismissed. It is unnecessary to make any order as to costs as the respondent has submitted to any order the Court may make in the proceeding and does not wish to be heard on any relevant question of costs. The following order is made:

1.    The appeal is dismissed.

Associate:

Dated:    16 August 2013