FEDERAL COURT OF AUSTRALIA

Cristovao v Registrar Trott [2019] FCAFC 88

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1    This is an appeal from the decision of a judge of this Court made on 26 October 2018 in which her Honour dismissed an application for the review of a number of decisions of several Registrars of this Court.

2    In so far as they are relevant, those decisions were to refuse to accept certain documents for filing which had been lodged by the appellant, Mr Cristovao. Those documents were interlocutory applications, sometimes accompanied by affidavits, seeking to vary or set aside orders of the Full Court of this Court. He also sought review of letters sent by the first and second respondents on 17 and 27 April 2018 respectively, in which his requests for the provision of legal advice were denied. Those letters were neither decisions nor reasons for decisions and we will return to them shortly.

3    The litigation history of this matter has been set out in the decision of the learned primary judge and there is no need to repeat it. It suffices to observe that Mr Cristovao had pursued his former solicitors for professional negligence and failed. Costs were ordered against him and, after substantial litigation, a sequestration order was made based on the non-payment of those costs. That order was appealed, but the Full Court dismissed the appeal: Cristovao v Tan & Tan Lawyers [2018] FCAFC 41. There is no need to recite the grounds on which it did so, but it would appear they were palpably correct.

4    The judgment of the Full Court was entered on 29 March 2018.

5    On 3 April 2018, Mr Cristovao filed the first of his interlocutory applications to set aside the Full Court’s orders. The application was purportedly made pursuant to r 39.04 of the Federal Court Rules 2011 (Cth) which provides that the Court may vary or set aside a judgment or order before it has been entered.

6    On 4 April 2018, a Registrar of this Court wrote to Mr Cristovao and advised that as the judgment orders had been entered they could not be set aside pursuant to r 39.04. It was also noted that no affidavit was filed with his application, as might be required by r 17.01(1)(b).

7    On 9 April 2018, a further interlocutory application was filed seeking the same relief. This application was accompanied by an affidavit.

8    On 10 April 2018, a Registrar of this Court wrote to the appellant and advised him that his documents would not be accepted for filing. Extensive correspondence followed.

9    The appellant filed further applications on 23 April 2018 and on or about 16 May 2018. Neither was accepted for filing, as conveyed in letters from Registrars of 2 and 16 May 2018.

10    For the purposes of the application for review and this appeal it would appear that the decisions in issue are those evidenced by the Registrars’ letters of 4 and 10 April 2018 and 2 and 16 May 2018. As we have mentioned, the letters of 17 and 27 April 2018 will be dealt with separately.

11    In refusing to accept Mr Cristovao’s documents, the Registrars of this Court relied upon r 2.26 of the Federal Court Rules which provides:

2.26 Refusal to accept document for filing—abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

  (a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.    

The application to the Federal Court

12    As mentioned Mr Cristovao sought judicial review by the Federal Court of the decisions of the Registrars to refuse to accept his documents for filing. There is no need to traverse the reasons of the learned primary judge as they are discussed below in the consideration of the appeal. It is sufficient to observe that the primary judge found no merit in any of the grounds advanced by Mr Cristovao and the application was refused.

Appeal to the Full Court

13    Mr Cristovao now appeals to this Court. He appeared today unrepresented but with the assistance of an interpreter. Although due consideration and assistance has been given to Mr Cristovao because he is unrepresented, that status does not found any basis for not applying the rules relating to the manner in which appeals are determined. In this respect it must be borne in mind that the object of an appeal is to correct error in the judgment appealed from. In ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099, Flick J summarised the position as follows:

[11]    The nature of an appeal to this Court, as is now well-established, is in the nature of a “rehearing” and is a jurisdiction to be exercised for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20] to [21]; (2001) 117 FCR 424 at 434 to 435 (“Branir”). In commenting upon Branir and other decisions of this Court, Griffiths, Kerr and Farrell JJ in Minister for Immigration & Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at 13 to 14 (“SZVFW”) have helpfully summarised the position as follows:

[40]    It is important to now say something about the nature of the appeal. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings …

[41]    It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd; (2001) 117 FCR 424 (Branir) at [21] in such a case there is a “need to show error on appeal”. It is desirable to set out in full that paragraph from his Honour’s judgment (noting that Drummond and Mansfield JJ agreed with it):

However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge’s findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.

[42]    The need to identify appealable error in an appeal by way of rehearing and the incorrectness of an approach which simply invites the Full Court to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister, is reflected in the following passage from the joint judgment of Siopis, Gilmour and Katzmann JJ in Mesa Minerals Ltd v Mighty River International Ltd; (2016) 241 FCR 241 at [85] (which, notably, refers approvingly to Allsop J’s observations in Branir):

In effect, Mesa sought to re-run the case it lost below. Yet, the appeal is in the nature of a rehearing; it is not a hearing de novo. The Court’s task is to correct error. The determination of the question of whether Mighty River was acting in good faith and the inspection was sought for a proper purpose was largely an evaluative one. The primary judge’s decision is entitled to be given some weight. Where, as here, the nature of the issues is such that there cannot be said to be one truly correct answer, the availability of a different view or a preference for a different view, is unlikely to be sufficient: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [25] per Allsop J (as his Honour then was), Mansfield and Drummond JJ agreeing. As Allsop J went on to explain at [30]:

The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without “essaying the necessary task of positively demonstrating that the trial judge was wrong”… It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated … The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place.

Matters arising on appeal

14    It was correctly accepted by the learned primary judge that the Registrars’ letters of 4 and 10 April 2018 and 2 and 16 May 2018 reflected the making of decisions for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) and her Honour dealt with the matter on that basis. The application was also considered as an application for review under s 39B of the Judiciary Act 1903 (Cth).

15    In her reasons the learned primary judge identified the grounds on which the appellant advanced his argument however her Honour noted the insurmountable difficulty faced by the appellant in pursuing his application under r 39.04, being that the judgment had been entered on 29 March 2018, which was prior to the filing of the first of Mr Cristovao’s applications.

16    In any event her Honour observed, and correctly in our opinion, that the power in r 39.04 to set aside a judgment or order is only used if the court is concerned that it has proceeded on a wrong basis or where there is some matter calling for review: 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) 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.

17    In that last mentioned case the High Court observed 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.

18    Here, as the orders of the Full Court had been entered, as at the date of the filing of the appellant’s applications r 39.04 could not apply. Although Mr Cristovao had suggested that he made some assertion when judgment was delivered that he would seek to set it aside, the fact is that he made no such application until it was too late.

19    Her Honour then considered the exercise of power by the Registrars under r 2.26 to refuse to accept a document if he or she is satisfied that the document is an abuse of process or is frivolous or vexatious. That rule requires the Registrar to form an opinion as to whether the document sought to be filed meets either of the identified criteria. As her Honour observed there was nothing shown by the appellant to suggest that the Registrars did not actually and honestly form the opinions that the appellant’s applications and affidavits constituted an abuse of process or were frivolous and vexatious.

20    We agree with her Honour’s reasons on that point and Mr Cristovao did not identify any error in those reasons. We also agree with the conclusion of the learned primary judge (at [45]-[46]):

45    … 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.

21    We also agree with the observations of her Honour to the effect that, although r 2.26 refers to a finding that is to be made on the face of the documents lodged, the rule clearly permits Registrars to have regard to the content of the file of the Court in relation to the matter in which the document is filed, including any judgment delivered in it. Were it otherwise the Registrars would be denied knowledge of the orders which gave rise to the application. The orders and the fact that they were properly entered inform the context in which the Registrars make their decision: Shaw v Buljan (2016) 153 ALD 252, [55].

22    Moreover, the power in r 2.26 is conferred on those who maintain, organise and keep the files of the Court and it is directed to them in that capacity. Their office requires them to be knowledgeable of the contents of each file and, as part of the administrative framework of the Court, they can be assumed to know that information.

23    The learned primary judge also considered whether Mr Cristovao’s application could have succeeded under r 39.05 even though no relief to that effect was sought. However, as there was no evidence to support any of the grounds identified in that sub-rule, her Honour was right to identify that no support could be garnered from there either.

24    The above considerations disclose that the exercise of power under r 2.26 was within the scope of the rule. Indeed, it can be said with confidence that, given the circumstances, the Registrars were right to refuse to accept the documents for filing as the hearing of any application would have been futile.

25    Her Honour dealt with a number of arguments advanced by Mr Cristovao in relation to the matters under s 5(1) of the AD(JR) Act, but none had any merit. The appellant has not shown any error in the primary judge’s reasons in that respect. Indeed, it can be said that he did not attempt to do so.

26    Frequently during the course of the hearing Mr Cristovao’s argument circled back to his fundamental complaint that he ought not to have been required to pay the costs ordered against him because the party in whose favour the order was made was indemnified by an insurer. He claimed that this amounted to double-dipping on their part. Although it is apparent that he believes the substance of his argument, it is misconceived. The primary judge’s reasons carefully and patiently identified why that was so. Indeed, this was an argument dealt with in detail by the Full Court in Cristovao v Tan & Tan Lawyers [35]-[44] as follows:

35 Here, the reasons relied upon to contend the costs judgment was a nullity were misconceived. This is for at least two reasons.

36 The first is that the Rule had no application. As is evident from its text (see [15] above), the Rule is directed to ensuring that the Court is apprised of the funding or the exercise of third party control over a proceeding and provides that those exercising control are subject to the requirement under the Rules of the Supreme Court to cooperate in conducting cases in accordance with what in this Court is referred to as the “overarching purpose”: see s 37M(1) of the FCAA. Additionally, there was no reason to doubt the conclusion of the Court of Appeal that the Rule simply had no application to the Magistrates Court proceeding.

37 The second reason is more fundamental: this is the flaw in the related argument advanced by the appellant that there can be no costs owing to the respondent because it has been indemnified by LMWA and LMWA has paid any costs of the respondent. Although counsel for the respondent did not provide any detailed oral or written submissions on this argument advanced by the appellant, the reasons why the appellant’s argument is misconceived should be explained in some detail.

38 Fundamental to the recovery of costs is the principle (often traced to Harold v Smith [1860] 5 H & N 381; 157 ER 1229 and Gundry v Sainsbury [1910] 1 KB 645) that if a party to an action has an agreement with a solicitor that the party will not have to pay any costs, then that party cannot recover party and party costs against the adversary. As Barrett J said in Wentworth v Rogers [2002] NSWSC 709 at [35], the “existence of a liability of the client to pay costs lies at the centre of [the] concept [of party and party costs]”.

39 It follows, as McHugh J noted in Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 595:

Since a party cannot recover costs if that party is not liable in any circumstances to pay his or her solicitors’ costs, the taxing officer had to determine whether there was an agreement between the respondents and their solicitors that the respondents would not have to pay their solicitors’ costs in any event.

(Citations omitted)

40 The argument of the appellant that this principle means that where a successful litigant is entitled to a costs indemnity from a third party, costs cannot be recovered against the unsuccessful litigant, as this would result in a breach of the indemnity principle, has been rejected on numerous occasions: see, for example, New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR(NSW) 50; Adams v London Improved Motor Coach Builders, Limited [1921] 1 KB 495 and, perhaps most relevantly for present purposes, McCullum v Ifield [1969] 2 NSWR 329.

41 In McCullum, Taylor J held that a defendant who had not incurred any liability for costs to his solicitor (as the solicitor was retained by the defendant’s third party insurer, the Government Insurance Office), was nevertheless entitled to recover the costs of the litigation against the plaintiff. This is an apposite analogy to the present circumstances.

42 The relevant principles were the subject of detailed examination by the New South Wales Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 where McColl JA, after a thorough review of over 100 years of common law concerning the application of the indemnity principle, concluded (at 220 [95]) that the principle would not prevent the recovery of adverse costs, provided there was a third party “with an interest in the litigation [who incurred costs] in proceedings brought in another’s name”. Essentially this was because, as explained at 219-220 [93]:

…“costs” was understood as an indemnity to the real party bringing the action without regard to the “liability of the nominal party, whose name must necessarily appear on the record”. In such cases the indemnity principle operated on the substance rather than the form to produce a sensible and just result.

43 Hence if the ‘real’ party who incurred the costs of litigation had an “interest in the litigation”, party and party costs may be rightfully recovered. McColl JA did not elaborate upon what constitutes an “interest in the litigation”, but consistent with McCullum, such interest will plainly be established by the contractual (or in that case statutory) obligation to indemnify an insured for judgments and settlements on claims in respect of which the insurer is on risk and where the insurer is under a statutory or contractual liability “to indemnify a defendant against all costs and expenditures of and incidental to the proceedings” and thereby exercises “its right to defend the proceedings in the defendant’s name”: see McCullum at 331.

44 The appellant’s long expressed concern has no foundation in the principled application of the indemnity principle and the primary judge was not in error in not going behind the costs judgment even if he had been expressly asked to do so at the s 52(1) stage (which he was not).

27    The appellant has not shown any reason why that conclusion of the Full Court was not correct. Indeed, to those authorities may be added the decision in Coshott v Woollahra Municipal Council [2008] NSWCA 176 as applied in Noye v Robbins [2010] WASCA 83 at [326]-[328] (Owen JA, Buss JA agreeing) which concerned payment of legal costs as part of a solicitors mutual scheme where the indemnity principle did not prevent the recovery of legal costs paid by the scheme.

28    Mr Cristovao also claimed that the circumstances of his case were the same as those considered in Lowbeer v De Varda [2018] FCAFC 115 which was a decision delivered after that of the Full Court in Cristovao v Tan & Tan Lawyers. A claim of that kind would not provide a proper basis for an application to set aside the decision of the Full Court. However, in any event, the circumstances in Lowbeer were quite different. In Lowbeer a petition for a sequestration order based upon an alleged debt arising under a costs order was dismissed. On appeal, it was held that the primary judge had not been shown to be in error in finding that there were substantial reasons to question whether in truth and reality the petitioning creditor who obtained the costs order had any liability to pay legal costs because of evidence that another party (the Congregation) was the only party liable to pay the legal costs.

29    The reasons of the Full Court in Cristovao v Tan & Tan Lawyers were correctly adopted by the learned primary judge and there is no merit in Mr Cristovao’s argument that he was not indebted to Tan & Tan Lawyers in the amount relied upon by them to found the sequestration order.

30    To the above it can be added that, even if it were the case that his arguments that he was not indebted to Tan & Tan Lawyers had some merit, it is now far too late to consider them. The issue of whether he was so indebted was finally determined by the decision in Cristovao v Tan & Tan Lawyers and there was no appeal from that decision. It follows that the issue is now settled and cannot be reopened, even by the raising of new arguments which had not come to mind earlier.

Registrars’ obligations to give advice

31    Part of the appellant’s written argument was to the effect that the Registrars of the Court were obliged to provide him with legal assistance and they failed to do so. He complained that the letters from the first and second respondents to him on 17 and 27 April 2018 should be reviewed as erroneous decisions not to provide him that advice. However, that argument was also misconceived. First, as her Honour correctly observed, neither of those letters amounted to a decision under an enactment and nothing in them was subject to review under the AD(JR) Act or s 39B of the Judiciary Act. Secondly, whilst the Registrars of the Federal Court might provide advice as to the administrative workings of the rules, such as advising litigants-in-person they have used the wrong form and which is the correct one, it is not part of their function to provide legal advice. That rule applies in relation to litigants in person as much as to legal practitioners. Here the Registrars acted entirely properly in informing Mr Cristovao of their decision and the reasons for it. They were right to decline to respond to the numerous questions asked of them. Each responded to legitimate queries raised by Mr Cristovao, and provided an explanation as to why it was not appropriate for the Registry to give him legal advice. He was given all the assistance which ought to have been provided. Mr Cristovao made a number of allegations which speculated as to the reasons as to why he was not given assistance by the Registry. None of them had any substance. They were, as her Honour observed, spurious, and her Honour was right to reject them.

Conclusion

32    In summary, on the hearing of the appeal Mr Cristovao sought merely to re-agitate the arguments which he had advanced to the learned primary judge. He made no real attempt to identify any error in her Honour’s reasons. We are satisfied that none exists.

33    It follows that Mr Cristovao has not shown that the decision of the learned primary judge was attended with any error. The appeal must be dismissed.

34    There is no reason why the appellant should not pay any costs of the appeal, noting that the respondents filed submitting appearances.

Postscript

35    Subsequent to the hearing of the appeal Mr Cristovao sent to the Court an email in which he sought to make further submissions concerning the substance of the appeal. It is inappropriate for the Court to receive or consider those uninvited submissions. Unless otherwise ordered, the hearing of matters is to occur in open Court and not through correspondence. We do not deal with those additional submissions.

Associate:

Dated:    30 May 2019

SCHEDULE OF PARTIES