FEDERAL COURT OF AUSTRALIA

Cristovao v Registrar Caporale [2012] FCA 1329

THE COURT ORDERS THAT:

1.    The application for review of the decision of Registrar Scott of 24 December 2010 to accept an affidavit for filing is dismissed.

2.    The application for an extension of time within which to bring an application for review of the decision of District Deputy Registrar Caporale of 18 April 2012 is refused.

3.    The Applicant pay the Respondent’s costs.

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

THE COURT ORDERS THAT:

1.    The application for injunctive relief is dismissed.

2.    The Respondent, Mr Cristovao, to pay the Applicant's costs.

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

REASONS FOR JUDGMENT

1.    introduction

1    There are two applications listed for hearing before the Court.

The ADJR application

2    In proceeding TAD 27 of 2012 the applicant, Mr Rogerio Cristovao, seeks judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) of two separate decisions by registrars of this Court, and also seeks an extension of time within which to make the substantive application (“the ADJR application”).

3    The first registrar's decision which Mr Cristovao seeks to review is the decision of Registrar Scott on 24 December 2010 to accept for filing an affidavit sworn on 24 December 2010 by Mr Adrian Lacroix, the director of Forensic Document Examiners Pty Ltd (“Forensic”). Mr Cristovao says that the affidavit was not properly sworn and therefore the registrar should not have been allowed it to be filed.

4    The second registrar’s decision which is the subject of review is the decision of District Deputy Registrar Caporale on 18 April 2012 to refuse to accept for filing an application by Mr Cristovao dated 28 March 2012, which sought to set aside a costs order made by Registrar Scott on 17 March 2011.

5    For the reasons I set out below, the application for judicial review of each of the decisions must fail.

The application for injunctive relief

6    In proceeding TAD 56 of 2010 Mr Cristovao seeks injunctive relief to restrain the sale of his interest in a property in Western Australia which was proposed to occur in execution of Registrar Scott’s costs order on 17 March 2011. I note though that an urgent application for injunctive relief in essentially the same form was made on 10 September 2012. On 11 September I heard and dismissed that application and published my reasons: Cristovao v Scott [2012] FCA 1009. I therefore consider that the application for injunctive relief in TAD 56 of 2010 has already been heard and determined.

7    Having said this, insofar as there might be argued to be some residual question to be determined in relation to this application, the application must fail. For the reasons I set out below, there is no basis for a grant of injunctive relief to Mr Cristovao.

2.    The procedural history

8    On 23 December 2010 Mr Cristovao issued a statutory demand against Forensic, a Tasmanian company, seeking payment of $7,865 pursuant to Part 54 of the Corporations Act 2001 (Cth). The statutory demand was in respect of a default judgment Mr Cristovao had obtained in the Western Australian Magistrates Court against Forensic. The alleged debt arose out of work Forensic had performed for Mr Cristovao for legal proceedings he was involved in against his former lawyer.

9    All of the legal proceedings which have since ensued arise out of the issue of the statutory demand.

10    On 24 December 2010 Forensic filed an application in proceeding TAD 56 of 2010 in this Court, seeking to have the statutory demand set aside pursuant to s 459G of the Corporations Act. It filed an affidavit in support of its application, sworn on that day by its director Mr Lacroix, which detailed the history of its dispute with Mr Cristovao and asserted a genuine dispute in relation to the demand (“Mr Lacroix’s Affidavit”). Mr Lacroix deposed that Forensic was not served with the Magistrates Court proceedings and therefore did not file a Defence, and that Forensic was unaware that judgment had been entered against it. The question as to whether this affidavit was properly sworn is central to Mr Cristovao’s applications.

11    Forensic’s application to set aside the statutory demand came before Registrar Scott on 17 February 2011. By consent the statutory demand was set aside and Registrar Scott adjourned the hearing of the question of costs, allowing the parties to make written submissions on that question. On 17 March 2011, following receipt of the submissions on costs, Registrar Scott ordered that Mr Cristovao pay Forensic’s costs (“Registrar Scott’s Costs Order”).

12    On 27 May 2011 Mr Cristovao filed an application for an extension of time in which to seek review of Registrar Scott’s Costs Order. The application was heard by Marshall J and on 28 July 2011 his Honour dismissed the application and ordered costs against Mr Cristovao.

13    Marshall J held that by the consent order to set aside the statutory demand Forensic had achieved the relief it sought in the substantive proceeding before Registrar Scott. As a result it was entitled to be considered the successful party for costs purposes. His Honour found that Mr Cristovao had advanced no material establishing special circumstances justifying departure from the ordinary rule that costs follow the event, citing Ruddock v Vardalis (No 2) (2001) 115 FCR 229 (“Ruddock v Vardalis”) at [9], [10] and [18]. His Honour considered that as there was no basis upon which the Court would exercise its discretion other than in accordance with Registrar Scott’s Costs Order there was no utility in granting Mr Cristovao an extension of time within which to file his motion for review of that order: see Forensic Document Examiners Pty Ltd v Cristovao [2011] FCA 843.

14    On 11 August 2011 Mr Cristovao filed an application for leave to appeal against the orders of Marshall J. The application was heard by Middleton J on 30 September 2011 and his Honour dismissed it and ordered costs against Mr Cristovao: see Cristovao v Forensic Document Examiners Pty Ltd [2011] FCA 1131.

15    Justice Middleton found no error in Marshall J’s consideration and application of the relevant principles as set out in Ruddock v Vardalis and no error in his Honour’s exercise of the discretion in not granting an extension of time. His Honour considered and rejected Mr Cristovao’s various grounds of appeal, finding that Registrar Scott made the relevant costs order after considering the parties’ submissions. He noted that Marshall J had in any event effectively reviewed Registrar Scott’s decision and found it to be correct. Justice Middleton affirmed Marshall J’s finding that there was no basis upon which the Court would exercise its discretion other than to make a costs order to the same effect as that made by Registrar Scott.

16    His Honour also considered the circumstances behind Mr Cristovao’s consent to the setting aside of the statutory demand. Having expressed a concern as to whether or not Mr Cristovao had in fact consented to the order setting aside the statutory demand “as a package” – that is, on condition that there also be no order as to costs – his Honour called for submissions from the parties on this question. Justice Middleton found that even on his own material Mr Cristovao was aware that the setting aside of the statutory demand was to occur by consent on the basis that, while he did not agree to pay the costs, he was prepared to have the question of costs argued at another time. This was the procedure that was in fact followed. His Honour was satisfied that Mr Cristovao consented to the terms of the order made by Registrar Scott and was aware of the processes put in place as to the determination of the question of costs. His Honour found that there was nothing in the evidence and submissions of Mr Cristovao to indicate that he had suffered any unfairness in the process.

17    On 22 February and on 15 March 2012 Mr Cristovao attempted to file applications which sought to overturn Registrar Scott’s order of 17 February 2011 setting aside his statutory demand. Registrar Scott refused to accept these applications for filing. In a letter to Mr Cristovao dated 23 February 2011 Registrar Scott set out her reasons as being that:

(a)    it was unclear whether the applications sought review of the order or just sought to have it set aside;

(b)    no extension of time was sought despite the applications for review being out of time; and

(c)    if they were only applications to set aside the order, and not also for review, the legislative basis of the Court’s jurisdiction to hear the applications and grant the relief sought would need to be set out in an affidavit in support of the application.

Registrar Scott invited Mr Cristovao to submit a fresh application for filing.

18    On 28 March 2012, Mr Cristovao attempted to file another application together with an affidavit in support, which included a request to send the documents to another registry. The documents were forwarded by Registrar Scott to Deputy District Registrar Caporale to decide whether they should be accepted for filing. Deputy District Registrar Caporale refused to accept the documents. In a letter dated 18 April 2012 he returned the documents to Mr Cristovao and set out his reasons. He relied on r 2.26 of the Federal Court Rules 2011 (“the Rules”) for his decision. This rule provides:

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.

19    Deputy District Registrar Caporale said:

…I am satisfied that the documents are an abuse of the process of the Court and vexatious, for the following reasons:

•    the Application in a case is, in reality, an application to review Registrar Scott’s costs order made on 17 March 2011. You have already attempted to review that order, with Justice Marshall ordering on 28 July 2011 that your application for an extension of time within which to review that order be dismissed and your application for leave to appeal against Justice Marshall’s orders were dismissed by Justice Middleton on 30 September 2011;

•    you were given an opportunity to make submissions to Registrar Scott before she made the costs order and, accordingly, you filed submissions on 10 March 2011. Those submissions do not include any submissions in relation to Mr Lacroix’s affidavit sworn on 24 December 2010; and

•    the Magistrates Court (Civil Proceeding) Act 2004 (WA) has no application to proceedings in this Court.

Enclosed with this letter are the documents (original and copy).

May I suggest that you seek legal advice in relation to any review that might be available to you in respect of my decision made pursuant to rule 2.26 of the Federal Court Rules 2011.

20    Mr Cristovao then wrote to registrars of the Court on numerous occasions, often also copying in to his correspondence or writing directly to the Chief Justice, North J and the Federal Attorney General. He made further attempts to file applications to set aside the earlier orders and to restrain execution of the costs order against him. Filing of these applications was also refused.

21    In the meantime Forensic sought to execute Registrar Scott’s Costs Order. Mr Cristovao is a resident of Western Australia and is or was the joint owner of a home in Beaconsfield in that state. On 30 April 2012 Baycorp (WA) Pty Ltd wrote to Mr Cristovao advising him that Forensic had instructed it to proceed with the sale of his interest in the property in execution of a sale and seizure order.

22    On 25 July 2012 Mr Cristovao filed the two applications which are now before the Court. The first is the application in TAD 27 of 2012 for judicial review of the two registrar’s decisions referred to above, including an application for extension of time. The second is an interlocutory application in TAD 56 of 2010 to restrain execution of Registrar Scott’s Costs Order. Both TAD 56 of 2010 and TAD 27 of 2012 were docketed to Middleton J.

23    On 31 August 2012 Middleton J made orders listing the matters for hearing on 21 September 2012 and for the filing of evidence and submissions. However by facsimile dated 2 September 2012 Mr Cristovao raised the question of apprehended bias based on his Honour’s earlier refusal of leave to appeal from the orders of Marshall J. The proceedings were removed from Middleton J’s docket to be allocated to another judge of the Court, and were then allocated to my docket.

24    On 10 September 2012, Mr Cristovao made an application for urgent injunctive relief to restrain the sale of his interest in his home in Beaconsfield, Western Australia. The application was made by letter and suffered from many irregularities. Even so, it was plainly urgent as the sale of Mr Cristovao’s Beaconsfield property was listed for 12 September 2012.

25    I heard this urgent application outside usual court hours on 11 September 2012. Forensic appeared by its director, Mr Lacroix, as the contradictor to Mr Cristovao’s application. As I have already indicated I refused injunctive relief to restrain the sale. However it appears that the sale did not proceed in any event, being restrained by a contemporaneous application in the Family Court apparently brought by Mr Cristovao’s wife.

3.    the application FOR JUDICIAL REVIEW

Application by Mr Lacroix to appear for Forensic

26    Forensic sought leave to be represented by Mr Lacroix although he was not legally qualified. I decided to grant leave for him to appear on the company’s behalf pursuant to r 1.34 as I consider it in the interests of the orderly disposition of the application that the company be represented. The company is not before the Court unable to represent itself out of choice, but as the contradictor to the applications. Mr Lacroix states that Forensic is effectively unable to afford a lawyer as a consequence of funding its defence of this litigation to date. Mr Lacroix’s participation was of assistance to the Court because he is a director of the company and he has a detailed knowledge of the facts relevant to the applications. He is also the deponent of the affidavit which is central to the dispute.

Application by Mr Chin to appear for Mr Cristovao

27    Mr Cristovao sought leave for Mr Nicholas Chin to appear on his behalf on the basis that his English was poor and the Court would not be able to understand his submissions unless assisted by Mr Chin. The application was made on the basis that Mr Chin would appear as a friend of the Court. This is not however a correct characterisation of the role which Mr Chin sought to play. He was seeking to appear and represent Mr Cristovao’s interests and as person who was not licensed to practice in law, the only capacity in which he could purport to do so was as a “McKenzie friend”.

28    The principles regarding the Court’s discretion to allow the participation of a McKenzie friend have been well traversed: see Smith v The Queen (1985) 159 CLR 532; Gamage v Minister for Immigration and Citizenship [2009] FCA 1373; Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 at [22] to [26]. While any person may attend as a friend of a party to take notes, make suggestions, and give advice, courts must be very careful in allowing an unqualified person to participate in a proceeding as an advocate. All the circumstances of the case must be considered, and in particular the following factors will often be relevant considerations:

(a)    the complexity of the case;

(b)    the genuine difficulties of the unrepresented parties;

(c)    the unavailability of disciplinary measures and a duty to the court by lay advocates;

(d)    the protection of the client and the opponent; and

(e)    the interests of justice.

The guiding principle is the public interest in the attainment of justice and the ends of justice.

29    In balancing the above considerations, I note that Mr Cristovao has previously demonstrated a detailed knowledge of the facts of the case, that he appeared before me unrepresented in the interlocutory hearing and coherently put his case, and that I have had no difficulty understanding him. I could perceive no deficiency in his command of English sufficient to hamper the presentation of his case. I did not consider that any genuine difficulty would arise from a refusal to grant leave to Mr Chin to appear. I have also had regard to the fact that Mr Chin advised the Court that he was a disqualified lawyer and the subject of numerous findings of professional misconduct by the State Administrative Tribunal in Western Australia. This made the unavailability of disciplinary measures to deal with any failures by Mr Chin in appearing for Mr Cristovao particularly relevant.

30    I refused to allow Mr Chin to appear in the proceedings as an advocate, but I did allow him to sit with Mr Cristovao to provide advice and make suggestions to him, provided it did not disrupt the proceedings.

Consideration of merits of ADJR application

31    Mr Cristovao’s application for judicial review seeks review of the decisions of Registrar Scott and Deputy District Registrar Caporale on the grounds that they were made in breach of subs 5(1)(f), (g), and (h) of the ADJR Act.

32    Section 3 of the ADJR Act provides:

Interpretation

(1)     In this Act, unless the contrary intention appears:

…

decision to which this Act applies means a decision of an

administrative character made, proposed to be made, or required to

be made (whether in the exercise of a discretion or not and whether

before or after the commencement of this definition):

(a)     under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)     by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c)     a decision by the Governor-General; or

(d)     a decision included in any of the classes of decisions set out in Schedule 1.

33    Whether or not the decisions which Mr Cristovao seeks to review are properly to be characterised as decisions of an administrative character within the meaning of s 3 of the ADJR Act, or as exercises of delegated judicial power, is unnecessary to resolve. For the purposes of considering the merits of Mr Cristovao’s applications for review under the ADJR Act, I am content to treat them as decisions of an administrative character.

34    Section 5 of the ADJR Act relevantly provides:

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 or the Federal Magistrates 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;

…

35    The application stated the following grounds of review (without alteration):

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.

36    The thrust of Mr Cristovao’s argument is that Mr Lacroix’s Affidavit was not properly sworn and for that reason should not have been accepted for filing by Registrar Scott. Mr Cristovao’s argument related to Mr Lacroix’s Affidavit were clear from the affidavits he filed in support of his application in TAD 27 of 2012, his submissions in TAD 56 of 2010, and from his oral submissions.

37    The essence of his argument is that the jurat of Mr Lacroix’s Affidavit is defective by reason that:

(a)    the state in which it was sworn is not stated;

(b)    the “identification” of the person witnessing the affidavit is not apparent;

(c)    the printed name of the witness is not stated;

(d)    the witness’s stamp is not affixed;

(e)    the witness’s title is not stated; and

(f)    the witness’s “digital numbers” are not stated.

Mr Cristovao also complains that the preceding pages of Mr Lacroix’s Affidavit were signed only by the witness and not by Mr Lacroix himself. It is not clear to me what Mr Cristovao means by the “identification” he says should have appeared in the jurat, but I have taken it to mean some identification of the person administering the oath.

38    Mr Cristovao characterised these aspects of the affidavit in various ways, describing the affidavit as unsworn, deficient, irregular, an “illegal document”, an attempt by Mr Lacroix to defraud him, an act of perjury, an abuse of process, and an attempt to deceive the Court. More colourfully he submitted that the Court’s acceptance of Mr Lacroix’s Affidavit amounted to a denial of justice against the citizens of this country and of the European Union. At the heart of his arguments is the contention that Mr Lacroix deliberately did not properly swear his affidavit because it was not truthful and Mr Lacroix was concerned about being caught being untruthful on oath.

39    In seeking to establish that Mr Lacroix’s Affidavit was not properly sworn Mr Cristovao sought to rely on provisions of the High Court Rules and the Oaths Act 2001 (Tas). However the formal requirements for the filing of affidavits in this Court are set out in the Evidence Act 1995 (Cth) (“Evidence Act”), the Federal Court Rules 2011 and the relevant Federal Court form for affidavits, namely Form 59.

40    The Evidence Act sets out the requirements for the swearing of affidavits. Section 186 sets out the requirements for swearing affidavits, relevantly providing:

Swearing of affidavits before justices of the peace, notaries public and lawyers

(1)     Affidavits for use in:

(a)     an Australian court (other than a court of a Territory) in    proceedings involving the exercise of federal jurisdiction; …

…

may be sworn before any justice of the peace, notary public or Australian lawyer without the issue of any commission for taking affidavits.

The Schedule to the Evidence Act sets out the wording of the oath to be administered in taking sworn evidence.

41    Division 29.1 of the Rules relevantly provides:

29.01 When affidavit may be sworn or affirmed

An affidavit may be sworn or affirmed before or after the proceeding starts.

29.02 Form of affidavit

(1)     An affidavit must comply with Form 59 and be made in the first person.

(2)     The first visible page (being the first page, the cover page or the front cover page) must state:

(a) the deponent’s description; and

(b) the date on which the affidavit was sworn.

…

(7)     Each page of the affidavit (but not any annexure) must be signed by the deponent (other than a deponent who is unable to sign the affidavit because of a physical disability) and by the person before whom it is sworn.

(8)     Each annexure and exhibit must be identified on its first page by a certificate entitled in the same manner as the affidavit and by the deponent’s initials followed by a number (starting with ‘1’ for the first annexure or exhibit).

…

(11)     Each exhibit to an affidavit must be signed on the first page of the exhibit by the person before whom the affidavit is sworn.

29.03 Content of affidavits

(1)     An affidavit must not:

(a) contain any scandalous material; or

(b) contain any frivolous or vexatious material; or

(c) be evasive or ambiguous; or

(d) otherwise be an abuse of the process of the Court.

(2)     If an affidavit contains any of the material mentioned in subrule (1), a party may apply to the Court for an order that the affidavit, or a part of the affidavit, be removed from the Court file.

29.06 Irregularity in form

An affidavit may be accepted for filing despite an irregularity in form.

29.07 Use of affidavit not filed or in irregular form

A party must apply for the leave of the Court to use an affidavit that has not been filed, or that has been filed but is irregular in form.

42    Federal Court Form 59 contains the requirements of the jurat, namely the affixing of:

(a)    the place and state in which the affidavit was sworn;

(b)    the date on which it was sworn;

(c)    the signature of the deponent;

(d)    the signature of the witness; and

(e)    the name and qualification of the witness.

43    It is clear from a perusal of Mr Lacroix’s Affidavit that it is signed by the deponent and by the witness. Contrary to Mr Cristovao’s submission, the witness’s qualification as a Justice of the Peace is stated immediately below his signature. The date of swearing is stated. While the state in which it was sworn is not stated in the particulars of jurat, the affidavit clearly sets out the place of swearing as Hobart. The only shortcomings are that the witness’s full name is not stated, and the deponent’s signature does not appear at the base of each page of the affidavit preceding the particulars of jurat.

44    The balance of the deficiencies which Mr Cristovao submits can be found in relation to Mr Lacroix’s Affidavit, namely that the “identification”, the witness’s stamp, and the witness’s “digital numbers” do not appear, are not in fact requirements for affidavits filed in this Court. Mr Cristovao’s submissions in relation to these aspects need no further consideration.

45    In a further affidavit sworn by Mr Lacroix on 19 September 2012 in response to the application for judicial review, he deposes that his affidavit of 24 December 2010 was sworn before Mr Douglas Farmer. His evidence is that late on the afternoon of 24 December 2010, after preparing his affidavit, he attended the registry of the Supreme Court of Tasmania to swear it before a Justice of the Peace. Mr Lacroix states that he swore an oath on the Bible before Mr Farmer and then proceeded to execute the affidavit. Mr Lacroix acknowledges that he did not sign each page of his affidavit.

46    It is uncontroversial that Mr Douglas Farmer, a Clerk of the List employed by the Supreme Court of Tasmania, is and was duly qualified as a Justice of the Peace when he witnessed the swearing of Mr Lacroix’s Affidavit on 24 December 2010. Mr Farmer swore an affidavit and was cross examined in the application. His evidence is that he recognises the witness signature which appears on the jurat of Mr Lacroix’s Affidavit, on each page of the affidavit, and on the annexures, as his own. His evidence is that he does not believe that it is a requirement that he affix his full name when witnessing and affidavit. He told the Court that it was his practice to always require a deponent to swear the oath prior to witnessing an affidavit. He acknowledged that the deponent’s signature did not appear on each page of the affidavit.

47    Rule 29.06 provides that an affidavit may be accepted for filing in the Federal Court despite an irregularity in form. I consider that any irregularity in the swearing of Mr Lacroix’s Affidavit is not sufficiently serious such that the only acceptable course was for Registrar Scott to refuse to accept it for filing. Whether Registrar Scott in fact apprehended any irregularity in Mr Lacroix’s Affidavit and purported to nonetheless accept it for filing under r 29.06, is not known to me. It is not the practice of registrars of this Court to record their reasons for accepting for filing each affidavit lodged with the Court’s registry.

48    Mr Farmer and Mr Lacroix both gave evidence to the effect that Mr Lacroix’s Affidavit was properly witnessed and sworn. I am satisfied that Mr Lacroix in fact swore his affidavit before Mr Farmer on 24 December 2010 (see: Fastlink Calling v Macquarie Telecom (2008) 217 FLR 366 at [41]). Mr Cristovao sought to rely on the case of Director of Public Prosecutions v Marijancevic [2011] FSCA 355, however that case has no application to the present circumstances. Mr Cristovao was also unable to produce any evidence to sustain his arguments that the irregularities in its execution were motivated by a plan by Mr Lacroix to file evidence he knew to be untrue in order to escape the consequences of perjury. There is a complete absence of any evidence to sustain this argument. In my view there is no error in Registrar Scott accepting Mr Lacroix’s Affidavit for filing. The irregularity was not such as to require that it should be refused.

49    I note also that Rule 29.07 requires that leave must be sought to use an affidavit with irregularities in proceedings before the Court. In my view a grant of such leave is appropriate. However there is no evidence that Forensic in fact relied on Mr Lacroix’s Affidavit in proceeding TAD 56 of 2010, and there is nothing to illustrate that the affidavit was relevant to Registrar Scott’s Costs Order. Registrar Scott’s basis for making the setting aside order was clearly the consent of the parties. Middleton J has previously determined that Mr Cristovao consented to the setting aside order, and that order was not conditional on there being no further order as to costs (see Cristovao v Forensic Document Examiners Pty Ltd [2011] FCA 1131 at [11] to [12]).

50    Mr Cristovao has previously sought to argue before me that had he been aware of the irregularities in Mr Lacroix’s Affidavit, he would not have consented to the order setting aside the statutory demand. While his applications currently before me do not seek to set aside Registrar Scott’s Costs Order, it is apparent from his written submissions (and the applications which were refused for filing by Deputy District Registrar Caporale) that he maintains that Registrar Scott’s Costs Order and the setting aside order are rendered a nullity by reason of the irregularities in Mr Lacroix’s Affidavit.

51    I do not accept this submission. The irregularities of which Mr Cristovao complains could not constitute a reasonable basis for refusing leave to rely on Mr Lacroix’s Affidavit had the setting aside application proceeded to hearing. Nor would there have been anything to prevent Mr Lacroix re-swearing his affidavit to cure those irregularities. There is also no basis for Mr Cristovao’s apprehension that the irregularities he has identified in any way indicate an intention by Mr Lacroix to deceive him or the Court.

52    Mr Cristovao’s application for judicial review of the decisions of both registrars is made on the basis that both decisions involved an error of law, were induced or affected by fraud, and there was no evidence or other material to justify the making of the decisions, pursuant to subs 5(1)(f), (g), and (h) of the ADJR Act. The applications must fail as he advanced no arguments of any substance as to the purported errors of law, or any evidence of fraud, and there is no basis for setting aside either decision.

53    It is also no argument for Mr Cristovao to now say that he only discovered the irregularities in Mr Lacroix’s Affidavit after the applications before Marshall J and Middleton J were heard. The very limited irregularities in Mr Lacroix’s Affidavit, such as they are, were able to be observed by Mr Cristovao from the date he was served with it. It is not the Court’s role to provide endless opportunities, under the guise of a litigant’s rights of review and appeal, for him to attempt to refine and improve his case, simply because he is dissatisfied with the outcome.

54    Mr Cristovao cannot establish any part of his argument as to the effect of the irregularities in Mr Lacroix’s Affidavit. His application for judicial review is completely without merit.

55    However, the first question before me is not the substantive application for review but rather whether the application is within time.

4.    Time limits within which to seek judicial review

56    Section 11 of the ADJR Act sets out the relevant time limits within which to make an application for judicial review:

Manner of making applications

(1)     An application to the Federal Court or the Federal Magistrates Court for an order of review:

(a)     shall be made in such manner as is prescribed by:

(i)     in the case of an application to the Federal Court— Federal Court Rules; …and

(b)     shall set out the grounds of the application; and

(c)     shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.

(2)     Any other application to the Federal Court or the Federal Magistrates Court under this Act shall be made as prescribed by:

(i)     in the case of an application to the Federal Court— Federal Court Rules; or

(ii)     in the case of an application to the Federal Magistrates Court—Federal Magistrates Rules.

(3)     The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

…

(b)    in a case to which paragraph (a) does not apply:

…

(iii)    in any other case—the day on which a document setting out the terms of the decision is furnished to the applicant.

(4)     Where:

(a)     no period is prescribed for the making of applications for orders of review in relation to a particular decision; or

(b)     no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision;

the Federal Court or the Federal Magistrates Court may:

(c)     in a case to which paragraph (a) applies—refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or

(d)     in a case to which paragraph (b) applies—refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to;

if the court is of the opinion that the application was not made within a reasonable time after the decision was made.

(5)     In forming an opinion for the purposes of subsection (4), the court shall have regard to:

(a)     the time when the applicant became aware of the making of the decision; and

(b)     in a case to which paragraph (4)(b) applies—the period or periods prescribed for the making by another person or other persons of an application or applications for an order or orders of review in relation to the decision;

and may have regard to such other matters as it considers relevant.

(Emphasis added.)

57    No document setting out the decision of Registrar Scott of 24 December 2010 to accept Mr Lacroix’s affidavit for filing was made and furnished to Mr Cristovao . Nor is this an application to which s 35A(5) of the Federal Court of Australia Act 1976 (Cth) and r 3.11 apply. These provide for the review of a registrar’s decision that involves an exercise of a power of the Court delegated so as to be exercised by a Registrar. In such circumstances no fixed time limit for the filing of a review application is provided by the ADJR Act or by the Rules. Instead, s 11(4) of the ADJR Act provides the Court may refuse to entertain an application for judicial review if the Court is of the opinion that the application was not made within a reasonable time after the decision was made. In forming its opinion, the Court is to have regard to when the applicant became aware of the decision and any other matters it considers relevant: s 11(5).

58    Mr Cristovao’s application to set aside Registrar Scott’s decision of 24 December 2010 was not made until 25 July 2012, more than 18 months after the decision to accept the affidavit for filing was made. Mr Cristovao became aware of the decision to accept the affidavit for filing on when it was filed and served upon him on or around that date, or at least no later than 17 February 2011 when the application was first heard before Registrar Scott.

59    Mr Cristovao did not provide any acceptable explanation for the delay from when he became aware of the decision to accept the affidavit for filing before he commenced his application for judicial review. He sought to argue that he did not discover the purported irregularities until later, but even the delay from that date is significant. While one might infer that the delay arose because Mr Cristovao was using other avenues to appeal Registrar Scott’s decisions, that is not a sufficient explanation.

60    The other matter relevant to whether to treat the application as having been made within time is the merit of the substantive application. There is no utility in taking a lenient view of Mr Cristovao’s delay in bringing the application in circumstances where it is bound to fail in any event. Accordingly, I refuse to entertain Mr Cristovao’s application for judicial review of Registrar Scott’s decision to accept Mr Lacroix’s Affidavit for filing. The application must be dismissed.

61    Written reasons for the decision of Deputy District Registrar Caporale to refuse to accept the application by Mr Cristovao of 28 March 2012 were furnished to him to by letter dated 18 April 2012. In such circumstances subss 11(1)(c) and 11(3)(b)(iii) of the ADJR Act prescribe a 28 day time limit or such further time as the Court allows, in which to seek review.

62    Although Mr Cristovao had 28 days from 18 April 2012 to seek judicial review of Deputy District Registrar Caporale’s decision he did not make his application until 25 July 2012. This was some two months after the expiry of the 28 day time limit. Accordingly, Mr Cristovao’s application for judicial review of this decision is out of time unless an extension of time is granted.

63    The relevant principles in relation to an exercise of the Court’s discretion to extend time for an application for judicial review under s 11 of the ADJR Act were set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and have been subsequently endorsed by Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 (“ActewAGL v AER) at [88] to [89]. In broad summary the considerations relevant to the exercise of the Court’s broad discretion include:

(a)    satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;

(b)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and

(c)    the merits of the application.

Lying beneath these considerations is the basal principle of the justice of the case: see ActewAGL v AER at [89].

64    As I have already said, Mr Cristovao’s substantive application is without merit. This is the factor most strongly against any extension of time. There would also be substantial prejudice to Forensic in now throwing doubt on a costs order made more than 18 months ago, and which either has been or is in the process of being executed. I am also not satisfied that any extension is appropriate as the present review application is little more than another attempt to appeal the costs order with which Mr Cristovao is dissatisfied.

65    I refuse to extend the time within which to bring an application for review of Deputy District Registrar Caporale’s decision of 18 April 2012 to refuse to accept Mr Cristovao’s application for filing.

5.    The application for injunctive relief

66    The application for injunctive relief in TAD 56 of 2010 seeks an order in the following terms:

1.    An Immediate Injunction to stop the unlawful execution of the Misconceived Costs Orders of Registrar Scott dated 17.3.2011 (the Immediate Injunction).

…

67    As I have indicated, a later urgent application for injunctive relief was made by letter dated 10 September 2012. This sought orders in the following terms:

…I therefore make a request of the Federal Court to issue an interim order to Baycorp to stay the execution of the Unlawful Costs Order of Registrar Scott dated 17.3.2011 and to re-list the Interlocutory Application dated 7.5.2012 for an immediate injunction for hearing on a suitable date to be appointed.

It should be noted that the interlocutory application Mr Cristovao refers to as dated 7 May 2012 was not filed until 25 July 2012, and is the earlier interlocutory application in TAD 56 of 2010 now before me.

68    I heard and dismissed the urgent application on 11 September 2012: Cristovao v Scott [2012] FCA 1009. Accordingly I cannot see that there is anything left to be determined from the application earlier made. If there is anything remaining to be determined I refuse to grant the injunctive relief sought. As is be apparent from my reasons above, I consider there is no error in Registrar Scott’s decision to accept Mr Lacroix’s Affidavit for filing. There is also no basis for me to interfere with Registrar Scott’s Costs Order, appeals against that order already having been dismissed by Marshall J and Middleton J.

Associate:

Dated:    27 November 2012