FEDERAL COURT OF AUSTRALIA

Cristovao v Tan & Tan Lawyers Pty Ltd (No 2) [2017] FCA 1624

ORDERS

THE COURT ORDERS THAT:

1.    Unless the Appellant applies to the Court no later than 4.00 pm on Monday 18 December 2017, the Appellant’s interlocutory application dated 29 November 2017 be dismissed without further order of the Court.

2.    Any such application must be supported by an affidavit establishing why the Appellant did not appear at the hearing of the interlocutory application on 14 December 2017.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    By an interlocutory application filed on 6 December 2017 Mr Cristovao seeks leave to further amend his amended notice of appeal; a determination of the validity of the creditor’s petition and the debt on which it is based prior to the substantive hearing of the appeal; and to have Law Mutual Western Australia (Law Mutual), a body which I understand to be the Respondent’s indemnity insurer, joined as a party to the appeal.

2    In addition, Mr Cristovao seeks orders that Ms Fenwick, who is the legal representative of the Respondent appearing in these proceedings, give evidence as to the truth or otherwise of what she deposes to at [4] and [5] of her affidavit dated 18 April 2017 and filed in proceeding WAD 544 of 2016, and that the Respondent file and serve a copy of the professional indemnity insurance contract between itself and Law Mutual. I note, although it cannot be the subject of any order of this Court, that Ms Fenwick has indicated that the Respondent is prepared to provide a copy of that professional indemnity insurance contract to the Respondent upon his request.

leave to further amend notice of appeal

3    I note that, pursuant to r 36.10 of the Federal Court Rules 2011 (Cth) (the rules), the Appellant requires leave of the Court to amend his Amended Notice of Appeal, given that more than 28 days have passed since the original notice of appeal was filed on 17 July 2017, and amended on 18 September 2017.

4    The Respondent submits at [6] of its written submissions:

A party seeking leave to amend bears the onus of satisfying the Court that grounds exist for exercising the discretion in his or her favour: Dye v Commonwealth Securities Ltd [2010] FCA 720 at [25]. The Appellant has not identified what amendments he proposes to make to the Amended notice of appeal. A relevant factor to the Court exercising its discretion is the likelihood of the appeal succeeding on the ground sought to be introduced: Burns v Grigg [1967] VR 871. Such [a] factor cannot be assessed without identification of the amendments sought.

5    The Respondent submits that the application for leave to amend should be dismissed.

6    Without the Appellant having provided to the Court or the Respondent a draft Further Amended Notice of Appeal or any indication of the amendments he proposes, the Court is not in a position to assess the new or amended grounds of appeal, whether they could be advanced as valid grounds, or the prospects of success.

7    In the absence of any particularisation of the new or amended grounds of appeal sought to be included by Mr Cristovao, the Respondent has, understandably, made no submission that it would be prejudiced by having to respond, but the absence of such claim of prejudice should be discarded as immaterial in those circumstances.

8    As the Court is not in a position to know with any clarity the new ground Mr Cristovao seeks to have the Full Court determine and the Respondent has not had an opportunity to make submissions in relation to it, the Court is not in any position to exercise its discretion to grant leave to further amend the notice of appeal. The application for leave to amend is therefore dismissed.

determination of issues prior to substantive hearing

9    The issues that the Appellant urges the court consider and determine prior to the Full Court hearing of the appeal, which has been listed before their Honours Bromberg, Mortimer and Lee JJ on Wednesday 7 March 2018, are the validity of the underlying creditor’s position and the debt which form the basis of the creditor’s position. The Court has difficulty understanding how these issues are appropriate for determination prior to the hearing of this appeal.

10    I have earlier dealt with proceedings in which similar matters were sought to be agitated, but, of course, they do not determine whether or not the interlocutory application made by Mr Cristovao in these proceedings should be granted. However, the validity of the creditor’s petition and the debt forming the basis of the creditor’s petition were not issues that were contested before the primary judge in the matter that has been appealed in these proceedings. The judge at first instance dealt with the alleged “controversy” in relation to the role of the Respondent’s indemnity insurer in the proceedings in the Supreme Court of Western Australia by saying that it did not fall within the jurisdiction of the Court. It does not appear to me to be properly an issue that could be said to arise in an appeal in these proceedings.

11    Moreover, pursuant to s 25(1) of the Federal Court of Australia Act 1976 (Cth) (the Act), the appellate jurisdiction of this court is to be exercised generally by a full court. The Chief Justice has directed me to deal with interlocutory proceedings and case management in this matter, but to the extent that an issue is said to involve substantive merit in relation to an appeal, I do not consider that such an issue should be dealt with in a manner that would allow a single judge to hear and determine an asserted error by a fellow single judge.

12    For clarity, it would be possible for the Appellant to seek leave from the Full Court to amend his grounds of appeal to include determination of these issues, but I note the Respondent’s indication that it would object to such an application on the basis that the issues were not agitated before the primary judge, and both had been raised and rejected in Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WADC 36.

13    I have already dealt with the possibility of granting Mr Cristovao leave to amend his notice of appeal by indicating that without particularisation of the proposed amendments, it is not open to me to grant such leave. I apprehend that Mr Cristovao is seeking a preliminary determination of these two matters prior to the Full Court hearing. I decline to make such a determination.

joinder of law mutual

14    Mr Cristovao seeks an order joining Law Mutual as a party to this appeal. I note that Law Mutual was not a party to the proceedings before the primary judge that is the subject of this appeal. Mr Cristovao has not advanced in submissions any arguments as to why Law Mutual should be joined. The Respondent submits at [11] that Law Mutual is not a proper party to the appeal given that it was not involved in the proceedings before the primary judge.

15    I am not aware of any circumstances that would justify the making of an order joining Law Mutual, and I decline to do so.

Further evidence on appeal

16    Mr Cristovao seeks an order that the Court receive further evidence, namely evidence from Ms Fenwick regarding the truth of the contents of an affidavit of Ms Fenwick filed in the proceedings before the primary judge, and a copy of the indemnity insurance contract between the Respondent and Law Mutual.

17    In circumstances involving an appeal from a matter heard and determined by a judge of this Court, the Court conducting the appeal will ordinarily have regard only to the evidence that was before the primary judge.

18    Section 27 of the Act permits the Court to receive further evidence on appeal at its discretion, but r 36.57 provides that, if a party is seeking such a dispensation, they must apply to the Court and, at least 21 days before the hearing of the appeal, file an affidavit stating briefly but specifically the facts upon which the application relies, the grounds of appeal to which the evidence relates, the evidence sought to be put before the Court, and why it was not adduced before the primary judge.

19    Mr Cristovao has not filed any such affidavit. His affidavit, filed on 6 December 2017, gives some background to the appeal and makes various assertions, but does not explain why the indemnity insurance contract or further evidence from Ms Fenwick was not adduced in the first instance proceedings.

20    In all of the circumstances, having regard to the written submissions that Mr Cristovao has made in support of his application, and the Respondent’s submissions and Mr Cristovao’s submissions in reply, I am not convinced that there is a proper basis for me to make the interlocutory orders sought. I note, as a matter of record, that when these proceedings were called on this morning, Mr Cristovao did not appear. The Court sought, through its officers, to make contact with Mr Cristovao by telephone, but that was unsuccessful.

21    The Court does not doubt that Mr Cristovao was made aware of these proceedings and the documents that he has filed for the consideration of the Court make that plain. If, by some gross mischance, Mr Cristovao has encountered an accident on his way to the Court this morning, such that he was unable to contact the Court to explain his non-attendance, I would grant liberty for this matter to be restored for reconsideration, but, otherwise, I make the orders proposed. If there is no request for this matter to be relisted, supported by an affidavit, by 4.00 pm Monday, 18 December, I will formalise the orders that I have given reasons for today.

Associate:

Dated:    12 January 2018