FEDERAL COURT OF AUSTRALIA

Cristovao v Trott [2018] FCA 1605

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing an application for review from the decisions the subject of the review application be extended to 11 June 2018.

2.    The application for judicial review filed on 11 June 2018 be dismissed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    By an application filed 11 June 2018 the applicant seeks judicial review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of decisions of a District Registrar (the first respondent), a Deputy Principal Registrar (the second respondent), a Registrar (the third respondent) and a Deputy Registrar (fourth respondent). All are Registrars of this Court. I will refer to the respondents collectively where appropriate as 'the Registrars'. Each complaint by the applicant has its genesis in the refusal of the Registrars to accept for filing an interlocutory application.

2    I have taken the application for review to be made pursuant to r 31.01(1) of the Federal Court Rules 2011 (Cth) (Rules) and s 11(1) of the ADJR Act.

3    The applicant is self-represented. He set out the grounds of review in a 'statement of claim' attached to the application. He also filed an affidavit in support of his application and two sets of submissions. The Registrars filed submitting notices.

Background

4    By the interlocutory application, the applicant sought to set aside the judgment of the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 (Bromberg, Mortimer & Lee JJ) delivered 27 March 2018.

5    Litigation between the applicant and Tan & Tan (an incorporated legal body) has proceeded over many years and in various courts, and is summarised by the Full Court in its reasons. I will not repeat the history, but provide a summary of some of the relevant events:

(a)    the applicant issued proceedings in the Magistrates Court of Western Australia against Tan & Tan alleging professional negligence;

(b)    the claim was dismissed with costs;

(c)    Tan & Tan had in place a professional indemnity insurance policy for claims against it which responded (relevantly) to cover defence costs;

(d)    the applicant argued that the costs should not be assessed because Tan & Tan had failed to disclose that it had an insurance policy in place with Law Mutual Western Australia (LMWA): the applicant alleged that under O 9A of the Rules of the Supreme Court 1971 (WA), Tan & Tan was obliged to disclose that there was an insurer that was an interested party (Rule);

(e)    the Registrar held that the Rules of the Supreme Court did not apply to proceedings in the Magistrates Court and proceeded to assess the costs;

(f)    the costs awarded against the applicant were in the sum of $34,671.94;

(g)    that costs order became the subject of a bankruptcy notice;

(h)    the applicant appealed the Registrar's decision to a Magistrate, and to the District Court of Western Australia (Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WADC 36) and Court of Appeal (Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WASCA 54);

(i)    there were also other proceedings between the parties in the District Court, Supreme Court and Court of Appeal;

(j)    in July 2017 the primary judge made a sequestration order and ordered that the creditor's costs be taxed and paid from the estate of the applicant;

(k)    the applicant appealed the sequestration order to the Full Court;

(l)    the Full Court dismissed the appeal;

(m)    the applicant sought to lodge an interlocutory application challenging the Full Court judgment and seeking to have it set aside;

(n)    the first, third and fourth respondents refused to accept the interlocutory application for filing, and the second respondent corresponded with the applicant about the application; and

(o)    the applicant now seeks review of the decisions of the Registrars.

Summary of reasons for dismissal of appeal by the Full Court

6    The Full Court summarised the grounds before it as follows (at [11]):

Doing the best one can with the document and the submissions filed in support, it appears that the contentions made by the appellant can be categorised as follows:

(a)    the primary judge erred in failing to "recuse himself" from the hearing of the creditor's petition on the basis he was a member of an earlier Full Court which had made a decision adverse to the appellant (Recusal Contention);

(b)    the primary judge exhibited "manifest partiality" and "unwittingly vacated his own seat of judgment" in rejecting the contention of the appellant that the Rule applied in the Magistrates Court (Pre-Judgment Contention);

(c)    the primary judge erred in being satisfied, pursuant to s 52(1) of the Bankruptcy Act 1966 (Cth) (Act), that the debt upon which the petitioning creditor relied was still owed because the primary judge should have exercised his discretion to go behind the costs judgment and should have found there was no debt "in truth and reality" owed to the respondent (Debt Owing Contention);

(d)    the primary judge erred in failing to be satisfied by the appellant, pursuant to s 52(2)(b) of the Act, that there was "other sufficient cause" why a sequestration order ought not be made (Sufficient Cause Contention).

7    The Full Court explained and dismissed each of the contentions. In particular, the Debt Owing Contention is important on this review application because it is clear that the applicant still seeks to agitate those matters. The other contentions are not relevant to this review.

8    As to the Debt Owing Contention, the Full Court addressed whether or not the primary judge should have found there was no debt owing at the time of the sequestration order. The Full Court considered whether there was any basis to go behind the costs judgment upon which the bankruptcy notice and sequestration order rested. It summarised (at [34]) the High Court's decision in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132 (Kiefel CJ, Keane & Nettle JJ) as follows:

As was recently explained by Kiefel CJ, Keane and Nettle JJ in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 91 ALJR 803, in considering the requirement under s 52(1)(c), a Bankruptcy Court has a paramount need to have satisfactory proof of the debt owed to the petitioning creditor - to ascertain the "true state of accounts between the parties": at 814 [63]. This means that a court should go behind a judgment where there is sufficient reason for questioning whether behind that judgment there is "in truth and reality" a debt owing. When considering to go behind the prima facie evidence of the debt constituted by the judgment, a two-stage process inquiry arises: first, as to whether there is sufficient reason to question the existence of a real debt behind the judgment; and secondly, if there is, determining that issue (although these two steps may be determined together: see Makhoul v Barnes (1995) 60 FCR 572 at 584 per Hill, Cooper and Branson JJ and Wolff v Donovan (1991) 29 FCR 480).

9    The Full Court then gave two reasons for finding that the applicant's complaints about the costs judgment were misconceived.

10    First, the Rule is directed to ensuring third party funders of litigation who exercise control over proceedings cooperate with case management principles and in any event, there was no reason to doubt the Court of Appeal's decision that the Rule had no application in the Magistrates Court.

11    Second, there is a flaw in the applicant's argument that Tan & Tan cannot seek payment of costs from him as it has already been paid the costs of the proceedings by LMWA as insurer. Such argument ignores the well-established principle that where there is a third party with an interest in the litigation who incurs such costs, then party/party costs may be rightfully recovered. The Full Court held that, consistent with the authorities, an interest in litigation will plainly be established by a contractual or statutory obligation to indemnify an insured for judgments and settlements on claims. The Full Court referred to the following authorities: New Pinnacle Group Silver Mining Co v Luhrig Coal & Ore Dressing Appliances Co (1902) 2 SR (NSW) 50 (Cohen & Walker JJ); Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 (Bankes, Younger & Atkin LJJ); McCullum v Ifield [1969] 2 NSWR 329 (Taylor J); and Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 (Mason P, McColl JA & Davies AJA).

12    The Federal Court concluded by stating (at [44]) that there is no foundation in principle for the applicant's 'long expressed concern' about Tan & Tan's recovery of costs.

The interlocutory application

13    On 3 April 2018 the applicant sought to file the interlocutory application in the Perth Registry seeking to vary or set aside the Full Court's judgment.

14    The interlocutory application states (and it is quoted without editing):

The Applicant who is the Appellant in WAD 405 of 2017 or Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 at Perth via telephone attendance at 2.15pm AEDT on 27.03.2018 and upon the joint delivery of the joint judgment of their Honours Bromberg, Mortimer, Lee JJ DID IMMEDIATELY object to it by way of R.39.04 of FCR 2011 for the purpose of varying or setting it aside before it has been entered (the Judgment): the Applicant now therefore applies for the interlocutory orders to Set Aside the Judgment.

15    On 4 April 2018 the first respondent wrote to the applicant as follows:

Dear Sir

Re: Rogerio Martins Cristovao v Tan & Tan Lawyers: WAD405/2017

I am writing to you in relation to the Form 35 (Interlocutory application) you lodged with the Registry on 3 April 2018.

By this document it appears that you apply to vary or set aside the judgment and order of Justices Bromberg, Mortimer and Lee made on 27 March 2018 in the above appeal proceeding. It appears to me that you wish to make the application purportedly in reliance on the provisions of r 39.04 of the Federal Court Rules 2011 (Rules) which may have application if an order has not been entered.

In this case however, I note that the order of Justices Bromberg, Mortimer and Lee made on 27 March 2018 was entered (a copy is attached). As you know, your appeal was dismissed. The file is now closed. There is no remaining function or work for the Court to do in relation to this matter as it was resolved to finality.

I also note in passing that contrary to r 17.01(1)(b) of the Rules, you do not appear to have lodged an affidavit in support of the matters to which you refer in your Form 35.

Rule 2.26 of the Rules provides that 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.

I am satisfied on the face of the document that it is frivolous and vexatious and would constitute an abuse of process if accepted for filing. This is because, in the circumstances, the judgment or order may not be varied pursuant to r 39.04 and all issues have now been resolved to finality in this Court.

Accordingly, your document is not accepted for filing and returned with this letter.

…

16    On 9 April 2018 the applicant provided a further copy of the interlocutory application but accompanied by an affidavit to the Perth Registry.

17    On 10 April 2018 the first respondent replied as follows:

Dear Sir

Re: Rogerio Martins Cristovao v Tan & Tan Lawyers: WAD 405/2017

I refer to your letter of 9 April 2018 together with a Form 35 (Interlocutory application) and supporting affidavit that you lodged with the Registry on 9 April 2018.

The Form 35 appears to be in the same terms as the document you recently lodged for filing which I declined to accept and notified you of this by letter dated 4 April 2018.

In the Form 35 and affidavit you seek to rely on Rule 39.04 of the Federal Court Rules 2011 (Rules) to apply to vary or set aside the judgment and order of Justices Bromberg, Mortimer and Lee made on 27 March 2018 in the above appeal proceeding. However, as previously advised, your appeal was dismissed and the file is now closed. There is no remaining function or work for the Court to do in relation to this matter as it was resolved to finality. Rules 39.04 has no application in the circumstances.

Rule 2.26 of the Rules provides that 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.

I am satisfied on the face of the document that it is frivolous and vexatious and would constitute an abuse of process if accepted for filing.

Accordingly, your document is not accepted for filing and returned with this letter.

…

18    On 14 April 2018 the applicant wrote to the first respondent, setting out a list of questions and challenging the matters stated by the first respondent in his correspondence.

19    The first respondent responded to that letter on 17 April 2018 as follows:

Dear Mr Cristovao

Re: Rogerio Martins Cristovao v Tan & Tan Lawyers: WAD405/2017

I refer to your letter of 14 April 2018 which is a response to my letter on 10 April 2018 advising you of my reasons for refusing to accept documents that you recently lodged for filing in the above proceeding.

In your letter you state, "As a litigant in person I wish to exercise my right in seeking procedural advice by asking your (sic) specific questions in regard to the impugned judgment…". You are of course referring to, the judgment of Justices Bromberg, Mortimer and Lee in the above matter that was delivered on 27 March 2018, which was a final judgment.

I decline to answer your questions as it would not be appropriate for me to do so and because, in so doing, it could amount to provision of legal advice. I trust you will understand that one of the administrative roles of Registrars is to process or oversee the processing of documents submitted for filing. Registrars do not provide advice in relation to the content of documents or assist litigants in the manner you have sought as to do so could be construed as a reasonable apprehension of bias.

Please understand that Registrars will accept for filing documents that substantially comply with the Federal Court Rules 2011 (Rules). Registrars have authority not to accept documents if satisfied they would constitute an abuse of process, or frivolous or vexatious or not compliant with the requirements of the Rules:

(a)    on the face of the document; or

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

If you are dissatisfied with my refusal to accept your documents, you may seek judicial review of that decision. However, I would strongly recommend that you seek legal advice before taking any such step. In this regard, I have enclosed a pamphlet from the Self Representation Service that may be of assistance.

…

20    On 27 April 2018 the second respondent also wrote to Mr Cristovao in relation to his 14 April 2018 letter, stating:

Dear Mr Cristovao,

Correspondence regarding WAD405/2017

I refer to your facsimile dated 14 April 2018 and sent to [the first respondent] on 15 April 2018 which has been referred to me for response.

In your facsimile you seek what you describe as 'procedural advice' in respect of a range of matters associated with your unsuccessful attempts to file an application to set aside the judgment of the Full Court of the Federal Court in Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41.

In particular you request advice on:

•    whether Form 35 is suitable for an application to set aside the judgment pursuant to rule 39.04 of the Federal Court Rules 2011 (the Rules) and if not, what form should be used for this purpose;

•    why [the Registrar] has indicated that there is no remaining function or work for the Court to do in relation to this matter as it has been resolved to finality;

•    whether rule 39.04 provides that an appellant may exercise his discretion to vary or set aside an impugned judgment before it is entered, and if so when you would be entitled to exercise that discretion or why it is not available or applicable to your current circumstances;

•    whether the Court can be considered functus officio when it has not had the opportunity to perfect its judgment following an objection by an appellant exercising their discretion under rule 39.04;

•    why your application to set aside the judgment pursuant to rule 39.05(b) and (c) was rejected; and

•    the procedural law applicable for the equitable relief of equitable fraud committed by the respondent by their failure to disclose double-dipping to the Court.

What you are seeking is legal advice. Neither [the first respondent] nor anyone else from the Court can provide such advice. Should you wish to obtain advice on the applicability of specific Rules and Forms, whether your matter has been resolved to finality, and or what rights and avenues might be available to you, you should consult a private lawyer, or subject to eligibility, Legal Aid Western Australia or a community legal centre. You can find information about community legal resources available in Western Australia on the website for the Law Society of Western Australia at https://www.lawsocietywa.asn.au/community/community-legal-resources/.

Registrars of the Court will accept for filing only documents which substantially comply with the requirements of the Rules. Registrars will not accept documents if satisfied those documents are an abuse of process (for example if they are doomed to fail), frivolous, vexatious or not prepared in accordance with the Rules or in conformity with the approved forms.

Further, there is no obligation upon Registrars to provide detailed reasons or advice. Any reasons provided by a Registrar where a document is not accepted for filing are provided to assist you to understand the principal basis for which the documents have been refused for filing, rather than to identify every procedural or other requirement that the document has failed to meet.

…

21    It appears that in the meantime (on 23 April 2018) the applicant had written to the Perth Registry attaching another interlocutory application and an application for exemption of fees.

22    On 2 May 2018 the third respondent replied to the applicant as follows:

Dear Mr Cristovao

Re: Rogerio Martins Cristovao v Tan & Tan Lawyers: WAD405/2017

I refer to your letter of 23 April 2018 attaching an Interlocutory Application in Form 35 for filing and an Application for Exemption of Fees.

This application appears to relate to orders made by Bromberg, Mortimer and Lee JJ made on 27 March 2018 and is similar to documents you have submitted on two previous occasions. On both those occasions the documents were not accepted for filing.

In his letter of 4 April 2018 [the first respondent] has already advised you that the appeal was dismissed and the file has been closed. There is no remaining function or work for the Court to do in relation to this matter as it was resolved to finality.

I have reviewed the latest documents presented for filing and I am of the same view. I am also satisfied that the proceedings are foredoomed to failure and should not be accepted for filing and are returned to you under cover of this letter.

Although Registrars will accept for filing documents that substantially comply with the Federal Court Rules 2011 (Rules), Registrars also have a duty and authority not to accept documents if satisfied they would constitute an abuse of process, or frivolous or vexatious or not compliant with the requirement of the Rules:

(a)    on the face of the document; or

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

If you are dissatisfied with my refusal to accept your documents, you make seek judicial review of that decision. However, I would strongly recommend that you seek legal advice before taking any such step.

…

23    It appears that the applicant then lodged a further application and affidavit.

24    On 16 May 2018 the fourth respondent wrote to the applicant as follows:

Dear Mr Cristovao

DOCUMENT LODGED WITH THE FEDERAL COURT OF AUSTRALIA - WAD405/2017

I refer to the documents you recently lodged with the Registry titled "Interlocutory application" and "Affidavit". It appears on the face of these documents that you seek to file further documents in relation to proceeding WAD405/2017.

Your application to appeal which is the subject of WAD405/2017 was heard by the Full Court of the Federal Court on 7 March 2018, and judgment was handed down on 27 March 2018: Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41. The following orders were made by the Full Court:

1.    The appeal be dismissed.

2.    The appellant pay the respondent's costs of the appeal, with such costs to be paid from the estate of the appellant.

As a result of the judgment and orders made, the matter the subject of WAD405/2017 has been decided and the file for this proceeding has accordingly been closed. There is no remaining function or further work for this Court to do in relation to this proceeding; it has been resolved to finality.

I am satisfied that the documents "Interlocutory application" and "Affidavit" should not be accepted for filing; the proceedings sought to be instituted by the documents are foredoomed to failure: see rules 2.26 and 2.27 of the Federal Court Rules 2011 (Cth) regarding the refusal to accept documents for filing by Registrars.

Dealing with issues involving judgments and appeals can be difficult, and you may wish to seek legal advice from a lawyer with the necessary qualifications and experience to provide you with any further assistance you may require.

Your documents are returned to you with this letter.

…

25    It is not in issue that each application that the applicant sought to file was in effectively the same form. Further, the applicant informed me that there is only one affidavit that he sought to file with his interlocutory applications, although it appears he sought to file that affidavit on various occasions.

26    It was also clear during the hearing before me that the applicant does not distinguish between the particular decisions or communications of the Registrars who he has joined as respondents. The applicant described the decisions by them as an 'amalgamation'. The applicant's position is that the first respondent was in error and the other respondents were in error for the same reasons in that their decisions conform to the position of the first respondent.

27    I note at this point that a decision to refuse to accept the interlocutory application for filing was made by only the first, third and fourth respondents. The only letter from the second respondent upon which the applicant relied is that set out above of 27 April 2018. That communication does not comprise a decision to refuse to accept the application for filing (and nor does the first respondent's letter of 17 April 2018). I will return to this distinction. For the purpose of considering the principles and the matters relevant to the applicant's submissions, I take the decisions to be those referred to in the letters of 4 April 2018, 10 April 2018, 2 May 2018 and 16 May 2018 (Decisions).

Legislative scheme for review

28    The Registrars made their Decisions under r 2.26 of the Rules which 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.

29    The Decisions are of an administrative character and susceptible to review pursuant to s 5(1) of the ADJR Act: see Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; (2010) 268 ALR 222 at [49] (Marshall, Cowdroy & Buchanan JJ); Nyoni v Murphy [2018] FCAFC 75 at [32]-[37] (Barker, Banks-Smith & Colvin JJ).

30    Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:

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 or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(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;

(i)    that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(i)    any other exercise of a power in a way that constitutes abuse of the power.

31    Section 16(1) of the ADJR Act sets out the power of the Court to make orders on an application for an order of review in respect of a decision and relevantly provides:

16    Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review

(1)    On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:

(a)    an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)    an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)    an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

32    During the hearing I invited the applicant to identify the paragraphs of s 5(1) of the ADJR Act upon which he ought to rely. He referred to s 5(1)(g) - that the Decisions were induced or affected by fraud.

The applicant's submissions

33    The applicant made a range of oral and written submissions that can be encompassed by the following:

(a)    the Registrars have not challenged his review application and have not said he is wrong;

(b)    there are no facts or details that show how the Full Court judgment reached finality;

(c)    the first respondent said he (the applicant) was a vexatious litigant and that is why he has been treated differently and as if his application is an abuse of process;

(d)    there was an unintentional error and r 39.05 should be invoked;

(e)    the applicant tried to inform the Full Court that the orders should be set aside before they were entered and so r 39.04 applies;

(f)    he wished to rely on Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd's Syndicate 2003 [2018] FCAFC 119 (Allsop CJ, Lee & Derrington JJ);

(g)    the cases of Stubbs v The Queen [2017] ACTCA 58 (Elkaim & Bromwich JJ, Robinson AJ) and Lowbeer v De Varda [2018] FCAFC 115 (Reeves, Farrell & Colvin JJ) support his position;

(h)    some 14 justices have looked at the issue of costs and that Tan & Tan are forbidden by law from double-dipping, and faced with that 'brick wall' the first respondent should have known there was an issue to be considered: the first respondent failed to look at the case and he could not properly determine that the matter has reached finality;

(i)    the applicant did not seek legal advice but sought procedural assistance and did not receive it; and

(j)    the Registrars are seeking to obstruct, frustrate and delay the due course of justice.

Consideration

34    Part 39 of the Rules relevantly deals with entry of judgments and orders.

35    Rule 39.01 provides that a judgment or order takes effect on the date on which the judgment is pronounced or the order is made.

36    Entry of judgment or orders is a different step to their pronouncement. Entry is dealt with by r 39.31 to r 39.35 of the Rules. In this case, it is not in issue that the orders of the Full Court were entered. They were entered by a Registrar of the Court. The date that the entry was stamped is 29 March 2018. A copy of the entered order was apparently provided to the applicant by the first respondent.

37    Rule 39.04 provides that the Court may vary or set aside a judgment or order before it has been entered.

38    Rule 39.05 provides that the Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

39    The discretion under r 39.04 is invoked in limited circumstances. Generally, such an order will be made to deal with technical or incidental changes to the form or content of orders, or to remove an ambiguity. The rule does not provide an unfettered discretion to reargue or reconstruct a case. It may be exercised if the court is convinced that it has proceeded on a wrong basis or where there is some matter calling for review: see generally 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] FCAFC 41; (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 (Brennan, Dawson, Toohey & Gaudron JJ). The High Court in Smith v New South Wales Bar Association noted in particular 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.

40    As to r 39.05, the power is more circumscribed than in the pre-entry context, and may be exercised in the stipulated circumstances provided for.

41    In this case, on the face of the application the applicant seeks by the interlocutory application to rely on r 39.04. The orders were entered and the applicant does not suggest otherwise. The orders were not revised or recalled before entry. There was no application filed prior to entry to seek to vary or amend the orders. Even accepting the applicant's evidence that he wanted or started to say something about that issue over the telephone after the Full Court delivered its judgment on 27 March 2018, the fact remains that no application was filed prior to entry of the orders. That is the context in which the Decisions are to be considered.

42    Rule 2.26 of the Rules empowers a Registrar to refuse to accept a document if he or she is satisfied that the document is an abuse of process of the Court or is frivolous or vexatious. The Registrars were so satisfied.

43    In Satchithanantham v National Australia Bank Limited [2009] FCA 1171; (2009) 260 ALR 567 at [43], Foster J stated as follows:

There is a great deal to be said for the arguments advanced by Counsel for the first respondent in support of the proposition that the Registrar's decision was plainly correct. But the first respondent does not need to go that far. The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing "on its face" is "an abuse of the process of the Court or is frivolous or vexatious" (the words are "if the document appears to the Registrar … to be …") (Emphasis added). That opinion must be honestly and actually formed. It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing. The Registrar must form that opinion reasonably (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report). This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision.

44    There is no meaningful distinction between the former O 46 r 7A and r 2.26: Nyoni v Murphy at [32].

45    There is no evidence before me that would provide a basis for concluding that the Registrars did not actually and honestly form the opinions expressed in their letters that comprise the Decisions to the effect that the application and affidavit comprised an abuse of process or were frivolous or vexatious. 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.

47    The terms of the application and affidavits and their reference to r 39.04 provide a reasonable basis for the formation of the Registrars' opinions.

48    I accept that r 2.26 refers to a finding that is to be made on the face of the interlocutory application and documents filed with it, but in my view the context and purpose of the rule clearly permits the Registrars to have regard to the decision of the Full Court to which the applicant referred in the interlocutory application. Otherwise, the Registrars would have been denied knowledge of the very orders that give rise to the application. The orders and the fact they were entered properly inform the decision of the Registrars and form part of the legitimate context to which they may have regard: Shaw v Buljan [2016] FCA 829 at [55] (Charlesworth J).

49    On its face, the application and affidavit sought to invoke r 39.04. Those documents did not invoke r 39.05. They made no claim of the kind provided for in r 39.05. Nor, to my mind, could the applicant have reasonably invoked r 39.05: there was no evidence to support reliance on any of the provisions of s 39.05. The orders were not made in the applicant's absence; there is no suggestion the orders were obtained by fraud; the decision was not interlocutory; it was not for an injunction or the appointment of a receiver; there is no suggestion the orders do not reflect the intention of the Court (as is apparent from the reasons); there was no issue of consent; and there is no suggestion of any clerical error or other error justifying the application of the slip rule (see generally Nyoni v Murphy at [46]-[47]). I note, however, that the letter from the second respondent of 27 April 2018 suggests that the applicant raised r 39.05(b) and (c) in correspondence. Nothing on the face of the application or affidavit suggests reliance on those provisions. Both documents recite reference to r 39.04. In any event, there is no basis enunciated to ground an allegation that the decision of the Full Court was procured by fraud. The decision of the Full Court was not interlocutory.

50    I do not consider there is any foundation for the claim that the Decisions of the Registrars were induced or affected by fraud as referred to in s 5(1)(g) of the ADJR Act. Their Decisions are expressly based on the fact that orders were made by the Full Court following an appeal and were entered. Whilst the applicant said he relies only upon s 5(1)(g) of the ADJR Act, taking into account that he is self-represented, I have also considered whether his complaints might fall within any of the other provisions of s 5(1). I am satisfied on the evidence that the Registrars cannot be said to have acted contrary to such provisions. In this context I have also taken into account Markovic J's consideration of s 5(1)(e) and s 5(2)(g) and the test for unreasonableness in SZVCP v Cho [2017] FCA 310 at [29]-[40]. I do not consider the Decisions can be said to be legally unreasonable.

51    In reaching my conclusions, I have taken into account the various submissions made by the applicant and referred to at [33] above.

52    As to the submission at [33(a)], the fact that the respondents have filed submitting notices means nothing more than that they do not wish to be heard on the application and will abide by the decision. It is not a concession.

53    As to the submission at [33(b)], the facts upon which the opinions were reached are obvious: the Full Court had delivered its reasons and orders had been made and entered.

54    As to [33(c)], the first respondent did not say the applicant was a vexatious litigant. The letters refer to the terms of r 2.26 itself: that is, that he was satisfied that the documents were frivolous or vexatious. 'Vexatious' qualifies the relevant document, not the applicant.

55     As to [33(d)], r 39.05 was not invoked on the face of the documents. However, in any event there is no evidence to support a contention of unintentional error on the part of the Full Court. The orders are consistent with its reasons.

56    As to [33(e)], the submission has already been dealt with at [41] above.

57    The submissions at [33(f)], [33(g)] and [33(h)] can be dealt with collectively. The applicant seeks to reargue his claim that Tan & Tan is not entitled to the benefit of any costs order because it was insured for exposure to costs. The applicant categorises Tan & Tan's conduct as 'double-dipping' or fraud. That claim has been argued by the applicant and lost (see Cristovao v Tan & Tan Lawyers Pty Ltd [2017] WADC 36 at [28]-[34] and the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd at [28]-[44]). It was not for the Registrars, in exercising their power under r 2.26, to consider or adjudicate upon whether such argument had any merit. Their role was an administrative one.

58    The applicant's reference to 14 justices having considered the double-dipping or fraud aspect is apparently a reference to the collective number of judges who heard and determined Stubbs v The Queen; Lowbeer v De Varda; Tov-Lev v Lowbeer (No 2) [2014] FCA 379 (Rares J)) and Ramsay Health Care v Compton.

59    None of those cases assist the applicant on this application. First, they are not concerned with the principles that apply on a review from an administrative decision of a Registrar. As already addressed, it is not for the Registrar to assess the merits of matters that have already been assessed and determined by the Full Court and by an appellate process. The applicant is seeking to re-agitate his claims in an impermissible manner. Second, and regardless, those cases do not support any contention that the Full Court's reasons as to the right of Tan & Tan to recover costs were wrong. They are quite distinguishable.

60    Stubbs v The Queen deals with a criminal conviction of a lawyer who received legal aid funding on behalf of his client but also, without disclosing such fact, received payments from his client's mother for his services. By statute, a legal practitioner in receipt of a grant of legal aid was precluded from demanding or accepting payment for services in respect of which a legal aid grant was made. In such circumstances the lawyer was convicted of obtaining property by deception. The scenario is factually and legally distinct from that relating to Tan & Tan's entitlement to a costs order.

61    In Lowbeer v De Varda, the Full Court upheld a decision that no debt in reality was owed on a costs order because those costs were in fact incurred by a third party (the Congregation) and not by the successful litigant (Mr Lowbeer). There was insufficient evidence to establish that there was any contractual right of indemnity as between the Congregation and Mr Lowbeer such that the Congregation was obliged to indemnify Mr Lowbeer. Mr Lowbeer was not able to establish that the Congregation had any right to subrogation. The difficulties faced by Mr Lowbeer in establishing a valid debt were not faced by Tan & Tan or its insurer. Tan & Tan was entitled to a contractual right of indemnity from its insurer, its insurer had an interest in the litigation, and the long-established authorities that apply in such circumstances were referred to and applied by the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd at [38]-[44].

62    Ramsay Health Care v Compton does not concern issues of indemnities. It takes the 'double-dipping' allegation no further. The Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd took into account the principles (as discussed in Ramsay Health Care v Compton) that apply in ascertaining whether or not there is in truth and reality a debt owing to a petitioning creditor (at [34]).

63    Nor does the decision in Onley v Catlin Syndicate Ltd assist. It concerns a scenario where an insurer sought to deny an obligation to indemnify an insured for defence costs on the basis of alleged fraudulent non-disclosure. That is not this case. In fact, one of the key claims of the applicant in this case rests on the submission that Tan & Tan's insurer in fact paid the relevant costs.

64    As to the submissions referred to above at [33(i)] and [33 (j)], regardless of how the applicant classifies the request, it is clear from the letter from the second respondent of 27 April 2018 to the applicant that the applicant did in fact seek legal advice. It was entirely appropriate that no such advice be provided by a Registrar. The Registrar properly categorised such requests as requests for legal advice.

65    However, some assistance was provided to the applicant. For example, the first respondent informed the applicant that an affidavit is required in support of an interlocutory application. The Registrars suggested that the applicant seek legal advice and also provided information as to the Self Representation Service and potential community legal resources. The applicant was informed in writing that he could seek a review of a decision of a Registrar (separately, there was evidence before me that a Registrar of the Federal Circuit Court also assisted the applicant in explaining how this application for review should be commenced in either this Court or the Federal Circuit Court, and the time period during which it was to be commenced). I note that the applicant also suggested that he was not assisted because he is self-represented or because of his Portuguese heritage. Such claims are entirely unsupported by and inconsistent with the evidence and, in my view, spurious.

66    There is no evidence to support the applicant's contention that the Registrars were seeking to obstruct, frustrate and delay the due course of justice. As is apparent on the face of their communications, their letters to the applicant were courteous and objective.

The letters of 17 April 2018 and 27 April 2018

67    As noted above, these letters do not record a decision as to whether or not the interlocutory application should be accepted or rejected for filing. The letters comprise no more than an answer to the applicant's letter and an explanation as to why it was not appropriate for a Registrar to provide legal advice. The applicant did not make separate submissions about the nature of these letters and instead submitted that all the letters from the Registrars comprised 'decisions' that followed that of 4 April 2018 and were wrong for the same reasons.

68    An application for review under s 5 of the ADJR Act may be made only by a person who is aggrieved by a 'decision' to which the ADJR Act applies. I do not consider the letters of 17 April 2018 and 27 April 2018 comprise 'decisions' within the meaning of s 3 of the ADJR Act. Section 3 defines a 'decision to which [the ADJR Act] applies' as a decision of an administrative character made under an enactment, with certain exceptions that are not relevant. Expressed generally, the ADJR Act defines an 'enactment' to be an Act or instrument such as regulations.

69    The fact that those letters do not reveal such decisions is a reason to dismiss the application insofar as it relates to the first respondent's letter of 17 April 2018, and the application insofar as it concerns the second respondent.

70    For completion, I note that even if those letters revealed a relevant decision, none of the grounds listed in s 5(1) of the ADJR Act are made out.

Extension of time to bring application

71    Section 11(1)(c) of the ADJR Act relevantly provides that unless the court extends the time for lodgement, applications for review are to be lodged within the 'prescribed period'. By s 11(3)(a), the 'prescribed period' is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after the day on which the document setting out the terms of the decision is furnished to the applicant.

72    The Decisions/letters the subject of the application encompassed a time span of 4 April 2018 to 16 May 2018 (which was received on 20 May 2018). The application for review was filed on 11 June 2018. For each of the Decisions/letters apart from that of 16 May 2018, an extension of time is required.

73    The applicant claimed he did not require any extension of time by referring only to the timing of receipt of the final decision. That submission ignores the fact that he seeks review of separate decisions by different Registrars and the earliest decision was dated 4 April 2018. However, I am prepared to proceed on the basis that, having rejected the applicant's submission, he seeks any necessary extension of time to institute the application for review.

74    I grant an extension on the basis that this is not a case of inaction or delay, but rather the product of an accumulation of Decisions and communications interspersed with attempts by the applicant to provide additional information to justify his repeated applications. I also note that the application has been brought within time for one of the Decisions, and that the matters raise common arguments. In the unusual circumstances of this case and taking into account the ongoing dialogue between the Registrars and the applicant over a period of two months, I consider the interests of justice justify the grant of an extension. The period of delay is not particularly long: the longest extension required is only approximately one month. In coming to this view, I have taken into account the principles said to guide the exercise of the discretion to extend time for such applications, as set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349. In particular, I have had regard to Wilcox J's reference to the relevance of a decision-maker being aware that his or her decision remains contested. That is particularly apt in this case.

Conclusion

75    Accordingly, to the extent an extension of time is required for the filing of the application, it is granted. However, the application for review is dismissed.

Associate:

Dated:    26 October 2018

SCHEDULE OF PARTIES