Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 794

FEDERAL COURT OF AUSTRALIA

Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 794 File number(s): WAD 332 of 2017

Judge(s): SIOPIS J

Date of judgment: 13 July 2017

Date of publication of reasons: 14 July 2017

Date of hearing: 13 July 2017

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 18

Counsel for the Applicant: The applicant did not appear.

Counsel for the First Respondent: Mr SF Popperwell

Solicitor for the First Respondent: Denman Popperwell Lawyers

Counsel for the Second Respondent: The Second Respondent did not appear.

ORDERS WAD 332 of 2017

BETWEEN: ROGERIO MARTINS CRISTOVAO Applicant

AND: TAN & TAN LAWYERS PTY LTD (ACN 125 895 187) First Respondent

REGISTRAR OF THE COURT OF APPEAL OF THE SUPREME COURT OF WESTERN AUSTRALIA Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 13 JULY 2017

THE COURT ORDERS THAT:

1. The proceeding commenced by the applicant's originating application filed on 13 July 2017 be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 On 12 July 2017, the applicant, Mr Cristovao, lodged and on 13 July 2017, the Registry accepted for filing, an originating application headed, "Originating application for relief under section 39B Judiciary Act 1903". The respondents to the originating application are Tan & Tan Lawyers Pty Ltd (Tan & Tan), as the first respondent, and the Registrar of the Court of Appeal of the Supreme Court of Western Australia (the Court of Appeal), as the second respondent. 2 The originating application contains no statement of final relief but appears to call upon the Federal Court to resolve a "controversy" between Mr Cristovao and the Registrar of the Court of Appeal. 3 On 11 July 2017, the Court had informed Mr Cristovao that judgment in a creditor's petition brought by Tan & Tan against Mr Cristovao would be delivered at 11:15 am on 13 July 2017. 4 The background to the originating application is that Mr Cristovao has an appeal (CACV 28 of 2017) pending before the Court of Appeal. An issue in that appeal is whether a costs order made against Mr Cristovao in the Magistrates Court of Western Australia (the Magistrates Court) was validly made. The costs order, and subsequently, the costs assessment, were made in respect of an unsuccessful claim for professional negligence that Mr Cristovao brought against Tan & Tan. 5 It is Mr Cristovao's liability under this costs order, which is the debt upon which Tan & Tan's creditor's petition was founded. 6 It is Mr Cristovao's contention in the Court of Appeal proceeding that the costs order made in the Magistrates Court was not validly made because there had been non-compliance with O 9A of the Rules of the Supreme Court 1971 (WA) (the RSC) by Tan & Tan because it had not advised Mr Cristovao that its defence was being funded by its professional indemnity insurers, Law Mutual (WA). 7 I observe that it has been held previously by the Court of Appeal in an earlier appeal proceeding brought by Mr Cristovao (CACV 90 of 2016), that O 9A of the RSC did not apply to proceedings in the Magistrates Court. The appeal currently pending before the Court of Appeal seeks to re-agitate the same point. 8 The claim which Mr Cristovao makes in this originating application is that the Registrar of the Court of Appeal is in dereliction of her duties. On the material before the Court, it appears that the alleged dereliction is that the Registrar has failed to provide Mr Cristovao with a document signed by a court officer showing that the Court of Appeal was aware that Tan & Tan is being supported financially in a "clandestine manner by an interested non-party". Mr Cristovao sought this "proof" in a letter, dated 4 May 2017. Mr Cristovao concluded that letter by stating that if "such proof" was not forthcoming he wanted the Court of Appeal to provide him with reasons why it was exempting Tan & Tan from the due observance of O 9A of the RSC. 9 There is also before the Court a letter, dated 8 July 2017, wherein Mr Cristovao complained to the Attorney General of Western Australia and the Chief Justice of the Supreme Court of Western Australia that the Registrar of the Court of Appeal was favouring the opposite party by refusing to make public the "Court's records" referred to in his letter, dated 4 May 2017. Mr Cristovao's letter of 8 July 2017, went on to say that on the expiry of seven days from the date of the letter, he would: have no choice but to submit the issue of the controversy of the above subject matter to the Federal Court of Australia thereby invoking its jurisdiction under s 39(B)(1A)(c) [sic] of the Judiciary Act, 1903. 10 Mr Cristovao's originating application, also, claimed that the "dereliction of duties of the Court of Appeal Registrar" favouring "the opposition party" was a contravention of the "federal laws" under s 9 of the Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) and s 28 of the Age Discrimination Act 2004 (Cth) (the Age Discrimination Act). 11 Further, by way of interlocutory relief, Mr Cristovao also sought that the judgment on the creditor's petition (Tan & Tan Lawyers Pty Ltd, in the matter of Cristovao v Cristovao [2017] FCA 786) which was listed to be delivered on 13 July 2017 be held in abeyance pending the "quelling of the controversy". 12 At the hearing at 11:15 am today for the delivery of the judgment, Mr Cristovao was not present in Court. Mr Popperwell, who was present, advised that his client had not been served with Mr Cristovao's originating application. 13 Before delivery of judgment on the creditor's petition, I summarily dismissed Mr Cristovao's originating application filed on 13 July 2017 under s 31A of the Federal Court of Australia Act 1976 (Cth) and said that I would publish reasons for judgment later. 14 These are the reasons. 15 The claims which Mr Cristovao makes in his originating application do not fall within the jurisdiction of the Federal Court. 16 First, neither Tan & Tan nor the Registrar of the Court of Appeal is a Commonwealth officer and, therefore, s 39B(1) of the Judiciary Act 1903 (Cth) has no application to their conduct. 17 Secondly, insofar as Mr Cristovao seeks to allege in his originating application, that the conduct of the Registrar of the Court of Appeal is unlawfully discriminatory under the Racial Discrimination Act or the Age Discrimination Act, there is no evidence that Mr Cristovao has made any such complaint to the Australian Human Rights Commission and that the Australian Human Rights Commission has terminated the complaint. Further, Mr Cristovao has not obtained leave to bring any such claim in the Federal Court. Accordingly, the Federal Court has no jurisdiction to entertain Mr Cristovao's complaint insofar as he would seek to allege discriminatory conduct. 18 It follows that Mr Cristovao's originating application has no reasonable prospect of success and is, accordingly, summarily dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.