Cristovao v Benter [2019] FCA 626

FEDERAL COURT OF AUSTRALIA

Cristovao v Benter [2019] FCA 626 File number: WAD 223 of 2019

Judge: COLVIN J

Date of judgment: 3 May 2019

Cases cited: Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 Cristovao v Trott [2018] FCA 360 Cristovao v Trott [2018] FCA 1605

Date of hearing: 3 May 2019

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 6

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: The Respondent filed a submitting notice save as to costs

ORDERS WAD 223 of 2019

BETWEEN: ROGERIO MARTINS CRISTOVAO Applicant

AND: REGISTRAR BENTER Respondent

JUDGE: COLVIN J DATE OF ORDER: 3 MAY 2019

THE COURT ORDERS THAT:

1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J: 1 On 26 October 2018, Banks-Smith J dismissed an application by Mr Cristovao in which he sought judicial review of decisions made by registrars of this Court: Cristovao v Trott [2018] FCA 1605. The decisions concerned the refusal of acceptance for filing of an interlocutory application to set aside the judgment of the Full Court in Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41. Mr Cristovao has brought an appeal against the decision of Banks-Smith J. The appeal is listed for hearing on 28 May 2019. 2 On 8 March 2018, McKerracher J dismissed an application by Mr Cristovao to state separate questions for trial in the appeal: Cristovao v Trott [2018] FCA 360. At that time, his Honour recorded that an application for summary judgment had been foreshadowed in correspondence, but the orders that his Honour made on that occasion did not address that application, or any other application. 3 It appears that Mr Cristovao then did bring an application for summary judgment in the appeal, because he now brings an application to review a decision of Registrar Benter refusing to accept such an application, and the matter comes before me today for the purposes of considering the appropriate approach to case management of that application. 4 I have raised with Mr Cristovao this morning a concern that no purpose would be served by considering the challenge to Registrar Benter's decision because, even if that application were heard and determined favourably and the application for summary judgment were to be received, then, given that the summary judgment application is raised at this late point in the course of the appeal, then the course which the Court would follow in those circumstances would be to list any such application to be heard at the same time as the appeal, because it would raise the same issues. Put another way, if Mr Cristovao wishes to seek to persuade the Full Court as convened that the appeal has such merit that it ought to be determined in a summary manner, then that is an argument that Mr Cristovao can advance before the Full Court, in any event, at the hearing that is listed to take place in a few weeks' time. 5 The appeal has been on foot for some time. It is listed imminently. In those circumstances, and for the reasons I have given, it seems to me that the present application is futile, in the sense that, procedurally, it would not achieve anything in advancing the issues that Mr Cristovao seeks to raise. Those matters will be before the Full Court, and will be able to be considered by the Full Court. I express no views about their merits, because those are matters for the Full Court. 6 In those circumstances, it seems to me that no purpose would be served by a referral for pro bono legal assistance, as requested by Mr Cristovao, and the application should be, and must be, dismissed. Therefore the order that I make on the application is that the application be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.