Federal Court of Australia Muto v Janover [2020] FCA 1579 Appeal from: Janover v Muto [2020] FCCA 1351 File number(s): VID 424 of 2020 Judgment of: ANDERSON J Date of judgment: 28 October 2020 Date of publication of reasons: 30 October 2020 Catchwords: APPEAL AND NEW TRIAL – appeal from Federal Circuit Court – sole ground of appeal – whether primary judge erred by not allowing the appellant to have legal assistance or a legal guardian in the Federal Circuit Court – necessary for appellant to demonstrate error in the primary judge's findings or conclusion – no error demonstrated – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth), Div 2 of Pt III Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Fox v Percy (2003) 214 CLR 118 Janover v Muto [2020] FCCA 1351 Lee v Lee [2019] HCA 28 Robinson Helicopter Co Inc v McDermott [2016] HCA 22 Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 15 Date of hearing: 28 October 2020 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS VID 424 of 2020 BETWEEN: MILVAN MUTO Appellant AND: LEWIS JANOVER Respondent order made by: ANDERSON J DATE OF ORDER: 28 OCTOBER 2020 THE COURT ORDERS THAT: 1. The appellant's appeal is dismissed. 2. The appellant will pay the respondent's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) ANDERSON J: Introduction 1 This is an appeal filed by the applicant, Mr Muto, on 23 June 2020. Mr Muto appeals from the decision of Judge Riethmuller in Janover v Muto [2020] FCCA 1351 (primary judgment). There is a sole ground of appeal. Mr Muto's ground of appeal is that Judge Riethmuller "failed to allow [Mr Muto] to have legal assistance or a legal guardian". 2 While the material Mr Muto has filed does not specifically identify the part of the primary judge's judgment which is said to be in error, it is tolerably clear that Mr Muto's appeal relates to [52]-[54] of the primary judgment, where the primary judge stated: Medical conditions 52. The respondent submits that he is 'very sick, mentally and also broke [his] back': see paragraph [11] of the Affidavit filed on 17 October 2019. The respondent says he has been prescribed Valium and Prozac for about 5 years and has a doctor's certificate to explain why he cannot work and is not capable of representing himself in court proceedings. 53. In his affidavit filed on 27 August 2019, the respondent further details that he is not mentally capable of representing himself in the Supreme Court 'due to [his] anxiety, stress levels and diagnos[is] of an adjustment disorder': see paragraph [3]. 54. The applicant presented as capable and coherent, cross-examining the witnesses in detail. The applicant has not sought to have a litigation guardian appointed. On the material I am not satisfied that he requires a litigation guardian. 3 At the conclusion of the hearing of this proceeding on 28 October 2020, I made orders dismissing this appeal. These are my reasons for doing so. Principles 4 As to appellate review, the following principles are uncontroversial. 5 The exercise of this Court's appellate jurisdiction, as governed in the present case by Div 2 of Pt III of the Federal Court of Australia Act 1976 (Cth), involves an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Branir) at [20] per Allsop J, with Drummond and Mansfield JJ agreeing; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 (Aldi) at [45] per Perram J. 6 The appellate court must conduct a "real review" of the trial and the primary judge's reasons: Lee v Lee [2019] HCA 28; 93 ALJR 993; 372 ALR 383; 89 MVR 388 (Lee) at [55] per Bell, Gageler, Nettle and Edelman JJ, citing Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] per Gleeson CJ, Gummow and Kirby JJ and Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679; 331 ALR 550 at [43] per French, Bell, Keane, Nettle and Gordon JJ. 7 The task of the appellate court is the correction of error: Branir at [22]. 8 As such, for the appellate court to vary or reverse the decision of the primary judge, it is necessary for an appellate court to demonstrate error in the primary judge's findings or conclusion: Branir at [21]. 9 Error is not demonstrated merely because the appellate court disagrees with the primary judge: Aldi at [45]. And, conversely, it is unnecessary for the primary judge's decision to be characterised as "plainly" or "obviously" wrong: Aldi at [6]–[7]. To require this would set the standard of appellate review too high: ibid at [9]. 10 With that in mind, Mr Muto had to show that there was an error in the primary judge's decision not to provide Mr Muto with a legal guardian or legal representation. Mr Muto's submissions 11 I have read Mr Muto's submissions, which were emailed to my Chambers on 16 October 2020, rather than filed. I marked those submissions as Exhibit A-1, so that they can form part of the formal Court record. I have also read a medical certificate provided by Dr Glen Russell concerning Mr Muto, which appears to be dated 25 August 2020, and which was sent to my Chambers by Mr Muto on 22 October 2020. I marked that certificate as Exhibit A-2. 12 Mr Muto submits (among other things) that: (1) the primary judge did not allow Mr Muto to ask for legal representation or to adjourn the case until Mr Muto had exhausted all possibilities to obtain legal representation; (2) this case is far too complex for a self-represented litigant; (3) the primary judge placed no weight on a family doctor's letter to the effect that Mr Muto was incapable of representing himself in Court. 13 The other matters submitted by Mr Muto were not directed to Mr Muto's ground of appeal. Rather, they were directed to whether a debt is owed to Mr Janover by Mr Muto. Disposition 14 I have reviewed the primary judge's reasons and the submissions of the parties. I am not satisfied that there is any appealable error in the primary judge's judgment for the following reasons: (1) The primary judge had the benefit of hearing Mr Muto conduct his case in the Federal Circuit Court. (2) It is evident from [52]-[54] of the primary judge's reasons that the primary judge considered the material of Mr Muto, which was to the effect that, for medical reasons, Mr Muto was not capable of representing himself. (3) Notwithstanding that evidence, the primary judge at [54] clearly concluded that Mr Muto was capable and coherent and cross-examined witnesses in detail. (While the primary judge's reasons at [54] make reference to the "applicant", that should plainly be a reference to "the respondent" in the proceeding below, Mr Muto, given the context provided by [52] and [53] of the primary judge's reasons.) (4) It was on that basis that the primary judge concluded that the primary judge was not satisfied that Mr Muto required a litigation guardian. (5) There is simply no submission or evidence filed in this Court which would provide a basis to set aside that decision of the primary judge, who had the benefit of observing Mr Muto conduct Mr Muto's case in the proceeding below. (6) The primary judge noted at [54] that Mr Muto, in the proceeding below, had "not sought to have a litigation guardian appointed". To enable Mr Muto to now seek a litigation guardian or other legal assistance would offend the principle in Metwally v University of Wollongong (1985) 60 ALR 68. There, the Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) said at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (7) The submissions which Mr Muto has made regarding whether a debt is owed to Mr Janover by Mr Muto do not relate to the ground of appeal in Mr Muto's notice of appeal. It is that notice of appeal which is the basis of this Court's jurisdiction. Even if those submissions properly related to a ground of appeal of Mr Muto (and, for the avoidance of doubt, I am not satisfied that they do), there is insufficient material before this Court to show that the primary judge's decision concerning any such debt involved appealable error. (8) Finally, no substantial injustice would result if this appeal is dismissed. This is principally because it is apparent that Mr Muto has been afforded numerous opportunities in different courts and tribunals to ventilate his complaints regarding the debt owed by Mr Muto to Mr Janover: see [39]-[44] of the primary judgment. Indeed, the primary judge stated at [50] of the primary judgment that, "[o]n the material before the [primary judge,] … it is difficult to see that there is any arguable case or substantial reason for concluding that the judgment amount is not due" to Mr Janover. 15 For these reasons, Mr Muto's appeal will be dismissed, with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate: Dated: 30 October 2020