Litigation: The Risks of Self-Representation

In Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 (‘Cristovao’) the Full Federal Court considered a sequence of litigation which spanned five courts. The appellant was self-represented in all matters, challenging the findings of prior Courts through a series of arguments.

Background of Crisvovao v Tan Tan Lawyers

The proceeding initially concerned an action for professional negligence, commenced by the appellant against the respondent in the Magistrates Court of Western Australia. The defence of the respondent was funded by a professional indemnity insurer. The appellant (among other things) submitted that the relationship between the third-party insurer and the respondent in the professional negligence claim should have been disclosed pursuant to Order 9A of the Rules of the Supreme Court 1971 (WA) (‘Rule’). The claim was dismissed with costs to be paid by the appellant.

The costs were eventually assessed in the amount of $34,671.94, which later became the subject of a bankruptcy notice served on the appellant in September 2016. The appellant was unsuccessful in an application to set aside the bankruptcy notice and a creditor’s petition was thereafter filed and served on the appellant. The primary judge made a sequestration order (being an order which made the appellant bankrupt) and ordered that the respondent’s costs be taxed and paid from the estate of the appellant. The appellant appealed the making of the sequestration order to the Federal Court.

Grounds of appeal

The contentions made by the appellant were essentially that:

1. The primary judge should have “recused himself” from the hearing as he was a member of an earlier decision adverse to the appellant (‘Recusal Contention’).
2. The primary judge exhibited bias in rejecting the contention of the appellant that the Rule applied in the Magistrates Court (‘Pre-Judgment Contention’).
3. The primary judge was mistaken in being satisfied, pursuant to s 52(1) of the Bankruptcy Act 1966 (Cth) (‘Act’), that the debt owed to Tan & Tan Lawyers was still due and owing (‘Debt Owing Contention’).
4. The primary judge was mistaken in failing to be satisfied by the appellant, pursuant to s 52(2)(b) of the Act, that there was some “other sufficient cause” for the sequestration order not to be made (‘Sufficient Cause Contention’).

Federal Court’s Decision

The Recusal Contention was deemed to be made without substance as there was no submission made that the primary judge did not correctly record that he had been involved in a previous decision against the appellant.
It was deemed that the Pre-Judgment Contention was made without foundation as there was no basis for submitting that the primary judge exhibited partiality.

In considering the Debt Owing Contention, his Honour found that the debt had been proved through the evidence contained in the affidavit of debt. The appellant’s long expressed concern had no foundation and it was not necessary for the primary judge to analyse the alleged debt any further.
His Honour deemed that the Sufficient Cause Contention was not based on any genuine or arguable grounds. It was further outlined that the originating application was hopeless as it was just another way of arguing the appellant’s misconceived contentions as to the Rule.

Orders & seeking advice

The Federal Court dismissed the appellant’s argument, ordering that the prolonged sequence of appeals and the extensive costs involved were to be paid from the appellant’s estate. The decision in Cristovao confirms the importance of seeking appropriate advice, given by qualified professionals, prior to involvement in litigation. If you require any advice about commencing or defending litigation, feel free to contact our Litigation team by submitting an online enquiry or calling us on (07) 5592 1921.