Gomez, In the matter of an application for leave to issue or file

[2019] HCATrans 184

[2019] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M86 of 2019

In the matter of -

an application by IRWIN GOMEZ for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 SEPTEMBER 2019, AT 9.41 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 27 June 2019, the applicant filed an application for leave to issue or file a writ of summons in this Court seeking the referral of certain questions to the Full Court of this Court and other relief.  For the reasons I now publish I would dismiss the application.

The order is:

1.The application is dismissed under rule 13.03.1 of the High Court Rules 2004 (Cth).

I publish that order.

I direct that the reasons as published be incorporated into the transcript.

On 17 April 2019, Gordon J directed the Registrar to refuse to issue or file an application by the applicant, Mr Gomez, for a writ of summons, without the prior leave of a Justice of this Court.  The applicant now seeks that leave.  The writ of summons that the applicant seeks to issue or file is the ninth application that he has filed in this Court related to the same underlying subject matter since this Court’s refusal on 15 August 2018 to grant the applicant special leave to appeal[1] from a decision of Moshinsky J on 2 March 2018 in the Federal Court of Australia[2].

[1]See Gomez v Carrafa& Anor [2018] HCASL 225.

[2]Gomez v Carrafa (Trustee) [2018] FCA 201.

Much of the history of the applications has been described by both Keane J[3] and Gordon J[4] respectively in earlier applications. I adopt that discussion, and set out below only the essence of the background. The relevant events stem from a sequestration order made against the estate of the applicant’s wife on 21 August 2014. The trustee in bankruptcy of the wife’s estate (“the Trustee”) sought orders in a trial, in which the applicant did not appear, in the Federal Circuit Court of Australia. At the conclusion of the trial, Judge Riley made declarations that transfers of property by the applicant’s wife to the applicant and to JNGO Pty Ltd, a company controlled by their son as the sole director and shareholder, were void pursuant s 120 of the Bankruptcy Act 1966 (Cth) and ordered payment to the Trustee of $123,139.01 held by JNGO Pty Ltd[5].

[3]Gomez v The Honourable Justice Moshinsky of the Federal Court of Australia& Ors (M126 of 2018) [2019] HCATrans 22 at lines 231-357.

[4]Gomezv The Honourable Justice Moshinsky of the Federal Court of Australia& Ors (M126 of 2018) [2019] HCATrans 85 at lines 61-222.

[5]Carrafa v Gomez & Anor [No 3] [2016] FCCA 3139; see especially at [42]-[43]; [233]-[234].

The applicant and JNGO Pty Ltd appealed to the Federal Court from the orders of the Federal Circuit Court.  On 2 March 2018 that appeal was dismissed by Moshinsky J[6].  On 5 April 2018, the applicant then brought an application for special leave to appeal from the decision of the Federal Court.  On 15 August 2018, Bell and Gageler JJ dismissed that application[7].

[6]Gomez v Carrafa (Trustee) [2018] FCA 201.

[7]Gomez v Carrafa & Anor [2018] HCASL 225.

On 28 August 2018, the applicant filed his first application following the dismissal of his application for special leave. This application was for an order to show cause under s 75(v) of the Constitution. A “Notice of Constitutional Matter”, purportedly under s 78B of the Judiciary Act 1903 (Cth), was filed almost a year later on 1 April 2019. As Gordon J explained, the applicant, in his 28 August 2018 application, sought an injunction against the Trustee to restrain him from dealing with properties of the bankrupt estate that were the subject of the void transfer and contended that “Moshinsky J should be compelled to defend his Honour’s judgment against allegations of jurisdictional error by the [applicant] and to give reasons why his Honour’s orders should not be quashed. In the alternative, the [applicant] seeks a writ of certiorari to quash the orders in the judgments below”[8].

[8]Gomezv The Honourable Justice Moshinsky of the Federal Court of Australia& Ors (M126 of 2018) [2019] HCATrans 85 at lines 116-127.

This application was dismissed by Gordon J on 30 April 2019 on the basis that it was an abuse of process and was doomed to fail.  Her Honour reiterated that the orders of Moshinsky J were binding upon the applicant and the Trustee unless and until they were set aside and that the applicant had failed in his application for special leave to appeal from those orders[9].

[9]Gomezv The Honourable Justice Moshinsky of the Federal Court of Australia& Ors (M126 of 2018) [2019] HCATrans 85 at lines 236-263.

On 29 January 2019, the applicant filed his second application subsequent to the special leave dismissal.  His second application may have been prompted by an application by the Trustee, on 7 December 2018, in the Federal Circuit Court for orders to deal with disputed assets.  The applicant’s second application was a summons seeking a stay or dismissal of the Federal Circuit Court proceeding and orders to restrain the Trustee from otherwise dealing with the disputed assets or lodging further incidental proceedings.  The applicant also sought a stay of the orders made by Judge Riley and Moshinsky J.

On 20 February 2019, Keane J dismissed the 29 January 2019 summons.[10]  As Keane J explained, the rights and duties between the applicant and the Trustee are binding until the orders of the Federal Circuit Court and the Federal Court are set aside.  Further, the attempt by the applicant to relitigate those issues that were finally concluded by this Court’s refusal of special leave to appeal was a clear abuse of the processes of this Court[11].

[10]Gomez v The Honourable Justice Moshinsky of the Federal Court of Australia & Ors (M126 of 2018) [2019] HCATrans 22.

[11]Gomez v The Honourable Justice Moshinsky of the Federal Court of Australia& Ors (M126 of 2018) [2019] HCATrans 22 at lines 351-377.

On 19 March 2019, the applicant filed his third application subsequent to the special leave dismissal.  This was an application for leave to appeal from the orders of Keane J.  I considered that application, together with Nettle J, concurrently with my consideration of the present application.  It was dismissed by Nettle J and me this morning as having no prospects of success.

On 19 March 2019, the applicant also filed a fourth application subsequent to the special leave dismissal.  The fourth application was for a constitutional or other writ seeking an order that the Federal Circuit Court “be prohibited from making any findings, orders and/or otherwise dealing with” a matter incidental to the applicant’s application for an order to show cause.  On 4 June 2019, Gordon J dismissed this application on the basis that it was a “further attempt” to raise the same underlying subject matter and it was therefore an abuse of process[12].

[12]Gomez v Judge Burchardt of the Federal Circuit Court& Ors (M42 of 2019) [2019] HCATrans 116 at lines 1-5; 66-73.

On 15 April 2019, the applicant filed his fifth application subsequent to the special leave dismissal.  This was a summons in the proceedings before Gordon J seeking a stay of the orders made by Keane J on 20 February 2019 and an order that the Trustee be restrained from dealing with the disputed assets on the ground that he had filed an application for leave to appeal from the decision of Keane J.  On 30 April 2019, Gordon J dismissed the summons concluding that the “numerous attempts, of which the summons dated 15 April 2019 is the latest, to relitigate those matters which were concluded by this Court’s refusal to grant the [applicant] special leave to appeal from the judgment of Moshinsky J, is an abuse of the processes of the Court”[13].

[13]Gomez v The Honourable Justice Moshinsky of the Federal Court of Australia [2019] HCATrans 85 at lines 244-248.

On 15 April 2019, the applicant also filed his sixth application subsequent to the dismissal of his special leave application.  The sixth application was another summons, filed jointly with JNGO Pty Ltd, seeking a stay of proceedings in a matter incidental to the applicant’s application for an order to show cause.  Gordon J dismissed the summons on 4 June 2019 on the basis that it amounted to another attempt to relitigate the same matters.

On 24 May 2019, the applicant filed his seventh application subsequent to the special leave dismissal.  This was an application for leave to appeal from the judgment and orders of Gordon J of 30 April 2019.  I considered that application, together with Nettle J, concurrently with my consideration of the present application.  It was dismissed by Nettle J and me this morning as having no prospects of success.

On 27 June 2019, the applicant filed his eighth application subsequent to the dismissal of his special leave application.  This was an application for leave to appeal from the judgment and orders of Gordon J of 4 June 2019.  I considered that application, together with Nettle J, concurrently with my consideration of the present application.  It was dismissed by Nettle J and me this morning as having no prospects of success.

The writ of summons that the applicant now seeks leave to issue or file is his ninth application subsequent to the dismissal of his special leave application. He seeks leave to file the summons against JNGO Pty Ltd and the Trustee. In the summons, he refers to the decision of Gordon J on 30 April 2019 which dismissed his original proceedings, which attempted to challenge the decision of Moshinsky J despite the dismissal of the applicant’s special leave application. He claims that, contrary to the decision of Gordon J, there has not been an abuse of process. He submits that “there are underlying questions that have never been answered” and that “[t]here is no evidence...that the questions of law pertaining to the jurisdictional errors...have ever been addressed...”. The applicant submits that the disposition of 15 August 2018 to refuse special leave to appeal “does not address the jurisdictional errors nor the correctness of the judgment” and that it has been “misinterpreted” by the Trustee. He also argues that the “court will fall into jurisdictional error if it fails to addresses the highlighted jurisdictional errors”, that there is a requirement for the Court to “satisfy Section 32 of the Judiciary Act” and that it is “unlawful to enforce the orders” of the Federal Court and the Federal Circuit Court.

The applicant seeks the referral of these issues to a Full Court of this Court.  The matter should not be referred.  It is unclear whether the applicant has already attempted to raise these issues in his application for leave to appeal.  In any event, his submissions are hopeless.  As I explained in Dimitrov v The Supreme Court of Victoria[14], there is no right to bring proceedings for jurisdictional error subsequent to an unsuccessful special leave application. There is no justification for such proceedings here. The application is vexatious and an abuse of process. The proposed summons has no arguable basis. The application for leave to issue or file should be dismissed without an oral hearing pursuant to r 13.03.1 of the High Court Rules 2004 (Cth).

[14](2017) 263 CLR 130 at 138-139 [19].

AT 9:42 AM THE MATTER WAS CONCLUDED