Gomez v Carrafa - [2022] FCA 1013

FEDERAL COURT OF AUSTRALIA
Gomez v Carrafa [2022] FCA 1013

File number(s): VID 690 of 2020

Judgment of: MCELWAINE J

Date of judgment: 23 August 2022

Catchwords:
PRACTICE AND PROCEDURE – Application to file further amended statement of claim – determination of strike out application – exercise of discretion for leave to amend – where pleadings fail to disclose a reasonable cause of action and causes embarrassment, prejudice or delay– where applicant has had 5 attempts to plead a reasonable cause of action – application for leave to amend refused – proceeding dismissed

BANKRUPTCY – Where applicant alleges malicious prosecution by trustee in bankruptcy – where applicant alleges misfeasance in public office by trustee in bankruptcy – where pleading fails to grapple with essential elements of each claim– proceeding dismissed

Legislation:
Bankruptcy Act 1966 (Cth) ss 265, 266

Federal Court of Australia Act 1976 (Cth) ss 31, 37M, 37N, 37P

Federal Court Rules 2011 (Cth) r 16.21

Cases cited:
A v New South Wales (2007) 230 CLR 500; [2007] HCA 10

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

BBK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1001

Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343

Farrington v Thompson and Bridgland [1959] VR 286

Martin v Watson

Parsons v McBain (2001) 109 FCR 120; [2001] FCA 376

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97

Sheehan v Brett-Young [2016] VSC 53

Varawa v Howard SmithCo Ltd (1911) 13 CLR 35

Williams v Spautz (1992) 174 CLR 509

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 56

Date of hearing: 23 August 2022

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr B Barr

Solicitor for the Respondent: Zervos Lawyers

ORDERS

VID 690 of 2020

BETWEEN:
KALAISELVI GOMEZ

Applicant

AND:
MICHAEL CARRAFA

Respondent

ORDER MADE BY:

MCELWAINE J

DATE OF ORDER:

23 AUGUST 2022

THE COURT ORDERS THAT:
1.Order 4 of the orders made 5 July 2022 be varied to 4.00pm on 5 August 2022.
2.The applicant’s interlocutory application filed 5 August 2022 is dismissed and leave to file the amended statement of claim is refused.
3.The proceeding is dismissed.
4.The applicant is to pay the respondent’s costs of the proceeding to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SETTLED REASONS FOR JUDGMENT
EX TEMPORE
MCELWAINE J:

I delivered ex tempore reasons in this matter on 23 August 2022. Very recently Allsop CJ has drawn attention to the importance of providing written reasons to self-represented litigants which substantially and accurately reflect the oral reasons: BBK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1001. What follows is an edited and settled version of my reasons.
I commence with the essential history of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gomez v Carrafa

Details

AGLC: Gomez v Carrafa [2022] FCA 1013
Case: [2022] FCA 1013
Decision Date: 23 August 2022

CaseChat Overview and Summary

The proceedings in Gomez v Carrafa involved an application by the applicant to file a further amended statement of claim. The respondent, Carrafa, a trustee in bankruptcy, sought to have the proceeding dismissed and the application to amend refused. The dispute centred around allegations of malicious prosecution and misfeasance in public office by the respondent against the applicant, Gomez. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the applicant should be granted leave to file a further amended statement of claim. This involved assessing whether the existing pleadings disclosed a reasonable cause of action and whether granting leave would cause embarrassment, prejudice, or delay to the respondent. The court had to consider the history of amendments in the case, including that the applicant had already been granted four opportunities to amend their pleadings without success.

The court found that the applicant's pleadings failed to adequately address the essential elements of the claims of malicious prosecution and misfeasance in public office. Given that this was the applicant's fifth attempt to amend the pleadings, the court exercised its discretion under the rules of court to refuse leave to amend. The court determined that further amendments would cause unnecessary delay and prejudice to the respondent. Consequently, the court dismissed the proceeding and refused the application to amend the statement of claim.

Orders