Gomez v Carrafa

[2020] VSC 661

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 02533

KALAISELVI GOMEZ	Plaintiff
v
MICHAEL CARRAFA	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	Not applicable: written submissions filed on 31 July 2020 and 9 September 2020
DATE OF JUDGMENT:	13 October 2020
CASE MAY BE CITED AS:	Gomez v Carrafa
MEDIUM NEUTRAL CITATION:	[2020] VSC 661

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PRACTICE AND PROCEDURE – Whether proceeding is a “special federal matter” within the meaning of s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) – Whether proceeding is a matter arising under the Bankruptcy Act 1966 (Cth) – Whether this Court must order transfer of the proceeding to the Federal Court – Finding that the matter is a special federal matter – Turner v Gorkowski [2014] VSCA 248; Fewin Pty Ltd v Burke (2015) 302 FLR 32 referred to – Whether there are special reasons within the meaning of s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) that the matter be determined by this Court – Finding that there are no special reasons – Computershare Ltd v Perpetual Registrars Ltd (No 3) (2000) 2 VR 666; Telstra Corporation Ltd v CXA Communications Ltd (1998) 146 FLR 481 referred to – Order that proceeding be transferred to the Federal Court.

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HER HONOUR:

Introduction

1. On 29 July 2020, the Court wrote to the parties to give them the opportunity to make submissions on the question of whether this proceeding should be transferred to the Federal Court of Australia (‘Federal Court’).  The plaintiff in this proceeding, Ms Gomez, is a discharged bankrupt.  In or around July 2014, the defendant, Mr Carrafa, was appointed as trustee of Ms Gomez’s estate in bankruptcy.  Ms Gomez alleges that between 2014 and 2018 Mr Carrafa, among other things, misused his powers as trustee, breached his duty of care as a trustee, and engaged in misleading and deceptive conduct.[1] 

   [1]Ms Gomez is self-represented.  However, her pleadings and submissions demonstrate a good comprehension of legal principles and terminology, such as, for example, the elements of the cause of action of malicious prosecution.

1. The parties disagree as to whether a transfer should be made.  For the reasons which follow, I consider that the proceeding must be transferred to the Federal Court.

Procedural history and the plaintiff’s claims

1. Before discussing the legal framework which governs the transfer of proceedings between different Australian jurisdictions, it is helpful to set out some of the allegations made in Ms Gomez’s statement of claim.

1. Ms Gomez’s statement of claim filed on 9 June 2020 claims, in summary, as follows:

(a)   Mr Carrafa was appointed as trustee of Ms Gomez’s estate in bankruptcy in July 2014, and remained in that role until August 2017;

(b)  between December 2014 and January 2015, Ms Gomez and Mr Carrafa exchanged correspondence with respect to Mr Carrafa’s requests for information about Ms Gomez’s bank accounts and other assets;

(c)   on 2…