Gomez v Judge Burchardt & Ors

[2019] HCATrans 116

[2019] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M42 of 2019

B e t w e e n -

IRWIN GOMEZ

Plaintiff

and

JUDGE BURCHARDT OF THE FEDERAL CIRCUIT COURT

First Defendant

JNGO PTY LTD (ACN 168 239 781)

Second Defendant

MICHAEL CARRAFA (AS TRUSTEE)

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 4 JUNE 2019, AT 9.33 AM

Copyright in the High Court of Australia

HER HONOUR:   On 19 March 2019, the plaintiff filed an application for a constitutional or other writ seeking, among other things, an order that the “Federal Circuit Court be prohibited from making any findings, orders and/or otherwise dealing with the matter MLG3728 of 2018 which is an incidental matter to M126 of 2018” filed in this Court.

On 15 April 2019, the plaintiff and the second defendant jointly filed a summons seeking, among other things, a stay of the proceedings in matter MLG3728 of 2018.

For the reasons that I now publish, I would dismiss both the summons dated 15 April 2019 and the application with costs.  I publish those reasons.

In matter M42 of 2019, the orders of the Court are:

1.Pursuant to r 13.03.1 of the High Court Rules 2004 (Cth), the summons dated 15 April 2019 is dismissed.

2.Pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ dated 19 March 2019 is dismissed.

3.        The plaintiff pay the costs of the third defendant.

I publish those orders.

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

On 19 March 2019, the plaintiff, Mr Gomez, filed an application for a constitutional or other writ seeking, among other things, an order that the “Federal Circuit Court be prohibited from making any findings, orders and/or otherwise dealing with the matter MLG3728 of 2018 which is an incidental matter to M126 of 2018” filed in this Court.  The second defendant, JNGO Pty Ltd, and the third defendant, a trustee, have appeared[1].

[1]The first defendant, Judge Burchardt of the Federal Circuit Court, has filed a submitting appearance.

On 15 April 2019, Mr Gomez and JNGO Pty Ltd jointly filed a summons seeking, among other things, a stay of the proceedings in matter MLG3728 of 2018.

The trustee filed a response on 30 April 2019.  Mr Gomez filed a reply on 24 May 2019. 

Under r 25.09.1 of the High Court Rules 2004 (Cth), a Justice of the High Court may dismiss an application without listing it for hearing on the ground that the application does not disclose an arguable basis for the relief sought or is an abuse of the process of the Court[2].  The application and the summons should be dismissed. 

[2]See High Court Rules, r 13.03.1 in relation to applications by summons.

The history of the plaintiff's complaints is set out, in summary form, in Gomez v The Honourable Justice Moshinsky of the Federal Court of Australia [2019] HCATrans 85. As was explained to Mr Gomez in that matter:

“[a]buse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute[[3]].  Where, as here, a party attempts to raise issues in successive proceedings, that conduct may be assessed as an abuse of process if it is contrary to the principle of finality[[4]].  This fundamental principle ‘protects parties to litigation from attempts to re‑agitate what has been decided’[[5]].”

[3]Timbercorp Finance Pty Ltd (In liq) v Collins (2016) 259 CLR 212 at 240 [69]; [2016] HCA 44, citing Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518‑519 [25]‑[26]; [2015] HCA 28.

[4]Tomlinson (2015) 256 CLR 507 at 518 [24]. See also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 194 [34]; [2009] HCA 27, quoting Johnson v Gore Wood & Co [2002] 2 AC 1 at 31; and Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at 21 [34]; [2016] HCA 16, quoting D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 20‑21 [45]; [2005] HCA 12.

[5]Achurch v The Queen (2014) 253 CLR 141 at 153 [15]; [2014] HCA 10.

This proceeding is yet a further attempt to relitigate the same issues which were concluded by this Court's refusal to grant Mr Gomez special leave to appeal from the judgment of Moshinksy J[6].  The Court’s procedures are again being used in a manner which is both unjustifiably oppressive and likely to bring the administration of justice into disrepute.  In this proceeding, Mr Gomez has not identified any fact or matter or question of law that has not already been considered by this Court and dismissed.  That is an abuse of process. 

[6]See Gomez v Carrafa [2018] HCASL 225.

For those reasons, the application and summons are dismissed with costs.  The orders of the Court are:

1.Pursuant to r 13.03.1 of the High Court Rules, the summons dated 15 April 2019 is dismissed.

2.Pursuant to r 25.09.1 of the High Court Rules, the application for a constitutional or other writ dated 19 March 2019 is dismissed.

3.        The plaintiff pay the costs of the third defendant.

Adjourn the Court.

AT 9.35 AM THE MATTER WAS CONCLUDED