Gomez v Prentice

[2004] FCA 1080

FEDERAL COURT OF AUSTRALIA

Gomez v Prentice [2004] FCA 1080

JOSEPH WENCESLAUS GOMEZ v MAXWELL WILLIAM PRENTICE

N 885 of 2004

WHITLAM J
SYDNEY
13 JULY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 885 of 2004

In the matter of JOSEPH WENCESLAUS GOMEZ

BETWEEN:	JOSEPH WENCESLAUS GOMEZ APPLICANT
AND:	MAXWELL WILLIAM PRENTICE RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	13 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The proceeding is dismissed with costs.

2.        Liberty is given to the respondent, in the event that the costs are not paid by the applicant, to apply to have such costs paid by Mark Gallego.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 885 of 2004

In the matter of JOSEPH WENCESLAUS GOMEZ

BETWEEN:	JOSEPH WENCESLAUS GOMEZ APPLICANT
AND:	MAXWELL WILLIAM PRENTICE RESPONDENT

JUDGE:	WHITLAM J
DATE:	13 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 25 June 2004 this matter was fixed for hearing today.  However, when it was called on in the Registrar’s list, the applicant sought an adjournment.  That application was opposed, and the matter was referred to me as Duty Judge.

2. The applicant tendered copies of a medical certificate and an application for legal aid.  He also gave evidence.

3. The medical certificate is that of a psychiatrist, who states that he ‘reviewed’ the applicant on 7 July 2004 and that, in his opinion, the applicant is suffering a major depressive disorder.  The applicant gave evidence that he saw the psychiatrist for the first time on 7 July, that he saw him again on 9 July, and that he is due to see him again at the end of the month.

4. The application for legal aid is dated 9 July 2004 and bears a certificate by a solicitor, Mark Gallego, who gives a post office box at Rhodes as his address.  Mr Gallego certifies that the applicant has consulted him and that the application has merit and is otherwise deserving of legal aid.  The applicant said that Mr Gallego is present in Court today, that he was also in Court on last occasion when the matter was fixed for hearing, and that he assisted in preparing an affidavit filed on 9 July.  The applicant gave evidence that the application for legal aid was lodged yesterday, but that he did not know where or how that was done.  The applicant said that within the last 10 days he had unsuccessfully approached some 30 law firms requesting that they act for him.  The applicant said that he could not recall the names of the firms, although one was the firm of which a Mr Christopher Murphy was the principal.

5. I have formed the distinct impression that the application for legal aid has not been made bona fide.  I am quite satisfied that it was lodged specifically in order to try and procure an adjournment today.  I must accept the doctor’s opinion that the applicant is suffering from a major depressive order.  However, the doctor does not express any view about how such a condition might affect the applicant’s capacity to conduct his case.  (I am, of course, conscious of the applicant’s disadvantage in not being represented by a lawyer.) 

6. I cannot assume that the applicant is temporarily handicapped from acting for himself as a result of mental illness.  There is no prospect of legal aid being granted.  Accordingly, there is no point in postponing the hearing of the matter.  The application for an adjournment is refused.

[The hearing proceeded.]

1. The applicant has not absented himself from the hearing of this matter.  He has remained in the court room.  However, the applicant has shown himself to be unwilling to prosecute this proceeding.  Instead, he has persisted with unmeritorious adjournment requests, interrupted only by theatrical displays of helplessness and swooning.  The applicant is obviously determined to abort the hearing.  The respondent has accordingly moved to have the proceeding dismissed. I accede to that application.

2. This proceeding was irregularly commenced. It purports to be an application under s 178 of the Bankruptcy Act 1966. Yet the application, when filed, was not accompanied by an affidavit showing the nature of the applicant’s claim or the material facts on which it was based. The applicant was directed to file an affidavit on 25 June 2004. His affidavit subsequently filed on 9 July does not identify any ‘act, omission or decision’ of the respondent trustee by which he is affected for the purposes of s 178. The proceeding is pointless and should now be brought to an end.

3. The proceeding is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            

The applicant appeared in person

Sally Nash, solicitor, appeared for the respondent

Date of hearing:  13 July 2004

Date of judgment:  13 July 2004