Gomez v The Honourable Justice Moshinsky of the Federal Court of Australia & Ors

[2019] HCATrans 85

[2019] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M126 of 2018

B e t w e e n -

IRWIN GOMEZ

Plaintiff

and

THE HONOURABLE JUSTICE MOSHINSKY OF THE FEDERAL COURT OF AUSTRALIA

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, 30 APRIL 2019, AT 10.32 AM

Copyright in the High Court of Australia

HER HONOUR:   On 28 August 2018, the plaintiff filed an application for an order to show cause seeking constitutional writs in respect of a judgment of the first defendant. 

The application was filed outside of the time limits prescribed for writs of mandamus in what was, at the time of filing, r 25.07.2 of the High Court Rules 2004 (Cth). The plaintiff did not apply for an enlargement of time or for dispensation with compliance with that requirement.

On 29 January 2019, the plaintiff filed a summons seeking an urgent hearing and, among other things, a stay of a subsequent proceeding commenced in the Federal Circuit Court of Australia by the third defendant.  That summons was dismissed with costs by Keane J on 20 February 2019.

On 15 April 2019, the plaintiff filed a further summons seeking, among other things, a stay of the orders made by Keane J.

For the reasons that I now publish, I would dismiss both the summons dated 15 April 2019 and the application with costs.  I direct that the reasons as published be incorporated into the transcript.

I publish those reasons. 

On 28 August 2018, the plaintiff, Mr Gomez, filed an application for an order to show cause seeking constitutional writs under s 75(v) of the Constitution in respect of the judgment of the Federal Court of Australia (Moshinsky J) in Gomez v Carrafa (Trustee) [2018] FCA 201[1]. The application was filed outside the time limits prescribed for writs of mandamus in what was, at the time of filing, r 25.07.2 of the High Court Rules 2004 (Cth). The plaintiff did not apply for an enlargement of time pursuant to r 4.02 or for dispensation with compliance with the requirement in r 25.07.2.

[1]An application for special leave to appeal from the judgment of Moshinsky J had been dismissed by this Court on 15 August 2018:  Gomez v Carrafa [2018] HCASL 225.

On 29 January 2019, the plaintiff filed a summons seeking an urgent hearing and, among other things, a stay of a subsequent proceeding commenced in the Federal Circuit Court of Australia by the third defendant (“the Trustee”) against the plaintiff to enforce the Trustee’s rights arising out of the judgment of Moshinsky J.  The Trustee is the trustee in bankruptcy of the bankrupt estate of the plaintiff’s wife.  That summons was dismissed with costs by Keane J on 20 February 2019[2]. 

[2]Gomezv The Honourable Justice Moshinsky Federal Court of Australia [2019] HCATrans 22.

On 15 April 2019, the plaintiff filed a further summons seeking a stay of the orders made by Keane J pending the plaintiff’s application for leave to appeal from that judgment as well as the relief the plaintiff had sought in the application for an order to show cause, namely, that the Trustee be restrained from dealing with particular assets of the bankrupt estate. 

Under r 25.09.1 of the High Court Rules, 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[3].  Here, both the summons dated 15 April 2019 and the plaintiff’s application for an order to show cause should be dismissed with costs. 

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

Facts and procedural history 

The history of this matter was set out, in some detail, by Keane J[4].  For present purposes, it is sufficient to refer to the following facts and matters, including what has occurred since Keane J’s judgment. 

[4]See Gomez [2019] HCATrans 22 at lines 231-357.

A sequestration order was made against the estate of the plaintiff’s wife on 21 August 2014.  The bankruptcy notice was served on the plaintiff’s wife on 10 June 2014.  After failing to comply with that notice, her bankruptcy commenced on 2 July 2014.  Shortly before her bankruptcy, the plaintiff’s wife transferred to the plaintiff her interests in two pieces of real estate and a sum of money.  The two pieces of real estate, one located in Altona North and the other in Hallam, were transferred on 25 June 2014 from the joint names of the plaintiff and his wife to the plaintiff alone for a total consideration of $60,000.  These properties are the subject of both the application for an order to show cause and the summons dated 15 April 2019.  A sum of $171,480 was transferred on 27 February 2014 from the plaintiff’s wife to the second defendant, JNGO Pty Ltd (“JNGO”).  JNGO is controlled by their son, Mr Nathan Gomez, as the sole director and shareholder. 

The Trustee applied to the Federal Circuit Court for declarations and consequential orders under ss 120 and 121 of the Bankruptcy Act 1966 (Cth) that the transfers of property, including the transfer of the sum of money, were void as against the trustee in bankruptcy. The basis of the application was that the transfers by the bankrupt occurred within five years of the commencement of the bankruptcy and the transferee in each instance gave no consideration or consideration of less than the market value of the property.

The plaintiff resisted the Trustee’s claim by asserting an equity of exoneration and rights as a surety.  The equity of exoneration was said to arise because the properties that were owned jointly by the plaintiff and the bankrupt, including the Altona and Hallam properties, were mortgaged to fund the property investment and development activities of a company wholly‑owned by the bankrupt.  In these circumstances, it was contended that the plaintiff had acted as a surety for a debt incurred for the sole benefit of the bankrupt.  The equity of exoneration contention was also relied upon by JNGO which argued that the money it received from the bankrupt was actually money lent to it by the plaintiff.  In applying the equity of exoneration, the plaintiff was, it was said, entitled to the money. 

After a trial at which the plaintiff did not appear, the primary judge, Judge Riley, held that the requirements of s 120 of the Bankruptcy Act were satisfied[5]. The primary judge found that the plaintiff did not act as surety for a debt incurred for the sole benefit of the bankrupt. Accordingly, the plaintiff’s claim for an equity of exoneration was rejected. The primary judge also rejected JNGO’s claim that the transfer of $171,480 was a loan from the plaintiff to JNGO. The primary judge relevantly made declarations to the effect that the transfers of property were void pursuant to s 120 of the Bankruptcy Act and ordered that the amount of $123,139.01 held by JNGO, because at the time of trial JNGO no longer had all of the amount transferred, be paid to the Trustee. 

[5]Carrafa v Gomez [No 3] [2016] FCCA 3139; see especially at [226], [233].

The plaintiff and JNGO unsuccessfully appealed to the Federal Court (Moshinsky J) from the orders of the Federal Circuit Court[6].  The plaintiff’s application for special leave to appeal from the decision of Moshinsky J, which was filed outside the time limit prescribed by the High Court Rules, was refused by Bell and Gageler JJ[7].  

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

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

Approximately two weeks after the dismissal of the plaintiff’s application for special leave, the plaintiff filed this application for an order to show cause under s 75(v) of the Constitution contending that Moshinsky J should be compelled to defend his Honour’s judgment against allegations of jurisdictional error by the plaintiff and to give reasons why his Honour’s orders should not be quashed.  In the alternative, the plaintiff seeks a writ of certiorari to quash the orders in the judgments below.  The plaintiff also seeks interlocutory relief in the nature of an injunction against the Trustee from dealing with the property of the bankrupt estate that was the subject of the transfers declared void by the primary judge − that is, the Altona and Hallam properties and the sum of money (or what remained of it[8]) (“the disputed assets”). 

[8]See Carrafa v Gomez [No 3] [2016] FCCA 3139 at [46].

Two steps taken by the Trustee evidently prompted the plaintiff to take further action. First, on 7 December 2018, the Trustee applied to the Federal Circuit Court for orders to deal with the disputed assets in the winding up of the bankrupt. Second, on 14 January 2019, the Trustee filed a response to the plaintiff’s substantive application in this Court. The Trustee contended that the plaintiff’s application is an abuse of process because it constitutes a de facto appeal after the plaintiff’s appeal rights had been exhausted. In particular, the Trustee contended that the plaintiff’s allegations of jurisdictional error reiterated the grounds on which the plaintiff sought special leave. The Trustee also objected to the writ of mandamus under s 75(v) of the Constitution on the basis of the lapse of time since the judgment of Moshinsky J. 

The plaintiff responded.  On 29 January 2019, he filed a summons in this Court seeking an order to stay or dismiss the Federal Circuit Court proceeding and for the Trustee to be restrained from otherwise dealing with the disputed assets or lodging further incidental proceedings.  The plaintiff submitted that, as the matter was before the High Court, it was improper and vexatious for the Trustee to commence a concurrent proceeding in the Federal Circuit Court.  In addition, the plaintiff sought a stay of the proceedings and orders made by Judge Riley and Moshinsky J.  That summons was dismissed by Keane J. 

Relevant to the matters currently before this Court, Keane J found that, consistent with authority and established principle, the rights and duties established as between the parties by the judgment of Moshinsky J were binding on the parties unless and until that judgment was set aside and the mere commencement of proceedings asserting jurisdictional error on his Honour’s part was no basis on which to ignore the judgment[9].  Further, the attempt by the plaintiff to seek 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 the High Court and that there was no prospect that the Court would entertain such an abuse of process.  As Keane J stated, “[s]uch an abuse of process cannot be allowed to impede the third defendants [sic] in the exercise of the rights established” by the judgment and orders of Moshinsky J[10]. 

Five events then followed.  First, on 19 March 2019, the plaintiff filed an application for leave to appeal from the judgment and orders of Keane J.  That application is unresolved. 

Second, on 5 April 2019, the Trustee obtained, relevantly, the following orders from Judge Burchardt in the Federal Circuit Court: 

[9]Gomez [2019] HCATrans 22 at lines 359-369, citing Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178 [22]-[23], 185‑186 [53], 211‑212 [140]-[142], 235-237 [214]-[220], 279 [343]-[344]; [2000] HCA 62.

[10]Gomez [2019] HCATrans 22 at lines 374-376.

“1.The [plaintiff] sign Transfers of Land and to do all things necessary to transfer one of two equal shares in the [Altona and Hallam] properties ... so that the [Trustee] and [plaintiff] are registered as tenants in common in equal shares in respect of both properties within seven days of being provided with Transfer of Land Forms by the [Trustee]. 

2.In the event that the [plaintiff] fails to comply with order one the Registrar of the Federal Circuit Court of Australia is ordered to:

(a)execute the Transfers of Land referred to in paragraph 1 in the name of the [plaintiff]; and 

(b)do all acts and things necessary to give effect to the transfers of land. 

3.The [Trustee] to have the conduct of sale and authority to execute the transfers of land required to effect the sale. 

4.The [plaintiff] and his family are to yield vacant possession of the [Altona] property ... within 120 days of these orders.

5.Pursuant to paragraph D [sic] above the [plaintiff] must remove from [the Altona property] all vehicles, rubbish and chattels within 120 days of these orders.

6.In the event that the [plaintiff] fails to deliver up vacant possession pursuant to paragraph 5 above a writ of possession shall be issued forthwith in favour of the [Trustee]. ...”  

Third, on 1 April 2019, the plaintiff filed a “Notice of Constitutional Matter”, a purported notice under s 78B of the Judiciary Act 1903 (Cth) (“the Notice”). The Notice, in substance, repeats the plaintiff’s complaints. The Notice states that the plaintiff has written to the “attorney general on four earlier occasions seeking relief by intervention”. The Notice was not served in accordance with r 5.02.2(b) of the High Court Rules, and the plaintiff provided no explanation for the substantial delay between the filing of his application for an order to show cause on 28 August 2018 and the filing and service of the Notice.

Fourth, on 15 April 2019, the plaintiff filed a further summons in these proceedings seeking a stay of the orders made by Keane J on the grounds that the plaintiff had filed an application for leave to appeal and, as requested in the application for an order to show cause, an order that the Trustee be restrained from dealing with the disputed assets. 

Fifth, on 29 April 2019, the plaintiff filed an affidavit asserting that, as at that date, there had been insufficient time for the Attorneys‑General “to attend to the” Notice.

Disposition 

As noted earlier, the application for an order to show cause why a writ of mandamus should not issue against Moshinsky J was filed out of time. Further, under r 25.09.1 of the High Court Rules, a Justice of the High Court may dismiss an application for constitutional writs 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[11].  Here, both the summons dated 15 April 2019 and the plaintiff’s application for an order to show cause should be dismissed with costs.  It is appropriate to deal with them together. 

[11]See also High Court Rules, r 13.03.1.

The summons and the application for an order to show cause are doomed to fail.  First, as Keane J explained, the rights and duties between the plaintiff and the Trustee were established by the judgment of Moshinsky J.  That judgment, and the orders made by Moshinsky J, are binding on them unless and until the judgment is set aside.  And the plaintiff failed in his application for special leave to appeal from that judgment. 

Second, the plaintiff’s numerous attempts, of which the summons dated 15 April 2019 is the latest, to relitigate those issues which were concluded by this Court’s refusal to grant the plaintiff special leave to appeal from the judgment of Moshinsky J, is an abuse of the processes of the Court.  Abuse 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[12].  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[13].  This fundamental principle “protects parties to litigation from attempts to re‑agitate what has been decided”[14]. 

[12]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.

[13]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.

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

The plaintiff in this proceeding has not identified any fact or matter or any question of law that has not already been considered by this Court and dismissed. The application for an order to show cause, the Notice and then the latest summons, are nothing more than a re‑agitation of issues already considered in an attempt to delay the inevitable effect of the orders made by Moshinsky J and, subsequently, the orders made by Judge Burchardt. This Court’s processes should not and cannot be used to impede the Trustee in the exercise of those rights.

Costs 

The Trustee seeks an order for indemnity costs.  No sufficient reason has been shown for ordering that the costs which are to be allowed against the plaintiff should be allowed on an indemnity basis. 

Conclusion and orders

For those reasons, the summons filed on 15 April 2019 as well as the application for an order to show cause should be dismissed with costs.

In matter M126 of 2018 the orders of the Court are:

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

2.Pursuant to rule 25.09.4 of the High Court Rules 2004 (Cth), the application for an order to show cause dated 28 August 2018 is dismissed.

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

I publish those orders.

AT 10.33 AM THE MATTER WAS CONCLUDED