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

The plaintiff, Mr Gomez, sought constitutional writs against Justice Moshinsky of the Federal Court of Australia and others, including the trustee in bankruptcy of his wife's estate. The application for an order to show cause, filed on 28 August 2018, sought to compel Justice Moshinsky to provide reasons for his judgment or to quash the orders made. This application was filed outside the prescribed time limits for writs of mandamus under High Court Rules 2004 (Cth) and without seeking an extension of time or dispensation. Subsequent summonses filed by the plaintiff, including one seeking a stay of proceedings in the Federal Circuit Court and another seeking a stay of orders made by Justice Keane, were also before the High Court.

The legal issues before the High Court were whether the plaintiff's application for constitutional writs and his subsequent summonses disclosed an arguable basis for the relief sought, or if they constituted an abuse of process. Specifically, the Court had to consider whether the plaintiff's attempts to relitigate issues already determined by Justice Moshinsky and subsequently refused special leave to appeal by the High Court, and the delay in filing his application, warranted dismissal. The Court also considered the plaintiff's assertion of an equity of exoneration in relation to property transfers from his wife, which had been rejected in earlier proceedings.

The Court reasoned that the plaintiff's application for constitutional writs and his summonses were doomed to fail. It was held that the judgment of Justice Moshinsky, which declared certain property transfers void as against the trustee in bankruptcy, established binding rights and duties between the parties, and the plaintiff had exhausted his avenues of appeal by failing to obtain special leave. The Court found that the plaintiff's repeated attempts to relitigate these concluded issues constituted an abuse of process, contrary to the principle of finality in litigation. Furthermore, the application for mandamus was filed out of time and without seeking the necessary extensions.

Consequently, the High Court dismissed both the summons dated 15 April 2019 and the plaintiff's application for an order to show cause, with costs payable by the plaintiff to the third defendant. The Court exercised its power under the High Court Rules to dismiss applications that do not disclose an arguable basis or are an abuse of process, noting that the plaintiff had not identified any new facts or legal questions not previously considered.