Gradara v Herbert Geer and Rundle
[2005] FMCA 1835
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRADARA v HERBERT GEER & RUNDLE & ANOR | [2005] FMCA 1835 |
| BANKRUPTCY – Application to annul – proper respondent – application dismissed. |
| Gradara v Manager & Staff of the Commonwealth Bank of Australia & Ors [1997] FCA 1034 Gradara v Bolt & Anor [1998] FCA 460 Gradara v Bolt [1999] FCA 1638 |
| Applicant: | TARCISIO GRADARA |
| First Respondent: | HERBERT GEER & RUNDLE |
| Second Respondent | OFFICIAL TRUSTEE IN BANKRUPTCY |
| File Number: | MLG 1396 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 December 2005 |
| Date of Last Submission: | 5 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr Lassen |
| Solicitors for the First Respondent: | Herbert Geer Rundle |
| Solicitorfor the Second Respondent: | Ms Dewhurst |
| Solicitors for the Respondent: | Piper Alderman |
ORDERS
That the application be dismissed.
That the applicant pay the respondents’ costs of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBURNE |
MLG1396 of 2005
| TARCISIO GRADARA |
Applicant
And
| HERBERT GEER & RUNDLE |
First Respondent
| OFFICIAL TRUSTEE IN BANKRUPTCY |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is an undischarged bankrupt, following a sequestration order on 26 April 1999.
The matter arises out of events that took place long before this application. Around August of 1984 the applicant was involved in a dispute with his solicitors, De Marchi and Associates of Brunswick in Melbourne. He alleges that as a result of a settlement of proceedings that he was to receive $15,000, of which $13,500 was to be paid to him in cash and $1,500 to Legal Aid. He claims that his solicitor attended at the bank with him and that he only received $10,000. These events have been the subject of much dispute between Mr Gradara and his former solicitor, Mr De Marchi.
Ever since that time, the applicant has been of the view that his solicitor had wrongfully taken the $3,500. He sued his solicitor for the recovery of the money but was unsuccessful in those proceedings. He then made a complaint to the Victoria Police, however no successful prosecution was sustained.
It appears the applicant then instituted proceedings in the Victorian State Courts against two persons, Ms Bolt and Mr Byrne, who were employees of the bank at the branch where the cheque was cashed. It appears that proceedings in the State Courts against these employees were unsuccessful.
The applicant then commenced proceedings in the Federal Court of Australia alleging a criminal conspiracy, contrary to various provisions of the Crimes Act1914. These proceedings came before Merkel J on 1 August 1997 in Tarcisio Gradara v Manager & Staff of the Commonwealth Bank of Australia & Ors [1997] FCA 1034 at which time his Honour summarily dismissed the proceedings on the basis that the claim did not disclose a sustainable cause of action in the Federal Court.
The decision of Merkel J was appealed to the Full Court who considered the matter on 19 March 1998 in Gradara v Bolt & Anor [1998] FCA 460. The appeal was dismissed by the Full Court (Foster, North and Mansfield JJ.). Their Honours identified that there was not a cause of action under the Crimes Act, and that to the extent that the claim may have arguably been considered a common law claim for deceit or civil conspiracy, the claim in the Federal Court was hopelessly out of time. In any event, it appeared that such claims would be within the jurisdiction of the State Courts not the Federal Court.
The Full Court ordered that the applicant pay the costs of Ms Bolt and Mr Byrne.
On 26 April 1999 an application for special leave to appeal was made to the High Court of Australia, which was dismissed.
On 26 April 1999 Finkelstein J made a sequestration order on a petition by Ms Bolt and Mr Byrne founded upon a debt of $6,906, representing the costs of the appeal heard and determined by Foster, North and Mansfield JJ. The history of the matter was succinctly outlined by Finkelstein J in his judgment of 26 April 1999.
The decision of Finkelstein J was the subject of an appeal to the Full Court in Gradara v Bolt [1999] FCA 1638 which was heard on 11 November 1999 by Branson, Weinberg and Dowset JJ. The circumstances were again succinctly outlined before the Full Court dismissed the appeal.
Most recently the applicant brought proceedings in the Federal Court, again against Ms Bolt and Mr Byrne in Gradara v Bolt [2000] FCA 1439. These proceedings were heard by Heerey J on 25 September 2000. These proceedings were an application to set aside the sequestration order made by Finkelstein J on 26 April 1999.
In the judgment Heerey J sets out that on 11 October 1990, Magistrate Robert Tuppen gave judgment in the primary dispute between Mr De Marchi and the applicant, dismissing the applicant’s claim and ordering that he pay Mr De Marchi’s costs fixed at $4,162. His Honour then dismissed the application on the basis that the annulment application appeared to be brought on the basis of a review of the merits of the original claim against Mr De Marchi, a dispute which had been resolved after a contested hearing in the Magistrates Court of Victoria.
The decision of Heerey J was the subject of an appeal to the Full Court in Gradara v Bolt [2001] FCA 77 where the Full Court (Spender, Emmett and Conti JJ) dismissed the appeal. Spender J said in that judgment:
17.Today Mr Gradara has again misunderstood what this court is about. He has failed to appreciate that this is an appeal, which needs the demonstration of error of judgment appealed against. Once again Mr Gradara has sought to revisit his claims arising out of a cheque in 1984, his obsession about which has blinded him, over many years and in many proceedings, to what truly has to be demonstrated in any particular proceedings.
Emmett J similarly stated
19.I agree. Mr Gradara sadly, as the presiding judge has said, is obsessed with the circumstances concerning the cheque which took place in August 1984. The material upon which a magistrate ruled against Mr Gradara was against Finkelstein J and before Heerey J. Whether or not the magistrate reached the right answer in his assessment of credit and in deciding the facts is not a matter which is before us and is not a matter about which we can express any view at all.
20.What Mr Gradara unfortunately fails to appreciate is that the proceeding that gave rise to the order upon which the bankruptcy notice was found concerned the question of whether or not there was a good cause of action against the present respondents, Byrne and Bolt. Merkel J found there was not. The Full Court found there was not. In the circumstances there can be no doubt at all about the correctness of the order of the Full Court, ordering Mr Gradara to pay the costs of the present respondents. In those circumstances there can be no question but that the order for the sequestration of his estate was properly made. Accordingly I agree with the orders proposed by the presiding judge.
The current application is brought against neither Mr De Marchi nor against Ms Bolt or Mr Byrne, but rather against Herbert Greer Rundle, who were the solicitors for Ms Bolt and Mr Byrne on a previous occasion. The grounds of the application are as follows:
1.They made a false affidavit in order to mislead all Federal Court;
2.Judges never comply with Gradara’s subpoena;
3.Haine J and Callinan J of the High Court of Australia state in Court on 26 May 2000, they are not entitled for cost and will not have Court order for costs!!!
The applicant’s claim for relief is that the sequestration order of
26 April 1999 be annulled.
In a statutory declaration in support of the application Mr Gradara stated that this day ‘a Federal Court judge would arrest the solicitors’ because it is alleged they know that the original cheque referred to in the 1984 events was a false document and further alleges that it was dishonestly presented as genuine ‘to the judges’ for a gain. The statutory declaration goes on at length with respect to the various issues relating to the original dispute between Mr Gradara and Mr De Marchi. He annexes a number of documents that appear to be transcripts or judgments with many handwritten annotations or comments added to them.
None of this material establishes any proper basis for annulling the bankruptcy. The respondent to the application is not a proper respondent to an application for annulment of a bankruptcy.
The bankruptcy continues without the applicant having completed a statement of financial affairs, and as such the period of three years after which the bankruptcy would normally come to an end has not yet commenced to run.
It appears to me that every issue in this case has already been considered, not only by Federal Court judges sitting at first instance but also as a Full Court. There is no proper basis to annul the bankruptcy and the application must fail.
The application must be dismissed. In the circumstances it is appropriate that the applicant pay the respondent’s costs of and incidental to the application.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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