Gradara v Herbert Geer & Rundle & Ors

[2007] HCATrans 339

[2007] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M91 of 2006

B e t w e e n -

TARCISIO GRADARA

Applicant

and

HERBERT GEER & RUNDLE

First Respondent

DINO DE MARCHI

Second Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Third Respondent

HENRIK LASSEN

Fourth Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 8.34 AM

Copyright in the High Court of Australia

__________________

KIRBY J:   This matter has a long history.  About August 1984 the applicant was involved in a dispute with his former solicitors, De Marchi & Associates of Brunswick in Melbourne.  He alleges he was to receive $13,500 from his solicitors, from a settlement entered into between them on his behalf in the amount of $15,000, with the balance to be paid to Legal Aid.  He claims he and his solicitor went to the bank, but that he received only $10,000.

Ever since, the applicant has contended that his solicitors wrongfully deprived him of $3,500.  He has unsuccessfully sued his solicitors for the recovery of that sum in the Federal Courts.

The applicant then unsuccessfully instituted proceedings in the Victorian State Courts against two persons, Ms Bolt and Mr Byrne, who were employees of the bank that he and his solicitor had attended.

The applicant next commenced proceedings in the Federal Court of Australia against Ms Bolt and Mr Byrne, alleging a criminal conspiracy, contrary to various provisions of the Crimes Act 1914 (Cth). 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. His Honour summarily dismissed the action on the basis that the application and statement of claim failed to disclose a sustainable cause of action.

The applicant appealed to the Full Court (Foster, North and Mansfield JJ) who dismissed the appeal:  Gradara v Bolt & Anor [1998] FCA 460. Their Honours held that the applicant had no cause of action under the Crimes Act, and that to the extent that the claim may have arguably been considered a common law claim in deceit or civil conspiracy, it was hopelessly out of time.  In any event, such a claim, if any, would be within the jurisdiction of State Courts not the Federal Court.

On 26 April 1999 an application for special leave to appeal was made to the High Court of Australia (Hayne and Callinan JJ).  It was dismissed.

On 26 April 1999 Finkelstein J made a sequestration order on a petition presented by Ms Bolt and Mr Byrne founded upon a debt of $6,906, representing the costs of the appeal heard and determined by the Federal Court constituted by Foster, North and Mansfield JJ.

The decision of Finkelstein J was then the subject of an appeal to the Full Court (Branson, Weinberg and Dowsett JJ) who dismissed the appeal:  Gradara v Bolt [1999] FCA 1638.

Most recently the applicant brought proceedings in the Federal Court (Heerey J) by way of an application to set aside the sequestration order made by Finkelstein J, again against Ms Bolt and Mr Byrne.  His Honour dismissed the application on the basis that the object of the applicant's application appeared to be to have a review on the merits of the original claim against Mr De Marchi, a dispute which had long been resolved under a contested hearing in the Magistrates Court of Victoria.

The decision of Heerey J was the subject of an appeal to the Full Court (Spender, Emmett and Conti JJ) which dismissed the appeal:  Gradara v Bolt [2001] FCA 77.

The current application is brought against neither Mr De Marchi nor against Ms Bolt or Mr Byrne, but against Herbert Geer & Rundle, who were the solicitors for Ms Bolt and Mr Byrne on a previous occasion.  The application seeks that the sequestration order of 26 April 1999 be annulled on the grounds that the solicitors filed a false affidavit in the earlier proceeding and so misled the Federal Court.  In support, Mr Gradara makes a variety of assertions which relate to the original dispute between Mr Gradara and Mr De Marchi.

Riethmuller FM correctly held that none of that material established any proper basis for annulling the bankruptcy.  The respondent to the application was not a proper respondent to an application for annulment of a bankruptcy.  His Honour accordingly dismissed the application with costs.

The applicants appealed from that decision to the Federal Court (Sundberg J) which dismissed the appeal, with costs.

The applicant now applies to this Court, and substantially repeating the litany of failed claims that he repeatedly has made in the Courts below.  He made no effort to address the reasons of Sundberg J.  His application discloses no arguable point of fact or law.

The applicant also seeks the arrest and imprisonment of Mr De Marchi and Mr Lassen, who are named as respondents here but do not appear ever to have been joined in the relevant proceedings.  Neither they, the other persons named in the applicant's material, nor any Courts, including this one, should be further subjected to the applicant's misconceived assertions and totally misdirected litigation.

Special leave is refused.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.

I publish that disposition signed by Justice Callinan and myself.

AT 8.39 AM THE MATTER WAS CONCLUDED