Kalaiselvi Gomez v Michael Carrafa - [2021] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0108

KALAISELVI GOMEZ	Applicant
v
MICHAEL CARRAFA	Respondent

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JUDGES:	McLEISH, SIFRIS and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2021
DATE OF ORDERS:	24 February 2021
DATE OF JUDGMENT:	4 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 37
JUDGMENT APPEALED FROM:	[2020] VSC 661 (Daly AsJ)

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PRACTICE AND PROCEDURE – Special federal matter – Transfer of proceeding to Federal Court of Australia under s 6 Jurisdiction of Courts (Cross-vesting) Act 1987 – Whether appeal competent – Section 13(a) precludes appeal from decision of court in relation to transfer of proceeding under Act – Whether decision confined to reasons for transfer and not antecedent reasons – Tangalooma Island Resort Pty Ltd v Miles (1989) 96 FLR 47, applied – Jurisdiction of Courts (Cross-vesting) Act 1987, ss 6(1), 13(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr B Barr	Zervos Lawyers

McLEISH JA
SIFRIS JA
KENNEDY JA:

Introduction

In July 2014, the respondent, Mr Michael Carrafa was appointed trustee of the bankrupt estate of the applicant, Ms Kalaiselvi Gomez. He remained in that role until August 2017, when Ms Gomez was discharged from bankruptcy.

Ms Gomez issued proceedings in the Trial Division of this Court on 9 June 2020, claiming that as her trustee in bankruptcy, Mr Carrafa improperly used his position and power as trustee, breached his duty of care and engaged in fraudulent misrepresentations, fraudulent concealment and malicious prosecution. Ms Gomez seeks compensation, damages and costs. The particulars are not presently relevant. However, the claims all relate to the conduct of Mr Carrafa in his capacity as Ms Gomez’s trustee in bankruptcy, an office subject to the provisions of the Bankruptcy Act 1996 (Cth) (‘Bankruptcy Act’).

In his defence, Mr Carrafa alleges that the proceeding relates to a matter in which the Federal Court of Australia has sole and exclusive jurisdiction under the Bankruptcy Act.

On 13 October 2020, pursuant to s 6 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (‘Cross-vesting Act’), Daly AsJ transferred the proceeding to the Federal Court of Australia. Her Honour published extensive reasons,[1] and held that ‘the whole of this proceeding is a special federal matter for the purpose of s 6 of the [Cross-vesting] Act’.[2] Section 6(1) is in the following terms:
[1]Gomez v Carrafa [2020] VSC 661.
[2]Ibid [23].

If:
(a)a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and
(b)the court does not make an order under subsection (3) in respect of the matter;

the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).

Her Honour made the following orders:

1.Pursuant to section 6(1) of the [Cross-vesting Act], this proceeding be transferred to the Federal Court of Australia, Melbourne Registry.
2.The plaintiff pay the defendant’s costs of the proceeding,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kalaiselvi Gomez v Michael Carrafa

Details

AGLC: Kalaiselvi Gomez v Michael Carrafa [2021] VSCA 37
Case: [2021] VSCA 37
Decision Date: 4 March 2021

CaseChat Overview and Summary

Kalaiselvi Gomez, the applicant, filed a claim against Michael Carrafa, the respondent, in the Supreme Court of Queensland. The case involved an application to transfer the proceeding to the Federal Court of Australia under section 6 of the Jurisdiction of Courts (Cross-vesting) Act 1987. The applicant sought the transfer on the grounds that the dispute related to a matter that fell within the federal jurisdiction. The Supreme Court was called upon to determine whether the appeal against its decision to refuse the transfer was competent, particularly in light of section 13(a) of the Act, which precludes appeal from a decision concerning the transfer of a proceeding.

The court had to decide whether the appeal was confined to the reasons for the transfer decision or if it extended to the antecedent reasons that led to the refusal. The issue hinged on the interpretation of section 13(a) of the Act and its scope in preventing appeals from transfer decisions. The court also needed to consider the principles articulated in Tangalooma Island Resort Pty Ltd v Miles (1989) 96 FLR 47, which held that section 13(a) restricts appeals to the reasons for the transfer decision itself, not the broader antecedent reasons.

The Supreme Court examined the provisions of the Act and concluded that section 13(a) was indeed confined to the reasons for the transfer decision. This interpretation aligned with the decision in Tangalooma Island Resort Pty Ltd v Miles, which provided that the scope of the restriction was limited to the reasons given for the refusal of the transfer, not the antecedent reasons. Consequently, the court held that the appeal was not precluded under section 13(a) as it pertained only to the reasons for the transfer decision. The appeal was thus allowed, and the matter was transferred to the Federal Court of Australia.

Orders