Pizzino v Caratti (No 2)

[2024] FCA 1236

FEDERAL COURT OF AUSTRALIA

Pizzino v Caratti (No 2) [2024] FCA 1236

File number:	WAD 230 of 2023
Judgment of:	COLVIN J
Date of judgment:	22 October 2024
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	10
Date of hearing:	22 October 2024
Counsel for the Applicants:	Mr BW Duckham
Solicitor for the Applicants:	Duckham & Co
Counsel for the Respondent:	Mr CG Mofflin
Solicitor for the Respondent:	Alan Rumsley - Commercial Lawyer

ORDERS

WAD 230 of 2023

BETWEEN:

ALBERTO PIZZINO

First Applicant

MARIA MCKENNA

Second Applicant

ROSA TRICOLI

Third Applicant

GINA TRAVAGLINI
Fourth Applicant

AND:

ALLEN BRUCE CARATTI

Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	22 OCTOBER 2024

THE COURT ORDERS THAT:

1.The applicant's interlocutory application dated 21 October 2024 be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

COLVIN J:

1. Mr Caratti has brought an interlocutory application seeking to strike out the applicant's further substituted statement of claim and for the proceedings to be dismissed.  On the day before the hearing of that application Mr Pizzino also filed an interlocutory application.  Mr Pizzino sought the following orders:

   1.The time for hearing and serving of this application be abridged.

   2.The Applicant be permitted to amend his Further Amended Statement of Claim filed 2/8/2024 in terms of a minute filed herewith.

   3.The time hearing date of the 22/10/2024 for the Respondent's application filed 9/9/2024 be adjourned to a date to be fixed.

   4.The Defendant to discover a copy of the trust deed for West Swan Land Trust and copies of tax returns filed in respect to the same.

   5.Provision be made for the costs of this Application.

2. In relation to the abridgment of time, that was not opposed.

3. In relation to the second order that was sought, counsel for Mr Caratti did not object to Mr Caratti's interlocutory application being argued on the basis of the minute of proposed further amendment to the pleading.  So, that deals with paragraph 2 of the application.

4. In relation to the application to adjourn the interlocutory application brought by Mr Caratti, submissions were not advanced by Mr Pizzino to support that application.  In any event, given the fact that the adjournment application was brought at the very last moment and is advanced without explanation, I would not allow that application.

5. In relation to the application for discovery, the issue in relation to the trust deed and the tax returns has been previously agitated.  There is not before me material to support that application, particularly having regard to the fact that, contrary to the basis for the application, which was to the effect that those acting for Mr Caratti had ignored requests for disclosure, an answer to the most recent request for disclosure in the form of an email of 15 October 2024 from the solicitor acting for Mr Caratti to the solicitor acting for Mr Pizzino has been provided.

6. In circumstances where:

   (1)there have previously been statements made to the effect that Mr Caratti does not have the trust deed and that he was last a director of trustee company for the West Swan Land Trust many years ago; and

   (2)what is now pressed is to identify sources who are truly third parties to whom inquiries might be directed in respect of the location of the trust deed,

   it is open to the applicant to seek a subpoena to issue to those third parties if the documents are considered to be of such importance.  That course being available and Mr Caratti having answered the request to discover the trust deed, I do not allow the application for orders as to discovery of the trust deed.

7. In relation to the copies of the tax returns, there have been - and I say this with respect - some confused submissions about how the actual financial affairs of the West Swan Land Trust might bear upon the cause of action.  What is absent is any material before me at all which would articulate why there is a basis for a belief that the financial affairs of the trust have been conducted in a way that means that there is, before me in the present proceedings, some cause of action which might justify a requirement that the tax returns of the trust be produced.

8. That matter is separate from whether there might be some application by the applicant for third party discovery on the basis that it would aid some investigation as to whether there is a cause of action.

9. For those reasons, the part of Mr Pizzino's application that was contested should be rejected.

10. I will deal with the question of costs when I determine the interlocutory application by Mr Caratti.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated:       28 October 2024