FEDERAL COURT OF AUSTRALIA
Pizzino v Caratti (No 3) [2024] FCA 1278
File number: WAD 230 of 2023 Judgment of: COLVIN J Date of judgment: 6 November 2024 Catchwords: PRACTICE AND PROCEDURE - application to strike out statement of claim and for summary dismissal - where facts required to establish causes of action not pleaded or insufficiently pleaded, such that not possible to ascertain causes of action with clarity - where earlier version of statement of claim struck out - where applicant was afforded an opportunity to replead - where respondent contends that application is out of time, however does not contend that claim is otherwise inarguable - where deficiencies in statement of claim do not enable the Court to reach conclusion that action is out of time or there is no arguable case - where counsel for the applicant indicated in oral submissions that independent counsel had been briefed - whether application should be struck out - whether applicant should be afforded a further opportunity to replead - held proceeding has not reached the point where it would be inconsistent with just resolution of the dispute for proceeding to be allowed to continue - statement of claim struck out - application for summary dismissal otherwise dismissed - liberty granted to re-plead Legislation: Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 4, 18
Corporations Act 2001 (Cth) s 197
Cases cited: Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88; (2023) 111 NSWLR 304
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766
Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156; (2012) 207 FCR 220
Dare v Pulham (1982) 148 CLR 658
Hanel v O'Neill [2003] SASC 409
Karis v Digital CC Management Pty Ltd (No 3) [2024] FCA 738
Pizzino v Caratti [2023] FCA 1624
Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 72 Date of hearing: 22 October 2024 Counsel for the Applicant: Mr BW Duckham Solicitor for the Applicant: 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
Applicant
AND: ALLEN BRUCE CARATTI
Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The further substituted statement of claim dated 2 August 2024 be struck out.
2.The respondent's interlocutory application dated 6 August 2024 be otherwise dismissed.
3.On or before 19 December 2024, a second further substituted statement of claim…
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- Case
- [2024] FCA 1278
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the New Pleading should be struck out due to its deficiencies and whether Mr. Pizzino should be given another opportunity to replead. The New Pleading was found to be confusing and lacking in fundamental respects, failing to adequately articulate a cause of action. Despite these deficiencies, the court concluded that the proceedings should not be dismissed at this stage because it was not yet clear whether a reasonable cause of action existed or if it would be inconsistent with a just resolution of the dispute to continue the litigation. The court noted that Mr. Pizzino had been given multiple opportunities to plead his case, and while the New Pleading was the fifth attempt, the court was not yet convinced that the case was hopeless. The court granted Mr. Pizzino leave to re-plead by a specified date, with costs of the interlocutory application reserved, and scheduled a case management hearing for January 2025.
The court struck out the New Pleading but dismissed the application for summary dismissal and granted leave to re-plead, ordering Mr. Pizzino to file a second further substituted statement of claim by 19 December 2024. This decision allows Mr. Pizzino another opportunity to properly plead his case, while ensuring that the proceedings do not continue indefinitely without a viable claim. The case management hearing scheduled for January 2025 will provide an opportunity to review the new pleading and determine the next steps in the litigation.
Orders
Orders of the court
1. The further substituted statement of claim dated 2 August 2024 be struck out.
2. The respondent's interlocutory application dated 6 August 2024 be otherwise dismissed.
3. On or before 19 December 2024, a second further substituted statement of claim be filed and served.
4. The costs of the respondent's interlocutory application be reserved.
5. There be a case management hearing listed for 10.15 am AWST on 30 January 2025.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Therefore, successive failures to plead a case may justify dismissal if (a) the Court concludes from what has occurred (as distinct from factual evidence led) that no reasonable cause of action exists; or (b) the point has been reached where it is inconsistent with a just resolution of the proceedings for the respondent to continue to be exposed to litigation in which an applicant, despite ample opportunity, has been unable to plead a case.Issues for consideration As outlined in oral submissions, Mr Caratti contended that the New Pleading was seriously deficient and should be struck out. He contended that Mr Pizzino had been afforded an adequate opportunity to plead his case. He submitted that the failure to articulate a recognisable cause of action by the New Pleading or to point to facts that might found such a cause of action despite a number of attempts meant that it was appropriate to dismiss the proceedings. He did not advance a submission to the effect that, on the facts, the case sought to be advanced was 'hopeless'. That is to say, he did not seek to demonstrate that the Court should dismiss the proceedings on the basis that the affidavit material filed for Mr Caratti demonstrated that the proceedings should be summarily dismissed. Although issues were raised as to whether any claim by Mr Pizzino was within any limitation period, the position of Mr Caratti as to that aspect was that it was not possible to reach any meaningful conclusion in that regard because Mr Pizzino had not been able to plead any claim in respect of which an assessment could be made as to when the cause of action accrued. Mr Pizzino maintained that the pleading should be allowed to stand. He sought an opportunity to re-plead if Mr Caratti's strike out application was successful. Respectfully, the submissions advanced to support Mr Pizzino's pleading were difficult to understand. They took the form of general assertion and sloganeering. In effect, they reduced to little more than the proposition that as Mr Caratti was the only individual involved and the $4 million had never been paid then Mr Caratti must be responsible as a matter of law. The submissions were not supported by anything resembling coherent legal analysis. Consequently, largely unaided by any meaningful submissions advanced for Mr Pizzino, there are two issues for determination on the interlocutory application. First, should the New Pleading be struck out. Second, should there be leave to replead or should the proceedings be dismissed on the basis that there has been sufficient opportunity afforded to Mr Pizzino to plead his case.Issue 1: Should the New Pleading be struck out? Although the submissions advanced to support the New Pleading were opaque, it appeared that there was an attempt to advance the following categories of claim:(1)A claim of misleading or deceptive conduct.(2)A claim there was a breach of the Arrangement to which Mr Caratti was an accessory.(3)A claim that Mr Caratti breached his common law duties as a director of WSLC.(4)A claim that the breach of the Settlement Deed by WSLC was induced by Mr Caratti.(5)A claim that Mr Caratti is liable to Mr Pizzino by application of s 197(1) of the Corporations Act 2001 (Cth).(6)A claim that Mr Caratti has been involved in some form of breach of an equitable duty or there is some other claim in equity that may give rise to a tracing claim or a claim based upon Barnes v Addy liability.(7)A claim of some kind that depends upon knowledge of the terms of the deed of trust for the WSL Trust.(8)A claim that any cause of action did not arise until there was some perception by Mr Pizzino that there were no available assets in the WSL Trust to be able to meet the liability to pay $4 million in accordance with the terms of the Settlement Deed.