Gomez v Carrafa [2022] FCA 1013

FEDERAL COURT OF AUSTRALIA

Gomez v Carrafa [2022] FCA 1013 File number(s): VID 690 of 2020

Judgment of: MCELWAINE J

Date of judgment: 23 August 2022

Catchwords: PRACTICE AND PROCEDURE – Application to file further amended statement of claim – determination of strike out application – exercise of discretion for leave to amend – where pleadings fail to disclose a reasonable cause of action and causes embarrassment, prejudice or delay– where applicant has had 5 attempts to plead a reasonable cause of action – application for leave to amend refused – proceeding dismissed BANKRUPTCY – Where applicant alleges malicious prosecution by trustee in bankruptcy – where applicant alleges misfeasance in public office by trustee in bankruptcy – where pleading fails to grapple with essential elements of each claim– proceeding dismissed

Legislation: Bankruptcy Act 1966 (Cth) ss 265, 266 Federal Court of Australia Act 1976 (Cth) ss 31, 37M, 37N, 37P Federal Court Rules 2011 (Cth) r 16.21

Cases cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 BBK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1001 Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343 Farrington v Thompson and Bridgland [1959] VR 286 Martin v Watson Parsons v McBain (2001) 109 FCR 120; [2001] FCA 376 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 Sheehan v Brett-Young [2016] VSC 53 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 Williams v Spautz (1992) 174 CLR 509