Gomez v Carrafa [2022] FCA 1013

Gomez v Carrafa [2022] FCA 1013

Leave to amend was refused because the proposed amended statement of claim did not plead material facts necessary to establish the alleged causes of action for malicious prosecution, breach of duties, abuse of process or misfeasance in public office, and was therefore likely to cause prejudice, embarrassment or delay and failed to disclose a reasonable cause of action under r 16.21. Given the applicant's repeated opportunities to plead a viable case and the absence of any reasonable prospect that further amendment would cure the defects, the proceeding was dismissed with costs.

Jurisdiction
Australia
Judgment Date
23 August 2022
Procedural Posture
Application for Leave to File a Further Amended Statement of Claim and Respondent's Application to Strike Out and Dismiss the Proceeding / Determination of Interlocutory Applications
Outcome
The applicant's interlocutory application was dismissed, leave to file the amended statement of claim was refused, the proceeding was dismissed, and the applicant was ordered to pay the respondent's costs.
Legal Topics
['leave to Amend Pleadings' 'strike Out Application' 'dismissal of Proceeding' 'malicious Prosecution' 'misfeasance in Public Office' 'abuse of Process' 'trustee in Bankruptcy Duties' 'equity of Exoneration']
['practice and Procedure' 'bankruptcy' 'torts'] ['leave to Amend Pleadings' 'strike Out Application' 'dismissal of Proceeding' 'malicious Prosecution' 'misfeasance in Public Office' 'abuse of Process' 'trustee in Bankruptcy Duties' 'equity of Exoneration']

Case Brief

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Procedural Posture

Application for Leave to File a Further Amended Statement of Claim and Respondent's Application to Strike Out and Dismiss the Proceeding / Determination of Interlocutory Applications

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to file the proposed amended statement of claim.' 'Whether the proposed amended statement of claim failed to disclose a reasonable cause of action or was likely to cause prejudice, embarrassment or delay under r 16.21 of the Federal Court Rules 2011 (Cth).' 'Whether the proposed pleading adequately pleaded malicious prosecution, breach of statutory and fiduciary duties, abuse of process and misfeasance in public office.' 'Whether the proceeding should be dismissed after multiple unsuccessful attempts to plead a viable cause of action.']

Ratio Decidendi

Leave to amend was refused because the proposed amended statement of claim did not plead material facts necessary to establish the alleged causes of action for malicious prosecution, breach of duties, abuse of process or misfeasance in public office, and was therefore likely to cause prejudice, embarrassment or delay and failed to disclose a reasonable cause of action under r 16.21. Given the applicant's repeated opportunities to plead a viable case and the absence of any reasonable prospect that further amendment would cure the defects, the proceeding was dismissed with costs.

Court Disposition

The applicant's interlocutory application was dismissed, leave to file the amended statement of claim was refused, the proceeding was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

  • ['Order 4 of the orders made 5 July 2022 be varied to 4.00pm on 5 August 2022.' "The applicant's interlocutory application filed 5 August 2022 is dismissed and leave to file the amended statement of claim is refused." 'The proceeding is dismissed.' "The applicant is to pay the respondent's costs of the proceeding to...