Gradara v Herbert Geer & Rundle [2006] FCA 839 (30 June 2006)

Last Updated: 3 July 2006

FEDERAL COURT OF AUSTRALIA

Gradara v Herbert Geer & Rundle [2006] FCA 839

TARCISIO GRADARA v HERBERT GEER & RUNDLE and OFFICIAL TRUSTEE IN BANKRUPTCY

VID 378 OF 2006

SUNDBERG J
30 JUNE 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 378 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	TARCISIO GRADARA Appellant
AND:	HERBERT GEER & RUNDLE First Respondent OFFICIAL TRUSTEE IN BANKRUPTCY Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	30 JUNE 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the respondents, Mr Henrik Lassen and Mr Dino De Marchi of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 378 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	TARCISIO GRADARA Appellant
AND:	HERBERT GEER & RUNDLE First Respondent OFFICIAL TRUSTEE IN BANKRUPTCY Second Respondent

JUDGE:	SUNDBERG J
DATE:	30 JUNE 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 On 26 April 1999 Finkelstein J made a sequestration order against the appellant’s estate. On 16 December 2005 Riethmuller FM dismissed the appellant’s application to have the sequestration order annulled: Gradara v Herbert Geer & Rundle [2005] FMCA 1835. His Honour’s reasons contain a summary of the appellant’s extensive proceedings and appeals in various courts.

2 On 17 February 2006 the appellant filed an "Application for Review" in the Federal Magistrates Court. The document does not disclose what was sought to be reviewed, although it purports to be "filed at Federal Magistrate Riemuller". The relief sought was as follows:

"To see the truth – to clear my name – and be py, this innequity, exspenses from forgery froudulent people abusur of the law and I promis to be sand in prison De Marchi and Enrick Lassen that is what I seeking thank you."

Mr De Marchi and Mr Lassen were named as respondents to the application, though so far as I can determine, they were never joined as parties to the proceeding.

3 In the course of the hearing of the application for review the Magistrate elicited from the appellant and his son that what the appellant sought was an order for the arrest of Mr De Marchi and Mr Lassen on the ground that they had committed offences under the Crimes Act 1914 (Cth). In reasons given ex tempore on 29 March 2006 that now appear as Gradara v Herbert Geer & Rundle [2006] FMCA 449, his Honour said he had no power to issue arrest warrants under that Act, or to hear any case under the Act.

4 The Magistrate went on to say that the appellant’s real issue was with respect to a judgment of Magistrate Tuppen, a Victorian Magistrate, in relation to a dispute between the appellant and Mr De Marchi, his former solicitor. The appellant had sued Mr De Marchi claiming he had stolen $3500 from him by a trick, and in the course of this crime had perpetrated various forgeries. Mr Tuppen dismissed the proceeding. Riethmuller FM said he had no jurisdiction to either overturn or supervise the conduct of a State Magistrate.

5 The Magistrate concluded:

"As this seems to be the remedy sought by Mr Gradara, I find that his application for review simply cannot succeed in this court. To the extent that the application is on a form used for review of a registrar’s decision with respect to bankruptcy, there is clearly no registrar’s decision involved in this case that could be reviewed by me. To the extent that it is Mr Gradara seeking to have me review my own previous decision with respect to the annulment of his bankruptcy, it is not appropriate to apply for review rather than lodging an appeal to the Full Court of the Federal Court. However, neither of these matters appear to me to be the true issue that Mr Gradara has, which is with respect to a judgment of the State Magistrates Court."

6 The notice of appeal to this Court contains the following grounds.

"1. The truth did not came up the solicitor Erik Lassen is a perjury liar misleed all judges in any courts Gradara make a sumons for him but the Magistrate Court are not interest and Merkel accept from him.

2. A false affidavit for this Gradara lost all the Court. Only in the ights Court judge Hon. Hayne and Callinan J let me talk and Gradara win and they order no court order ... to pay cost ...."

The orders sought are that Mr Lassen be given ten years gaol for perjury and "criminal abuse of the law", and Mr De Marchi ten years for forgery and perjury and, it would seem, robbery as well.

7 Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 the Chief Justice has determined that the appeal be heard by a single judge.

8 On the appeal the question is not whether this Court can grant the relief sought in the notice of appeal. It is whether any error has been shown in the Magistrate’s reasons of 29 March 2006. Nothing in the appellant’s affidavits, statutory declarations or submissions has identified any error in the Magistrate’s decision, which I have summarised. His Honour had no jurisdiction to grant the relief sought.

9 If, as the Magistrate thought might be the case, the application for review was for an order annulling the appellant’s bankruptcy and if the present appeal is against the dismissal of such an application, the appeal must fail. Section 153B of the Bankruptcy Act 1966 (Cth) empowers the Court to annul a sequestration order if satisfied that it ought not to have been made. Nothing in the notice of appeal or the appellant’s affidavits, statutory declarations or submissions shows any reason why the order should not have been made. None of them shows any error on the Magistrate’s part. They do not even refer to his reasons for judgment. They contain no more than abusive remarks about the putative respondents.

10 I say "putative" respondents because although Mr Lassen and Mr De Marchi were named as respondents in the application for review and in the notice of appeal, neither had been joined as a party to the proceeding at first instance. Mr Lassen and Mr De Marchi attended at Court today. Though they conducted themselves as though they were parties to the proceeding before me, including the filing of written submissions by Mr De Marchi, I did not call on either of them.

11 The appeal must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 3 July 2006

The appellant appeared in person.
Solicitor for the First Respondent:	Herbert Geer & Rundle (Mr H Lassen)
Counsel for the Second Respondent:	Ms J Lardner
Solicitor for the Second Respondent:	Piper Alderman
Date of Hearing:	30 June 2006
Date of Judgment:	30 June 2006