Federal Court of Australia

Pizzino v Caratti (No 4) [2025] FCA 657

ORDERS

THE COURT ORDERS THAT:

1.    On or before 12.00 pm on 25 July 2025, the applicant do file and serve any application to extend the time to file a second further substituted statement of claim.

2.    The case management hearing be otherwise adjourned until 10.15 am on 30 July 2025 at which time the respondent may move for orders dismissing the proceedings if appropriate steps to progress the proceedings have not been taken by the applicant.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In September 2023, Mr Alberto Pizzino and his three sisters commenced proceedings in this Court against Mr Allen Caratti. They concerned dealings that had resulted in the sale by them of a property in Bennett Springs to a company of which Mr Caratti was a director, being West Swan Land Company Pty Ltd (WSLC). The relevant events are said to have occurred between 2005 and 2012 and to have included the entry into a deed of settlement and release. It appears to be common ground that an amount of $4 million that was to be paid by WSLC to Mr Pizzino and his sisters in respect of the transfer of the land to WSLC has never been paid, yet WSLC obtained full title to the land.

2    For some time, the proceedings were conducted for the applicants by Mr Bruce Duckham of Duckham & Co solicitors. In December 2023, the statement of claim in the proceeding was struck out with leave to re-plead: Pizzino v Caratti [2023] FCA 1624. At that time, it was observed that the statement of claim was difficult to follow and that it was not possible to ascertain from the statement of claim the precise nature of the causes of action asserted against Mr Caratti: at [15].

3    Thereafter Mr Pizzino's sisters discontinued their claims and the proceedings continued with Mr Pizzino as the sole applicant. There were a number of attempts by Mr Duckham to produce a statement of claim.

4    In October 2024, I heard an application to strike out what was then the further substituted statement of claim and for the proceedings to be dismissed. I ordered the pleading to be struck out: Pizzino v Caratti (No 3) [2024] FCA 1278. In my reasons I said: '… it is no overstatement to say that the New Pleading is both confusing and hopelessly deficient in fundamental respects. It does not serve the purposes of a statement of claim. It must be struck out': at [63]. Nevertheless, I determined that there should be leave to re-plead. One of the considerations that led to that conclusion was the statement by Mr Duckham that counsel at the Independent Bar had been briefed to prepare a further version of the pleading: at [64]-[71]. There was an order made requiring the filing of a second further substituted statement of claim by 19 December 2024.

5    There was then a case management hearing on 30 January 2025. On that occasion Mr Duckham informed the Court that he was 'about to cease to be instructed'. As to the preparation of the second further substituted statement of claim Mr Duckham said that he had discussed its preparation with counsel but that he personally had not taken any steps in relation to its preparation. He then said that counsel was not presently retained but that the preparation of the pleading 'had been discussed with him'. Mr Duckham proposed that the case management hearing be adjourned 'while I get off the record and Mr Pizzino can organise separate representation'.

6    Mr Pizzino was present at the hearing and he was asked whether it was correct that he did not wish for Mr Duckham to continue to act. Mr Pizzino said:

He's not actually correct, your Honour, because I've been telling Mr Duckham to prepare a statement of claim and to help because he's a lawyer. I can't do it myself, you know. But unfortunately, Mr Duckham took seven and a half thousand dollars to do that, and he hasn't done it.

7    Mr Pizzino said that he had not asked Mr Duckham to resign. Rather, Mr Duckham had sent him a letter and said he would resign and had told Mr Pizzino that he was not the right person for this case. Mr Pizzino said that he felt he needed someone more specialised. Mr Pizzino also explained that he had been in hospital and he would need to organise some money for other lawyers.

8    On that occasion the case management hearing was adjourned to allow Mr Pizzino to find other lawyers. There was also a long exchange with Mr Duckham about what had occurred in relation to the fees charged. It culminated in Mr Duckham undertaking to the Court that he would refund to Mr Pizzino the amounts that he had received from Mr Pizzino for the conduct of the proceedings.

9    Since then, case management hearings were scheduled for 19 February, 5 March and 8 April 2025. Each of those hearings was adjourned. The case management hearings scheduled for 5 March 2025 and 8 April 2025 were adjourned on the basis of information provided by Mr Pizzino as to his inability to progress the proceedings or attend court by reason of the state of his physical and mental health.

10    A notice of ceasing to act was filed by Mr Duckham on 4 March 2025.

11    The matter came back to me for case management on 18 June 2025. Two days before that date, a member of Mr Pizzino's family communicated to the Registrar a request for an urgent adjournment on the basis of matters described in the email concerning Mr Pizzino's health. The email also referred to difficulties in obtaining legal representation. On the day before the hearing, a medical certificate was provided to the effect that Mr Pizzino was unable to attend Court the next day 'due to underlying medical issues'.

12    At the case management hearing on 18 June 2025 there was no appearance for Mr Pizzino. Counsel for Mr Caratti sought directions requiring any application for an extension of time in which to file a second further substituted statement of claim or any application to appoint a litigation representative by 16 June 2025. I indicated that I would consider the terms of appropriate orders but would otherwise adjourn the case management hearing until 10.15 am on 30 July 2025 on the basis that Mr Caratti could move for orders that the proceedings be dismissed if no further steps had been taken by Mr Pizzino to progress the proceedings by that time.

13    As matters stand, there appear to be two possibilities. Mr Pizzino may take steps to instruct lawyers who will need to apply for an extension of time in which to file a pleading. Alternatively, Mr Pizzino may seek to conduct the proceedings on his own behalf, in which case he will need to bring such an application himself. Having regard to the brief information that has been provided to the Court concerning Mr Pizzino's state of health, it appears that he may not be able to conduct the proceedings on his own behalf: as to the significance of that possibility see Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169; (2022) 294 FCR 346 at [107] (Rangiah, Charlesworth and Banks-Smith JJ). If that is the case, it will be necessary for an application to be made by him or an interested person for the appointment of a litigation representative to conduct the proceedings on his behalf. Recent examples where the Court considered the appointment of such a representative are Neave v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1030; and AYZ v State of Western Australia (Department of Justice, Corrective Services) (No 2) [2022] FCA 1540.

14    A very considerable time has now passed since these proceedings were commenced and there is still no pleading adequately disclosing the basis for the claim. The time for filing a second further substituted statement of claim under the Court's orders expired on 19 December 2024. There is no suggestion that Mr Pizzino lacks the mental competence to instruct lawyers or to seek to find someone who will consent to act as a litigation representative. Mr Pizzino is on notice as to what needs to be done. He is also now on notice that the proceedings may be dismissed if those steps are not taken.

15    In the circumstances, I consider it appropriate to make directions requiring those steps to be taken and for the directions to be made on the basis that, subject to an adequate explanation made to the Court by Mr Pizzino or someone acting on his behalf appearing at the next hearing on 30 July 2025, a failure to take those steps may provide the basis for Mr Caratti to move for orders dismissing these proceedings.

16    To be clear, any application to extend the time for filing a second further substituted statement of claim must be supported by a draft of that pleading or an affidavit setting out circumstances sufficient to support the conclusion that a draft that is likely to be a sufficient foundation for the continuation of the proceedings will be forthcoming.

Associate:

Dated:    18 June 2025