Federal Court of Australia

Pizzino v Caratti (No 5) [2026] FCA 69

ORDERS

THE COURT ORDERS THAT:

1.    On or before 7 April 2026, the applicant must:

(a)    obtain legal representation for the conduct of these proceedings and arrange for the lawyer to file a notice of acting; or

(b)    file and serve an application for the appointment of a litigation representative for the applicant such application to be supported by an affidavit that addresses the matters stated in r 9.63(3) of the Federal Court Rules 2011 (Cth).

2.    If the applicant fails to comply with order 1, the respondent may move for dismissal of the proceedings.

3.    The proceedings are listed for a case management hearing at 9.15 am AWST on 14 April 2026.

4.    The applicant's interlocutory application dated 17 November 2025 and the respondent's interlocutory application for the dismissal of the proceedings are both dismissed with liberty to apply as to the costs of those applications.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Alberto Pizzino and his three sisters owned a property in Bennett Springs in Western Australia. Mr Pizzino says that he had dealings with Mr Allen Carratti concerning the property. He says that those dealings resulted in the transfer of the property to a company controlled by Mr Caratti without the company performing promises that were made to Mr Pizzino and his sisters. Mr Pizzino says that Mr Caratti is personally liable for losses suffered as a result of the dealings. Mr Pizzino is yet to formulate the precise nature of his claim. However, it appears from affidavit material that has been filed by Mr Caratti that Mr Caratti accepts that there were dealings in which he was involved, that those dealings resulted in the transfer of the property to the company and, ultimately, Mr Pizzino and his sisters did not receive anything in return for the land.

2    On the materials before the Court, the relevant events took place some time ago and appear to have been the subject of a deed of settlement the terms of which also are said not to have been performed.

3    For some time, the proceedings were conducted for the applicant by Mr Bruce Duckham of Duckham & Co solicitors. I recounted the attempts by Mr Duckham to plead a case in Pizzino v Caratti (No 4) [2025] FCA 657. Mr Duckham's involvement came to an end in January 2025 and he ceased to act in February 2025.

4    There remains an outstanding obligation to file a substituted statement of claim pursuant to orders made in November 2024: Pizzino v Caratti (No 3) [2024] FCA 1278. Since Mr Duckham ceased to act, Mr Pizzino has not been legally represented. At times, Mr Pizzino has indicated to the Court that he wishes to engage a lawyer. However, Mr Pizzino is elderly and has been unwell. The position as it stood as at 18 June 2025, was recounted in Pizzino v Caratti (No 4) where I said at [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.

5    Since then, there has been an ongoing failure by Mr Pizzino to engage lawyers or prepare the required substituted statement of claim. Matters were brought to a head in November 2025 when Mr Caratti brought a formal application to dismiss the proceedings and Mr Pizzino brought an application for an extension of time to file the required pleading. Directions were made programming both interlocutory applications for hearing on 5 February 2026. Those orders were made on the basis of statements made by Mr Pizzino to the Court that steps would be taken to engage a lawyer.

6    After the hearing, the Court received a communication from Mr Pizzino which indicated that he was seeking some form of further extension of time. The Court provided the following response to Mr Pizzino, a copy of which was provided to those acting for Mr Caratti;

I refer to your letter dated 21 November 2025 seeking an adjournment to allow a solicitor to be appointed. Please ensure that any communications with the Court are copied to the solicitors for Mr Caratti.

Your letter has been drawn to the attention of Justice Colvin. His Honour has asked me to bring the following matters to your attention.

Please note, there is no specified date by which solicitors need to be appointed. Rather, as explained at the last court hearing, the point has now been reached where you need to act with urgency.

Until a solicitor has been appointed there is no basis upon which to seek additional time for the solicitor to prepare a further version of the statement of claim. If and when you have appointed the solicitor, then that person will be able to bring any application for any extension of time.

In those circumstances, your application to amend and Mr Caratti's application to dismiss the proceedings both remain listed for hearing at 10.15 am AWST on 5 February 2026.

If at any time before then you wish to seek an adjournment you will need to file an interlocutory application seeking an adjournment together with an affidavit setting out the matters you rely upon to support that application. Informal requests to adjourn made by letter will not be considered unless you have agreement from the lawyers acting for Mr Caratti.

7    Shortly prior to the hearing listed for 5 February 2026, the Court received a communication from Mr Pizzino's son seeking an adjournment on the basis of Mr Pizzino's continuing ill-health. The need for a further explanation having regard to what had been indicated as to the engagement of a lawyer was communicated. More detailed medical information was provided which established that Mr Pizzino's state of medical health was such that he would have very considerable difficulty in being able to conduct the proceedings on his own behalf.

8    At the hearing on 5 February 2026, I allowed Mr Pizzino's son who attended with his father to assist Mr Pizzino in explaining his current circumstances to the Court. It was obvious that Mr Pizzino was physically frail, agitated and distressed. It emerged that steps had not been taken to obtain legal representation and what was being proposed was a further adjournment for that purpose on the basis that Mr Pizzino's son was now available to assist in arranging the necessary meetings and in obtaining relevant documents to brief lawyers. There was also mention of finance being available to meet legal costs.

9    Mr Caratti pressed the interlocutory application for dismissal of the proceedings.

10    Having regard to the submissions advanced for Mr Caratti and the history of the proceedings, in my view the following matters bear upon the appropriate orders to be made:

(1)    The medical information before the Court in the form of a letter from Mr Pizzino's treating psychologist establishes that Mr Pizzino lacks the capacity to be able to conduct the proceedings on his own behalf and that has been the position for some time. Further, Mr Pizzino would require a considerable period of therapeutic treatment before there would be any prospect of him being able to engage meaningfully and coherently in the court process.

(2)    For a considerable period, the failure to present to the Court an appropriate statement of claim was attributable to Mr Duckham.

(3)    Since February last year Mr Pizzino has had conduct of the proceedings on his own behalf and he has been afforded considerable indulgences for the purpose of obtaining legal advice, culminating in the orders made in November 2025.

(4)    As at November 2025, Mr Pizzino was on notice that he had to act with urgency and further indulgence was unlikely.

(5)    Since then, on Mr Pizzino's informal account, there have been efforts by him to obtain lawyers but it has been difficult to obtain meetings during the holiday period and then to collate the documents and put together the instructions required.

(6)    Mr Pizzino now has the assistance of his son in obtaining legal representation.

(7)    Mr Caratti, having been brought before the Court, is entitled to have the nature of the claim against him properly and promptly articulated and there is an unfairness to him in allowing the case to remain on foot without it being progressed by the applicant.

(8)    Beyond that general prejudice, Mr Caratti does not advance any specific prejudice to him arising from the ongoing delay.

(9)    Mr Pizzino is very considerably out of time in respect of the orders made for the filing of a substitute statement of claim.

(10)    Without expressing any view as to the factual or legal merits of the claims that the applicant seeks to advance and noting the claims are denied by Mr Caratti and have not been adjudicated in any way by the Court, the information before the Court indicates that the subject matter is serious, is of some personal financial significance to Mr Pizzino and concerns alleged losses of many millions of dollars.

11    In all the circumstances, I am persuaded that it is in the interests of justice for Mr Pizzino to be granted a final indulgence to seek legal advice and to obtain legal representation for the purposes of the ongoing conduct of the proceedings, assuming he is advised to continue to advance them. Alternatively, if Mr Pizzino does not obtain a lawyer then, in order for the claim to be progressed, it is necessary for a litigation representative to be appointed because Mr Pizzino is not able to conduct the proceedings on his own behalf. Given the nature of the claim, I consider a final indulgence of a period of two months should be allowed for those steps to be taken. If they are not taken, then the point has been reached where these proceedings must be dismissed.

12    The appropriate orders are these. First, Mr Pizzino should be required by 7 April 2026 to either obtain legal representation for the conduct of these proceedings and arrange for the lawyer to file a notice of acting or bring an application for the appointment of a litigation representative supported by an affidavit that addresses the matters stated in r 9.63(3) of the Federal Court Rules 2011 (Cth). Second, there should be an order that if there is a failure to take those steps by 7 April 2026 then Mr Caratti may move for dismissal of the proceedings. Third, the proceedings should be listed for a case management hearing at 9.15 am AWST on 14 April 2026. At the case management hearing, if Mr Pizzino has failed to take the required steps then Mr Caratti may move for dismissal. If Mr Pizzino has taken the required steps then the Court will make orders as to the future conduct of the proceedings, particularly as to what is to occur in relation to the filing of a substituted statement of claim.

13    In the circumstances, it is appropriate for orders to be made dismissing the interlocutory applications before the Court but reserving liberty to apply as to costs.

Associate:

Dated:    6 February 2026