Case: Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCA 60
Outcome: referred to
This matter has an exceptionally long history which some number of Judges both of this court and of the Supreme Court of South Australia have been obliged to narrate in detail. In my judgment in Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCA 60 I set out a chronology at some length. I will not repeat it here other than to say that Mr Cirillo sought an inquiry as to damages in respect of an undertaking given when an injunction was awarded against him in 1985 restraining him from dealing with a particular piece of property described as "the Poclain". That injunction lapsed in February 1993 and the inquiry was sought in respect of that period. There were considerable interlocutory issues raised in that proceeding which, as I will later indicate, bear on the present matter. Suffice it to say that for present purposes in July 2000 a Master of the Supreme Court ordered the preliminary hearing of five issues from the apparently substantial number of issues that had arisen between the parties. Two of those issues were not prosecuted, the remaining three all were decided adversely to Mr Cirillo. A judge of the Supreme Court held, first, that he did not have standing to pursue his claim for relief in light of the events which had occurred; secondly, that he was not at any relevant time the legal or beneficial owner of the property in question nor did he have any right to possession of it; and, thirdly, he was estopped from asserting that he was a beneficial owner at any relevant time. His enquiry as to damages was dismissed. Mr Cirillo appealed unsuccessfully to the Full Court and a special leave application to the High Court was refused. The consent order founding the bankruptcy notice was made on 28 July 2005. 4 The applicant filed the present application on 11 July 2006. Counsel for the applicant has not read much of the affidavit filed in support of that application. It would appear that what was foreshadowed in it was an action in tort for abuse of process against four respondents plus their then solicitors, Finlaysons. The nature of that abuse has been said to be similar to that contained in a subsequent Federal Court proceeding to which I will refer to below. 5 The set aside application was heard and reserved by a Registrar of the Federal Magistrates Court after a hearing over several days. Before the Registrar came to give judgment a further affidavit was filed by Mr Cirillo. Counsel for Mr Cirillo subsequently sought to have the hearing before the Registrar re-opened for the purpose of admitting that affidavit into evidence. By that stage Mr Cirillo had instituted proceedings in this court against the same five respondents. He purported to claim damages for breaches of duties of care he alleged were owed him by all respondents. While he characterised the conduct of the respondents as an abuse of process he did not plead that tort as such. The alleged wrongdoing of which complaint was made was concealment of an alleged agreement in 1997 by CAL in which it was supposed to have transferred secured debts owed to it by CWC to other corporate entities. The effect of this was said to be that CAL had in consequence not disclosed that it had no right to defend the inquiry as to damages proceedings at least on the basis that it had a set-off against Mr Cirillo's claims by virtue of its secured debt which was in turn supported by a personal guarantee by Mr Cirillo. Allied to this was a claim under the Trade Practices Act 1974 (Cth) against all of the respondents for damages for a contravention of s 52.