Kuperman, In the matter of an application for leave to issue or file

[2023] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B49 of 2023

In the matter of -
an application by GAYE ALEXANDRA KUPERMAN for leave to issue or file

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 SEPTEMBER 2023, AT 3.30 PM

HER HONOUR: Pursuant to rules 6.07.3 and 13.03.1 of the High Court Rules 2004 (Cth), I refuse the application filed on 31 August 2023 for leave to issue or file a notice of appeal.

I publish my reasons and direct that those reasons be incorporated into the transcript. The order of the Court is:

1.The ex parte application filed on 31 August 2023 for leave to issue or file a notice of appeal is refused.

I publish that order.

On 3 August 2023, in Kuperman v Permanent Trustee Australia Limited,[1] Edelman and Gleeson JJ dismissed the applicant’s application for special leave to appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. On 22 August 2023 Steward J, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), directed the Registrar to refuse to issue or file the applicant’s notice of appeal from the order and judgment of Edelman and Gleeson JJ without the leave of a Justice first had and obtained by the applicant. The applicant now seeks that leave by way of an application, filed on 31 August 2023, pursuant to r 6.07.3 of the High Court Rules. In an affidavit in support of the proposed appeal, Gaye Luck identifies herself as the applicant.
[1][2023] HCASL 109.

The application for the grant of special leave to appeal was refused by Edelman and Gleeson JJ on the bases that the decision of the Court of Appeal was plainly correct and an appeal to this Court would have no prospects of success.

No bases are shown for warranting the re‑opening of the special leave application, which could occur only in the most exceptional circumstances.[2] It is evident that the applicant simply wishes to have the matter considered again. The appeal is an attempt to adjudicate the same matter which was dealt with by the order of Edelman and Gleeson JJ and is an abuse of process.
[2]Re Sinanovic’s Application (2001) 180 ALR 448 at 450-451 [7].

For these reasons I will order that the ex parte application filed on 31 August 2023 for leave to issue or file a notice of appeal be refused.

AT 3.30 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

This matter concerned an application for leave to issue or file proceedings in the Supreme Court of Queensland by Mr Kuperman. The application was made pursuant to s 479(1) of the Corporations Act 2001 (Cth) and was brought against the liquidators of a company.

The primary legal issue before the Court was whether Mr Kuperman had established a sufficient basis to be granted leave to commence proceedings against the liquidators. This involved considering the nature of the proposed proceedings and the evidence presented in support of the application.

The Chief Justice applied the principles established in *Re Australian Elizabethan Theatre Trust* (1991) 103 ALR 297, which require an applicant seeking leave under s 479(1) to demonstrate a *prima facie* case. This means showing that there is a real prospect of success in the proposed litigation. The Court considered the evidence before it and determined that Mr Kuperman had not satisfied this threshold, as the material did not establish a sufficient basis for the claims he intended to bring.

Leave to issue or file the proceedings was therefore refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established