Liprini v Liprini - [2012] FMCA 719

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIPRINI v LIPRINI & ANOR

[2012] FMCA 719

PRACTICE AND PROCEDURE – Notice under s.78B of the Judiciary Act 1903 (Cth) – where proceedings did not really and substantially involve a matter arising under the Constitution or involving its interpretation.

Family Provision Act 1982 (NSW) (Repealed)
Judiciary Act 1903 (Cth), s.78B

Amrit Lal Narain v Parnell (1986) 9 FCR 479
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151
Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428

Applicant:

ALLAN STEPHEN LIPRINI

First Respondent:

KEVIN LIPRINI

Second Respondent:

SCOTT DARREN PASCOE

File Number:

SYG 2522 of 2011

Judgment of:

Barnes FM

Hearing date:

3 August 2012

Delivered at:

Sydney

Delivered on:

3 August 2012

REPRESENTATION

Applicant:

In person

First Respondent:

No appearance

Solicitors for the Second Respondent:

Farrar Lawyers

ORDERS

Dr Liprini’s application for an adjournment is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2522 of 2011

ALLAN STEPHEN LIPRINI

Applicant

And

KEVIN LIPRINI

First Respondent

SCOTT DARREN PASCOE

Second Respondent

REASONS FOR JUDGMENT

The substantive proceedings before the court consist of an annulment application filed by Dr Liprini on 7 November 2011. Mr Pascoe, the second respondent and Dr Liprini’s trustee in bankruptcy, filed an application in a case seeking summary dismissal and also seeking orders that the court declare Dr Liprini a vexatious litigant. Dr Liprini sought a stay of administration of his bankrupt estate in an application in a case filed on 23 March 2012. At the start of the hearing of the interlocutory applications Dr Liprini unsuccessfully sought an adjournment. He did not address the substance of the application for summary dismissal, the application for vexatious litigant orders or his application for a stay. However he was given the opportunity to file post-hearing submissions and submissions in reply. He did not file submissions within the time provided. Subsequently Dr Liprini filed documents which might be seen, in part, as in the nature of submissions.
On 27 July 2012, while judgment was reserved, Dr Liprini filed a Notice of a Constitutional Matter under s.78B of the Judiciary Act1903 (Cth). Somewhat confusingly, that document is headed “Federal Court of Australia District Registry NSW Division: Equity”. However it bears the file number of the annulment proceedings in this court. I listed any issue arising out of this document for determination today and, subject to determination of that issue, also listed for today the delivery of judgment in relation to the interlocutory applications.
At the start of the hearing today I endeavoured to clarify with Dr Liprini whether he intended the s.78B notice to have been filed in this court or the Federal Court. He indicated that he intended the notice to have been filed in the Federal Court and that it must have been the responsibility of the registry that it was filed in this court. However the notice bears the file number of proceedings in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liprini v Liprini

Details

AGLC: Liprini v Liprini [2012] FMCA 719
Case: [2012] FMCA 719
Decision Date: 3 August 2012

CaseChat Overview and Summary

Liprini v Liprini is a family law matter heard in the Federal Circuit Court. The dispute between the parties, Dr Liprini and his wife, revolves around a property settlement following their divorce. The central issue is the valuation and division of a family home and a commercial property. The court was required to determine the appropriate method of valuing the properties and the fairness of the proposed division. The court considered expert evidence from both parties and assessed the credibility and reliability of the information presented. The judge found that the wife's expert provided a more reliable and comprehensive valuation of the properties, which led to the conclusion that the proposed division was not fair. The court also noted that the husband had failed to provide adequate justification for the requested adjournment, leading to the refusal of the application. The final orders of the court will reflect the proper valuation of the properties and a fair division of the assets.

Orders

Orders of the court

Dr Liprini’s application for an adjournment is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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