Liprini v Liprini
[2012] FMCA 719
•3 August 2012
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| Family Provision Act 1982 (NSW) (Repealed) Judiciary Act 1903 (Cth), s.78B |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 court and Dr Liprini confirmed from the bar table that he had no proceedings presently on foot in the Federal Court. In these circumstances it is appropriate to consider the notice filed by Dr Liprini on the basis that it has been filed in this court. Dr Liprini confirmed that he was asking this court not to proceed.
Dr Liprini sought to rely on a document filed on 2 August 2012 described as “Post Script To Document “Addendum.…” Filed On 23rd July 2012”. He filed in court a further copy of the postscript to which an additional two pages were annexed which were said to address the basis for the s.78B notice.
Section 78B(1) of the Judiciary Act provides:
Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
Dr Liprini is seeking an adjournment in order that the question of intervention in the proceedings or removal of the cause to the High Court may be considered by the Attorneys-General of the Commonwealth and the States. However, it is for the court to determine whether in fact a matter does arise within the terms of s.78B(1). As Burchett J stated in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489:
Section 78B only operates when the circumstances it postulates are made to appear to the court: it does not operate simply because a party asserts those circumstances.
Nor does it operate merely because the court acts out of an abundance of caution in seeking to ensure that the trial does not miscarry for failure to give a notice in case it were required.
Similarly, as French J, as he then was, observed in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151 at [14]:
Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be.
Furthermore, in determining whether a point arises under the Constitution, the court must be satisfied that the matter “really and substantially” arises under the Constitution before it attracts the operation of s.78B (Berbatis at [13] and cases cited therein and see generally the discussion in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428 at [12]-[15]).
The first issue is whether a cause is pending in a federal court. I was not addressed in relation to whether a cause was pending in this court. The matter comes before the court at the time at which judgment in relation to interlocutory applications is due to be delivered. I will proceed for present purposes on the basis that a cause is pending in this court, being the annulment application.
It appears that Dr Liprini seeks an adjournment to raise concerns about what he feels has occurred in the absence of a stay in relation to the administration of his bankrupt estate before, at and after the time when the matter was before this court for hearing on 29 March 2012. He also raises issues, as far as it can be determined from the material that he has put before the court, in relation to an alleged miscarriage of justice in proceedings linked to or following proceedings commenced by his brother, Mr Liprini (the petitioning creditor), under the Family Provision Act 1982 (NSW) (Repealed) in 2006 and in relation to judicial conduct of various members of the judiciary as elaborated on in the postscript to his addendum. He complains of what he regards as:
a continuum of corrupt judgements (sic) handed down by a cohort of dozens of different judges and judicial registrars that branches into multiple jurisdictions and “held together” by dozens more corrupt decisions that mortise each other by “the Rule of Law”, all destined to contribute to the reservoir of “caselaw” and ongoing recycling as precedents that potentially create a bewilderingly defective geneology (sic).
Dr Liprini’s general contentions are that his rights to access to the justice system have been breached. More specifically, it appears that Dr Liprini takes issue with the fact that a stay in relation to the administration of his bankrupt estate was not granted in prior proceedings or on the day when the matter was last before the court, notwithstanding the fact that he had sought an adjournment of the proceedings at that time and failed to address the substance of his claim.
Dr Liprini claims that he is without resources, his property has been stolen and that he is homeless. There is no evidence before the court in these proceedings to support such claims. As allegations they are not such as to raise a matter within s.78B of the Judiciary Act.
Simply to assert that a matter arises under the Constitution and to raise various concerns about the conduct of other parties, the Trustee in Bankruptcy and various judicial officers does not of itself give rise to a Constitutional question which is a live issue in the proceedings as discussed in Parnell. On the material before the court it has not been established and nor is it apparent that the proceedings presently before this court involve a matter really and substantially arising under the Constitution or involving its interpretation. In these circumstances, the adjournment sought by Dr Liprini is refused. Accordingly it is appropriate to proceed with this matter and to deliver judgment.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 17 August 2012
3
2