Liprini v Liprini

Case [2012] FMCA 666


FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIPRINI v LIPRINI & ANOR [2012] FMCA 666
BANKRUPTCY – Second annulment application and application for a stay – application by trustee in bankruptcy for summary dismissal – application to declare bankrupt a vexatious litigant.

Bankruptcy Act 1966 (Cth), ss.40, 52, 153B
Family Provision Act 1982 (NSW), s.7
Federal Magistrates Act 1999 (Cth), ss.5, 17A
Federal Court of Australia Act 1976 (Cth), s.29
Legal Profession Act 2004 (NSW), s.382
Vexatious Proceedings Act 2008 (NSW)

former Federal Court Rules, O.20, r.2, O.21
Federal Magistrates Court Rules, rr.13.10, 13.11

Attorney General of NSW v Wilson [2010] NSWSC 1008
Attorney-General v Collier [2001] NZAR 137
Attorney-General v Wentworth (1988) 14 NSWLR 481
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

Boothe (Trustee), in the matter of Malan (Bankrupt) v Malan [2000] FCA 685

Cambridge Consolidated NL v Zephyr Minerals NL and Others (1999) 88 FCR 147; [1999] FCA 224
Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809
Fiorentino v Irons and Others (1997) 79 FCR 327; [1997] FCA 1425
Hunters Hill Municipal Council v Pedlerand Another (1976) 1 NSWLR 478
International Alpaca Management Limited v Ensor [1999] FCA 72
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd and Others (2009) 239 CLR 75; [2009] HCA 43
Jones v Skyring (1992) 66 ALJR 810; [1992] HCA 39
Kowalski v Mitsubishi Motors Australia Ltd and Others (2011) 198 FCR 153; [2011] FCAFC 159
Liprini v Kerem & Anor (No.2) [2010] FMCA 244
Liprini v Liprini & Anor [2011] FMCA 1029
Liprini v Liprini & Anor [2011] FMCA 359
Liprini v Liprini (No 2) [2010] FCA 1495
Liprini v Liprini (No 2) [2011] FCA 1150
Liprini v Liprini (unreported, New South Wales Court of Appeal, Beazley, Giles JJA and Handley AJA, No 298526 of 2009, 28 June 2010)
Liprini v Liprini (unreported, District Court of New South Wales, Truss DCJ, No 1067490 of 2010, 15 September 2010)
Liprini v Liprini (unreported, Supreme Court of New South Wales, Equity Division, Nicholas J, No 2468 of 2008, 10 July 2009)
Liprini v Liprini [2008] NSWSC 423
Liprini v Liprini [2010] FCA 1117
Liprini v Liprini [2010] FMCA 687
Liprini v Liprini [2010] NSWCA 126
Liprini v Liprini [2011] FCA 722
Michael Wilson & Partners Limited v Nicholls and Others (2011) 244 CLR 427; [2011] HCA 48
Moti v The Queen (2011) 86 ALJR 117; [2011] HCA 50
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pascoe v Liprini (unreported, Supreme Court of New South Wales, Equity Division, Ward J, 26 August 2011)
Pascoe v Liprini [2011] NSWSC 1484
Pascoe v Liprini [2012] NSWSC 345
Re Cameron (1996) 2 Qd R 218; [1996] QCA 37
Re Elwyn John Capel; Ex Parte: Caram Finance Australia Ltd (formerly called Marac Finance Australia Ltd) [1998] FCA 372
Re Prowse, Ex parte the Debtor (1981) 39 ALR 639; (1981) 57 FLR…

Continue reading Liprini v Liprini

Sign in free to access the full text

Details
AGLC
Liprini v Liprini [2012] FMCA 666
Case
[2012] FMCA 666
Decision Date

CaseChat Overview and Summary

Liprini v Liprini is a case in the Federal Court of Australia where the parties are engaged in a dispute over family law matters. The case concerns an application by the husband, the respondent, to have the wife, the applicant, declared a vexatious litigant under the Federal Court Rules. The primary legal issues before the court were whether the wife's litigation was vexatious and, if so, whether she should be declared a vexatious litigant. The court needed to determine the meaning and application of the term 'vexatious' in the context of the Federal Court Rules, particularly in relation to the concept of vexatious proceedings.

The court considered the meaning of 'vexatious' by examining relevant case law and statutory provisions. It held that vexatiousness is a quality of the proceedings rather than the intention of the litigant. The court also emphasised that the term 'vexatious' includes proceedings that are scandalous, disclose no reasonable cause of action, are oppressive, embarrassing, or an abuse of the court process. The court further noted that the assessment of whether a proceeding is vexatious should be based on the overall impression created by the number of proceedings, their general character, and their results. The court concluded that the wife's litigation did not meet the threshold for being considered vexatious, as there were legitimate claims and not all proceedings were without merit. The application to declare the wife a vexatious litigant was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Relevantly, her Honour continued at [46] – [51]:In Attorney-General v Wentworth (1988) 14 NSWLR 481, Roden J gave detailed consideration to the authorities and to the questions of law relevant to a declaration that a person is a vexatious litigant. His Honour’s analysis was in the context of s 84 of the Supreme Court Act 1970 (NSW) however, in relation to the nature of vexatious proceedings, s 84 is not materially different to The Federal Court Rules under consideration here.…Although the respondent must have “instituted” vexatious proceedings, as Roden J pointed out, vexatiousness is a quality of the proceedings rather than the respondent’s intention so that “the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”; Re Vernazza [1960] 1 QB 197 at 208 per Ormerod LJ. The intention to harass, embarrass or annoy may be a factor, even the precipitating factor, in an applicant’s decision to institute a proceeding and yet that proceeding may involve a legitimate claim. Nevertheless such an intention may be a powerful indicator that a proceeding is vexatious because groundless, but it cannot be determinative. In Attorney-General v Collier [2001] NZAR 137 at [40] the Full Court made this point saying: Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points (such as Limitation Act defences or error in the form of proceedings not known to the plaintiff) may be reliable evidence in the circumstances of vexatiousness. This is consistent with the observations of Toohey J in Jones v Skyring: see [45] above. In Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 at [22] the New Zealand Court of Appeal made similar observation and observed that ultimately the test is whether “the various proceedings have been conducted by the litigant in a manner which properly attracts that epithet”. The concept of a vexatious proceeding is relevant to an application to dismiss a single proceeding pursuant to O 20 r 4 or r 5 which provide that the Court may stay or dismiss generally a proceeding or claim that is “frivolous or vexatious”. I see no reason why “vexatious” in these rules should bear a different meaning to the meaning it bears O 21 r 1 and r 2. For practical purposes, the test of whether a proceeding is vexatious is whether it is, in Roden J’s words, “so obviously untenable or manifestly groundless as to be utterly hopeless”. In Gallo v The Honourable the Attorney-General, Supreme Court of Victoria, 4 September 1984, (unreported) Starke J referring, at 11, to ‘vexatious’ as “an omnibus expression”, said that the expression includes, ... proceedings which are scandalous which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word 'vexatious' in the statute. In Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269 at [28], Ashley J helpfully addressed practical issues of application: It is one thing to know what the word “vexatious” means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results. [Footnotes omitted; emphasis added]

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.