Liprini v Liprini

Case [2012] FCA 1103

FEDERAL COURT OF AUSTRALIA

Liprini v Liprini [2012] FCA 1103

Citation: Liprini v Liprini [2012] FCA 1103
Appeal from: Application for extension of time and leave to appeal: Liprini v Liprini [2012] FMCA 666
Parties: ALLAN STEPHEN LIPRINI v KEVIN LIPRINI and MARK WILLIAM PEARCE AND JOHN HEERS IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF ALLAN STEPHEN LIPRINI
File number: NSD 1260 of 2012
Judge: FLICK J
Date of judgment: 11 October 2012
Catchwords: PRACTICE AND PROCEDURE – extension of time – application for leave to appeal filed ten days out of time – explanation for delay provided – no appellable error in Federal Magistrate’s decision – application dismissed
Legislation: Federal Court of Australia Act1976 (Cth) s 24
Federal Court Rules 2011 (Cth) rr 35.13, 35.14
High Court Rules1952 (Cth) O 70 r 3
Judiciary Act1903 (Cth) s 78B
Family Provision Act 1982 (NSW)
Cases cited: Amrit Lal Narain v Parnell (1986) 9 FCR 479, applied
Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321, cited
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151, 95 FCR 292, cited
Daniels v Deputy Commissioner of Taxation [2007] SASC 431, cited
Gallo v Dawson (1990) 64 ALJR 458, applied
Gallo v Dawson (No 2) (1992) 109 ALR 319, cited
Glennan v Commissioner of Taxation [2003] HCA 31, 77 ALJR 1195, cited
Khondoker v Minister for Immigration and Citizenship [2012] FCA 654, cited
Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2007] FCA 1069, cited
Liprini v Liprini [2010] FMCA 687, referred to
Liprini v Liprini [2010] NSWCA 126, referred to
Liprini v Liprini [2011] FMCA 359, referred to
Liprini v Liprini (No 2) [2011] FCA 1150, referred to
Liprini v Liprini [2012] FMCA 666, referred to
Liprini v Liprini [2012] FMCA 719, referred to
Pascoe v Liprini [2011] NSWSC 1484, referred to
Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 at [58], 250 ALR 82, cited
Sochorova v Minister for Immigration and Citizenship [2009] FCA 555, cited
Spanswick v The Honourable Robert John Carr, MP [2003] NSWSC 393, cited
SZIOE v Minister for Immigration and Citizenship [2007] FCA 1176, cited
SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052, cited
Vescio v Keneally [2008] FCA 589, cited
Date of hearing: 25 September 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 34
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent did not appear
Solicitor for Scott Darren Pascoe (outgoing Second Respondent): Mr D Farrar of Farrar Lawyers
Solicitor for Mark William Pearce and John Heers (incoming Second Respondent): Ms E Pickthall of Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1260 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT…

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AGLC
Liprini v Liprini [2012] FCA 1103
Case
[2012] FCA 1103
Decision Date

CaseChat Overview and Summary

Dr Liprini applied for an extension of time and leave to appeal against the decision of a Federal Magistrate that dismissed his application for the annulment of a sequestration order made against his estate. The Federal Magistrate had declared Dr Liprini to be a vexatious litigant and ordered that he must obtain the leave of the Court before instituting any further proceedings. The Court was required to determine whether the application for an extension of time and leave to appeal should be dismissed, whether the appeal should proceed, and whether the costs of the application should be paid by Dr Liprini or from the bankrupt estate.

The Court found that Dr Liprini's application was filed ten days out of time, and that there was no good explanation for the delay. The Court also found that there was no appellable error in the Federal Magistrate's decision. The Court noted that Dr Liprini had repeatedly attempted to re-litigate issues that had already been resolved against him, and that his allegations of fraud were scandalous and unsubstantiated. The Court concluded that Dr Liprini habitually, persistently, and without reasonable grounds instituted vexatious proceedings in various courts. The Court dismissed the application for an extension of time and leave to appeal and ordered that the costs of the application be paid by Dr Liprini or from the bankrupt estate.

Orders

Orders of the court

1. Mark William Pearce and John Heers be substituted for Scott Pascoe as the Second Respondent, in their capacity as successor trustees in bankruptcy of the Applicant.

2. The Application for an extension of time and leave to appeal filed on 28 August 2012 is dismissed.

3. The costs of Scott Darren Pascoe and the Second Respondent be indemnified from the Bankrupt Estate of the Applicant, either as agreed or taxed.

Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The repeated attempts by Dr Liprini to re-litigate issues which have previously been resolved against him, moreover, provided a sufficiently certain basis upon which an order could be made precluding Dr Liprini from commencing or continuing any further proceeding without the leave of the Court. The Federal Magistrate (inter alia) reviewed the many proceedings which had previously been instituted by Dr Liprini and concluded in part as follows: [218]As can be seen from the summary of proceedings instituted by Dr Liprini, not only were the proceedings numerous, but they also clearly represented repeated attempts to re-litigate issues already determined against Dr Liprini and were accompanied by scandalous allegations which Dr Liprini had no prospect of substantiating.[219]Dr Liprini repeatedly engaged in similar applications in different courts (in particular for a stay). This suggests that he does not accept an inability in law to further challenge decisions that have been the subject of unsuccessful challenge. His allegations of fraud involve a range of persons. Some of the proceedings instituted by him (notably the appeals against the decision of Nicholas J and against the sequestration order) have been struck out.[220]I am satisfied, based on the number, character, lack of reasonable grounds and way in which the proceedings instituted by Dr Liprini have been conducted, that he habitually, persistently and without reasonable grounds instituted such other vexatious proceedings in this court, in the Federal Court, in the Supreme Court, the Court of Appeal, and the District Court. In these circumstances, the court has the power to make an order under r 13.11(1).Orders declaring a person a vexatious litigant are not lightly made because of the serious impact of such orders upon a person’s right of access to the courts: Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2007] FCA 1069 at [44] per Finn J, 242 ALR 370 at 380. See also: Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 at [58], 250 ALR 82 at 95 per Logan J. When considering whether leave should be given to commence a proceeding, Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 at 323 observed:… it is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented … The same “vigilance” is appropriate in the present context when reviewing the reasons for decision of the Federal Magistrate and when considering the exercise of the discretion to extend time. Concurrence is nevertheless expressed with the observations of the Federal Magistrate. The evidence that was before the Federal Magistrate has been reviewed and there is no reason to question the findings made or the conclusions reached. Although it is the responsibility of each Court to make its own orders if it considers it appropriate to declare any particular litigant “vexatious”, it may be noted that a like order to that made by the Federal Magistrate has been made in the Supreme Court of New South Wales in December 2011: Pascoe v Liprini [2011] NSWSC 1484 per Adamson J.CONCLUSIONS

Ratio Decidendi

Legal Principle Established

The application now made by Dr Liprini seeking to challenge (inter alia) the decision of the Federal Magistrate not to annul his bankruptcy can thus be resolved without the need for any further delay. THE MAKING OF THE SEQUESTRATION ORDER AND THE ANNULMENT The origins of the present proceeding may be traced back to the death of Dr Liprini’s father in 2005. Under his father’s will, the estate went in substance to his mother and thereafter to Dr Liprini. Dr Liprini’s mother died in November 2006 and Dr Liprini’s remainder interest in his father’s estate then vested. Litigation, regrettably, followed. Dr Liprini’s brother, the First Respondent to this Application, commenced proceedings in July 2006 in the Supreme Court of New South Wales under the Family Provision Act1982 (NSW). Consent orders were made in December 2007 which included an order that provision for his brother in the amount of $750,000 be made out of his father’s deceased estate. Those monies were not paid and the brother again commenced proceedings in the Supreme Court. A Judge of that Court made orders in July 2009 for the payment of $770,000 (an amount which included $20,000 in respect of costs) to the brother. An appeal against that decision was dismissed by Allsop P: Liprini v Liprini [2010] NSWCA 126. In dismissing the appeal, Allsop P observed that the “amended grounds of appeal … do not identify any coherent ground of appeal against either the orders or the exercise of discretion” by the trial judge. An application to review the decision of the President was, apparently, also itself dismissed. The July 2009 orders were then relied upon by the brother and a bankruptcy notice was served on Dr Liprini. A sequestration order was made by a Federal Magistrate in September 2010: Liprini v Liprini [2010] FMCA 687. A number of further proceedings were then commenced by Dr Liprini in this Court in relation to the bankruptcy. In May 2011 an application by Dr Liprini for the annulment of his bankruptcy was dismissed by another Federal Magistrate: Liprini v Liprini [2011] FMCA 359. That decision was appealed by Dr Liprini to this Court. In October 2011 an interlocutory application seeking a stay of the administration of the bankruptcy pending the hearing of the appeal was dismissed: Liprini v Liprini (No 2) [2011] FCA 1150. In dismissing that application, Yates J referred to a number of statements made by Dr Liprini in the Affidavit he relied upon and continued: [13] It is clear from a number of these statements that Dr Liprini feels a great sense of injustice arising from the circumstances leading to his bankruptcy and his lack of success in various proceedings he has brought not only in this court, but also in the Supreme Court of New South Wales and the Federal Magistrates Court. He feels that the issues he has raised in these various proceedings have been ignored by the courts involved, and are continuing to be ignored.[14] It is also clear that he feels a significant degree of animosity towards his brother, Kevin Liprini (Mr Liprini), who is a respondent in the appeal and also a respondent to the present application. This seems to stem from Mr Liprini’s claims upon his and Dr Liprini’s parents’ deceased estates which apparently resulted in the making of consent orders in the Supreme Court of New South Wales. The petition upon which the sequestration order was made against Dr Liprini’s estate was based on a debt due to Mr Liprini arising from those consent orders. This animosity also appears to be directed to [Dr Liprini’s trustee in bankruptcy]. Regrettably the “sense of injustice” is still keenly felt by Dr Liprini. There was some uncertainty as to whether the appeal from the decision of the Federal Magistrate in May 2011 was discontinued by Dr Liprini or whether it had been dismissed: at [22]. But the appeal itself was heard on 7 November 2011 and orders were unquestionably made that day dismissing the appeal.