Supreme Court
New South Wales
Medium Neutral Citation: Pascoe v Liprini [2011] NSWSC 1484 Hearing dates: 1 December 2011 Decision date: 05 December 2011 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the Defendant is prohibited from instituting proceedings in New South Wales without leave of the Court.
(2) Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008, all of the proceedings in New South Wales already instituted by the Defendant be stayed.
(3) The Defendant to pay the Plaintiff's costs.
Catchwords: PRACTICE AND PROCEDURE - vexatious proceedings - whether proceedings are vexatious - meaning of "vexatious" - whether proceedings were conducted frequently - meaning of "frequently" Legislation Cited: - Bankruptcy Act 1966 (Cth) - s 37(2), s 52(3)
- Family Provision Act 1982 (NSW)
- Federal Court of Australia Act 1976 (Cth) - s 29(1)
- Legal Profession Act 2004 (NSW) - s 368, s 369, s 382
- Vexatious Proceedings Act 2008 (NSW) - s 4, s 6, s 8Cases Cited: - Attorney General (NSW) v Croker [2010] NSWSC 942
-- Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
- Attorney General (NSW) v Wilson [2010] NSWSC 1008
- Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
- Liprini v Kerem & Anor (No 2) [2010] FMCA 244
- Liprini v Liprini [2008] NSWSC 423
- Liprini v Liprini [2010] FMCA 687
- Liprini v Liprini [2010] FCA 1117
- Liprini v Liprini (No 2) [2010] FCA 1495
- Liprini v Liprini & Anor [2011] FMCA 359
- Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
- Siteberg Pty Ltd v Maples [2010] NSWSC 1344Category: Principal judgment Parties: Scott Darren Pascoe - Plaintiff
Dr Allan Stephen Liprini - DefendantRepresentation: Counsel:
B.J. Skinner - Plaintiff
In person - Defendant
Solicitors:
Farrar Lawyers - Plaintiff
In person - Defendant
File Number(s): 2011/201820
Judgment
Introduction
By summons filed on 20 June 2011 the Plaintiff seeks orders ( vexatious proceedings orders ) under s 8 of the Vexatious Proceedings Act 2008 (NSW) (the Act ):
a. prohibiting the Defendant from instituting proceedings in New South Wales without leave of an appropriate court under the Act; and
b. staying all proceedings already instituted in New South Wales by the Defendant.
The Plaintiff is the Defendant's trustee in bankruptcy, having been appointed by order of Smith FM in the Federal Magistrates Court on 3 September 2010.
In support of his substantive application the Plaintiff relies on his affidavits sworn 29 June 2011 and 8 July 2011, the affidavit of Mr Farrar, the Plaintiff's solicitor, sworn 4 August 2011 and the affidavit of Mr Liprini, the Defendant's brother, sworn on 16 September 2011.
When the matter was called for hearing on 1 December 2011, the Defendant was not present. Accordingly I stood the matter down until 10.30 am in case he had been detained. When I resumed the hearing of…
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- AGLC
- Pascoe v Liprini [2011] NSWSC 1484
- Case
- [2011] NSWSC 1484
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Defendant's applications and appeals were vexatious and brought without reasonable ground. The court also had to determine the meaning of "frequently" in the context of the proceedings being vexatious and whether the Defendant's actions met this criterion.
The court found that the Defendant's applications and appeals were indeed vexatious. The reasoning was based on the fact that the Defendant had brought multiple applications and appeals without reasonable ground, thereby abusing the legal process. The court noted that the Defendant's actions were part of a pattern of repeated, largely unsuccessful challenges to the bankruptcy order. This conduct was considered to be frequently vexatious as it involved numerous proceedings that were not grounded in reasonable cause.
The court dismissed the Defendant's appeals and granted the Plaintiff's application for summary dismissal. The court also awarded costs against the Defendant for the vexatious applications and appeals.
Orders
Orders of the court
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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
These matters were ultimately heard together by Smith FM on 3 September 2010, who dismissed the Defendant's application and made the sequestration order ( the Sequestration Order ) and appointed the Plaintiff as the Defendant's trustee in bankruptcy ( Liprini v Liprini [2010] FMCA 687). The Plaintiff does not contend that the Defendant's application to have the bankruptcy notices set aside was vexatious but, as I have said above, relies on the narrative set out above as background to the proceedings brought by the Defendant described in more detail below. The Defendant filed a notice of appeal in the Federal Court on 22 September 2010 against the Sequestration Order, in proceedings NSD 1237 of 2010, and against the refusal to set aside the Brother's Bankruptcy Notice, in proceedings 1238 of 2010. He also filed a notice of motion on 30 September 2010 in which he sought a stay of the Sequestration Order. His application for a stay was heard and determined by Jagot J on 8 October 2010 ( Liprini v Liprini [2010] FCA 1117). Her Honour refused the stay with costs, and said, at [15]: Courts exercising jurisdiction in bankruptcy do not have power to suspend the operation of a sequestration order: s 37(2)(a) of the Bankruptcy Act 1966 (Cth). Section 52(3) limits the Court's power to stay all proceedings under a sequestration order for a period not exceeding 21 days. Section 29(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Federal Court may grant a stay only once an appeal has been filed, and not before. Accordingly, by the time the Defendant's application for a stay was lodged, the Court had no power to grant the relief which he sought. The Plaintiff contends that the application was, by reason of s 52(3), made without reasonable ground and an abuse of process and therefore vexatious within the meaning of s 6(a) and (c) of the Act. I accept this submission. The Plaintiff contends that the appeal was, as Jagot J observed in the passage set out above, without reasonable ground. The Defendant's appeals came before Emmett J on 20 October 2010 in the course of a Full Court call-over. Emmett J granted leave to the Brother to file and serve a notice of motion for summary dismissal of the appeals. The notices of motion came before Emmett J on 19 November 2010. The Defendant did not appear. Emmett J said, at [9] of Liprini v Liprini (No 2) [2010] FCA 1495: I respectfully agree with the reasons given by Emmett and Jagot JJ as to why the Defendant's appeals against the orders made by Smith FM on 3 September 2010 had no prospects of success. On 16 December 2010, the Defendant filed an application in the Federal Magistrates Court in proceedings SYG 66 of 2010 for interim injunctions to restrain the Plaintiff from dealing with his property, and in particular from entering on the property at 15 Rajani Road, Helensburgh. In essence, this application sought to restrain the Plaintiff from acting as the Defendant's trustee in bankruptcy. It was, accordingly, another barely disguised collateral challenge to the Sequestration Order. Raphael FM dismissed the application with costs on 22 December 2010. The Plaintiff contended, and I agree that this application was an abuse of process and was brought without reasonable ground.