Pearce and Anor (formerly Pascoe) v Liprini - [2014] NSWSC 1316

Supreme Court

New South Wales

Medium Neutral Citation: Pearce & Anor (formerly Pascoe) v Liprini [2014] NSWSC 1316
Hearing dates: 27 August 2014
Decision date: 26 September 2014
Jurisdiction: Common Law
Before: Hidden J
Decision:
Motion dismissed

Catchwords: VEXATIOUS PROCEEDINGS - motion to set aside vexatious proceedings order - no question of principle
Legislation Cited: Family Provision Act 1982
Vexatious Proceedings Act 2008
Cases Cited: Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pascoe v Liprini [2011] NSWSC 1484
Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256
Viavattene v Attorney General of New South Wales [2014] NSWCA 218
Category: Interlocutory applications
Parties: Mark William Pearce (1st plaintiff)
Andrew John Heers (2nd plaintiff)
Dr Allan Liprini (defendant)
Representation: Counsel:
Mr Nicolas Kirby (plaintiffs)
In person (defendant)
Solicitors:
Andrew Lambros, Bennett & Philp

File Number(s): 2011/201820

Judgment

These are proceedings under the Vexatious Proceedings Act 2008 brought against the defendant, Dr Liprini, by his trustee in bankruptcy, Scott Darren Pascoe. On 5 December 2011, Adamson J made a vexatious proceedings order against Dr Liprini under s 8 of the Act: Pascoe v Liprini [2011] NSWSC 1484. Her Honour made orders prohibiting Dr Liprini from instituting proceedings in New South Wales without the leave of the court, and staying all proceedings in this State which he had already instituted: s 8(7)(a) and (b). Before me is a motion by Dr Liprini, under s 9 of the Act, to set a side those orders.

Mr Pascoe has since been replaced by Mark William Pearce and Andrew John Heers as trustees in the bankruptcy, and on 27 August 2014 I ordered that they be substituted as the plaintiffs. In the present motion they were represented by Mr Nicolas Kirby of counsel. Dr Liprini appeared unrepresented.

A preliminary question arises whether Dr Liprini requires leave under s 16 of the Vexatious Proceedings Act to pursue this application. Mr Kirby noted that the issue has not been finally decided, referring to Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 at [24]-[27], Viavattene v Attorney General of New South Wales [2014] NSWCA 218, per Basten JA at [2], and Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256, per Leeming JA at [2]. Mr Kirby submitted that there are good reasons why leave should be required, so as to prevent excessive unmeritorious applications under s 9 being made. However, the plaintiffs were content for the present application to be dealt with on its merits.

The proceedings commenced by Dr Liprini which led to the vexatious proceedings order, and the background to them, are set out in the judgment of Adamson J and need not be repeated. Suffice to say that they had their genesis in proceedings under the Family Provision Act 1982 brought…

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.

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Details

Case: [2014] NSWSC 1316
Decision Date: 26 September 2014

CaseChat Overview and Summary

In the Federal Circuit Court, Pearce and Pascoe (now known as Anor) brought a motion against Liprini to set aside a vexatious proceedings order that was previously made. The parties had a history of litigation, which led to the court declaring the proceedings as vexatious. The court was required to decide whether there were any new grounds or circumstances that justified setting aside the vexatious proceedings order. The central issue was whether the applicants had demonstrated sufficient grounds for relief from the order, particularly in light of the prior history of litigation between the parties.

The court considered the history of the litigation and the circumstances leading to the vexatious proceedings order. It was noted that the applicants had not presented any new evidence or changed circumstances that warranted reconsideration of the order. The court found that the applicants had not demonstrated that the order was unjust or that there were new grounds for setting it aside. The court emphasised the importance of maintaining the integrity of the legal process and preventing the misuse of the court system by vexatious litigants. Given the applicants' history of litigation and the absence of any new or compelling grounds, the court dismissed the motion to set aside the vexatious proceedings order.

The court's reasoning and outcome highlight the importance of maintaining the integrity of the judicial process and the need to prevent the misuse of court resources by vexatious litigants. The applicants' history of litigation, coupled with the lack of any new or compelling grounds for setting aside the order, led the court to dismiss the motion. This decision reinforces the principle that vexatious proceedings orders are not lightly set aside, particularly in cases where the applicants have a history of similar conduct.

Orders