FEDERAL COURT OF AUSTRALIA

Liprini v Liprini (No 2) [2010] FCA 1495

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

3.    The costs in paragraph 2 above be paid out of the appellant’s estate on the same priority as the making of the sequestration order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

3.    The costs in paragraph 2 above be paid out of the appellant’s estate on the same priority as the making of the sequestration order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 3 September 2010, the Federal Magistrates Court made orders in two separate proceedings between Mr Kevin Liprini (Mr Liprini) and Dr Allan Liprini (Dr Liprini) who are brothers. One of the proceedings was an application to set aside a bankruptcy notice. The other proceeding was a bankruptcy petition.

2    In proceeding SYG 2675 of 2009, the Federal Magistrates Court dismissed the application to set aside the bankruptcy notice and, in proceeding SYG 66 of 2010, the Federal Magistrates Court ordered that a sequestration order be made against the estate of Dr Liprini. Consequential orders were made in both proceedings in relation to costs. By notices of appeal filed on 22 September 2010, Dr Liprini appeals from the orders made in those two proceedings. The judge of the Federal Magistrates Court who made the orders in the proceedings published one set of reasons for making orders in the two proceedings. The notices of appeal rely on grounds that are identical in each notice of appeal. The grounds are:

(1)    His Honour never acknowledged my version of the events that happened on 6 December 2007 that declares the proceedings that day were invalid.

(2)    His Honour displayed bias towards the other parties and critically towards Fikri Kerem on 29 March 2010 with regard to his testimony during cross-examination by myself whilst simultaneously introducing a collection of unsubstantiated terms the nature of which is to effectively detract from my testimonial credibility.

(3)    The preference stated by his Honour to just read the judgments favours the parties the judgment rules in favour for to the exclusion of all else.

(4)    The decision by his Honour to retain the case law Harvey v Phillips in paragraph 24 with indifference to my pointing out the error of law whereby the illegal drugging of the plaintiff with barbiturates by persons unknown was either overlooked or ignored provides a mechanism to explain my complaints that I have been misrepresented.

The grounds are interspersed with references to paragraphs of the reasons of the primary judge in the Federal Magistrates Court.

3    The matter came before me on 20 October 2010 in the course of Full Court callover. I stood the appeals over to 2 February 2011 and gave leave to Mr Liprini to file and serve a notice of motion for summary dismissal of the appeals. By notices of motion filed on 5 November 2010, Mr Liprini seeks orders pursuant to order 25, rule 5 that the appeals be dismissed generally. The notices of motion were served at 7:30 am on Tuesday, 16 November 2010. Under the rules, three clear business days service is required and, accordingly, the motions were not served in accordance with the rules. However, they were personally served on the appellant, Dr Liprini, and were a matter of hours late. There was no appearance for Dr Liprini when the motions were called on for hearing today. In all of the circumstances, I consider that it is appropriate to waive compliance with the rules in relation to service to the extent of abridging time for service to no later than 8 am on Tuesday, 16 November 2010, that order to operate nunc pro tunc.

4    On 30 September 2010, Dr Liprini filed notices of motion in each of the appeals seeking a stay of all proceedings under the sequestration order made by the Federal Magistrates Court on 3 September 2010. Those applications came before Jagot J on 8 October 2010 when her Honour ordered that the notices of motion be dismissed. In the course of her reasons for doing so, Jagot J dealt with the grounds of appeal in the two notices of appeal filed on 22 September 2010. After dealing with the nature of the orders and the reasons given by the Federal Magistrates Court, her Honour dealt with the submission made on behalf of Mr Liprini that the grounds of appeal disclosed that the appeals themselves had no prospects of success. Her Honour was satisfied that no arguable ground of appeal had been put forward by Dr Liprini.

5    In dealing with the first ground, her Honour observed that the Federal Magistrate had given detailed consideration to Dr Liprini’s version of events but, ultimately, found against him based on the fact that the President of the New South Wales Court of Appeal dismissed Dr Liprini’s appeal and a Full Court of the New South Wales Court of Appeal dismissed an application for review of the President’s decision.

6    The second ground of the notices of appeal allege bias on the part of the Federal Magistrates Court. However, it was apparent that the references in those paragraphs are to another set of proceedings despite the fact that Dr Liprini appears to be under the impression that they are linked with the current proceedings. The present appeals are concerned only with the decision of the Federal Magistrates Court of 3 September 2010.

7    The third ground of the notices of appeal also appears to be connected to Ground 2. Ground 3 did not disclose any arguable ground.

8    The fourth ground of appeal refers to the decision of the High Court in Harvey v Phillips (1956) 95 CLR 235, suggesting some form of indifference on the part of the Federal Magistrates Court to that decision, or the overlooking of what Dr Liprini identified as critical aspects of that decision. However, the reasons of the Federal Magistrates Court indicated that the primary judge considered the decision in Harvey v Phillips and applied the principles established by it. There is nothing in the grounds to suggest that the primary judge departed from the principles stated in Harvey v Phillips.

9    Jagot J was of the view that, having taken into account and given weight to the fact that Dr Liprini does not have legal representation and had only one day in which to prepare his notices of appeal, it was not only the drafting of the notices of appeal that failed to disclose any arguable ground, but also the substance which fails to do so. For those reasons her Honour refused the stays that were sought. Those reasons lead, inevitably, to the conclusion that there is no prospect that either of the appeals will succeed in those circumstances. I consider that it is appropriate to accede to the application by Mr Liprini for the two appeals to be dismissed summarily on the basis that there are no prospects of success.

Associate:

Dated:    18 January 2011