FEDERAL COURT OF AUSTRALIA

Liprini v Liprini [2012] FCA 1103

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

1    Now before the Court is an Application for extension of time and leave to appeal from an interlocutory decision of a Federal Magistrate given on 3 August 2012: Liprini v Liprini [2012] FMCA 666.

2    The orders made by the Federal Magistrate included orders dismissing an application which had been made to that Court by Dr Liprini seeking the annulment of his bankruptcy and an order that he “not institute a proceeding without leave of the Court”.

3    No application was made to this Court seeking to challenge the decision of the Federal Magistrate until 28 August 2012. The decision of the Federal Magistrate was interlocutory in nature and leave to appeal is thus required: Federal Court of Australia Act 1976 (Cth) s 24(1A). An extension of time is required because any such application for leave is to be made within 14 days: Federal Court Rules 2011 (Cth) r 35.13. The Application was thus approximately 10 days outside that 14 day period when filed. Rule 35.14 confers a discretion on the Court, however, to extend the time in which a litigant may seek leave to appeal.

4    On 3 September 2012 Dr Liprini also filed in this Court a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903. Written submissions in support of the Application were filed by Dr Liprini on 20 September 2012.

5    Dr Liprini appeared before the Court unrepresented. At the time of hearing there had been a change in the trustee of his bankrupt estate. The representative of the new trustees were present at the hearing but had not filed any notice of appearance. But neither the former nor current trustees, sought to delay the hearing of the Application. Orders, it was contemplated, substituting the new trustee as the Second Respondent could be made when judgment was delivered.

6    The Application for extension of time and leave to appeal is to be dismissed. Even had an extension of time been granted, leave to appeal would have been refused.

Section 78B

7    Although there has been some uncertainty as to whether or not a s 78B notice had also been given when the proceeding was before the Federal Magistrates Court, that Court proceeded upon the basis that such a notice had been given. That Court concluded that the notice did not provide any basis upon which it should not proceed: Liprini v Liprini [2012] FMCA 719.

8    It is similarly concluded that the s 78B notice given in the present proceeding provides no basis for not proceeding to hear Dr Liprini’s Application.

9    Section 78B(1) of the Judiciary Act 1903 (Cth) provides as follows:

    Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

10    For either of two reasons the Notice does not constitute an impediment to this Court proceeding to resolve the Application made by Dr Liprini.

11    First, the Court was informed by Dr Liprini that a copy of the Notice was given to the Attorneys-General of the Commonwealth and of the States on 3 September 2012. It is considered that a “reasonable time” (for the purposes of s 78B(1)) has passed since that Notice was given and the date of the hearing.

12    Second, the “duty” which s 78B imposes is, in any event, one of imperfect obligation: Glennan v Commissioner of Taxation [2003] HCA 31 at [13], 77 ALJR 1195 at 1197 per Gummow, Hayne and Callinan JJ. Section 78B only operates when the “circumstances it postulates are made to appear to the Court: it does not operate simply because a party asserts those circumstances”: Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489 per Burchett J. What s 78B contemplates is a constitutional question which is a “live issue” in the proceedings. Appl’d: Vescio v Keneally [2008] FCA 589 at [10]. “If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation”: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151 at [14], 95 FCR 292 at 297 per French J. See also: Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [16]-[19] per Debelle J (Sulan and Vanstone JJ agreeing); Spanswick v The Honourable Robert John Carr, MP [2003] NSWSC 393 at [7]-[8] per Shaw J.

13    Neither any s 78B Notice that may have been given in the proceedings before the Federal Magistrates Court nor the s 78B Notice in the present proceeding before this Court identifies any “live issue” which can be properly characterised as “matter arising under the Constitution or involving its interpretation …”.

14    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

15    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.

16    Dr Liprini’s mother died in November 2006 and Dr Liprini’s remainder interest in his father’s estate then vested.

17    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 Act 1982 (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.

18    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.

19    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.

20    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.

21    Undeterred by his lack of success in both the Federal Magistrates Court and in this Court on appeal, Dr Liprini commenced a further application seeking the annulment of his bankruptcy.

22    It was this last decision which is the subject of the present Application.

23    This brief history of the litigation which engulfed the Liprini brothers does not recount in any detail the entirety of the litigation which followed the mother’s death. Nor does it attempt to recount the many challenges and criticisms levelled by Dr Liprini against both the legal representatives who have been involved in the conduct of the litigation and the Judges charged with resolving the many disputed claims which have been made. Nor does it attempt to address the repeated contention of Dr Liprini that there was no “consent” to the orders made in December 2007. This nevertheless provides a sufficient skeleton against which the merits of the Application for extension of time and leave to appeal may be considered.

The Extension of Time

24    The extension of time sought by Dr Liprini is an extension of a period of about 10 days.

25    The discretion conferred by r 35.14 of the Federal Court Rules 2011 to extend time, and the steps to be taken if an extension of time is sought, is expressed as follows:

Extension of time to seek leave to appeal

(1)    A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)    The application may be made during or after the period mentioned in rule 35.13.

(3)    The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the application for leave to appeal was not filed within time; and

(d)    a draft notice of appeal that complies with rules 36.01 (1) and (2);

(e)    a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

To the extent that the Affidavit filed by Dr Liprini in support of his Application fails to comply with r 35.14(3)(c), such non-compliance may be dispensed with. So, too, may be the failure on the part of Dr Liprini to properly formulate the “Grounds of application” set forth in his Application.

26    The grant of an extension of time is not automatic. A discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: Gallo v Dawson (1990) 64 ALJR 458. When considering the discretion to extend time conferred by the former O 70 r 3 of the High Court Rules 1952 (Cth), McHugh J observed at 459:

… The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted …

Aff’d: Gallo v Dawson (No 2) (1992) 109 ALR 319 at 320 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ. See also: SZIOE v Minister for Immigration and Citizenship [2007] FCA 1176 at [26] per Gilmour J; SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 at [8]; Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [57] per Foster J; Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 at [39]-[40] per Spender J.

27    In the circumstances of the present proceeding, it is not considered that the mere effluxion of time would of itself have precluded an extension of time being granted. If an explanation for his delay is required, that explanation may be found in the fact that Dr Liprini is unrepresented and confronted by a history of litigation which has become increasingly complex. Whilst Dr Liprini may be said to have been the source of much of that litigation, his delay in seeking leave to appeal may nevertheless be understandable.

28    Notwithstanding what may be accepted as a satisfactory explanation for his delay, it is nevertheless concluded that no extension of time should be granted to challenge either the decision to dismiss the further application seeking to annul the bankruptcy or the decision that Dr Liprini not commence any further proceeding without the leave of the Court.

29    Insofar as the decision to dismiss the application to annul the bankruptcy is concerned, it is a decision not attended with any apparent error. If consideration is focussed upon the sequence of events which gave rise to the sequestration order being made, rather than upon the reasons for decision of the Federal Magistrate whose decision is now in question, no error is apparent. Given the dismissal of the appeal from the decision making the order for the payment of $770,000, and the apparent subsequent dismissal of the application seeking to set aside that decision, there is no reason to question the basis upon which the bankruptcy notice was served. Nor is there any reason to question either the power to make a sequestration order or the manner in which the discretion was exercised.

30    And if attention is confined to the reasons for decision of the Federal Magistrate, no appellable error can be discerned. Indeed, given the previous application made by Dr Liprini seeking the same relief, the dismissal of this Application would seem to be inevitable.

31    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

32    The Application for extension of time and leave to appeal from the decision of the Federal Magistrate made on 3 August 2012 is dismissed.

33    The Application should be dismissed with costs.

34    It should finally be noted that the parties were advised of the date upon which judgment in this proceeding would be delivered. Thereafter, and two days prior to the date of judgment, Dr Liprini faxed to the Registry of the Court further submissions. No leave had been granted to file further submissions after the hearing had concluded. No leave had been sought. It is unknown whether the Respondents had also received a copy of the further submissions. In such circumstances, the further submissions have been placed with the papers of the Court but have not been read.

The Orders of the Court Are:

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.

Associate:

Dated:    11 October 2012