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 1These 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 Before me is a motion by Dr Liprini, under s 9 of the Act, to set a side those orders. 2Mr Pascoe has since been replaced by Mark William Pearce and Andrew John Heers as trustees in the bankruptcy, and on 27 August 2014 I ordered that they be substituted as the plaintiffs.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. 3A 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. 4The 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 against him, in his capacity as executor of his father's estate, by his brother. They were ultimately settled after mediation, leading to consent orders making a substantial provision to the brother out of the estate. The brother subsequently instituted enforcement proceedings leading to an order by Nicholas J for payment of the agreed amount. This, in turn, led to the variety of proceedings commenced by Dr Liprini considered by Adamson J: by way of appeal against the order of Nicholas J and in resistance to bankruptcy proceedings brought by the brother in respect of the amount due from the estate, and by Dr Liprini's then solicitors, who had obtained a judgment against him in the Local Court for outstanding fees. 5Underlying these proceedings was Dr Liprini's assertion that his brother was not entitled to anything out of the estate, and that the consent orders were obtained by fraudulent conduct on behalf of the brother and, apparently, the lawyers involved. Further, some of the proceedings he brought relating to the bankruptcy sought to impugn the honesty and propriety of Mr Pascoe as trustee. In this context, I might add that a further proceeding to which Adamson J had regard was his application to this court for a Mareva injunction against Mr Pascoe in relation to his estate. 6In the motion before me Dr Liprini relied on a considerable volume of material contained in two affidavits, supplemented by oral evidence in cross-examination by Mr Kirby. I have given all this evidence careful consideration, but no purpose would be served by trying to summarise it. The material in the affidavits was fairly characterised by Mr Kirby, in succinct written submissions, as demonstrating "a perseveration with matters which have been the subject of a multiplicity of previous litigation and determinations against him." That description was confirmed by his oral evidence. Pervading the whole of the material is his continued claim of fraudulent conduct on the part of his brother, the lawyers, and his trustees, including the present plaintiffs. 7Mr Kirby referred to some passages from the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 which are pertinent to this case. At [2] ff his Honour set out principles relating to vexatious litigants, saying at [9]: "... each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct." 8At [12], his Honour noted that the factors relevant to the exercise of a court's discretion to order that a litigant be prevented from commencing or pursuing proceedings "are informed by the protective purpose which the order serves." His Honour continued: "Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise." 9Mr Kirby's cross-examination of Dr Liprini was directed to whether he contemplated bringing any further proceedings relating to this matter. That did not elicit any clear answer, but what he did say conveyed that as far as he is concerned this litigation is by no means over. He displayed no insight into his previous litigious history and it does appear that, if he could, he would persist with further litigation in an attempt to revisit decisions made against him. 10Of course, although Adamson J had regard to the bankruptcy proceedings in determining to make the orders she did, those orders affect only the conduct of proceedings in this State. Moreover, as Mr Kirby pointed out, it remains open to Dr Liprini to seek leave to commence further proceedings in this State under s 14 of the Vexatious Proceedings Act although, of course, to obtain that leave he would need to satisfy the court that those proceedings were not vexatious and that there were one or more prima facie grounds for them: s 16(3). However, there is nothing in the material upon which he now relies which could justify setting aside the orders of Adamson J. 11Accordingly, the motion to set aside the vexatious proceedings order is dismissed. If necessary, I shall hear the parties on costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2014