Pascoe v Liprini

Supreme Court of NSW|2011-12-01|Before: Adamson J

Introduction 1By 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. 2The 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. 3In 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. 4When 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 the matter at 10.30 am, the Defendant was present. He applied for an adjournment of the hearing, which I declined; [2011] NSWSC 1485. He relied on an affidavit affirmed today in support of his application for adjournment. 5Mr Skinner, who appeared for the Plaintiff, then opened his case and read his affidavits. 6Following the morning adjournment, the Defendant did not appear again. I asked for the matter to be called outside the Court but he did not emerge. Accordingly I proceeded to continue to hear the rest of the matter in his absence. With Mr Skinner's consent, I read the affidavit affirmed by the Defendant on 19 July 2011, together with the affidavit affirmed today, in opposition to the Plaintiff's application, even though the Defendant had, by this time, absented himself from the Court. I did not consider there to be anything which weighed in favour of the Defendant in these affidavits. Mr Skinner asked me not to draw any inferences against the Defendant by reason of anything in the Defendant's affidavits and I have acceded to his request. I agree that this is an appropriate course.

General principles 7Before turning to the evidence adduced and submissions made, I propose to set out some general principles which are germane to an application under the Act for a vexatious proceedings order. 8A vexatious proceedings order may be made under s 8 of the Act if the Court is satisfied that "the person has frequently instituted or conducted vexatious proceedings in Australia". 9Section 6 of the Act provides that vexatious proceedings include: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass, annoy, cause delay or detriment, or achieve another wrongful purpose. 10These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes a subjective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the Court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not. 11The term "proceedings" is defined by s 4 of the Act to include interlocutory proceedings as well as appeals. This means that the Court can have regard to baseless applications or appeals: Attorney General (NSW) v Wilson [2010] NSWSC 1008 ( Wilson ) at [15]. The term "proceedings" includes matters not only before courts, but also before tribunals. 12The purpose of an order is not to impose punishment for past litigious misdeeds, but to shield both the public and the Court itself: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3], cited with approval in Attorney General v Gargan at [8]. 13It is a serious thing to deprive litigants of their access to the courts: Wilson at [11]. 14The term "frequently" is relative; it must be looked at in the context of the litigation being considered: Wilson at [12]; Attorney General (NSW) v Croker [2010] NSWSC 942 at [22]; Attorney General v Gargan at [7]; Siteberg Pty Ltd v Maples [2010] NSWSC 1344 at [31]-[32]. It is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently: Siteberg at [31]. The individual number of proceedings can be quite small if, for example, they are an attempt to re-litigate an issue already determined against the person: Wilson at [14]; Attorney General v Gargan at [7]. 15A litigant's own protestation as to his or her mental state may be relevant - "frequently enough, the vexatious are betrayed out of their own mouths": Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [9], cited with approval in Attorney General v Gargan at [8]. 16Various persons have standing to bring an application under the Act. Section 8(4) provides: "(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: (a) the Attorney General, (b) the Solicitor General, (c) the appropriate registrar for the court, (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings, (e) a person who, in the opinion of the court, has a sufficient interest in the matter." 17The Plaintiff has standing by reason of s 8(4) since, as the evidence set out below discloses, many of the proceedings that he relies on as being vexatious were brought by the Defendant against him. 18While the Court needs to form its own view about each piece of litigation relied on by the Plaintiff, the Court is entitled to have regard to the result of the proceedings, and where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them: Wilson at [22]; Attorney General v Croker [2010] NSWSC 942 at [125]; Attorney General v Gargan at [7]. 19As to the exercise of discretion, Perram J said in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [12], cited with approval in Attorney General v Gargan at [8]: "... the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. 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."

Whether the proceedings relied upon by the Plaintiff were vexatious 20The first question that arises is whether the proceedings relied upon by the Plaintiff are "vexatious proceedings" within the meaning of s 6 of the Act. 21The evidence adduced by the Plaintiff comprises, in the main, pleadings, affidavits and judgments and decisions of tribunals in respect of proceedings in which the Defendant is involved. The judgments establish matters other than facts in issue in the proceedings: namely, the outcome of the proceedings and the course they had taken. In so far as they contain judicial statements that reflect the views of judicial officers of the Defendant's conduct or the merit of the proceedings, they are relevant for the reasons set out in the authorities referred to above.

The background to the proceedings relied upon as being vexatious 22Mr Skinner, who appeared on behalf of the Plaintiff, submitted that the proceedings relied upon as being vexatious stemmed from the Plaintiff's objection to paying his brother, Mr Liprini ( the Brother ), an amount out of the estate of their late father. 23On 18 July 2006, the Brother filed a summons in this Court in proceedings 3790 of 2006 against the Defendant as executor of his late father's estate pursuant to the Family Provision Act 1982 (NSW) ( FPA ). Law Partners, solicitors, acted on behalf of the Defendant. There was a mediation and, ultimately, consent orders, signed by the parties' legal representatives, were made on 6 December 2007, which made provision out of the Deceased estate in favour of the Brother of $770,000 plus costs ( the Consent Orders ). 24On 3 March 2008, the Brother filed a notice of motion in proceedings 3790 of 2006 against the Defendant for contempt, the monies not having been paid. Mr Lyon appeared on behalf of the Defendant. On 11 April 2008, Brereton J dismissed the notice of motion with costs on the basis that the Consent Orders made did not bind the Defendant to do anything, but that the provision operated as a codicil to the will ( Liprini v Liprini [2008] NSWSC 423). 25The Brother then commenced fresh proceedings, 2468 of 2008, by summons in the Supreme Court against the Defendant, seeking various orders and declarations requiring him to pay the money which had been the subject of the consent orders made on 6 December 2007. The Defendant, who was again represented by Mr Lyon, opposed the summons. On 10 July 2009, Nicholas J made orders including orders that the Defendant pay to the Brother the sum of $770,000, with interest and costs. These orders were entered on 10 August 2009. 26On 8 October 2009, the Defendant filed a notice of appeal in the Court of Appeal, in proceedings 40371 of 2009, against the decision of Nicholas J. The Brother filed a notice of motion for summary dismissal of the notice of appeal on the basis that it did not disclose any genuine grounds for appeal. On 24 May 2010 Allsop P dismissed the notice of appeal, on an interlocutory basis, with costs. 27The Plaintiff does not contend that the Defendant's appeal against the decision of Nicholas J 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, which are relied upon as being vexatious.

Proceedings relied upon as being vexatious: Supreme Court proceedings arising from the Consent Orders 28On 26 May 2010, the Defendant filed a notice of motion in proceedings 40371 of 2009 in the Court of Appeal seeking a review of Allsop P's decision. On 28 June 2010 Beazley, Giles JJA and Handley AJA dismissed the application with costs. 29On 28 June 2010, the Defendant filed a notice of motion in the Court of Appeal in proceedings 298526 of 2009 for leave to issue a subpoena against the Brother. On 5 July 2010 Registrar Riznyczok dismissed the notice of motion. 30On 10 August 2010, the Defendant filed a notice of motion in this Court in proceedings 257690 of 2006, which had formerly been 3790 of 2006, against the Brother, as respondent to the notice of motion, to set aside the Consent Orders and to reverse the costs orders. The notice of motion was dismissed with no order as to costs on 20 May 2011. 31On 9 December 2010, the Defendant filed another notice of appeal against the Brother in which he purported to appeal against the decisions of Nicholas J and Allsop P. In his grounds of appeal, the Defendant purported to rely on "four actions of criminal fraud" as follows: "... The first is the error of fact that an advertisement announcing Probate application for my late father's estate and the calling of any creditors of the estate as prescribed, was not placed in any newspaper medium to be cause making myself as executor of the estate personally liable for this and any subsequent debts as claims on the estate. 2. The second is an error of fact that I was 'bona fide' legal status at an official prearranged ADR/court sanctioned mediation proceeding on 6 th December 2007. 3. Thirdly, the error of fact that the respondent was physically present for the same proceedings. However his presence on the material date of the hearing the 9 th & 10 th July 2009 to this day has been the only time he has appeared in court. The fourth ground of appeal is the failure of any of the legal representatives to inform the court of the vexatious nature of the respondent's application for family provision." 32On 21 March 2011 Registrar Riznyczok noted that the notice of appeal was brought out of time and without leave and without an extension of time having been granted. He ordered that leave to file a notice of appeal was refused. No order for costs was sought. 33Each of the proceedings referred to above is relied upon by the Plaintiff as being vexatious on two grounds: s 6(a) and (c), namely that they amount to an abuse of process of the Court and that they were brought without reasonable ground. 34The application for review of Allsop P's decision was merely a replay of the purported appeal, with which Allsop P had already dealt. No fresh ground was identified, nor had there been any occasion to warrant revisiting the determination by Allsop P that the proposed appeal was without merit. The application for leave to issue a subpoena against the Brother amounted to no more than an attempt to revisit the making of the Consent Orders and the orders and declarations made by Nicholas J. The same can be said of the application to set aside the Consent Orders and the further purported appeal which was dealt with by Registrar Riznyczok. On each occasion, the Defendant sought to relitigate something that had already been the subject of final determination. His endeavour to reclothe his attempts to make the same argument in a different forum amount to an abuse of process. 35For these reasons, I find that the following are vexatious proceedings within the meaning of s 6(a) and (c) of the Act: (a) the notice of motion filed on 26 May 2010, in proceedings 40371 of 2009 in the Court of Appeal seeking a review of Allsop P's decision summarily dismissing the notice of appeal against the decision of Nicholas J; (b) the notice of motion filed on 28 June 2010 in the Court of Appeal in proceedings 298526 of 2009 for leave to issue a subpoena against the Brother; (c) the notice of motion filed on 10 August 2010 in this Court in proceedings 257690 of 2006, which had formerly been 3790 of 2006, against the Brother to set aside the Consent Orders and to reverse the costs orders; and (d) the purported notice of appeal filed on 9 December 2010 in the Court of Appeal in proceedings 298526 of 2009. 36I also find that the purported notice of appeal filed on 9 December 2010 is vexatious within s 6(d) of the Act since the making of unsubstantiated allegations of fraud has the effect that the proceedings were conducted in such a way as to harass the Plaintiff.

The bankruptcy proceedings against the Defendant 37A bankruptcy notice was issued on 20 August 2009 and served on the Defendant on 10 October 2009 ( the Bankruptcy Notice ). The Bankruptcy Notice demanded payment within 21 days of $19,714.85, which was based on a default judgment entered in the Local Court on 29 June 2009 with interest. The Bankruptcy Notice was served by Law Partners, the Defendant's solicitors in the FPA Proceedings, for unpaid fees in respect of work done in those proceedings. 38By application in the Federal Magistrates' Court filed on 3 November 2009, in proceedings SYG 2674 of 2009, the Defendant applied to have the Bankruptcy Notice set aside, although the time for compliance with it had expired on 31 October 2009. Ultimately Smith FM dismissed the application on 29 March 2010 with costs. The reasons for decision ( Liprini v Kerem & Anor (No 2) [2010] FMCA 244) outline the litany of occasions on which the application was listed for hearing and adjourned. 39The Brother caused to be issued a bankruptcy notice dated 21 September 2009 on the Defendant ( the Brother's Bankruptcy Notice ). The Brother's Bankruptcy Notice was served on 2 October 2009. The Defendant applied one day late, in proceedings SYG 2675 of 2009 to set it aside. The Brother then proceeded to file a creditor's petition on 15 January 2010, in proceedings SYG 66 of 2010, seeking a sequestration order against the Defendant. In these two proceedings, the Defendant requested that a subpoena be issued to the Brother seeking various financial records as well as documents evidencing the Brother's presence at the mediation in the FPA proceedings. 40These 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). 41The 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.

Proceedings relied upon as being vexatious: Federal Court proceedings arising from the Sequestration Order and associated matters 42The 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. 43His 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]: "On review of the Federal Magistrate's decision, the notice of appeal and Dr Liprini's evidence, it seems to me to be clear that there has not been put forward by Dr Liprini any arguable ground of appeal." 44Courts 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. 45Accordingly, 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. 46The Plaintiff contends that the appeal was, as Jagot J observed in the passage set out above, without reasonable ground. 47The 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: "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." 48I 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. 49On 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. 50On 1 April 2011, the Defendant filed an application in the Federal Magistrates Court, in proceedings SYG 617 of 2011, against the Brother and the Plaintiff seeking an interim stay of the bankruptcy administration and an annulment of the Sequestration Order. On 17 May, Driver FM dismissed the application for an annulment with costs. Driver FM, in Liprini v Liprini & Anor [2011] FMCA 359, considered, and I agree, there to be "nothing new" in the application which had not been raised before Smith FM in opposition to the Sequestration Order. Driver FM said, at [11]-[12]: "It is unfortunate that very substantial sums have been expended in legal costs in resistance to Dr Liprini's brother's claim on the deceased estate, which, as has been observed in several courts at various times, was settled by consent, notwithstanding Dr Liprini's denials. He is unfortunately unwilling to accept that his brother should receive anything from the deceased estate, and the funds available have been, and continue to be, consumed as a consequence of that attitude. In the event that Dr Liprini continues to agitate the same issues that he has previously agitated in this Court, and in the Federal Court and the Supreme Court and in the New South Wales Court of Appeal, it may be necessary for the Courts dealing with such applications to consider whether orders should be made preventing further such proceedings. This Court has authority to prevent proceedings which are vexatious or an abuse of process." 51By notice of appeal filed in the Federal Court on 26 May 2011, in proceedings NSD 735 of 2011, the Defendant appealed against the decision of Driver FM. The Defendant named only his Brother as a respondent, although the Plaintiff had been joined in the matter before Driver FM and therefore was a necessary party to the appeal against that decision. 52On 7 June 2011, the Defendant filed a notice of motion in the Federal Court, also in proceedings NSD 735 of 2011, seeking a stay of the orders of Driver FM and named a number of parties, including the Brother, and the Plaintiff as respondents. 53On 22 June 2011, Jacobsen J dismissed the notice of motion with costs and granted leave to the Defendant to amend his notice of appeal to join the Plaintiff as a respondent to the appeal. In the reasons for judgment, Jacobsen J referred to the contents of the Defendant's affidavit in the following terms: "It is sufficient to say that the affidavit contains unsupported allegations of dishonesty and serious impropriety against Mr Pascoe. Those allegations are not supported by evidence and amount to no more than bald assertions made against the trustee." 54On 16 September 2011, the Defendant filed a further application in proceedings NSD 735 of 2011 seeking a stay of the bankruptcy administration and certain preservation and other orders in relation to personal property he claimed he owned. 55On 7 October 2011, Yates J dismissed the interlocutory process. In the reasons for judgment, Yates J referred to the Defendant's affidavit in the following terms, at [12]: "The present interlocutory application, to which Mr Pascoe is also a party respondent, is supported by an affidavit affirmed by Dr Liprini on 16 September 2011. In this affidavit, Dr Liprini alleges, amongst other things, that Mr Pascoe has acted in breach of duty, apparently by authorising the removal of certain goods from the Helensburgh property. The evidence indicates that the Helensburgh property forms part of Dr Liprini's bankrupt estate. Mr Pascoe is the registered proprietor of that property." 56Yates J also said, at [15]: "It is sufficient for me to record that the evidence adduced on the interlocutory application reveals no proper basis for the stay that Dr Liprini has sought." 57On 7 November 2011, Yates J dismissed the appeal and ordered the Defendant to pay the Plaintiff's costs of the appeal. 58Proceedings NSD 735 of 2011 were vexatious from their outset. The Defendant made unfounded allegations against the Plaintiff and endeavoured to thwart his performance of his duties as trustee under the Bankruptcy Act to sell or otherwise dispose of the Defendant's assets in order to pay his debts and return any surplus to the Defendant. The performance of his duties necessarily involved the sale of the Helensburgh property, of which the Plaintiff had become registered proprietor, property having been transferred to him by statutory vesting under the Bankruptcy Act . The Defendant had no basis on which to stop the trustee from selling the property and taking such steps as were necessary in order to prepare the property for sale. He had unsuccessfully sought to challenge the Sequestration Order and sought to do so again in proceedings NSD 735 of 2011. These proceedings were an abuse of process, were made without reasonable ground and were also conducted in such a manner as to harass, and cause delay to, the Plaintiff. 59For these reasons, I find that the following are vexatious proceedings within the meaning of s 6(a) and (c) of the Act: (a) the notice of appeal filed on 22 September 2010, in proceedings NSD 1237 of 2010 in the Federal Court, against the Sequestration Order; (b) the notice of appeal filed on 22 September 2010, in proceedings NSD 1238 of 2010 in the Federal Court, against the refusal to set aside the Brother's Bankruptcy Notice; (c) the notice of motion filed on 30 September 2010 in the Federal Court of Appeal in proceedings NSD 1237 of 2010 for a stay of the Sequestration Order; (d) the application for an interim injunction filed on 16 December 2010 in proceedings SYG 66 of 2010 in the Federal Magistrates Court; (e) the application filed in the Federal Magistrates Court, in proceedings SYG 617 of 2011, on 1 April 2011 against the Brother and the Plaintiff seeking an interim stay of the bankruptcy administration and an annulment of the Sequestration Order; and (f) the notice of appeal filed in the Federal Court on 26 May 2011, in proceedings 735 of 2011, against the decision of Driver FM refusing a stay of the bankruptcy administration or an annulment of the Sequestration Order and the interlocutory applications made in those proceedings which are referred to above. 60I also find that the proceedings NSD 735 of 2011 were vexatious within s 6(d) of the Act since the making of unsubstantiated allegations of impropriety against the Plaintiff has the effect that the proceedings were conducted in such a way as to harass the Plaintiff.

Proceedings relied upon as being vexatious: attempts to set aside a Local Court judgment following a costs order and associated proceedings against Mr Lyon 61As referred to above, Mr Lyon was the solicitor who acted on behalf of the Defendant in the proceedings the Brother brought unsuccessfully against him for contempt which were heard by Brereton J and the proceedings successfully brought against him by the Brother for declarations and orders which were heard by Nicholas J. 62Mr Lyon had arranged for his costs to be assessed by an assessor of the Supreme Court. Subsequently, following a request by Mr Lyon for a review, the Costs Review Panel determined that $62,681.73 was a fair and reasonable amount of costs to be paid to Mr Lyon. A Certificate of Determination of Costs to that effect was issued on 13 April 2010 ( the Certificate ). 63Section 382(2) of the Legal Profession Act 2004 (NSW) provides that, subject to the limited right of appeal conferred by s 382(1), the Panel's determination of an application for review is binding on all parties to the assessment and no appeal or other review lies in respect of the determination. The Legal Profession Act makes provision for the effect of Certificates of Determination of Costs. By ss 368(5) and 369(7), such a certificates is, upon filing, taken to be a judgment of the court in which it is filed and enforceable as such. Mr Lyon filed the Certificate in the Local Court on 30 April 2010 and accordingly it was taken to be a judgment of the Local Court. 64By notice of motion filed on 30 July 2010 in the District Court, in proceedings 106749 if 2010, the Defendant sought to set aside the judgment obtained by Mr Lyon. By so doing, he acted in total disregard of the statutory framework created by the Legal Profession Act for the regulation of such matters. He had no reasonable ground for such application which accordingly amounted to an abuse of process. As her Honour was bound by legal principle to do, Truss DCJ dismissed the notice of motion on 15 September 2010 with costs. 65For these reasons, the notice of motion was a vexatious proceeding within the meaning of s 6(a) and s 6(c) of the Act.

Proceedings relied upon as being vexatious: application for a Mareva injunction against the Plaintiff 66The Defendant, in proceedings 178104 of 2011 in this Court, filed a notice of motion seeking a Mareva order in respect of the whole of his estate and a mandatory injunction to permit him unrestricted access to continue residing at two separate addresses. On 26 August 2011, Ward J dismissed the application. 67The proceedings referred to above were vexatious proceedings within s 6(a) and (c) of the Act since they were brought without reasonable ground and were an abuse of process. As Ward J said, at [4] of her Honour's reasons: "This Court is not a Court exercising bankruptcy jurisdiction and any issues that Dr Liprini has in relation to the making of the sequestration order are matters that need to be raised in the Federal Court by way of his appeal." 68Ward J also referred to an affidavit sworn by an associate of the Plaintiff, which the Defendant described variously as "fabricated" and "an act of perjury". There was no basis revealed for these very serious allegations. The proceedings were, accordingly, also vexatious within s 6(d) of the Act because they were conducted in a way so as to harass and annoy.

Proceedings relied upon as being vexatious which are currently on foot 69By application filed in the Federal Magistrates Court on 7 November 2011, in proceedings SYG 2522 of 2011, against the Brother and the Plaintiff, the Defendant has again sought an annulment of the bankruptcy, a reversal of costs orders and a "recommendation for investigation/ prosecution by DPP". 70The Defendant, in his affidavit affirmed on 7 November 2011 in support of this application reiterates old grievances, which have already been litigated and makes serious allegations without any apparent foundation. For example, he affirms as follows: "An important consideration at this point is the unwavering assertion that I have maintained since the July hearing before Nicholas J that all the litigation is fraudulently based and ultimately illegal." at [8] "With the obvious aim of containing the fraud within the Civil Justice system, the Bankruptcy Court and the Administrative process the alienable pathway to asphyxiate my efforts to re-examine the corruption of the original circumstances." at [20] 71The Plaintiff, by interim application filed on 11 November 2011 has sought to have the Defendant's application summarily dismissed. His application is supported by an affidavit sworn by the Plaintiff's solicitor, which reproduces much of the evidence before the Court in these proceedings. This interim application is listed for hearing on 6 December 2011. 72I find these proceedings to be vexatious within the meaning of s 6(a) and (c) of the Act.

Other proceedings not relied upon since there is no evidence to support them 73For completeness I record that Mr Skinner informed me from the bar table that: (a) the Defendant then filed a statement of claim in this Court in which he claimed damages against Mr Lyon for professional negligence but that the proceedings were discontinued on 1 November 2010; and (b) the Defendant filed a notice of appeal in the NSW Court of Appeal against a judgment of 15 September 2010 ordering him to pay Mr Lyon's costs. The proceedings were discontinued on 1 November 2010. 74Mr Skinner has asked me not to address whether such proceedings are vexatious in light of the fact that no evidence has been adduced of such proceedings. Accordingly I disregard these proceedings for the purposes of my decision.

Whether the Defendant "frequently instituted or conducted vexatious proceedings" 75The Plaintiff submitted that, taken together, the proceedings relied upon can be described as frequent. I accept the Plaintiff's submission. The evidence summarised above indicates that since June 2010, the Defendant has instituted and conducted several vexatious proceedings in this Court, in the Federal Court, the Federal Magistrates Court and the District Court against the Plaintiff and the Brother. 76For these reasons I am satisfied that the Defendant has frequently instituted and conducted vexatious proceedings in Australia and, accordingly, I have the power to make a vexatious proceedings order against him. I note that I may not make such an order without hearing the Defendant, or giving the Defendant an opportunity to be heard. 77Procedural fairness is satisfied by according a litigant the opportunity to be heard: see, eg, Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42]. In any event the sufficiency of an opportunity to be heard is evident from the wording of s 8(3) of the Act, which provides that a Court must not make vexatious proceedings order "without hearing the person or giving the person an opportunity of being heard". 78I consider that the Defendant was given an opportunity to be heard. That he chose, in the main, not to avail himself of that opportunity by absenting himself from the Court when I took the morning adjournment, does not deprive the Court of the power to make a vexatious proceedings order.

Appropriate orders 79The Plaintiff submitted that the Court should exercise its discretion in favour of making a vexatious proceedings order on the following grounds: a. The Defendant has brought a large number of vexatious proceedings against the Plaintiff and the Brother, which had their genesis in the Defendant's late father's will and the ensuing challenge to it by the Brother, which resulted in Consent Orders. b. The Defendant's inclination to sue the Plaintiff has impeded the Plaintiff in performing his statutory role as the Defendant's trustee in bankruptcy and also served to diminish, if not obliterate, any surplus which may otherwise be available to the Defendant following the administration of his bankrupt estate. c. The Defendant's conduct of the various proceedings has shown an inability or refusal to accept finality in litigation. He has repeatedly brought applications to re-litigate matters, or to attempt to prosecute the same complaint in slightly different forms. e. The Defendant has made serious allegations against the Plaintiff and others without any apparent foundation. f. If an order is made, it will not shut the Defendant out from enforcing any legitimate claims that he has a proper basis for making. If the Defendant has such legitimate claims, he will be able to obtain the leave of the Court to commence proceedings. 80In addition to seeking an order prohibiting the Defendant from instituting proceedings in New South Wales, the Plaintiff seeks an order staying all existing proceedings instituted by the Defendant (subject to leave of the Court being granted). 81Apart from the proceedings referred to above, I do not have direct evidence to establish that there are no other proceedings which the Defendant has instituted. Nonetheless, in light of the pattern of proceedings which the evidence has revealed, it is likely that the Plaintiff would be aware of any proceedings brought by the Defendant since such proceedings are almost invariably brought against the Plaintiff, or the Plaintiff and the Brother. 82The Plaintiff is no ordinary litigant. He is the Defendant's trustee in bankruptcy. As such, all the Defendant's property, including rights of action, is vested in the Plaintiff. The only exceptions are rights of action of a personal nature, such as actions for damages for personal injury. 83In all the circumstances, I accept the Plaintiff's primary submission that it is appropriate for a blanket order staying all proceedings in New South Wales already instituted by the Defendant. 84I am satisfied that it is appropriate that vexatious proceedings orders be made. The right to bring proceedings in a court or tribunal is a right that ought not be abused. The Defendant has repeatedly, as referred to above, used the processes of courts and tribunals to assert rights and grievances for which he has no reasonable ground. He has abused the processes of the Court by re-litigating issues which he has lost. He has also made several damaging allegations of reprehensible conduct against the Plaintiff who, as a registered trustee in bankruptcy, is an officer of the Court. He has taken up the time of judges, the Plaintiff and solicitors in a wholly unproductive way. 85There is no real basis for concluding that the Defendant is cognizant of the consequences of his actions, or that he intends them. I draw no inference as to that matter. Nonetheless the lack of any evidence of insight into the behaviour that constitutes the abuse of process does not give me any confidence that the Defendant will not persist in bringing vexatious proceedings in the future, as I have found he has done in the past. 86Accordingly, for the foregoing reasons, I make the following orders: a. That, 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. b. That, 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. c. That the Defendant pay the Plaintiff's 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: 05 December 2011

Family Provision Act 1982(NSW)

Legal Profession Act 2004(NSW)

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Judgment (14 paragraphs)

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Legislation Cited (5)

Cases Cited (13)