Stubberfield v Lippiatt & Anor [2008] HCATrans 15 (6 February 2008)

Last Updated: 12 February 2008

[2008] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B38 of 2007

B e t w e e n -

JOHN RICHARD STUBBERFIELD

Applicant

and

FREDERICK WALTON LIPPIATT

First Respondent

LIPPIATT & CO (A FIRM)

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2008, AT 9.22 AM

Copyright in the High Court of Australia

GUMMOW J: The proceedings below arise out of a long history of litigation in Queensland between the parties. In 1994, the applicant engaged the second respondent to defend certain bankruptcy proceedings. He was dissatisfied with the conduct of proceedings and terminated the retainer. The second respondent issued proceedings against the applicant in the Magistrates Court seeking professional costs. The applicant sought to commence various Supreme Court actions in response, and on 4 November 2007 Moynihan J restrained him from taking any proceedings in the Supreme Court relating to issues raised in the Magistrates Court proceedings without leave of the Court.

On 9 October 1998 judgment was given in the Magistrates Court in favour of the second respondent. The Magistrate found that the retainer had been wrongfully terminated by the applicant or, in the alternative, that the second respondent had been justified in terminating the retainer by virtue of the applicant's conduct.

In July 1999 a sequestration order was made against the applicant's estate. The bankruptcy was annulled in November 2001 after the applicant's debts were paid.

In June 2002 the District Court refused the applicant an extension of time to appeal against the 1998 decision. In July 2002 the Court of Appeal dismissed an application for leave to appeal against the judgment of the District Court and rejected a claim that the judgment should be set aside as obtained by fraud.

The applicant commenced proceedings in the Supreme Court. On 3 October 2006 Philippides J permanently stayed those proceedings as an abuse of process, finding that the applicant sought to re-litigate matters canvassed before the Magistrates Court. On the issue of $3,300 held in trust and not taken into account in the assessment of damages, the applicant was given leave to re-plead a claim.

The applicant's appeal to the Court of Appeal was dismissed on 23 March 2007. The applicant had failed to demonstrate why any part of his claim was no precluded by res judicata, Anshun estoppel or the absence of an arguable case.

The application to this Court is brought out of time and the applicant seeks an order under r 41.02.2 of the High Court Rules 2004 dispensing with the requirement to comply with the time limit in r 41.02.1. We would not make this order.

The applicant's written submissions do not advance any questions of law that would justify a grant of special leave to appeal. This matter concerns the application of settled principles relating to practice and procedure and there is no reason to doubt the correctness of the Court of Appeal's conclusion that the primary judge was correct in permanently staying proceedings. There would be no prospects of success in this Court.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish the disposition signed by Kiefel J and myself.

AT 9.25 AM THE MATTER WAS CONCLUDED