Bahar & Sohrab

[2023] FedCFamC1F 443

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bahar & Sohrab [2023] FedCFamC1F 443   

File number(s):	CAC 1429 of 2014
Judgment of:	GILL J
Date of judgment:	2 June 2023
Catchwords:	FAMILY LAW - PROCEDURE – Person under a disability - Failure to identify litigation guardian – In excess of five years with no step taken to appoint litigation guardian – Discontinuance of pursuit of relief by party not under a disability -  No prospect of litigation ever being prosecuted by party under a disability – Abuse of the court’s processes – Dismissal of applications for relief by person under a disability
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.22
Division:	Division 1 First Instance
Number of paragraphs:	27
Date of hearing:	30 May 2023
Place:	Canberra
Solicitor for the Applicant:	Litigant in Person (did not participate)
Solicitor for the Respondent:	Litigant in Person (did not participate)

ORDERS

CAC 1429 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BAHAR Applicant
AND:	MR SOHRAB Respondent

order made by:	GILL J
DATE OF ORDER:	2 JUNE 2023

THE COURT ORDERS THAT:

1.The wife’s outstanding applications are dismissed.

2.The husband’s outstanding applications are dismissed on the expiration of 56 days from today’s date, in the event that no step is brought before the Court prior to that date to either:

(a)cause the appointment of a litigation guardian; or

(b)establish that the husband is no longer a person under a disability.

3.These orders be provided to the parties at their various email addresses. 

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bahar & Sohrab has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. This matter concerns proceedings that have been held in abeyance since October 2017 following the identification that the husband is a person under a disability who requires that his case be dealt with by a case guardian pursuant to the now repealed r 6.08 of the Family Law Rules 2004.

   History of proceedings

2. In the context of proceedings that had been finally resolved by orders made by Watts J on 1 February 2017, the wife had made application for the husband to pay her costs on an indemnity basis.  On 9 February 2017 the wife also commenced contempt proceedings against the husband for breach of orders that restrained him from dealing with certain properties.  Each of these has subsequently been stayed pending the appointment of a case guardian or the husband no longer being a person under a disability.

3. The husband filed applications on or about 6 March 2017, 12 April 2017 and 27 April 2017, each of which was the subject of a further order made on 24 May 2017 that unless he lodged by 31 May 2017 security for costs in the sum of $50,000, those proceedings would be stayed.

4. The husband consolidated those applications along with applications of 22 November 2016 and 25 November 2016 (referred to by a minute of orders sought filed 28 November 2016) by a minute of orders filed 30 May 2017.  Those were subject to an application for summary dismissal by the wife.

5. The security was not lodged and the wife sought summary dismissal of those applications.  By orders of 2 June 2017 a significant portion of the orders sought by the husband by his minute of orders filed 30 May 2017 were so dismissed, including all applications to which the security for costs orders related.  The husband’s applications that remained related to the wife’s contempt application against the husband and various costs applications.

6. These too are stayed pending the appointment or application for appointment of a case guardian, or an application to adduce further evidence about whether the husband is a person under a disability.

7. There being no person identified to be case guardian for the husband, on 16 November 2017, pursuant to the then operative r 6.11 of the Family Law Rules 2004, a request was made of the Commonwealth Attorney-General to nominate a person to be a case guardian for the husband.

8. Despite the efforts of the Attorney-General’s Department, on 14 May 2018 the Department informed the court that no person could be identified to perform the function of case guardian for the husband.

9. The matters then remained in abeyance for a period of about five years.

10. In the absence of a case guardian, on 22 May 2023 on the court’s own motion the proceedings were listed for 30 May 2023, with the parties and the Attorney-General advised of the listing.  It was requested that a representative of the Attorney-General attend.

11. The wife then sent correspondence to the court (Exhibit C1) where she advised that she no longer wished to pursue the applications, and would not attend.  Correspondence was sent to the wife to advise that her communication would be taken as a notice of discontinuance.

12. The request for a representative of the Attorney-General to attend was withdrawn.

13. Correspondence was also purportedly sent to the court on behalf of the husband, by unidentified persons (Exhibit C2) asserting the husband’s incapacity to attend the proceedings.

14. Neither the husband nor the wife attended.

    Discussion

15. The wife may be taken to have discontinued all extant proceedings against the husband.  Accordingly the applications pursued by the wife will be dismissed.

16. Insofar as the relief sought by the husband related to the wife’s proceedings for contempt or costs, such relief now has no basis.

17. In the absence of relief pursued by the wife against the husband, the only remaining imperative for the litigation is relief pursued by the husband that pertains to various costs claims. 

18. No identified step has been taken by the husband in relation to securing a case guardian, or now pursuant to Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to obtaining a litigation guardian.

19. In excess of five years has passed since the Attorney-General advised of the Attorney’s inability to locate a case guardian.

20. Absent some step being taken by the husband to either establish that he is no longer under a disability, or that there is a litigation guardian available, there appears no prospect that any step will ever be taken to prosecute the husband’s remaining claims.

21. While this may usually be dealt with pursuant to the Rules as they relate to dismissal for want of prosecution, the current circumstances do not fall within those contemplated by the Rules, as there are outstanding applications in the proceedings.

22. However, the lack of any foreseeable prospect that the relief the subject of the husband’s applications will ever be pursued may be considered to be an abuse of the court’s processes such as to warrant departure from the operation of r 10.22 pursuant to r 1.31.

23. Whilst it is a serious matter to dispose of proceedings without a determination on their merits, the lack of any movement in the last five years points strongly toward the need to do so in order to protect the court’s processes from abuse.  This is not to suggest that the default is necessarily something that could be overcome by the husband, or that there is a vexatious intent on the part of the husband.  Such issues cannot be explored absent further hearing.  However, an essential aspect of the court’s function is the resolution of claims.  The presence of extant litigation with no prospect of being pursued is oppressive and constitutes an abuse of the court’s processes even absent a lack of bona fides being demonstrated.

24. It may also be observed that where, as here, the dismissal will have occurred in the absence of a party, a remedy is envisaged by r 10.13.

25. However, prior to orders having the effect of dismissing the proceedings, it is necessary to provide further notice to the husband of the prospect of his litigation being so ended, with sufficient time to allow any further, but as yet unidentified step to be taken as may be available for the appointment of a litigation guardian, or to establish that he is no longer a person under a disability.

    Conclusion

26. The wife’s outstanding applications will be dismissed.

27. Despite the terms of r 10.22, the husband’s outstanding applications will be dismissed if no step is taken within the next 56 days to either cause the appointment of a litigation guardian or to establish that the husband is no longer under a disability.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:       

Dated:       2 June 2023