Baker and Green and Kettle (No. 5)

[2007] FamCA 1660

FAMILY COURT OF AUSTRALIA

BAKER & GREEN & KETTLE (NO. 5) [2007] FamCA 1660

FAMILY LAW – ORDERS – stay application
FAMILY LAW - COSTS

APPLICANT/RESPONDENT: MR KETTLE

APPLICANT/RESPONDENT:	MS BAKER
APPLICANT/RESPONDENT:	MS GREEN
RESPONDENT:	X  LAWYERS

FILE NUMBER:	(P)BRF	2360	of	2002
AND
(P)BRF	1456	of	2001

DATES DELIVERED: 14 and 15 June 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATES: 14 and 15 June 2007

REPRESENTATION

MS BROWNE: X Lawyers

MS GASKIN:	X Lawyers
MR KAHLER:	Appeared in person
X LAWYERS	X Lawyers

Orders

BRF2360/2002

Orders made on 14 June 2007

Mother’s application filed on 17 May 2007 – appointment of trustee for sale

1The mother’s application filed on 17 May 2007, as amended by the amended application filed on 13 June 2007, be listed for hearing before the Honourable Justice O’Reilly at 10am on 5 September 2007 for one day as a fixed date.

See Notation 1

Father’s application filed on 9 February 2007 – stay of the orders relating to child support made by the Honourable Justice Bell on 24 November 2006, purchase from NTS of audio tapes and costs

2The father’s application filed on 9 February 2007 for a stay of the orders relating to child support made by the Honourable Justice Bell on 24 November 2006 is dismissed.

3The father’s application filed on 9 February 2007 for the purchase of audio tapes from the National Transcription Service (NTS) is allowed and it is ordered that the Regional Registry Manager of the Brisbane Registry of the Family Court of Australia make all necessary arrangements with NTS for the father to purchase from it audio CDs of the trial before the Honourable Justice Bell on 13-17 November 2006 and that the cost of the purchase be paid by the father to NTS.

4The father’s application filed on 9 February 2007 for an order that there be no order as to costs in relation to that application is dismissed.

5The father pay the mother’s costs of and incidental to the father’s application filed on 9 February 2007 for a stay of the orders relating to child support made by the Honourable Justice Bell on 24 November 2006 (but not the costs of the father’s application filed on 9 February 2007 for the purchase of audio tapes from NTS), to be assessed, but in relation to travel time and Court time the costs be limited to half of the travel costs of the mother’s solicitor [Ms E] [G]/Brisbane return (Ms [E’s] travel time being related also to the other applications listed on 14 and 15 June 2007 the subject of these orders) and four hours of Court time.

See Notation 2

6That costs order, after assessment, then be stayed until 5 September 2007.

Father’s application filed on 23 May 2007 against [X] Lawyers [G] for the return of documents

7The father’s application filed on 23 May 2007 against [X] Lawyers [G] for the return of documents handed to them and/or Counsel during the trial before the Honourable Justice Bell on 13-17 November 2006 is dismissed.

8The father pay [X Lawyer’s] costs of that application, to be assessed, but limited to the costs of the preparation and filing of their response filed on 28 May 2007 (paragraph 1 only of the response) and the costs of the preparation and filing of the affidavit of [Ms E] filed on 28 May 2007, paragraphs 1-10 only, and nil annexures.

9That costs order, after assessment, then be stayed until 5 September 2007.

Contravention applications

10The mother’s contravention application filed on 28 September 2006 and the father’s contravention applications filed on 22 March 2006, 11 April 2006, 7 November 2006 and 8 November 2006 be listed for hearing before the Honourable Justice Carmody at 10am on 31 July 2007 for one day as a fixed date.

See Notation 3

Orders made on 15 June 2007

Mother’s applications for father to be declared a vexatious litigant and for orders under s 118 of the Family Law Act 1975 (Cth)

11The mother’s application made by her response filed on 30 March 2007 to the father’s application filed on 9 February 2007 that the father be declared a vexatious litigant and not without leave of the Court institute further interim proceedings concerning the child [B] born [in] August 2000 and the mother’s application by her response filed on 28 May 2007 to the father’s application filed on 23 May 2007 that the father be declared a vexatious litigant and not without leave of the Court institute further proceedings including interim proceedings or file any appeal or take any further actions or steps in any Court in which the mother is a named party, or in the alternative that he provide security for costs, are dismissed.

12There be no order as to costs in relation to the mother’s applications made by the responses referred to.

NOTATIONS:

1In relation to order 1, on 14 June 2007 the father in open Court acknowledged personal service on him on 14 June 2007 of the mother’s amended application filed on 13 June 2007.

2In relation to order 5, the mother’s costs as they relate to Ms [E’s] travel costs and the four hours of Court time, when assessed, should then be divided and apportioned equally in relation to proceedings BRF2360/2002 and proceedings BRF1465/2001, having regard to the equivalent costs orders in those proceedings, to avoid double costs to the father under those heads of cost, Ms [E] having appeared for each of the mothers in each of those tandem proceedings, heard together.

3In relation to order 10, on 14 June 2007 it was uncertain whether the mother’s contravention application filed on 28 September 2006 may have been earlier dismissed or discontinued.

BRF1456/2001

Orders made on 14 June 2007

Mother’s application filed on 17 May 2007 – appointment of trustee for sale

1The mother’s application filed on 17 May 2007, as amended by the amended application filed on 13 June 2007, be listed for hearing before the Honourable Justice O’Reilly at 10am on 5 September 2007 for one day as a fixed date.

See Notation 1

Father’s application filed on 9 February 2007 – stay of the orders relating to child support made by the Honourable Justice Bell on 24 November 2006, purchase from NTS of audio tapes and costs

2The father’s application filed on 9 February 2007 for a stay of the orders relating to child support made by the Honourable Justice Bell on 24 November 2006 is dismissed.

3The father’s application filed on 9 February 2007 for the purchase of audio tapes from the National Transcription Service (NTS) is allowed and it is ordered that the Regional Registry Manager of the Brisbane Registry of the Family Court of Australia make all necessary arrangements with NTS for the father to purchase from it audio CDs of the trial before the Honourable Justice Bell on 13-17 November 2006 and that the cost of the purchase be paid by the father to NTS.

4The father’s application filed on 9 February 2007 for an order that there be no order as to costs in relation to that application is dismissed.

5The father pay the mother’s costs of and incidental to the father’s application filed on 9 February 2007 for a stay of the orders relating to child support made by the Honourable Justice Bell on 24 November 2006 (but not the costs of the father’s application filed on 9 February 2007 for the purchase of audio tapes from NTS), to be assessed, but in relation to travel time and Court time the costs be limited to half of the travel costs of the mother’s solicitor [Ms E] [G]/Brisbane return (Ms [E’s] travel time being related also to the other applications listed on 14 and 15 June 2007 the subject of these orders) and four hours of Court time.

See Notation 2

6That costs order, after assessment, then be stayed until 5 September 2007.

Orders made on 15 June 2007

Mother’s applications for father to be declared a vexatious litigant and for orders under s 118 of the Family Law Act 1975 (Cth)

7The mother’s application made by her response filed on 30 March 2007 to the father’s application filed on 9 February 2007 that the father be declared a vexatious litigant and not without leave of the Court institute further interim proceedings concerning the children [M] born [in] July 1994 and [A] born [in] December 1999 is dismissed.

8There be no order as to costs in relation to the mother’s application made by the response referred to.

NOTATIONS:

1In relation to order 1, on 14 June 2007 the father in open Court acknowledged personal service on him on 14 June 2007 of the mother’s amended application filed on 13 June 2007.

2In relation to order 5, the mother’s costs as they relate to Ms [E’s] travel costs and the four hours of Court time, when assessed, should then be divided and apportioned equally in relation to proceedings BRF2360/2002 and proceedings BRF1465/2001, having regard to the equivalent costs orders in those proceedings, to avoid double costs to the father under those heads of cost, Ms [E] having appeared for each of the mothers in each of those tandem proceedings, heard together.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Baker & Kettle, Green & Kettle.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2360 of 2002 AND BRF 1456 of 2001

MR KETTLE

Applicant

And

MS BAKER

First Respondent

And

MS GREEN

Second Respondent

REASONS FOR JUDGMENT

14 June 2007

Applications

1These are tandem applications in a case in form 2 filed by Mr Kettle. 

2The first is in proceedings (P)BRF2360/2002 in which Ms Baker is the respondent.  The second is in proceedings (P)BRF1456/2001 in which Ms Green is the respondent.

3In (P)BRF2360/2002 the form 2 application was filed on 9 February 2007.  In support of it Mr Kettle read and relied on his affidavits filed on 9 February 2007, 20 April 2007, 23 May 2007 and his affidavit filed by leave on 13 June 2007.

4In (P)BRF1456/2001 the form 2 application was filed on 9 February 2007.  In support of it Mr Kettle read and relied on his affidavits filed on 9 February 2007, 20 April 2007, 23 May 2007 and his affidavit filed by leave on 13 June 2007.

5In those applications Mr Kettle seeks orders in the following terms:

(1)There be no order for costs

(2)There be a stay application in relation to Maintenance Orders until determination of the Appeal against those Orders

(3)Mr Kettle have "consent to purchase an Unaltered Audio Copy of the Hearing Appeal from any subsequent Hearings relating to Orders Sought or made."

The background to the applications

6On 24 November 2006, the Honourable Justice Bell after a trial lasting for five days, 13-17 November 2006, made parenting orders concerning B born in August 2000 who is the son of Ms Baker and Mr Kettle, and concerning M born in July 1994 and A born in December 1999 who are the children of Ms Green and Mr Kettle, and in each case made a departure order under the Child Support (Assessment )Act 1989 (Cth).

7In relation to each departure order pronounced on 24 November 2006, on 31 January 2007 his Honour made amendments under Rule17.02 of the Family Law Rules 2004 ("the slip rule") in the terms of the notation to each order.

8In relation to the amendments made on 31 January 2007 under the slip rule in proceedings (P)BRF2360/2002, however, the signed sealed and issued order which bears that date did not, in the body of the order, show the text of the amendment made in the terms of the notation to that order. 

9In these circumstances the Honourable Justice Bell currently is arranging for the order in those proceedings to be re-engrossed to show the amendment and the re-signing, re-sealing and re-issue of that order which will soon occur. 

10To better explain the matters to which I have just referred, I will now set out the relevant parts of the orders.

1456/2001- order 24 November 2006 as issued

(9) If the father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant's Solicitors, [X] Lawyers, the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.

(10) Enforcement of Order (10) is adjourned to a date to be fixed, to be brought on in (sic) fourteen (14) days notice before the Honourable Justice Bell.

1456/2001 - order 24 November 2006 as amended and re-issued dated 31 January 2007

(9)The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $330 per week.

(10) If the father fails to comply with Order 9 of these Orders and falls into arrears for a period of three (3) months his property at [G] in the State of Queensland is to be sold and he shall forthwith pay to the Applicant's Solicitors, [X] Lawyers, the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.

(11) Enforcement of Order (10) is adjourned to a date to be fixed, to be brought on in (sic) fourteen (14) days notice before the Honourable Justice Bell.

NOTATION:

Pursuant to Rule 17.02 of the Family Law Rules 2004 this Order has been amended:

(1) by the insertion of Order 9 and the renumbering of Orders 9 to 13 as Orders 10 to 14;

(2) by the deletion of the words “'If the father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months …” and the insertion of the words “If the father fails to comply with Order 9 of these Orders and falls into arrears for a period of three months …” in paragraph 10.

2360/2002 - order 24 November 2006 as issued

(14) If the Father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant's Solicitors, [X] Lawyers, the amount of $113,350 for the child [B].

(15) Enforcement of Order (14) is adjourned to a date to be fixed, to be brought on in (sic) fourteen (14) days notice before the Honourable Justice Bell.

2360/2002 - order 24 November 2006 as amended and re-issued dated 31 January 2007

(14) The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $215.00 per week.

(15) If the Father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant's Solicitors, [X] Lawyers, the amount of $113,350 for the child [B].

(16) Enforcement of Order (14) is adjourned to a date to be fixed, to be brought on in (sic) fourteen (14) days notice before the Honourable Justice Bell.

NOTATION:

Pursuant to Rule 17.02 of the Family Law Rules 2004 this Order has been amended:

(1) by the insertion of Order 14 and the renumbering of Orders 14 to 18 as Orders 15 to 19;

(2) by the deletion of the words “If the Father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months …” and the insertion of the words “If the Father fails to comply with Order 14 of these Orders and falls into arrears for a period of three months …” in paragraph 15.

2360/2002 - order 24 November 2006 as amended on 31 January 2007 and yet to re-issue

The order when re-issued will provide as originally intended and will bear a second notation as follows:

SECOND NOTATION:

On [the re-issue date] this Order was re-engrossed and re-sealed to reflect the amendment to paragraph 15 referred to in the notation above.

11Pursuant to Rule 17.01(1) an order of this Court in a hearing or trial is "made" when it is pronounced, and pursuant to Rule 17.01(2) takes effect when it is "made" unless otherwise stated.  Thus, the orders in this case were "made" when pronounced by the Honourable Justice Bell on 24 November 2006 and not the date of any subsequent engrossment, signing, sealing or issue.

12A note to Rule17.01(2) provides: 

Note After an order is made, it is issued by the court.  The issued order embodies the terms of the order in a document that is signed and sealed.

13It is plain by reference to his Honour's reasons for judgment given ex tempore on 24 November 2006, pars 57-70, that his Honour on that date pronounced the departure order in relation to the child B at $215 per week and pronounced the departure order in relation to the children M and A at $330 per week.  See in particular par 70 of his Honour's reasons for judgment.  Thus, the departure orders were “made” on 24 November 2006.

14It is equally plain, as I observed during argument, that his Honour's use of the slip rule to correct the orders which initially issued on 24 November 2006 was appropriate and a proper use of the slip rule to correct an accidental slip or omission so that the orders engrossed, signed and sealed reflect the orders which his Honour, on that date, pronounced in open Court.  Thus, as so corrected, the orders date and have effect from 24 November 2006.

15On 22 December 2006, Mr Kettle filed a notice of appeal in relation to each order being appeal numbers 02/2007 and 03/2007 respectively. 

16The appeal files in those matters each contain letters from the Regional Appeals Registrar dated 21 March 2007 to Mr Kettle notifying him that pursuant to Rule 22.56 of the Family Law Rules 2004 each appeal had been deemed abandoned for his failure to file a pre-argument statement. 

17On 20 February 2007, Mr Kettle filed a further notice of appeal in relation to each order being appeal numbers 19/2007 and 20/2007 respectively. 

18The appeal files in those matters each contain letters from the Regional Appeals Registrar dated 9 May 2007 to Mr Kettle notifying him that pursuant to Rule 22.56 of the Family Law Rules 2004 each appeal has been deemed abandoned for his failure to file a pre-argument statement. 

19Whilst those four letters from the Regional Appeals Registrar are not in evidence, they are part of the record and Mr Kettle acknowledged from the Bar table that indeed each of those four letters had been sent to him and received by him.  

20It is common ground that Mr Kettle has not filed any further notices of appeal.

21There are thus no appeals on foot in relation to the orders.

22It is common ground also that Mr Kettle has no present applications for permission to appeal out of time.

23The appeal files to which I have referred show correspondence from Mr Kettle requesting the release to him of audio tapes of the trial conducted by the Honourable Justice Bell on 13-17 March 2006, which correspondence is duplicated in Mr Kettle's exhibit 1. 

The stay applications

24Rule 22.12(2) of the Family Law Rules 2004 provides that if an appeal has been started, or a party has applied for permission to appeal, a party may apply for a stay of the order to which the appeal or the application for permission to appeal relates.  Rule 22.12(3) provides (relevantly) that an application for a stay must be made to the Judge who made the order under appeal.  A note however to Rule 22.12 provides (relevantly) that an application for a stay may be made to another Judge if the Judge who made the order is unavailable.

25As I understand the matter, Mr Kettle's applications were listed before the Honourable Justice Bell on 29 May 2007, on which date Mr Kettle sought that his Honour disqualify himself for bias and his Honour did so.  In the result, the stay applications have been listed before me.

26However, as I have explained, currently there are no appeals on foot and no applications for permission to appeal out of time.

27Mr Kettle has argued to the effect that he cannot institute competent appeals unless and until he is able to purchase the audio tapes of the trial 13-17 November 2006 before the Honourable Justice Bell.  I do not accept this submission.

28In any event, it is plain that I have no power to grant a stay of the orders unless and until appeals are instituted or applications are made for permission to appeal out of time.

29It follows that Mr Kettle's stay applications must be dismissed and I will so order.

The  applications for the purchase of audio tapes of the trial 13-17 November 2006

30Exhibit 1 shows an extensive course of correspondence between Mr Kettle and the Court in relation to his request that he purchase audio tapes of the trial.

31As I understand the matter, National Transcription Services (NTS) is engaged by the Court by contract which seems to be self evident from a letter dated 27 October 2006 from the Regional Registry Manager, Brisbane Registry of the Court to Mr Kettle, included in his bundle of documents, exhibit 1, towards the back of the bundle.

32Mr Kettle told me from the Bar table that his understanding is that he is only able to purchase audio tapes from NTS if there is approval by the Court.  He said that his understanding is that each full day of hearing would comprise one CD at the cost of $85 per CD, and he said that in fact he has purchased CDs of transcripts from NTS in the past pursuant to approval and arrangements as set out in the letter dated 27 October 2006 to which I have referred.

33During one of the breaks today, as I stated in open Court after the break, I took the liberty of inquiring from the Regional Registry Manager, as to the practice and whether the information that Mr Kettle stated from the Bar table was accurate and correct information. The Regional Registry Manager confirmed to me that all arrangements for the purchase of transcripts by litigants must be made through the Court rather than the litigants approaching NTS directly.  The Regional Registry Manager recommended that I make the following direction:  I direct the Registry Manager of the Brisbane Registry to make all necessary arrangements with NTS for Mr Kettle to purchase from NTS audio CDs of the trial before the Honourable Justice Bell on 13-17 November 2006 and that the cost of the purchase be paid by Mr Kettle to NTS. 

34It remains therefore for me to consider whether it is appropriate that I make that order.

35Ms E, the solicitor for Ms Baker and Ms Green, said that she had "no position" in relation to that part of Mr Kettle's applications.

36It seems to me that as the audio tapes are sought to be purchased by Mr Kettle, there is an arrangement in place whereby that can be done, and there is no objection by any party I should allow this part of the applications and make the direction recommended by the Regional Registry Manager.

37I would point out, however, as I did to Mr Kettle in argument, that despite his correspondence in exhibit 1 setting out that he needs the CDs because he cannot afford the transcript, the reality is that if in the future he is proposing to seek permission to appeal out of time, he may have to show preparedness to pay for the transcript because, as has been explained to him in correspondence from the Regional Appeals Registrar, the appeal system is based procedurally on the appellant paying for and providing a copy of the transcript to be included in the appeal record.

38Thus it may be that, at the end of the day, Mr Kettle will purchase the CDs and still find himself unable competently to stage an appeal if, as he says in his correspondence to the Court, he cannot afford the transcript.  However, that is a matter for him further down the track and is not a matter which presently will affect the exercise of my discretion at this stage to let him have what he wants.

Costs

39Somewhat unusually, Mr Kettle, as I have indicated above, set out as the first part of his applications that he sought an order that there be no order as to costs.

40At first, because of the unusual positioning of that order, I thought that perhaps Mr Kettle was seeking some sort of global relief in relation to costs past, present or future.

41However, Mr Kettle clarified for me in submission that he intended that part of the relief to relate only to the costs of and incidental to his two form 2 applications.  I will thus not treat those parts of the applications as being for substantive relief independently from the costs relating to the applications, as to which I will now hear argument.

RECORDED NOT TRANSCRIBED

42Application for costs is made by Ms E on behalf of Ms Baker and Ms Green.  The relevant principles are as set out in Penfold & Penfold (1980) 144 CLR 311 at 315. It is necessary in the process of deciding whether it would be just to award costs to identify a justifying circumstance to do so. In considering what order, if any, should be made under s 117(2) of the Act I am required to have regard to the matters in section 117(2A) of the Act.

RECORDED NOT TRANSCRIBED

43Having regard to the several applications set down before me yesterday and today, it seems to me that these two particular form 2 applications, although I have not yet heard submissions in respect of the responses, have taken about four hours of Court time.  Ms E, the solicitor for Ms Baker and Ms Green, has travelled from G and will require to return to G, however, she is here representing Ms Baker and Ms Green in their own applications for orders to put into effect the Honourable Justice Bell's self executing enforcement orders which, unfortunately for reasons relating to service, I have had to put off until September.  Thus, Ms E had to incur those costs in any event.  It seems to me, therefore, that if I am to consider costs it is appropriate that I consider half the costs of Ms E's travel and say four hours of Court time.

44Ms E relies on the circumstance that Mr Kettle has been totally unsuccessful in his applications for a stay of the orders made by the Honourable Justice Bell relating to the sale of his home, and that the second part of his applications, which related to the obtaining of audio tapes, was never opposed by Ms Baker and Ms Green, they having taken no position in relation to that aspect of the matter, so that even though Mr Kettle has been successful in part of his applications, he has been unsuccessful in the only part which was opposed. 

45Ms E pointed to the circumstance that Ms Baker and Ms Green are partially legally aided in relation to these applications and partially not. 

46As to financial capacity to pay a costs order, Ms E referred to and relied upon the findings of the Honourable Justice Bell in the recent trial proceedings ending in judgment in November 2006 that Mr Kettle is the owner of a farm property valued at about $1.75 million with at that date a mortgage debt of about $340,000.  See the reasons for judgment, pars 63 and 58.

47Mr Kettle has not adduced any evidence that that is not his current financial circumstance.

48Mr Kettle resists that I should make any costs order on the basis that he is in receipt of Centrelink benefits and said from the Bar table that his overdraft on the farm property is to its maximum permissible extent, so that in short he can borrow nothing further against the property. 

49At the end of the day I need to balance these matters and decide what is just.  It seems to me that the form 2 applications for a stay were wholly unmeritorious in that the four appeals which Mr Kettle has instituted each have been deemed abandoned. Whilst his evidence indicates that in the future he is going to try again to institute appeals, the reality is, as I have determined, that without appeals on foot or applications for permission to appeal out of time I have no power to grant the applications for a stay and, as Ms E has pointed out, the bringing of the applications has caused Ms Baker and Ms Green to incur costs.

50On one view, the applications for a stay were so unmeritorious they ought to have been able to have been dealt with in five minutes.  Unfortunately with Mr Kettle, however, as a litigant in person raising distracting issues and the necessity to have to deal with other applications, as the transcript will show, this matter was not able to be disposed of within the half hour maximum that it ought to have taken.

51I am satisfied that in all of the circumstances it would be just for a costs order to be made.  I am satisfied that Mr Kettle has the financial capacity to pay a costs order, on the evidence that I have mentioned.  However, it seems to me that I ought to stay the costs order I propose to make until 5 September 2007 which is the date on which the enforcement proceedings for the sale of his dairy property are listed before me to be determined. 

52I will therefore order that Mr Kettle pay the costs of Ms Baker and Ms Green of and relating to his form 2 applications filed on 9 February 2007, to be assessed, but limited to half of Ms E's travel costs G/Brisbane return and four hours of Court time.

RECORDED NOT TRANSCRIBED

Application by Mr Kettle against X Lawyers

53This is an application by Mr Kettle filed on 23 May 2007 in proceedings 2360/2002 for an order that X Lawyers be ordered to return to him original documents belonging to himself or his wife, namely bank statements, loan statements and other documents handed to the lawyers or their barrister during the trial conducted between 13-17 November 2006 before the Honourable Justice Bell.

54Ms E, from that firm, filed an affidavit on 28 May 2007 saying in par 7 that at an interim hearing on 4 April 2007 Mr Kettle raised this matter before the Honourable Justice Barry who expressed the view that the firm should return the original documents, which Ms E said she agreed to do; and in par 8 that the documents referred to were returned to Mr Kettle shortly after that interim hearing, approximately six or seven weeks ago, meaning six or seven weeks before 28 May 2007.

RECORDED NOT TRANSCRIBED

55Mr Kettle, from the Bar table, admitted two things, first that he now has all the documents back, and secondly that he has had all the documents back since about 11 or 12 April 2007.  In those circumstances I will and must dismiss his application for the return of the documents filed on 23 May 2007, some six weeks or so after, he acknowledges, he received all of the documents. 

RECORDED NOT TRANSCRIBED

Costs

56Ms E, on behalf of the respondent firm X Lawyers seeks the costs of and relating to this application on the basis that not only has it been wholly unsuccessful but it was filed some six weeks after the acknowledged return of the documents and was thus vexatious.

RECORDED NOT TRANSCRIBED

57I have referred earlier today to the aspect of the capacity of Mr Kettle to pay a costs order.  The Court hearing time for this particular application has taken only about 10 minutes.  As soon as Mr Kettle’s acknowledgment was made the application rapidly came to an end.

58Mr Kettle resists costs on the basis that he lodged the application with the Registry before 4 April 2007, but for some reason the Registry refused to file it, and that he corresponded a great deal with the Court in order to achieve the filing.  He says thus that it is not his fault that the filing date was effected several weeks after he had received the documents from the firm.  However, it seems to me that a reasonable person in that position immediately, or as soon as possible after 12 April 2007, would have notified both the Court and the firm of solicitors that the application would not be proceeded with and, indeed, perhaps would have filed a notice of discontinuance to ensure that result.

59I am satisfied in all of the circumstances that it is just to make a costs order against Mr Kettle, however, as the result of a costs order I have made earlier today, Ms E already will have half her travel costs G/Brisbane return and four hours of Court time related to a different application, and given that this application really only took about 10 minutes of Court time, it seems to me proper to limit the costs to the costs of the preparation and filing on behalf of the firm of its form 2A response and affidavit in support of that response each filed on 28 May 2007.

RECORDED NOT TRANSCRIBED

60Very well, the costs order thus will be: Mr Kettle pay the costs of X Lawyers of and relating to this application, limited to the preparation and filing of the response in form 2A filed on 28 May 2007, but in respect of the preparation, limited further to par 1 of that response, and the affidavit in support of Ms E filed on the same date but limited to pars 1 to 10 of that affidavit and nil annexures.

RECORDED NOT TRANSCRIBED

15 June 2007 

Applications for declaration that Mr Kett;e is a vexatious litigant and for orders under s 118

61This part of the reasons for judgment deals with the tandem responses in form 2A to the father's tandem applications filed on 9 February 2007; and in proceedings 2360/2002 the response in form 2A to the father's application filed on 23 May 2007. 

RECORDED NOT TRANSCRIBED

62In proceedings 2360/2002, the form 2A response was filed on 30 March 2007.  In support, Ms Baker relies on the affidavit of her solicitor Ms E filed on 3 April 2007, in argument limited to pars 12-16 and 24-30, as well as annexure RAE4 pars 41-47 and 53-55.

63In proceedings 1456/2001, the form 2A response was filed on 30 March 2007.  In support, Ms Green relies on the affidavit of her solicitor Ms E filed on 3 April 2007, in argument limited to paras 12-16 and 24-30, as well as annexure RAE4 pars 41-47 and 53-55.

64In proceedings 2360/2002, the further form 2A response was filed on 28 May 2007.  In support, Ms Baker relies on the affidavit of Ms E filed on 28 May 2007, in argument limited to pars 18-20 and 22.

65In the first two responses to which I have referred, Ms Baker and Ms Green each seek orders (relevantly) that:

(1)      Mr [Kettle] be declared a vexatious litigant

(2)Mr [Kettle] not, without leave of the Court, institute further interim proceedings for parenting orders, in Ms [Baker's] case in relation to the child [B] born [in] August 2000, and in Ms [Green’s] case in relation to the children [M] born [in] July 1994 and [A] born [in] December 1999

(3)In the event of an application for leave, the applications and supporting material be served personally on each of Ms [Baker] and Ms [Green], they be excused from appearing on the leave applications and Mr [Kettle] proceed ex parte.

66In the third response to which I have referred, Ms Baker seeks orders (relevantly) that:

(1)      Mr [Kettle] be declared a vexatious litigant

(2)Mr [Kettle] not institute without the leave of the Court further proceedings including interim proceedings or file any appeal or take any further actions or steps in any Court in which Ms [Baker] is named as a party

(3)In the event of any application for leave the applications and supporting material be served personally on Ms [Baker], she be excused from appearing on the leave applications and Mr [Kettle] proceed ex parte.

67In the alternative, in the third response, Ms Baker seeks an order that Mr Kettle provide security for costs.

68I have referred already in earlier reasons for judgment delivered yesterday to the background of these matters which I would incorporate by reference and do not need to set out again.

69It is convenient to deal with the first two responses together, because in terms they seek to restrain only any further interim proceedings, whereas the third response seeks to restrain any proceedings including interim proceedings.

70All three applications, by the responses, invoke not only section 118 of the Family Law Act (1975) (Cth), but also the Court's inherent jurisdiction to control its own procedures to restrain or prevent abuse of process. See Aldred v Aldred; Westpac Banking Corporation (1986) FLC 91-753 and Vlug v Poulos (1997) FLC 92-778.

71It is convenient to refer first to s 118, which provides:

Frivolous or vexatious proceedings

(1)  The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

(a)  dismiss the proceedings;

(b)  make such order as to costs as the court considers just; and

(c)  if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

(2)  A court may discharge or vary an order made by that court under paragraph (1)(c).

72Ms E, solicitor, who appeared for Ms Baker and Ms Green, urged strongly that I have regard to the whole history of the matter and referred to several unmeritorious, repetitive and duplicated interim applications brought by Mr Kettle, while the proceedings for final orders were still on foot, those proceedings, of course, being now finalised by the final orders made by the Honourable Justice Bell on 24 November 2006.  Her arguments and references to the material may be referred to in the transcript of the proceedings, if required, and I need not therefore set them out here.  Ms E urged that Mr Kettle is a vexatious litigant and should be declared as such because of the nature of the several interim applications brought by him before the finalisation of the proceedings by the Honourable Justice Bell's orders, and urged that unless restrained Mr Kettle will continue to bring frivolous, vexatious and unmeritorious interim applications.  She referred, in particular, to Mr Kettle's statement at page 1 of annexure A to his affidavit filed on 20 April 2007 as evidencing his resolve to continue to bring unmeritorious applications which, as such, should be regarded as a threat to continue to bring such applications:

My problem is not going to go away until it is resolved properly - in full compliance with the law including as to Procedural Fairness.

73Ms E referred to Mr Kettle's application filed on 23 May 2007 against her firm, X Lawyers (not against Ms Baker or Ms Green), which application was dismissed, as a prime example of Mr Kettle's filing and prosecution of frivolous and vexatious applications.  It will be recalled that this application was one prosecuted by Mr Kettle for the return to him by the solicitors of original documents, despite his acknowledgement during argument that the documents had been returned some six or seven weeks before the formal filing of the application on 23 May 2007, in circumstances where, although Mr Kettle said he lodged the application for filing before 12 April 2007, he nonetheless maintained its prosecution after 23 May 2007 until yesterday without any substance whatever.

74However, the law which binds me is as set out in the decision of the Full Court in Vlug v Poulos (1997) FLC 92-778 at 84,603:

… [T]he power in s 118 to order that a person shall not institute further proceedings without leave can only, in our view, be exercised where the Court has already dismissed or is simultaneously dismissing proceedings which it is satisfied are frivolous or vexatious instituted by the person (against whom the order is to be made). …

… [T]he Court must be satisfied before it exercises the power under s 118(1)(c) to prevent the institution of further proceedings, that the proceedings which are then before it (or have just been dismissed) are frivolous or vexatious. …

75Thus, as I stated in argument, in my view a clear line must be drawn between Mr Kettle's interim applications in the proceedings which are already now finalised (s 118 now being incapable of being applied in those proceedings) and his applications filed since those proceedings were finalised being the applications in which by way of responses the relief under s 118 and the Court's inherent jurisdiction is now sought.

76In short, having regard to the history of the matters before the final orders were made on 24 November 2006, s 118 or other similar relief could have been, but was not, sought in those proceedings while they were on foot.

77As final orders have now been made, Mr Kettle will be required to meet the Rice v Asplund test if he should seek further parenting orders which, because of the finalisation of the matters, could only be by way of fresh form 1 proceedings for final orders so that procedurally it is now impossible for him to seek such further interim parenting orders without filing a form 1 application which, as I have said, would need to meet the Rice v Asplund test.  That is to say, procedurally it is impossible for Mr Kettle to file further interim applications for parenting orders because there are currently no proceedings on foot for final parenting orders.  I recognise, as mentioned in the argument yesterday, that "parenting orders" is defined sufficiently widely to include matters relating to maintenance including child support.  However, Mr Kettle's current pursuits are wholly directed to appealing those orders rather than seeking fresh orders at first instance.

78As to the applications filed by Mr Kettle since the final orders were made, his applications for a stay of the orders pending appeal filed on 9 February 2007 were made when his appeals, instituted by his notices of appeal, were still on foot, his first two appeals being instituted on 20 December 2006, not being deemed abandoned until 21 March 2007, and his second round of appeals being instituted on 20 February 2007, not being deemed abandoned until 9 May 2007. 

79Whilst Mr Kettle's applications for a stay of the orders pending appeal were hopeless as there were no appeals on foot at the time the applications were heard and no applications on foot for permission to appeal out of time, I cannot regard them as frivolous or vexatious particularly as, as a litigant in person, Mr Kettle has made clear that he still intends, even now, to pursue the appeal process to the best of his ability.  His prospects may be nigh hopeless, as I explained yesterday in the course of dealing with his application for audio CDs of the trial, on the basis that he says he cannot afford to purchase the transcript of the trial.  The reality is, as has been pointed out to him in correspondence by the Northern Appeals Registrar, if he is at this stage to try to prosecute further appeals by seeking permission to appeal out of time, despite the last two sets of appeals being deemed abandoned, he is going to have to comply with the Rules by providing the transcript of the trial for the appeal book.  Otherwise, according to the Rules, his appeals (or proposed new appeals) cannot progress.

80However, regardless of these matters, his stay applications do not fall into the category of applications sought to be the subject of s 118 orders by these particular applications, because plainly enough they are not in the category of “further interim proceedings for parenting orders” and that is the narrow scope of the applications with which I am dealing.

81Mr Kettle's application for the purchase of the audio tapes has been successful. Thus, it cannot be regarded as frivolous or vexatious.  Moreover it too does not fall into the category of “further interim proceedings for parenting orders”. 

82Thus I am constrained by the principles referred to in Vlug v Poulos and am unable to conclude that the particular relief sought should be granted under s 118 and I will dismiss the applications for that relief.

83In short, Mr Kettle's applications in which s 118 relief is sought are not proceedings which are frivolous or vexatious, although in one respect, namely his applications for a stay of the orders of the Honourable Justice Bell made on 24 November 2006, he has failed. Moreover, the proceedings brought by Mr Kettle in which by response the s 118 relief was sought did not relate to interim proceedings for parenting orders, which is the scope of the particular s 118 relief sought.

84I turn now to the wider application by Ms Baker in the third response to which I have referred which seeks to restrain Mr Kettle without leave of the Court from instituting further proceedings including interim proceedings or from filing any appeal or taking any further actions or steps in any court in which Ms Baker is named as a party.

85In my view, the relief sought is too wide, for example "in any Court", and is thus bad on its face. 

86To the extent that the application may be read more narrowly however as meaning proceedings in this Court or the Federal Magistrates Court in which Ms Baker is a named party it must be borne in mind that Mr Kettle's application to which the response related was brought only against the firm X Lawyers, and not against Ms Baker at all.

87The application by the response thus cannot come within the category of cases referred to in Vlug v Poulos.

88I turn now, leaving aside s 118 completely, to the applications, by the responses to which I have referred, that Mr Kettle be declared a vexatious litigant.

89In relation to this aspect of the matter, I am not at all persuaded that the history of the matter should warrant, at this stage, such a draconian order with the consequences which attach to it.

90I have considered very carefully all of the material presented including Ms E's submissions and arguments, and the cautions expressed in the authorities.  See, for example, Vlug v Poulos at 84,608; and Re Attorney-General (Cth);Ex parte Skyring 135 ALR 29 at 31-32, per Kirby J.

91Having regard to all of the material, the submissions, and the authorities, it seems to me that:

(1)Many of Mr Kettle's several applications in the principal proceedings which were finalised by the orders made on 24 November 2006 may have been frivolous or vexatious, as to which I refer to the history of those applications in the material relied upon by Ms E and as outlined by her during argument;

(2)However, no application was made while those proceedings were on foot, as well could have been made, to have Mr Kettle then declared a vexatious litigant;

(3)Since those principal proceedings have been finalised, Mr Kettle has brought only one application in each proceeding, filed on 9 February 2007, in respect of which he had partial failure (his stay applications pending appeal) and partial success (his applications for the purchase of audio CDs); and one application against a firm of solicitors, which did not involve Ms Baker, Ms Green or their respective children;

(4)As those principal proceedings are now finalised, procedurally Mr Kettle cannot, in any event, bring any further interim proceedings or any proceedings other than as may relate to the appeal process;

(5)If Mr Kettle should seek to institute fresh proceedings by any form 1 application in relation to the children, he must pass the Rice v Asplund threshold test;

(6)All and any matters now relevant to any future appeal or permission to file a notice of appeal out of time necessarily are matters to be dealt with by the Appeal Division of this Court, and not the Trial Division;

(7)It would be inappropriate for me, as a Trial Division Judge, to make any orders which would restrain Mr Kettle's ability to make such applications to the Appeal Division as he may seek, which applications, if any, necessarily must be instituted in, and be decided by, the Appeal Division.  Plainly all such applications or appeals, if made, will be matters for the Appeal Division to hear and determine.

92In the result I will order in respect of all three responses that the restraint applications be dismissed.

RECORDED NOT TRANSCRIBED

93The second order then will be there be no order as to costs in relation to the applications for restraint.

Yes.  Thank you.  Now that finalises this phase.  As I said yesterday the contravention applications will be listed before the Honourable Justice Carmody on 31 July 2007.   You will receive orders setting that out.  The proceedings for the appointment of a trustee for sale will proceed before me on 5 September 2007.  And that takes care of all matters, does it not?  Very well.  Now, I did mention yesterday that to appoint a trustee for sale there must, of course, be a written consent of the trustee filed in the Court.  I am not going to make any directions about that.  But any further material to be relied on by either of you in relation to the proceedings before me on 5 September 2007, for the appointment of a trustee for sale, you really should think now about any further material, get it ready and file it and serve it promptly, so that there will be no risk of any applications for adjournment on that date. 

94I am sure that, Mr Kettle and Ms E, you clearly understand me.  Yes.  Thank you then for your attendance and assistance.  That concludes the proceedings.

MR KETTLE:  Thank you, your Honour.

MS E:  Thank you, your Honour.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly.

Associate: 

Date: