Bruyn, In the matter of an application for leave to issue process

[2007] HCATrans 743

[2007] HCATrans 743

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C6 of 2007

In the matter of –

an application for leave to issue process by JOHANNES BRUYN

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 2007, AT 9.32 AM

Copyright in the High Court of Australia

HER HONOUR:   This is an ex parte application for leave to issue a proceeding.   The process in question is an application for special leave to appeal to the High Court from an order made by the Full Court of the Family Court of Australia (Lindenmayer, Kay and Brown JJ) on 23 September 1998 in relation to property orders made by Finn J on 27 February 1998.

The appeal before the Full Court had been instituted by the applicant on 30 March 1998 and on 23 September 1998 the Full Court ordered:

1.That unless the husband provides the security for costs of the appeal in accordance with the order of the Honourable Justice Faulks of 19 May 1988 and files the necessary appeal books within 28 days of this date the appeals stand dismissed.

That is the order which is the subject of the present application.  After that order was made on 23 September 1998 the applicant made numerous applications to the Family Court of Australia, two of which led to applications for special leave to this Court.  The first of these was an application of 5 February 2004 for leave to appeal against the orders made by various judges in the Canberra Registry of the Family Court between 6 February 1995 and 10 November 1999.  That application included a ground of appeal applying to some 30 orders made by various judges of the Family Court, one of which was the order made by Faulks J on 19 May 1998. 

On 7 April 2004 Ellis J held that the applications could not be granted without the applicant also seeking an extension of time and adjourned the matter to allow the applicant to do that.  However, the applicant appealed to a Full Court of the Family Court (Warnick, May and Carmody JJ) which made orders on 20 October 2004 whereby an appeal and an application for leave to appeal were dismissed together with all ancillary applications.  The applicant’s application for special leave to appeal from those orders of that Full Court was refused with costs by Gleeson CJ and Gummow j on 26 May 2005. 

The second of the applicant’s applications to the Family Court which led to an application for special leave to this Court was an application filed on 21 June 2005 by which the applicant sought orders, in substance, that pursuant to section 79A of the Family Law Act 1975 (Cth) the judgment and orders for the disposition of property made by Finn J on 27 February 1998 be set aside. The allegations include allegations that the orders were procured by false evidence, fraud, conspiracy to pervert the course of justice and on other grounds.

That application was refused by Faulks J who ordered summary dismissal of the application.  His Honour concluded that the application was, in substance, frivolous and vexatious and his Honour made an order restraining the applicant from bring further proceedings about property without the leave of the Court.

On 21 June 2006 a Full Court of the Family Court (Bryant CJ, Kay and Boland JJ) dismissed an appeal from that judgment.  Attached to that Full Court’s reasons for judgment was an eight‑page chronology which particularised litigation from 31 January 1995 up to 21 June 2005.  On 22 May 2007 Kirby and Callinan JJ refused the applicant’s application for special leave to appeal from the judgment of that Full Court.

The applicant now seeks leave to issue an application for special leave to appeal from the order of the Full Court of 23 September 1998 set out above.  It is clear from the applicant’s affidavit dated 29 May 2007, filed in support of the present application, that the applicant wants another opportunity to reopen and have reassessed the property settlement ordered by Finn J on 27 February 1998.  In paragraph 14 of that affidavit the applicant states:

The applicant contends that the orders made by the Honourable Justice on 27 February 1998 imposed and continued to impose an unfair financial burden on the applicant and his new family and that the orders continue to impair the care, development and education of his children.

In paragraph 15 the applicant goes on to say that he is applying to once more file an application for special leave to appeal.  By various means and many applications the applicant’s complaints about the property settlement made by Finn J on 27 February 1998 have been addressed by the Family Court and, as explained above, there have been two applications for special leave to this Court which have been refused.

In all the circumstances, I am satisfied that the application which the applicant seeks to issue would, if issued, be an abuse of the process of the Court.  It contains no arguable grounds in support of the leave sought.  Leave to issue the process is therefore refused and I publish that disposition. 

Adjourn the Court.

AT 9.38 AM THE MATTER WAS CONCLUDED