Burns and O (A Solicitor)
[2010] FamCAFC 124
•2 July 2010
Family Court Of Australia
| BURNS & O (A SOLICITOR) | [2010] FamCAFC 124 |
| FAMILY LAW - APPLICATIONS IN AN APPEAL – LEAVE TO APPEAL – EXTENSION OF TIME TO FILE AN APPEAL – Various applications filed by the Applicant Wife relating to various orders made by the Family Court of Australia – Where there has been numerous procedural and interlocutory proceedings since the finalisation of the substantive proceedings – Where the Applicant filed numerous meaningless and unintelligible applications – Where the Applicant is contending that the reason for failing to file all of the applications in time is due to her incapacity by reason of her state of health – Where the Wife failed to provide any or any adequate explanation for the inordinate delay in filing her application – Where no submissions were made that demonstrated why leave should be granted – Where no injustice has been caused to the Wife and that it is necessary to bring to a conclusion the litigation that is currently before the Court – Where a great deal of the litigation has been without any foundation whatsoever and was frivolous and vexatious – All extant applications dismissed |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Westpac Banking Corporation v Aldred (1986) FLC 91-753 |
| Family Law Act 1975 (Cth) Magistrates’ Court Crimes (Family Violence) Act 1987 (Vic) Courts Procedures Rules 2006 (ACT) Family Law Rules 2004 Family Law Regulations 1984 |
| APPLICANT: | MS BURNS |
| RESPONDENT: | Ms O (a solicitor) |
| FILE NUMBER: | DGF | 284 | of | 2003 |
| MLC | 8968 | OF | 2007 |
| APPEAL NUMBER: | SA SA SA | 65 67 76 | of of of | 2009 2009 2009 |
| DATE DELIVERED: | 2 July 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 27 August, 11 & 18 September, 14 October 2009 & 4 March 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | Various |
| LOWER COURT MNC: | Various |
Representation
| THE APPLICANT: | Ms Burns in Person |
| THE RESPONDENT: | No Appearance |
Orders
The application filed by Ms Burns on 14 July 2009 seeking an extension of time to file an application for leave to appeal against orders made by Joske J on 10 March 2005, be dismissed.
The application filed by Ms Burns on 14 July 2009 seeking an extension of time to file an application for leave to appeal against orders made by Young J on 5 September 2005, be dismissed.
The application filed by Ms Burns on 22 July 2009 seeking a “Protection Order”, be dismissed.
The application filed by Ms Burns on 22 July 2009 seeking an extension of time in which to file an application for leave to appeal, be dismissed.
It be noted that the application in paragraph 4 hereof may relate to a judgment of Young J pronounced on 6 April 2009.
The application filed by Ms Burns on 24 August 2009 seeking an extension of time in which to file an application for leave to appeal against orders made by Wilzek J on 23 July 2003, be dismissed.
The application filed by Ms Burns on 26 August 2009 seeking, among other matters, an order for costs against Ms O and Mr CR, be dismissed.
The application filed by Ms Burns on 27 August 2009 seeking, among other matters, an order for costs against Ms O, be dismissed.
The application filed by Ms Burns on 12 October 2009 seeking an extension of time in which to file an application for leave to appeal against orders made by Cronin J on 21 August 2009, be dismissed.
The application filed by Ms Burns on 4 November 2009 seeking, among other matters, an order for costs against Ms O and for her children to be joined to the proceedings, be dismissed.
The application dated 10 November 2009 by Ms Burns seeking, among other matters, an order for costs against Ms O for outstanding medical expenses and for a valuation of various properties once owned by the Burns Family Trust, be dismissed.
The application dated 3 January 2010 by Ms Burns seeking, among other matters, that the Court enforce orders in relation to a report of Dr J and that the Court formally acknowledge the Wife’s address as property F, be dismissed.
The application filed by Ms Burns on 1 March 2010 seeking, among other matters, a report from Dr J, be dismissed.
The application filed by Ms Burns on 1 March 2010 seeking, among other matters, an extension of time to file an application for leave to appeal against orders made on 6 November 2009, be dismissed.
All extant applications as at 4 March 2010 filed by Ms Burns in the Family Court of Australia, Melbourne Registry, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Burns is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
.
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 65, 67 & 76 of 2009
File Number: DGF 284 of 2003 & MLC 8968 of 2007
| MS BURNS |
Applicant
And
| MS O |
Respondent
Reasons For Judgment
Introduction
Before me for hearing are various applications by Ms Burns (“the Wife”). It was difficult to identify with confidence precisely all of the relevant applications. However, the applications include the following:
· An application filed by the Wife on 14 July 2009 seeking an extension of time to file an application for leave to appeal against orders made by Joske J on 10 March 2005.
· An application filed by the Wife on 14 July 2009 seeking an extension of time to file an application for leave to appeal against orders made by Young J on 5 September 2005.
· An application filed by the Wife on 22 July 2009 seeking a “Protection Order”.
· An application filed by the Wife on 22 July 2009 seeking “an extension of time in which to file a Notice of Appeal out of time”. The application may relate to a judgment of Young J pronounced on 6 April 2009.
· An application filed by the Wife on 24 August 2009 seeking an extension of time in which to file an application for leave to appeal against orders made by Wilzek J on 23 July 2003.
· An application filed by the Wife on 26 August 2009 seeking, among other matters, an order for costs against Ms O and Mr CR.
· An application filed by the Wife on 27 August 2009 seeking, among other matters, an order for costs against Ms O.
· An application filed by the Wife on 12 October 2009 seeking an extension of time in which to file an application for leave to appeal against orders made by Cronin J on 21 August 2009.
· An application filed by the Wife on 4 November 2009 seeking, among other matters, an order for costs against Ms O and for the Wife’s children to be joined to the proceedings.
· An application dated 10 November 2009 by the Wife seeking, among other matters, an order for costs against Ms O for outstanding medical expenses and for a valuation of various properties once owned by the Burns Family Trust.
· An application dated 3 January 2010 by the Wife seeking, among other matters, that the Court enforce orders in relation to a report of Dr J and that the Court formally acknowledge the Wife’s address as property F.
· An application filed by the Wife on 1 March 2010 seeking, among other matters, an order requiring Dr J to file his report in the form of an affidavit by 3 March 2010 and an order providing the Wife time to file submissions in response to Dr J’s report.
· An application filed by the Wife on 1 March 2010 seeking, among other matters, an extension of time to file an application for leave to appeal orders made on 6 November 2009.
There were then at least four oral applications made to me during the hearing on 4 March 2010.
Background
The Wife was born in 1958. The Wife and Mr Burns were married in January 1983 and they separated in 1997. They were divorced in November 1998. I observe that in reasons for judgment delivered on 29 October 2004 by Faulks DCJ he said the Wife has three children. I understand that the children are now adults.
The Wife remarried in September 1999 to Mr Smith (“the Husband”) who was born in 1955.
I will hereafter attempt to identify and describe some of what has happened since the breakdown of the marriage of the Husband and the Wife in relation to proceedings between them. I am confident that what I will set out is not exhaustive of the extent of the litigation.
On 20 January 2003 an interim application was filed by the Husband in the Family Court. The application was listed before Wilczek J on 23 January 2003 and he made the following orders:
That upon the undertaking of the husband given through his to the Court that the husband will abide by any Order for damages which the Court may determine that the husband has suffered and is entitled to recover by reason of these Orders:
IT IS ORDERED
1. That until further Order, the wife be restrained from dissipating, disposing of, reducing the value of, transferring, selling, trading, further encumbering or in any way dealing with any assets in her possession or control including, but not limited to:
a)[property F];
b)[property C];
c)the company [NH Pty Ltd];
2. That until further Order the wife, in her capacity as Directress [sic] and Shareholder of the company [NH Pty Ltd] be restrained from dissipating, disposing of, reducing the value of, transferring, selling, trading, further encumbering or in any way dealing with any assets of the company [NH Pty Ltd] including, but not limited to [property C].
3. That until further Order, the wife either personally or via her servants or agents be restrained from further drawing down any funds from the Suncorp Banking Corporation in relation to professional asset loan statement number [ … ] which has a current debit of approximately $60,000.00 with a credit limit of approximately $322,600.00.
4. That until further Order, the wife either personally or via her servants or agents or in her capacity as Directress of the company [NH Pty Ltd] be restrained from drawing any further funds against the mortgage loan to the Bank of Melbourne which mortgage encumbers [property C], being Westpac mortgage number [ … ].
5. That the husband’s costs of an in connection with the present Application be reserved.
6. That the Solicitors for the husband forthwith serve upon the wife, the Bank of Melbourne and the Suncorp Banking Corporation a sealed copy of these Orders.
7. That within seven days from the date hereof, the husband file and serve a Form 3 Application and Financial Statement.
8. That the Solicitors for the husband as soon as practicable serve a sealed copy of these Orders, the information sheet, the husband’s Form 8 Application and Affidavit in Support filed 20th January, 2003 upon the wife from the date hereof.
9. That the husband’s Form 8 Application be otherwise returnable in the Judicial Duty List at 10am on the 10th February, 2003.
10. That there be general liberty to apply upon short notice.
11. That pursuant to Order 38 Rule 26 of the Family Law Rules, this matter reasonably required the attendance of Counsel.
It will be seen shortly that on 24 August 2009 the Wife filed an application for leave to appeal against the above orders.
I observe that in his reasons for judgment delivered on 29 October 2004 Faulks DCJ said:
4. This was a case in which it was difficult to work out what the pool of property was. There were a number of items for which there were no appropriate valuation [sic]. In addition the debt situation before, during and after the relationship was never clear. Ultimately I am obliged to make decisions on the evidence I have before me; not on assertion or denial by the parties.
5. Not only has the quantum of debt been difficult to ascertain; the reason for the debt has been a matter of great dispute. In essence the wife’s case is that orders which were obtained as she asserted (over and over again) “ex parte” by the husband on the 23rd January 2003 had the effect of limiting her ability to incur further debt or to have access to some of the assets of the parties. As a consequence she says her situation has deteriorated substantially. She asserts that she had always prided herself on being able to pay for things and that now she faced what was like “a life sentence” with bills that she cannot reasonably meet.
6. For his part the husband says through his counsel, Mr Davis, that the husband had no choice but to take proceedings to protect the assets of the parties. Whatever may have been the thought processes of the wife, her actions would have lead (it is suggested) any reasonable person to assume that she was engaged in dissipation of property or perhaps the incurring of debt which would have the effect of reducing the net value of the property. He points out (accurately) that the proceedings were not in fact ex parte although it is true that the initial orders were so made. After she was served with the relevant documentation, for whatever reason, the wife failed to oppose the orders and in the long run consented to them. This is a somewhat simplistic analysis of the situation as the wife was unquestionably under significant stress. (emphasis in original; footnotes omitted)
The Wife complains that she is still subject to the restraints imposed on her by the orders of Wilczek J in that she cannot obtain possession of items of personal property. I gather from paragraph 31 of an affidavit of the Wife sworn 12 October 2009 that she complains that the personal possessions may be located in a property at F. I do not understand this contention. The orders do not have the effect contended for by the Wife and, in any event, there is no evidence that at any time she applied for a variation or discharge of the orders. Further, the orders are now redundant in that the property described in Order 1 of the orders of Wilczek J was the subject of a property settlement order made by Faulks DCJ on 29 October 2005. Further, the Wife was subsequently made bankrupt and I understand that the property at F has been disposed of. The Wife attached to the affidavit a Complaint and Summons for an Intervention Order issued pursuant to the Magistrates’ Court Crimes (Family Violence) Act 1987 (Vic) on behalf of Mr P against the Wife in which it was contended that the property at F was purchased at auction having been repossessed by a bank. Mr P contended that he was the victim of a stalking offence by the Wife. I also understand that the Wife contends that the property at F was owned by a trust called the Burns Family Trust.
On 3 February 2003 proceedings for property settlement were commenced when an application for property settlement was filed by the Husband in the Family Court.
On 29 October 2004 Faulks DCJ, after a two day trial on 19 and 20 July 2004, delivered reasons for judgment and pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) made the following orders:
1. The parties and each of them will do such things as may be necessarily to transfer any interest the husband, [Mr Smith], may have in respect of the company known as [NH Pty Ltd] to the wife.
2. The wife will indemnify and keep the husband indemnified in respect of any liability to Suncorp or Westpac or in respect of any mortgage in relation to [property F] house referred to above or any other debt in her name.
3. The parties will do such things as may be necessary (if any) to transfer to the husband the Holden Club Sport motor vehicle and the Harley Davidson motorcycle in his possession or control.
4. On or before the expiration of 80 days from the date of this order the wife will pay to the husband the sum of $90,000.00 by way of property settlement.
5. If the wife should fail to pay the said sum within the period indicated then the husband will be constituted as trustee for sale of [property F] and will proceed to an orderly sale of such property. There be liberty to apply to the Court about the terms of such sale but such terms would include the agreement by the parties about a selling agent and the determination of the listing price. If the parties are unable to agree about these matters then the President of the Real Estate Institute for Victoria will nominate an agent for these purposes.
6. If the wife is unable or unwilling to pay the $90,000.00 referred to but wishes to cause to be sold [property C] rather than [property F] she will cause the property to be placed on the market as soon as practicable after these orders and in any event within 14 days. Provided that occurs and provided the wife takes all reasonable steps to ensure the orderly and reasonable sale of the property she may prior to the period of 80 days referred to above apply for an extension of time within which to pay the $90,000.00. Otherwise the default provisions relating to the sale of the [property at F] set out above will apply.
7. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
8. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
9. I direct that the matter be removed from the pending cases list.
In a letter dated 16 August 2009, which is attached to the affidavit the Wife swore on 12 October 2009, the Wife contended that the property at F, and the contents, is the property of ME Pty Ltd as trustee of the Burns Family Trust; the C property is the property of NH Pty Ltd as trustee of the Burns Trading Trust and that a business known as M Pty Ltd is the property of the Burns Family Trust and the Burns Trading Trust.
For the purposes of the property settlement proceedings the Husband and the Wife did not have significant assets. Faulks DCJ found that, excluding modest superannuation interests, the parties had assets of a gross value of $617,000.00 and liabilities at the date of the hearing of $244,260.00. However, he ultimately found that for the purposes of the proceedings the parties had net assets of $457,254.00.
In his reasons, Faulks DCJ said:
46. Standing back from this it seems that if the wife is able to establish some form of income stream she can draw down upon the line of credit she already has to discharge any obligation she may have to the husband. It means she retains the house and potentially the house [property C] but it would clearly be in her interest to sell that property and to use that to discharge her debts at least in part. The husband will receive in addition to the car and the Harley Davidson a further $90,000.00 which will enable him to begin to re-establish his career and accommodation to some extent.
The “house” that his Honour first referred to was the property at F.
Before me the Wife made constant and repeated reference to her state of health. For example, there are various letters or reports from Dr A and in one such document dated 24 September 2009, which is attached to the affidavit of the Wife sworn 12 October 2009, he said that the Wife “requires … assessment as to her mental health and ability to cope with impending court actions to hopefully rectify her position”.
On a number of occasions I gave the Wife the opportunity to explain the relevance of her state of health to the proceedings that are before the Court. I had difficulty understanding what relevance the Wife’s state of health has to the proceedings before me. In a letter dated 12 October 2009, a copy of which is also attached to the affidavit of the Wife sworn 12 October 2009, Dr A wrote to my Chambers and as the Wife’s “health advocate” requested “a delay in considering [the Wife’s] situation so that she may procure an up to date assessment with her psychiatrist”. It may be that the Wife was contending that she is unable to conduct the proceedings. However, at no time did the Wife or Dr A contend that the Wife required the appointment of a case guardian. At the hearing on 4 March 2010 the Wife contended that she previously suffered from depression but has now recovered. The Wife seemed to be suggesting that her previous condition prevented her from prosecuting her appeal against the order of Faulks DCJ.
I observe that in his reasons Faulks DCJ said:
2. It was a somewhat unusual case because of the wife’s emotional and at times discursive approach to the proceedings exemplified in her long affidavit which at times seemed to stray into areas not relevant to the proceedings. There is no doubt that she is quite ill with a number of ailments which not only make her life difficult but made her presentation of her case very difficult. She also harbours a serious sense of persecution and injustice and perhaps naturally enough tends to interpret things that happen to her as being directed against her and to automatically interpret decisions or events which operate against her as being unfair or inappropriately made or achieved. Her desperation for survival has meant that she has at times taken a somewhat cavalier approach to compliance with various orders made in the Court. This same desperation has caused her to enter significantly into debt.
…
8. Her illnesses which are complex, possibly mean that she is unable to work again.
During the further hearing before me on 4 March 2010 the Wife contended that at the time of the hearing before Faulks DCJ, she had “severe DSM-IV depression” and also had a “severe hearing impairment” (Transcript, 4 March 2010, p 18).
In accordance with the Family Law Rules 2004 (“the Rules”) the Wife had until late November 2004 to file without leave a notice of appeal against the order of Faulks DCJ. However, the Wife failed to do so.
On 14 February 2005 Faulks DCJ made the following orders:
1. [The Wife] may file an application for leave to appeal out of time on or before 4:00pm on the 28th February 2005.
2. Such rules as may be necessary for me to set aside are set aside for the purposes of enabling me to deal with the current applications and responses before me.
3. Until 4:00pm on the 28th February 2005 the enforcement of any of the orders made by me on the 29th October 2004 are stayed.
4. Any application either by [the Wife] or [Mr Smith] should be entertained by a judge in the Melbourne registry of this Court.
5. The costs of each of the parties of today’s proceedings and those associated with them before today are reserved.
On 10 March 2005 Joske J made the following orders:
IT IS ORDERED:
(1) That until further order the wife, her servants and agents, be and are hereby restrained from drawing any further moneys upon the Suncorp Professional Asset Loan account number [ … ].
IT IS DIRECTED:
(2) That the Proper Officer or Trustee of Suncorp Banking of G.P.O. Box 2198, Brisbane, Queensland, 4001 shall provide to the husband’s solicitors copies of statements and any other reasonable explanatory information requested by them in relation to the said Professional Asset Line account referred to in paragraph 1 of these Orders.
(3) That a copy of this Order be served upon the Chief Executive Officer of Suncorp Banking of G.P.O. Box 2198, Brisbane, Queensland, 4001.
IT IS FURTHER ORDERED:
(4) That the question of the husband’s costs of this day, which I fix in the sum of $495.00, be reserved.
(5) That general liberty to apply be reserved.
(6) That the further hearing of this application be adjourned to the Judicial Duty List at 10.00 a.m. on 14th April 2005.
It will be seen shortly that on 14 July 2009 the Wife filed an application for leave to appeal against the above orders.
During the further hearing before me on 4 March 2010, the Wife contended that at the time of the orders of Joske J of 10 March 2005 she was suffering with depression and was heavily medicated. She also said that at the time she was represented by Bayside Lawyers and her lawyers failed to attend court. The Wife contended that as a result of the orders “the children and I had no resources. That is no resources for food, or to pay the utilities, to pay any of the creditors. And as a result of that, I couldn’t go to work” (Transcript, 4 March 2010, p 17).
On 14 April 2005 Guest J made a number of orders including the following:
(1) That paragraph 1 of the Orders of the Honourable Justice Joske made on 10 March 2005 be varied to allow the wife to draw down the sum of $1,000 only and otherwise the said Orders of the 10th March 2005 remain in full force and effect.
(2) That the wife as soon as practicable serve a sealed copy of this Order upon the proper officer or Trustee of Suncorp Banking, GPO Box 2198, Brisbane, Queensland.
(3) That the husband’s costs in relation to the wife’s “first” Application (Form 2) filed on 17 March 2005 be fixed at $1,200 and payment of such costs be reserved for argument until the 29th April 2005.
(4) That paragraphs 1, 2 and 3 of the wife’s Application filed on 17 March 2005 be otherwise dismissed.
On 29 April 2005 Kay J made the following orders:
1. That the application for an extension of time to file a Notice of Appeal be adjourned to 31 May 2005.
2. That the wife file and serve any material she seeks to rely upon on or before 17 May 2005.
3. That the husband file and serve material in response on or before 27 May 2005.
4. That the enforcement of the orders made by the Honourable Justice Faulks on 28 October 2004 be stayed until the hearing and determination of the application for leave to extend time to appeal.
5. That paragraph 1 of the orders of the Honourable Justice Joske made on 10 March 2005 be varied to allow the wife to draw down a further sum of $2,000 only and otherwise the order of 10 March 2005 remain in full force and effect.
6. That the wife as soon as practicable serve a sealed copy of this order upon the proper officer or trustee of Suncorp Banking, GPO Box 2198, Brisbane, Qld.
7. That the wife within 10 days provide the husband with details of all movements in her line of credit with Suncorp since 10 March 2005.
8. That the wife pay $1,000 towards the husband’s costs of this day thrown away by reason of the adjournments.
9. That the husband’s ‘slip rule’ application contained in his response of 21 December 2004 is dismissed.
On 31 May 2005 Kay J made an order granting an extension of time to the Wife to file a notice of appeal against the property settlement order made by Faulks DCJ in October 2004. Kay J made an order that “the time for filing an appeal against the orders made by Deputy Chief Justice Faulks on 29 October 2004 be extended to 10 June 2005”. His Honour also made an order that the Wife pay $500 towards the Husband’s costs.
On 10 June 2005 the Wife filed a notice of appeal (SA 38 of 2005) against the order of Faulks DCJ. The Wife filed an amended notice of appeal on 8 August 2005. Her grounds of appeal were as follows:
1. That the learned Trial Judge erred in his findings that [the C property] and the bunsiness [sic], [MC Pty Ltd], formed part of the matrimonial asset pool.
2. That the learned Trial Judge erred in his findings relating to the Husband’s contribution to the matrimonial asset pool.
3. That the learned Trial Judge erred in his findings in relation to the Wife’s capacity to support herself and her children financially.
4. That the learned Trial Judge erred in failing to provide natural justice to the Wife in the course of the proceedings.
On 25 August 2005 the Wife filed an application in which she sought that she be permitted to withdraw a sum of $10,000 from the Suncorp Professional Asset Loan account referred to in the orders of Joske and Guest JJ.
On 5 September 2005 Young J heard the application of the Wife filed on 25 August 2005 and at the conclusion of the hearing delivered ex tempore reasons and made the following orders:
1. THAT the Form 2 application of the wife filed 25 August 2005 and the Form 2A response of the husband filed by leave this day be dismissed.
2. THAT any further interim application of the wife having a return date of 30 September 2005 be vacated and any such application be likewise dismissed.
3. THAT solely for the purposes of payment of the actual cost of transcript of the hearing before Faulks DCJ and pending the Full Court appeal the wife be entitled to draw down from Suncorp professional asset line account number [ … ] (“Suncorp”) a sum not to exceed Two Thousand Five Hundred Dollars ($2,500) and to this extent only the previous injunction pronounced by Joske J on 10 March 2005 be varied.
4. THAT a copy of this Order be forthwith served by the solicitors for each party upon Suncorp together with a letter indicating the permission of the Family Court to facilitate a draw down of no more than $2,500 for that specific purpose.
5. THAT the wife [Ms Burns] be and is hereby restrained until further order pursuant to s.118(1)(c) of the Family Law Act 1975 from instituting any other interim proceeding with the Family Court or Federal Magistrates Court without leave first obtained from a Registrar of the Court(s) but that nothing in this Order should in any way to impact upon her conduct or management of her Full Court Appeal now pending. (emphasis added)
6. THAT there be no order as to costs.
7. THAT the reasons for judgment be transcribed, be placed upon the Court file and be made available to the practitioners for each of the parties.
In ex tempore reasons for judgment delivered on 5 September 2005 Young J said:
1. The matter of [Smith v Burns], MLF 284 of 2003 comes before me in the judicial duty list. Mr McGregor, solicitor, now appears as the solicitor for the wife. [Ms O] appears as the solicitor for the husband. Both the husband and wife are in court, the wife of necessity to give instructions to Mr McGregor who has been recently retained by her to act on her behalf.
2. This matter has a lengthy history. I do not propose to fully detail the background of the matter save to observe that there is a judgment of the Deputy Chief Justice on property settlement and financial issues in July 2004 that has been delivered and is the subject of a Full Court appeal.
3. The various affidavits detail the orders that were made in July last year, the effect of which is for the wife to pay a lump sum of $90,000 to the husband.
4. The appeal process is continuing and the matter is listed now before his Honour Kay J at 2.15 this afternoon to determine procedural matters of and incidental to the hearing of the appeal, the amendments of grounds of appeal, the obtaining of a transcript and other like issues.
5. What is before me is an application that was filed by the wife on 25 August 2005, at a time when she acted for herself. She seeks to be permitted to withdraw a further sum of $10,000 from the Suncorp professional asset loan account. Those moneys are in addition to moneys that have already been drawn down by the wife and which currently, as at August this year, were close to $150,000 and which are increasing with interest and charges.
6. That application is opposed by the husband who seeks its dismissal and additionally seeks an order that the wife be declared to be a vexatious litigant and be prevented from making any further application to the court without first obtaining the prior leave of the court.
7. The wife relies upon her affidavit of 25 August 2005, which I have read. For the purposes of the transcript I indicate that I have put to one side, and not read and not relied upon, two more recent affidavits filed by her, one of an accountant [Mr H] and one of a prior solicitor Mr Stanley. Those affidavits seemingly go to the appeal issues. Whilst I have read the exhibits to the affidavit of [Mr H], I am not helped by them, given the financial years that they relate to and they are not directed to the wife's current allegation of her impoverished circumstances and financial needs.
8. The husband has filed a recent affidavit and earlier had filed and relied upon affidavits filed either by himself or his solicitor of 28 February 2005, 5 August 2005 and from December of last year. I have read those affidavits and the exhibits thereto.
9. I am also now aware of the background of this case, specifically of the orders made on 10 March of this year by Joske J and more recently the orders that were made by the Judicial Registrar Ramsden on 5 August 2005. On that occasion the Judicial Registrar heard from the wife in person and counsel then appearing for the husband and dismissed a like Form 2 application.
10. I have examined the application that was before the court on that occasion, which sought a stay of the order of Joske J and otherwise permission to draw down from the Suncorp account moneys needed by the wife to either repair damage occasioned to a property or otherwise for the payment of household accounts and living expenses. I do not have any extract of the reasons for the Judicial Registrar but the order is abundantly clear in that her application was then dismissed. If that be the case, within a matter of three weeks of the dismissal of that application a like application has been filed by the wife. That is a very relevant fact.
11. [Ms O] addressed the court on the basis that there have been a number of similar applications that have been made or intended to have been made by the wife, that the husband has been brought to court on numerous occasions by unwarranted applications, and she therefore seeks an order pursuant to section 118(1)(c) of the Family Law Act 1975.
12. The initial question to determine on the wife’s application to draw down funds is whether there has been any meaningful change in circumstances, of a financial nature, for the wife to justify a departure from prior orders. Clearly on an assessment of the affidavits filed by her in August and September, there is no meaningful difference.
13. The wife remains in what she says is a desperate financial situation. She has the obligation to meet outgoings for herself and her three children of a prior marriage, although two of those children are or should be financially independent because of their work or receipt of AusStudy. They are 20 and 21 years of age. There is however a 13‑year‑old child and the wife is responsible for the education and upbringing of that child.
14. In particular I am aware of the overall financial circumstances that are relevant in the hearing of the appeal. There is a dispute about the valuation of the wife's home. For the purposes of the hearing before the Deputy Chief Justice it was $425,000. I have no evidence in an acceptable form as to whether that valuation has increased or decreased.
15. What however I do know is that the debt encumbering the property has increased and that it is now approximately $150,000. I am also aware, because of material before the court, that there is a very real dispute that between judgment in July 2004 and February of this year a sum of approximately $63,000 was additionally drawn down upon that Suncorp account, it is said in contravention of orders of the court.
16. The current position is that the equity in the wife’s home, available by way of borrowings from Suncorp, has drastically reduced. I do not intend to determine that equity to the dollar, save to say that the husband, with the current order plus interest plus costs, may be able to recover a sum of approximately $120,000 or thereabouts from the wife. I do not make that as a formal finding because the arithmetic will have to be done in due course with precision. I merely have been alerted by [Ms O] to the fact that it is greater than the original sum as ordered in the section 79 proceedings.
17. The bottom line of this case is that the appeal hearing must proceed and be concluded. There is an issue of transcript and the costs thereof. The wife is said to have no available funds and the appeal will stagnate without transcript. Both parties have indicated to me that it is appropriate that there be a transcript, and of course that is not obtained by the court but by the appellant, in this case at her expense.
18. What I propose to do is to facilitate a drawdown of $2500 for the sole and exclusive purpose of the wife being able to pay for transcript. I adopt the figure of $2500 because that is what has been indicated by the solicitor appearing for the wife. The moneys can only be drawn and made payable direct to the transcript agency and not to the wife or any other individual or organisation nominated by the wife. The moneys can only be obtained by a drawdown from Suncorp upon receipt of a letter from the solicitors for both parties, agreeing on the amount which, unless they otherwise agree, cannot exceed $2500. Otherwise I will dismiss the application of the wife seeking any further moneys. In all of the circumstances of this case I conclude that this is a just and appropriate order.
19. The remaining issue then to be considered is the application before the court for the wife to be restrained from issuing any further proceedings, other, of course, than the Full Court appeal or matters of and related to the appeal.
His Honour then set out the terms of s 118(1)(c) of the Act and continued:
21. I propose to consider each of these available sources of power in determining a just and appropriate order. Additionally the court has an inherent power but, on the facts of this case, I prefer to proceed to evaluate the evidence and consider an order pursuant either to the available section or rule as I have identified.
22. The primary requirement of the court when exercising these powers is to act cautiously. The order must be fair and proper but it must also be balanced so as to protect the court and the other party from the harassment and cost of repeated proceedings.
23. The fundamental principal in common law is that parties have a right to unimpeded access to the courts. I balance that factor with the requirements of the legislation in determining the proper order.
24. The primary requirements under s.118 are that the application to prohibit further proceedings has been made by a party, as it has by the husband and otherwise that the court has already dismissed or, as I now propose to do, simultaneously dismiss the current interim application of the wife. Rule 11.04 does not have those limitations and the court may make an order pursuant to that sub-rule on its own initiative or upon request by a party.
25. Having regard to the facts and evidence in this case which satisfy the specific requirements of s.118 of the Act I propose to pronounce an order pursuant to that section and not pursuant to the Rules.
26. I find that it is doing justice to both the husband and the wife if I make an order restricting the wife from filing any other application without the leave of the court. That leave may be difficult to obtain. The wife must focus on her appeal, where the Deputy Chief Justice has in property proceedings determined a payment that in the circumstances before him was just and equitable. That really is the current issue and focus of the proceedings before the court.
27. I do not propose to make a costs order this day, given the order that I have made in relation to the transcript and releasing funds. I am conscious that the husband has been represented and has filed documents and I am trying to have this matter go forward. I will order that the reasons for this extempore judgment be transcribed, be made available to the parties and of course be placed on the court file.
It will be seen shortly that on 14 July 2009 the Wife filed an application for leave to appeal against the above orders. I assume that the Wife was also seeking to file an application for leave to appeal against the order made pursuant to s 118(1)(c) of the Act as such an order is an interlocutory order: Bemert & Swallow [2010] FamCAFC 100 (unreported, Coleman, May & O’Ryan JJ, 11 June 2010).
On 5 September 2005 Kay J made directions relating to the filing of appeal books. His Honour had also made directions on 15 August 2005.
On 14 October 2005 the appeal by the Wife against the orders made by Faulks DCJ was deemed abandoned as she had not filed the appeal books. Rule 22.56(1) of the Rules (which was applicable at the relevant time) provided that if by the date for compliance as fixed by the Rules or extended by an order an appellant did not file a pre-argument statement or the appeal books then the appeal was taken to be abandoned at the end of the 28th day after the date for compliance: see now r 22.21 of the Rules.
On 28 October 2005 the Wife was made bankrupt. During the hearing before me in 2009 the Wife informed me that she had not been discharged from bankruptcy. However, on 4 March 2010, in response to something I said, the Wife contended that she was discharged from bankruptcy on 15 November 2009. In passing, I note that the Wife is intending to bring assault proceedings against her trustee in bankruptcy.
On 17 November 2005 the Wife filed an application to reinstate her abandoned appeal (SA 38 of 2005).Rule 22.57(1) of the Rules (which was applicable at the relevant time) provided that a party may apply to have an appeal abandoned under r 22.56(1) reinstated. Section 94(2D)(c) of the Act (which was applicable at the relevant time) provided that an application to reinstate an appeal that was taken to have been abandoned under the Rules could be heard and determined by a Judge of the Appeal Division.
On 22 December 2005 the Wife’s application for reinstatement of the abandoned appeal was listed for hearing before Kay J who dismissed the application. In his reasons, his Honour said:
1. On 29 October 2004 Faulks J delivered judgment in proceedings between the husband and the wife in this matter. The wife was aggrieved by the orders that were made and sought to appeal them. After a series of some leave applications, eventually she filed an amended Notice of Appeal on 8 August 2005. There had been directions made relating to the filing of appeal books made by me on 15 August 2005, and I extended the date for the filing of the appeal books to 16 September 2005 on 5 September 2005.
2. The wife failed to comply with the directions, as a result of which, under the operation of the Family Law Rules, the appeal was deemed to be abandoned. Before me today is an application in which the wife seeks to have the appeal reinstated. The difficulty that she faces is that on 28 October 2005 she was declared bankrupt and her affairs are now in the hands of the trustee in bankruptcy, who has appeared before me today.
3. The husband, who opposes the application for reinstatement, relies upon a series of decisions of both the High Court and of this Court that would indicate that the wife has no locus standi to prosecute the appeal as a result of the sequestration of her estate. The husband is supported in submissions made on his behalf by the counsel appearing on behalf of the trustee in bankruptcy. In particular I have been referred to the Full Court decisions of this Court in Guirguis v Guirguis and the Official Trustee in Bankruptcy (1997) FLC 92-726 and O'Neill v O'Neill and Ors (1998) FLC 92-811 - that a bankrupt may not appeal in his or her own name unless he or she can show sufficient interest in the property the subject of the order.
4. The nature of this particular order is for the requirement of a payment of a sum of money to the husband, namely $90,000. In response the husband is obliged to transfer to the wife his interest, if any, in a piece of real estate which the wife says should not have been included in the proceedings in the first place. But there seems to me to be no basis upon which she can show personal benefit that would run to her rather than to her estate if any variation was made to the orders as a result of the appeal. The most she could hope for would be an order that would require a smaller sum due to the husband by her, if any sum at all.
5. In the circumstances, it seems to me that she has no locus standi presently to apply to reinstate the appeal and I must dismiss her application. She indicates, however, that there are a number of aspects relating to the bankruptcy which may require investigation, including the validity of the documents upon which the bankruptcy was pronounced and the sequestration took place, as well as the conduct of the petitioning creditor.
6. These are matters which should be sorted out by a court properly exercising the bankruptcy jurisdiction and, whilst the Family Court has now bankruptcy jurisdiction in proceedings where the trustee in bankruptcy is a party to the proceedings, the trustee is not a party to the proceedings presently before this Court, and it would seem more appropriate that the Federal Magistrates Court or some other court better versed in the intricacies of bankruptcy should deal with the issues at this time.
7. In the circumstances I dismiss the application brought today on behalf of the wife, but in so doing that should be seen as not intending to prejudice any further application she might want to bring should she regain sufficient status to be able to bring an application in her own right rather than have to rely upon the trustee in bankruptcy to determine whether or not an appeal should continue.
8. The formal order of the court will be:
1. That the application filed 17 November 2005 be dismissed.
9. That application also seeks an order to annul the bankruptcy and sequestration of any property or assets, an order for a review under the Judiciary Act 1903 and an order to allow [NH Pty Ltd] trading as the [Burns Trading Trust] to become a party. None of those orders seem to me to be appropriate to the problems that I have already discussed. Any relief relating to bankruptcy should be sought elsewhere, and I do not understand the import of orders 3 and 4 in the circumstances of the nature of the proceedings before this Court, which is an appeal against an order made in the first instance in proceedings between the husband and the wife.
I observe that although by reason of s 94(2F) of the Act no appeal lies under s 94 from an order or decision made under s 94(2D), the Wife did not seek any relief from the order of Kay J. As at 4 March 2010 the Wife had not made a further application for reinstatement of her appeal against the order of Faulks DCJ.
I also observe that during the hearing on 4 March 2010 it was my impression that the Wife was contending that her failure to comply with all orders and directions in relation to her proposed notice of appeal against the property settlement order of Faulks DCJ was the fault of her then solicitors.
On 10 August 2007 the Husband filed a divorce application in the Federal Magistrates Court and an application in a case in the Family Court. The application filed in the Family Court was withdrawn when it came before Carter J on 10 September 2007. The divorce application was heard on 25 September 2007 and a divorce was granted.
On 19 February 2008 the Wife filed an application in a case which was dismissed by Faulks DCJ on 3 March 2008.
During the further hearing on 4 March 2010 the Wife informed me that on 10 June 2008 she ceased occupancy of the property at F. As a result of discussion with the Wife it is my understanding that the property at F was seized by either the Wife’s trustee in bankruptcy or a secured creditor and that the property has been sold.
During the further hearing on 4 March 2010 the Wife informed me that on 26 July 2008 she was assaulted by her trustee in bankruptcy.
On 5 March 2009 an application in a case was filed by the Wife in which she sought the following orders:
1. That there be an order made for members of [Burns Family Trust] or Assistant [Mr W] to be able to carry out a search and discovery for possessions, goods and chattels at [property F] and make a report to Police in accordance with instructions given from the Commissioner.
2. That an Order be made restraining [Mr. M] and his lawyers Kahns from acting.
3. That an order be made for the trusts monies from the sale of any assets to be transferred into the trust account opened with Westpac.
4. That an Order be made that [Mr P] must give [Burns Family Trust] possession of [property F] within a period of two months.
5. An Order to join [Burns Family Trust] and [Mr W] to proceedings.
6. An Order for Costs against the solicitors and [Mr Smith].
I observe that during the further hearing before me on 4 March 2010 the Wife contended that as a result of Ms O, who was a solicitor for the Husband, refusing to provide the Wife with funds which the Wife contended she was entitled to receive pursuant to the orders of Young J of 5 September 2005, the Wife was unable to acquire the transcript of the hearing before Faulks DCJ in October 2004. The Wife, however, said that Faulks DCJ agreed that the Wife could receive the “CD’s in CD format” so that the Wife could “put a headset on and listen to them”. The Wife said the CD’s were made available and that they were in “a fortified place inside [the F property], together with all my transcripts, legal paperwork, official documents, such as passports and all that sort of thing, birth certificates, commercial documents, banking documents, cheque books” and that the owner of the property through his lawyer refused the Wife or any other party to obtain access to the documents. Again, it was very difficult to understand precisely what the Wife was contending. However, it may be that what she was suggesting was that there were various items of property including recordings of the transcript of the hearing before Faulks DCJ that were in the property at F at the time when the Wife ceased occupancy of that property and that she has been unable to obtain those items. Again, I have great difficulty understanding the relevance of this complaint because if it were true, there would have been nothing preventing the Wife from commencing proceedings in another court seeking the delivery up to her of her property.
On 12 March 2009 an application was filed by the Burns Family Trust. On 1 April 2009 an application was filed by Mr W.
The above applications were listed before Young J on 6 April 2009 and on that day his Honour delivered ex tempore reasons and made the following orders:
1. THAT the application of the wife filed 5 March 2009 and 12 March 2009 be dismissed.
2. THAT the application of [Mr W] filed 1 April 2009 be dismissed.
3. THAT there be no order as to costs.
4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.
In his reasons for judgment, Young J said:
1. The matter of [Smith and Burns] and others is before me in the Judicial Duty List. [Ms Burns] purports to appear for herself. [Ms C], solicitor, appears for [Mr M], the trustee in bankruptcy of the wife's estate. [Mr W] has filed an application on 1 April 2009 and initially proposed to seek leave to appear somewhat as an adjunct to the wife's application. There has been no appearance by or on behalf of the husband, but his solicitor, [Ms O], has this day filed an affidavit indicating that she has no instructions to act on behalf of the husband and will not be at court and nor would the husband be at court. She recorded that the wife is an undischarged bankrupt and in any event is a vexatious litigant, having been so declared by myself on 5 September 2005. Those matters are not a matter of dispute.
2. The first application of the wife was filed by her on 5 March 2009. In that application she sought - and I have given her the opportunity to explain to the court - initially leave to reopen the case, and thereafter - and very much the core of the complaint of the wife - to stay the distribution of funds from the sale of the property at [F]. I will deal with those matters in a moment. The second application by the wife was filed by her on 12 March 2009. This application sought an order for a member of the [Burns Family Trust] to carry out a search for possessions, goods and chattels at the [F property].
3. [Mr W] filed an application on 1 April 2009, as I referred to, seeking permission to file fresh applications and for an order that he be appointed (in summary) as an assistant to [Ms R] and a Family Trust and otherwise to be involved on behalf of others in the court proceedings. The affidavit of [Mr W] and the accompanying exhibits and documents that traverse many, many years past are before the court.
4. The position of [Ms C] on behalf of the trustee is that the wife should have no right of audience because she is an undischarged bankrupt, that the trustee is dealing with the wife's estate, that all of her and [Mr W]’s applications are misguided and wholly inappropriate.
5. An overview of this matter is difficult to fully understand because the court files and boxes of documents are in archives and this matter has been before the court for a very lengthy time. What is clear and is a matter of agreement between all parties is that the section 79 proceedings were heard and determined by the Deputy Chief Justice Faulks in October 2004. Thereafter an appeal was discontinued, although the wife has clearly today indicated that part of the grounds was the inability for her to be paid $2,500 to obtain transcript and to appeal.
6. I have been referred to paragraph 18 of my extempore reasons for judgment pronounced 9 September 2005 and I do understand that issue. Subsequently, however, the matter came before Kay J in December 2005 who dealt with the appeal issues and finalised matters.
7. From what I have heard from the bar table there have been proceedings in various tribunals and courts. There are currently proceedings in the Federal Magistrates Court within its bankruptcy jurisdiction. The wife's original three‑year bankruptcy has been extended by a further three years by court order, pursuant to an objection lodged on discharge application. Otherwise there have been various proceedings in respect of the home at [F], the subject of these proceedings.
8. As best I can understand, and after much difficulty, that home was sold at public auction pursuant to the court orders. An arm's length purchaser with no part in the proceedings purchased the property - he is not here today and has never been served - but effectively orders are sought to re-enter the property and to search and obtain documents, assets or whatever. I do not fully understand.
9. [Ms C] has made it clear that there was enormous difficulty involved with the sale and thereafter obtaining possession of the property from the wife or those on her behalf and there have been various orders involving the Sheriff and others to obtain possession and/or to give time for the home to be assessed and/or furniture or other items removed. I am sure this matter has a very long and detailed history and seemingly it is far from wholly resolved.
10. I, however, only have to deal with matters before the court. The wife's starting point is she has no right of audience, as her trustee in bankruptcy is required to speak on her behalf. I certainly will not grant leave to her to appear and oppose orders now sought by the trustee and there is no reason to discharge orders that have been earlier made in the court.
11. As to [Mr W], I have had a fairly blunt but polite discussion with him. He has wholly misunderstood his role and is misguided, both in his application and/or his right of audience. He is not a legal practitioner. He appears as a respected member of the community who has received an Australian medal (OAM) for services to the community, but he knows little or nothing of the facts of this case that he is asked to put forward matters which were clearly prepared by others. He should not be here and his application has no logic or merit and certainly not content, and I will dismiss that application.
12. The reality is that this matter is not properly before the Family Court, it is before the Federal Magistrates Court, in another jurisdiction. There are no current issues before this court. It seems as if a cause long, long ago dealt with by the court and which should have been finalised years ago, still remains part of the ongoing crusade of the wife. I cannot imagine anything I say will ever change that reality but it is costing the community and others time and money. There is no legal merit, commonsense or appropriateness in any of the matters in the application of the wife or of [Mr W] and they will be now dismissed.
13. [Ms C], on behalf of the trustees, was tempted to float an application for costs but in the circumstances of the wife, that would not be just on this occasion and would be unsuccessful. I would certainly not entertain a costs order against [Mr W] who has come here out of community spirit to assist the wife, but I have stressed to him that he needs to immediately and sensibly reassess his involvement in this case and that I am sure he will do.
14. I will have these reasons transcribed, put upon the court file and made available to the parties. There is no further action that I can take in relation to paragraph 18 of my earlier reasons for judgment of 5 September 2005 and any such moneys would have fallen to the trustee in bankruptcy to distribute or deal with. In any event, the appeal is long out of time and has been dealt with by Kay J when he was a member of that Appeal Court.
It will be seen shortly that on 22 July 2009 the Wife filed an application which I believe related to the judgment of Young J of 6 April 2009. During the further hearing before me on 4 March 2010 the Wife made submissions in relation to the application and made a contention that she had suffered procedural unfairness. In any event, she went on to say in relation to the judgment: “I can and will, if allowed by the court, provide evidence to uphold my claims” (Transcript, 4 March 2010, p 27). One of the aspects of the various applications of the Wife is that on numerous occasions she contended that she could provide further evidence.
On 14 July 2009 an application in an appeal was filed by the Wife in proceedings SA 65 of 2009. The Wife seeks the following:
1. That the Wife may file an application for leave to appeal out of time on or before 4.00 pm, Friday 24 July 2009.
2. Such rules as may be necessary to set aside the orders are set aside for the purposes of enabling the Wife to Appeal the Orders of Joske J.
3. That the enforcement of any Orders made by the Courts are stayed.
4. The costs of each of the parties and those associated with them are to be paid by the respondent solicitor.
5. The [sic] there be an Order to join to the proceedings the Wife’s son [S] and any family member of the Wife who has interest in the proceedings.
6. That there be a Protection Order made in favor [sic] of the Wife and her immediate family members.
S, who is the Wife’s son, was named as the second applicant. The respondent is Ms O who is the principal solicitor of the law firm Ms O & Co. Ms O acted for the Husband in earlier proceedings.
On 14 July 2009 the Wife filed an affidavit which she swore on 10 July 2009. I believe that the affidavit was in support of the application in an appeal filed on the same day. However, in the affidavit the Wife appeared to be complaining about the orders made by Young J on 5 September 2005 even though the application in an appeal filed on 14 July 2009 appeared to be complaining about the orders made by Joske J.
On 14 July 2009 a notice of appeal was filed on behalf of the Wife and S in which leave was sought to appeal against the orders made by Young J on 5 September 2005. The respondent is Ms O.
In that part of the notice of appeal where it is necessary to state briefly the facts relied on, in support of the application for leave and which establish an error of principle or a substantial injustice, the Wife contended: “The solicitors breached Orders of the Honourable Justice Young of 5 September 2005 for the Wife’s pending full [sic] Court Appeal for the actual costs of the transcript of the hearing before the Honourable Deputy Chief Justice Faulks”.
The grounds of appeal specified in the notice of appeal are as follows:
1. That [Ms O] the solicitor for the respondent husband grossly misled the Court, which constituted a denial of natural justice to the Wife and her children.
2. As to the merits of the case the judge has made an error in law taking into account property which is the trusts as a result of the former matrimonial property settlement with my former husband.
3. That Suncorp Professional Asset Line Account (“Suncorp”) did not facilitate the Wife’s entitlement to draw down from Suncorp professional line account number [ … ] the monies solely for the purposes of payment of the actual cost of transcript of the hearing before the Honourable Deputy Chief Justice Faulks and pending Full Court appeal the Wife be entitled (“the Wife”).
In the event that the appeal succeeds the Wife seeks: “That there be a just and equitable division of the matrimonial property”.
On 15 July 2009 the Wife filed an affidavit (SA 65 of 2009) that she swore on 13 July 2009.
On 22 July 2009 an application in an appeal (SA 67 of 2009) was filed by the Wife in which she sought the following:
1. I seek permission from this Honourable Court for a Protection Order
2. That the wife be granted leave to file a Police Report and any new material to be relied on.
3. That the wife be granted an extension of time in which to file and lodge a Notice of Appeal out of time.
4. An Order to transfer property to the Trust
In “Part C” of the form of the application where the applicant marks what type of orders are being sought, the Wife ticked all the boxes available and further stated that she sought an “order to have the matter transferred to another Registry. Thank you”. I observe that S is also named as an applicant. During the hearing on 4 March 2010 the Wife informed me that she made the application for the benefit of her son. She said something about needing to protect her son.
On 22 July 2009 an application in an appeal (SA 67 of 2009) was filed by the Wife in which she sought the following:
1. Because of the nature of this matter that I am concerned with my health and safety and for the health and safety of my children and one grandchild. Therefore I seek permission from this Honourable Court for a Protection Order.
2. That the Wife be granted leave to file a Police Report and any new material to be relied on.
3. That the Wife be granted an extension of time in which to file and lodge a Notice of Appeal out of time.
4. That there be an order to transfer property to the Trust so to provide always that nothing herein contained shall be construed or operate so as to affect the beneficial entitlement to any amount set aside for any beneficiary of the said Deed of Settlement prior to the date of the variation hereby effected between [Mr Burns], Gentleman, [Ms Burns], Married Woman, both of [property F] in the State of Victoria, the children born or as yet unborn of the said [Mr Burns] and the children born of the said [Ms Burns].
In “Part C” of the form of the application where the applicant marks what type of orders are being sought the Wife ticked all the boxes available. I also observe that S is named as an applicant. The respondent is Ms O.
During the further hearing before me on 4 March 2010 the Wife contended that the application filed on 27 July 2009 for a protection order was for the benefit of her son S (Transcript, 4 March 2010, p 25).
On 22 July 2009 the Wife filed an affidavit she swore on 27 June 2009 (SA 67 of 2009). In the affidavit the Wife made various allegations which I will not repeat. The Wife attached a number of documents from medical practitioners including from a Gastroenterologist.
The Wife provided two “Proposed” notice’s of appeal with the above application. They have both been stamped as being filed on 22 July 2009. In “Proposed Notice of Appeal 1” (SA 67 of 2009) the Wife is seeking leave to appeal against the orders of Young J made on 6 April 2009. The named respondent is the Husband.
In that part of the “Proposed Notice of Appeal 1” where it is necessary to state briefly the facts relied on in support of the application for leave, and which establish an error of principle or a substantial injustice, the Wife contended:
1. Denial of natural justice
2. Error in law
3. Misunderstood the facts
In “Proposed Notice of Appeal 1” the grounds of appeal are as follows:
1. The trial before the Honourable Justice Faulks proceeded substantially on the evidence of the Husband, in particular, the evidence contained in the husband’s Affidavit filed at Melbourne on 28 May 2004.
2. Because of significant errors of fact in the Husband’s evidence, the decision of His Honour was fatally flawed and the orders made by His Honour were unjust.
3. The husband and his solicitor failed to do Justice Faulks Orders.
4. The husbands solicitor failed to do Justice Young’s Orders.
5. The wife and [Mr W] are hearing impaired and not connected to the loop.
6. Documentation of vital relevance to the Wife’s case was withheld.
In the event that “Proposed Notice of Appeal 1” succeeds the Wife seeks an order “that the wife and any of her children take up residence at [the F property]”.
In “Proposed Notice of Appeal 2” (SA 67 of 2009) the Wife is also seeking leave to appeal against the orders of Young J made on 6 April 2009. The named respondent is the Husband.
The Wife stated in the “Proposed Notice of Appeal 2” (SA 67 of 2009) that she was seeking leave to appeal and in that part of the notice of appeal where it is necessary to state briefly the facts relied on in support of the application for leave, and which establish an error of principle or a substantial injustice, the Wife contended:
1. Denial of natural justice
2. Error in law
3. Misunderstood the facts
In “Proposed Notice of Appeal 2” (SA 67 of 2009) the grounds of appeal are:
1. That the Honourable Judge erred in neglecting the wife and her children. The Court neglected to provide the wife with the relevant paperwork in time for the hearing.
2. That within the property situated at and known as [F property] [Mr P] has a hold on the wife, her children, paperwork, and their possessions.
3. That the wife was limited in treating it with extraordinary aptness.
4. The wife and [Mr. W] have hearing loss and were not connected to the hearing loop during the hearing. The wife and [Mr. W] were unable to completely follow the proceedings or properly conduct their case.
5. The wife’s surgeon has requested the wife get access to her house [at F]. This is of some medical importance as she needs some medical procedures performed.
6. That the arbitrary judgment repressed the wife. The breach of Orders the wife was not permitted to question. The wife was prejudiced by the husband, solicitors, and one barrister who misled the Court.
7. That the Honourable Judge erred by misdirecting the wife in giving her the wrong information.
8. The wife’s standing is established and enshrined in matrimonial law. The matter is of transcendental importance, especially in the present state.
In the event that the appeal is successful the Wife seeks an order: “[T]hat the wife and any of her children take up residence at [the F property]”.
I observe that in a number of applications the Wife has stated that in the event that if her application was successful she is seeking an outcome whereby she can resume residence in the property at F. As I have also observed, the Wife ceased residing in this property during 2008 and it has now been sold. During the further hearing on 4 March 2010, I enquired of the Wife as to how she contended she would be able if successful to obtain this F property. It became apparent to me during the discussion that the Wife has no understanding of the foundation of any of the relief that she is seeking (Transcript, 4 March 2010, pp 18 to 20). Ultimately, I said: “I will put on the record you are unable to articulate for me a legal foundation for any claim” (Transcript, 4 March 2010, p 20).
On 23 July 2009 an application in a case was filed by the Wife. On 31 July 2009 another application in a case was filed by the Wife. On 3 August 2009 a further application in a case was filed by the Wife.
The applications filed by the Wife on 23 July 2009, 31 July 2009 and 3 August 2009 were listed for hearing before Cronin J on 21 August 2009.
On or about 16 August 2009 the Wife delivered to the Court a notice of appeal in which she seeks to appeal against orders made by Wilczek J on 23 January 2003. The grounds of appeal are:
1. The property known as [property F] is not part of the matrimonial property pool.
2. The property known as [property C] is not part of the matrimonial property pool.
3. The orders made before the Honourable Justice Wilczek the 23rd DAY of January, 2003 constituted a denial of natural justice to the Wife her children and the business (“the business”).
In the event that the appeal is successful the Wife seeks the following orders:
1. That by Order of this Honourable Court the Orders made before the Honorable [sic] Justice Wilczek made on the 23rd DAY OF January, 2003 be overturned.
2. That upon the undertaking of the husband given through his [sic] to the Court the husband abide by any Order for damages which the Court may determine that the Wife has suffered and is entitled to recover by reason of these Orders.
3. That the enforcement of any of the Orders made in the Family Court of Australia, Federal Magistrates Court, and Federal Court be stayed to allow the Wife time for an application for leave to extend time to appeal.
4. An Order for [Mr P]’s attendance to the Court of Appeal.
5. That this Honourable Court consider Costs against lawyers for past applications and current applications, as per letter 14 March 2003.
6. That a clean sealed copy of these Orders, be served upon the banks.
The respondent to the notice of appeal is Ms O.
On 21 August 2009 there was no appearance by or on behalf of the Wife and Cronin J dismissed the applications of the Wife and delivered brief ex tempore reasons. His Honour said:
1. Pursuant to an order of Young J in 2005, [Ms Burns] was prohibited from issuing any proceedings pursuant to section 118 of the Family Law Act without leave of a registrar. I have before me today three applications in a case filed by [Ms Burns]: one filed on 23 July; the second I am not sure about, but it is dated 31 July; and a third one filed on 3 August. I have also this morning been given a letter that has been faxed to the court at 7.30 pm last night, purporting to be from [Ms Burns], in which she indicated that she wants to adjourn today’s hearing to bring further applications, including an application that is referred to in the documents.
2. She says in the letter that she has spoken to someone and that a lawyer explained that certain things have to occur. The difficulty in me simply adjourning the matter is that I have no idea to what date the matter could be adjourned, and unless the documents were any different from what they are at the moment, the applications could not possibly succeed. As I said, there are three applications and I will not deal with them in detail, save that the first relates to a review of an order made by Joske J on 10 March 2005. It also seeks to join a child as a party and another order in relation to a solicitor.
3. That application is supported by an affidavit. The affidavit is unintelligible. There is no basis on the evidence that I could make that order at this stage.
4. A second application seeks:
That there be a stay of orders both made in the Family Court and Federal Magistrates Court to enable the wife to come forward.
5. That is also supported by an affidavit which is unintelligible.
6. A third application seeks an order to overcome the problem created by section 118. That is also supported by an affidavit which is unintelligible.
7. In the circumstances, there is little point in me adjourning the proceedings. If, in fact, [Ms Burns] is going to seek legal advice or take some other course of action, then there is no reason why she cannot file proper applications in intelligible form.
It would be observed shortly that on about 12 October 2009 the Wife filed a notice of appeal in which she sought leave to appeal against the orders made by Cronin J on 21 August 2009. During the further hearing before me on 4 March 2010 the Wife contended that she had a medical certificate which she forwarded to the Court and that had Cronin J had the information in front of him, “perhaps he would have granted an adjournment, which, to my mind, would have been a fair decision, and that’s the reason why I would like to appeal Cronin J’s orders” (Transcript, 4 March 2010, pp 29 to 30).
On 24 August 2009 an application in an appeal (SA 76 of 2009) was filed by the Wife in which she seeks the following orders:
1. That the time for filing an appeal against the orders made by the Honourable Justice Wilczek on 23 DAY of January, 2003 be extended to a date appointed by the court.
2. That the Respondent [Ms O] pay up front the Wife’s costs associated with this appeal application for the Wife to engage solicitors and barristers of her choosing.
3. That the enforcement of the orders made by the Family Court, Federal Magistrates Court and Federal Court be stayed.
4. That the Wife’s “first” appeal application and “second” appeal application be adjourned pending the outcome of this “new” appeal.
5. That the Wife file and serve any material she seeks to rely upon on or before a date appointed by the court, and access [property F].
The respondent is Ms O.
On 24 August 2009 the Wife filed an affidavit she swore on 19 August 2009 in support of the application filed on 24 August 2009.
On 26 August 2009 the Wife sent to the Court by facsimile transmission an application in an appeal in which seeks the following orders:
1. That the Court consider costs Orders against lawyers [Ms O] and [Mr CR] for the Wife to pay for solicitors and barristers to run appeal.
2. An Order for the valuation of all assets relating to this matter including the unauthorised disposal of property noted by the Court.
3. An Order to quantify damages resulting from Bayside Solicitors failure to file the wife’s Notice of Appeal by the deadline and by reason of the breach of the retainer and or negligence of Bayside, the Wife has suffered loss & damage.
4. An Order for [Mr P]’s attendance to the Court.
5. An Order for [Mr D]’s attendance to the Court.
The respondents to the application are Ms O and Mr CR.
The Wife also sent to the Court by facsimile an affidavit sworn by her on 25 August 2009.
The Wife handed up in Court on 27 August 2009 an application in a case dated 20 August 2009 and she seeks the following orders:
1. That there be an Order for the Wife to seek leave to file her application.
2. That the time for filing an appeal against the orders made by the Court in the Orders referred to in the case notes made by [Ms O] on 23/1/03 be extended to a date specified by the court.
3. That an Order be made for the wife to file an application for costs upfront against lawyer [Ms O] for potential conflict of interest in acting in this matter.
4. That any material the Wife seeks to rely upon for her application for costs she may file.
5. That there be an Order to subpoena [Mr P] before the Family Court of Australia Melbourne.
6. That the respondent pay the Wife’s costs of this day, and a copy of these orders be sent to the Wife’s bank.
The Wife also handed up an affidavit sworn on 20 August 2009 in which she discusses the steps she has taken to get legal advice in relation to her appeals.
On 27 August 2009 the applications in relation to appeals SA 65 of 2009 and SA 67 of 2009 were listed before me for hearing. I adjourned the hearing to 11 September 2009.
At my request the Southern Appeals Registrar prepared for the Wife an appeal book containing relevant documents.
On 7 September 2009 the Eastern Appeals Registry of the Family Court in Sydney received a notice of appeal by the Wife seeking to appeal against the orders of Cronin J made on 21 August 2009. The notice of appeal was returned to the Wife as the order of Cronin J was made in the “Southern region” and needed to be filed with the Southern Appeals Registry in Melbourne.
On 10 September 2009 the Wife sent to the Court by facsimile transmission an affidavit. In this affidavit the Wife sought to explain why she has been unable to obtain documents and correspondence the Court has sent her; why she has been unable to receive any phone calls on the numbers she has provided the Court; and how she has attempted and failed on numerous occasions to contact the Court by facsimile transmission.
On 11 September 2009 the hearing resumed before me. The Wife appeared by telephone conference facility from the Family Court Registry in Melbourne as I was sitting in the Sydney Registry of the Court. I attempted to work out what applications the Wife was seeking be heard and she listed a number of documents, including what I have mentioned above in appeals number SA 65, SA 67 and SA 76 of 2009. The Wife also mentioned during this hearing that there was another application that she wished to put before the Court which related to orders made by Cronin J on 21 August 2009. As stated above, the Wife attempted to file a notice of appeal in the Eastern Appeals Registry in relation to the orders made by Cronin J but it was rejected as the orders were made in the Southern Appeal Registry area and needed to be filed in the Southern Appeals Registry in Melbourne.
During the hearing on 11 September 2009 the Wife sought an adjournment for three reasons. First, that her hearing aids had been “withheld”. Second, she had to care for her elderly mother who had recently had an operation. Third, she has had trouble gaining access to documents relevant to her proceedings. At the end of the hearing I adjourned all “extant applications” for hearing on 18 September 2009.
On 15 September 2009 a facsimile transmission was received by the Southern Appeal Registry from Dr A. In the facsimile Dr A stated that he has been the Wife’s General Practitioner and has “been involved in her care over the last 6 years”. Dr A believes there are “exceptional circumstances” and he advised that in his opinion:
1) The Court should set aside Fridays hearing for a maximum of 14 days and a minimum of 7 days from this coming Friday 18 September 2009 in order for
2) [Ms Burns] to be evaluated by [Dr RJ] psychiatrist in order for him to feel confident that [Ms Burns] is in a satisfactory state to cope with proceedings and able to defend her position. I would like to avoid her suffering any further violation of her legal rights and standing.
3) I would like [Dr RJ] to supply a new report on the impact and effect of the confronting and traumatic events of the past 6 years and be in a position to provide evidence.
After receiving this correspondence, the Appeals Registrar then forwarded a letter to the Wife, with a copy of the facsimile received from Dr A, explaining that if she requested an adjournment of the hearing before me on 18 September 2009 then it could not be dealt with administratively and she should seek an order on that day.
On 17 September 2009 the Wife filed an application in an appeal seeking the following orders:
1. An order from this Honourable Court to set aside Friday’s hearing for a maximum of 14 days and a minimum of 7 days from this coming Friday 18 September 2009 in order for
a.[Ms Burns] to be evaluated by [Dr RJ] psychiatrist in order for him to feel confident that [Ms Burns] is in a satisfactory state to cope with proceedings and able to defend her position, legal rights and standing.
b.[Dr RJ] to supply a new report on the impact and effect of the confronting and traumatic events of the past 6 years and be in a position to provide evidence.
c.An attachment dated 15/9/09 from [Dr A] acting as [Ms Burns’] advocate is attached on Exhibit 1.
The Wife filed an affidavit supporting her application to which she attached the letter sent by Dr A to the Court on 15 September 2009.
The Wife also faxed a letter dated 17 September 2009 to the Court in which she outlined her attempts to contact her psychiatrist Dr RJ to “meet the demands that [the Family Court] has placed upon [the Wife]”. The Wife also stated in the letter that “[t]hree more appeals are being applied to the Court with reference to setting aside orders”.
On 18 September 2009 the hearing resumed. I was sitting in the Sydney Registry and the Wife appeared by video conference facility from the Melbourne Registry. After hearing what the Wife wanted to say about the documents that the Court received from Dr A on 15 September 2009 and the Wife’s application received by the Court on 17 September 2009, I adjourned the hearing to Wednesday 14 October 2009 at 10:00 am.
On 1 March 2010 an application was filed by the Wife in which she sought inter alia that the order that a report be obtained from Dr J be discharged. The Wife sought that an order be made that the Wife consult with Dr YM, Clinical Psychologist and that he prepare an affidavit. The application was supported by an affidavit sworn by the Wife on 26 February 2010.
On 3 March 2010 a notice of appeal was filed by the Wife in which she sought leave to appeal against the orders I made on 6 November 2009. I assume that what the Wife was seeking was an extension of time to file an application for leave to appeal against the orders made on 6 November 2009. In that part of the notice of appeal where the grounds of appeal are to be set out, the Wife contended:
1. The Wife filed an affidavit on 4th November 2009, to be up-front that she was unable to attend your Court on 5th and 6th November 2009, because of medical reasons.
2. The Court Order made in chambers on 6 November 2009 was received on 3rd March 2010 at [property F], four months after the Order is made.
In the notice of appeal the Wife stated that she was seeking the following orders:
1. That the Wife residential address be known as [property F], and that she be allowed to reside there with any of her family members.
2. That all possessions of the Wife be returned to her at [property F]
On 4 March 2010 the hearing before me concluded and I reserved my judgment.
During the further hearing on 4 March 2010 the Wife said: “I don’t have depression now, and I am focussed, I can concentrate and I can simply put evidence in an affidavit and bring it before the court” (Transcript, 4 March 2010, p 34).
On 4 March 2010 I did not grant the Wife’s application of 1 March 2010 in which she sought that an order be made that she consult with Dr YM, Clinical Psychologist and that he prepare an affidavit. I was not prepared to entertain this application because I had already given the Wife considerable opportunity to obtain a report from Dr J. Further, it was very clear from discussion with the Wife that she could not demonstrate any possible relevance that such material may have.
What I have set out above is sufficient for present purposes to demonstrate the enormity of the difficulties in dealing with the various applications filed by the Wife. However, I repeat that what I have set out above is far from exhaustive of the material the Court has received from the Wife and the communications she has had with Court staff.
Relevant Principles
Section 93A of the Act confers appellate jurisdiction on the Family Court. Section 94(1)(a) of the Act provides for an appeal to the Full Court of the Family Court from a decree of a Family Court (constituted otherwise than as a Full Court) exercising original or appellate jurisdiction under any law. Section 94(1A) provides that an appeal under s 94(1) shall be instituted within the time prescribed by the rules or within such further time as is allowed in accordance with the rules.
Item 1 in s 94AA of the Act essentially provides that leave is required to appeal against “a prescribed decree” of the Family Court constituted otherwise than as the Full Court. Regulation 15A of the Family Law Regulations 1984 provides that for the purposes of item 1 of s 94AA(1), a prescribed decree is an interlocutory decree (other than a decree in relation to a child welfare matter).
Chapter 22 of the Rules deals with appeals. Rule 22.02(1) provides that an appeal is started by filing a notice of appeal. Rule 22.02(2) provides that if an appeal cannot be started without leave of the court then leave must be sought in the notice of appeal.
Rule 22.03 provides that a notice of appeal, including a notice of appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.
Rule 1.14 of the Rules deals with shortening or extension of time and provides:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
Section 94 of the Act provides:
(2D) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA);
…
(e)for an extension of time within which to file an application for leave to appeal
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
…
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
As the Full Court recently observed in Bemert & Swallow the Family Court frequently has to deal with applications to take a procedural step out of time and there are no specified criteria either in s 94(1A) of the Act or r 1.14 of the Rules for the exercise of discretion to extend the time for the institution of an appeal.
In dealing with applications for extension of time, the decision often relied upon is that of McHugh J in Gallo v Dawson (1990) 93 ALR 479 and what his Honour said at 480, namely:
a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O.70, r.3 of the Rules of the High Court ("the Rules"). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O.60, r.6 to support her application. That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v. Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
See also McMahon and McMahon (1976) FLC 90-038; Casson and Casson (1988) FLC 91-962; Tormsen and Tormsen (1993) FLC 92-392; Prowse v Prowse (1994) 18 Fam LR 348; Joshua v Joshua (1997) FLC 92-767 and OP v HM (2002) 29 Fam LR 251.
Relevantly, for present purposes in Chapter 1 of the Rules, there are provisions that deal with the main purpose of the Rules and the obligations of parties, lawyers and the Court. Rule 1.04 provides that the “main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Rule 1.06 provides how the Court must apply the Rules to promote the main purpose, and actively manage each case. Rule 1.07 provides that to achieve the main purpose, the Court applies the Rules in a way that addresses each of the matters set out in paragraphs (a) to (f). Rule 1.08 deals with the responsibility of parties and lawyers in achieving the main purpose of the Rules.
The purposes stated in Chapter 1 of the Rules reflect principles of case management by the Family Court. As Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [92]:
It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation. (endnotes omitted)
In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Dawson, Gaudron and McHugh JJ, in joint reasons, said at 154-155:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
…
Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.
In Aon Risk Services, after referring to what was said above by Dawson, Gaudron and McHugh JJ in JL Holdings, French CJ said at [30]:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
In Aon Risk Services the High Court considered the approach to be taken in relation to applications for amendment of pleadings and in particular considered r 21 of the Courts Procedures Rules 2006 (ACT) which states the purposes of the said Rules. I refer to the joint reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92] to [103] and [114]. In my view “a just resolution of proceedings remains the paramount purpose of [r 1.04 of the Rules]; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated”: per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98].
I also observe that in Aon Risk Services Ltd French CJ said at [5]: “Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system”. The Chief Justice said at [23]: “[T]he adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources”. The Chief Justice also said at [27] that “the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn”. In joint reasons Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [113]: “It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings”.
I am also satisfied that I have an inherent jurisdiction to dismiss applications which are not only frivolous and vexatious in the strict sense but also actions which must fail or which cannot be proved and are without any solid basis: see Westpac Banking Corporation v Aldred (1986) FLC 91-753 at 75,491-75,493 per Nygh J; Hudson and Hudson (1986) FLC 91-768 at 190 per Gee J and Davidson v Shearer (1992) 15 Fam LR 635 at 639-641 per Lindenmayer J.
I am also mindful that there is an order pursuant to s 118(1)(c) of the Act which currently binds the Wife. Section 118(1) of the Act provides:
(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).
Conclusion
There have been significant and protracted proceedings between the Husband and the Wife in the Family Court arising out of the breakdown of their marriage. However, the only substantive proceedings were for property settlement pursuant to s 79 of the Act and those proceedings were determined by the order of Faulks DCJ in October 2004. There have never been any other proceedings for final orders such as proceedings under Pt VII of the Act for parenting orders or proceedings under Pt VIII for spouse maintenance. There have, however, been numerous procedural and interlocutory proceedings but they all related to the property settlement proceedings and subsequent appeal proceedings.
The Wife is seeking an extension of time to file an application for leave to appeal against the orders made by Wilzcek J in 2003. His Honour made orders pending the determination of the property settlement proceedings. The Wife failed to provide any or any adequate explanation for the inordinate delay in filing her application. Further, no submissions were made that demonstrated why leave should be granted. So also, in my view, even if leave were granted to file an application out of time the application for leave would be futile. I observe that the orders of Wilzcek J are now redundant and insofar as the Wife sought any relief from such orders then she should have made an application for a variation or discharge of those orders before the hearing before Faulks DCJ. I am going to dismiss the application.
There were then appeal proceedings because the Wife was aggrieved by the property settlement order of Faulks DCJ and sought to appeal against the order. A number of generous indulgences were granted to the Wife and ultimately pursuant to leave granted by Kay J on 31 May 2005 the Wife filed a notice of appeal on 10 June 2005.
On 10 March 2005 orders were made by Joske J that until further order the Wife be restrained from drawing moneys from a Suncorp loan facility. I observe that in his reasons Faulks DCJ at [24] identified a debt to Suncorp of $102,260.00 and that at [31] he allowed an amount of $59,066.00 of this debt for the purposes of determining the net assets of the parties. It may be that the debt no longer exists or is part of the bankruptcy of the Wife.
In any event, the Wife is now seeking leave to file out of time an application for leave to appeal against the orders made by Joske J. Again, the Wife failed to provide any or any adequate explanation for the inordinate delay in filing her application. Further, no submissions were made that demonstrated why leave should be granted. So also, in my view, even if leave were granted to file an application out of time the application for leave would be futile. Orders were subsequently made that enabled the Wife to make drawings from the facility. I am going to dismiss the application.
After the Wife filed in June 2005 a notice of appeal against the property settlement order of Faulks DCJ she made an application seeking that she receive from the Suncorp facility an amount of money to assist her to defray the costs of obtaining transcript for the purposes of the appeal. On 5 September 2005 Young J made an order that enabled the Wife to obtain an amount of $2,500.00 for this purpose. At this time the appeal was pending.
I understand that the Wife complains that she did not receive the amount she was entitled to receive pursuant to the orders of Young J. However, at no time did the Wife make an application for enforcement or variation of the order. Further, the Wife was subsequently made bankrupt and the Suncorp facility probably no longer exists.
On 5 September 2005 Young J also made an order that until further order the Wife be restrained pursuant to s 118(1)(c) of the Act from instituting any other interim proceeding with the Family Court or Federal Magistrates Court without leave first obtained from a Registrar of the Court(s). However, the order provided “that nothing in this Order should in any way to impact upon her conduct or management of her Full Court Appeal now pending”. The qualification to the restraint was because at that time the Wife’s appeal against the property settlement order made by Faulks DCJ was pending.
What then happened was that because the Wife had not done what she was required to do in prosecuting her appeal, in October 2005 the appeal was deemed abandoned. The Wife then made an application for reinstatement of her abandoned appeal and the application was dismissed by Kay J. The Wife sought no relief from the orders of Kay J and she also remained bankrupt. Thus, there are currently no appeal proceedings in relation to the property settlement order of Faulks DCJ.
In relation to the application for leave to appeal against the orders of Young J of 5 September 2005, in my view, the Wife failed to provide any or any adequate explanation for a delay of in excess of four years and that the application is futile. The Wife failed to establish any interest that may be prejudiced if leave was refused. Further, I am of the view that the orders are probably redundant. I am going to dismiss the application.
In relation to the application filed by the Wife on 22 July 2009 seeking an extension of time in which to file an application for leave to appeal against a judgment of Young J pronounced on 6 April 2009, I am going to dismiss this application. His Honour dismissed applications that were filed by the Wife on 5 March 2009 and 12 March 2009 and Mr W on 1 April 2009.
There was no application by Mr W seeking an extension of time to file an application for leave to appeal against the dismissal of his application. As to the Wife’s application she failed to provide any or any adequate explanation for the delay in filing her application. Further, the Wife failed to establish any interest that may be prejudiced if leave was refused. Further, I am of the view that even if an extension of time was granted the application would fail. In my view, the Wife’s application of 5 March 2009 was meaningless. It is impossible to know what it related to. There were no appeal proceedings on foot at that time. The Wife was also still subject to bankruptcy.
There is then the application filed on 22 July 2009 seeking a “Protection Order”; the application filed on 26 August 2009 seeking among other matters an order for costs against Ms O and Mr CR and the application filed on 27 August 2009 seeking among other matters an order for costs against Ms O. I am going to dismiss these applications. The Wife put nothing in support of these applications. I do not know why they were made or what proceeding they related to. There were no pending appeal proceedings at the time the applications were filed and thus the Wife probably required leave pursuant to s 118(1)(c) of the Act in any event. I am not satisfied that leave should be granted.
There is then the application filed by the Wife on 12 October 2009 seeking an extension of time in which to file an application for leave to appeal against orders made by Cronin J on 21 August 2009. His Honour dismissed three applications. I am going to dismiss the Wife’s application. The Wife failed to provide any or any adequate explanation for the delay in filing her application. Further, the Wife failed to establish any interest that may be prejudiced if leave was refused. Further, I am of the view that the even if an extension of time was granted the application would fail.
Perhaps unwisely, because it resulted in the receipt by the Court of an avalanche of written material, I granted the Wife a number of indulgences. In part, I did so because I was attempting to give the Wife the opportunity to adequately explain to me what she was seeking and why. This was never achieved. I have no confidence that the Wife fully comprehends what she is doing and what she is trying to achieve.
In any event, there is the application filed by the Wife on 4 November 2009 seeking, among other matters, that an order be made allowing her to file an appeal and an order against Ms O for costs to pay for the Wife’s medical expenses and lawyers. There is the application dated 10 November 2009 in which, among other matters, the Wife is seeking orders in relation to a report of Dr J. There is the application dated 3 January 2010 in which, among other matters, the Wife is seeking orders in relation to the report of Dr J. There is the application filed on 1 March 2010 in which, among other matters, the Wife is seeking that the orders that required a report from Dr J be discharged. There is also the application filed on 1 March 2010 seeking, among other matters an extension of time to file an application for leave to appeal against the orders I made on 6 November 2009.
I am going to dismiss the application seeking an extension of time to file an application for leave to appeal against the orders of 6 November 2009. I am also going to dismiss the application filed on 4 November 2009. Again, the Wife failed to provide any or any adequate explanation for the delay in filing her applications. Further, the Wife failed to establish any interest that may be prejudiced if leave was refused. Further, I am of the view that even if an extension of time was granted the applications would fail.
As to the applications in relation to the report from Dr J, I am going to dismiss this application. The Wife has been granted a considerable number of indulgences. On 4 March 2010 the Wife was again unable to adequately explain to me the relevance of her state of health to the various applications and I took the view that the hearing had to be concluded (Transcript, 4 March 2010, pp 15 to 16).
I observe that during the further hearing before me on 4 March 2010 at the conclusion of a discussion with the Wife about how she could possibly obtain the property at F, the following exchange occurred (Transcript, 4 March 2009, p 20):
His Honour: If you want an opportunity in the sense of a matter of moments during this hearing this morning, I will give it to you. But, otherwise, if you are talking about a adjournments, no, I won’t.
Ms Burns: No.
His Honour: No, I won’t. I am finalising everything today.
Ms Burns: Alright, good.
His Honour: Yes.
As I also indicated to the Wife during discussion on 4 March 2010 I had given the Wife, for some considerable time, every opportunity “to articulate some foundation for substantive relief” in the Family Court (Transcript, 4 March 2009, p 21).
During the further hearing on 4 March 2010 the Wife did contend (Transcript, 4 March 2009, p 35):
[Dr J] was consulted to bring evidence forward in this court of law to describe my condition and what I hoped that he was going to describe was that I have depression and all this evidence, a great deal of the evidence, is me trying to appeal decisions that diagnosis of severe depression plus other medical conditions. I was incapable of succinctly and accurately and clearly putting before the court a reasonable argument. I’m fortunate that I do not have a depression at the moment and I’m not on the medication that I was on, which actually interfered with my capacity to be able to logically put things in a balanced order. I’ve stopped that medication and I have since found out that I was allergic to it and I had a reaction to the medication.
In summary, I infer that the Wife is contending that the reason why she had failed to file all of the applications in the time specified in the Rules is because of her incapacity by reason of her state of health and what she was seeking to do in late 2009 and early 2010 was obtain evidence from a psychiatrist to corroborate her contention. The difficulties with this general allegation include that the Wife’s contention that she was incapacitated by reason of her state of health, relates to a period of almost five years. Further, as I have already observed, at no time during this period, if the Wife’s contentions are correct, did she seek for example the appointment of a case guardian. In conclusion, I do not accept the allegations of the Wife about the consequences of her state of health.
In my view, the Wife may attempt to continue to file meaningless and unintelligible applications. The Wife may also continue, as she has done for many years, to make complaints about aspects of her state of health both physical and mental. However, the proceedings in the Family Court must be concluded. In all the circumstances, I have also come to the conclusion that all extant applications identified in these reasons should be dismissed.
I have no doubt that the Wife will not accept what I have decided and for reasons she has been unable to explain, will feel that an injustice has been caused to her. However, I am very confident that no injustice has been caused to the Wife and that it is necessary to bring to a conclusion the litigation that is currently before the Court. In my opinion, a great deal of the litigation has been without any foundation whatsoever and was frivolous and vexatious.
I conclude by observing that even if, because she may now be discharged from bankruptcy, the Wife was able to seek a reinstatement of her appeal against the property settlement order of Faulks DCJ, I would refuse the application for a number of reasons. Such reasons include that there is no evidence that at this time the outcome of such an appeal would have any practical consequence. The property which the Wife is agitating that she, or a trust, should receive has been disposed of. In my view, all of the litigation since the abandonment of the Wife’s appeal has been a complete waste of time and resources.
It should be noted that it has been drawn to my attention that the Wife may now have filed an application seeking reinstatement of her appeal against the property settlement order made by Faulks DCJ. That application is not before me and the orders that I make are in no way intended to deal with that application. The application presumably will be dealt with by another Judge and of course anything that I may have said about such an application is simply obiter.
I certify that the preceding one-hundred sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Justice O’Ryan.
Associate:
Date:2 July 2010
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