DAKIN & SANSBURY - [2015] FCCA 1825

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAKIN & SANSBURY

[2015] FCCA 1825

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings – Respondent sought an order pursuant to section 102QB(2) prohibiting the Applicant from instituting further proceedings under the Family Law Act 1975 on the basis the Applicant had frequently instituted vexatious proceedings in an Australian court – Court satisfied Applicant has instituted frequent vexatious proceedings and orders made pursuant to sections 102QB(2)(a) and 102QB(2)(b) dismissing the Initiating Application filed by the Applicant on 1 September 2014 as amended on 27 October 2015 and prohibiting the Applicant from instituting any further proceedings under the Family Law Act 1975.

Legislation:

Family Law Act 1975 (Cth), ss.102QB(2)(a), 102QB(2)(b), 102QE, 102QD, 102QG, 90SM, 90RD, 90SB(a), 90SN(1)(a), 90SE, 90SH, 90SI, 90SL, 90SS, 102QB, 102Q(1)
Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 88Q(2)
Federal Circuit Court of Australia Rules 2001 (Cth), rr.13.10, 39.05, 16.05

Marsden & Winch [2013] FamCAFC 177
Cannon & Acres [2014] FamCA 104
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398

Applicant:

MS DAKIN

Respondent:

MR SANSBURY

File Number:

MLC 3048 of 2010

Judgment of:

Judge Bender

Hearing date:

17 April 2015

Date of Last Submission:

17 April 2015

Delivered at:

Melbourne

Delivered on:

3 July 2015

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Mr Mort

Solicitors for the Respondent:

Cahill & Rowe Family Law

ORDERS

Pursuant to s 102QB(2)(a) of the Family Law Act 1975 (“the Act”) the Initiating Application filed on 1 September 2014 as amended on 27 October 2014 is dismissed.
Pursuant to s102QB(2)(b) of the Act the Applicant MS DAKIN is prohibited from instituting proceedings under the Act against or in relation to the Respondent MR SANSBURY without first being granted leave to commence that proceeding pursuant to s102QE of the Act.

IT IS NOTED

A.The particular consequences arising from a vexatious proceedings order are set out in s102QD of the Act, which provides:-
(1)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a)that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b)another person must not, acting in concert with the person, institute, or proceedings of that type, in the court without the leave of the court under section 102QG.

(2)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3)Without limiting subsection (2), the court may make:
(a)an order declaring proceedings are proceedings to which subsection (2) applies; and
(b)any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.

(4)The court may make an order under subsection (3) on its own initiative or on the application of any of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DAKIN & SANSBURY

Details

AGLC: Dakin and Sansbury [2015] FCCA 1825
Case: [2015] FCCA 1825
Decision Date: 3 July 2015

CaseChat Overview and Summary

In the matter of *Dakin & Sansbury*, heard by Judge Bender, the dispute concerned an Initiating Application filed by the Applicant, Ms Dakin, against the Respondent, Mr Sansbury. The application, initially filed on 1 September 2014 and subsequently amended on 27 October 2014, was brought before the court for determination.

The primary legal issues before the court were whether the Initiating Application should be dismissed and whether the Applicant should be prohibited from instituting further proceedings against the Respondent without leave. These issues were to be determined by reference to the provisions of the *Family Law Act 1975* (Cth), specifically sections 102QB and 102QE.

The court's reasoning, as reflected in its orders, was based on the application of section 102QB(2) of the *Family Law Act 1975*. This section empowers the court to dismiss an application and to prohibit a party from instituting further proceedings without leave in certain circumstances. The court exercised this power by dismissing the Applicant's Initiating Application and by imposing a prohibition on Ms Dakin from commencing any future proceedings against Mr Sansbury under the Act unless she first obtained leave pursuant to section 102QE.

Orders

Orders of the court

Pursuant to s 102QB(2)(a) of the Family Law Act 1975 (“the Act”) the Initiating Application filed on 1 September 2014 as amended on 27 October 2014 is dismissed.

Pursuant to s102QB(2)(b) of the Act the Applicant MS DAKIN is prohibited from instituting proceedings under the Act against or in relation to the Respondent MR SANSBURY without first being granted leave to commence that proceeding pursuant to s102QE of the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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