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

1. 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.

2. 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 the following:

(a)the Attorney-General of the Commonwealth or of a State or Territory;

(b)the appropriate court official;

(c)a person against whom another person has instituted or conducted vexatious proceedings;

(d)a person who has a sufficient interest in the matter.

B.That if the Applicant or any other person acting in concert with her wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the Applicant or such other person will be obliged to comply with s 102QE of the Act which provides:-

Section 102QE(1) This section applies to a person (the applicant) who is:

(a)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; or

(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).

Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.

Section 102QE(3) The applicant must file an affidavit with the application that:

(a)lists all the occasions on which the applicant has applied for leave under this section; and

(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

Section 102QE(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

IT IS NOTED that publication of this judgment under the pseudonym Dakin & Sansbury is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3048 of 2010

MS DAKIN

Applicant

And

MR SANSBURY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter relates to the application by the Respondent that a vexatious proceedings order pursuant to s102QB(2) (a) and (2)(b) of the Family Law Act1975 (Cth) (‘the Act’) be made dismissing the Applicant’s Initiating Application filed 1 September 2014 as amended 27 October 2014 and prohibiting the Applicant from instituting further proceedings under the Act against the Respondent.

Background

1. This matter has a lengthy history before this Court.

2. Proceedings were first before the Court by way of an Initiating Application filed by the Applicant on 6 April 2010 seeking property orders pursuant to s 90SM of the Act on the basis the parties had been in a de facto relationship from November 2002 to 17 January 2010.

3. In the Response filed by the Respondent, he sought a declaration pursuant to s 90RD of the Act that the parties had only been in a de facto relationship between May and December 2009 and therefore the jurisdiction of the Court could not be enlivened as the relationship was for a period of less than two years as required by s 90SB(a) of the Act.

4. After a two day hearing on the discrete issue of whether the parties had been in a de facto relationship, a judgment was delivered and declaration made on 13 August 2010 that pursuant to s90RD of the Act the parties were in a de facto relationship from April 2003 to 11 December 2009.

5. On 19 November 2010 after an interim hearing, orders were made for the Respondent to pay the Applicant interim spousal maintenance in the sum of $300 per week.

6. The final hearing of financial matters including the Applicant’s application for ongoing spousal maintenance was initially listed on

   
   

   11 April 2011. The matter was adjourned for final hearing by consent to 7 July 2011 as the Applicant had only recently engaged legal representation and her lawyers had not had sufficient time to properly prepare the matter for the Applicant.

7. On 7 July 2011 the matter was again unable to proceed. On this occasion the Applicant argued there had not been full and frank disclosure by the Respondent.

8. When the matter came before the Court on 7 July 2011, the Applicant did not pursue her application for ongoing interim spousal maintenance. Accordingly, orders were made that suspended the orders for interim spousal maintenance made on 19 November 2010 and all applications were adjourned for final hearing on 30 January 2012. Very specific orders were made for the proper exchange of discoverable documents and their inspection as well as for filing of all trial documents including sworn valuations of the Respondent’s property both in Australia and (country omitted).

9. The Applicant failed to comply with all orders for the filing of trial documents and sworn valuations and failed to appear on the adjourned date.

10. On 30 January 2012 the matter was heard in the absence of the Applicant. The Applicant’s application for property orders and spousal maintenance was dismissed.

11. The application of the Respondent for final property orders was heard on an undefended basis. Having considered the evidence contained in the Respondent’s trial affidavit and the sworn affidavits from valuers of real estate owned by the Respondent in both Australia and (country omitted), a finding was made that the Respondent’s liabilities exceeded the value of his assets. Orders were therefore made as sought by the Respondent that each party retain to the exclusion of the other all property and superannuation owned by them and that each party indemnify the other against any liabilities encumbering any item of property retained by them.

12. The Applicant was also ordered to pay the Respondent’s reserved costs of the 7 February 2011, 23 February 2011 and 7 July 2011 totalling $5,800 as well as the costs of the trial fixed in the sum of $8,800.

13. On 7 February 2012 the Applicant filed a Notice of Appeal against the Orders made 30 January 2012.

14. The Notice of Appeal first came before Justice Strickland on 21 June 2012. On that date His Honour raised with the Applicant that if her complaint against the orders that were made on 30 January 2012 was that the Court had proceeded to hear the matter in her absence, an appeal was not the appropriate course to follow and the proper course was to make application back to the trial judge seeking that the orders made be set aside.

15. His Honour further advised the Applicant that if her sole complaint was the matter had been heard in her absence then on that basis her appeal could not proceed.

16. In His Honour’s judgment delivered 3 August 2012 at paragraph 6 he states:-

    [6]    In response Ms Dakin indicated to me that there were other matters about which she wanted to complain relating to the orders made by the Federal Magistrate, and that in order to enable the Notice of Appeal to proceed she was not raising any complaint in that appeal about the Federal Magistrate hearing the matter in her absence…[1]

    [1] Dakin & Sansbury [2012] FamCAFC 129 at paragraph [6].

17. Strickland J adjourned the Applicant’s appeal to 3 August 2012 on the basis of the Applicant’s indication she would file an Amended

    
    

    Notice of Appeal within four weeks. His Honour advised the Applicant that if she failed to file an Amended Notice of Appeal, he would dismiss her appeal.

18. The matter came back before Her Honour on 3 August 2012. The Applicant had failed to file an Amended Notice of Appeal. His Honour refused the Applicant’s application for a further adjournment and dismissed the Notice of Appeal filed 7 February 2012 and ordered the Applicant to pay the Respondent’s costs of $1,000 thrown away.

19. On 6 February 2013 the Applicant filed an Initiating Application seeking that the orders made by this Court on 30 January 2012 be set aside pursuant to s90SN(1)(a) of the Act.

20. The Respondent made application that the Applicant’s Initiating Application of 6 February 2013 be summarily dismissed pursuant to s17A of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules2001 on the basis there was no reasonable prospect of the Applicant prosecuting her claim.

21. The application for summary dismissal was heard on 27 June 2013. On 11 July 2013 the decision was handed down. That aspect of the Applicant’s application pursuant to s 90SN(1) that the 30 January 2012 orders be set aside on the basis of the Respondent’s failure to make full and frank disclosure of all documents in his possession and control and on the basis he failed to disclose or properly value all assets controlled and owned by him in Australia was summarily dismissed.

22. The application for summary dismissal of the Applicant’s Initiating Application that related to the question of the assets and liabilities held or disposed of by the Respondent in (country omitted) and the damages payable by the (country omitted) government from the sinking of the boat, the (omitted) was dismissed.

23. The Applicant’s Initiating Application pursuant to s 90SN that related to the Respondent’s (country omitted) assets and the damages arising from the boat the (omitted) was listed for hearing on 24 August 2013.

24. The matter was heard on 24 August 2013. On 30 August 2013 orders were made dismissing the Initiating Application filed 6 February 2013. An order was also made restraining the applicant from filing any further application relating to property matters without prior leave of the Court.

25. On 6 November 2013 the Applicant filed an Application in an Appeal seeking the Court grant an extension of time to “urgently appeal against orders made in August 2013.”

26. On 8 November 2013 the Applicant filed an Application in a Case seeking a stay of the orders made 30 August 2013, an order to “disqualify the Judge of 2010” and a number of orders restraining the respondent from travelling overseas or dealing with his assets pending the determination of the appeal.

27. That part of the Application in a Case seeking a stay of the

    
    

    30 August 2013 orders only was listed on 21 November 2013. On that date the application for a stay of the 30 August 2013 orders was dismissed.

28. On 9 January 2014 the Applicant filed an Amended Application in an Appeal seeking an extension of time to appeal against the 1 July 2013 and 30 August 2013 orders, “leave to appeal” the orders made on

    
    

    12 December 2013 and further, an extension of time to appeal against the orders made 30 November 2012.

29. Justice Strickland heard the Applicant’s Amended Application

    
    

    in an Appeal on 15 January 2014 and delivered his decision on

    
    

    10 February 2014.

30. In paragraph 3 of his judgment, Justice Strickland held:

    [3]Also in paragraph 1 of the application the applicant sought an extension of time to appeal against orders for property settlement made on 30 January 2012 by Federal Magistrate Bender (as she then was).  However, I propose to dismiss that application because on 3 August 2012 I dismissed the applicant’s appeal against those orders (see appeal no. SOA 9 of 2012) and in the circumstances of why that appeal was dismissed it is not open to the applicant to again seek to appeal against those same orders.

31. In paragraph 4 of his judgment Justice Strickland held: -

    [4]In paragraph 2 of the application the applicant sought “Leave to Appeal” the orders made by Judge Bender on 12 December 2013 dismissing the applicant’s application for a stay of the orders made on 30 August 2013.  However, that application is misconceived because leave to appeal needs to be sought in a Notice of Appeal and not in an application in an appeal…

32. In relation to the Applicant’s application for leave to appeal the orders made 1 July 2013 and 30 August 2013, His Honour held at

    
    

    paragraph 59:

    [59] Although there is a passable explanation of the failure to comply with the prescribed time limit, and there will be prejudice to the applicant, the fact that there is no arguable case on appeal, and also the history of the proceedings and the prejudice to the respondent, all weigh in favour of refusing the application.  Indeed, the interests of justice demand it.

33. His Honour made Orders dismissing the Amended Application in an Appeal and ordered the applicant pay the Respondent’s costs on a

    
    

    party-party basis.

34. On 1 April 2014 the Applicant filed an Application in an Appeal seeking a review of the Appeal Registrar’s decision to uplift and return her Application in an Appeal, supporting Affidavit and draft Notice of Appeal which she had filed on 25 February 2014.

35. The Application in an Appeal which the Applicant was seeking to file on 25 February 2014 sought two orders, the first sought an extension of time to appeal the orders made 12 December 2013 and the second sought that her application be heard by a full bench and not just a single judge of the Full Court.

36. His Honour properly advised the Applicant that the second order was “not an Order that would be made. These are matters that are appropriately heard by a single judge of the Appeal Division and there is no justification for putting this matter before a three member bench.”[2]

    [2] Dakin & Sansbury (No 2) [2014] FamCAFC 80 at paragraph [8].

37. Having observed that in relation to the orders made 30 August 2013 there was no appeal on foot on 12 December 2013, there was no appeal on foot on 25 February 2014 and still no appeal on foot, His Honour held at paragraphs 15 and 16:

    [15] Thus, for the applicant to seek an extension of time to appeal against the orders made on 12 December 2013, in my view, is a clear abuse of process.  It has no utility.  It is futile.  Even if the applicant was granted an extension of time to appeal, and she did, that appeal could go nowhere because, to repeat, there is no appeal against the orders of 30 August 2013, and no basis to stay those orders.

    [16] Therefore, I propose to dismiss the application in an appeal seeking a review of the exercise of power by the Appeal Registrar.

38. On 1 September 2014 the Applicant filed an Initiating Application. Whilst it is apparent the Applicant has put considerable time and effort into the preparation of the Application, it is a lengthy and confusing document and it is difficult to ascertain with complete precision the orders sought by the Applicant. However after a close reading of the Application, it would appear the Applicant is seeking the Court make orders as follows:-

    ·

    Orders under rule 39.05 (presumed to be rule 16.05) to

    
    

    set aside the Orders (which Orders sought to be set aside

    
     

    is not stated but it is assumed it is the Orders made

    
    

    30 January 2012);

    ·

    an application under s 90SN of the Act to set aside

    
    

    the Orders (again which Orders are sought to be set aside

    
     

    is not stated but it is assumed it is the Orders made

    
    

    30 January 2012);

    ·maintenance orders pursuant to ss 90SE, 90SH, 90SI;

    ·a declaration pursuant to s 90SL;

    ·retrospective maintenance of $1,500 a week from 19 November 2010 to the current date or in the alternative a lump sum maintenance payment calculated at the rate of $900 per week from November 2010 to the current date;

    ·return of her personal property including a (vehicle omitted) motor vehicle and the contents of containers in the Respondent’s possession;

    ·an order under s 90SS for “damages” arising from the courts failure to protect and divide the applicant’s property;

    ·payment of all the Applicant’s legal costs;

    ·dismissal of all costs orders made against the Applicant;

    ·an order that the legal costs paid by the Respondent to his solicitor be regarded as notional property;

    ·the conduct of the Respondent’s solicitors be examined pursuant to rule 1.08 of the Federal Circuit Court Rules 2001;

    ·there be a finding of Misfeasance in a Public Office and Malicious Exercise of Jurisdiction and Breach of Duty of a decision maker.

39. The Interim Orders sought by the Applicant in her Initiating Application include:

    ·

    the proceedings be transferred to the Family Court and if not transferred the matter be heard other than by

    
    

    Judge Bender;

    ·there be an urgent hearing;

    ·Orders be made that there be a trial of the parties evidence;

    ·the Charter of Human Rights apply;

    ·the Respondent return property belonging to the Applicant;

    ·an Order be made against Mr M, accountant preventing him from selling the property at Property C;

    ·the respondent be ordered to pay for the criminal damage to a (vehicle omitted);  and

    ·the Respondent be ordered to pay storage, repairs and towing fees for the (vehicle omitted) motor vehicle.

1. On 27 October 2014 the Applicant filed an Amended Initiating Application. This document does not on its face identify which aspects of it amend the Initiating Application. It too is very lengthy and it is difficult to identify with precision the exact orders sought by the Applicant. However, after closely perusing same it appears that the orders sought do not differ from those contained in the Initiating Application filed 1 September 2014 but the “amendments” appear to seek to clarify the orders sought by the Applicant and provide additional “commentary” on each of the orders sought and claims made.

2. Whilst the Initiating Application and Amended Initiating Application filed by the Applicant are lengthy and somewhat difficult to understand, the “bottom line” is the Applicant is again seeking to bring an application for orders in relation to property and spousal maintenance against the Respondent.

3. The Respondent filed a Response on 23 October 2014 seeking the Initiating Application be summarily dismissed pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules or in the alternative the Initiating Application be dismissed on the basis it is frivolous and vexatious.

4. The Respondent also sought that an order be made pursuant to

   
   

   s 88Q(2) of the Federal Circuit Court of Australia Act 1999 (Cth) prohibiting the Applicant from instituting any further applications pursuant to the Family Law Act 1975 (Cth) in the Federal Circuit Court of Australia.

5. The Applicant’s Initiating Application first came before the Court on 23 October 2014. The Respondent was granted leave on that day to make an oral application to amend the Response to seek Orders be made against the Applicant pursuant to s 102QB of the Act.

6. The Respondent’s application for orders pursuant to s 102QB was adjourned for a discrete hearing to 3 November 2014.

7. The hearing of the s 102QB application was adjourned at the request of the Applicant and then again at the request of the Respondent. The matter was finally listed for hearing on 13 March 2015.

8. On 13 March 2015 the Applicant was unwell and became so distressed that it was apparent the matter could not proceed. The Respondent’s application for orders pursuant to s102QB was therefore adjourned to 17 April 2015 and arrangements were put in place for the Applicant to appear via video link-up from a separate court room on the adjourned date as the Applicant indicated to the Court she felt “intimidated” by being in the same court room as the Respondent and his Counsel.

The Law

1. Vexatious proceedings are dealt with under Part XIB of the Family Law Act 1975. Section 102QB sets out the statutory provisions that underpin the making of a vexatious proceedings orders as follows:

   (1)    This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:

   (a) a person has frequently instituted or conducted vexatious  proceedings in Australian courts or tribunals; or

   (b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

   (2) The court may make any or all of the following orders:

   (a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

   (b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

   (c) any other order the court considers appropriate in relation to the person.

   Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

   (3) The court may make a vexatious proceedings order on its own initiative   or on the application of any of the following:

   (a) the Attorney‑General of the Commonwealth or of a State or Territory;

   (b) the appropriate court official;

   (c) a person against whom another person has instituted or conducted vexatious proceedings;

   (d) a person who has a sufficient interest in the matter.

   (4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

   (5) An order made under paragraph (2)(a) or (b) is a final order.

   (6) For the purposes of subsection (1), the court may have regard to:

   (a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

   (b) orders made by any Australian court or tribunal; and

   (c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

   including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

2. The term “vexatious proceedings” is defined in s102Q(1) of the Act as follows:

   vexatious proceedings includes:

   (a)  proceedings that are an abuse of the process of a court or tribunal; and

   (b)   proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

   (c)    proceedings instituted or pursued in a court or tribunal without reasonable ground; and

   (d)    proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

3. Section 102Q(1) is an inclusive definition and is therefore not an exhaustive list of those proceedings which could be considered to be vexatious proceedings.

4. The Full Court of Bryant CJ, Ainslie-Wallace and Ryan JJ discussed the test to be applied in determining whether proceedings are vexatious in the matter of Marsden & Winch [2013] FamCAFC 177. At paragraphs 150 to 153 their Honours held:-

   150. In Attorney-General v Wentworth Roden J said at [487]:

   Meaning of “vexatious”

   This is obviously a critical term and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.

   151. His Honour continued:

   A subjective element, such as malice, lack of bona fides, or ulterior motive, seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s 84(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element.

   152. We observe that while Roden J was concerned with the meaning of these words within the context of a difference statute, that difference is not material to our consideration. We agree with his Honour’s construction of the word “vexatious” and, in particular his rejection of the meaning being “legal proceedings which vex”.

   153. Roden J then concluded at [491] with the test which is set out at [81] of these reasons.

5. The test set out in paragraph 81 of the reasons in Marsden & Winch (supra) is:-

   His Honour then referred to the Oxford Dictionary definition of the word “to vex” which he summarised as being “to cause distress, whilst in its more modern meaning is to make somebody feel annoyed, frustrated, worried, irritated or unhappy” [163].  Having determined that the father’s desire to spend time with his child was not frivolous, his Honour turned his attention to whether the proceedings initiated by the father were vexatious.  His Honour cited Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481, at [491], where in the context of the then s84 of the Supreme Court Act1970 (NSW), Roden J set out a test for determining whether proceedings are vexatious.  At [168], his Honour said:

   I believe that the test may be expressed in the following terms:

   1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

   2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

   3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

6. In Cannon & Acres [2014] FamCA 104 Justice Benjamin determined an application under s 102QB of the Act. After considering the legislative history of Part XIB, His Honour referred with approval to the paragraphs from Marsden & Winch (supra) set out above. His Honour then had regard to the approach of Davies J in the matter of Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 in which the earlier decision of Perram J in

   
   Official Trustee in Bankruptcy v Gargan (No 2)

   [2009] FCA 398 was adopted. Davis J said:-

   …his Honour eloquently expresses the principles relating to vexatious litigants at [2]–[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.

   [2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.

   [3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

   [4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

   [5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

   [6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

   [7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

   [8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

   [9] Eighthly, each of these notions — the want of reasonable grounds, habitual institution and persistent institution — are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.

   [10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto — so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

   …

   [12] Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.

7. The analysis by Perram J of the principals relating to vexatious

   
   

   litigants is in a slightly different legislative context to that in the Family Law Act 1975. However, I believe it to be of real assistance in determining whether proceedings are vexatious and am guided by and greatly assisted by His Honour’s analysis.

Has the Applicant frequently instituted vexatious proceedings in Australian Courts and Tribunals?

1. There is no doubt that when the Applicant commenced proceedings seeking property orders in 2010 she did so on the belief she had a

   
   

   bona fide claim for orders adjusting property between herself and the Respondent.

2. Whilst the history of this matter is set out in detail earlier in this judgment, I will summarise it again.

3. At the final hearing on 30 January 2012 the Court found the value of the Respondent’s assets were exceeded by their liabilities and made orders for each of the parties to retain their property and indemnify the other as to any liabilities relating to that property.

4. The Applicant unsuccessfully appealed those orders.

5. The Applicant then filed an application pursuant to s 90SN of the Act seeking the orders made 30 December 2012 be set aside. That application as it related to the allegation there was a failure by the Respondent to make full and frank disclosure and to disclose

   
   

   or properly value all assets in Australia was summarily dismissed on the basis there was no merit to those claims. This order was made

   
   

   1 July 2013.

6. After a defended hearing, the s 90SN application as it related to the Respondent’s (country omitted) assets was dismissed on 30 August 2013.

7. The Applicant sought leave to appeal both the decision of 1 July 2013 and the decision of 30 August 2013.

8. The Applicant also made Application to Stay the Orders made

   
   

   30 August 2013. The stay application was dismissed.

9. The Applicant’s application for leave to appeal the decisions of

   
   

   1 July 2013 and 30 August 2013 was dismissed.

10. In the judgment delivered by Justice Strickland on 10 February 2014 dismissing the Applicant’s Application for Leave to Appeal the orders of 1 July 2013 and 30 August 2013, His Honour at paragraphs 37 and 38 held as follows:

    37. The proceedings were commenced by the applicant in 2010 and final orders for property settlement were made on 30 January 2012. There was an appeal by the applicant against these orders but that was dismissed on 3 August 2012. The applicant then filed an application on 6 February 2013 seeking to set aside the orders for property settlement and part of that application was dismissed on 1 July 2013, and the balance was dismissed on 30 August 2013. In the meantime, the respondent has proceeded to conduct his financial affairs on the basis of the orders made on 30 January 2012.

    38. This is a history that militates against the applicant now being given an opportunity to challenge the orders made by her Honour on 1 July 2013. As can be seen the applicant has had a number of opportunities to pursue her claim, but she has been unsuccessful on each occasion, and the justice of the case may now require that these proceedings be brought to a conclusion.

11. In the Applicant’s Application in an Appeal filed in relation to the

    
    

    1 July 2013 and 30 August 2013 orders, she also sought leave to again appeal the orders made 30 January 2012.

12. In respect to that application His Honour held at paragraph 3 of his judgment:-

    … I propose to dismiss that application because on 3 August 2012 I dismissed the applicant’s appeal against those orders (see appeal no. SOA 9 of 2012) and in the circumstances of why that appeal was dismissed it is not open to the applicant to again seek to appeal against those same orders (my emphasis).

1. When the Appeals Registrar refused to accept the Applicant’s Application for Leave to Appeal the dismissal of her stay application, the Applicant filed an Application in an Appeal seeking to appeal the Registrar’s decision.

2. In dismissing the Applicant’s Application in an Appeal

   
   

   Justice Strickland in his decision handed down on 7 May 2014 held at paragraph 15 as follows:-

   Thus for the Applicant to seek an extension of time to appeal against the orders made on 12 December 2013, in my view, is a clear abuse of process. It has no utility. It is futile.

3. The Applicant’s most recent Initiating Application filed 1 September 2014 and amended on 27 October 2014 is seeking to relitigate the property and spousal maintenance proceedings which were finalised on 30 January 2012 and against which the Applicant has unsuccessfully appealed.

4. The Applicant also again seeks to have the 30 January 2012 orders set aside pursuant to s 90SN. This application has been previously dismissed and that decision upheld on appeal.

5. The Applicant’s current Initiating Application is therefore clearly without any reasonable ground or merit whatsoever.

6. It is submitted on behalf of the Respondent that the Applicant continues to pursue proceedings under the Act as a means to stay the proceedings currently on foot in the (country omitted) Supreme Court for vacant possession of the property at Property C in (country omitted) (“Property C”) brought by the mortgagee of that property.

7. The Applicant’s son is currently occupying Property C and is refusing to vacate the premises. There are consent orders made in the (country omitted) Court that provide for the Applicant’s son to vacate Property C but those orders have been stayed pending the outcome of the Applicant’s appeals in this jurisdiction.

8. The Applicant has in her submissions to the Court indicated that if the Property C property was transferred to her this would be sufficient to satisfy her claim against the Respondent as she would be able to move to (country omitted) and get on with her life.

9. Whilst there is no doubt the Applicant wishes to have Property C transferred to her, I am not satisfied that this is the primary motivating factor in her repeated applications to this Court.

10. In the judgment delivered on 30 August 2013 I noted the following at paragraph 31:-

    There is no doubt that the applicant genuinely believes that the respondent has manipulated his financial affairs in (country omitted) to enable assets to be garaged or hidden from the Court, that the respondent has done so with the assistance of his accountant in (country omitted), that the respondent has sold properties for less than their true value “on paper” but entered into secret cash deals with the purchasers and that the respondent has done so maliciously in order to ensure that the applicant will not be able to obtain what she believes is her just and appropriate entitlement following the breakdown of the relationship with the respondent.

11. In the lengthy submissions made by the Applicant in response to this application, she was wholly consumed by what she considers is the gross miscarriage of justice that has been done to her by the Respondent and by the decisions of this Court and the Appeal Court.

12. It is apparent that the Applicant does not, cannot and will not accept that she has now exhausted all avenues available to her to pursue financial orders against the Respondent in this Court and that she will continue to make such applications to the Court into the future.

13. This is borne out by the current Initiating Application before the Court. When the orders were made on 30 August 2013 dismissing the Applicant’s application pursuant to s 90SN, an order was made restraining the Applicant from filing any further applications in relation to property matters without leave of the Court. The Applicant did not seek leave of the Court to file her current application and it is clear did not understand or accept the necessity for her to do so.

14. Whilst the Applicant’s initial application for property orders was properly before the Court , I am satisfied the subsequent proceedings commenced by the Applicant in this Court and in the Appeal Court have been vexatious given they have been totally lacking in any merit. I am also satisfied that those proceedings have been instituted frequently in this Court and the Appeal Court as there have now been five such applications. I am also satisfied that if an order as sought by the Respondent is not made the Applicant will continue to make such applications.

What is the appropriate order?

1. Section 102QB(2) of the Act provides that once a Court is satisfied a person has frequently instituted vexatious proceedings in an Australian Court it may make orders:-

   (a)  an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

   (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

   (c)  any other order the court considers appropriate in relation to the person.

2. To make an order depriving someone of access to the Courts is not one that is lightly made.

3. However, in this matter it is apparent that the Applicant cannot understand that she has exhausted all avenues available to her under the Act to pursue property matters against the Respondent. As was most eloquently put by Perram J and cited with approval by Benjamin J in Cannon & Acres (supra):-

   …although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

4. The Respondent has incurred significant costs in having to answer the many unsuccessful applications brought by the Applicant. Whilst the Applicant has been ordered on occasion to pay the Respondent’s costs arising from her unsuccessful applications or appeals the Applicant has not paid these costs to date.

5. In this case the Applicant has frequently instituted vexatious proceedings in this Court and the Appeal Court. The Applicant’s current Initiating Application is without any merit. The Applicant will continue to make applications to this Court for property and maintenance orders against the Respondent which given the history of this matter, will be without merit. I am therefore of the view that orders should be made dismissing the Applicant’s Initiating Application filed 1 September 2014 as amended on 27 October 2014 and prohibiting the Applicant from instituting proceedings under the Family Law Act 1975 and in any Court having jurisdiction under the Act.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate: 

Date:  3 July 2015