Egbert and Egbert (No 2) - [2016] FamCA 663

FAMILY COURT OF AUSTRALIA

EGBERT & EGBERT (NO 2)

[2016] FamCA 663

FAMILY LAW – Vexatious proceedings.- Application fails.

Family Law Act 1975 (Cth)

Marsden & Winch [2013] FamCAFC 177

APPLICANT:

Ms Egbert

RESPONDENT:	Mr Egbert
FILE NUMBER:	MLC	2964	of		2008

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

5 August 2016

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

That the application (paragraph 9) contained in the response of the wife filed 26 February 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Egbert & Egbert (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2964 of 2008

Ms Egbert

Applicant

And

Mr Egbert

Respondent

Resurrect

REASONS FOR JUDGMENT

This discrete application by Ms Egbert (“the applicant”) seeks an order under Part XIB of the Family Law Act 1975 (Cth) (“the Act”) that Mr Egbert (“the respondent”) be prohibited from instituting proceedings under the Act. The applicant did not express her application in that way, but rather, that the respondent be declared a vexatious litigant. There can be no doubt that the order sought in her response on 26 February 2016, and which she drew herself, is directed to Part XIB of the Act.
The respondent has in the past represented himself in proceedings in this Court and continues to do so. The applicant was to have been represented by counsel but says he has been hospitalised. The respondent seems to doubt that, even suggesting that a medical certificate should be produced. Obviously, counsel is not a witness and that suggestion was not appropriate. However, that sort of approach by the respondent colours the way he approaches litigation.
In this case I have not taken that last point into account because I am aware that previously and, indeed, in cross‑examination today, the respondent has suggested that there was a relationship between counsel and the applicant, such that whatever professional money was to be paid was, not paid. To the extent that might be relevant to that present application at all, I reject the assertion as there is no evidence of it.
There was considerable cross-examination about a subpoena to the barrister’s clerk, but I know nothing more about it other than what the respondent says. He says that not only was the taxing registrar “conned”, but so was he, as a consequence of which he knew nothing about the question of whether counsel was paid until he proceeded to pursue subpoenaed records. The issue is not relevant to this application.
Because of the paucity of the applicant’s evidence, I warned the respondent that he was unwittingly cross-examining the applicant in such a way that strengthened her argument for an order as she sought. In other words, I cautioned the respondent that his very approach to the applicant (who says she is fearful of ongoing attacks through litigation) may very well establish what she says, that is, that his whole purpose is to annoy or harass her. I have no doubt the applicant believes that. Vehemently, the respondent denies it.
The absence of the applicant’s counsel no doubt made her task more difficult this morning, but whilst initially suggesting she needed an adjournment she withdrew from that position and then proceeded. Indeed, after having had some time to cross-examine the respondent, which she did extremely efficiently, I am sure that any of her inadequacies by not having counsel here, may not have made much difference.
Just exactly what the respondent’s motive is for continuing any family law proceedings remains obscure because of the way the evidence has unfolded. The applicant could, unfortunately, still only highlight the extensive nature of the background of the substantive litigation which on any view, remains partly unconcluded because the satisfaction of a property order remains outstanding. As I observed in discussion, to an extent, that ultimate resolution is still in the applicant’s hands rather than those of the respondent.
There have been extensive parenting proceedings between the applicant and the respondent. The child who is the subject of those proceedings is now almost 14 years of age. It would be a very brave move by the respondent to bring any proceedings in relation to that child, bearing in mind she is not far off adulthood.
There was much argument about the accuracy of a chronology attached to the applicant’s second affidavit, but it seems to me whether it is entirely accurate or not, it does no more than detail in a chronological way a very sorry litigious tale between the applicant and the respondent about both parenting and property issues.
For the reasons that I will now set out, I will not make an order sought by the applicant.
The substantive proceedings between the applicant and the respondent are, indeed, longstanding. The file record speaks for itself. It carries a 2008 year number. That is eight years of disputes, one of which remains, unconcluded. The document which encapsulates this particular discrete application is numbered 232. The Court’s file is in boxes. The proceedings have involved a number of hearings and this, in particular, shows that the Court’s resources have been used extensively by both of these parties. Despite all of that, I am not satisfied that the applicant has established on the evidence, the necessary criteria for making the order she purports to seek.
I have referred to Mr Egbert as the respondent. He brought proceedings in January 2016 to which Ms Egbert responded on 26 February 2016. On 2 March 2016 I dismissed all of the applications and responses save for the applicant’s application for orders about declaring the respondent a vexatious litigant. Because that application is the only one alive, I felt it was appropriate to refer to Mr Egbert as the respondent.
Because the evidence of the parties was in the affidavit material filed, I think it is important that I give some indication of just exactly what each party has said in written form. The February affidavit of the applicant was addressing a whole raft of other issues but her March affidavit is much more discrete. In her February affidavit, the applicant said that she had asked for an order that the respondent be declared a vexatious litigant in proceedings before Thornton J in what seems to me to have been parenting proceedings, but she withdrew that on what she describes as the “advice” of Thornton J. She says that Thornton J stated that any future actions related to this Court might be reviewed by her Honour prior to initiation. I do not have a transcript of that statement, but it seems unusual.
The applicant goes on to say that since 2008, the respondent has been involved in frequent and repetitive unsuccessful legal actions for the purpose of disrupting her family life and financial wellbeing and her personal life which has impacted upon her professional career. She then set out a list of 27 particular hearings, but that is not a true reflection of what has actually happened in this litigation. They seem to reflect the final hearing day or the day the order was made. In some cases, the hearings went for a number of days, so on any view the Court has had significant involvement in these parties’ lives.
That said, the evidence discloses that there have also been proceedings in the Federal Circuit Court. The parties have been at a family relationship centre. They have been to VCAT, and on any view they have had taxation disputes before a registrar about costs. When one looks at the respondent’s side of the story, he portrays a picture which he not only set out in evidence but also maintained in his final statements, that he had little choice but to do what he did. There is other litigation unconnected with all of this from years ago, but I am not taking that into account because the evidence is not before me.
In his affidavit in reply, which he filed in March - so he had the benefit of the applicant’s two affidavits – the respondent set out a long argument about why the applicant’s evidence was false and misleading. Subjectivity is a difficult thing in litigation and many people see the same things in different ways. Much of the evidence in the respondent’s affidavit filed on 31 March was unhelpful because all it did was argue the very cause that I have now heard.
For example, the respondent refers to noncompliance with the rules. He stated that every time a document is filed and served there must be an affidavit of service filed and that the applicant had not done that. That is clearly wrong. He cross-examined the applicant about the purpose of her application in a case filed earlier in the year, saying that it had nothing to do with an enforcement of the Court’s orders, but when one looked at the document, it clearly did. He conceded that he was mistaken.
All of these things add flavour and colour to the very proceedings before the Court. I do not intend to set out all of the evidence of the respondent because in reality, as I said, it is mostly argument, but when he was cross-examined about such issues as costs, he conceded that at one particular point, he had agreed that a payment of his costs obligations would be made but on his behalf by his parents. Whether he had their agreement to make that arrangement or not, matters not, because in the end, the money was not paid and he ended up facing further proceedings that involved the applicant in further litigation.
One of the difficulties with all of that, however, is that it is now historical because in February 2016, I made an order offsetting any costs that the respondent owed the applicant against money that she owed him. There is little likelihood of that problem arising again unless there is further litigation.
Considerable time was spent looking at what might be described as a health issue. The applicant accused the respondent of having subpoenaed her personal medical records through a process that somehow seems to have ended up in VCAT, the Federal Circuit Court and, ultimately, here, but nothing that I saw, nor any evidence I heard, corroborates her assertion and, the respondent denies seeking that material. All of the evidence seems to have pointed to the fact that he was trying to find out about his daughter’s counselling which, presumably, was part of the proceedings some years ago.
It might be good to again remind the respondent that his daughter is nearly 14 years of age. It might be time to say enough is enough. The respondent’s argument - and as I said, that is what it is, rather than evidence - really complains about the inaccuracy of the applicant’s material but it is the nature of the applications and the evidentiary material, rather than whether or not they were entirely accurate and/or they complied with the rules of Court, that really matters.
That is important because what the applicant must establish for the Court to make the order that she seeks is that, effectively, proceedings are being used by the respondent as an abuse of the processes of the Court for the purposes of affecting her in some way.
There can be little doubt that to make an order declaring a particular litigant as vexatious is a very harsh order. The respondent correctly points out that an order would limit his rights to bring what might otherwise be seen by him, and possibly others, as legitimate litigation. There can be no doubt, however, that he is misguided because if an order was made, he could still make an application to a judge. In his evidence, the respondent also said:
I have at all times been respectful of Court processes, procedures and protocols.
That is a mantra that I have heard again today. It misses the point about why the law provides the provision to stop particular litigants from instituting, and more importantly, continuing, litigation in this Court, let alone other Courts.
Children and financial matters should be quickly dealt with in respect of any unresolved dispute about parenting and property so that the parties’ fractured relationship can be concluded and children, in particular, can get on with their lives.
On any view, that just has not happened here after eight years. It is rare to see a situation like this and that justifies the Court having a careful examination of whether or not the last proceedings were brought for other than legitimate purposes.
The respondent correctly pointed out that the proceeding that I am dealing with is under section 102QB of the Act. That section provides that a Court must, to make an order, be satisfied that a person has frequently instituted or conducted vexation proceedings. If a Court makes that finding it can make an order prohibiting the person from instituting proceedings or proceedings of a particular type under the Family Law Act in a Court having jurisdiction under this Act.
Before a Court can make such an order it has to have regard to the type of proceedings that are instituted, the orders being made by an Australian Court or tribunal, and most importantly of all, “The person’s overall conduct in proceedings conducted in any of those Courts”. In other words, not just in this Court.
Vexatious proceedings is defined in section 102Q of the Act but the limited definition is not exclusive or exhaustive. The Court can determine what is a vexatious proceedings outside of some of the things that are mentioned in the Act. But the Act describes vexatious proceedings as including proceedings that are an abuse of the process of a Court or a tribunal, proceedings instituted in a Court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose, proceedings instituted or pursued in a Court or tribunal without reasonable ground and 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.
The Full Court of this Court in Marsden & Winch [2013] FamCAFC 177 considered a decision of the Supreme Court of New South Wales in Attorney-General v Wentworth (1988) 14 NSWLR 481. In that decision, Roden J looked at the word “vexatious” and said as follows:
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.
It is not the number of applications or hearings or their duration that matters, but something about the way the proceeding is conducted that is consistent with a lack of bona fides or consistent with an ulterior motive.
The applicant has to prove that the respondent’s conduct was really about harassing or inconveniencing her or causing her detriment, or that he was endeavouring to achieve a purpose other than the one that he states.
The respondent’s proceedings must be more than just nuisance value. There must be some sort of mischievous subjective intent. But the Court is also entitled to look beyond just the conduct directed at the applicant to see whether the public’s resources also need to be protected against repetitious proceedings which have little purpose other than to cause mischief.
Thus, the respondent’s evidence that he had been “respectful” of the Court’s process may well be true. But if there is a mischievous intent to hassle the applicant whilst at the same time tie up the Court’s limited resources with trivial issues, the Court can apply the provision to protect its own resources. That must be carefully considered, though, because every person has a right of access to justice and particularly so with a litigant who represents himself because he or she can sometimes obscure a genuine cause of action.
Hence, the Court’s resources are an issue and they require consideration as to whether the respondent’s application, albeit a cause of action, is baseless, trivial, or unnecessarily repetitious.
If the proceedings are persistent and the respondent takes every point without any serious attempt to end the litigation, the Court might be entitled to step in regardless of the access to justice entitlement. That is particularly so where the application by its very nature is hopeless, unnecessary or just an abuse of process. That raises the difficult question of the misguided litigant who genuinely believes in the necessity to bring the action. Again, a Court must be cautious about denying such a litigant a hearing, but usually the persistence of the litigant will point to hopelessness, annoyance of the other party, or just a plain abuse of the court process.
Ultimately, the underlying purpose of the legislation is to protect litigants and the system of justice against all of that. When I consider the evidence here, the respondent observes that not only was he concerned for the welfare of his daughter in the litigation about her, but in respect of the financial proceedings, he had not had been paid his due entitlements. When he brought the enforcement proceedings relating to his property entitlement, he conceded at the end and, indeed, concedes again today, that he was misguided and wrong about the nature of his application. In other words, he misunderstood what he had to do. Assessed objectively, those sorts of applications, and the reasons for them, are quite plausible.
I would hesitate to reject a request to hear a parenting application where there were welfare issues evident. On the evidence today I am satisfied that notwithstanding the respondent went to VCAT, the Federal Circuit Court and, indeed, here, and was issuing subpoenae, all were about whether or not his daughter was receiving counselling. Normally parental responsibility would have entitled him to ask the child’s doctor what was going on, but his evidence was that he brought litigation because the doctor did not give him what he wanted. He therefore had no alternative.
It is not my function to review the parenting proceedings. In any event, those issues have now been put to rest by Thornton Js orders. Similarly, in respect of financial matters, the respondent is entitled to his property and must be allowed to pursue orders if he cannot obtain his entitlement properly.
In the case of the financial circumstances, the money is still owed to the respondent and the applicant has done nothing about paying him. In respect of the parenting matter, that issue has now been resolved by Thornton J and, as I indicated earlier, the child is nearly 14 years of age.
Intermingled with all of those issues are the costs matters. The parties did not reach agreement about costs which obliged the applicant to go to a registrar to get them fixed and, even there, a dispute arose. But the difficulty is, of course, there was no other way of the matter being sorted out.
In my view, having regard to all of those matters, I could not be satisfied on the applicant’s evidence, and in particular her cross-examination of the respondent, that the respondent has been mischievous or that he has brought proceedings for the purposes of an abuse of process in wasting the Court’s resources, nor that he has done anything deliberate for the purposes of harassing the applicant.

On that basis the applicant fails and must be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 August 2016.

Associate:

Date: 11 August 2016