Harrison & Ward
[2018] FamCAFC 136
•25 July 2018
FAMILY COURT OF AUSTRALIA
| HARRISON & WARD & KRAMER | [2018] FamCAFC 136 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal –Where there was no merit in the asserted grounds of appeal – Where there was no reasonable excuse for the delay – Application dismissed. FAMILY LAW – VEXATIOUS PROCEEDINGS – Where the first respondent sought an order preventing the applicant from filing any further applications against her until he complied with previous orders – Where the Court is not persuaded that the proceedings previously brought by the applicant in various courts meet the definition of vexatious proceedings in s 102Q. FAMILY LAW – COSTS – Where the first respondent sought an order for indemnity costs against the applicant – Where the mandatory provisions of r 22.53(3) were not complied with – Where strict adherence to r 22.53(3) would cause injustice – Where it was appropriate to dispense with the strict application of that rule pursuant to r 1.12(1) – Where the total costs cannot be scrutinised and a conservative approach should be adopted to the costs claimed – Where the circumstances were extraordinary – Where an order for indemnity costs was appropriate – Applicant ordered to pay the first respondent’s costs in a fixed sum. |
| Family Law Act 1975 (Cth) ss 94AAA(10), 102Q, 102QB Family Law Rules 2004 (Cth) rr 1.12(1), 22.13, 22.53 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1997] HCA 23 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Kramer and Anor & Ward (2017) FLC 93-817; [2017] FamCAFC 270 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271; [1990] HCA 10 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210 |
| APPLICANT: | Mr Harrison |
| 1ST RESPONDENT: | Ms Ward |
| 2ND RESPONDENT: | Mr Kramer |
| FILE NUMBER: | BRC | 4572 | of | 2016 |
| APPEAL NUMBER: | NOA | 47 | of | 2018 |
| DATE DELIVERED: | 25 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 18 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 January 2018 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms K Buckley |
| SOLICITOR FOR THE 1ST RESPONDENT: | Hartley Healy |
| FOR THE 2ND RESPONDENT: | In person |
Orders
Appeal number NOA24 of 2018 is deemed abandoned.
The Application in an Appeal filed 29 May 2018 is dismissed.
The Applicant shall pay to the First Respondent her costs of and incidental to the Application in an Appeal fixed in the sum of $15,000.00 within seven (7) days of the date of these orders.
The orders sought in paragraphs 3 and 4 of the Response to an Application in an Appeal filed 28 June 2018 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrison & Ward & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA47 of 2018
File Number: BRC4572 of 2016
| Mr Harrison |
Applicant
And
| Ms Ward |
First Respondent
And
| Mr Kramer |
Second Respondent
REASONS FOR JUDGMENT
On 29 May 2018 Mr Harrison filed an Application in an Appeal seeking to appeal out of time against orders of Judge Vasta made on 15 January 2018 (amended on 28 February 2018). The time for the filing of an appeal against those orders expired on 12 February 2018. Mr Harrison’s application is filed three and a half months after that date.
These reasons seek to explain why Mr Harrison’s application has no merit and should be dismissed. In short, no adequate, or indeed comprehensible, explanation for the delay is given and, if leave was given, the appeal enjoys negligible prospects of success.
The Material
I have had regard to the Application in an Appeal filed 29 May 2018 and the accompanying affidavit of Mr Harrison; the Response filed 28 June 2018 and the accompanying affidavit of Ms Ward’s solicitor; the transcript of the ex parte proceedings on 15 January 2018; the orders made 15 January 2018, and amended 28 February 2018; and the Reasons for Judgment of the Full Court of 21 December 2017.
Mr Harrison also filed an affidavit the day before the hearing at 4.24 pm despite having not complied with directions to file an outline of argument.[1] I have also had regard to that affidavit although it traverses historical matters which, to my mind, have no bearing on the questions relevant to the instant application.
[1] It is not necessary to make a finding in the instant proceedings as to Mr Harrison’s claim that he did not receive the order containing those direction, despite him confirming that his address is that which the court has and to which other documents have been sent and received. He says he was aware of the hearing because “it was sent by email”.
The Orders sought to be appealed
The orders sought to be appealed were made to enforce orders made by the Full Court on 21 December 2017 consequent upon, relevantly, dismissing two appeals against earlier orders of his Honour.
The relevant effect of the Full Court’s determination and orders was that money was to be paid to Ms Ward by each of the appellants: Mr Harrison and Mr Kramer. No money has been paid.
Mr Harrison claimed in proceedings instituted in May 2016 that he and Ms Ward were in a de facto relationship. His Honour found to the contrary. He appealed the consequent order. The appeal was unsuccessful.
Mr Kramer is, apparently, a solicitor and an accountant. His conduct in and about the proceedings has been referred to the Legal Services Commission by his Honour and also by Kent J who heard an Application in an Appeal that preceded the hearing of the appeal. Mr Kramer appeared before me but had no role to play in the application. He told the court that the Legal Services Commission’s investigation was “ongoing”.
As that brief outline might suggest, the background to the instant application is complicated. It is not necessary to traverse it in detail for the purposes of this application but it is important to point out that the reasons of the Full Court[2] detail very serious concerns about the conduct of both Mr Harrison and his then solicitor Mr Kramer.
[2]Kramer and Anor & Ward (2017) FLC 93-817.
Relevant Background
It is sufficient to provide an overview of the circumstances leading up to the instant application.
In May 2016 Mr Harrison filed an Initiating Application in the Federal Circuit Court of Australia seeking a property division pursuant to s 90SM. The matter was set down for a discrete hearing to determine whether there was, in fact, a de facto relationship between the parties. It was determined on 2 November 2016 that there was no such relationship.
Significantly, prior to filing his application, Mr Harrison had placed a caveat over real property owned by Ms Ward. Ms Ward sought to sell it. She agreed with Mr Harrison’s condition that the caveat would be removed if the sale proceeds were placed in his solicitor’s (Mr Kramer’s) trust account pending determination of “court proceedings”. Mr Harrison removed the caveat and the property sold. An amount of about $197,000 was placed into the Kramer Law Practice Trust Account.
On 2 November 2016 the primary judge ordered that the money held in that trust account be released to Ms Ward. It was not.
It later transpired Mr Kramer had released a portion of the money to Mr Harrison and the rest to himself. That was done without Ms Ward’s knowledge or consent.
It was also established that at some time between when the funds were placed in the Kramer Law Practice Trust Account and the making of the 2 November 2016 order, Mr Kramer transferred the funds out of that trust account and into an account connected to his accountancy practice.[3]
[3] Adverse comments were made in the Full Court referred to above, about the manner in which Mr Kramer purported to explain why and how that was done.
Mr Kramer was joined to the proceedings, and orders were made on 20 January 2017, deeming him jointly and severally liable for the money outstanding pursuant to the 2 November 2016 order.
An application for a stay of the orders made 20 January 2017 was dismissed on 31 January 2017.
On 19 July 2017 a number of appeals were heard with respect to the orders of 2 November 2016 and 20 and 31 January 2017. Those appeals were successful only to the extent that Mr Kramer’s liability was limited to the money from the trust account which he retained, not the money he released to Mr Harrison.
As has been said, the consequence was that money was owed to Ms Ward by both Mr Harrison and Mr Kramer, albeit in differing amounts.
Since the orders of the Full Court, neither Mr Harrison nor Mr Kramer has paid any money to Ms Ward.
On 5 July 2017 Ms Ward filed an enforcement warrant detailing property known to belong to Mr Harrison and to Mr Kramer.
On 15 January 2018 at a hearing before the primary judge, Counsel for Ms Ward sought that the enforcement warrant be dismissed and orders were made for the sale of the real property and vehicles owned by each of Mr Harrison and Mr Kramer.
The orders also provided for disclosure from Mr Harrison and Mr Kramer with respect to the amounts each received from the trust account of Mr Kramer, and injunctions were made preventing each Mr Harrison and Mr Kramer from dealing with property which would jeopardise Ms Ward’s receipt of monies owed to her pursuant to the Full Court orders. Additionally an extension of the writs of execution over the real properties of Mr Harrison and Mr Kramer granted in July 2017 was ordered. The orders were applied for and made ex parte.
The circumstances earlier referred to (and those discussed more fully in the Full Court’s judgment) provide an ample basis for justifying that approach. Money had not been paid despite an order being made some 12 months previously and despite the Full Court judgment that the entire amount owed by Mr Harrison remained owing and a lesser amount owing by Mr Kramer. Multiple letters requesting payment had been sent but ignored. There can also be no doubt on the material that the giving of an undertaking as to damages would be futile in this case.
It is those orders made in that manner that Mr Harrison seeks to appeal out of time.
Mr Harrison’s actions prior to the Hearing of this Application
On Wednesday 11 July 2018, the Court received correspondence from Mr Harrison indicating that he would not be attending the hearing:
Recent feedback from the Attorney General pays [(sic) says] that because of the allegations of Fraud and Misconduct in the court ,These proceedings are now at an end and have to besent back to Western Australia Supreme Court for Hearing.
also as this matter has been referred to The Australian federal Police it is inappropriate for any further action until their investigations are complete .
I will not be attending .
(As per original)
Whatever “feedback” is there referred to, it is not identified as being before the Court.
A letter was sent from the Appeals Registrar:
I refer to your email of 11 July 2018 to the Chief Justice (copy attached). You advise you will not be attending the hearing.
I draw to your attention that if a party fails to attend a court hearing, the Court may determine the application and response in the absence of the party.
A copy of your email and this correspondence will be provided to the Court hearing the application on 18 July 2018.
Nothing further was heard from Mr Harrison until, at 4.24pm on the afternoon prior to the hearing, Mr Harrison filed the affidavit earlier referred to, in person at the Brisbane Registry, and the following day Mr Harrison appeared before me representing himself.
The Applicable Principles
Applications of this type will almost invariably involve an inherent prejudice to both parties. Where an applicant appeals as of right, he or she will lose that right if the application is refused. If the application is allowed, the respondent will lose the entitlement to have the judgment in their favour carried into effect.
McHugh J said in Gallo v Dawson:[4] “[t]he discretion to extend time is given for the sole purpose of enabling the court … to do justice between the parties”. His Honour went on to identify a number of specific considerations.[5] Reference to authorities in this Court, including the decision by Kent J already referred to, reveal the following relevant considerations for an application such as is before this Court:[6]
·Is there an adequate explanation for the delay;
·Do the proposed grounds have some merit;
·The prejudice to the respondent; whether any prejudice can be compensated by an order for costs and any consequences otherwise for the parties;
·The conduct of the parties; and
·The nature of the order appealed.
[4] (1990) 93 ALR 479 at 480.
[5] (1990) 93 ALR 479 at 480.
[6] Harrison & Ward and Anor [2017] FamCAFC 99; and, for example, Joshua v Joshua (1997) FLC 92-767; Bant & Clayton [2014] FamCAFC 108.
In Joshua v Joshua,[7] Lindenmayer J placed particular emphasis upon whether “there is a substantial issue to be raised on appeal”, saying that, if there is not, “the application must fail”.
[7] (1997) FLC 92-767 at 84,440.
There can be no doubt that the merits of the proposed appeal is an important consideration, but his Honour’s statement, as it respectfully seems to me, could not be intended as fettering the discretion otherwise applicable in deciding the justice of the case which, as McHugh J points out, comprises a number of relevant considerations.
Explanation for the delay
It is important to understand that, while Mr Harrison represents himself and his material indicates on its face that he prepared it himself, this is not the first time that he has sought an extension of time within which to appeal.
The appeal earlier referred to was also filed out of time. Kent J delivered Reasons for Judgment on 30 May 2017 for making orders that day allowing Mr Harrison an extension of time within which to file his appeal against the initial orders made by Judge Vasta.
That order was made conditional upon the husband paying $50,000 into court as security for costs. It might be observed that Mr Harrison paid that sum within 24 hours as ordered. His Honour’s reasons set out the relevant principles applicable to applications to extend time. Mr Harrison cannot reasonably say he was not aware of either the time limit or the considerations relevant to the grant of an extension of time within which to appeal.
Mr Harrison’s affidavit filed on 29 May 2018 outlines his reasons for not filing his Notice of Appeal within the required timeframe. Given its brevity, the affidavit should be quoted in its entirety:
Affidavit Statement for Application to Federal Court.
1 In or About the January 2017 I lodged a complaint to Western Australian Police aboput fraud in relation to the sale of [The Western Australia property].
2 I released my caveat over when it sold in 2015 by fr that property on the understanding that she would pay me the $460.000 she owed me.
3 In 2017 I had started to comparing the sale contract with the valuation and settlement stratement and discovered a mojor discripancy in the amounts paid. By my calculation there was a shortfall of $55.000 to that at settlement received.
4 I spoke with the first respondent on or about March 2017 and she admitted she had taken $55.000 from the buyer outside the contract and nrver disclosed this to the court.
5 After my initial complaint to police I didn’t hear back from until late 2017.
6 In or about late November 2017 I received a phone call from detective [Sergeant W] from Major Fraud Squad in WA and she police had not been able to locate the first respondant and they belived that she was out of the state.
7 I told [Sergeant W] that she had been in South Australia or in Queensland and she was on the run from police.
8 [Sergeant W] was not able to further the fraud investigation until she was apprehended ,they were trying to have her extaditioned to WA.
9 I trang Queensland Police Link in or about February 2018 about [Town P] Police who told me she had been arrested ther in August and served jail time at [Town B] until December 2017.
10 I told them abou the WA Fraud Squad investigation and that WA Police were seeking her arrest and Queensland Police they could not keep any longer and had to release her.
11 In or about March 2018 I rang [Sergeant W] about their investigation she said that they still didn’t know of her whereabouts and were unable to do anything at that point.
12 I was unable to appeal until I had more information from police and this only happened after the time had expired for appeal.
(Content as per original; changed from all-caps for readability)
I am unable to see how any of those matters or the combination of any or all of them either explain the delay in appealing or otherwise inform the exercise of my discretion.
It will be observed that the reasons for delay focus on one issue – an assertion of fraud and an asserted associated police investigation.
When I asked Mr Harrison whether there was anything else he wanted to say about delay, he proceeded to raise matters not deposed to. Those matters, as best I could understand them, include, variously, his financial situation, the distance between Town F (where he lives) and Brisbane,[8] and that it was “very difficult to get the right documents together”.
[8] About 160kms; two hours’ drive.
In what appears to be asserted as a separate matter to be investigated by police, to that deposed to in his affidavit filed 29 May 2018, Mr Harrison says he was assaulted by a member of the wife’s solicitor’s firm and her counsel, I gather in a lift in the court building. Again, I can’t see the relevance of this claim, including the claimed need for police investigations, as an explanation of delay.
In my view, the delay has not been adequately explained.
Is There A Substantial Issue To Be Raised On Appeal?
In the draft Notice of Appeal, under the heading relating to Leave to Appeal, Mr Harrison states that the primary judge “made orders in breach of the procedures of the court”; “made orders in excess of his jurisdiction”; and “failed to disqualify himself when the subject of complaints to the Attorney General”.
Additionally, Mr Harrison seeks to rely on Ms Ward “defraud[ing]” Mr Harrison “by taking money from the buyer of her house outside the contract”.
The grounds themselves, contained in an attachment to the Notice of Appeal, are in a similar vein:
1.The First Respondent failed to disclose at trial that she had taken $55,000.00 from the buyer outside the property sale contract.
2.Judge Vasta exceeded the Court’s authority in ordering an ex parte injunction without an opportunity to be heard when there was no evidence of any risk of flight by the Appellants.
3.No written undertaking as to damages were given by the Applicant which is required as part of an urgent injunction.
4.The Applicant has not disclosed her assets in jurisdiction and should provide security for costs for the undertaking as to damages when there are insufficient assets available. The Applicant never disclosed her financial information which is required for the undertaking as to damages in the original application.
5.The writ over the property situated at [Town F] was improperly issued as the Land Titles Act confers no jurisdiction on the Federal Circuit Court to issue writs of execution against property in Queensland.
6.Because of paragraph 4 above, any order for sale of any property under the orders is void and of no effect.
7.The orders of 15/1/18 were issued and served on me after the 7 day period for compliance had lapsed.
8.The purpose of a freezing order is to prevent abuse of process not for security of an order. A freezing order is an extraordinary interim remedy.
9.The duration of the freezing order is excessive, and the court requires freezing orders without notice to be limited to the first return date. This order has been in place for over two months.
10.The value of the assets covered by the freezing order are excessive and exceed the Applicant’s claim including costs.
11.I have been prevented by the order with dealing with assets for legitimate business, legal and personal purposes, including reasonable living expenses.
12.The legal costs of the proceedings have not been assessed and no certificate of costs has issued so enforcement cannot proceed.
13.Judge Vasta failed to disqualify himself from these proceedings despite my application to the court and the second Respondent having filed same because of complaints to the Attorney General and Parliament about his conduct.
(As per original)
It needs to be reiterated that the appeal is against an order levying execution in respect of moneys owing as the result of, relevantly, two unsuccessful appeals. Those appeals put an end to issues relating to the initial proceedings.
As has earlier been said, the circumstances of this case gave ample reason for the making of an ex parte order and his Honour provided for a return date as is required. As counsel for the respondent points out in her written submissions, “flight risk” was not the relevant issue; rather, in light of continued recalcitrance on the part of Mr Harrison and the well-based concerns as to the propriety of the conduct of Mr Harrison and Mr Kramer in and about the payment to themselves of money held on trust for Ms Ward, there was a legitimate basis for the application for, and making of, ex parte orders. I agree with the submission made on behalf of Ms Ward that an undertaking as to damages was futile in the circumstances of this case.[9]
[9] Counsel for Ms Ward referred in the proceedings before me to Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623 (Deane J) and National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271.
The purported challenge as to his Honour’s jurisdiction to make the order mirrors arguments raised and rejected by the Full Court. I should add that the grounds of appeal appear as though they may have been drafted for Mr Harrison; certainly nothing said by him – despite bald assertions effectively repeating the grounds – evidenced any understanding of any argument sustaining such a ground and no such arguments were advanced orally.
Mr Harrison refers to no evidence before me and nor does he seek to adduce any evidence before me, sustaining the ground pertaining to service.
It has not been demonstrated that the “duration of the freezing order [that is, it is assumed, the injunctions made by his Honour] is excessive”. Nor is “a freezing order an extraordinary interim remedy” (my comments above as to the drawing of the grounds of appeal and the apparent lack of understanding of, at least, this ground pertain).
As is pointed out by counsel for Ms Ward in her written submissions, his Honour’s orders of 15 January provided for a return date of 28 February. On that date, all three parties appeared. Mr Kramer applied for a variation of the order (to provide for an amount of living expenses). No application for variation was made by Mr Harrison.
It should also be pointed out that at the hearing before me, Mr Harrison was at pains to justify his recalcitrance in complying with the appealed order and, as a consequence, in not paying any money to Ms Ward. In so doing, he made it clear he would not do so, including in circumstances where I asked him for his submissions in respect of costs.
The only other ground I consider it necessary to refer to specifically is the asserted failure by his Honour to recuse himself. No application by Mr Harrison for his Honour to recuse himself is in evidence. On 28 February, Mr Kramer made that application. Mr Harrison made no such application.
In my opinion, there is no ostensible merit in the appeal as pleaded and, thus, no reasonable issue which Mr Harrison is precluded from pursuing by the dismissal of his application. I am unable to see any proper basis for the assertion in any event.
Conduct and Prejudice
Mr Harrison’s conduct in and about the proceedings and in refusing to pay money ordered to be paid by his Honour and, in his case, confirmed as owing by the Full Court, speaks for itself.
Ms Ward is precluded from receiving money that has been judged to belong to her and which, ostensibly, has been distributed to persons without lawful entitlement to it and which, despite court orders, has not been repaid (together with proper accretions).
Ms Ward’s pursuit of her lawful entitlement would be further frustrated by granting an extension of time to pursue an appeal without ostensible merit.
Not only would costs not provide adequate compensation, Mr Harrison has made it adamantly clear before me that he would not pay any such ordered costs in any event.
Conclusion
The application should be dismissed.
Costs
I sought submissions as to costs ahead of reserving my decision.
The circumstances justify an order for costs. Mr Harrison has been wholly unsuccessful. The application seeks an indulgence. It never enjoyed reasonable prospects of success. It is an indulgence in respect of an appeal against orders that seek to enforce the long-outstanding fruits of a judgment. The impropriety of the conduct of Mr Harrison (and that of a solicitor apparently acting on his instructions) gives significant cause for concern.
In my opinion the circumstances call for the extraordinary application of indemnity costs.
Ms Ward seeks (indemnity) costs fixed in the sum of $21,120.00 with respect to the Application in an Appeal. The wife’s solicitor deposes that in his experience the sum sought is “not unreasonable”.[10] He deposes to the existence of a costs agreement with Ms Ward and to some of its terms, but not others (for example hourly charge out rates and otherwise how fees are charged). The agreement is not otherwise before me. In my view, the mandatory provisions of r 22.53(3) of the Family Law Rules 2004 (Cth) (“the Rules”) have not been complied with.
[10] Affidavit of Ms Ward’s Solicitor filed 28 June 2018 at paragraph 50.
No application is made before me to dispense with that rule. However I may do so (r 1.12(1)). The strict application of the Rules should not cause injustice. Rather, their “main purpose” is to ensure resolution of cases “in a just and timely manner” and in order to do so that main purpose is to be achieved by, among other things promoting “the saving of costs”.[11]
[11] See, rr 1.04 and 1.07, respectively.
Putting Ms Ward to the time trouble and expense of seeking an assessment is not warranted and all the more so in light of Mr Harrison’s statements to me that he will not, in any event, pay any ordered costs. Strict adherence to r 22.53(3) would cause an injustice.
That said, the justice of the case requires account to be taken of the fact that the total costs cannot be scrutinised by the court in the manner which the rule envisages and a conservative approach should be adopted in approaching the costs claimed. The justice of the case also demands my fixing the costs.[12]
[12] See, for example, Parke & The Estate of the Late A Parke (2016) FLC 93-748 at [128] – [131].
In the exercise of my discretion, I propose to fix costs at $15,000 which is approximately two-thirds of the amount claimed. Experience with both the scale of costs and the amounts that might reasonably be charged pursuant to costs agreements, reveals in my view that this sum is more than reasonable for indemnity costs in the circumstances of this application.
In light of Mr Harrison’s expressed recalcitrance, Ms Ward’s pursuit of her remedies as a result of the dismissal of the instant application should not be delayed. I will allow seven (7) days for payment.
Conclusion
Mr Harrison will be ordered to pay within seven (7) days of the date of these orders, Ms Ward’s costs of and incidental to the Application in an Appeal fixed in the sum of $15,000.
The Respondent’s Application
Ms Ward seeks a vexatious proceedings order against Mr Harrison, the effect of which would be to restrain him from filing any further proceedings against Ms Ward under the Family Law Act1975 (Cth) (“the Act”), until he has complied with the Full Court’s orders for the payment of money to her.
The Court’s power to make a vexatious proceeding order rests in Part XIB of the Act. Section 102QB(1) prescribes the preconditions for the Court exercising a discretion to make one of a number of specified orders in s 102QB(2).
Vexatious proceedings are defined in s 102Q as:
(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 to as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
It is important to note that s 102QB(1)(a) requires a person to have frequently instituted or conducted proceedings which meet that definition “in Australian courts or tribunals”.
Ms Ward’s solicitor deposes to proceedings filed against Ms Ward by Mr Harrison as follows:
·The application for property adjustment in the Federal Circuit Court of Australia which was dismissed;
·The appeal, earlier referred to, which was dismissed and which resulted in the orders to which earlier reference has been made;
·A second appeal (heard at the same time) which was dismissed; but arising out of the same proceedings as the appeal just referred to;
·Application for, apparently, damages filed in the Brisbane District Court, asserting a breach of an oral contract that appears to have its foundations in the fact scenarios similar to that raised in the proceedings in which he sought a declaration that there was de facto relationship. It is deposed that “[t]he claim has gone stale”; and
·An application in the Town C District Court seeking “damages” in the sum of $460,000.00. That appears to also arise from breach of an oral contract and, once again, it appears to be based on a factual scenario rising out of the interrelationship between Mr Harrison and Ms Ward that gave rise to the claim for a de facto relationship.
In support of the application, the written outline of argument on behalf of Ms Ward refers to Pencious & Searle,[13] which cites Official Trustee in Bankruptcy v Gargan (No 2).[14] The quoted passage from the latter case refers, in turn, to a number of principles, perhaps more accurately indicia, that might inform the making of such an order.
[13] (2017) FLC 93-805.
[14] [2009] FCA 398.
It is pointed out that the order is “an extreme remedy” because it deprives a citizen from having “recourse to the enforcement of the law which is every citizen’s ordinary right”. Secondly it is said that the purpose of the order is not punishment for “past litigious misdeeds”.[15]
[15] [2009] FCA 398 at [2] and [3], respectively.
The statements made by Mr Harrison during the course of the proceedings before me while, perhaps borne out of anger or frustration, nevertheless indicate on their face continued recalcitrance and, perhaps, the further pursuit of litigation. Similarly, I have made comment that the proceedings in other courts, at least as described in the affidavit material before me, appear on their face to have their origins in facts that were also germane to the unsuccessful argument by Mr Harrison that a de facto relationship existed with Ms Ward.
On the material before me I am not persuaded that, for all the failings in the proceedings to which reference has been made, Mr Harrison has “frequently instituted or conducted” proceedings which meet the definition of “vexatious proceedings” in s 102Q.
Conclusion
The respondent’s application for a vexatious proceedings order should be dismissed.
Additional Appeal
Mr Harrison filed a Notice of Appeal against the orders made by Judge Vasta on 28 February 2018, earlier referred to.
That appeal, appeal NOA24 of 2018, was filed within time. However, Mr Harrison was directed to file an appeal index by 3 May 2018. This was not done. As a consequence this appeal is deemed to be abandoned pursuant to r 22.13(3) of the Rules.
A letter to that effect, including reference to s 94AAA(10) of the Act was forwarded by the Appeals Registrar to Mr Harrison on 9 May 2018. No application for reinstatement has been filed.
I will order formally to that effect.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 25 July 2018.
Associate:
Date: 25 July 2018
8
6
2