JB & BW - [2006] FamCA 639

[2006] FamCA 639

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA               Appeal No EA139 of 2005
AT CANBERRA  File No CAF672 of 1995

BETWEEN:

JB
Appellant Husband
- and -

BW
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  BRYANT CJ, KAY & BOLAND JJ
DATE OF HEARING:               10 July 2006
DATE OF JUDGMENT:            21 July 2006

APPEARANCES: The Appellant Husband appeared in person
Mr Farrar, instructed by Farrar, Gessini & Dunn, Solicitors, 5^th Floor, 17-21 University Ave, Canberra City, ACT 2601, appeared on behalf of the Respondent Wife.

JB & BW

EA139 of 2005

CORAM: BRYANT CJ, KAY & BOLAND JJ

DATE OF HEARING: 10 July 2006

DATE OF JUDGMENT: 21 July 2006

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – APPLICATION TO SET ASIDE – SUMMARY DISMISSAL - Orders made in 1998 for husband to pay to wife $43,000 by way of property settlement – In 2005 husband sought to reopen proceedings via s 79A(1) of the Family Law Act 1975 – Husband appealed against summary dismissal of his claim by the trial Judge – Trial Judge may have approached the task erroneously by suggesting that the husband needed leave of the court in order to bring the claim – No leave of the court was required as husband could bring the s 79A application as of right – Section 79A application nevertheless doomed to fail and summary dismissal the appropriate outcome.

APPEAL – FURTHER EVIDENCE -Husband sought to rely upon bank statements of the wife and other material – Nothing to suggest this material was not available before the trial Judge or that it could demonstrate a miscarriage of justice in the original trial – Application refused.

This is Mr B’s appeal against orders made by Faulks DCJ on 1 November 2005 that summarily dismissed applications filed by the appellant on 21 June 2005 and restrained the appellant from bringing any further proceedings relating to questions of property or matrimonial causes arising under the Family Law Act 1975 (Cth) (“the Act”) without leave of the Court. Whilst we appreciate the parties were divorced in 1996, for convenience we will refer to the parties in our reasons as “the husband” and “the wife”.

By his amended Notice of Appeal the husband seeks the following:

“1.That all of the orders of his Honour Justice Faulks made on 1 November 2005 be set aside.
2.That Orders 3 and 4 of his Honour Justice Rose made on 29 August 2005 be discharged.
3.That the Application in a Case of [JB] pursuant to s. 79 and s. 80 of the Family Law Act filed in Canberra on 21 June 2005, be set down for hearing before a single Judge.
4.That the respondent pay the cost of the proceedings on 29 August 2005, 20 October 2005, 1 November 2005 and of this Appeal.”

Application in a Case filed 16 February 2006

On 2 May 2006, we heard an application filed by the husband on 16 February 2006. By the time of the hearing before us the husband sought the following orders:

“3. That pursuant to Family Law Act section 93A the applicant be granted leave to adduce fresh and further evidence during the hearing before the Full Court of his appeal.
4. That the respondent and [her solicitor] be available for cross examination before the Full Court in the applicant’s appeal.”

The husband set out the further evidence he sought to adduce in an affidavit sworn 17 March 2006 with voluminous annexures, including transcript of interlocutory proceedings before Finn J on 6 February 1995. We will discuss later our reasons for rejecting the husband’s application to adduce further evidence, and to cross examine the wife’s solicitor, at the appeal.

Background

The parties married in July 1991 and separated in January 1995. Their marriage was subsequently dissolved in 1996. There were no children born of the marriage.

In 1992 the husband incorporated a company known as CM Pty Ltd (“CM”). The initial directors and shareholders were the husband and wife. CM carried on a business from rented premises in F.

In July 1993 the husband was made bankrupt. Around this time he purportedly transferred his share in CM to his daughter of his previous marriage who was then aged 14 years. His accountant’s son, MG was appointed a director. The husband continued to work in the business. The husband’s bankruptcy was annulled on 1 May 1995.

The initial proceedings before the Court were commenced on 31 January 1995 when the wife sought orders aimed at preserving CM’s monies and permitting her to carry out her duties as a director. Orders were made on an interim basis permitting the wife, to the exclusion of the husband, to be the sole operator of CM. Shortly after those orders were made the wife fell ill and the day to day management of CM was entrusted to one of the employees of the company. By June 1995 a meeting of company creditors resolved the company should be wound up.

In mid-1995 a new company C & CL Pty Ltd (“C & CL”) commenced to conduct a similar business at the same premises. The husband was the sole director of the new company.

In 1996 the wife commenced both maintenance and property proceedings. On 16 July 1997 Graham J ordered the husband pay the wife $70 per week by way of spousal maintenance.

Eventually the wife’s applications for maintenance and property settlement came on for final hearing before Finn J. Her Honour heard evidence over four days in October 1997 and delivered a judgment on 27 February 1998. Her Honour ordered the husband pay the wife $43,000 by way of property settlement within three months. Her Honour secured the payment of those monies by a charge against the husband’s shares in C & CL. Her Honour ordered the husband to deliver up certain chattels to the wife within seven days and continued the order for maintenance in the sum of $70 per week.

The husband sought to appeal the orders made by Finn J. On 23 September 1998 a Full Court ordered that unless the husband complied with an order for security for costs of the appeal in the sum of $5,000 which order was made by Faulks DCJ on 19 May 1998 and filed the necessary appeal books within 28 days the appeal would stand dismissed. The husband did not comply with the conditions and the appeal proceeded no further.

After a protracted series of further proceedings that saw the husband endeavour unsuccessfully to attempt to challenge the interlocutory proceedings that had occurred prior to Finn J’s orders of 27 February 1998 and which saw the husband imprisoned for 10 days for failing to comply with some of the orders made by her Honour, on 21 June 2005 the appellant filed two applications.

In a document headed “Application for Final Orders” the appellant sought the following orders:

“1.That the respondent wife and her solicitors be held liable for the applicant’s cost [sic] and damages since January 1995, and those of his new family.
2.That pursuant to order 1 the applicant is granted leave to file further applications.
3.That the respondent pay the cost of these proceedings.”

By an Application in a Case filed on the same day the applicant sought an order:

“That all of the orders made by the Honourable Justice Finn on 27 February 1998 be set aside.”

On 25 July 2005 the wife filed a response in which she sought inter alia orders for the summary dismissal of the husband’s applications and orders restraining the husband from instituting any other proceedings under the Act arising out of or relating to the marriage without leave of the Court.

On 29 August 2005 Rose J stayed the husband’s s 79A application until such time as the wife’s application for summary dismissal could be heard and restrained the husband from filing any further affidavit material.

On 28 October 2005 the husband filed an amended application for final orders seeking orders as follows:

"1.The applicant applies for cross-vesting of the Corporations Act (Cth), the Bankruptcy Act (Cth), the Trade Practices Act (Cth), and the Federal Court of Australia Act.
2.That pursuant to s. 79A of the Family Law Act this honourable Court rule that, the Judgment and Orders of the honourable Justice Finn J on 27 February 1998 were obtained inter alia by fraud, the giving of false evidence, withholding vital evidence, conspiring to defraud, conspiring to pervert the course of justice, misleading and deceptive conduct, breaches of fiduciary duty, breaches of the Corporations Act (Cth) and of the Bankruptcy Act (Cth), and that the respective proceedings since 6 February 1995 miscarried on those grounds.
3.That all of the orders made by her Honour Justice Finn on 27 February 1998 be set aside.
4.That pursuant to the Bankruptcy Act 153B the husband's bankruptcy No. ACT 433 of 1998/3 on 11 September 1998 be annulled.
5.That within seven days of this order the respondent's solicitors Messrs Farrar Gesini & Dunn pay the husband the surplus of $30,753.22 received from the liquidation of [C & CL] Pty Ltd, CPI indexed, with interest at the prescribed rate.
6.Subject to this honourable Court making of Order 4 hereof, that pursuant to s 79A, s 80 and s. 119 of the Family Law Act the husband is granted leave to put his case to this honourable Court for personal injury, wrong, personal loss, loss of income, and damages caused to himself, to his spouse, and to members of his family, by the wife and her solicitors since 7 July 1991; or
7.In the event that Order 4 hereof is not made, that pursuant to s. 79A, s 80 and s. 119 of the Family Law Act the husband is granted leave to put his case to this honourable Court for personal injury and wrong done to himself, to his spouse and to members of his family, by the wife and her solicitors since 7 July 1991.
8.That the wife and her solicitors are jointly and/or severally liable and pay for such injury, loss of income, and damages caused to the husband, to his spouse, and to members of his family by either and/ or both of them since 7 July 1991, as may be determined by this honourable Court.
9.That the respondent pay the cost of the entire proceedings since 6 February 1995."

The wife’s application for summary dismissal and what we shall conveniently refer to as s 118 relief came on for hearing before Faulks DCJ in October 2005 with judgment being delivered on 1 November 2005.

The judgment

Early in his Honour’s judgment his Honour cited two passages from D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92:

"34. An essential and pervading tenet of the judicial system is that controversies once resolved are not to be re-opened except in a few, narrowly defined circumstances. That tenet finds reflection in the restriction upon the re-opening of final orders after entry, and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. These doctrines prevent a party to a proceeding raising in a new proceeding against the party to the original proceedings, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceedings could have been raised in an earlier proceeding.
35.The principal qualification to the general principle that controversies once quelled may not be re-opened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal, in particular the so-called fresh evidence rule, are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: 'It is fundamental to the due administration of justice that substantial issues between the parties are ordinarily settled at the trial.'"

His Honour indicated that the application for summary dismissal was subject to the considerations the Full Court had outlined in Beck v Beck (2004) FLC 93-181, in particular that the only evidence that should be considered was the evidence of Mr B and that any contradictory evidence about matters raised by the wife was not appropriate to the determination as to whether or not the husband had effectively mounted an arguable case.

The husband’s affidavit filed 21 June 2005 in support of his various applications was 10 pages long but included the further 180 pages of annexures. His Honour categorised the orders sought by Mr B as “a little difficult to identify”.

Turning to the amended Application for Final Orders his Honour indicated that:

· the first order sought (the cross vesting of various Commonwealth statutes) was not really an order at all;

· the fourth order seeking an annulment of a bankruptcy that had occurred after the property orders had been made was not appropriate in the proceedings and not an order which the Family Court should undertake. In any event there was no evidence to support the claim;

· the fifth order seeking repayment of monies received by the wife’s solicitors from the liquidation of C & CL Pty Ltd was unsupported by any material that would justify the making of an order even if it ought and could be made;

· orders 6 and 7 seeking damages for “personal injury and wrong done to himself and his spouse and members of his family by the wife and her solicitors” pursuant to ss 79A, 80 and 119 were “totally misguided and ought summarily be dismissed”. Nothing in any of the sections referred to could possibly be construed as providing a cause of action capable of being adjudicated in the Family Court as a claim for damages; and

· insofar as any of the balance of the application might be found in the properly cross vested jurisdiction of the Supreme Court of the Australian Capital Territory his Honour said that no tort had been specified, no cause of action identified nor was any contract or breach thereof appropriately identified. There was no evidence in relation to any of the matters asserted.

His Honour then returned to examine the s 79A proceedings making reference to the decisions of the Full Court in Patching and Patching (1995) FLC 92-585, Clifton v Stuart (1991) FLC 92-194, Prowse v Prowse (1995) FLC 92-557, and Gebert v Gebert (1990) FLC 92-137.

His Honour then said, and we think in error, that:

“50.Accordingly, the task confronting Mr [B] in this matter is first to obtain leave of this Court to bring proceedings, second to respond one might say to the application by the wife that the application in any event should be struck out at this point without further hearing. Let me first deal with the issue of leave.
51.In relation to leave, a number of matters are relevant for consideration. The first is that the leave should establish that it would overall be just that the matter should be dealt with by the Court. Second, in the circumstances of a case such as this where the leave is necessary because of the vast numbers of proceedings that have already occurred, there should be an explanation as to why the proceedings had not been brought earlier. Third, there should be a proper consideration of matters that would answer the statement of principle that I previously read from their Honours in the High Court in D'Orta-Ekenaike about the finality of litigation. Fourth, that there should be demonstrated a substantive and reasonable basis upon which the proceedings, if leave were given, might succeed. Although it is not incumbent upon Mr [B] at this point to demonstrate that he must necessarily succeed. And finally, that to grant leave, would in these circumstances not work an unreasonable injustice on the respondent.”

We say that that appears to be in error because there is no requirement of an applicant under s 79A(1) to obtain leave to bring proceedings. The section says:

“Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”

An application is brought as of right. There are no time limits within which an application must be brought. The applicant must satisfy the Court of the existence of one of the grounds set out in the various sub-sections, and that then enlivens a discretion in the Court to vary or set the original order aside and if it considers appropriate to make another order under s 79 in substitution for the order so set aside.

It may well be that in giving consideration to the exercise of the discretion, some of the considerations that are appropriate in circumstances where leave is required to commence or take a step in proceedings out of time, might be equally apposite to s 79A proceedings. There is, however, nothing within the parameters of s 79A itself that would require any of the five steps identified by the trial judge in par 51 of his judgment to be met. That having been said, it does not necessarily follow that his Honour, having inappropriately discussed immaterial concepts, has failed to properly identify and apply the correct principles in determining whether or not the husband’s s 79A application should have been summarily dismissed. Even if we are persuaded that Faulks DCJ has applied an incorrect test to determine the outcome of the application for summary dismissal, we are at liberty to make such decree as ought to have been made at first instance (see s 94(2) of the Act).

His Honour’s inappropriate application of principles relating to applications that require leave is further manifested in his concluding remarks relating to the dismissal of the application where he said:

“78. Accordingly, in my opinion, no leave should be granted to Mr [B] to re-open the proceedings based on substantive grounds for the purposes and reasons that I have outlined above. Moreover, may I say this and I say it with genuine sincerity, notwithstanding the concern and indeed sympathy I feel for Mr [B] in the disastrous turn his life took some time around about the 1990s, there has to be an end at some point to litigation, and that end ought properly to have come when Mr [B] exhausted his remedies on appeal. Mr [B] in fact took the questions that he so ably researched, (and I say ably with genuine admiration for him), to the High Court, the highest court of appeal in this land and was unsuccessful.

79.In those circumstances, in my opinion even if there were substantive grounds for granting leave to begin proceedings, that leave should be denied because of the time that has now elapsed since the original proceedings. Moreover, even if that leave were granted, it seems to me that it is a valid ground for refusing to make an order under s 79(5) that so much time has now elapsed that the order ought not properly to be set aside.
80.The Act in itself in its terms does not provide a basis for saying that there is any time restraint on the setting aside of orders, but the practices of courts in general and common sense suggests that except in the most extraordinary circumstances, any application to set aside orders should be brought promptly to enable all those who are in a position to do so, to formulate their case and argument before the Court.
81.Accordingly, in my opinion, the leave should not be granted and moreover, appropriately in my opinion, there should be a summary dismissal of the application not only for leave but also under s 79A of the Family Law Act to set aside the previous orders.”

In the course of his Honour’s judgment relating to the basis upon which it was appropriate to summarily dismiss the application, his Honour analysed both the reasons for judgment of Finn J in making her Honour’s orders for the payment of $43,000 to the wife and the further material then sought to be relied upon by the husband as constituting an arguable ground under s 79A.

The well-established preferred approach to be followed in property settlement cases was restated in Hickey v Hickey (2003) FLC 93-143, 30 Fam LR 355 at paragraph 39 as follows:

“Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case”.

Following that prescription Finn J found that the wife had no property other than furniture worth about $2,000. She found that the husband had a home at F and his shareholding in C & CL Pty Ltd. In the absence of a proper valuation she found the equity in the property at F to be between $12,000 and $32,000. She concluded that the husband had been less than cooperative in providing appropriate evidence relating to the value of C & CL’s assets and said that she could:

“only infer that the husband is endeavouring to hide from the wife and the court the fact that his new business is an asset of some value.”

Her Honour went on to say that because she did not know the value of the husband’s present property it would be impossible to record appropriate percentage assessments to the normal matters under s 79(4).

As to the second step of evaluating contributions, Finn J having found that the wife had received $14,700 as an insurance payment on a motor vehicle and had an entitlement to $66,000 by way of property settlement from a prior relationship, accepted the wife’s evidence that from the $66,000 she actually received $46,000 plus interest of $3,000, the balance being used to pay legal and other costs associated with the settlement. Her Honour said:

“Overall then, the wife had available to her at about the time of the marriage, funds totally $63,700 (constituted by $46,000 on account of the property settlement; $3,000 for interest; and $14,700 being the insurance payment for the car). She also claims to have had furniture worth about $3,000.”

Her Honour held that of the $63,700, $57,500 was used for family purposes.

Her Honour also made reference to a deed executed between the parties in September 1991 that acknowledged that the husband held one-third of his property at F on trust for the wife, she having paid him $45,000 towards the purchase price of the property, the receipt of which he acknowledged. Her Honour said:

“It is the husband’s evidence that prior to the execution of the deed the wife was anxious about the security of the sum of $43,000, which the husband is prepared to concede she had advanced either for family or business purposes and which sum the husband also conceded was ‘rounded up’ to $45,000.”

Her Honour noted that in July 1993 the husband had become bankrupt and in his statement of affairs he listed the wife as a secured creditor for a debt of $45,000. He also listed her as an unsecured creditor for a debt of $15,000.

Her Honour ultimately concluded that the parties had started life together with assets probably of an approximately similar net value. The husband made a greater contribution in terms of effort to the joint business of CM Pty Ltd but the wife did some work in it. She also had casual employment, and did such cooking and household chores as were done during this three and a half year marriage.

Her Honour then identified matters which might be properly given consideration under the provisions of s 79(4)(e) of the Act and under the heading of “Section 75(2)(o) ‘Other Matters’” returned to considering the relevance of the deed. Her Honour appeared to be less than satisfied as to the explanation as to the creation of the deed or the form that it took but did conclude:

“… overall I am prepared to conclude that the intention of the parties at the time of the deed and certainly up to the end of 1993 (when the husband compiled his Statement of Affairs in relation to his bankruptcy) was that the wife had made a loan to the husband or the business of the sum of $43,000, which loan was to be secured against the [F] home.”

Her Honour’s conclusion regarding s 75(2) matters was:

“Thus in summary the important s.75(2) matters in this case are the wife’s lack of income earning capacity relative to that of the husband and also her generally poorer financial situation when compared with that of the husband - whose superior financial situation can only be inferred from his failure to make adequate disclosure to this court, and which can be taken to exist notwithstanding his responsibility to his present wife and child. In addition there is the matter of the parties’ initial intention to provide the wife with security for her advance of $43,000.”

Her Honour described the difficulties that surrounded a determination of the present value of the [F] home, and also the much greater difficulties associated with a valuation of the husband’s new business because of his “non-disclosure”. Given these circumstances, her Honour concluded that the just and equitable outcome would be to grant the wife the effective return of the $43,000 “which she had advanced to the husband on the business in the early months of the marriage”.

Her Honour also determined that it would be appropriate to continue the award of $70 per week maintenance that had been earlier ordered by Graham J.

In the course of analysing the judgment of Finn J for the purposes of understanding the case sought to be argued by the husband to set the orders aside, Faulks DCJ said:

“The nature of the matters that Mr [B] has put before the Court in his affidavit upon which he is obliged to rely for these purposes, are as follows. First, he draws attention he says to the fact that there was both deception or omission or both from Ms [W] in the original proceedings before her Honour in that she failed to disclose to the Court, he says, that she did not have the amount that was asserted by her during the proceedings as a result of a previous property settlement between her and her husband before Mr [B]. The proof that Mr [B] offers in relation to that is the bank statements of Ms [W] (or of CM Pty Ltd to be more precise), at the relevant time. He says in submission to me today, although it is not otherwise I think in evidence, that there were no other bank accounts that she had at the relevant time.”

In the course of the appeal before us, and apparently in argument before Faulks DCJ (but we are hampered by the absence of any transcript of those proceedings as it was not provided by the husband) it appeared that the only evidence the husband sought to rely upon that was not available to be presented to Finn J was some bank statements of the wife with the State Bank of NSW for the period from 24 May 1991 to 23 September 1991. There are three significant credits in those accounts during that period, being 24 May $14,700, 4 July $12,500 and 20 August $24,000. It was the husband’s assertion before Faulks DCJ and before us on the appeal that those statements conclusively demonstrate that the finding by the trial judge that the wife received $46,000 plus interest of $3,000, in addition to the insurance payment of $14,700, had been wrongly arrived at as a result of fraudulent evidence given by the wife and by the withholding of her bank statements that clearly demonstrated the error of the finding. His Honour rejected this evidence as demonstrating an arguable case saying:

“58.….Annexure A of the documents of Mr [B]'s affidavit before this Court are essentially all documents that were before Finn J with the exception of bank statements which he says he has only recently been able to obtain. He asserts that these were withheld during the original proceedings. However, even if those facts were true, and they were withheld, he had only recently come across them. This would both explain his delay in bringing proceedings and would also explain why they were not before the Court originally and why they were now relevant to the determination of setting aside of the orders. Even if that were true, there is nothing on the material produced by Mr [B] which would suggest that the money could not have been in some other place other than in the bank account that he now produces. In fact, the finding of her Honour was based on matters other than bank accounts and it was not necessary in my opinion for the determination she made for those bank accounts to be produced. That is not to excuse if indeed it were found to be so, the suppression of such material by the wife, nor would it reasonably explain why it was suppressed. However, those are not matters that are relevant to a consideration of the questions before me today. In practical terms, although I accept that Mr [B] may only recently have come upon some of these documents, it is not a matter which on the face of her Honour's judgment would have affected her determination of the very issue involved.”

His Honour went on to say:

“67.In this situation, therefore, even assuming that the evidence that is contained in Annexures A and B of the husband's affidavit were satisfactory to demonstrate that the wife's original statement about what she had brought into the marriage were wrong and even if they were sufficient, which I do not believe they are, but if they were sufficient to establish that that had been intentional on her part, and even if that in itself must necessarily, as one would think it ordinarily would, constitute in some respects a miscarriage of justice, that is not sufficient in itself to establish for Mr [B] an entitlement to have the orders set aside. I say this simply because even if all that were established, it is still necessary for the Court to consider whether the Court about whom a complaint is made, would necessarily have made a different order if this other evidence had in fact been before the Court. It seems clear in the circumstances that because of the actions of the present applicant himself, if of no other, Finn J was precluded from being able to make an appropriate evaluation of other matters and that accordingly, she proceeded on what she regarded as being an appropriate determination by reference to evidence supplied by Mr [B] himself.
68.Accordingly, it seems to me that even if all of the matters to which I have previously referred were to be taken into account, then her Honour's order would not be different. In which case, it is inappropriate to grant leave to have the orders set aside.”

To some extent these latter remarks are a further indication of the misunderstanding by the trial judge of the issues that had to be determined before him. His task was not to determine the probable outcome of the s 79A application, but merely to determine whether there was an arguable case demonstrated on the material before him.

Faulks DCJ then undertook an examination of the balance of the material that the husband had annexed to his affidavit concluding that most of it was irrelevant to the proceedings. In the circumstances his Honour took the view that any application for leave and any application under s 79A should be summarily dismissed.

His Honour then turned to consideration of the restraint on further proceedings. His Honour relied on as accurate and accepted a chronology prepared by the wife’s solicitors as to the extent of the proceedings in the Court. For the sake of convenience we attach that chronology as a schedule to this judgment.

His Honour concluded that the applications filed by the husband that were before him were in substance frivolous and vexatious and that it was appropriate to make an order restraining him from bringing further proceedings about property without leave.

The appeal

By an amended Notice of Appeal filed 10 February 2006 the appellant set out seven grounds upon which he sought to rely. They read as follows:

“1.Nothing that was done in the prior proceedings in this case prevented me from putting my case pursuant to s.79A and s.80 of the Family Law Act with fresh evidence.
2.There was a substantial body of evidence before the Court, including fresh evidence, to warrant a proper hearing of my application pursuant to s.79A and s.80 of the family Law Act filed on 21 June 2005, as amended on 28 October 2005.
3.There was no hearing of my application pursuant to s.79A and s.80 of the family Law Act filed on 21 June 2005, as amended on 28 October 2005, or of my ancillary application filed on 14 October 2005.
4.The orders are inconsistent with the relevant authorities of the Full Court and of the High Court.
5.The orders are inconsistent with inter alia Family Law Act s.33; s.43(b), (c); s.60B(2)(a), (b), (c); s.71A; s.72; s.74; s.75(2); s.79(2), (4); s.79A(1)(a), (b); s.(81); s.83; s.112AP(1); s.119.
6.The orders are inconsistent with the duty of the Court under s. 79 and s. 80 of the Judiciary Act.
7.The orders are inconsistent with the constitutional duty of the Court as expressed in s. 26 of the Family Law Act. (This ground is not intended as a constitutional challenge. For the constitutional duty of the Family Court I rely on the unanimous interpretation of the High Court in Dietrich v Queen [1992] 177 CLR 1, that Chapter III of the Commonwealth Constitution charges the courts of Australia with doing right).”

A document filed by the husband on 20 March 2006 headed “Outline of Submissions of the Appellant” throws little light on precisely what it is that the husband is complaining about in relation to the manner in which the case was decided by Faulks DCJ. It does not seek to put arguments in any sequential order that vaguely reflect the grounds of appeal and consists mainly of unsubstantiated assertions. By way of example we quote pars 19 and 20 which read as follows:

“19.This appeal is against the Judgment and orders of his Honour Deputy Chief Justice Faulks handed down on 1 November 2005, summarily dismissing my application in a case filed on 21 June 2005 pursuant to Family Law Act s.79A and my application for final orders filed therewith and amended on 28 October 2005.
20.Upon proper examination of the documents a reasonable bystander could reasonably form the view that many of the orders made during the course of these proceedings amounted to frauds on the power. However, I prefer to proceed on the basis that the court was seriously and thoroughly misled with a multitude of statements by [the wife’s counsel] and that were materially false and misleading, slanderous and highly defamatory of my good character and nature. In 1995 there was no evidence before the court in support of the allegations made by the respondent, and evidence was prevented, suppressed, and withheld, resulting in bias and ill will. The proceedings were a sham, frivolous and vexatious and amounted fraud, duress, and unconscionable conduct and a perversion of the course of justice by [the wife’s counsel], purportedly in the interests of the respondent.”

Summary dismissal of the s 79A claim

In the course of his oral submissions before us we endeavoured to keep Mr [B] focused upon relevant considerations. We pointed out that absent any transcript of the proceedings before Faulks DCJ we would assume that the husband had been granted procedural fairness in the sense of being given an ample opportunity to be heard in relation to the application that was before the Court. We indicated to the appellant that we accepted that the appropriate approach by the trial judge was to follow the principles that had been identified in Beck and Beck (2004) FLC 93,181 in pars 17 to 21 of that judgment. In essence, if the husband could show on his material that he had an arguable case then summary dismissal was an inappropriate outcome.

There were, of course, several forms of relief being sought by the husband, all of which were summarily dismissed. The oral argument in this case focused almost exclusively upon the dismissal of the s 79A application. Nothing has been advanced to us to suggest that the dismissal of the various other remedies sought by the appellant was inappropriate. In the circumstances subject to our discussion of the application to adduce further evidence we do not intend to further address those matters but will focus upon the s 79A case.

As we have already indicated, we are concerned that the trial judge may well have erroneously approached his task by introducing into his consideration concepts involved in cases that required an applicant to obtain the leave of the Court in respect of particular proceedings. To the extent that such a course demonstrates appealable error, even though such an error has not been identified within the grounds of appeal, we think it is appropriate that we re-examine the task undertaken by the trial judge with a view to determining whether or not it was appropriate to summarily dismiss the appellant’s case in accordance with established principles.

By referring only to the material relied upon by the appellant in support of his s 79A application can it properly have been said that the application was doomed to fail? We think the inevitable answer to that question is “Yes”.

The power that Finn J exercised was a discretionary power. Her Honour effectively made two key findings. The first key finding was that the wife received from her property settlement of a prior relationship $46,000 plus $3,000 interest in the months just prior to or just after the marriage in July 1991. She made $43,000 of those monies available for the purposes either of the business which the parties were then establishing or for family purposes associated with the parties’ marriage or their general living expenses. That finding appears to have been based not only upon the oral evidence of the wife but also upon a letter addressed to the wife’s former solicitors from the solicitors acting for her former partner on 29 May 1991 which read as follows:

“We confirm our telephone conversation between Mr [R] and our Ms [B] in relation to payment of the balance of the settlement moneys in this matter. On Monday, 27 May, our client provided us with a cheque for $7,000.00 payable to your firm.
Our client instructs us that he is unable to borrow the remaining $41,000.00 required to satisfy the balance of the judgment.
We note that $25,000.00 has already been paid.
His proposal is to pay $7,000.00 immediately and then pay the balance plus interest at the rate of 20% in monthly instalments of $10,000.00 due on the last day of each month.
Enclosed is our client’s cheque for $7,000.00. Please acknowledge receipt.
We look forward to your response to this proposal.”

Her Honour also relied upon the deed entered into between the husband and the wife on 2 September 1991 that acknowledged the receipt by the husband from the wife of the sum of $45,000 which her Honour said was the rounding up of the sum of $43,000 that the husband was prepared to concede the wife had advanced either for family or business purposes.

The second essential finding by her Honour was that she was unable to determine the extent of the husband’s assets and was thus hampered in determining what would be a just and equitable outcome to the proceedings.

The husband’s s 79A case appears ultimately to be based upon his assertion that he can now clearly demonstrate that the wife never advanced the sum of $43,000 to him. That he says is evident from the bank statements of the wife’s account with the State Bank of NSW which would indicate that at best she had banked only $36,500 in that account other than monies referable to the earlier insurance claim.

We agree with the analysis of Faulks DCJ that the mere presence of bank statements relating to that period does not advance the matter. There is nothing to suggest that Finn J’s finding was based upon the wife’s evidence that all the monies that she advanced to the husband passed through her bank account. Nor does the now presence of the bank statements help to explain the other findings made by the trial judge relating to the acknowledgement by the husband in the deed that the wife had advanced the monies for the benefit of the business and the family.

We agree with the conclusion of the trial judge that inevitably the s 79A application was doomed to failure given the ambiguous nature of the evidence, the modest amounts in dispute, and the passage of time since the matters the subject matter of consideration occurred. The summary dismissal of the claim was the appropriate outcome.

Further evidence

On 2 May 2006 we dismissed an application by the appellant to adduce further evidence in the appeal. We indicated that we would include our reasons for so doing in the judgment to be delivered at the conclusion of the substantive hearing of the appeal.

The Full Court has the discretion to receive further evidence on questions of fact (see s 93A of the Act). The circumstances in which that discretion might properly be exercised were discussed by the High Court in CDJ v VAJ (1998) 197 CLR 172. In par 109 in the majority judgment the Court said that the principal purpose of the section was to admit further evidence where that evidence, if accepted would demonstrate that the order under appeal was erroneous.

The documents that the appellant sought to have leave to introduce into the appeal consisted of:

documents relating to the husband’s bankruptcy in or about May 1995;

accounting documents concerning the affairs of CM Pty Ltd at the beginning of 1995;

documents concerning the liquidation of CM in 1995;

applications, judgments and orders made in interlocutory proceedings in the suit;

documents surrounding the creation of C & CL;

some correspondence from February 1984 between the husband and his then solicitors Messrs F, H and P in unrelated proceedings; and

finally, selected pages of transcript from the interlocutory proceedings held in 1995.

Whilst some of that material may have been relevant to the hearing of appeals against either the interlocutory orders made in early 1995 or arguably the final orders made by Finn J in 1998, Mr B was unable to direct us to anything in his affidavit or in any of that material to indicate that:

(a) the material was not available to be referred to before Faulks DCJ; or

(b) that it demonstrated in any way that there had been a miscarriage of justice in the proceedings before Finn J in 1998.

In addition to seeking to rely upon the documents annexed to his affidavit to demonstrate that he had an arguable case for s 79A relief, Mr B also sought an order that the respondent and her solicitor be available for cross-examination before the Full Court at the hearing of the appeal. He was unable to direct us to any evidence that either of those persons would provide to the Court which would demonstrate to the Court that the orders under appeal were erroneous.

The process sought to be employed was highly unusual. Rule 22.51 of the Family Law Rules 2004 (“the Rules”) provides that an application that the Court receive further evidence must be accompanied by an affidavit that includes the further evidence that the applicant wants the Court to admit. Nothing in the applicant’s affidavit provided any clue as to the evidence that either of the witnesses would give to the Court. There being no attempt by either of them to rely on any evidence of their own in relation to the appeal, the concept of requiring them to attend before the Court for cross-examination was misconceived.

It is for those reasons that we refused the application to lead further evidence at this appeal.

Restraining further proceedings

The power to restrain a party from commencing proceedings without leave of the Court first had and obtained is to be found in s 118 of the Act and in Rule 11.04 of the Rules. They provide as follows:

“118   Frivolous or vexatious proceedings
(1)     The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)     dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings—order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).”

“11.04 Frivolous or vexatious case
(1) If the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:
(a) dismiss the applicant’s application; and
(b)order that the applicant may not, without the court’s permission, file or continue an application.

(2)     The court may make an order under subrule (1):
(a)     on its own initiative; or
(b)     on the application of:
(i)       a party;
(ii) for the Family Court of Australia — a Registry Manager; or
(iii) for the Family Court of a State — the Executive Officer.

(3) The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.
Note Under section 118 of the Act, the court may dismiss a case that is frivolous or vexatious and, on application, may prevent the person who started the case from starting a further case. Chapter 5 sets out the procedure for making an application under this rule.”

There are significant differences in the circumstances in which the power is enlivened either under s 118 or under the Rules. The s 118 power is enlivened if there are proceedings before the Court that the Court is satisfied are frivolous and vexatious and those proceedings are dismissed. If an application is then made by a party to the proceedings, seeking an order restraining the other party from commencing any further proceedings without leave of the Court, the Court may make the order. The power under the Rules may be exercised by the Court on its own initiative or on an application of a party. The Court is required to be satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process.

In the present case the trial judge dismissed the several applications of the husband. We think it is unarguable that many of the applications dismissed by Faulks DCJ could not be categorised as other than frivolous or vexatious, and appropriate for the exercise of power under s 118(1)(c) of the Act, especially when viewed in the light of the matters contained in the schedule annexed to this judgment. Irrespective of whether or not the s 79A application had any potential merit, there is a sufficiently strong enough basis in the dismissal of the other applications to enliven the discretion that Faulks DCJ exercised in enjoining the appellant from instituting any other property proceedings against the respondent arising out of their marriage without leave of the Court. We see no basis upon which we could properly interfere with the exercise of the Deputy Chief Justice’s discretion in granting the order. Accordingly the appeal against the grant of the order will be dismissed.

Costs

The respondent sought an order for costs in the sum of $3,000 if the appeal was dismissed. Notwithstanding that the appellant has indicated that he cannot afford to pay any order for costs, we think it appropriate in the circumstances that an order be made as sought.

Orders

The orders of the Court will be:

1. That the appeal be dismissed.

2. That the appellant pay $3,000 towards the respondent’s costs.

DATE	EVENT
9 August 1955	Wife born
7 July 1991	Parties married
1 January 1995	Parties separate
1997	Decree Nisi granted
31 January 1995	Wife's Form 8 Application for Injunctions and other Restraining Orders filed — commencing proceeding
6 February 1995	Interim Orders made by Her Honour Justice Finn
17 February 1995	Interim Orders made by His Honour Justice Faulks
22 February 1995	Interim Orders made by His Honour Justice Faulks
29 March 1995	Wife's Form 8 Application seeking appointment of a new company director filed
2 May 1995	Husband's Form 8 Application regarding [CM] Pty Limited filed
9 May 1995	Orders made by Justice Faulks (Procedural Orders)
16 May 1995	Orders made by Justice Faulks including an Order that all Orders made by this Court on 6, 17 and 22 February 1995 be discharged and further injunctions are made
15 June 1995	Husband files Form 8 Application seeking injunctions against Wife and [DS] from disposing of property and that Supreme Court Application be dealt with by Family Court
28 June 1995	Orders made by Justice Faulks
30 June 1995	Husband files Form 8 Application seeking dismissal of Orders made by Justice Faulks on 16 May 1995
3 July 1995	Orders made by Justice Faulks
17 July 1995	Orders made by Justice Faulks
22 August 1995	Orders made by Justice Faulks
12 January 1996	Wife files Form 8 Application seeking to collect items from [F] property
12 January 1996	Form 12 Application for Maintenance filed on behalf of the wife returnable 12 February 1996
31 July 1996	Wife files Form 7 seeking property settlement orders
22 October 1996		Wife's Form 12 Application and Form 7 Application came before Judicial Registrar Forbes that did not proceed on that day. Matter came before Judicial Registrar Nikakis on 17 December 1996
24 October 1996		Orders made by Judicial Registrar Forbes providing that the matter be listed for hearing on 17 December 1996 with further directions for the husband to file Form 7A, Form 12A and Form 17
17 December 1996		Orders made by Judicial Registrar Nikakis for the filing of material by the husband and further an order for the sale of the [F] property with proceeds to be held in trust pending further order.
13 January 1997		Husband files Form 44 Application for review of exercise of power by Judicial Registrar Nikakis.
16 July 1997		Husband's Application to Review heard by Justice Graham. His Honour discharges the Judicial Registrar's Orders for the sale of the [F] property. He orders that the husband pay $70 per week by way of spousal maintenance
1 August 1997		Husband is registered proprietor of [F] property and takes action under the Land Titles Act 1925 to cause the wife's caveat on the property to lapse
4 September 1997		Wife filed Form 8 seeking husband be restrained from disposing, encumbering or^. in anyway dealing with the [F] property
8 September 1997		Orders made in those terms by Justice Morgan and further by way Orders made by Justice Fails on 15 September 1997
21 October 1997		Matter comes on for final hearing before Her Honour Justice Finn
27 February 1998		Justice Finn hands down Judgment and Orders made that husband pay to wife $43,000 by 30 May 1998, payment charged over husband's share in [C & CL] Pty Limited and Husband's property at [F] ACT. Further Orders for spouse maintenance and Orders for payment in default amongst other Orders
30 March 1998		Husband lodges Notice of Appeal to Full Court out of time
27 April 1998		Husband files Application seeking stay of Final Orders made by Justice Finn
5 May 1998		Husband's Application for stay comes before Justice Faulks. Adjourned to 6 May 1998
6 May 1998		Husband files Application for Extension of time to appeal against Orders of Justice Finn on 6 February 1995, Justice Faulks of 17 February 1995 and 22 February 1995 and Justice "Graham of 16 July 1997. Husband advises Justice Faulks he wants to file Amended Notice of Appeal. Justice Faulks adjourns matter to the Duty List for hearing on 19 May 1998. Gives the wife leave to file Application for Security for Costs in the event husband's Application for a stay of 4 to 6 of Finn J's Orders is successful, and ordered husband to provide amended Notice of Appeal by 18 May 1998.
19 May 1998		Orders made by Justice Faulks dismissing husband's Application for leave to file an Application for Leave to appeal out of time regarding interlocutory orders made in 1995 and 1997. Orders husband to pay $5,000 security for costs of the Appeal by 30 June 1998. Dismisses husband's application for stay of orders except with respect to Order 6 which is subject to the hearing of the Appeal and subject to the husband diligently prosecuting the Appeal and paying the security for costs.
20 May 1998		Deputy Registrar O'Rourke orders husband to file and serve Amended Notice of Appeal by 4pm on 21 May 1998, to file and serve draft Appeal Index by 29 May 1998. Husband fails to comply with either Order
28 May 1998		[C & CL] Pty Limited ("the Company") appoints [WR] and administrator
3 July 1998		Wife files Application under Section 112AD ("Form 48") for the husband to be dealt with for contravention of Orders for failure to deliver up the share script and goods
6 July 1998		Justice Faulks makes Orders declaring that because of husband's failure to lodge security for the wife's costs the stay of orders is no longer in place
24 July 1998		Wife files Application for Orders pursuant to Section 84 for the Registrar to sign Transfer and Withdrawal of Caveat and that the husband be restrained from entering the property in [F]
28 July 1998		Return date of Wife's Application for Contempt — no appearance by husband — Application adjourned to 10 August 1998
10 August 1998		All Applications adjourned to 24 August 1998 at husband's request
21 August 1998		Creditors of the Company resolve to wind it up
24 August 1998		All matters adjourned to 7 September 1998 on husband's Application. His Honour notes at Notation 4 of the Orders that the delay in these proceedings which has been brought about by a series of Applications by Mr [B] has resulted in a serious injustice of the wife because of the delay in her receiving the benefit of the Orders she obtained after lengthy contested hearing. Such Orders being made in February 1998
7 September 1998		Matter adjourned for one week on husband's Application
11 September 1998		Husband becomes bankrupt on his own petition
14 September 1998		Husband produces Certificate that he became bankrupt on 11 September 1998. Orders made under former Section 84 and husband ordered to pay costs
23 September 1998		Full Court orders that unless husband pays security for costs within 28 days his Appeal stands dismissed. Husband failed to pay security and so Appeal was dismissed
27 September 1998		Liquidator conducts sale of the stock of [C & CL] Pty Limited
2 February 1999		Wife files Contravention of Order Application on her own behalf returnable 8 March 1999
3 February 1999		Wife files Form 8 seeking garnishment of surplus of liquidation of company from liquidator's bank account
8 March 1999		Contravention Application adjourned to the Duty List before His Honour Justice Guest on 6 April 1999
6 April 1999		Application adjourned for hearing before His Honour Justice Guest on 14 April 1999
14 & 16 April 1999_.		Contravention Application heard and judgment reserved
15 April 1999		Husband files three Form 8 Applications seeking Interim Orders including orders that the husband be granted leave to appeal out of time, Order 7 & 13 of Orders made by Her Honour Justice Finn on 6 February 1995, Orders that the wife's 112AD Application filed 2 February 1999 be dismissed, that the wife be declared a vexatious litigant pursuant to Section 118 and further orders against the wife's solicitors all returnable 10 May 1999
12 May 1999		Wife files Form 8 Application seeking that the husband's Form 8 Application be dismissed and further that the husband be declared a vexatious litigant pursuant to Section 118 of the Family Law Act
18 May 1999		Orders made providing inter alia that the Application by the husband seeking leave to appeal out of time against Orders 7 and 13. Orders 7 & 13 of the Orders made by Her Honour Justice Finn on 6 February 1995 is dismissed. Wife's Application seeking Orders pursuant to Section 118 is adjourned for further directions and determination immediately upon the delivery of His Honour Justice Guest of his Judgment about the contempt
26 May 1999	Judgment delivered and Court found that husband without reasonable excuse contravened paragraph 2(a), 2(c), 5 and 6(b) of the Orders made by Justice Finn on 27 February 1998. Matter adjourned to enable husband to attend upon Magistrates Court of ACT for assessment as to whether he is a person suitable for Community Based Order.
21 October 1999	There being no appearance by the husband matter adjourned to 4 November 1999.
4 November 1999	Warrant issued for arrest of husband for failure to attend.
5 November 1999	Husband granted bail to appear on 10 November 1999 on own recognisance of $1,000.
10 November 1999	Husband given sentence of 10 days imprisonment.
3 July 2001	Form 42A Application to Court for extension of time to seek leave to appeal interlocutory orders made by Her Honour Justice Finn on 27 February 1998 be filed on behalf of Husband.
5 September 2001	Wife files Form 8 Application, seeking that the Husband's application be dismissed and also seeking further costs and an order under s 118.
27 Sept 2001	Coleman J dismisses Husband's application for an extension of time to file an application for leave to appeal against interlocutory orders made 6 February 1995. Dismissed Wife's application that an order be made under s 118, but indicated that if the Husband filed a further application of this kind, he would be minded to make the order. Husband ordered to pay costs.
19 October 2001	Husband files Form 42 Notice of Appeal in relation to orders made by Coleman J on 27 September 2001.
13 December 2001	Wife files Form 42 Application seeking that the Notice of Appeal filed by the Husband on 19 October 2001 be dismissed and that the Husband pay the Wife's costs.
20 December 2001	Husband files an Amended Notice of Appeal.
27 December 2001	Husband files Form 42A Application seeking leave to file an Affidavit.
25 January 2002	Husband files Form 42A Application seeking dismissal of the Wife's application and costs.
30 January 2002	Husband files Form 42A Application seeking an order for disqualification of the Wife's solicitor.
4 February 2002	Orders made by the Full Court dismissing the Husband's applications. The Wife's application that the appeal be struck out is also dismissed.
4 March 2002	Husband files an Amended Notice of Appeal.
9 May 2002	Directions made Justice Ellis.
27 May 2002	Husband files an Amended Notice of Appeal.
8 July 2002	Husband files an application seeking adjournment of the appeal listed for hearing in July 2002.
16 July 2002	Husband's application for an adjournment is dismissed by Justice Ellis.
24 July 2002	Husband's appeal against the orders made by Coleman J on 27 September 7001 is dismissed by the Full Court. The Husband is ordered to pay the Wife's costs.
5 February 2004	Husband files Application for Leave to Appeal against `the entire proceedings', being 31 orders made by various judges between 6 February 1995 and 10 November 1999. Husband also files an Application for an extension of time to file an Application for Leave to Appeal to the Full Court.
26 February 2004	Directions made Justice Finn.
4 March 2004	Husband files two further Form 42A Applications seeking that certain previous orders of the court be set aside and that the Wife provide to the Husband certain documents.
19 March 2004	Directions made Justice Finn.
23 March 2004'9	Husband filed an Amended Application to the Full Court. Among other things, he requested that the Wife's solicitors and former solicitors be joined as parties to the proceedings.
30 March 2004	A directions hearing is held before Ellis J in relation to the Husband's application for an extension of time. Judgment is reserved.
7 April 2004	Orders made Justice Ellis. Justice Ellis found that two of the thirty one orders which the Husband sought to appeal against did not require leave to institute an appeal, but also found that the Husband did need to seek an extension of time to file an appeal against those two orders, and that he had specifically indicated he did not wish to seek that extension. Leave to appeal was required under Section 94AA(1) of the Family Law Act for the other twenty-nine orders, which were prescribed decrees pursuant to Regulation 15(A) 1 of the Family Law Regulations. Justice Ellis made orders that the directions hearing be adjourned and that the question of costs be reserved.
5 May 2004	Husband files appeal against the Orders of Justice Ellis adjourning the matter.
17 May 2004	..Wife files application in Full Court for orders that the Husband be declared a vexatious litigant, or alternatively, that he lodge security for costs of the proceedings.
1 June 2004	Wife files an amended application, further seeking that the Notice of Appeal filed by the Husband on 5 May 2004 be dismissed on the basis that it is incompetent.
6 July 2004	Husband filed Form 2 Application seeking that the Wife's amended application be dismissed, that certain requirements of the rules be dispensed with and that the Husband's appeal be heard and determined.
19 July 2004	Husband's applications for leave to appeal against orders made from 1995-1999 were dismissed by the Full Court. Judgment on the Wife's application and the question of costs was reserved.
20 October 2004	Full Court of the Family Court delivered its judgment. The wife's application for the Husband to be declared a vexatious litigant was denied. The Husband was ordered to pay the Wife's costs.
11 November 2004	Husband files Application for Special Leave to Appeal to the High Court.
26 May 2005	Orders made by Chief Justice Gleeson and Justice Gummow in the High Court, dismissing the Husband's application and ordering that the Husband pay the Wife's costs.
21 June 2005 ..	Husband files the current Form 1 Application and Form 2 Application in the Family Court.

I certify that the 73 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate