LL v Mm - [2019] VSC 174

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S CI 2017 03619

LL	Plaintiff
v
MM	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27 November 2018 and 26 February 2019
DATE OF JUDGMENT:	21 March 2019
CASE MAY BE CITED AS:	LL v MM
MEDIUM NEUTRAL CITATION:	[2019] VSC 174

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PRACTICE AND PROCEDURE — Application for Extended Litigation Restraint Order —Marriage ended — Applications for Interim Family Violence Protection orders — Parenting orders — Applications for reversal or variation of parenting orders— Whether vexatious proceedings — Discretion — Relevant considerations — Family Violence Protection Act 2008; Vexatious Proceedings Act 2014 ss 16, 17, 18, 19, 20, 27.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Paterson	Bentleys Barristers and Solicitors
For the Defendant	Self-represented

HIS HONOUR:

The plaintiff, LL, seeks an extended litigation restraint order against the defendant, MM, under the Vexatious Proceedings Act 2014 (‘the Act’). The order sought would prevent the defendant from continuing or commencing any legal proceedings against the plaintiff in any Victorian Court or Tribunal. The plaintiff must obtain leave under s 16(3) to apply for that order.

Because this judgment requires recording aspects of applications under the Family Violence Protection Act 2008, I consider that the parties should be given pseudonyms in order to achieve the purpose of s 166 of that Act, despite the fact that s 166 may not in this instance be strictly binding. In so ordering I have applied the reasoning in previous decisions of this Court.[1] The pseudonyms will be ‘LL’ for the plaintiff and ‘MM’ for the defendant.
[1]YY v ZZ [2013] VSC 743, [5]-[14](Cavanough J), see also s 121 of the Family Law Act 1975 (Cth).

The plaintiff made four affidavits in support of his application and the defendant, who represented herself, cross-examined him on the first three. The defendant did not file any affidavits or give oral evidence.

LL and MM were married in 2010, and had two children. In 2013 the couple encountered matrimonial difficulties and are now divorced. Their difficulties led to the defendant obtaining an interim intervention order (‘interim IVO’) against the plaintiff from the Magistrates’ Court on 27 December 2013. Since this date, they have been parties to many court proceedings; in the Magistrates’ Court for intervention orders, in the Federal Circuit Court and later Family Court for parenting orders, and now in this Court.

The originating motion seeks the following orders:

…
An order pursuant to sections 16, 18, 19 and 20 of the Vexatious Proceedings Act 2014 that the defendant… must not without leave of the Supreme Court of Victoria do the following against plaintiff:
(a)Continue any proceedings (whether civil or criminal) in any of the following courts or tribunals:
(i)        The Supreme Court;
(ii)       The County Court;
(iii)      The Magistrates’ Court;
(iv)      The Children’s Court;
(v)       The Victorian Civil and Administrative Tribunal;
(vi)      The Victims of Crime Assistance Tribunal
(a)Commence any legal…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading LL v Mm

Details

AGLC: LL v MM [2019] VSC 174
Case: [2019] VSC 174
Decision Date: 21 March 2019

CaseChat Overview and Summary

The case of LL v Mm involved an application by the respondent (LL) for an Extended Litigation Restraint Order (ELRO) against the appellant (Mm) under the Vexatious Proceedings Act 2014. The application followed a series of disputes arising from the breakdown of the couple's marriage, including applications for Interim Family Violence Protection Orders and subsequent parenting orders. The appellant had made numerous applications to vary or reverse the parenting orders, which the respondent argued were vexatious. The Family Court of Australia considered the matter and had to determine whether the appellant's applications were vexatious under the Vexatious Proceedings Act 2014.

The primary legal issue was whether the appellant's applications were vexatious within the meaning of the Vexatious Proceedings Act 2014. This required the court to assess the appellant's conduct in making the applications, the nature of the applications, and whether they were made in bad faith or without any reasonable prospect of success. The court had to weigh the relevant considerations set out in the Act, including the appellant's conduct, the impact of the proceedings on the respondent, and the public interest in preventing the misuse of legal processes. The court also had to consider the provisions of the Family Violence Protection Act 2008 in the context of family violence.

In determining the matter, the court examined the appellant's conduct and the substance of the applications. The court found that the appellant had made numerous applications, many of which were repetitive or had no reasonable prospect of success. The court considered that the appellant's conduct demonstrated a pattern of behaviour that was aimed at harassing or oppressing the respondent, rather than genuinely pursuing a legitimate legal remedy. The court held that the appellant's applications were vexatious as they lacked any reasonable prospect of success and were made for an improper purpose. Accordingly, the court granted the respondent's application for an ELRO, restraining the appellant from making further applications without the court's permission.

The court's final orders included the grant of an ELRO against the appellant, prohibiting them from making any further applications in relation to the parenting orders without the leave of the court. The court emphasised the importance of protecting the respondent from the appellant's vexatious conduct and ensuring that legal processes were not misused in this way. The court also noted the significant impact that the appellant's conduct had on the respondent, highlighting the need for measures to prevent such behaviour in the future.

Orders