Massalski (No 2)

Case [2022] FedCFamC1A 167

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Massalski (No 2) [2022] FedCFamC1A 167   

Appeal from: Massalski & Riley (No 3) [2022] FedCFamC1F 562
Appeal number(s): NAA 191 of 2022
File number(s): SYC 496 of 2015
Judgment of: ALDRIDGE, AUSTIN & TREE jJ
Date of judgment: 1 November 2022
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) – Where the proposed appeal is vexatious as it lacks reasonable ground –
Application dismissed.    
Legislation:

Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QE, 102QF, 102QG, 118

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 11.1.6

Cases cited:

Cannon & Acres [2014] FamCA 104

Harrell [2021] FamCAFC 119

Massalski v Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious & Searle (2017) FLC 93–805; [2017] FamCAFC 210

Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129

Spencer [2022] FedCFamC1A 131

Vlug v Poulos (1997) FLC 92-778; [1997] FamCA 47

Number of paragraphs: 39
Date of last submission: 4 October 2022
Date of hearing: Determined on the papers
Place: In Chambers
The Applicant: Self-represented litigant

ORDERS

NAA 191 of 2022
SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS MASSALSKI

Applicant

order made by:

ALDRIDGE, AUSTIN & TREE jj

DATE OF ORDER:

1 november 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 6 September 2022 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

REASONS FOR JUDGMENT

ALDRIDGE, AUSTIN & TREE JJ:

Introduction

  1. By an Application in an Appeal filed on 6 September 2022, Ms Massalski (“the applicant”) seeks leave under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) to institute appeal proceedings against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 5 August 2022. On that date, in proceedings between the applicant and Mr Riley (“the respondent”), the primary judge ordered, pursuant to s 102QB(2)(b) of the Act, that the “[the applicant] be prohibited from instituting proceedings in any…

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AGLC
Massalski (No 2) [2022] FedCFamC1A 167
Case
[2022] FedCFamC1A 167
Decision Date

CaseChat Overview and Summary

The case of Massalski (No 2) involves a dispute regarding property transfer orders that were mandated on 24 December 2019. The nature of the appeal revolves around the applicant’s proposed grounds for an appeal, which challenge the decision of a primary judge. The case was heard and decided by a higher court, which examined the validity and reasoning of the proposed appeal. The court was tasked with determining whether the proposed appeal had reasonable grounds and whether the applicant’s submissions were consistent with the grounds of appeal as outlined in the appeal documentation.

The primary legal issues that the court had to address were whether the applicant’s written submissions aligned with the grounds of appeal and whether the decision of the primary judge was plainly wrong. The court also had to consider whether the proposed appeal was vexatious due to the lack of reasonable grounds. In evaluating these issues, the court scrutinized the applicant’s submissions to ascertain whether they were pertinent to the proposed grounds of appeal and whether they accurately reflected the legal arguments intended to be pursued on appeal.

The court found that the applicant’s submissions bore little resemblance to the proposed grounds of appeal and continued to rehash earlier grievances without addressing the specific grounds outlined. Furthermore, the court concluded that the decision of the primary judge was not plainly wrong, which was a key premise of the proposed appeal. The court determined that the proposed appeal lacked reasonable grounds and was, therefore, vexatious. Based on these findings, the court dismissed the application for an appeal.

The final orders of the court were to dismiss the application for an appeal. The court held that the applicant's submissions were not aligned with the proposed grounds of appeal, and the appeal had no reasonable grounds. The court's decision underscored the importance of ensuring that the content of an appeal aligns with the specified grounds and that the appeal must not be vexatious.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The submissions under this ground refer to earlier orders made on 24 December 2019 requiring a transfer of property. Again, they do not relate to the present proposed appeal. Conclusion It can therefore be seen that the written submissions bear little resemblance to the proposed grounds of appeal. In addition, a review of all of the material does not demonstrate that the decision of the primary judge, was, with respect, plainly wrong, which is the premise of Ground 8 in the proposed appeal. Secondly, the submissions made by the applicant continue to rehash and restate all of the applicant’s earlier grievances. In our view the proposed appeal would be vexatious in that it has no reasonable grounds. Accordingly, we are obliged to dismiss the application.

Ratio Decidendi

Legal Principle Established

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