Massalski (No 2)
[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 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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
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 court having jurisdiction under the Act in relation to [the respondent], without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act” (Order 2).
The primary judge did not exempt any appeal from that order from its operation. Thus, the applicant requires leave under s 102QE of the Act to institute an appeal against the order declaring her to be a vexatious litigant (Pencious & Searle (2017) FLC 93-805 at [77]–[85]).
A further order was made by the primary judge dismissing all extant applications that had been brought by the applicant (Order 1).
His Honour also appointed a receiver by way of enforcement over the income and property of the applicant to secure payment to the respondent pursuant to the provisions of Div 11.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
In accordance with the usual practice of the Court, the applicant has filed an affidavit and written submissions in support of her application as well as a proposed Notice of Appeal. The respondent has not been served with the application, and indeed will not be served, unless the Court is considering granting leave and he is called upon as provided by s 102QG(1) of the Act.
Legal principles
The orders the subject of the proposed appeal were made by a judge of the Federal Circuit and Family Court of Australia (Division 1) and so its appeal should be heard by the Full Court (Harrell [2021] FamCAFC 119 at [11]–[14]; Spencer [2022] FedCFamC1A 131 at [10]).
This application is being heard without an oral hearing (s 102QF(3)), despite the applicant indicating in her application that she did not want the application determined on the papers in her absence. If we find that the proposed proceedings are vexatious, we must dismiss the application for leave (s 102QF(2)).
Vexatious proceedings are defined by s 102Q(1) as including:
…
(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 so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
We bear in mind that the application for leave to appeal includes an application for leave to appeal against the order under s 102QB itself. Given the severe nature of such an order, we consider that a somewhat more generous approach to leave is justified than would otherwise be the case.
Application for leave to institute proceedings
The proposed grounds of appeal
The proposed grounds of appeal are:
1.The judgment delivered by the Trial Judge on 5 August 2022 was against dictates of justice because:
a.by dismissing all extant applications instituted by [the applicant], without hearing of such applications, the Trial Judge failed to afford [the applicant] procedural fairness;
b.by failing to consider the evidence that the Respondent acted in contravention of Order 5(b) of the Family Court orders from 24 December 2019, and other contraventions complained about in the Application in relation to the Contempt of Court, the trial Judge tacitly condoned the Respondent’s conduct impeding the administration of justice;
c.by failing to afford the opportunity to the creditor to intervene in the proceeding before the Trial Judge, where [the applicant] was prevented from restitution of the funds which were advanced by the creditor for the construction of property at [F Street], the Trial Judge denied natural justice to the third party affected by his judgment.
2.The orders made after [the applicant] was denied jurisdiction in respect of her application in relation to the Contempt of court filed in May 2021, were made without jurisdiction (Stokes (by a tutor) v McCourt [2013] NSWSC 1014 at [105]).
3.The learned Trial Judge abused his discretion by granting an order prohibiting [the applicant] from instituting proceedings against the Respondent while the litigation between the parties continues in other jurisdictions because:
a.the Respondent failed to comply with order 5(b) of the Family Court orders from 24 December 2019, failed to comply with the Undertaking given to the Local Court in [Suburb H] in respect of unfinished building works affecting the property at [F Street], and registered wrong plans of subdivision, therefore the strata scheme can’t function, and there is a pending proceeding in the Supreme Court of NSW in relation to termination of the strata scheme;
b.failure to comply with order of the court amounts to contempt of court;
c.there is a general principle that, until any contempt is purged, a party guilty of contempt should not be heard on any application for relief beyond an application to set aside or vary an order in respect of which he, she or it is in contempt (Stokes v McCourt [2013] NSWSC 1014 at [18] – [52]);
d.the conduct in contravention of the court orders, disentitled the Respondent from seeking any orders against [the applicant].
4.The trial judge abused his discretion, grating the order for the appointment of a receiver in circumstances where:
a.the Application in a Case seeking review of the cost orders, enlivened the discretion to go behind the judgment granting cost orders;
b. [the applicant] is still waiting for the hearing of the application filed in the Supreme Court of NSW in relation to issues affecting the strata scheme, including damage to the property, which make such property unrealisable;
c.the Respondent’s right to recovery of costs was protected with the caveat registered on the title of the property.
5.The trial judge abused his discretion, declaring [the applicant] a vexatious litigant, in circumstances where:
a.[the applicant] was denied jurisdiction by the Family Court failing to list the application in relation to the contempt of court for a hearing;
b.the Respondent was disqualified from seeking any orders against [the applicant], after it was shown that he acted in contravention of Order 5(b) which required the Owners’ Corporation meeting to be convened within 28 days from the date of registration of the strata scheme.
6.The Trial Judge abused his discretion ordering [the applicant] to deliver vacant possession of the property in good order and repair, in denial of the evidence showing that the property is damaged in effect of Respondent’s failure to rectify building defects.
7.The order to transfer the property that is damaged and burdened with liabilities to [the applicant], was made without jurisdiction, because the Family Court has no power to override relevant State legislation, particularly the provisions of the Conveyancing Act 1919, including Section 66K and 66L.
8. The Trial Judge’s decision is ‘plainly wrong’.
(As per the original)
Grounds 1(b), 3, 4, 5 and 6 are incompetent. In addition, it can immediately be seen that many of the proposed grounds deal with the asserted conduct of the respondent and do no assert error on the part of the primary judge (Grounds 1(b), 3, 5(b) and 6).
It also seems clear, at least from their form, that Grounds 6 and 7 relate to earlier decisions of the Court in relation to the property settlement issues between the parties and do not relate to the orders the subject of the proposed appeal.
It is helpful to deal with the applicant’s written submissions filed on 4 October 2022 which set out the basis of her application for leave under the headings that she herself has adopted.
The principles that apply to vexatious proceedings
First, however, it is necessary to consider the applicant’s introductory submission which was that the decision of Vlug v Poulos (1997) FLC 92-778 sets out the principles that ought to have been applied by the primary judge.
In that case, the Full Court found that a person could only be declared a vexatious litigant if the court had dismissed earlier proceedings on the basis that they were frivolous or vexatious. However, that decision concerned the operation of s 118 of the Act as it then stood and not s 102QB, which is in quite different terms. It is therefore of little assistance.
His Honour correctly referred to decisions concerning the power to prohibit vexatious proceedings and s 102QB of the Act, which have been widely relied upon in the interpretation of s 102Q, such as: Cannon & Acres [2014] FamCA 104 at [440], Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Pencious & Searle (2017) FLC 93-805 and Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284. It can be seen from the definition of vexatious proceedings itself, that earlier proceedings need not themselves to be found to be vexatious by the judge who heard them, rather it is a characterisation that can be given to those proceedings by the judge hearing the application under s 102QB.
Inappropriate procurement of the order for security for costs
Under this heading, the applicant referred to a previous appeal of hers which was dismissed because she was unable to pay the security for costs in relation to orders made. That has nothing to do with the present application.
Oppressive conduct shown through the history of the family law proceedings
Under this heading, the applicant sought to demonstrate that the “[r]espondent [has] acted inconsistently in relation to his choice to accept the jurisdiction of the Family Court” (Applicant’s written submissions filed on 4 October 2022, paragraph 15).
Even if this is the case, we do not accept that that would lead to an error in the primary judge’s reasons in the present case.
Secondly, the matters relied on by the applicant under this heading are simply a restatement of her case throughout the proceedings and do not attempt to deal with the reasoning of the primary judge at all.
Deceitful creation of costs
Under this heading, the applicant asserts that the respondent’s solicitor “acted deceitfully procuring costs in relation to the proceedings in the Supreme Court of Victoria” (Applicant’s written submissions filed on 4 October 2022, paragraph 42). Again, it is difficult to see what relevance these allegations have to the identification of error on the part of the primary judge.
Applications in a case in relation to review of costs orders
These submissions refer to an application to review costs orders which was dismissed by McClelland DCJ on 5 March 2021 and another application which was not accepted for filing, because on 4 February 2022, pursuant to s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the primary judge made an order preventing any party from filing further applications in the proceedings without leave.
The applicant submits that she was denied procedural fairness “having been denied to file an application for review of costs orders at the time when the court was asked to grant orders for the appointment of the receiver” (Applicant’s written submissions filed on 4 October 2022, paragraph 56). There is no suggestion that the applicant applied for leave to file such a review and in the absence of such an application, it is difficult to identify any relevant procedural unfairness.
Family Court culture for creating obscenely high legal costs
The applicant submits “[i]t is a common knowledge that the proceedings in the Family Court, particularly in the Sydney’s division, are famous for awarding obscenely high legal costs” (Applicant’s written submissions filed on 4 October 2022, paragraph 57).
Whilst in family law proceedings, parties sometimes incur legal costs which are out of proportion to the matters they are litigating, there is no suggestion at all that can justify that judges have been awarding obscenely high legal costs. In any event, the quantum of costs have no relevance to the orders made by his Honour, except as so far as it might be suggested, that the costs that were the subject of enforcement orders made by the primary judge were excessive. That seems not to have been a matter that was raised before the primary judge and that point cannot be taken now.
No finding of vexatious proceedings made
The applicant submitted that an Application in a Case which she had filed on 10 June 2021 was dismissed because the “Family Court had no power to deal with issues affecting the Owners’ Corporation” (Applicant’s written submissions filed on 4 October 2022, paragraph 63). Her point is that it was not dismissed because it was a vexatious application.
The primary judge did not set out in detail the history of the family law proceedings (as opposed to the history of the many proceedings in other courts) but his Honour referred to his earlier decisions in the matter, including Massalski v Riley (2022) 65 Fam LR 73:
130.The above reasons dispose of [the applicant’s] applications. However, it is necessary to give some separate reasons relating to her applications for a stay of the costs orders and the application of Mr K.
…
140.…Even if [the applicant’s] substantive application survived summary dismissal, she has put forward no basis for an order setting aside this costs assessment. …
That is not a finding of vexatious conduct.
In the conclusion from the judgment the subject of these proceedings, his Honour said:
67. I am satisfied that:
(a) the proceedings in this court the subject of the substantive judgment had no reasonable prospects of success and were an abuse of process;
(b) [the applicant] has demonstrated habitual and persistent institution of proceedings which have often and consistently been determined against her;
(c) [the applicant] has consistently failed to understand the principle of finality, in a range of different jurisdictions, including the Supreme Court of NSW, the Court of Appeal of NSW, the District Court of NSW, and this court, despite receiving explicit guidance from the Full Court on this question;
(d)[the applicant] has persisted in maintaining or instituting proceedings beyond the point where a rational person would have “abandoned the field”;
(e)the proceedings instituted in this court, since her failed appeal, have moved from the unlikely to the ridiculous (adopting the phraseology of Perram J); and
(f)[the applicant’s] persistent renewal of litigation on issues already adversely determined against her has been found in this court to be a strategy to avoid enforcement of orders against her, and generally pose a risk to the public interest by consuming and wasting the resources of this and other courts in a manner inimical to the administration of justice.
68.The evidence makes clear that for some eight years in multiple jurisdictions, [the applicant] has habitually and persistently instituted proceedings which, as demonstrated by the equally persistent and habitual failure of those proceedings, generally lacked reasonable grounds. Clearly, at times the applications were no more than attempts to relitigate adverse outcomes which [the applicant] just refused to accept. Proceedings in this and other courts have been dismissed as abuses of process, with Judge Olsson SC stating in Massalski v Riley & Anor (Unreported, District Court of NSW, 25 February 2022) that “The pleading in the present case is so similar to that of the earlier proceeding that I conclude that [the applicant’s] conduct constitutes an abuse of process or alternatively is vexatious and oppressive.”
69.On the evidence, I am unable to form a view whether every proceeding instituted by [the applicant] meets the definition of “vexatious”. However, it is not necessary to do so. Some of her proceedings may not meet the definition of vexatious, but the question here is whether [the applicant] has frequently instituted vexatious proceedings in Australian courts and tribunals. I am satisfied she has done so.
(Emphasis added)
In light of his Honour’s conclusions, the reliance by the applicant on just one application is insufficient to cast doubt onto his Honour’s reasons. His Honour did not find that all previous applications were vexatious.
Forensic Advantage
We do not understand the relevance of the submissions under this heading to the present matter.
Continuation of litigation in SCV
“SCV” is an acronym, referring to the Supreme Court of Victoria.
Once again, we cannot see any relevance of the submissions under this heading to the present application.
Enlivening the offer of settlement in relation to Victorian properties
This again refers to the Supreme Court of Victoria proceedings and again does not assist.
Constitutional matter
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.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Tree. Associate:
Dated: 1 November 2022
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