Massalski (No 3)
[2023] FedCFamC1A 133
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Massalski (No 3) [2023] FedCFamC1A 133
Appeal from: Massalski & Riley (No 7) [2023] FedCFamC1F 128;
Massalski & Riley (No 8) [2023] FedCFamC1F 288
Appeal number: NAA 97 of 2023 File number: SYC 496 of 2015 Judgment of: GILL, WILLIAMS & CAMPTON JJ Date of judgment: 16 August 2023 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) (“the Act”) – Where the provisions of s 102QE of the Act have not been complied with – Where the proposed appeal is vexatious as it lacks merit – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 90SM, 90SN, 102Q, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32
Cases cited: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Massalski & Riley [2019] FamCA 1013
Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116
Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36
Massalski & Riley (No 2) [2022] FedCFamC1A 167
Massalski & Riley (No 3) [2022] FedCFamC1F 562
Massalski & Riley (No 7) [2023] FedCFamC1F 128
Massalski & Riley (No 8) [2023] FedCFamC1F 288
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Number of paragraphs: 30 Date of hearing: 1 August 2023 Place: Heard in Sydney, delivered in Canberra The Applicant: Litigant in person ORDERS
NAA 97 of 2023
SYC 496 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MASSALSKI
Applicant
order made by:
GILL, WILLIAMS & CAMPTON JJ
DATE OF ORDER:
16 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 19 April 2023 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Massalski (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL, WILLIAMS & CAMPTON JJ:
By way of an Application in an Appeal filed 19 April 2023, Ms Massalski (“the wife”), who is the subject of a vexatious proceedings order, seeks leave to institute an appeal from two judgments of the primary judge, being:
(a)Orders made on 8 March 2023, refusing leave for the wife to institute proceedings under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) against Mr AG (“the receiver”) and requiring the wife to pay the costs of the receiver and Mr Riley (“the husband”) of the application (see Massalski & Riley (No 7) [2023] FedCFamC1F 128). The receiver was appointed by the Court on application of the husband on 5 August 2022, for the purpose of enforcing a number of prior orders for the payment of monies by the wife in his favour, including by way of costs.
(b)Orders made on 6 April 2023, dismissing the wife’s application to adjourn the listing on that date, facilitating enforcement of prior orders, and ordering further costs against the wife (see Massalski & Riley (No 8) [2023] FedCFamC1F 288).
The wife filed an affidavit in support of her application on 19 April 2023, as well as a proposed Notice of Appeal. The receiver and the husband have not been served with the Application in an Appeal filed 19 April 2023, and indeed will not be served unless the Court is considering granting leave and they are called upon as provided by s 102QG(1) of the Act.
For the reasons that follow, the wife’s Application in an Appeal filed 19 April 2023 will be dismissed.
BACKGROUND
The wife commenced proceedings for property adjustment pursuant to s 90SM of the Act between herself and the husband on 30 January 2015.
Four judgments determining interlocutory issues were delivered prior to the final property orders being made on 24 December 2019 (“the final orders”) (see Massalski & Riley [2019] FamCA 1013). On 13 July 2021 the wife’s appeal from the final orders was dismissed (see Massalski & Riley (2021) FLC 94-047).
The wife filed an Initiating Application to set aside the final orders pursuant to s 90SN of the Act on 10 August 2021. That application was summarily dismissed on 4 February 2022 (see Massalski & Riley (2022) 65 Fam LR 73). The primary judge recorded in the reasons delivered on 8 March 2023:
4.…The basis for the summary dismissal was that the wife had no reasonable prospect of success in her application, and that it was in any event an abuse of process, because her claims for relief pursuant to s 90SN of the Act were without merit, and she had failed in her duty to promote the overarching purpose set forth in s 67 of the Act. I further found that the wife’s claim constituted an abuse of process because she sought to re-litigate issues already finally determined, and her multiple applications constituted “no more than a strategy which is designed to delay enforcement of the orders mounting up against her for as long as possible”: Massalski & Riley (2022) 65 Fam LR 73 at [129]. I was satisfied that the conduct of the wife brought the administration of justice into disrepute, requiring dismissal of her applications.
The wife filed a Notice of Appeal against the summary dismissal on 2 March 2022. It was dismissed pursuant to s 32(3)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) on 20 June 2022.
On 5 August 2022 an order was made prohibiting the wife from instituting proceedings in any court having jurisdiction under the Act in relation to the husband, without first being granted leave to commence those proceedings pursuant to s 102QE of the Act. Additional orders for enforcement were made on that day on the application of the husband, as follows:
3.Pursuant to Div 11.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), Mr [AG] of Accounting Firm [AH] be appointed as receiver (“the Receiver”) of the income and property of the wife so as to give effect to the following orders:
(a) Order made on 2 November 2020 for payment of costs by the wife to the husband of $209,945.25;
(b) Order made by the Full Court of the Family Court of Australia on 19 August 2021 for payment of costs by the wife to the husband of $30,000.00;
(c) Order made on 20 December 2021 for payment of costs by the wife to the husband of $39,882.78; and
(d) Such further orders as have or may be made by the Federal Circuit and Family Court of Australia for payment of moneys by the wife either to the husband, or in respect of which the husband has made payment which was required to be made by the wife including, but not limited to, the orders made on the following dates:
(i) 11 March 2016;
(ii) 3 June 2016; and
(iii) 24 December 2019
(“the orders”) and the payment of interest on such amounts pursuant to s 117 of the Act.
4. In particular, that the Receiver be appointed to receive the following:
(a) the wife’s bank accounts; and
(b) the property at [Unit 1, F Street, Suburb G], NSW being the land described in Folio Identifier … (“Unit 1, F Street”)
5.Pursuant to r 11.49(3) of the Rules, the Receiver is authorised to do (in the Receiver’s name or otherwise) anything the wife may do.
6. Pursuant to r 11.49(4) of the Rules, the Receiver’s powers operate to the exclusion of the powers of the wife during the receivership in relation to compliance with the orders.
7. The Receiver’s remuneration be paid from the property and financial resources of the wife.
8. No security be given by the Receiver.
On 6 September 2022, the wife filed an Application in an Appeal seeking leave to appeal from the orders made on 5 August 2022. That application was dismissed on 1 November 2022 (see Massalski & Riley (No 2) [2022] FedCFamC1A 167).
The wife became bankrupt on 9 December 2022. The wife’s trustee in bankruptcy took no part in the hearing of the applications determined by the primary judge from which leave to appeal is currently sought, electing to allow the wife to proceed with those applications herself.
THE PRIMARY JUDGE’S REASONS
The primary judge in his reasons refusing leave delivered 8 March 2023 said:
13.For the purposes of s 102QE of the Act, “institute” includes “the taking of a step or the making of an application that may be necessary before proceedings can be started against a party” (s 102Q(1)) and “proceedings” means “a proceeding in a court…and includes…an incidental proceeding in the course of or in connexion with a proceeding” (s 4(1)). The wife’s application falls within these definitions for the purposes of Order 2 made on 5 August 2022. By seeking leave, the wife clearly took the view that leave was required by Order 2 prior to commencing proceedings against the receiver. The receiver took the same view. He contended that the critical issue was whether the words “in relation to” the husband were wide enough to include proceedings against the receiver. If not, it appeared the wife’s application may not be caught by Order 2.
14.There is ample authority that the meaning of a court order is objectively found in its plain words, construed in their totality and in the context; reference to extrinsic material is permitted to resolve any ambiguity: Mendicino & Mendicino (Contravention) [2015] FamCA 1179 at [34]; Timms & Chapman [2018] FamCA 327 at [17]; Farina & Lofts [2019] FamCA 228 at [23]. I do not accept there is any relevant ambiguity in the order. The phrase “in relation to” is well known to the law and deliberatively broad. I repeat and adopt what I have written in Barre & Barre [2021] FamCA 101:
216. The phrase “with respect to”, like “in relation to”, is of wide ambit but takes its meaning from the statutory context in which it is used: see for example Workers' Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 642 at 653-654; Commissioner of Taxation v Scully (2000) 201 CLR 148; [2000] HCA 6; 201 CLR 148; 169 ALR 459; 74 ALJR 504 at [35]; Muslimin v The Queen (2010) 240 CLR 470; [2010] HCA 7 at [15]. In Kennon v Spry; Spry v Kennn (2008) 238 CLR 366; [2008] HCA 56 at [217] Kiefel J said “The expression "in relation to" is of wide and general import and should not be read down in the absence of some compelling reason for doing so” citing the judgment of Toohey and Gummow JJ in PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36; at 330-331, where they said the words are “prima facie broad and designed to catch things which have a sufficient nexus to the subject”.
15.In my view, the order made appointing the receiver was for the purpose of enforcing court orders made in favour of the husband. I am satisfied that this situation falls within the broad ambit of the phrase “in relation to” the husband in Order 2. Accordingly, the wife is prohibited from instituting proceedings against the receiver without being first granted leave pursuant to s 102QE of the Act. Therefore, the question is whether the wife has demonstrated any basis upon which leave ought to be granted.
16.I accept that if the wife was able to demonstrate on the evidence that the receiver had acted in bad faith and or contravened either court orders or the Rules, that may constitute an arguable basis for the granting of leave. However, there is nothing in the evidence or submissions of the wife which demonstrates any basis upon which the Court would be persuaded to grant leave to institute proceedings against the receiver.
(As per the original)
LEGAL PRINCIPLES
The wife in paragraph 1 of her affidavit said:
1. I am writing this affidavit in support of an Application in Appeal seeking leave pursuant to s102 QE of the Family Law Act 1975, to institute the appeal proceeding against the decisions of [the primary judge] rejecting my application seeking leave to prosecute the receiver made on 8 March 2023, and the decision made on 6 April 2023, giving additional powers to the receiver to seek intervention of the Marshal of the Family Court and Federal Police to forcefully remove me from my home.
(As per the original)
We are satisfied that such leave is required for the wife to initiate an appeal from the determinations of the primary judge (see SCVG (2020) FLC 93-967 at [24]).
In order to seek leave to institute proceedings, s 102QE(3) of the Act requires the wife to file an affidavit addressing various matters:
Application for leave to institute proceedings
…
(3)…
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
Section 102QF(1) of the Act provides:
Dismissing application for leave
(1)The Court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).
THE APPLICATION FOR LEAVE
The wife’s affidavit in support of her application for leave is a 137 page document, which includes 124 pages of annexures. Her proposed Notice of Appeal contains eight grounds of appeal. The wife did not file or rely on any further documents, including any transcript of the proceedings before the primary judge or any written submissions.
The wife’s affidavit is deficient in addressing her obligations pursuant to s 102QE(3) of the Act, in that:
(a)It does not list all of the occasions on which she has sought leave under s 102QE of the Act (as required by subsection 3(a));
(b)It includes some opaque references to various proceedings instituted in this Court and in other Australian courts and tribunals. It does not list those proceedings, but refers haphazardly to:
(i)Three sets of proceedings in the Supreme Court of Victoria. During the hearing the wife contended she commenced only one of these proceedings;
(ii)Proceedings in the New South Wales (“NSW”) Civil and Administrative Tribunal;
(iii)Proceedings in the Supreme Court of NSW;
(iv)Apprehended Violence Orders, although it is unclear in which Court such orders were made; and
(v)Various and more often than not unidentified applications commenced in this Court or in the Family Court of Australia (“FCOA”), as it was then known.
The court file reveals that the wife has filed 15 applications for interlocutory orders and two contempt applications in this Court or in the FCOA since 2015. She has commenced four appellate proceedings in that period. The primary reasons delivered on 8 March 2023 allude to an application brought by the wife in the Supreme Court of NSW, which was in part dismissed by Chen J on 1 February 2023 (at [19]). The reasons of the primary judge delivered on
5 August 2022 additionally set out a number of other proceedings commenced by the wife including in three different local courts, in the District Court of NSW, in the NSW Court of Appeal and in the High Court (see Massalski & Riley (No 3) [2022] FedCFamC1F 562 at [16]–[56]).
During oral submissions, the wife further identified parallel Supreme Court proceedings as to her longstanding complaints originating from the final orders made on 24 December 2019, leading to other complaints about the receiver’s processes of realising the wife’s real property interests. She further identified proceedings in what she described as the “Federal Circuit Court” leading to her bankruptcy on the petition of the husband, proceedings she initiated in the NSW Supreme Court relating to a strata plan in which she was unsuccessful, and a recent initiating process being made to the High Court.
A number of the applications and proceedings recorded above were not identified in the wife’s affidavit. It is therefore apparent that the wife’s affidavit has not complied (nor substantially complied) with s 102QE(3) of the Act.
During the hearing, the wife was invited to provide any further material so as to achieve compliance with the requirements of s 102QE of the Act. The wife did not avail herself of that invitation, submitting that she prepared the Application in an Appeal filed 19 April 2023 “in a hurry” and that she had not considered all of the requirements of the section. She said she understood the context in which her application was made was an “exceptional circumstance”, exempting her from compliance with the section. The “exceptional circumstance” was identified by the wife to be that by operation of the final orders made on 24 December 2019, she was left without property that could be realised so as to provide her with funds for the rest of her life. That submission had no apparent nexus to the current application, and is rejected.
Section 102QE is purposefully prescriptive. In circumstances where it has not been complied with or substantially complied with, it is appropriate that the wife’s Application in an Appeal filed 19 April 2023 be dismissed pursuant to s 102QF(1) of the Act.
Consideration of the wife’s proposed appeal
In the alternative, if we are in error about the wife’s failure to comply with s 102QE, we are satisfied that her proposed appeal has no real prospects of success and for the reasons that follow, would otherwise have dismissed her application for leave as being vexatious in that it is without merit.
The proposed Notice of Appeal identifies eight proposed grounds of appeal. Of those:
(a)Grounds 1(a) and (b) make unsupported assertions that the impact of the enforcement orders made by the primary judge on 5 August 2022 was beyond jurisdiction (not that the orders themselves, as unsuccessfully challenged on appeal, were beyond jurisdiction). These grounds focus on the conduct of persons rather than the determinations of the primary judge. They are not competent grounds of appeal.
(b)The complaint made in Ground 1(c) was determined by the Full Court in its decision made on 1 November 2022. Seeking to again prosecute the same complaint is of itself an abuse of process.
(c)Grounds 2 and 3 are scandalous assertions as to an apprehension of bias and an absence of “integrity” of the primary judge made without evidentiary foundation. Those assertions are made extraordinarily in the absence of a transcript of the proceedings before the primary judge. The matters identified to underscore the grounds are, in reality, complaints as to the final orders made on 24 December 2019 masked as bias. They are not matters that might cause “a fair-minded lay observer [to] reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]).
(d)Insofar as Ground 4 seeks to appeal from the primary judge’s refusal to adjourn the listing on 6 April 2023, it is not competent (see s 26(2)(b) of the FCFCOA Act). Insofar as the wife contends by this ground that the failure to adjourn the listing occasioned a procedural unfairness upon her, that complaint has little merit. The wife’s affidavit contends that her adjournment application made on 6 April 2023 was based on her submitting a Notice of a Constitutional Matter on 9 March 2023. The primary judge observed that such notice was substantially identical to a similar notice prepared by the wife dated 5 September 2022, which the primary judge determined in December 2022 raised no live constitutional matters in the proceedings (at [5]–[12] of the reasons delivered 6 April 2023).
(e)Ground 5 repeats a complaint previously agitated by the wife and determined by the Full Court in its decision made 1 November 2022. To relitigate the same issue is an abuse of process.
(f)Grounds 6 and 7 are not competent and have no apparent relevance to the decisions under challenge. They do not assert error on the part of the primary judge.
The final ground by the wife is that the primary judge’s decision(s) is/are “plainly wrong” (Ground 8 in the proposed Notice of Appeal).
It is not obvious on a reading of the primary reasons delivered 8 March 2023 and those delivered on 6 April 2023 that the primary judge’s determinations were “plainly wrong”. The wife’s affidavit does not elaborate her assertion that this is the case. Rather, the affidavit repeats many of the wife’s complaints with the many prior determinations made in this Court and in others (including the final property adjustment orders made in 2019 and the various appeal determinations made since).
The wife’s affidavit suggests that there are “constitutional issues affecting this case” without identifying with any particularity what those issues are (at paragraphs 19 and 20). At the outset of the hearing, the wife identified that she has recently submitted an application to the High Court identifying a constitutional challenge to prior orders made in these prolonged proceedings. She agreed that the application was yet to be filed and that it did not prevent her Application in an Appeal filed 19 April 2023 from being heard or determined. The wife did not identify how the constitutional issues might have infected the primary judge’s determinations with error.
Regrettably, the wife’s oral submissions did nothing to aid an understanding of the challenges to be made should leave to appeal be granted. Rather, the wife used the opportunity to again repeat her complaint as to the terms and effect of the final orders made on 24 December 2019, and to complain about her serial lack of success in challenging the many first instance and appellate determinations identified in these reasons. Nothing in her affidavit nor in her oral submissions demonstrate appealable error on the part of the primary judge, nor any basis for challenging the orders made on 8 March 2023 and 6 April 2023.
Having regard to the above, we are satisfied that if the wife were to obtain leave to appeal from the primary judge’s determinations, her proposed appeal has no merit. Lacking any reasonable prospects of success means that the proposed appeal is vexatious, as defined in s 102Q(1), and compels the dismissal of the wife’s application for leave to bring it (s 102QF(2)), or at least confirms that the wife has failed to demonstrate that the proposed appeal is not vexatious (s 102QG(4)).
CONCLUSION
For all of the above reasons, the wife’s Application in an Appeal filed 19 April 2023 will be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Gill, Williams & Campton. Associate:
Dated: 16 August 2023
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