Massalski (No 3)

Case [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 2015

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

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:

  1. 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…

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AGLC
Massalski (No 3) [2023] FedCFamC1A 133
Case
[2023] FedCFamC1A 133
Decision Date

CaseChat Overview and Summary

In the case of Massalski (No 3), the wife filed an application in appeal against orders made by the Family Court of Australia. The dispute centred around property adjustment proceedings between the wife and husband, with multiple applications and appeals having been lodged by the wife. The Court was tasked with determining whether the wife's application for leave to appeal should be dismissed as vexatious, pursuant to section 102QE of the Federal Circuit and Family Court of Australia Act 2021. The Court also needed to assess the merits of the proposed grounds of appeal presented by the wife.

The Court found that the wife's application for leave to appeal was without merit and vexatious. It concluded that the wife's application was an abuse of process, as it sought to re-litigate issues already determined by the Court and was a strategy to delay enforcement of the orders against her. The Court was satisfied that the wife's conduct brought the administration of justice into disrepute. The proposed grounds of appeal presented by the wife were found to be either unsupported, scandalous, or irrelevant to the decisions under challenge. As such, the Court was satisfied that the proposed appeal had no real prospects of success.

Based on the Court's findings, the wife's Application in an Appeal filed on 19 April 2023 was dismissed. The Court considered that section 102QE was purposefully prescriptive, and as the wife had not complied with or substantially complied with it, her application should be dismissed pursuant to section 102QF(1) of the Act. The Court further found that if it was in error about the wife's failure to comply with section 102QE, the proposed appeal still had no real prospects of success and would have been dismissed as vexatious.

No further orders were made in this case, as the dismissal of the wife's application in appeal effectively concluded the matter.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.