Massalski & Riley (No 3)

Case [2022] FedCFamC1F 562

Federal Circuit and Family Court of Australia

(DIVISION 1)

Massalski & Riley (No 3) [2022] FedCFamC1F 562

File number(s): SYC 496 of 2015
Judgment of: HARPER J
Date of judgment: 5 August 2022
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings – Where final orders made in 2019 – Unsuccessful appeal by the wife with costs order against her – Wife commenced fresh proceedings in this court shortly afterwards – Where applications summarily dismissed as an abuse of process and for no reasonable prospects of success – Where wife refuses to accept principles of finality – Husband seeks declaration pursuant to s 102QB of the Family Law Act 1975 (Cth) – Where wife has history of instituting proceedings in multiple courts and tribunals – Where numerous judgments and costs orders have been entered against the wife in multiple courts –Multiple proceedings are vexatious – Wife’s conduct inimical to the public interest – Order made under s 102QB.

FAMILY LAW – ENFORCEMENT – Appointment of receiver – Where husband seeks appointment of receiver to bring about payment of significant amounts by the wife pursuant to court orders – Where husband has outstanding costs orders against the wife of over $280,000 – Principle of proportionality applicable when considering appointment of a receiver – Receiver appointed.

Legislation:

Family Law Act1975 (Cth) ss 4(1), 90SN, 102Q(1), 102QB, 102QE(2)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 11.05, 11.48, 11.49

Cases cited:

ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Cannon & Acres [2014] FamCA 104

Malloy & Ors & Stoford Malloy (2017) FLC 93-804; [2017] FamCAFC 204

Massalski v Riley & Anor (Unreported, District Court of NSW, Judge Olsson SC, 25 February 2022)

Massalski & Riley(No 2) [2021] FamCAFC 152

Massalski & Riley [2019] FamCA 1013

Massalski & Riley [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 (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129

Rilak & Tsocas [2020] FamCA 49
Division: Division 1 First Instance
Number of paragraphs: 90
Date of hearing: 26 May 2022
Place: Sydney
The Applicant: Litigant in person
Counsel for the Respondent: Mr Fowler
Solicitor for the Respondent: Byrnes Legal

ORDERS

SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MASSALSKI

Applicant
AND:

MR RILEY

Respondent

order made by:

HARPER J

DATE OF ORDER:

5 AUGUST 2022

THE COURT ORDERS THAT:

1.Pursuant to s 102QB(2)(a) of the Family Law Act 1975 (Cth) (“the Act”), all extant applications instituted by Ms Massalski (“the wife”) in the Federal Circuit and Family Court of Australia be dismissed.

2.Pursuant to s 102QB(2)(b) of the Act, the wife be prohibited from instituting proceedings in any court having jurisdiction under the Act in relation to Mr Riley (“the husband”), without…

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AGLC
Massalski & Riley (No 3) [2022] FedCFamC1F 562
Case
[2022] FedCFamC1F 562
Decision Date

CaseChat Overview and Summary

This case involved the husband and wife, Massalski and Riley, and was heard in the Federal Circuit and Family Court of Australia. The wife brought a series of applications in an attempt to relitigate issues that had already been finally determined, which the court deemed to be an abuse of process. The wife argued that she was not given the opportunity to transfer a property into her name, which would have given her financial independence. The husband had sought costs, which were ultimately refused. The court concluded that the wife had no reasonable prospect of success on her substantive application, and her applications were vexatious and constituted a strategy to delay enforcement of the orders against her.

The legal issues that the court had to decide were whether the wife's applications were an abuse of process and whether they were vexatious. The court found that the wife's applications were an abuse of process as she was unwilling to accept the finality of the proceedings, and her applications were vexatious as they were a strategy to delay enforcement of the orders against her. The court also found that the wife had no reasonable prospect of success on her substantive application.

The court's reasoning was that the wife had brought multiple applications since the final decision, which betrayed her refusal to accept the outcome of the proceedings. The court also found that the wife's applications were a strategy to delay enforcement of the orders against her, which brought the administration of justice into disrepute. The court concluded that the wife's applications were vexatious and an abuse of process, and they were dismissed. The wife's application for costs was also dismissed.

The final orders of the court were that the wife's applications were dismissed for want of jurisdiction and as an abuse of process. The wife's application for costs was also dismissed. The court found that the wife's applications were vexatious and an abuse of process, and they were dismissed. The wife's application for costs was also dismissed.

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 final hearing of both parties’ NCAT applications was held in late 2021, with the wife’s application dismissed for want of jurisdiction, and the husband’s application dismissed as he was no longer a lot owner in the strata plan. Although the husband sought costs, this was refused in early 2022.Conclusion In relation to this court, the proceedings the subject of the main judgment were held to be an abuse of process and failed to satisfy the wife’s duty to achieve the overarching purpose. There, I said130. I refer to my reasons above at [82]–[109], which led to the conclusion the wife has no reasonable prospect of success on her substantive application under s 90SN. For the same reasons, I conclude, like the Full Court, that the wife in truth refuses to accept the outcome of the proceedings before McClelland DCJ and the Full Court. While relying on the discussion above in full, I point in particular to the multiple applications the wife has brought since the final decision of McClelland DCJ. These betray this obdurate refusal, as does her continued and substantial reliance on circumstances which are clearly long past, including the purported claim of Mr K. This is sufficient to warrant a conclusion that the wife wants to relitigate issues already finally determined, and the principles of finality and fairness operate to preclude her doing so, even if her claims had any merit, which I have found they do not. 131. But in addition and separately, for the same reasons, I draw the same inference as the Full Court, namely, that the wife’s multiple applications constitute “no more than a strategy which is designed to delay enforcement of the orders mounting up against her as long as possible”. This clearly brings the administration of justice into disrepute and requires dismissal of the wife’s applications as an abuse of process. I am satisfied the proceedings the subject of the main judgment were vexatious. The wife has been criticised for her failures to accept the principles of finality in Massalski & Riley(No 2) [2021] FamCAFC 152:14. … Clearly the wife had read our reasons for judgment but for whatever reason she is unwilling to accept that the proceedings between her and the husband are a de facto financial cause, that her arguments have failed and principles of finality. It is difficult to come to any view other than the wife’s recently filed s 79A application (or its allied provision under Pt VIIIAB) has no reasonable prospects of success and that it is no more than a strategy which is designed to delay enforcement of the orders mounting up against her as long as possible. In her oral submissions, the wife was quite clear that she did not accept the finality of the proceedings in this court. She said:I acknowledge I do not accept the decision of the Family – Family Court because there’s no finality. I was not given an opportunity to transfer a property to my name that would give me financial independence, that would give me a title that is realisable, because the title is not a Torrens title any more and it’s not a strata title. That is the substance of my grievance.(Transcript, 26 May 2022, p.12 lines 25–29.)

Ratio Decidendi

Legal Principle Established

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