Massalski & Riley (No 3)
[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 first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
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 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.
9.The wife is to co-operate with the Receiver and shall:
(a)provide all such documents, financial records, bank statements/books, tax records, and any other financial documents as required by the Receiver within 24 hours of the request by the Receiver; and
(b)provide any other information sought by the Receiver which relates to income or property of the wife.
10.The Receiver may sell any assets collected by him pursuant to these orders upon such terms and conditions as he shall see fit, and after payment of the costs and expenses of sale and payment of registered encumbrances, is to apply the net proceeds of such sale:
(a)in payment of the Receiver’s fees and the costs and expenses of such sale;
(b)in payment to the husband of such sum or sums as shall be outstanding from time to time pursuant to the orders and interest thereon at the rate prescribed by the Rules from time to time;
(c)in payment of any order for costs in favour of the husband made in these proceedings;
(d)in payment of any other order for costs made against the wife in favour of the husband in any other proceedings instituted in the Family Court of Australia, the Federal Circuit and Family Court of Australia, or the Full Court of those courts, before release of the balance to the wife; and
(e)The balance to the wife.
11.The wife deliver up to the Receiver vacant possession of Unit 1, F Street including all fixtures and fittings currently upon that property in good order and repair and to deliver up to the Receiver and/or make available for collection by the Receiver all keys, remote control units, and other security devices for Unit 1, F Street in good order and repair upon such date and at such time as the said Receiver shall advise her in writing.
12.The wife do all things, provide all documents and authorities, and execute all documents as may be requested by, and comply with any other reasonable request made by the Receiver to cause Unit 1, F Street to be transferred into the sole name of the wife, consistent with the orders made by Deputy Chief Justice McClelland on 24 December 2019 and thereafter to be conveyed to a purchaser of that property upon sale of that property by the Receiver.
13.The Receiver submit accounts to both parties on a three (3) monthly basis for work done pursuant to these orders.
14.In default (whether such default be by reason of any act or omission or neglect) of the wife executing any document necessary to give effect to these orders within 24 hours of the same having been delivered to the wife, then and in such event a judicial registrar of this court, upon proof by affidavit of such default, is hereby authorised and directed to sign all such documents, and if in the judicial registrar’s opinion it is necessary to do so to settle the same and to do all things to give effect to these orders pursuant to s 106A of the Act.
15.In the event any party makes a claim for costs against another party, an application in the appropriate form is to be filed and served within 28 days of the date of these orders, and if no such application is filed within the time specified, there shall be no order as to costs.
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 & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
Introduction
In these proceedings, McClelland DCJ delivered judgment and made final property orders on 24 December 2019 (“the final orders”). The wife unsuccessfully appealed and filed a number of further applications, including an application pursuant to s 90SN of the Family Law Act1975 (Cth) (“the Act”) seeking to set aside the final orders and fresh property adjustment orders.
On 4 February 2022, I delivered judgment summarily dismissing the wife’s outstanding applications on the basis she had no reasonable prospect of success, and as an abuse of process: Massalski & Riley [2022] FedCFamC1F 36 (“the main judgement”). The relevant background of the matter is set out at [5]–[14]. It is unnecessary to repeat it here. I also made an order preventing any party from filing any further applications in these proceedings without leave, relying upon the case management powers in s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which is to achieve the objectives of the overarching purposes set forth in s 67.
On 2 March 2022, the wife filed a Notice of Appeal from the main judgment. On 19 April 2022, the Appeals Registrar ordered the wife to pay $30,000 as security for the husband’s costs of the appeal on the basis that the appeal has little prospect of success. The appeal was to be stayed if payment was not made by 17 May 2022. This has not happened, so at present, the appeal is stayed. The wife also sought leave to file an Application in a Proceeding on 8 April 2022. This is discussed later in these reasons.
As explained in the main judgment, the husband has sought, in tandem with his application for summary dismissal, orders pursuant to s 102QB dismissing proceedings instituted by the wife and prohibiting her from commencing further proceedings in this court without leave, as well as the appointment of receivers to enforce orders already made for the wife to pay costs orders in favour of the husband, and other orders for the payment of money by the wife: Massalski at [156]. The main judgement did not deal with those aspects of the husband’s application. This judgement does.
The hearing of these claims took place on 26 May 2022.
The wife relied upon the following material:
(a)Case Outline filed 25 May 2022;
(b)Her affidavit filed 8 April 2022; and
(c)Her affidavit filed 23 May 2022.
The husband relied on the following material:
(a)Case Outline filed 25 May 2022;
(b)Affidavit of Mr ZZ (the husband’s solicitor) filed 24 May 2022;
(c)Exhibits to the affidavit of Mr ZZ; and
(d)Tender bundle.
Section 102QB
The husband relies upon s 102QB of the Act, which is in the following terms:
Making vexatious proceedings orders
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
Section 102Q(1) defines “vexatious proceedings” to include:
(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.
“Proceedings” are defined in s 4(1) to mean “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”. This definition includes interlocutory applications in proceedings.
In Cannon & Acres [2014] FamCA 104 at [440], Benjamin J set forth the following steps to adopt in relation to an application for vexatious proceedings orders:
(i) In accordance with s 102QB(1), I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals,
(ii) If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal, orders made by an Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and
(iii) If that threshold is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I considered the scope and nature of the orders sought and made.
The power to prohibit vexatious proceedings is well known across many jurisdictions. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J, in a passage followed many times (see for example Pencious & Searle (2017) FLC 93-805 (“Pencious”) at [75]), set out the following principles to determine when proceedings are vexatious, which I respectfully adopt:
2. A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
3. Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the court itself, whose limited resources needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
4. Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this court or in other Australian courts.
5. Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
6. Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
7. Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
8. Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
9. Eighthly, each of these notions — the want of reasonable grounds, habitual institution and persistent institution — are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
10. Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto — so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
11. Tenthly, other proceedings commenced before bodies which are not ourts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the court’s power to make the order, once enlivened, should be exercised.
12. Finally, once it is concluded that the court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
In Potier v Attorney General (NSW) (2015) 89 NSWLR 284 (also referred to in Pencious at [73]) the NSW Court of Appeal considered the ambit of the adverb “frequently”, holding that it embraces a relatively low threshold (at [114]), and that the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency (at [116]). The court also found that whether the proportion of all proceedings instituted or conducted by a person which are vexatious is high or low does not bear upon the question of frequency (at [119]).
As Gill J pointed out in Rilak & Tsocas [2020] FamCA 49:
30. It may be drawn from here that the protective nature of the provision, and the severe consequences of depriving a person of access to a court remain central matters to be borne in mind in considering the operation of the provision. These require a careful consideration of what is asserted to be vexatious in the light of the inclusive, non-exhaustive statutory definition.
31. What also emerges is that neither the statutory provision at s 102Q(a), (c) or (d), nor the explanation given by Perram J require, as a necessary element, a subjective intention or knowledge that the proceedings
a) Abuse the process of a court or tribunal;
b) Are without reasonable grounds;
c) Are conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose.
32. This is consistent with the protective nature of the power.
In satisfaction of s 102QB(1)(a), the husband’s evidence discloses a bewildering array of proceedings instituted by the wife in a range of different courts and tribunals since 2014. They can be summarised as follows:
Suburb NN Local Court
The wife filed an application for an Apprehended Domestic Violence Order (“ADVO”) against the husband in early 2014, which was withdrawn in mid 2014, the first day of the hearing.
Suburb H Local Court
An interim ADVO was made for the protection of the husband and his new partner in early 2014. The wife filed an Application for Revocation of this ADVO four days later. This was dismissed in late 2014.
In mid 2014, a final ADVO was made against the wife for the husband’s protection. Approximately one month later, the wife made a constitutional challenge to the ADVO, which was dismissed soon after. The Suburb H Local Court also made a costs order against the wife, however she applied for that order to be annulled. That application was dismissed in late 2014. She appealed to the District Court of NSW a couple of months later against these decisions – see “District Court of NSW” below. A further costs order was made against the wife in early 2015.
In mid 2015, an order was made extending the ADVO against the wife by six months. Again, the wife appealed this to the District Court of NSW (see below). A costs order was made against the wife in late 2015 in respect of this application.
In early 2016, the husband applied for a second extension of the ADVO against the wife.
After earlier extensions, in the last months of 2016, the ADVO against the wife was extended for three years. The court also dismissed a Notice of Motion filed by the wife in mid 2016, in which she sought leave to issue proceedings for perjury against the husband, and for an order that the presiding magistrate send the transcript of hearing to the Law Society of NSW in relation to the husband’s then-solicitor, Mr AF. A costs order was made against the wife in favour of the husband.
Early in 2021, the wife filed an application for an ADVO against the husband. The matter was listed for interim hearing at a later date in the year, where the magistrate refused to make any interim orders. The matter was listed for hearing in the early part of 2022, where it was refused. No orders were made for costs.
Suburb E Local Court
In late 2018, the wife filed a Notice of Motion for the inappropriate use of registrar’s powers to obtain multiple garnishee orders relating to one judgment. By consent, the husband was ordered to repay the wife $6,573.65.
The wife filed an application to vary or revoke an application for an ADVO filed by her in late 2018. The application was dismissed and the wife was ordered to pay costs to the husband in the sum of $6,083.
NSW Police also applied for an ADVO against the wife to protect the husband in mid 2021. The matter was stood over to a later date that year, as the police had been unable to serve the wife. There was no evidence of the outcome of these proceedings.
District Court of NSW
The wife filed an appeal in late 2014 against the decision in the Suburb H Local Court to dismiss her application for annulment, application for revocation, and costs order made against her. In mid 2015, the wife filed a Notice of Motion for certiorari and mandamus. The appeal and motion were dismissed.
In late 2015, the wife filed an appeal against the order of the Suburb H Local Court made earlier that year extending the ADVO against her. This appeal was dismissed with costs.
The wife appealed this costs order, which was heard in the first part of 2016. The wife then filed an application in mid 2016 for leave to file an application for costs orders against the husband, Ms O (the husband’s partner), and his then-solicitor.
In mid 2016, the wife’s Notice of Motion and appeal was dismissed, and she was ordered to pay indemnity costs to the husband. The wife filed another Notice of Motion on shortly thereafter to re-open her appeal, which was dismissed in mid 2017. A costs order was made against her regarding this dismissal.
In late 2019, the wife filed a Statement of Claim against the husband, his solicitor in the ADVO proceedings, and Ms O, making allegations including false representations, negligence, and fraud, and seeking orders for damages and for the ADVO to be voided. These proceedings were transferred to the Supreme Court in early 2021 and heard approximately a month later. The court has not been advised as to the progress or outcome of this matter.
In early 2020, orders were made by consent for the Statement of Claim to be struck out, with the wife to serve any further Statement of Claim within a month. Shortly soon afterwards, the wife filed an Amended Statement of Claim seeking orders for damages and costs, alleging that the husband’s application for an ADVO was an abuse of process, and that the purpose of the ADVO and the defendants’ conduct was intended to harm or cause injury to her.
The wife proceeded to file a further Statement of Claim against the husband and his solicitor in late 2020, alleging that the Bankruptcy Notice issued was a collateral abuse of process, and sought various orders and declarations, including a declaration that neither party had a genuine basis for issuing the notice, as well as damages, interest and costs. In early 2022, the Statement of Claim was dismissed as vexatious, and the wife was ordered to pay both defendants’ costs. Approximately one month later, costs were ordered to be paid on an indemnity basis. The wife filed a Notice of Motion seeking to set aside this judgment. This matter was set down to be heard mid 2022. The court has not been informed as to the outcome.
Family Court of Australia and Federal Circuit and Family Court of Australia
The relevant factual background of the proceedings in the Family Court of Australia (as it then was) and the Federal Circuit and Family Court of Australia, together with the appellate jurisdictions, is set out in Massalski & Riley [2019] FamCA 1013 at [4]–[62] and the main judgment at [4]–[43]. There, I summarily dismissed the wife’s outstanding applications.
The wife filed an appeal against this judgment on 2 March 2022, and on 19 April 2022 was ordered to provide security of costs in the sum of $30,000 on or before 17 May 2022. The appeal was stayed as no payment was made by the wife.
Supreme Court of NSW
In late 2019, pursuant to a costs assessment order of the two orders outlined below in the NSW Court of Appeal, the wife was ordered to pay the husband the sum of $184,070.25.
A short time later in 2019, the wife commenced proceedings against the husband and his solicitors, Mr AE and Mr ZZ, alleging misrepresentation, negligence, misleading of the court, maliciously commencing proceedings, and damage to reputation. This application was summarily dismissed in mid 2020, with the wife ordered to pay costs. However, approximately one month later the wife filed a Notice of Motion seeking leave to file an Amended Statement of Claim against the husband. This application was dismissed in early 2021, with costs ordered against the wife.
The wife filed, without consent nor leave, a Further Amended Statement of Claim in mid 2021. This was removed from the court file four dates later, however the wife then filed a Further Amended Consolidated Statement of Claim within a month. Leave was granted for this filing six days later, with the matter set down for hearing for three days commencing in early 2022. The court has not been informed as to the progress or outcome of these proceedings.
Also in early 2022, the wife filed another Statement of Claim in the NSW Supreme Court seeking a reversal of the final orders of McClelland DCJ, and for the parties to be restored to their original positions as owners of "the F Street property" as tenants in common in equal shares of both units. This application remains on foot.
Supreme Court of Victoria
In late 2016, the wife filed an Originating Motion in the Supreme Court of Victoria seeking numerous declarations and orders, including an order to extend her caveat lodged against a property located in Suburb A, Victoria, which was owned by the husband and Mr K (the wife’s ex-partner). Orders were made on in early 2017 for the wife to file a Statement of Claim, which she proceeded to do. The husband filed a defence and counterclaim within weeks of this filing, seeking removal of the caveat over the Suburb A property and compensation and damages from Mr K
The wife then sought, in mid 2017, for the proceedings to be transferred to the Family Court of Australia.
The application for transfer was heard in mid 2017, with Mr K seeking a stay of the proceedings and resisting the transfer. The wife and Mr K signed consent orders on later that year in respect of the counterclaim.
The wife and Mr K then sought leave to reopen the proceedings on in late 2020.
In early 2021, the court dismissed an application by the husband for the consent orders of 5 October 2017 to be entered, as well as dismissing the wife’s application for declarations and an extension of the caveat. The husband appealed this decision in mid 2021, with the appeal dismissed.
The wife and Mr K filed Summons for directions seeking further orders in mid 2021, including that the judgment of the Family Court of Australia was ineffective as the matter was invalidly cross-vested, and for the proceedings to be transferred back to the Supreme Court of Victoria. The wife also requested for the husband to pay $20,000 in security of costs. These proceedings were dismissed a couple of months later.
In early 2022, the wife filed a Summons in the Supreme Court of Victoria seeking leave of the court to be re-joined as a plaintiff, in order to enable her to file a joint counterclaim with Mr K against the husband in respect of the Suburb A property. Approximately a month later, the Summons was dismissed and the wife was ordered to pay the costs of the husband. The wife filed a Notice of Appeal against this dismissal on shortly thereafter, which is yet to be heard.
NSW Court of Appeal
In late 2016, the wife filed a Summons and Notice of Motion seeking a stay of the various costs orders made against her by the Local and District Courts of NSW. The Summons was dismissed in mid 2017 and the wife was ordered to pay the husbands costs.
The wife made a compliant to the Independent Commission Against Corruption in mid 2017 about the courts. She then filed a Notice of Motion eight days later seeking to set aside the judgment of the Court of Appeal.
Some weeks later, the motion was heard and Order 1 was dismissed with costs. Orders 2 and 3 were stood over to be heard by at least two judges.
In another appeal, the wife filed a Summons (Supervisory Jurisdiction) form in mid 2017. The matter was set down for hearing in late 2017, however the wife filed a Notice of Motion seeking to vacate this hearing date. This was dismissed o, and the Summons dismissed within a fortnight, with the wife ordered to pay costs.
High Court of Australia
In late 2017, the wife filed a Special Leave Application to appeal the decision of the NSW Court of Appeal in relation to the dismissal of her application for Summons (Supervisory Jurisdiction). In early 2018, the wife was refused leave to appeal.
Also in late 2017, the wife filed a Special Leave Application to appeal the decision of the NSW Court of Appeal in relation to her Summons and Notice of Motion application seeking various stay orders. Leave was refused in early 2018.
Law Society of NSW
In late 2014, the Law Society of NSW (“the Law Society”) dismissed two complaints made by the wife in the first half of 2014 against the husband’s then-solicitor, Mr AF.
In early 2019, the Law Society dismissed two complaints made by the wife a year earlier against the husband’s solicitors, Mr AE and Mr ZZ, on the grounds that they were “vexatious, misconceived, frivolous or lacking in substance.”
NSW Civil and Administrative Tribunal
In mid 2021, the wife filed an application in the NSW Civil and Administrative Tribunal (“NCAT”) seeking various interim and final orders. An interim hearing was held soon after, with an order for an Owners Corporation meeting to be convened within 14 days being made by consent, but the wife’s application otherwise being dismissed.
The husband also commenced proceedings in NCAT in mid 2021 seeking the appointment of a compulsory strata manager.
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 said
130. 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.)
During her submissions, the following exchange took place between the bench and the wife:
HIS HONOUR: Ms Massalski, can I just interrupt you again. Do I understand that it’s your position that you should be allowed to continue making applications in this and other courts until you are, in effect, placed back in the position that existed prior to the Family Court proceedings? Have I understood that correctly?
[THE WIFE]: Your Honour, I do respect the Family Court decision. But the Family Court decision was shown to be, in effect – and what is the – what is the decision in the Supreme Court, which I outlined, is the effect of my applications that the strata is terminated, then there will be change to the title. And in proposed order, there might be an option that then the matter should be brought back to the Family Court, because I cannot be joint owners with Mr and Mrs AI and the strata cannot function. That was decided by the tribunal. So it’s not just my vexatious allegation. There was an attempt to find a strata manager.
If there’s no manager, if there’s no insurance, if there’s no owners corporation, then the theoretical administrative subdivision of the property in effect of registration of the strata scheme is – it’s, I would say, actually deceitful because it created the – the entity that was created cannot exist in the actual - - -
…
HIS HONOUR: Well, just if I could just interrupt you again. You submitted to me that there is no finality in the Family Court because you do not have a property. So is it your contention you should be permitted to litigate in this court and other courts and tribunals until you do have a property? Is that your position?
[THE WIFE]: That is one option, your Honour. Or the other option is if, by this court, or if there’s further allegations made that I’m the vexatious litigant and I cannot accept a decision that is effectively probably made again – that’s my opinion about jurisdiction. If there was no state legislation relevant to this situation considered, then it might be shown that the Family Court decision is not valid. That if it is – if it is a matter that the strata scheme is shown to be inappropriately registered, the only option that seems to be available is to send the case back to the Family Court.
(Transcript, 26 May 2022, p.14 line 45–p.15 line 34.)
Although the wife’s responses to fairly simple questions were somewhat obscure, it is tolerably clear that, despite professing respect for the decision of this court, she is convinced that the orders of this court about property adjustment cannot be accepted, that she deserves a property to give her financial independence, and she intends to continue an attack on the outcome in this court by litigation in various other courts and tribunals.
It was also clear that the wife refused to accept adverse findings of credit made against her by McClelland DCJ at final hearing, and believed she should be able to revisit those findings despite her appeal being dismissed by the Full Court, as the following demonstrates:
HIS HONOUR: So what you’re trying to do is to have me or someone else in this court revisit that conclusion about your credibility as a witness, despite the view of McClelland DCJ and the Full Court. Isn’t that correct?
[THE WIFE]: Yes.
(Transcript, 26 May 2022, p.23 lines 24–28.)
There is no doubt that the wife has frequently instituted proceedings.
I am satisfied that the wife is subjectively convinced that all her proceedings are justified, and she has been the victim of deceitful and collusive conduct between the husband and his solicitors. However, over a period of some eight years, the wife has failed to convince anyone else that these convictions are rationally based, let alone reflect a true situation.
In the context of these proceedings, the wife’s refusal to accept decisions which have not been in her favour is beyond debate.
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 wife has demonstrated habitual and persistent institution of proceedings which have often and consistently been determined against her;
(c)the wife 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 wife 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 wife’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.
The evidence makes clear that for some eight years in multiple jurisdictions, the wife 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 wife 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 wife]’s conduct constitutes an abuse of process or alternatively is vexatious and oppressive.”
On the evidence, I am unable to form a view whether every proceeding instituted by the wife 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 wife has frequently instituted vexatious proceedings in Australian courts and tribunals. I am satisfied she has done so.
For these reasons, I will make the orders sought by the husband pursuant to s 102QB of the Act. It is a severe consequence for a person to be deprived of access to the court. But the principle of finality, in particular, has always operated to confine the circumstances in which a party can institute proceedings. Moreover, the possibility of the wife being permitted to institute further proceedings will not be entirely excluded. Section 102QE(2) provides a statutory power to permit institution of proceedings by a person who has been made the subject of a vexatious proceedings order pursuant to s 102QB.
I note in passing that unlike the interlocutory order made by me preventing the filing of further applications without leave, an order pursuant to s 102QB(2) is a final order: s 102QB(5). It can only be set aside on appeal or overcome by exercise of the discretion in s 102QE(2).
Appointment of Receivers
The husband argues that receivers should be appointed to the property of the wife to bring about payment of amounts owed to him.
He points to reasons which overlap with the reasons which lead to a conclusion that the wife’s conduct has been vexatious. A corollary of the wife’s habitual and persistent applications to this court is her complete failure to satisfy existing orders, coupled with her clear refusal to accept that such orders must be complied with.
The orders sought by the husband identify the significant costs orders already made in his favour, which total about $280,000 excluding any interest. These costs orders are all over twelve months old. As the Full Court observed in awarding costs against the wife, the many applications by the wife constituted a strategy to avoid payment of these costs orders, the validity of which she does not accept. The wife’s submission ignores the fact that her appeal has been stayed by yet another failure to make a payment ordered by the court as security for costs. The basis of that order was the weakness of her appeal.
I am persuaded that the wife has no intention of making any payment to the husband, despite the court’s orders.
Rule 11.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out the enforcement orders which may be made: seizure and sale of real or personal property, including under an Enforcement Warrant, attachment of earnings and debts, a Third Party Debt Notice, and sequestration of property. Specifically, r 11.05(d) empowers the court to enforce an obligation to pay money by appointing a receiver.
Division 11.1.6 makes specific provision for the appointment of a receiver. I am satisfied that the husband has filed an affidavit complying with r 11.48 and that the proposed receiver has provided his consent.
In considering the husband’s application, I have had regard to the matters specified in r 11.49(1) and that the orders proposed by the husband, if made, would address the matters specified in r 11.49(2). I accept that a principle of proportionality operates when the court is considering the appointment of a receiver: Malloy & Ors & Stoford Malloy (2017) FLC 93-804 at [133].
I am persuaded that a sufficient case for the appointment of a receiver has been made out. An enforcement procedure is necessary. Without enforcement, there is no realistic prospect that the orders of the court for payment of money will be satisfied or that the husband will receive his entitlement. I am satisfied a receiver is the appropriate method and is proportional to the difficulty of recovery and the size of the amounts owing. A receiver with the necessary powers can undertake the process to realise property of the wife to satisfy her payment obligations. In my view, this is a less cumbersome and expensive process than, for example, other possible modes of enforcement, such as an order for sequestration of the wife’s property.
The wife resisted the appointment of a receiver. She argued that if she succeeds on her appeal, the basis for the appointment of a receiver is removed. I reject the argument because her appeal is presently stayed, as she has refused to pay security for costs, the appeal has poor prospects of success, and even if the appeal was allowed, the wife’s unsatisfied obligations to pay money will remain undisturbed unless she ultimately has some success in making arguments which have failed in the main judgment and before the Full Court, and which I held formed part of an abuse of process. I am also persuaded that she is a vexatious litigant.
Accordingly, I will make the orders sought by the husband.
Application in a Proceeding filed 8 April 2022
The wife filed an Application in a Proceeding on 8 April 2022, seeking the following orders:
l. That Mr Riley and Mr ZZ be restrained from filing any applications against the Plaintiff until the application in relation to contempt of court is determined by this court and the Statement of Claim in relation to termination of the strata scheme, C/N … is determined by the Supreme Court of NSW.
2. That Mr Riley and Mr ZZ be restrained from seeking recovery of any costs in relation to the Family Court proceedings SYC496/2015 and proceeding transferred from the Supreme Court of Victoria .
3. That leave be granted for a separate proceeding to be held to deal with the bills issued by Mr ZZ in the matter transferred from the Supreme Court of Victoria.
4. That the court on its own motion re-open the proceeding dismissed by the decision made on 4 Febraury (sic) 2022 in consideration of the issues raised in the Statement of Claim … showing that the submissions made during the hearing held in late 2021 were false or misleading.
5. That the application seeking the appointment of a receiver and the application seeking security for costs in the appeal proceeding be dismissed.
This document was filed without leave being granted in accordance with Order 5 made on 4 February 2022. The wife applied orally for leave on 26 May 2022. I refuse leave for the following reasons.
Order 1 appears to serve no purpose in two respects. The first is that Order 5 already prevents both parties filing applications without leave. The second is that the determination of the Supreme Court of NSW proceedings, discussed above, is irrelevant to relief in this court for the reasons given. There is no cause of action or claim by the wife in this court which the proposed order could support. Any interlocutory injunction, including a freezing order, must be made in aid of “a sufficient colour of right to the final relief” which the claimant seeks: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [11].
Orders 2 and 3 are simply another attempt by the wife to escape from a liability for costs which has been determined against her.
Order 4 seeks an order that the court re-open the decision of 4 February 2022. There is no power to do so, and in any event, the wife has sought to appeal my decision to summarily dismiss her proceedings.
Order 5, to the extent it seeks dismissal of the husband’s claim to security for his costs in the appeal is misconceived, and has already been determined against the wife.
Costs
Although the husband sought costs against the wife, costs were not the subject of final submissions.
In such circumstances, I will order that any party who seeks costs to file the relevant application within 28 days of these orders.
Conclusion
For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 5 August 2022
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