Massalski & Riley (No 6) - [2022] FedCFamC1F 1029

Federal Circuit and Family Court of Australia
(DIVISION 1)
Massalski & Riley (No 6) [2022] FedCFamC1F 1029

File number(s): SYC 496 of 2015

Judgment of: HARPER J

Date of judgment: 9 December 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has been declared vexatious litigant under s 102QB of the Act – Where wife seeks leave to file application against husband’s solicitor and counsel – Where wife failed to file affidavit pursuant to s 102QE(3) – Where wife has filed a specious Notice of a Constitutional Matter – Leave refused – Application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 102QB, 102QE, 102QF(1)

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

Massalski & Riley [2022] FedCFamC1F 36

Pitman & Hynes [2021] FamCA 300

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 9 December 2022

Place: Sydney

The Applicant: Litigant in person

Solicitor for the Respondent: Byrnes Legal

Solicitor for the First Intervener: Christopher Farah Solicitor

Solicitor for the Second Intervener: Roser Lawyers
ORDERS

SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MASSALSKI

Applicant

AND:
MR RILEY

Respondent

MR AG

First Intervener

TRUSTEE IN BANKRUPTCY FOR MS MASSALSKI

Second Intervener

order made by:

HARPER J

DATE OF ORDER:

9 DECEMBER 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant Wife (“the wife”) on 22 November 2022 be dismissed.
2.The Application in a Proceeding filed on 24 October 2022 by the wife against the receiver be stood over for interim hearing at 11.00am on 13 January 2023.
3.Leave be granted to the receiver to file any supplementary material within seven days, limited to the correction of existing affidavit material filed.
4.By no later than 4.00pm on 9 January 2023, the Trustee in Bankruptcy is to approach chambers to provide evidence of any election made concerning the Application filed on 24 October 2022.
5.By no later than close of registry filing on 11 January 2023, each party forward to my Associate a Case Outline document setting out:
(a)The Affidavit/s on which each party will rely at hearing;
(b)A minute of the proposed orders sought at hearing;
(c)A list of issues;
(d)A written outline of argument addressing each of the specific statutory considerations to be considered, and all other issues; and
(e)A list of any relevant authorities, including any citations.

6.The costs of Mr Russell Byrnes and Mr Jameson in respect of the Application filed on 22 November 2022 be reserved.

THE COURT NOTES THAT:
A.The Application filed by the wife on 22 November 2022 was made in contravention of the requirement for leave pursuant to orders made on 5 August 2022.
B.The wife and the receiver have filed the material upon which they seek to rely upon in relation to the Application filed on 24 October 2022.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Massalski & Riley (No 6)

Details

AGLC: Massalski & Riley (No 6) [2022] FedCFamC1F 1029
Case: [2022] FedCFamC1F 1029
Decision Date

CaseChat Overview and Summary

Ms Massalski, the Applicant, and Mr Riley, the Respondent, are parties in ongoing family law proceedings, primarily focused on property settlement and related issues. The Applicant, who is representing herself, has been declared a vexatious litigant under section 102QB of the Family Law Act 1975 (Cth). She has sought leave to file an application against the Respondent's solicitor and counsel. However, she failed to file the required affidavit under section 102QE(3) and has instead filed a specious Notice of a Constitutional Matter. The court was required to decide whether the Applicant's application should be granted leave to proceed, considering her status as a vexatious litigant, the absence of the necessary affidavit, and the validity of the Notice of a Constitutional Matter.

The court considered the requirements of section 102QE(3) of the Act, which mandates the filing of an affidavit when leave is sought by a vexatious litigant. The Applicant did not file this affidavit, and the court noted that section 102QF(1) allows for the dismissal of an application under section 102QE for failure to do so. The court also examined the validity of the Notice of a Constitutional Matter filed by the Applicant. The court found that the Notice did not raise any live constitutional question necessary to the proceedings and was merely an attempt to reagitate issues already determined against her. Furthermore, the court agreed with the submission that the application was an abuse of process as it sought relief only in relation to orders affecting the Respondent, not his legal representatives.

Based on the absence of the required affidavit, the invalidity of the Notice of a Constitutional Matter, and the abuse of process, the court dismissed the application filed by the Applicant on 22 November 2022. The court also noted that the application was made in contravention of the requirement for leave pursuant to orders made on 5 August 2022. The court dismissed the application and made orders for the application in a proceeding filed on 24 October 2022 to be stood over for interim hearing and for supplementary material to be filed within a specified timeframe. The court also ordered that a Case Outline document be provided by each party, setting out the affidavits, proposed orders, list of issues, written outline of argument, and relevant authorities. The costs of the application filed on 22 November 2022 were reserved.

Orders