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 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).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
Final judgment in these property proceedings was delivered by McClelland DCJ on 10 December 2019. His Honour made a range of orders concerning properties and division of those properties as between the Applicant Wife, Ms Massalski (“the wife”), and the Respondent Husband, Mr Riley (“the husband”).
The wife took those orders on appeal to the Full Court, which dismissed the appeal on 13 July 2021.
On 4 February 2022, I delivered judgment and made orders in respect of the husband’s application for a range of orders, including summary dismissal of what purported to be an application by the wife pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”), but was in truth properly characterised as an application to set aside the final orders of McClelland DCJ pursuant to s 90SN of the Act, since the parties were never married.
I ordered that that application by the wife be summarily dismissed: Massalski & Riley [2022] FedCFamC1F 36.
Subsequently, on 5 August 2022, I made orders pursuant to s 102QB(2)(a) of the Act that all extant applications instituted by the wife in the Federal Circuit and Family Court of Australia be dismissed: Massalski & Riley (No 3) [2022] FedCFamC1F 562 (“Massalski (No 3)”).
I note that order, which was the subject of some consideration by the Full Court, included both Divisions 1 and Divisions 2 of the Federal Circuit and Family Court of Australia.
I also ordered, pursuant to s 102QB(2)(b), that the wife be prohibited from instituting proceedings in any court having jurisdiction under the Act “in relation to” the husband without having first been granted leave to commence that proceeding pursuant to s 102QE.
On 22 November 2022, the wife filed an Application in a Proceeding which sought two orders for the setting aside of orders made on 4 February 2022 and 5 August 2022 pursuant to r 10.1(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The respondents named in that application are the solicitor on the record for the husband, and counsel who has appeared from time to time for the husband in these proceedings. No leave is sought by the wife pursuant to s 102QE of the Act for leave to bring that application.
The application was listed for mention on 9 December 2022 when the Court sought explanation and submissions from the wife as to why leave should be granted in relation to the application, in light of the fact that she conceded no affidavit, as required by s 102QE(3), had been filed. I note that s 102QE(3) is in mandatory terms and requires the filing of the affidavit.
Section 102QF(1) permits the Court to make an order dismissing an application under s 102QE for leave to institute proceedings.
As I have noted, no such leave has been sought by the wife in relation to her application filed on 22 November 2022. On that basis alone, in light of the absence of any affidavit as required by s 102QE(3), in my view, the application should be dismissed.
But, if that conclusion be wrong, I am also satisfied that no basis has been put forward by the wife as to why any leave to bring the application should be granted. It was common ground on 9 December 2022 that, by order of his Honour Judge Cameron on 1 December 2022 in Division 2 of the Federal Circuit and Family Court of Australia, a sequestration order was made against the estate of the wife.
Accordingly, on 9 December 2022, her trustee in bankruptcy appeared before me and submitted that, whilst he had had insufficient time to consider all materials relevant to the position of the wife and her proceedings in this Court, his preliminary view was that her application was stayed by reason of the force of s 60 of the Bankruptcy Act 1966 (Cth). The wife resisted this contention on the basis, as I understood it, that the application filed on 22 November 2022 was somehow not related to a debt provable in her bankruptcy.
The second point that she made was that in September 2022 on a date she did not specify, she filed a Notice of a Constitutional Matter and served it on the Attorneys-General of the States and Territories of the Commonwealth of Australia.
I was shown a copy of that Notice of a Constitutional Matter. It purported to be pursuant to s 78B of the Judiciary Act 1903 (Cth), and the wife’s contention was that, therefore, these proceedings should be simply adjourned until that had been dealt with in the usual way.
However, I repeat what I said in Pitman & Hynes [2021] FamCA 300 as follows:
20. It has been well settled since at least the decision in Re An Application by Public Service Association (NSW); Re Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 CLR 430; [1947] HCA 31, that an ostensible constitutional point must be really and substantially raised by a Notice of Constitutional Matter so that the Court could be satisfied that it does involve a matter arising under The Constitution or involving its interpretation. In Narain v Parnell (1986) 9 FCR 479; 64 ALR 561 at 486 - 489, Burchett J said:
Section 78B only operates when the circumstances it postulates are made to appear to the Court. It does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General that what the section contemplates is a constitutional question which is a live issue in the proceedings.
21. The question of adjournment of proceedings because of section 78B of the Judiciary Act 1903 (Cth) was considered by French J (as he then was) in ACCC v CG Berbatis Holdings Pty Limited [1999] 167 ALR 303 where his Honour said at paragraph 14:
Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice, no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the constitution or involving its interpretation.
22. French J cited Nikolic v MGIC [1999] FCA 849 and Australian Securities and Investment Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).
23. In Xuarez & Vitela [2017] FamCAFC 139, the Full Court at [11] - [12], after citing the relevant authority said:
[11] The word "matter" in section 78B has the same meaning as in chapter 3 of the constitution. Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. Where the assertion is made, it is nonetheless a matter for the Court to be satisfied that the challenge does not involve a matter arising under the constitution or involving its interpretation.
[12] Section 78B will not be engaged merely because a party is interested in the resolution of a particular question. For the provision to be engaged, the resolution of the constitutional question becomes necessary upon the ascertained facts of the case. In other words, the facts relied upon are raised bona fide and are sufficient to raise the question.
It was plain on the face of the copy of the Notice of a Constitutional Matter which was provided to me by the wife that she simply sought to reagitate a range of issues, which have been the subject of determination against her by this Court, and the subject of adverse comment in the Full Court. As I said in Massalski (No 3), it is quite plain, and one of the bases for declaring the wife a vexatious litigant, that she simply refuses to acknowledge decisions which go against her and is completely unmoved by the well-established principle of finality that must apply in litigation.
Accordingly, I am not satisfied that the Notice of a Constitutional Matter, which the wife has served on the Attorney-General of the Commonwealth, raises any live constitutional question in these proceedings.
Thirdly, the range of submissions made by the wife in relation to the Application in a Proceeding filed on 22 November 2022, in my view, simply rehashed the same arguments that have been made several times before me and in respect of which she has failed.
She also candidly conceded that in relation to the debt in support of the creditor’s petition which resulted in the sequestration order, she made all the submissions that she made to me to his Honour Judge Cameron, who, ultimately, clearly rejected them and made the sequestration order nonetheless.
I finally note that the solicitor for the husband, who is also a respondent to the application sealed on 22 November 2022, submitted that the application was itself an abuse of process in light of the fact that, although solicitor and counsel are named as respondents, the only relief sought was in relation to orders which affected the husband, not his legal representatives. I agree with that submission.
Accordingly, I dismiss the application filed on 22 November 2022 by the wife. I note that the application was made in contravention of the requirement for leave pursuant to orders made on 5 August 2022.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 9 December 2022. Associate:
Dated: 20 December 2022
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