Massalski & Riley (No 6)

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.