Mealon and Mealon
[2016] FCCA 2805
•1 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEALON & MEALON | [2016] FCCA 2805 |
| Catchwords: FAMILY LAW – Practice and Procedure – Vexatious proceedings. |
| Legislation: Family Law Act 1975, ss.102Q, 102QB, 102QE |
| Cases cited: Searle & Pencious [2016] FamCA 135 Attorney-General (New South Wales) v Gargan [2010] NSWSC 1192 |
| Applicant: | MR MEALON |
| Respondent: | MS MEALON |
| File Number: | ADC 491 of 2010 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 9 March 2016 & 28 April 2016 |
| Date of Last Submission: | 28 April 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 1 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Heinrich |
| Solicitors for the Applicant: | Adelaide Family Law |
| The Respondent: | In Person |
ORDERS
Pursuant to s.102QB(2)(b) of the Family Law Act 1975 (“the Act”) the Respondent wife is prohibited from instituting any proceedings under the Act against or in relation to the Applicant husband without first being granted leave to commence that proceeding pursuant to s.102QE of the Act.
In the event the Respondent wife is granted leave to institute proceedings, the Court shall consider whether an Order for security of costs should be made, pursuant to s.102QB(2)(c).
Pursuant to s.102QB(2)(a) of the Act the following proceedings are dismissed:
(a)the wife’s amended Response to an Application in a Case filed 4 March 2015;
(b)paragraphs 1 and 4 of the orders sought in the wife’s Application in a Case filed 11 December 2015;
(c)the wife’s Application in a Case filed 12 January 2016; and
(d)the wife’s Initiating Application filed 29 March 2016.
The husband’s Enforcement Warrant is stayed pending further order of the Court.
The wife’s Applications in a Case filed 18 December 2015 and 15 March 2016 are dismissed as finalised.
The parties are invited to make submissions in relation to paragraphs 2 and 3 of the wife’s Application in a Case filed 11 December 2015 and her Application in a Case filed 29 March 2016.
IT IS NOTED that publication of this judgment under the pseudonym Mealon & Mealon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 491 of 2010
| MR MEALON |
Applicant
And
| MS MEALON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the husband’s Application in a Case filed 23 October 2015 and, in particular, orders sought pursuant to s.102QB(2) and (3) seeking that the wife in these proceedings be declared a vexatious litigant and be restrained from instituting further proceedings under the Family Law Act1975. Not surprisingly, the wife opposes the Application and indeed, has filed further interim proceedings herself which she seeks to pursue.
Background
The parties were engaged in lengthy property proceedings which were finally resolved by Consent Orders entered into on 29 November 2011 (“the 2011 final Orders”). Various difficulties subsequently arose with the implementation of those orders, which lead to each party filing interim Applications in early 2012.
On 19 June 2012 the wife filed a further Application in a Case seeking to set aside the consent property settlement orders pursuant to s.79A. The Court directed that the wife file an Initiating Application together with additional Affidavit material. Those proceedings were heard in October 2012 and the Court dismissed the wife’s Application on 30 October 2012. The wife filed an Appeal on 27 November 2012. I will discuss the progress of the Appeal proceedings elsewhere in these Reasons.
The husband sought an order for costs arising from the wife’s unsuccessful Application. The costs Application was determined on 25 January 2013, when the Court ordered the wife pay the sum of $20,000 towards the husband’s costs, with the order to be stayed pending finalisation of the Appeal proceedings.
Since that time, the following proceedings have been filed in this Court:
a)27 November 2014: the husband’s Application in a Case seeking payment of costs orders pronounced by the Full Court on 8 May 2013 and 1 September 2014;
b)2 March 2015: the wife’s Response to an Application in a Case seeking eleven substantive orders as detailed in the following sub-paragraph;
c)4 March 2015 : the wife’s Amended Response to an Application in a Case seeking amended orders as follows (amendments underlined):
(i)that the Applicant husband’s claim for costs be offset by the Respondent wife’s claims for sums plus interest to be paid by the husband pursuant to the Consent Orders dated November 2011 which the husband has contravened and continues to contravene since November 2011;
(ii)that the Applicant husband pay the outstanding sums owed plus interest to the wife and/or the self-managed superannuation fund;
(iii)that the Applicant husband pay the taxation debt to the wife being for profits retained solely by the husband for the 2011/2012 financial year or in the alternative the husband pay an equal share of the family company’s profits to the wife for 2009, 2010, 2011 and 2012 financial years, and the wife be paid her annual leave and long service leave entitlements up to and as at the date of Consent Orders in 2011 plus all interest;
(iv)that the Applicant husband pay the debt owed to the wife’s brother, Mr B, to the wife for repairs undertaken and paid for to the Property B property in Queensland;
(v)that the Applicant husband transfer the Ford (omitted) convertible motor vehicle to the wife for the benefit of the four adult children only as was agreed between the parties in 2010 during the family law proceedings, and the husband is restrained and an injunction granted restraining him from dealing whatsoever with the said Ford (omitted) motor vehicle;
(vi)that the Applicant husband deliver up to the wife the Holden (omitted) motor vehicle and disclose the cash sum paid for such vehicle, until further determination of a s.79A Application and/or the pending Appeal and the husband is restrained and an injunction granted restraining him from any dealing or use whatsoever of the said (omitted) motor vehicle, and the said vehicle is to be stored independently forming a formal valuation or agreed value;
(vii)that the Applicant husband pay to the wife the sum equivalent to the replacement cost of antique (omitted) electrical items as pursuant to the Consent Orders dated November 2011 and not yet provided to the wife and the wife is to endeavour to source a written estimate of their value;
(viii)that the Applicant husband be restrained and an injunction granted forthwith restraining the husband from any acts of family violence or abuse towards the wife and the husband is restrained and an injunction granted restraining him from causing any property damage or loss to the wife;
(ix)that the VRO in WA is declared as not determined by this Honourable Court in 2012 due to the restrictions of section 114AB of the Family Law Act 1975 (Cth) as the VRO in WA was already underway in the Busselton Magistrates Court prior to any proceedings in the Federal Magistrates Court in 2012;
(x)that the Applicant husband’s Enforcement Warrant for the seizure and sale of the former matrimonial home be dismissed;
(xi)that the Respondent wife be permitted to proceed on an undefended basis in future proceedings in this Honourable Court;
(xii)Costs.
d)2 April 2015 : the husband’s Enforcement Warrant;
e)23 October 2015 : the husband’s Application in a Case seeking a range of orders in relation to enforcement and including this Application for a vexatious proceedings Order against the wife, pursuant to s.102QB;
f)11 December 2015 : the wife’s Application in a Case seeking orders as follows:
i)that the Respondent pay the Applicant wife the outstanding obligations owed pursuant to the Consent Orders dated 29 November 2011 inclusive of the taxation debt on the company dividends, the debts for the Property B property paid by the wife’s brother and the debt for the removal of the overdraft security over the former family home;
ii)that the Respondent husband deliver up to the wife the Nintendo game boy unit and its games in addition to the antique (omitted) electrical items from the Property P property pursuant to the 2011 final Orders;
iii)that if the items listed in (ii) above are already disposed of by the Respondent husband, then the husband to pay a sum as agreed between the parties or failing agreement then for the wife to obtain and provide an estimated value of those items in similar good condition and working order;
iv)costs.
g)18 December 2015: the wife’s Response seeking orders as follows:
i)that the Applicant’s orders sought be stayed pending the outcome of the s.79A Application and any Appeal or writ;
ii)such further and other orders as deemed appropriate, fair and just in the circumstances;
h)12 January 2016: the wife’s Application in a Case seeking the following orders:
i)that this matter be heard on an urgent ex parte basis;
ii)that an Anton Pillar order issue forthwith;
iii)that the Applicant wife in the company of another adult person attend on the Respondent husband with service of this Anton Pillar order for the purposes of taking delivery of an Holden (omitted) motor vehicle and the wife do have the Holden (omitted) motor vehicle made secure at an independent address for the purpose of valuation by a formal valuer;
iv)that the Applicant wife in the company of another adult attend on the Respondent husband with service of this Anton Pillar order for the purpose of attending at the Property P property to take delivery of all antique electrical items as pursuant to the Consent Orders of 29 November 2011 including any Nintendo unit or games also pursuant to those orders and for the purpose of taking delivery of a (omitted) motor bike which is stored at the property and which is to be delivered to the children who are the rightful owners of the motor bike;
v)that the Applicant wife in the company of another adult attend on the Respondent husband with service of this Anton Pillar order for the purpose of taking delivery of all computers, hard drives, discs, other computer records including hard copy print outs, all bank statements, accountants’ reports including those in relation to the former overdraft for the period 2009 and 2012 inclusive, any documents in relation to the profits of the company trading as (omitted) Pty Ltd for the period 2009 to 2012 inclusive and the annual leave and long service leave entitlements of all staff from 2006 to 2012 inclusive with the wife being permitted to inspect and copy such information in a timely manner and then return all original computers, hard drives, discs, any original records, any original bank statements and any original reports to the Respondent husband in an undamaged state;
vi)that the Applicant wife do give an undertaking as to any loss or damage to the items seized and secured by her pursuant to this Anton Pillar order save and except those items pursuant to the Consent Orders dated 29 November 2011 namely the antique (omitted) electrical items and any Nintendo units and games;
vii)such further or other order as this Court deems appropriate in the circumstances.
i)15 March 2016: the wife’s Application in a Case seeking orders as follows:
i)that the Enforcement proceedings by the Respondent be wholly stayed;
ii)such further or other orders as deemed appropriate in this Court;
j)29 March 2016: the wife’s Application in a Case seeking to vary or set aside orders for production of documents pronounced by the Court on 9 March 2016.
In addition to these proceedings the wife has filed four separate Notices of Appeal in the Full Court of the Family Court; SOA 88 of 2012: SOA50 of 2013; SOA60 of 2013 and SOA24 of 2015. She also filed numerous Applications in an Appeal across those proceedings.
In the course of a directions hearing before the Full Court on 8 May 2013, an issue arose as to whether there was a conflict arising for Counsel appearing for the husband, Ms Nelson QC. Strickland J directed the wife file a proper Application in an Appeal and in circumstances where the wife had raised the issue so late in the piece, ordered the wife pay the husband’s costs thrown away for the attendance that day, fixed in the sum of $3,700.
The wife filed the Application in an Appeal on 5 July 2013, seeking that the husband’s legal representatives be restrained from representing him, including Counsel. She also sought a further order that Strickland J disqualify himself from hearing the matter due to bias. The latter Application was dealt with by His Honour on 31 July 2013 and he dismissed the wife’s Application. The wife then filed an Appeal SOA50 of 2013 in relation to this decision.
Further Applications in an Appeal were dealt with by His Honour on 9 December 2013 and on this occasion Strickland J ordered, inter alia:
a)The wife pay the husband’s costs of and incidental to paragraph 1 of the Application in an Appeal filed by the wife on 5 July 2013 and the hearing on 31 July 2013, such costs to be agreed, but in default of agreement as taxed on an indemnity basis.
The wife filed a further Appeal SOA60 of 2013 in relation to that costs order. Each of the Appeals filed by the wife delayed finalisation of her original Appeal in relation to the order of this Court dismissing her s.79A Application.
The Full Court determined the Appeals SOA50 of 2013 and SOA60 of 2013 on 1 September 2014 and both Appeals were dismissed. The wife was further ordered to pay the husband’s costs of and incidental to preparing the Appeal Books fixed in the sum of $1,247 and to pay his further costs of and incidental to the Appeals, fixed in the sum of $5,000.
The original Appeal SOA88 of 2012 then proceeded before Strickland J and was dismissed on 13 August 2015. The Appeal SOA24 of 2015 was dismissed on 8 September 2015 and His Honour ordered that the wife pay the husband’s costs on an indemnity basis on 22 December 2015.
It is clear that all of the wife’s Appeals were dismissed. Accordingly as at December 2015 there remained the extant proceedings in this Court, being the husband’s Application to enforce various costs orders pronounced in his favour and the wife’s interim Applications again seeking an order pursuant to s.79A and to ventilate a range of matters either arising from the original 2011final orders or loosely described as “in support of” her s.79A Application.
The wife has also filed five further Applications or Responses since December 2015, as referred to above.
The wife has now declared herself bankrupt and the husband concedes that he is unable to seek to enforce any costs order in his favour at this time. The effect of the wife’s bankruptcy is that the husband has no real opportunity to seek any further redress through an application for costs.
Relevant legal principles
The Family Law Act 1975 was amended in 2012 with the insertion of Part XIB, entitled Vexatious Proceedings. These amendments came into effect on 11 June 2013. Section 102Q defines vexatious proceedings to include the following:
a)Proceedings that are an abuse of 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.
This list of examples is not intended to be exhaustive.[1]
[1] Searle & Pencious (2016) FamCA 135 per McMillan J at para.51
Section 102QB(1) states that this section applies if a court exercising jurisdiction in proceedings under this Act is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. Section 102QB(2) empowers the Court to 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 this person.
In accordance with s.102QB(6), the Court may have regard to proceedings instituted or conducted in any Australian court or tribunal, orders made by any Australian court or tribunal and the person’s overall conduct in proceedings conducted in any Australian court or tribunal, including proceedings instituted or conducted before the commencement of this section.
The Court’s power to declare a litigant vexatious is now covered by the legislation, but guidance can still be obtained from earlier decisions. The decision of Perram J in Official Trustee in Bankruptcy v Gargan (No 2)[2] is often cited as “an eloquent expression” of the principles relating to vexatious litigants[3]. At paras. 2–12 of His Honour’s judgment, Perram J enunciated the principles as follows (with some omissions):
“[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.
[2] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
[3] Cited by Benjamin J in Cannon & Acres (supra) and Davies J in Attorney General in & for the State of NSW v Gargan [2010] NSWSC 1192
[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 and 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 [the relevant Federal Court Rule] 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. ….
[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 … 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 …
…
[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 Cannon & Acres[4] Benjamin J discussed the earlier Full Court decision of Marsden & Winch[5] a decision relied upon by the wife in opposing the present Application. As Benjamin J points out, however, the decision in Marsden & Winch was dealing with an Application pursuant to s.118, not s.102QB. His Honour noted that there are fundamental differences between the two sections. He said:
“The test is no longer a court having frivolous or vexatious proceedings before it but rather whether or not there is a history of a person having frequently instituted or conducted vexatious proceedings.”[6]
[4] Cannon & Acres [2014] FamCA 104
[5] Marsden & Winch [2013] FamCAFC 177
[6] Cannon & Acres (supra) at para.420
In that case, Benjamin J adopted the following three step approach:
1.In accordance with s.102QB(1) to determine which proceedings instituted or conducted in Australian courts or tribunals constitute vexatious proceedings.
2.If there have been vexatious proceedings, determine whether such proceedings have been conducted frequently.
3.If that threshold is met, the Court should then consider whether to exercise the discretion set down in s.102QB and make a vexatious proceedings order.[7]
[7] Ibid, at para.440
Before a court can be satisfied to make a vexatious proceedings order, the court must find that a party has instituted or conducted vexatious proceedings and that they have done so frequently. Significantly, this issue was considered by Benjamin J who said as follows:[8]
[8] Ibid, at para.483
“The meaning of the term ‘frequently’ in the context of a vexatious proceeding was considered by Davies J in Attorney General in and for the State of New South Wales v Gargan (supra) at 7. Davies J summarised the principles associated with making an order under section 8(1)(a) of the Vexatious Proceedings Act 2008 (New South Wales) which is relevantly almost identical to s.102QB(1)(a) of the Family Law Act and said:-
(a)the test of frequently is less demanding than the test that was required under section 84 Supreme Court Act 1970; the term frequently is a relative term and must be looked at in the context of the litigation being considered;
(b) the number of proceedings considered may be small if the proceedings are an attempt to relitigate an issue already determined (emphasis added by Benjamin J) against a person;
(c) regard may be had to applications made by the person in proceedings against that person;
(d) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the court;
(e) regard may be had to the proceedings in any Australian Court or Tribunal;
(f) regard may be had to the findings and results in the proceedings under consideration.”
Application of the legal principles to the case before me
The Court must consider whether any of the proceedings instituted by the wife fall within the definition of “vexatious”. If I am so satisfied, I must then consider whether the wife has conducted vexatious proceedings frequently.
I will address the wife’s proceedings in light of this discussion of the law.
The wife’s Amended Response filed 4 March 2015
This wife originally filed her Response on 2 March 2015 seeking a range of Orders relating to the parties’ earlier property settlement, together with further orders that appear to be sought in anticipation of a further s.79A Application. The Court ordered that the wife’s supporting Affidavit be uplifted from the file as it did not comply with Rule 2.01, but granted the wife leave to re-file the Affidavit in a proper format, which the wife proceeded to file on 4 March 2015, together with her Amended Response to an Application in a Case.
When considering the detailed orders sought in the Amended Response, it appears that many of the orders sought relate to issues or allegations relied upon by the wife in support of her original s.79A Application filed 24 August 2012. The wife’s Affidavit filed 4 March 2015 is long-winded and replete with opinion and submissions. While she makes numerous claims or accusations about the husband’s past behaviour, she provides little by way of evidence. Many of the issues raised are a repeat of issues raised by her in the original s.79A Application filed by her in 2012.
I conclude that most of the orders sought by the wife in her Amended Response are without foundation. Paragraph 1 has already been considered by the Full Court and dismissed, in Appeal SOA25 of 2015. Paragraphs 2 – 5 are akin to an informal s.79A Application, seeking to revisit the 2011 final Orders.
As an example, the wife alleges that the Ford (omitted) motor vehicle should not be part of the matrimonial asset pool but it is clearly referred to in the 2011 final orders, as an asset to be retained by the husband. Insofar as all of these issues have already been considered and dismissed by this Court and by the Full Court, I conclude that paragraphs 1 – 5 of the Amended Response are vexatious proceedings. The orders sought are brought without reasonable grounds.
Paragraph 6 of the Amended Response relates to a previous complaint made by the wife in relation to a Holden (omitted) which she says the husband retained but did not disclose in negotiations. She has filed an Affidavit of her son, Mr S, in which he supports her allegations in relation to this vehicle.
His evidence was not available at the time the wife’s original s.79A Application was dismissed by this Court, but I conclude his evidence would not have led the Court to reach a different conclusion. Even if the Court accepted his evidence, the value of the motor vehicle and of any potential adjustment in the wife’s favour, comparative to the value of the total asset pool, would not be sufficient to invoke the Court’s discretionary power pursuant to s.79A.
Paragraph 7 of the Amended Response again seeks to enforce paragraph 22.6 of the 2011 final Order, which provided for the wife to retain certain antique (omitted) appliances, either by delivery up of the items to the wife, or by a cash adjustment (in an unspecified amount). The difficulty for the wife is that paragraph 22.6 requires the husband to deliver up to the wife “any antique (omitted) electrical appliances that may currently be in his possession”. While the wife clearly believes the husband had retained these items and refused to hand them over, she is no further advanced in being able to prove this than she was in 2012, when she first sought a similar order. I conclude that this Application is vexatious, as it is brought without reasonable grounds.
Paragraph 8 of the wife’s Amended Response seeks an order restraining the husband from any acts of family violence or abuse towards the wife and from causing any property damage. This paragraph repeats earlier applications made by the wife in 2012. My recollection of those proceedings is that the wife was pursuing a Family Violence Order through the Western Australian Magistrates Court, which provides a far better level of protection than an injunction issued pursuant to the Family Law Act.
The current Application appears to be supported by paragraph 18 of the wife’s Affidavit filed 4 March 2015, in which she refers to “harassing blocked number phone calls to me whilst at work and then when I answered this call I was subject to his foul language…”. [9] She then goes on “… as is always the case including as recently as 25 January 2015 when I copped more abuse in public from him.” The difficulty is that the earlier allegations had already been dealt with in Western Australia. The wife provides no evidence as to what the husband actually said to her on 25 January 2015 and there is simply no evidence to justify the injunctions sought.
[9] This behaviour apparently led her to seek the family violence order in 2012, as referred to.
While the wife is self-represented, it must be remembered that she is a (occupation omitted). She should understand the need to present actual evidence in support of any Application brought before the Court. She has been reminded of this numerous times, both by this Court and by the Full Court.
Her failure to comply with this basic requirement leads me to conclude that the order sought in this paragraph is a vexatious proceeding. I find that the wife has brought this Application to annoy and harass the husband, rather than for any legitimate purpose. My conclusion is strengthened by the wife’s Affidavit where she states that she intends to file a further Application in the WA Magistrates Court seeking to set aside the earlier decision dismissing her application for a Violence Restraining Order.
Paragraph 9 of the Amended Response seeks an order that “The VRO in WA is declared as not determined by this Honourable Court in 2012 due to the restriction of s114AB as the VRO in WA was already underway in the Busselton Magistrates Court prior to any proceedings in the Federal Magistrates Court in 2012”. The wife’s Affidavit states that the Magistrate believed the Intervention Order Application was dealt with in this Court. She refers to the Magistrates’ written Reasons, but they are not annexed to her Affidavit, nor are the Reasons for Judgment from the District Court or Supreme Court of Western Australia.
This Court cannot determine an Application for a family violence order made under state legislation. Therefore this Court cannot declare that this Court did not determine the application, as that implies the Court made an actual decision not to determine the application. To that extent this Application is without foundation, but I consider the Application is misunderstood, rather vexatious.
Paragraph 10 of the Amended Response seeks dismissal of the Husband’s Enforcement Application. The husband concedes that the enforcement proceedings should now be stayed, given that the wife has been declared bankrupt, but there was no basis for this Order, at the time this Response was filed.
Paragraph 11 of the Amended Response seeks permission for the wife to procced on an undefended basis in future proceedings. The wife does not present any evidence in her accompanying Affidavit to justify such an order, but I consider this order sought is ill founded, rather than vexatious.
The wife’s Application in a Case filed 11 December 2015.
Paragraph 1 of this Application effectively seeks an order with the same effect as orders sought in the wife’s Amended Response filed 4 March 2015, albeit in a summary form. I am satisfied this Application is a vexatious proceeding. It is repetitive and is brought without reasonable grounds, just as I have found that most of the paragraphs in her Amended Response were brought without reasonable grounds.
Paragraph 2 seeks an order for delivery up of the (omitted) items, plus a Nintendo Gameboy and games, pursuant to paragraph 22 of the 2011 final Orders. Paragraph 3 seeks financial recompense, in the event paragraph 2 cannot be complied with. I note these orders have previously been sought by the wife in earlier Applications (at least in relation to the (omitted) appliances), but had not been ruled upon, pending determination of the appeal process.
In those circumstances I do not consider these two orders sought fall within the category of a vexatious proceeding. However, I will be inviting the parties to address me as to why this Application should not be summarily dismissed. The husband says that he has delivered up the items required by the 2011 final orders,[10] but he has not specifically addressed the wife’s allegations regarding the (omitted) appliances and the Gameboy and Games. Even if the wife can satisfy me that the husband has failed to comply with this order and should now reimburse her, the value of the items is very modest. When compared to the quantum of the various costs orders made against the wife and which are likely to remain unpaid, it would be difficult to justify a cash adjustment in the wife’s favour.
[10] Husband’s affidavit filed 25 September 2012 at para 9
The Wife’s Response filed 18 December 2015
In this proceeding the wife seeks only one substantive order – “That the Applicant’s orders sought be stayed pending the outcome of the s79A application and any appeal or writ”. The wife appears to be seeking to stay any consideration of the husband’s Application in a Case filed 23 October 2015, which sought various orders designed to facilitate enforcement of the costs orders made against the wife, together with the current application pursuant to s.102QB.
The wife’s supporting Affidavit filed 18 December 2015 is again verbose, repetitive and replete with irrelevant information, opinion and submissions. It provides no clear basis for the stay order sought, given that the wife’s appeals had all been dismissed, save for SOA24 of 2015, which was dismissed four days later, on 22 December 2015.
While at first glance it may not be appear vexatious to seek to stay the husband’s Application, the Orders sought cannot be viewed in isolation from the wife’s Affidavit filed in support. Yet again, the husband is expected to reply to allegations and accusations that have been repeated time and again, but which do not specifically relate to the actual orders sought.
In the circumstances I conclude that this is a vexatious proceeding. The wife is a (occupation omitted). If she truly sought to pursue a legitimate Application, she would have filed a relevant supporting Affidavit, not simply repeated past complaints and allegations.
The final paragraph of this Affidavit is particularly concerning. The wife says: “I seek the husband’s orders sought be stayed pending the s79A application which outlines and annexes substantial non-disclosure issues and further I will be seeking to file either an appeal (with leave sought for an extension of time) or a writ of certiorari in relation to the past appeal.”[11] This suggests that the wife is not prepared to accept the Courts’ past rulings, whether relating to orders of this Court, or the Full Court.
[11] Wife’s affidavit filed 18 December 2015 at para 7
The Wife’s Application in a Case filed 12 January 2016
In this proceeding the wife sought an Anton Pillar order, to be issued on an urgent ex parte basis. Given the history of these proceedings and the fact that the wife was seeking an ex parte order, the Court listed the Application the same day to formally dismiss the wife’s application to proceed ex parte and to notify the wife that the Court would not hear the Application without the other party being properly served.
I am satisfied this Application is a vexatious proceeding and was an abuse of the Court process. There was no basis for the wife to seek an urgent listing, given that the Affidavit she relied upon was sworn on 11 August 2015. There was no basis for an ex parte hearing, or for the wife to seek an Anton Pillar order in January 2016. The “evidence” or “assets” she was apparently seeking to preserve relate back to events in 2011 and 2012.
The wife’s Affidavit again repeats at length the same litany of complaints and accusations as have been attested to by her previously. I accept the wife genuinely believes that the husband has lied, deceived and misled this Court and other Courts, but repeating the same accusations and allegations multiple times across the years does not prove the truth of the allegations. The wife’s Application required the utilisation of Court resources and would have involved the husband incurring further legal expenses if he had been required to respond to the Application.
The Wife’s Application in a Case filed 15 March 2016
The wife seeks to stay the husband’s enforcement proceedings. She filed an affidavit confirming that she had applied for a voluntary bankruptcy. The husband subsequently conceded that he cannot pursue any enforcement process against her in those circumstances.
The wife’s Affidavit again repeats the same litany of complaints and allegations relating to the husband’s past behaviour, none of which are directly relevant to the Application, but I am satisfied this Application is not vexatious.
The Wife’s Application in a Case filed 29 March 2016
In this Application the wife seeks to set aside orders pronounced by the Court on 9 March 2016. The relevant orders required the wife to produce a range of documents to the Court, as identified in a Notice to Produce filed by the husband on 23 February 2016 and relating to his enforcement proceedings. On 9 March 2016 the wife advised the Court that she had recently filed a Debtor’s Petition, but the status of the bankruptcy was not yet confirmed and the Court was satisfied to make the Orders as sought by the husband.
The relevant documents from the Australian Financial Security Authority confirming the Debtor’s Petition were subsequently annexed to the wife’s affidavit filed 15 March 2016. In the circumstances the wife has an arguable case that the order for production of documents was no longer relevant, as the enforcement process cannot proceed.
The Wife’s Initiating Application filed 31 March 2016
The wife finally filed a second s.79A Application on 31 March 2016. I note that her affidavit filed 15 March 2016 sets out that she had attempted to file the Initiating Application earlier, in December 2015. The Application was not processed by the Registry, possibly because payment information was not provided in the correct format. Unfortunately the documents were then mislaid by the Registry, but after further enquiries by the wife, were eventually located in February 2016 and received for filing on 31 March 2016. No supporting Affidavit was filed at the same time, but it would appear the wife is relying upon her earlier Affidavit material filed in December 2015.
I conclude that this Application is a vexatious proceeding. The interim orders sought clearly identify the basis for the wife’s claim and all of the matters referred to in those interim orders have been addressed in earlier proceedings – the Holden (omitted), the Ford (omitted) motor vehicle, the husband’s ability to access refinancing immediately after the consent orders were made in 2011.
The wife does not disclose any fresh basis to seek an order pursuant to s.79A. Her original s.79A Application has been dismissed by this Court and by the Full Court. In the circumstances I find that this Application is brought without reasonable grounds and is an abuse of process. The Application serves no proper purpose, it simply reflects the wife’s inability to accept that the original property settlement proceedings are finalised.
The wife’s proceedings in the Court of Appeal and in Western Australia
The husband argues that the wife’s conduct of litigation within the Court of Appeal and the proceedings in Western Australia also justify a finding that she has initiated vexatious proceedings. Insofar as the wife was entirely unsuccessful in the appellate process, that submission may have some weight, but I was not presented with sufficient substantive evidence to justify a finding that some or all of her appellate proceedings were vexatious. I note that various Full Court decisions criticise the wife’s conduct of her litigation within the appeal proceedings, but that is not sufficient to determine that the proceedings or her conduct should be declared vexatious.
I take the same approach to the proceedings in Western Australia. Any litigant has the right to file an Appeal against the decision of a lower Court. If they are unsuccessful, then the appropriate remedy is a costs order against them, as occurred on each occasion. I have not been provided with sufficient evidence about these proceedings to determine whether or not any specific application or appeal was vexatious. The wife’s apparent intention to recommence those proceedings is a matter of concern, however.
Conclusion
The above discussion demonstrates that the wife has filed a number of proceedings in this Court that are without merit and are vexatious, within the meaning of s.102QB. As discussed by Davies J and endorsed by Benjamin J, the requirement of “frequency” may be met by a relatively small number of proceedings, if the proceedings are an attempt to re-litigate proceedings that have already been determined.[12] I conclude that the wife’s history of litigation in this Court during 2015 and 2016 is sufficient to find that she has frequently filed vexatious proceedings.
[12] Supra, at footnote 8
I accept the wife has not filed these proceedings purely out of spite, to harass or annoy the husband, but the impact of these vexatious proceedings upon the husband cannot be ignored. It is clear that the wife continues to believe the 2011 final orders reflect a grave miscarriage of justice perpetrated by the husband against her. The wife appears unable to accept that she has now exhausted all legal avenues in this regard. She is unable to accept “the principles of finality of litigation” as discussed by Perram J, above.[13]
[13] As cited at paragraph 20
Section 102QB is designed to protect parties and the Court from exposure to repetitive and unmeritorious proceedings. Such proceedings can be a considerable drain upon Court resources and can cause great cost and inconvenience to other litigants, such as the husband in this case.
Limiting a citizen’s access to the Court system is a very significant step. It is not a decision that any Judge takes lightly, but only after due consideration and reflection on the evidence presented. However, a citizen’s right to access the Court must be balanced against another citizen’s right to be protected from vexatious Court proceedings. In this matter, there is a real risk that the wife will continue to initiate further proceedings that will be equally without reasonable grounds and an abuse of process. I conclude that the wife should be restrained from initiating any proceedings in this Court or any other Court exercising jurisdiction pursuant to the Family Law Act 1975, without first being granted leave pursuant to s.102QE.
The husband also seeks an order for security of costs, should the wife seek such leave to commence further proceedings. Section 102QB (2)(c) empowers the Court to make “any other order the court considers appropriate…” and this includes an order for security of costs.[14]
[14] See legislative note to s.102Qb(2)(c)
The extent of past litigation and the quantum of outstanding costs orders already made in the husband’s favour in various courts leads me to conclude that an order for security for costs may be appropriate and may provide some level of protection for the respondent husband. However, this question would need to be determined in relation to any further proceedings the wife may seek leave to file, taking into account the relevant legal principles in relation to security for costs.[15]
[15] For a discussion of the relevant principles regarding security of costs, see Gerber & Bradley & Ors (Security for Costs) [2011] FamCAFC 206, cited with approval by the Full Court in Gull & Gull [2013] and Fenton & Marvel [2012] FamCAFC 150.
In relation to the Applications still before the Court, the wife’s Amended Response to an Application in a Case filed 4 March 2015 should be dismissed, as the orders sought are either vexatious, or misguided. The same conclusion applies to her Applications filed 18 December 2015 and 12 January 2016. Having determined that the wife’s Initiating Application formally filed on 31 March 2016 is also a vexatious proceeding, that Application should also be dismissed.
The wife’s Application in a Case filed 11 December 2015 should be dismissed, aside from paragraphs 2 and 3. The wife’s Application in a Case filed 15 March 2016 is conceded by the husband and I will stay the Enforcement Warrant and associated proceedings. The wife’s Application in a Case filed 29 March 2016 has not yet been determined.
I now make orders as published at the commencement of these Reasons. The Court will hear brief submissions in relation to the paragraphs 2 and 3 of the wife’s Application in a Case filed 11 December 2015 and her Application in a Case filed 29 March 2016.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 1 November 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Stay of Proceedings
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Costs
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Jurisdiction
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Procedural Fairness
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