Monfort
[2024] FedCFamC1A 23
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Monfort [2024] FedCFamC1A 23
Appeal from: Monfort & Bade [2024] FedCFamC1F 16 Appeal number: NAA 34 of 2024 File number: BRC 4638 of 2014 Judgment of: ALDRIDGE, AUSTIN & HARPER JJ Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant –
Where the wife seeks leave to appeal against the dismissal of her application before the primary judge – Where the wife requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the Court is not satisfied any of the grounds contained in the wife’s proposed Notice of Appeal are reasonable and therefore are vexatious under s 102Q(1) of the Act – Leave refused –
Application in an Appeal dismissed.Legislation: Family Law Act 1975 (Cth) Pts VIIIAA, XIB, XIIIA, ss 79, 79A, 80, 90AE, 90AF, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit Court Rules 2001 (Cth) r 13.04 and r 16.05
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364
Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16
Darley (No 4) [2023] FedCFamC1A 158
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
McDonald and McDonald (1976) FLC 90-047; [1976] FamCA 29
Monfort & Bade [2018] FamCAFC 163
Newett & Newett (No 8) (2023) FLC 94-128; [2023] FedCFamC1A 7
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129
Ravasini and Ravasini (1983) FLC 91-312; [1982] FamCA 62
Reichel v Magrath (1889) 14 App Cas 665
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Santos v Delhi Petroleum Pty Ltd (2002) 225 LSJS 1; [2002] SASC 272
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Number of paragraphs: 41 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 34 of 2024
BRC 4638 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MONFORT
Applicant
ORDER MADE BY:
ALDRIDGE, AUSTIN & HARPER JJ
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 February 2024 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monfort has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & HARPER JJ:
By Application in an Appeal filed on 16 February 2024, the applicant wife (“the wife”) seeks leave to file an appeal from a judgment and orders of a single judge of the Federal Circuit and Family Court of Australia (Division 1) delivered on 25 January 2024.
As we will explain in more detail shortly, the proceedings have had a long history. Final property adjustment orders were made on 13 October 2017 (“2017 orders”) in the Federal Circuit Court of Australia as it was then known, now called the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).
In summary, the 2017 orders divided the property of the spouse parties overall 75 per cent to the wife and 25 per cent to the proposed respondent husband (“the husband”). The division was to be achieved in part by the sale of Property A and F Lawyers were appointed as trustees for such sale. The wife was ordered to make a cash payment to the husband and the parties were also ordered to refinance another property, Property B, with the husband to transfer his interest to the wife, and the wife to cause the release of the husband of any liability in respect of the property, including the mortgage. F Lawyers were appointed trustees for the sale of Property B in the event of default.
The wife appealed the 2017 orders. No stay was ever granted and the appeal was dismissed on 24 August 2018 (Monfort & Bade [2018] FamCAFC 163).
The orders of 25 January 2024, inter alia, declared the wife a vexatious litigant under Pt XIB of the Family Law Act 1975 (Cth) (“the Act”) thus enjoining her from instituting proceedings under the Act without leave, and dismissed all extant applications instituted by the wife against the husband and the trustee for sale of property, Mr Flannan (“the trustee”). The relevant orders of 25 January 2024 were in the following terms:
1.The wife’s Amended Application in a Case filed 27 September 2021 is dismissed.
2.Pursuant to section 102QB(2)(a) of the Family Law Act 1975 (Cth) (“the Act”) all extant applications instituted by [the wife] against [the husband] or his legal advisors both past and present in any court having jurisdiction under the Act be dismissed.
3.Pursuant to section 102QB(2)(a) of the Act, all extant applications instituted by [the wife] against [the trustee] or his employees or agents (both past and present) or his legal advisors (both past and present) in any court having jurisdiction under the Act be dismissed.
4.Pursuant to section 102QB(2)(b) of the Act [the wife] be prohibited from instituting proceedings involving [the husband] or his legal advisors both past and present in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to section 102QE of the Act.
5.Pursuant to section 102QB(2)(b) of the Act [the wife] be prohibited from instituting proceedings against [the trustee] or his employees or agents (both past and present) or his legal advisors (both past and present) in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to section 102QE of the Act.
Section 102QE(2) of the Act provides:
(2)The applicant may apply to the court for leave to institute proceedings that are subject to [an order pursuant to s 102QB(2)].
There is nothing in the orders of the primary judge excluding appeals from their operation. It is settled that leave is required pursuant to s 102QE(2) to institute an appeal. In SCVG (2020) FLC 93-967 the Full Court explained:
24.The taking of any step or the making of an application to start an appeal is itself defined in s 102Q(1) of the Act as a form of fresh proceedings (par (a) of the definition of “institute”), the institution of which is caught by Part XIB (Pencious & Searle (2017) FLC 93-805 at [77]–[88]) and, since the proposed appeal is from an order which prevents another application being made … without leave, it is caught by the terms of the … injunction.
In accordance with the Court’s practice, the wife’s application for leave to institute proceedings was heard before it had been served upon the husband or the trustee. The application for leave to institute proceedings was determined on the papers in chambers (s 102QF(3) and s 102QF(4) of the Act).
BACKGROUND
For the purposes of this judgment, we adopt the relevant parts of the history recorded by the primary judge as follows:
1. The applicant wife is Ms Monfort. The respondent husband is Mr Bade. The parties commenced cohabitation in late 1991 and married in late 1992. The parties separated on a final basis somewhere between 2012 and 2014. The wife filed an Application for property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”) in the Federal Circuit Court of Australia in Brisbane in May 2014. The matter was transferred to the City S Registry. The matter came on before her Honour Judge Willis for final hearing on 27 October 2016. Judgment was delivered on 13 October 2017. The final orders made by her Honour on 13 October 2017 have not yet been fully executed.
2. By the time that Judge Willis made the [2017 orders], the parties had two properties remaining which they owned jointly – [Property A]; and [Property B]. The [2017 orders] state:
“THE COURT ORDERS THAT:
1. That the overall property division is to be divided 75% to the wife and 25% to the husband.
2. To achieve the division the following orders will apply.
3. The parties (and the Trustees referred to in the Orders) are granted liberty to apply in relation the mechanical provisions of these Orders.
Sale of [Property A]
4. The parties are to do all acts and things to forthwith effect a sale of the property situated at [Property A] more properly described as Lot […] of RP […], County […], Parish of […] Title Reference […] ([Property A]) pursuant to Order 5 herein.
Trustee for Sale
5. To effect the sale of [Property A], the parties are to do all acts and things to forthwith appoint [F Lawyers] as Trustee for sale (“the Trustee”). The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property A].
…
22. To effect the sale of [Property B], the parties are to forthwith do all acts and things to appoint [F Lawyers] as Trustee for sale … of [Property B]. The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property B].
…
3. The firm of lawyers known as F Lawyers refused to act as Trustee. That situation eventually led to the parties consenting to the Order of 1 February 2019. That Order was made by her Honour Judge Willis and that Order states:
“BY CONSENT IT IS ORDERED:
1. Order 5 of the Final Orders be varied to become:
“(5)To effect the sale of [Property A], [the trustee] is appointed, forthwith, pursuant to section 80(1)(e) of the Family Law Act 1975 as Trustee for sale (“the Trustee”). The husband and wife do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title of [Property A].”
2. Order 22 of the Final Orders be varied to become:
“(22)To effect the sale of [Property B], [the trustee] is appointed, forthwith, pursuant to section 80(1)(e) of the Family Law Act 1975 as Trustee for sale (“the Trustee”). The husband and wife do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property B].
3. Orders 12(a) and 29(a) of the Final Orders be varied to insert the words:
“…, including the Trustee’s fees, costs and outlays.”
4. Orders 10 and 26 of the Final Orders be varied to insert an extra paragraph to read:
“(b)If either party fails to follow a direction of the Trustee then any additional costs of the Trustee arising from or incidental to the failure shall be borne by that party.”
5. There be no order as to the costs.”
4. At the time of the making of the 1 February 2019 Order, the wife was represented by Mr G, solicitor and Mr Chinyelu appeared as the solicitor for the husband. The transcript of the hearing before Judge Willis on 1 February 2019 reveals that her Honour was very careful to ensure that the wife was consenting to the appointment of [the trustee] as the Trustee for Sale of [Property A] and [Property B]. The transcript of that hearing is in evidence. It is annexed to the affidavit of [the trustee] filed 21 November 2022. Furthermore, the transcript of that day makes it clear that the wife’s solicitor informed the Court that [the trustee] was being appointed as the Trustee for Sale of both properties.
5. The wife never sought to appeal the order of 1 February 2019…
(Footnotes omitted) (Emphasis in original)
The variation of the 2017 orders by the February 2019 consent orders (“2019 consent orders”) lie at the heart of the wife’s proposed appeal.
It is important to note several points here. Order 3 of the 2017 orders specifically provided liberty to the parties to apply in relation to the “mechanical provisions” in the orders. Orders 5, 10, 12(a), 22, 26 and 29(a), designed to bring about the sale of Property A and if necessary Property B, were all provisions of that nature (Ravasini and Ravasini (1983) FLC 91-312, referred to by the primary judge). As the primary judge noted, it has long been settled that a court has power to modify machinery provisions (McDonald and McDonald (1976) FLC 90-047) after a final judgment. Such orders do not finally determine rights or obligations between parties on a principal cause between them, so as, for example, to create an issue estoppel or found a right of appeal (Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; Santos v Delhi Petroleum Pty Ltd (2002) 225 LSJS 1 at [400]; Castillon v P&O Ports Ltd [2008] 2 Qd R 219 at [55]). Rather such orders enforce rights or entitlements already determined (Newett & Newett (No 8) (2023) FLC 94-128 at [18]).
In substance the 2019 orders varied, by consent, the 2017 orders simply by substituting Mr Flannan as the new trustee for sale and including an express reference to s 80(1)(e) of the Act, and by making some provision for the payment of such trustee’s costs and outlays, including costs incurred if a party failed to follow his directions. As the primary judge also observed, the 2017 orders specifically granted liberty to the parties to apply in relation to such orders.
LEAVE TO APPEAL PURSUANT TO S 102QE
In determining the wife’s application, several provisions of Pt XIB of the Act are relevant.
The expression “vexatious proceedings” is defined inclusively in s 102Q(1) of the Act as follows:
vexatious proceedings includes:
(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.
Section 102QE(3) requires an applicant seeking leave pursuant to s 102QE(2) to file an affidavit that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
We are satisfied that the wife’s affidavit filed on 16 February 2024 complies with s 102QE(3).
Section 102QF(2) provides:
(2)The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
Section 102QG(4) then provides:
(4)The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.
In Darley (No 4) [2023] FedCFamC1A 158 the Full Court explained the difference between the two subsections in the following way:
13. It can be seen that s 102QF(2) of the Act requires the Court to dismiss an application for leave under s 102QE “if it considers the proceedings are vexatious proceedings”, while s 102QG(4) of the Act permits the Court to grant leave “only if it is satisfied the proceedings are not vexatious proceedings”. The difference between the two subsections appears to be that s 102QF(2) imposes an onus to establish that the given proceedings are vexatious, while s 102QG(4) imposes an obligation on an applicant seeking leave to satisfy the Court the proposed proceedings are not vexatious. A failure to satisfy the Court means the discretion to grant leave is not enlivened. This is the import of the phrase “only if” used in s 102QG(4).
The Full Court explained the operation of s 102QE, and s 102QG(4) as follows:
20. However, leave to institute an appeal pursuant to s 102QE of the Act raises some different considerations [to conventional applications for leave to appeal]. This is because, as explained, instituting an appeal is caught by the injunction made pursuant to s 102QB(2), and by reason of s 102QF(2), the Court is obliged to dismiss the application for leave if it considers the appeal to be vexatious, or it is deprived of jurisdiction to grant leave by reason of s 102QG(4) unless satisfied the appeal is not vexatious. If either subsection was satisfied, the proposed appeal could not be instituted and the application for leave pursuant to s 102QE would have to be refused ...
...
22. The relevant state of satisfaction is to be reached upon consideration of the [applicant’s] material, without receiving any responding or contradicting material or arguments. Being satisfied that a proposed appeal is not vexatious requires concluding it does not fall within any of the categories of “vexatious proceedings” specified in s 102Q(1) of the Act. This conclusion requires a level of negative certainty which is not reached if the [applicant’s] material suggests [the] proposed appeal is either probably, or even may be, vexatious.
In our view, it is unnecessary to express a view about the application of s 102QF(2) to the proposed appeal. For the reasons which follow, the necessary level of negative certainty for the purposes of s 102QG(4) has not been reached. We are not satisfied the wife’s proposed appeal is not vexatious, because it has been instituted without reasonable grounds. Consequently, no discretion to grant leave has been enlivened and the wife’s application must be dismissed.
THE PROPOSED APPEAL
In determining the wife’s application for leave it is important to bear in mind that the discretion to declare a litigant vexatious and make orders preventing them from instituting further proceedings without leave is enlivened by a finding that the litigant “has frequently instituted or conducted vexatious proceedings in Australian courts” (s 102QB(1)(a) of the Act). The important word is “frequently”. The discretion is not dependent upon a finding that every proceeding instituted is vexatious, only that the given litigant has instituted such proceedings “frequently”. This term embraces a relatively low threshold, and the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency (Potier v Attorney General (NSW) (2015) 89 NSWLR 284 at [114] and [116]; Pencious & Searle (2017) FLC 93-805 at [73]).
The wife annexed to her affidavit in support filed 16 February 2024 a proposed notice of appeal, articulating 10 proposed grounds. These require consideration to determine their reasonableness and the question of whether those grounds fall within any other definition of “vexatious” proceedings.
We have already observed the 2019 consent orders are the focus of the wife’s proposed appeal. However, those orders were made by a judge in a court different to the court in which the subject appealed orders were made. The relationship between the 2019 consent orders and the orders made pursuant to s 102QE, the subject of appeal, is obscure. We will assume in the wife’s favour that she argues her complaints about the 2019 consent orders should have somehow inhibited the primary judge making orders pursuant to s 102QE. Even making that assumption in her favour, we are not satisfied any of the grounds are reasonable and not vexatious.
Grounds 1 to 5 all focus on the 2019 consent orders. Before the primary judge the wife had argued these orders were made in “jurisdictional error” by which she appeared to mean in excess of jurisdiction.
In summary, in Grounds 1 and 2 the wife alleges the primary judge gave inadequate reasons for rejecting this argument. By this she seems to mean his reasons failed to disclose that he had turned his mind to two “outstanding questions”: first, the original Division 2 judge’s reliance on s 80 of the Act as a source of power to make the 2019 consent order and secondly, orders being sought by consent under Pt VIIIAA of the Act, particularly s 90AE or s 90AF, binding third parties.
These grounds are misconceived. As pointed out already, the 2019 consent orders varied machinery provisions to implement the final orders made in 2017. There is nothing in the wife’s material which raises an arguable possibility that the orders were made in excess of jurisdiction. The wife appears to labour under the misconception that the Division 2 judge varied the 2017 orders pursuant to powers set out in s 80 of the Act. This is plainly incorrect. As also pointed out above, the Division 2 judge had implied power to vary machinery provisions without resort to the Act. But in addition, the relevant rules of court in 2019 were the Federal Circuit Court Rules2001 (Cth) (“the 2001 Rules”). Rule 13.04(1) of the 2001 Rules permitted parties to a proceeding to apply for an order by consent in terms of an agreement reached. This is what happened on 1 February 2019. Rule 16.05(2)(f) permitted the variation of an order “if the party in whose favour it was made consents”. Clearly, where all parties consent, as they did on 1 February 2019, this includes the party in whose favour the relevant 2017 orders were made. The Division 2 judge, by inserting an express reference to s 80(1)(e) of the Act in Orders 5 and 22 of the 2017 orders, merely made explicit what was already implicit in the original form of the orders.
The references to Pt VIIIAA, s 90AE and s 90AF of the Act in Ground 2 are similarly misplaced. There was no occasion to consider their application when varying machinery provisions by simply substituting a new individual as trustee for sale together with orders about the trustee’s costs. The same flaw vitiates Grounds 5, 6 and 7. The 2019 consent orders did not make any “fresh property settlement order binding a third party” nor did they enliven the Court’s jurisdiction under s 79A of the Act to which Ground 5 refers or Pt VIIIAA, as Grounds 6 and 7 allege.
By Ground 3, the wife raises the contention that her admitted failure to appeal from the 2019 consent order did not preclude her from challenging it for excess of jurisdiction. That much may be accepted. But the ground does not explain what the excess of jurisdiction is said to be, and as already pointed out, there appears to be nothing in the 2019 consent orders suggesting they were made in excess of jurisdiction. This observation also demonstrates that Ground 4 is also without foundation. It contends, at least implicitly, that the primary judge should have viewed the 2019 consent orders as a property adjustment vitiated by a failure to undertake the mandatory process of consideration in s 79(2) of the Act. This is untenable, as already explained.
Ground 8 refers specifically to the finding of the primary judge at [60] and [75] that the wife was in default of Orders 13, 14, 15 and 16 of the 2017 orders as varied by the 2019 consent orders. The ground raises the assertion that the primary judge was obliged to follow the provisions in Pt XIIIA of the Act before making such findings. Again this is misconceived. Part XIIIA deals with applications for contravention of Court orders. No such application was before the primary judge. The primary judge made the impugned findings as part his overall reasoning in dealing with the applications before him. There was no occasion to apply the provisions of Pt XIIIA and no conceivable error in failing to do so.
Ground 9 is expressed in the following terms:
… The reasons are inadequate to explain that the husband had discharged the heavy onus of showing the [wife’s] purpose in using the legal process has been one other than for which it has been designed as per the test in Ashby v Commonwealth (No 4) [2012] FCA 1411 at [4] citing Williams v Spautz (1992) 174 CLR 509 at 529 or whether his Honour even considered the response material filed by the [wife].
There are two reasons, at least, why this ground has no prospect of success. It is well settled that reasons must be clear and sufficient, or adequate, to explain the outcome (Bennett and Bennett (1991) FLC 92-191 at 78,267). It is true that the primary judge, in determining whether the wife’s conduct was vexatious, found the wife’s conduct fell within s 102Q(1)(a) of the Act, that is, it was an abuse of process. It is also true that the use of a legal process for a purpose other than the purpose for which it has been designed may constitute an abuse of process.
In the context of abuse of process, we bear in mind that Edelman J in the High Court has recently reiterated that concluding that an issue or cause is vexatious or frivolous requires the satisfaction of a higher threshold than finding it has no reasonable prospects of success (Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1 at [70]–[71] (“Citta”)). But abuse of process is also a wide and flexible concept informed in part by considerations of finality and fairness which enlivens a power to dismiss proceedings where the use of the court’s procedures occasions unjustifiable oppression to a party, or where their use is “a scandal to the administration of justice”, serving to bring the administration of justice into disrepute (Reichel v Magrath (1889) 14 App Cas 665 at 668; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [24]–[25]; UBS AG v Tyne (2018) 265 CLR 77 at [1] and [45]). Vexatious proceedings are an abuse of process, and include proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment” (Ridgeway v The Queen (1995) 184 CLR 19 at 74–75 (per Gaudron J); D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [74]–[75] (per Gleeson CJ, Gummow, Hayne and Heydon JJ)).
The primary judge gave as part of his reasons for concluding the wife’s proceedings were an abuse of process the following explanation:
142. Pursuing an Application for Contempt against three lawyers and the husband in circumstances where there were no proper grounds for so proceeding and then capitulating on the day of the hearing, amounts, in my view, to an abuse of the process of the Court. It is nothing short of scandalous. Not only that, having consented (for instance) to an order that she would pay the Trustee’s costs in the sum of approximately $33,000 the wife – even now (in her written submissions) seeks to argue that she ought not be responsible for the payment of those costs. The wife consented to the Order. The wife did not appeal the Order. That is where the matter ends.
143. Also under this heading – I would include the fact that the wife knew that her attempts to retain [Property B] were bound to fail (because she was never going to be able to meet the mortgage repayments) – but nonetheless pursued litigation in relation to this point for six more years. In my view, this does amount to an abuse of the process of the Court.
The wife does not challenge these conclusions in her proposed grounds of appeal. The primary judge discussed the background to and detail of the contempt application at [17], [18]–[24] and [90]–[91]. In our view, it is clear the primary judge did not limit himself to considering whether the wife used a legal process for a purpose other than the purpose for which it has been designed. He clearly concluded that her conduct in relation to the contempt application was “scandalous” and thus an abuse of process (at [142]–[143]). He thus concluded the wife’s use of court processes brought the administration of justice into disrepute. There is nothing in the wife’s material which suggests the evidence to which the primary judge referred did not meet the higher threshold identified by Edelman J in Citta. Moreover, the primary judge also concluded the same conduct of the wife fell within s 102Q(1)(b), (c) and (d) for the same reasons (at [144]–[145]). These conclusions included a finding that many of her applications were not made on reasonable grounds.
The primary judge gave further reasons for concluding the wife instituted and conducted vexatious proceedings at [147]–[148], in that he was not convinced the wife even held a genuine belief in the correctness of her conduct. At [149]–[150] he found she had engaged in delaying tactics and was highly likely to continue instituting specious proceedings.
In our view, the primary judge’s reasons were adequate and, in light of the history of the proceedings which he considered in detail, his conclusions about the vexatious nature of the wife’s conduct and proceedings were secure.
Ground 10 is expressed in the following terms:
… When finding the [wife] could not complete the refinance to finalise the 2017 property orders, his Honour made errors of fact by finding the [wife] could not refinance and knew she could not and obscured the real issue being that no security for a loan could be given due to [the trustee’s] registration on title.
It is hard to discern how this ground is said to relate to the orders the subject of the appeal. However, we will assume the wife intends by this ground to argue that the claimed errors in factual findings were material to the basis for the primary judge’s orders.
A challenge to a factual finding must demonstrate the finding was either not reasonably open on the evidence, glaringly improbable or contrary to incontrovertible facts (Edwards v Noble (1971) 125 CLR 296; Fox v Percy (2003) 214 CLR 118 at [28]–[29]). The primary judge dealt with the question of the wife’s capacity to refinance at [45], [59]–[60] and [138]–[139]. There is nothing in the material provided by the wife in support of her application for leave which demonstrates any findings in this regard were not reasonably open, glaringly improbable or contrary to other incontrovertible facts. Moreover, the wife has not demonstrated any basis to conclude the impugned factual finding, taken with all the other evidence before the primary judge, was material in some way to his conclusions about the vexatious nature of her proceedings. Quite apart from the wife’s failure to obtain a refinance of Property B, as contemplated by the 2017 orders, there was ample evidence to support the primary judge’s orders. Ground 10 has no reasonable prospect of succeeding.
CONCLUSION
We are not satisfied that the proposed appeal is not vexatious. The wife has not demonstrated her proposed appeal would be brought on reasonable grounds and the application for leave to bring it must be dismissed (s 102QF(2) of the Act).
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin and Harper. Associate:
Dated: 8 March 2024
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