Monfort (No 2)

Case [2024] FedCFamC1A 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Monfort (No 2) [2024] FedCFamC1A 27

Appeal from: Monfort & Bade (No 2) [2024] FedCFamC1F 109
Appeal number: NAA 52 of 2024
File number: BRC 4638 of 2014
Judgment of: ALDRIDGE, AUSTIN & HARPER JJ
Date of judgment: 22 March 2024
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant wife seeks leave to appeal from a series of costs orders and consequential orders made between her, her former spouse, and the trustee appointed to sell some of the spouses’ property – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where none of the 10 proposed grounds of appeal are meritorious – Where the proposed appeal evinces no reasonable grounds and is vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Amended Application in an Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VIII and Pt XIB, ss 79A, 80 102Q, 102QE, 102QF, 117
Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Monfort & Bade [2018] FamCAFC 163

Monfort [2024] FedCFamC1A 23

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Wynn & Danilov [2023] FedCFamC1A 149
Number of paragraphs: 37
Date of hearing: Determined in chambers on the papers
The Applicant: Litigant in person

ORDERS

NAA 52 of 2024
BRC 4638 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS MONFORT

Applicant

ORDER MADE BY:

ALDRIDGE, AUSTIN & HARPER JJ

DATE OF ORDER:

22 MARCH 2024

THE COURT ORDERS THAT:

1.The Amended Application in an Appeal filed on 11 March 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

  1. This is the second application filed within a few weeks by the applicant seeking a grant of leave under Pt XIB of the Family Law Act 1975 (Cth) (“the Act”) to circumvent a vexatious litigant injunction and bring an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1).

  2. The first application was dismissed…

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AGLC
Monfort (No 2) [2024] FedCFamC1A 27
Case
[2024] FedCFamC1A 27
Decision Date

CaseChat Overview and Summary

The matter of Monfort (No 2) involved an application by Ms Monfort for leave to appeal against a series of orders made between herself, her former spouse, and a trustee appointed to sell some of their property. The application was heard by the Full Court, which dismissed it. The court had to decide whether the proposed appeal was vexatious within the meaning of the Family Law Act 1975 (Cth). Ms Monfort had to demonstrate that her proposed appeal was not vexatious under s 102Q(1) of the Act, which includes proceedings without reasonable grounds or those pursued for wrongful purposes. Ms Monfort submitted ten grounds of appeal, none of which were meritorious. The court found that the proposed appeal evinced no reasonable grounds and was vexatious within the meaning of the Act. Consequently, the court dismissed the amended application in an appeal and refused leave to appeal. The Full Court determined that Ms Monfort’s application for leave to appeal was vexatious because it did not demonstrate reasonable grounds and was likely to cause delay or detriment. The Full Court considered the definition of “vexatious proceedings” and the requirements for leave under the Act. The court found that Ms Monfort had not satisfied the necessary standard to show that the proposed appeal was not vexatious, leading to the dismissal of her application and refusal of leave to appeal.

Orders

Orders of the court

NAA 52 of 2024

BRC 4638 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MONFORT

Applicant

ORDER MADE BY:

ALDRIDGE, AUSTIN & HARPER JJ

DATE OF ORDER:

22 MARCH 2024

THE COURT ORDERS THAT:

1. The Amended Application in an Appeal filed on 11 March 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).

Background

Background to the litigation

The first application was dismissed by the Full Court on 8 March 2024 (Monfort [2024] FedCFamC1A 23 (“Monfort”)), as is this one.Background Property settlement proceedings between the applicant and her former spouse (“the husband”) were concluded by orders made under Pt VIII of the Act on 13 October 2017. The applicant’s appeal from those orders was dismissed on 24 August 2018 (Monfort & Bade [2018] FamCAFC 163). Despite the finalisation of the financial cause between the parties, more litigation ensued due to their dispute over the implementation of the property settlement orders. Applications for consequential orders and contempt proceedings followed. The 2017 orders were consensually varied on 1 February 2019 but, notwithstanding the agreed variation, the substantive property settlement orders have still not been fully implemented. Between November 2022 and March 2023, over seven days, the primary judge heard numerous applications agitated between the applicant, the husband, and the trustee appointed to sell some of the spouses’ property (“the trustee”). Judgment was reserved. On 25 January 2024, the primary judge dismissed one application brought by the applicant (Order 1) and made vexatious litigant injunctions against her (Orders 2–5), as were sought by the husband and the trustee. Reasons were published by the primary judge for those orders, but it was expressly noted further orders would be made once the trustee has filed an updated minute of proposed orders, upon which the applicant and the husband could both comment (at [178]; Orders 7–9). The orders made on 25 January 2024 were the subject of the applicant’s first application for leave to appeal under Pt XIB of the Act, which was dismissed by the Full Court. On 1 March 2024, the primary judge made a further series of orders, including: a declaration the applicant was in default of the property settlement orders (Order 1); costs orders against the applicant (Orders 2 and 3); orders for the payment of the trustee’s expenses (Order 5); the discharge of a stay order (Order 6); and numerous consequential and enforcement orders between the applicant, the husband, and the trustee to facilitate the implementation of the property settlement orders (Orders 4 and 7–19). The orders were later amended under the slip rule on 20 March 2024, but the amendments make no difference for present purposes. The present application for leave to appeal concerns the orders made on 1 March 2024 (as amended on 20 March 2024). The application for leave to appeal was filed on 5 March 2024, but amended on 11 March 2024. In support of her application, the applicant relied upon her two affidavits filed on 5 March 2024 and 11 March 2024. Legal principles We adopt the following principles recently recited in Monfort concerning applications for the grant of leave under s 102QE of the Act:13.In determining the [applicant’s] application, several provisions of Pt XIB of the Act are relevant.14.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.15.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.…17.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.18. Section 102QG(4) then provides:(4)The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.19.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).20. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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