Monfort (No 2)

[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 by the Full Court on 8 March 2024 (Monfort [2024] FedCFamC1A 23 (“Monfort”)), as is this one.

   Background

3. 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.

4. The applicant’s appeal from those orders was dismissed on 24 August 2018 (Monfort & Bade [2018] FamCAFC 163).

5. 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.

6. 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.

7. 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.

8. 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).

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.

10. 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.

11. The present application for leave to appeal concerns the orders made on 1 March 2024 (as amended on 20 March 2024).

12. The application for leave to appeal was filed on 5 March 2024, but amended on 11 March 2024.

13. In support of her application, the applicant relied upon her two affidavits filed on 5 March 2024 and 11 March 2024.

    Legal principles

14. 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.

15. This application, like the first, is determined by the Full Court in chambers on the papers, as the Act permits (s 102QF(3) and s 102QF(4)).

    Disposition

16. The applicant annexed to her second affidavit (filed on 11 March 2024) the amended draft Notice of Appeal she intends to file and prosecute if granted leave to appeal from the suite of orders made on 1 March 2024.

17. It is necessary to analyse the amended grounds of the proposed appeal to determine whether or not it is “without reasonable ground” and therefore “vexatious” (s 102Q(1)), in which event the application for leave must be dismissed. The grounds of appeal comprise a narrative running over several pages so, rather than recite them verbatim, we will deal with their import.

18. Ground 1 alleges the applicant was “denied a fair trial” because the primary judge proceeded upon the mistaken premise that the husband sought consequential orders. The ground is misconceived. The husband and the trustee were both seeking the applicant be declared a vexatious litigant and restrained from bringing further proceedings. The husband was not separately prosecuting any “enforcement application”, but he need not have because he supported the trustee’s application for consequential orders to enable the enforcement of the property settlement orders (at [36], [51], [55], [56] and [85]). The parties identified the applications they each pursued and the evidence upon which they relied (at [32]), which applications were separately addressed in the reasons for judgment. The primary judge was evidently cognisant of, and not mistaken about, the nature of the competing applications.

19. Ground 2 alleges it was “inequitable” for the primary judge to make orders enabling the trustee to sell a parcel of real property required to be sold by the property settlement orders. This is not a recognisable ground of legal, factual or discretionary appealable error but, putting that technicality to one side, the ground is quite unclear about why the orders were “inequitable”. The trustee was appointed consensually by supplementary orders made in February 2019 to sell the property. At the time of the hearing in 2022 and 2023, the property was still unsold and the primary judge found its sale was still being frustrated by the applicant, even though the original property settlement orders were readily capable of implementation.

20. Ground 3 alleges a “material injustice” arises by reason of the primary judge “dispensing with” her application filed in November 2019, as amended in September 2021, but the ground is misconceived. The primary judge did not “dispense with” the amended application – it was formally dismissed on 25 January 2024 (at [52] and [54]; Order 1). It was dismissed because, without relying upon s 79A of the Act, the applicant was improperly proposing the variation of the property settlement orders rather than simply consequential orders to enable their implementation and, furthermore, there was no proper basis to discharge the trustee (at [67]–[92]). In passing, it may be noted that the applicant earlier abandoned her application to vary the property settlement orders in reliance upon s 79A of the Act (at [11]–[12] and [66]). No less importantly, this complaint relates to an order made on 25 January 2024, in respect of which leave to appeal has already been dismissed by the Full Court. This is an application for leave to appeal from only the orders made on 1 March 2024.

21. Ground 4 alleges a finding was not open to the primary judge. The premise to the ground is that the primary judge found (at [129]) the applicant lacked the capacity to refinance the property which must now be sold by the trustee. No such finding is made in those precise terms at [129], as alleged, but the primary judge did deal elsewhere with the question of the applicant’s capacity to refinance (at [45], [59]–[60] and [138]–[139]). Such findings about the improbability of the applicant’s capacity to refinance were consistent with admissions she made, which necessarily means she is now unable to demonstrate they were not reasonably open, they were glaringly improbable, or they were contrary to other incontrovertible facts.

22. Ground 5 alleges the applicant’s allegations about the trustee’s misconduct were rejected by the primary judge (at [76] and [82]) without considering whether it was provident for the trustee to register on title of the property he intended to sell.

23. Relevantly, the primary judge said this in the reasons for judgment:

    76.As to the other orders sought by the [applicant] – in particular – relating to the removal of [the trustee] as the Trustee and the removal of [the trustee’s] name from the title to [Property B] – there is no merit in those arguments. I have had a chance to review the relevant evidence in this case. In particular, I have had close regard to the lengthy affidavit provided by [the trustee] where his actions as the Trustee have been recounted for the benefit of the Court – and the parties. [The trustee’s] conduct has been exemplary. I cannot fault [the trustee’s] prudence and caution. Not to mention his patience.

    …

    78.I reject the [applicant’s] contention that the Trustee was liable to the parties for any so-called “commercial failure” in respect of the sale of [Property A]. I have had regard to the evidence of [the trustee] in this regard (especially at paragraphs 39 – 51 of his affidavit filed 17 June 2023). [The trustee’s] conduct in relation to the sale of [Property A] was completely appropriate. [The trustee] acted prudently in the circumstances. It will be noted that I had the opportunity to observe [the trustee] give evidence in the witness box during the course of this hearing and, as I have indicated earlier in these reasons, I was impressed with the evidence given by [the trustee]. He is a very reliable witness.

    79.I agree with the submission made on behalf of the Trustee that a review of the costs as assessed by the costs assessor shows that the Trustee has acted at all times in the interests of the parties. It is also apparent not only from a review of the costs assessed by the costs assessor but from the evidence generally, that the Trustee has been thwarted in his attempts to give effect to the final Orders. The Trustee has been thwarted in his attempts by the actions and the conduct of the [applicant].

    …

    81.I have had regard to all of the [applicant’s] evidence and all of her submissions. In accordance with the High Court’s decision in Whisprun – I do not propose to address each of the [applicant’s] submissions. I have already made mention of some of those submissions in these reasons for judgment. I will make reference to some of the other submissions made by the [applicant].

    82.In paragraph 35 of the [applicant’s] submissions (filed 27 March 2023) she refers to [the trustee] as, amongst other things, acting in his own interests:- “regardless of Court orders as has been seen by his acquisition of property outside the terms of the orders…”. This submission by the [applicant] is scandalous. There is no evidence whatsoever that [the trustee] acquired property outside the terms of the orders. There is no evidence that [the trustee] has acted in his own interests regardless of Court orders. [The trustee] was appointed to act as Trustee for Sale of [Property A] and [Property B]. [The trustee] did not “acquire” those properties in the ordinary sense that that term is used. He became registered on the title deed of those properties specifically to effect the sale of those properties. The Order of 1 February 2019, on its very face, makes it clear that [the trustee] (as Trustee) would become registered on the title of [Property A] and [Property B]. I can only assume that this is the property to which the [the applicant] refers. The [applicant’s] submission is disconnected from reality.

    (Footnotes omitted)

24. Clearly, the primary judge dealt expressly with the applicant’s submission of the improvidence of the trustee registering on the title to the properties. We see no reason to doubt the primary judge’s overall conclusion that the trustee acted responsibly and competently. In any event, the applicant’s application to discharge the trustee was dismissed by an order made on 25 January 2024 and the only application presently under consideration is an application for leave to appeal from the orders made on 1 March 2024.

25. Ground 6 encapsulates a complaint that the consequential orders made on 1 March 2024 are more than merely consequential orders because they “vary in a material respect the operative and substantive part of the final order”. We reject that bare proposition. The primary judge expressly acknowledged how the substantive property settlement orders could not be varied (at [69]–[70]). The orders made on 1 March 2024 do not do so.

26. Ground 7 takes issue with the finding made by the primary judge that the applicant was in default of the property settlement orders at the time the trustee was appointed in February 2019, which finding was then affirmed by a declaration to that effect (Order 1). Inferentially, the applicant’s point is that the primary judge was precluded from making that finding and from making that declaration when an order to that effect had previously been sought and refused.

27. It will be remembered that, on 1 February 2019, the property settlement orders were amended with the parties’ consent. In advance of that hearing, on 2 November 2018, the husband filed a Response to an Application in a Case in which he sought this order:

    5.A declaration that the Applicant is in breach of Orders 13, 14, 15 and 16 of the Final Orders and that pursuant to Orders 5, 21 and 22 of the Final Orders the parties cause the [Property A] and the [Property B] to vest in the Trustee without delay.

    (As per the original)

28. When the consent orders were made on 1 February 2019, the husband’s application for that particular order was neither granted nor refused. After making the orders to which the parties consented, the judge made this additional order:

    6.        All outstanding Applications are to be removed from the pending cases list.

29. In view of the compromise reached on 1 February 2019, there was no hearing and no factual findings were made. Consequently, further debate over the factual issue of the applicant’s non-compliance with the property settlement orders as at 1 February 2019 was not estopped and could be pursued at the later hearing before the primary judge. Additionally, the husband’s former interlocutory application for an order declaring the applicant’s default in compliance with the property settlement orders was never dismissed by an order of the court, so the doctrines of res judicata and claim estoppel could not apply.

1. It was therefore open to the primary judge to find the applicant in breach of the property settlement orders in February 2019 and to declare so pursuant to s 80(1)(k) of the Act. The declaration was made in response to the trustee’s application, though it may be wondered what useful purpose it serves. It seems to be entirely academic.

2. Ground 8 alleges apprehended judicial bias. Although not express, the implication is that such bias tainted the orders made on 1 March 2024. The premises for the complaint are two separate events. The first was in 2022, many months before the hearing started, when his Honour ordered that a parcel of real property be valued. The second was in January 2023, on the third day of the hearing, when his Honour was mutually informed by the parties of a provisional settlement between them, which did not then eventuate. Assuming, but without implying, such facts could legitimately give rise to an apprehension of judicial bias, this ground could not succeed because the applicant obviously waived her opportunity to apply for the primary judge’s disqualification (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], [55]–[56] and [69]; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). She was not at liberty to wait for the result and then decide whether she would complain.

3. Ground 9 complains the primary judge awarded costs against the applicant without considering several factors, being: her financial means; how the husband’s conduct caused her lack of means; the husband’s superior financial means; offers of settlement made by the applicant; and the reasonableness and proportionality of the costs.

4. The applicant was ordered to pay the husband’s costs in respect of, first, the contempt application she brought against him before submitting to its dismissal (Order 2), and secondly, the multiple disputes concluded by the orders made on 25 January 2024 (Order 3). In respect of those orders, the primary judge said this in the reasons for judgment:

   172.I have considered all the necessary subsections of s 117 of the Act – in particular, s 117(2A). It will be apparent that I have come to the view that the [applicant’s] conduct in pursuing a contempt application against the husband – and then withdrawing her application and having it dismissed by the Court – was conduct which was reprehensible. Section 117(2A)(c) is at the forefront of my mind. I have also had regard to the other subsections, including the subsection relating to the financial circumstances of the parties. I can see no reason why, in the circumstances, the [applicant] should not pay the husband’s costs in respect of that contempt application. Those costs should be paid in the amount sought by the husband which, appeared to me, to be reasonable.

   (Heading omitted)

   173.There is a notation made by her Honour Judge [name] in the Order of 3 March 2022, when her Honour transferred this matter to Division 1 of the Federal Circuit and Family Court of Australia. That notation reads:

   “A. This property matter is now entering its 8th year of litigation. This is despite more than 12 applications in a case by the applicant, a Final trial providing for the division of assets, an unsuccessful application for a Stay and an unsuccessful appeal by the applicant. The applicant has been provided with significant pro bono assistance by the Bar Association on several occasions and over years. The applicant has also been represented by multiple solicitors of her own choice. The issue of the [applicant] obtaining finance to retain the property she wishes to, has occupied a disproportionate amount of Court and Judicial time in this Court. It is deemed appropriate for transfer to a Justice of Division 1 of this Court.”

   174.It will be apparent that I have come to the conclusion that the litigation pursued by the [applicant] after December 2017 amounts to vexation. The [applicant] swore in the District Court of Queensland that she would not be able to make mortgage repayments for the [Property B] – even if she could get a loan to secure the property. I have considered all of the submissions of the parties and the relevant provisions of s 117 of the Act. The [applicant’s] poor conduct that I have outlined is the key factor in leading the Court to conclude that the [applicant] should pay the husband’s costs in respect of the period of time after 30 August 2019. This is because of the conclusion which I have reached that, but for the [applicant’s] conduct, the final Orders made on 13 August 2017 could have been finalised (ie. carried into effect) in 2019. I have fixed upon the date of 30 August 2019 for the payment by the [applicant] of the husband’s costs because this is six months after the appointment of [the trustee] and he would have needed time to effect the sale of [Property B] and perform his other duties as Trustee. The husband’s costs in relation to this period of time (i.e. after 30 August 2019) will need to be assessed on a standard basis.

   (Emphasis in original) (Footnotes omitted)

5. Self-evidently, the primary judge did take into account the prescribed factors (s 117(2A)) when deciding to make the costs orders (s 117(2)) and to depart from the presumption that the parties should bear their own costs (s 117(1)).

6. The primary judge was obviously swayed by applicant’s conduct in bringing a contempt application which she ultimately conceded was unmeritorious and ought be dismissed. It is also clear the primary judge considered the applicant’s conduct in litigating the enduring disputes over the trustee’s retention and the implementation of the property settlement orders to be vexatious. Any single factor within s 117(2A) of the Act is sufficient to justify an award of costs (Fitzgerald v Fish (2005) 33 Fam LR 123 at [41]; Wynn & Danilov [2023] FedCFamC1A 149 at [105]). This ground effectively amounts to simply a complaint of the primary judge paying insufficient heed to the factors which the applicant regarded as being important, which is not a valid assertion of appealable error.

7. Ground 10 is a complaint about the alleged denial of procedural fairness relating to the vexatious litigant injunction made against the applicant on 25 January 2024, which grievance is now irrelevant since the only application under consideration is an application for leave to appeal from the orders made on 1 March 2024.

8. None of the proposed grounds of appeal are meritorious. The applicant fails to demonstrate her proposed appeal is not “vexatious” within the meaning of s 102Q(1) of the Act, as it evinces no reasonable grounds. It follows that the application for leave to appeal must be dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Harper.

Associate:

Dated:       22 March 2024