Monfort Plaintiffandbade & Ors Defendants - [2024] HCASJ 37

HIGH COURT OF AUSTRALIA
BEECH-JONES J
MONFORT PLAINTIFF
AND
BADE & ORS DEFENDANTS
2024 HCASJ 37
Date of Judgment: 3 October 2024
B29 of 2024
ORDERS
1.Pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ filed on 7 June 2024 is dismissed without being listed for hearing.
2.The plaintiff is to pay the first and second defendants' costs of the proceedings.

Representation
The plaintiff is unrepresented
The first defendant is unrepresented
The second defendant is unrepresented
Submitting appearances for the third, fourth and fifth defendants

BEECH-JONES J. On 7 June 2024, the plaintiff, Ms Monfort (a pseudonym), filed an application for a constitutional or other writ in this Court seeking an injunction, a writ of prohibition and writs of certiorari. These remedies are directed to quashing orders made and a warrant of possession issued by the Federal Circuit and Family Court of Australia (Division 1), the effect of which require vacant possession and sale of a property the subject of proceedings under the Family Law Act 1975 (Cth).
Rule 25.09.1 of the High Court Rules 2004 (Cth) provides that an application filed in this Court may be dismissed without being listed for a hearing on the ground that the application does not disclose an arguable basis for the relief sought or is an abuse of process of the Court. An abuse of process "encompasses an attempt to invoke the original or appellate jurisdiction of the High Court on a basis that is confused or manifestly untenable"[1] or, in other words, "manifestly hopeless".[2] For the reasons that follow, that rule should be invoked in this case.
Background
[1]Re Young (2020) 94 ALJR 448 at 451 [13]; 376 ALR 567 at 570.
[2]Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at 246-247 [73].
The plaintiff and the first defendant, Mr Bade (a pseudonym), commenced cohabitation in 1991 and married in 1992. Between 2012 and 2014, the plaintiff and first defendant separated on a final basis. In May 2014, the plaintiff filed an application for property settlement under s 79 of the Family Law Act in the Federal Circuit Court of Australia (as it then was). By the time final orders were made, there remained two properties ("Property A" and "Property B") jointly owned by the plaintiff and first defendant.
On 13 October 2017, a Judge of the Federal Circuit Court (Willis J) made final property adjustment orders.[3] Her Honour ordered that Property A and Property B be divided between the plaintiff (75%) and the first defendant (25%), and that a firm of lawyers be appointed to act as trustee for the sale of the properties ("the 2017 Orders"). That firm refused to act as trustee. Instead, the plaintiff and first defendant provided consent orders on 1 February 2019 which, inter alia, made provision for the appointment of the second defendant, Mr Flannan, as a trustee to effect the sale of Property A and Property B. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCASJ 37
Decision Date: 3 October 2024

CaseChat Overview and Summary

In the matter of Monfort v Bade & Ors, the plaintiff, Monfort, sought relief from the High Court against the orders made in the Federal Circuit and Family Court of Australia. The primary dispute centred around the execution of property settlement orders made in 2017, which were subsequently challenged by Monfort. The High Court was tasked with determining whether the application made by Monfort should be dismissed without a hearing, based on Rule 25.09.1 of the High Court Rules 2004 (Cth). This rule allows for dismissal when an application lacks an arguable basis or constitutes an abuse of court process. The court had to assess whether Monfort's application was confused, manifestly untenable, or otherwise an abuse of process.

The legal issues before the court were whether Monfort's application disclosed an arguable basis for the relief sought and whether it constituted an abuse of process. The court considered Monfort's numerous previous applications and appeals, which had been dismissed, and the declaration of Monfort as a vexatious litigant. The court also noted the execution of a warrant on 10 June 2024 and the plaintiff's history of litigation against the defendants. The court concluded that Monfort's application was confused and manifestly untenable, as it lacked a coherent legal or factual basis.

The court found that Monfort's application was an abuse of process, given the plaintiff's history of vexatious litigation and the absence of any new or arguable grounds. The court dismissed the application without a hearing and ordered that the reasons for judgment need not be published. Additionally, Monfort was directed to pay the costs of the first and second defendants.

The final orders of the court were as follows: the application filed on 7 June 2024 was dismissed without being listed for hearing, and Monfort was ordered to pay the costs of the first and second defendants. The decision underscored the importance of adhering to the rules governing applications to the High Court and the consequences of vexatious litigation.

Orders

Orders of the court

1. Pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ filed on 7 June 2024 is dismissed without being listed for hearing.

2. The plaintiff is to pay the first and second defendants' costs of the proceedings.

Background

Background to the litigation

Rule 25.09.1 of the High Court Rules 2004 (Cth) provides that an application filed in this Court may be dismissed without being listed for a hearing on the ground that the application does not disclose an arguable basis for the relief sought or is an abuse of process of the Court. An abuse of process "encompasses an attempt to invoke the original or appellate jurisdiction of the High Court on a basis that is confused or manifestly untenable"[1] or, in other words, "manifestly hopeless".[2] For the reasons that follow, that rule should be invoked in this case. Background[1]Re Young (2020) 94 ALJR 448 at 451 [13]; 376 ALR 567 at 570.[2]Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at 246-247 [73]. The plaintiff and the first defendant, Mr Bade (a pseudonym), commenced cohabitation in 1991 and married in 1992. Between 2012 and 2014, the plaintiff and first defendant separated on a final basis. In May 2014, the plaintiff filed an application for property settlement under s 79 of the Family Law Act in the Federal Circuit Court of Australia (as it then was). By the time final orders were made, there remained two properties ("Property A" and "Property B") jointly owned by the plaintiff and first defendant. On 13 October 2017, a Judge of the Federal Circuit Court (Willis J) made final property adjustment orders.[3] Her Honour ordered that Property A and Property B be divided between the plaintiff (75%) and the first defendant (25%), and that a firm of lawyers be appointed to act as trustee for the sale of the properties ("the 2017 Orders"). That firm refused to act as trustee. Instead, the plaintiff and first defendant provided consent orders on 1 February 2019 which, inter alia, made provision for the appointment of the second defendant, Mr Flannan, as a trustee to effect the sale of Property A and Property B. In the meantime, the plaintiff appealed the 2017 Orders to the Full Court of the Family Court of Australia. On 24 August 2018, the appeal was dismissed.[4] [3]Monfort v Bade (No 2) [2017] FCCA 1673.[4]Monfort v Bade [2018] FamCAFC 163. The second defendant sold Property A in late 2019. Issues arose between the parties in executing the sale of Property B. In February 2020, the parties agreed to an order for a stay against the second defendant in relation to Property B. Between 2019 and 2023, several applications were filed in the Federal Circuit Court in relation to such disputes in executing the 2017 Orders. These included an application filed by the plaintiff on 15 November 2022 under s 79A of the Family Law Act to set aside the previous orders made under s 79 and an application for, inter alia, a declaration that the plaintiff is a vexatious litigant which was filed by the first defendant on 10 January 2023. The plaintiff filed an application in this Court in March 2022 seeking special leave to appeal against the appointment of the second defendant as trustee. The application was refused in July 2022.[5] [5]Monfort v Bade [2022] HCASL 112. On 25 January 2024, the third defendant, Howard J, a judge of the Federal Circuit and Family Court of Australia (Division 1), dismissed the outstanding application made by the plaintiff under s 79A, dismissed all extant applications instituted by the plaintiff against the first and second defendant and also made orders declaring the plaintiff as vexatious and requiring leave of the court to institute future, related proceedings ("the January 2024 Orders").[6] His Honour directed the second defendant to prepare draft orders to:[7]"effect the sale of Property B and to enable the [second defendant] to complete his obligations pursuant to the relevant Orders of this Court. The [plaintiff] is to be given 45 days (from the date that the proposed orders/directions are finalised by this Court in the form of formal orders) to vacate the Property B. In addition, the [second defendant] should include in the draft orders/directions any other orders or directions that are appropriate – having regard to these Reasons for Judgment."[6]Monfort v Bade [2024] FedCFamC1F 16.[7]Monfort v Bade [2024] FedCFamC1F 16 at [175].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEECH-JONES J

In light of these findings, it is not necessary to determine the consequences for the relief sought of the execution of the warrant on 10 June 2024.Conclusion The application is confused, manifestly untenable and thus, an abuse of process. Pursuant to r 25.09.1 of the High Court Rules, the application is dismissed without being listed for hearing. Pursuant to r 25.09.2 of the High Court Rules, these reasons need not be published in open court. The plaintiff must pay the first and second defendants' costs.

Ratio Decidendi

Legal Principle Established

Established by: BEECH-JONES J

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