Pencious and Searle

[2017] FamCA 1004

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE [2017] FamCA 1004

FAMILY LAW – PRACTICE AND PROCEDURE – where applicant subject to s 102QB vexatious proceedings order – where application is made for leave to file an Application in a Case for Review of decision of a Registrar – application for leave dismissed.

Family Law Act 1975 (Cth) ss 102QE, 102QF

APPLICANT: Mr Pencious

RESPONDENT: Ms Searle

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 8 November 2017

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Tasiopoulos Lambros and Co

Orders

1. The applicant’s Application in a Case filed 19 September 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant husband brings an application in the Judicial Duty List seeking leave to file an Application in a Case and three supporting affidavits pursuant to s 102QE of the Family Law Act (Cth) (“the Act”). Under s 102QE(4) of the Act the other party is not required to be notified and was not in attendance.

2. The application was made before the delivery of judgment by the Full Court in Pencious & Searle [2017] FamCAFC 210 (“Pencious & Searle”) on 11 October 2017.  The husband was the appellant in that appeal.

3. In Pencious & Searle the Full Court varied orders made on 7 March 2016 by Macmillan J in the following terms:

   Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the husband, Mr Pencious, be prohibited from instituting proceedings involving the wife, Ms Searle, her immediate family or her 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 s102QE of the Act.

4. The Reasons for Judgment of the Full Court outline the background to those proceedings which need not be repeated.

The Application

1. In his Application in a Case filed 19 September 2017, the applicant husband at Part 7 seeks a review of the decision of a Registrar. The applicant husband seeks the following orders:

   1.That this Honourable Court grant leave to make this application and affidavit in support lodged for filing contemporaneously herein.

   2.That Registrar Riddiford be disqualified from any proceedings involving the husband before this Honourable Court.

   3.That all and any Orders made by Registrar Riddiford pursuant to the Costs Assessment proceedings including but not limited to Orders made 20/08/2013, 25/11/2013, 10/12/2013; 19/02/2014; 21/03/2014; 11-12/03/2015; 26/05/2017 be stayed and struck out.

   4.That the wife within 7 days repay into the Trust Account held by Mr CS of AT Lawyers all and any amounts paid to the wife or to her legal representatives plus interest, pursuant to the Orders in 2. above.

   5.That this Honourable Court made Order for Costs [sic] to the husband thrown away on an indemnity basis, as a result of proceedings referred to in 2. above.

   6.That the husband be at liberty to file a Costs Agreement and Itemised Bill of Legal Costs for proceedings in 2. above.

   7.That this Honourable Court make no order for Costs for this Application.

   8.Any other orders that this Honourable Court deems appropriate.

2. The applicant husband relies upon three affidavits filed in support of his application. There are two affidavits from the applicant husband filed 19 September 2017 and an affidavit of the applicant husband filed 24 October 2017, all of which I have read.

Dismissing application for leave under s 102QF(1) of the Act

1. Pursuant to s 102QE(3) of the Act the applicant husband is required to file an affidavit with that application for leave to institute proceedings 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, with a supporting or adverse to the application, that are known to the applicant.

2. Under s 102QF(1) of the Act the Court may make an order dismissing an application under s 102QE of the Act for leave to institute proceedings if it considers the affidavit does not substantially comply with s 102QE(3) of the Act.

3. The applicant husband’s affidavit material does not list all of the other proceedings instituted by him in this Court or the High Court which are set out in the Reasons for Judgment of the Full Court in Pencious & Searle.  

4. Paragraphs 2, 3, 4 and 5 of the applicant husband’s Application in a Case filed 19 September 2017 substantially repeat paragraphs 2, 3, 4, and 5, and 7 of the applicant husband’s Application in a Case filed 24 March 2015 which was the subject of a hearing before Johns J in the Judicial Duty List on 3 May 2016. No appeal has been lodged in respect of the orders made by Johns J on 3 May 2016. The applicant husband did not attend that hearing on 3 May 2016 before Johns J and his application in a case filed 24 March 2015 was dismissed.

5. Furthermore on 2 August 2016 the applicant husband made an application in the Judicial Duty List before me for leave to file an Application in a Case and two supporting affidavits filed 6 June 2016 pursuant to s 102QE of the Act wherein he sought leave to reinstate his Application in a Case filed 24 March 2015 amongst other things. I was satisfied on the balance of probabilities that the proceedings sought to be instituted by the applicant husband for the reinstatement of his Application in a Case filed 24 March 2015 were without reasonable ground. That application for leave was dismissed by orders dated 12 August 2016 and Reasons for Judgment delivered the same day.

6. At the time of the delivery of my judgment orders had been made by Macmillan J on 7 March 2016 that the applicant husband was prohibited from instituting proceedings under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act. This order was made by Macmillan J pursuant to s 102QB(2)(b) of the Act. The appeal against those orders had not yet been heard at the time when the application was before me in the Judicial Duty List on 2 August 2016.

7. In his affidavit material the applicant husband makes no reference to the fact that his Application in a Case filed 24 March 2015 was dismissed by Johns J on 3 May 2016 or that his Application in a Case filed 6 June 2016 for leave to file an Application in a Case to reinstate his Application in a Case filed 24 March 2015 was dismissed on 12 August 2016.

8. I consider that the affidavit material of the applicant husband does not list all other proceedings instituted by the applicant in any Australian court or disclose all relevant facts about the application. On that basis alone pursuant to s 102QF(1) of the Act the application for leave will be dismissed.

The applicant husband’s reasons for seeking leave

1. In the supporting affidavit filed by the applicant husband on 19 September 2017 and sworn on 22 June 2017, the husband refers to comments made by Registrar Riddiford on 21 March 2014 which he submits should disqualify the Registrar from any or all further proceedings involving the husband. The applicant husband complains that the Registrar failed to recuse himself from the proceedings and the applicant husband deposes at paragraph 10 that the assertions in the Registrar’s reasons of 26 May 2017 are “rejected outright”. The applicant husband complains that he had previously supplied medical certificates to explain his absence to the Registrar and that these had been accepted by “both the lower and Appeals courts”. The applicant deposes that the Registrar was in a position to be aware of these matters and that he emailed the Registrar “at the time I was told by him that he had listed the matter for 26 May 2017”.  The applicant husband maintains that the notice of this hearing “came three days prior to this date, by ordinary mail”.

2. At paragraph 11 the applicant husband deposes:

   That the Registrar admitted to being privy to a breach of the Husband’s Confidentiality. That the Registrar refused to recuse himself from proceedings, once the Registrar made this admission to the Husband’s Counsel overheard by the Husband. That the Registrar has caused the process of justice to come into disrepute and also leading to the Husband to suffer a miscarriage of justice. That the Registrar is a Judicial Officer and as such owes a higher duty of care.

3. The applicant husband goes on to argue at paragraph 12 that “a fair minded observer might reasonably apprehend that the Registrar might not have brought an impartial and unprejudiced mind to proceedings”.

4. In his affidavit filed 24 October 2017, the applicant husband complains about receiving a letter from the Registry manager informing him that the costs assessment proceedings with Registrar Riddiford had been listed for hearing on the 26 May 2017 by ordinary mail. He complains that this was sent to him despite the fact that the Court file shows that he had an email address for service from June 2016 and had received other correspondence by this means in the interim.[1]

   [1] Affidavit of the applicant filed 24 October 2017, par 5.

5. The balance of the affidavit raises allegations of comments being made by the Registrar and that:

   …he was privy to my confidential legal advice in a matter that consequently first came before him on or about October 2013. The application referred to by the Registrar was filed 3 December 2009. This was early in proceedings before this court. Given these facts, Registrar Riddiford should not have been part of proceedings. Given the Registrar’s comments, the Registrar should have recused himself at first opportunity and not caused the system of justice to fall into disrepute.[2]

   [2] Affidavit of the applicant filed 24 October 2017, par 7.

6. It is unclear what these comments raised in the allegations are but there is also a reference in the affidavit material to the written reasons of the Registrar dated 18 March 2015 at paragraphs 8 and 15.  The applicant husband notes that the Registrar did not deny making these comments but makes comments to the contrary in paragraph 15 of his written reasons. The written reasons referred to are annexed as Annexure T-2 to the affidavit of the applicant husband filed 24 October 2017 and are the written reasons of Registrar Riddiford dated 18 March 2015. Those written reasons refer to part heard costs assessment hearings which had previously been adjourned and a determination by the Registrar to proceed with the assessment after considering the applicant’s adjournment application which was opposed by the respondent wife.

7. The written reasons of the Registrar also reveal that he refused to disqualify himself during the course of that costs assessment hearing conducted on 11 and 12 March 2015. At paragraph 13 of those written reasons the Registrar noted that a period of almost one calendar year had elapsed since the last assessment hearing and no application or affidavit in support had been filed in support of the application made by the applicant husband and it was noted that the applicant husband was legally represented at all times during the previous hearings and raised no objection to the manner in which the assessment was conducted.

8. This costs assessment hearing of 11 and 12 March 2015 was the subject of the applicant husband’s Application in Case filed 24 March 2015 which was dismissed by Johns J on 3 May 2016.

Further reasons for dismissing the application for leave

1. The application will also be dismissed on a further basis and I provide the following reasons. 

2. Paragraph 3 of the applicant husband’s latest Application in a Case filed 19 September 2017 includes an application to review the decision of Registrar Riddiford pursuant to the costs assessment proceedings including the proceedings of 26 May 2017 and seeks that they be stayed and struck out. So far as this application refers to the 26 May 2017 hearing, this has not been considered previously but it is related to the same costs assessment proceedings determined by Registrar Riddiford from the earlier years already considered and dismissed by Johns J. The applicant husband seeks leave to file his application with respect to that particular proceeding in addition to the earlier proceedings which have already been the subject of the determination of Johns J on 3 May 2016.

3. The circumstances of the last application for leave are set out in my Reasons for Judgment delivered 12 August 2016 and note that the applicant husband did not attend the hearing before Johns J on 3 May 2016 and my conclusions in regard to his non-appearance.

4. On 26 May 2017 costs orders were made by Registrar Riddiford in the absence of the applicant husband who was also the applicant in those proceedings.

5. Registrar Riddiford delivered written reasons in that costs assessment hearing conducted on 26 May 2017. The costs assessment proceedings were part heard and the reasons must be read in conjunction with the written reasons dated 23 October 2013, 20 November 2013, 19 February 2014, 21 March 2014 and 18 March 2015.

6. The Registrar noted that there was no appearance by or on behalf of the husband. The assessment hearing commenced at 9.15am and concluded at 3.30pm. At paragraph 3 to 5 of those written reasons, the Registrar wrote:

   In the week prior to the hearing [Mr Pencious] had forwarded correspondence to the registry informing me that that [sic] he was currently residing overseas and for medical reasons he was unable to attend the hearing in person. On receipt of this correspondence [Mr Pencious] was informed that he could attend the hearing by telephone. He was provided with a phone number for this purpose but he declined in writing to avail himself of this option on the basis of the expense he would incur for the telephone call. [Mr. Pencious] also sought to have the assessment adjourned for an indefinite period for the following reasons: his current health (where no medical certificate or statement about his future prognosis was provided), secondly, the fact that there was an outstanding application in the Full Court and thirdly the fact that there is an outstanding complaint under investigation about the manner in which this assessment of costs has been conducted.

   None of the matters raised by [Mr. Pencious] in his correspondence satisfied the grounds for an adjournment and indeed the latest correspondence from [Mr. Pencious] represented a continuation of his insouciant approach to finalising this matter.

   The assessment proceeded in the applicant’s absence. In respect of each item in the costs assessment account that was disputed in the notice disputing costs [the respondent to the application] was required to prove same by the production of a diary note, or by corroboration by way of a perusal of the court file.

Conclusion

1. The applicant husband’s affidavit material does not list all other proceedings instituted by the applicant in any Australian court or disclose all relevant facts about the application. On that basis alone the affidavit material does not comply with the requirements of s 102QE(3) of the Act and the application for leave will be dismissed under s 102QF(1) of the Act.

2. In addition, paragraphs 2, 3, 4 and 5 of the applicant husband’s Application in a Case filed 19 September 2017 with the exception of the costs assessment hearing on 26 May 2017 have already been determined by Johns J at the hearing on 3 May 2016.  That hearing has not been appealed. Leave to file a second Application in a Case relating to the same matters was dismissed by me on 12 August 2016. Accordingly the application for leave to institute proceedings in respect of the same matters is refused.

3. Paragraph 6 of the applicant husband’s Application in a Case filed 19 September 2017 assumes that leave would be granted and is therefore also dismissed.

4. I am not satisfied that there is any reasonable ground for the applicant husband to be granted leave to review the continuation of the costs assessment hearing on 26 May 2017 in circumstances where he was notified of the hearing, he was informed that he could attend the hearing by telephone and declined to avail himself of this option in writing and his application was for an adjournment for an indefinite period without any current supporting medical evidence.

5. Accordingly, the applicant’s Application in a Case filed 19 September 2017 is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 December 2017.

Associate: 

Date:  1 December 2017