Pencious and Searle (No 2)

[2016] FamCA 660

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE (NO 2) [2016] FamCA 660

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 – application for leave dismissed.

Family Law Act 1975 (Cth), ss 102Q, 102QB(2)(b), 102QE, 102QF(2), 102QG(1)(a) Family Law Rules 2004 (Cth)
APPLICANT:	Mr Pencious

RESPONDENT: Ms Searle

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 12 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 2 August 2016

REPRESENTATION

THE APPLICANT: In person (via telephone)

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Tasiopoulos Lambros and Co

Orders

1. That the application for leave to file the Application in a Case and supporting affidavits filed 6 June 2016 be 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. By orders dated 7 March 2016, the applicant husband was prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s102QE of the Act. The order was made pursuant to s 102QB(2)(b) of the Act by Macmillan J.

2. Section 102QE of the Act provides:

   Application for leave to institute proceedings

   (1)This section applies to a person (the applicant ) who is:

   (a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

   (b)acting in concert with another person who is subject to an order mentioned in paragraph (a).

   (2)The applicant may apply to the court for leave to institute proceedings that are subject to the order.

   (3)The applicant must file an affidavit with the application 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.

   (4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

3. That matter was heard in the Judicial Duty List by Macmillan J and her reasons for judgment were delivered and published on 7 March 2016.  The applicant husband has filed a Notice of Appeal in respect of the orders made by Macmillan J on 7 March 2016 but the appeal has not yet been fixed for hearing.

4. The reasons for judgment of Macmillan J outline the background to that application and the history of the proceeding which need not be repeated.

5. The subject of those proceedings was the applicant husband’s Application in Case filed 24 March 2015 and the wife’s Application in a Case filed 24 April 2015.  The wife’s application sought amongst other orders, a vexatious proceedings order against the husband.

6. Order 2 of the orders made by Macmillan J adjourned paragraphs 1, 2, 3, 4, 5, 7 and 8 of the husband’s Application in a Case filed 24 March 2015 and paragraphs 2, 3, 4, 5, 7, 8 and 9 of the wife’s Application in a Case filed 24 April 2015 for further hearing in the Judicial Duty List at 10.00am on 3 May 2016.

7. The applicant husband did not attend that hearing on 3 May 2016 where the wife was represented.  Johns J determined those applications on 3 May 2016 in the Judicial Duty List and dismissed the husband’s Application in a Case filed 24 March 2015.   

The Application

1. On 6 June 2016 the applicant husband filed an Application in a Case seeking leave to file an Application in a Case and two supporting affidavits pursuant to s 102QE of the Act. Under s 102QE the other party is not required to be notified and was not in attendance.

2. In his Application in a Case the applicant husband seeks the following orders:

   1.Leave to file this Application in a Case and supporting Affidavit.

   2.Order to reinstate the Husband’s Application in a Case filed 24 March 2015.

   3.Stay and set aside Orders made 3 May 2016 in Husband’s Application in a Case filed 24 March 2015 & the Wife’s Application in a Case filed 24 April 2015.

   4.That the hearing of Application of the Husband filed 24 March 2015 and reinstated and the Wife’s Application filed 24 April 2015 be adjourned until such time after the Appeals filed as SOA70 of 2015 and SOA21 of 2016 are heard and determined.

   5.That there be no Order as to Costs of and incidental to this Application.

   6.Any other Order that this Honourable Court thinks fit and appropriate.

3. The applicant husband relies upon the two affidavits filed in support of his application.

4. On 1 August 2016 the applicant husband’s application to appear by telephone was granted by me in Chambers on the basis that the applicant husband was overseas when the case was listed and provided medical certificates as to his state of health.

5. The applicant husband had previously appeared by telephone in a hearing by the Full Court on 29 February 2016.

6. In his affidavit sworn 13 May 2016 and filed 6 June 2016, the applicant husband deposes that he was notified on or about 15 February 2016 by the Court that appeals SOA40 & 45 of 2015 would be heard by the Full Court on 29 February 2016.  He deposes that on 15 February 2016 he notified the Court that due to his “deteriorating medical health issues” he requested that he be heard by telephone.  This correspondence is Annexure A2 of his affidavit which attached medical reports which the applicant husband deposes were sent to the Court.  He deposes that on 29 February 2016 he appeared by telephone in proceedings before the Full Court.  During his application before me, the applicant husband informed me that those proceedings had not yet been determined.

7. In his application before me by telephone, the applicant husband confirmed that he had received the orders and judgment of Macmillan J approximately one week after the judgment was delivered on 7 March 2016.  He confirmed that he had read those orders. 

8. At paragraph 9 of the same affidavit, the applicant husband deposes that on 10 May 2016 at a procedural hearing before Registrar Marrone, he was informed and became aware for the first time that a hearing had taken place on 3 May 2016 before Johns J at which his Application in a Case filed 24 March 2015 was dismissed and orders made in the wife’s Application in a Case filed 24 April 2015.  He deposes that he was not present at this hearing and was not aware that the hearing had proceeded in his absence.

9. At paragraph 10 of the same affidavit, the applicant husband deposes that:

   As I had not received any notification from the court about the 3 May 2016 hearing I did not know the matter would be heard.  I say this because of the previous correspondence received from the court recently informing me of the details of the upcoming hearing and that I could appear by telephone due the permanency of the state of my health.  As I did not receive any such notice I believed that for the reasons stated here that for whatever reason, that I did not receive a call or a notice that the matter wasn’t going to be mentioned 3 May 2016.  If my belief is in error I apologize to the Court unreservedly.

10. In his application before me by telephone, the applicant husband maintained that he was not aware of the listing of his Application in a Case filed 24 March 2015 in the Judicial Duty List on 3 May 2016.  He maintained that the reasons for this was because he was awaiting a letter from this Court.

11. During the hearing before me he said:

    I’m not saying I knew that it was on, I knew from the orders that Justice Macmillan made that I received in March, that the matter had been referred to the duty list to the third of May. But that was approximately two months prior to that third of May date and in the lead up to, between receiving the orders and the judgment in early to mid March up until that third of Mary hearing I did not receive any written communication from the registry as I had prior to the Full Court hearing. That’s why I believe that the matter wasn’t going ahead.

Conclusion

1. Section 102QF(2) of the Act provides:

   The court must make an order dismissing an application under section 102Q for leave to institute proceedings if it considers the proceedings are vexatious proceedings.

2. The definition of “vexatious proceedings” under s 102Q amongst other things include proceedings instituted or pursued in a court without reasonable ground.

3. It is the applicant husband’s case that he was unaware of the hearing before Johns J on 3 May 2016 because he had not received a notice from this Court about the listing of the hearing or his attendance by telephone.  No application was made by the applicant husband to attend or appear by way of telephone before Johns J on 3 May 2016.

4. Annexure A2 of the applicant husband’s affidavit filed 6 June 2016 is his letter dated 15 February 2016 requesting a telephone attendance for the hearing of his appeals on 20 February 2016.  That letter is addressed to the Southern Regional Appeals Registry for the attention of the Regional Appeals Registrar and specifically refers to his appeals SOA40 and SOA45 of 2015.  It is clear that the applicant husband was only referring to matters before the Full Court of this Court.

5. In his affidavit filed 6 June 2016 the applicant husband sets out his reasons for asserting that he was unaware of the hearing but that proposition cannot stand having regard to his acknowledgment in court before me that he had received the judgment of Macmillan J and read the orders.  The applicant deposes at paragraph 8 of his affidavit that his Application in a Case filed 24 March 2015 was placed in the duty list for mention 3 May 2016.  This is incorrect as the   orders state that specific paragraphs of his Application in a Case filed 24 March 2015 be adjourned for further hearing in to the Judicial Duty List at 10.00am on 3 May 2016 (emphasis added).  I also note that Macmillan J made further orders on 7 March 2016 for the filing of written submissions concerning costs arising out of and incidental to the wife’s application for a vexatious proceeding order.  The applicant husband filed written submissions on 23 March 2016 in accordance with those orders. 

6. The applicant husband was clearly aware that the matter was listed in the Judicial Duty List for hearing on 3 May 2016 and did not attend court for that hearing.  He made no application to appear by telephone for that hearing and there could be no misunderstanding that the matter listed in the Judicial Duty List was an appeal.  The proceedings before Macmillan J had been heard in the Judicial Duty List and the applicant husband had participated in those proceedings.  The extant applications listed before Macmillan J were then adjourned back to that list for hearing at 10.00 am on 3 May 2016. The order of Macmillan J is clear.

7. The applicant husband has a history of lengthy and protracted litigation in this Court and is familiar with and experienced in the processes of this Court including the need to attend a hearing to prosecute an Application in a Case.  He has been found by Macmillan J to have instituted or conducted vexatious proceedings on at least 11 separate occasions primarily in this Court, the High Court and on one occasion at VCAT (par 127 of the reasons for judgment of Macmillan J).  As the decision of Macmillan J is under appeal, I refer to this finding only as evidence of the experience of the applicant husband as a litigant. 

8. It is also relevant to the bona fides of the applicant husband that he seeks leave to effectively reinstate the whole of his Application in a Case filed 24 March 2015.  Only paragraphs 1, 2, 3, 4, 5, 7 and 8 of his Application in a Case filed 24 March 2015 were determined in his absence before Johns J. 

9. Paragraph 6 of the same Application in  a Case seeks the following: “That this Honourable Court grant the Orders sought in my notice of appeal filed 27 January 2015”.  In her reasons for judgment Macmillan J at par 138 said:

   It is clearly not for this Court to make orders which are the subject of an appeal and on 20 August 2015 I made orders dismissing paragraph 6 of the husband’s Application in a Case whereby he sought such an order. I also made an order staying the further hearing of the costs assessment pursuant to the order made by Cronin J on 5 April 2012 and adjourned the other parts of the husband’s application with respect to the costs order and the assessment until after judgment in the husband’s appeal against that order had been delivered.

   Although the court does have the power to make an order dismissing all or any part of the proceedings the husband has instituted, which would include his application that Registrar Riddiford be disqualified from any further hearing of that costs assessment, I am not satisfied that I should do so in this case. In my view the husband’s application to disqualify Registrar Riddiford and any orders that might follow as a consequence are matters that should be dealt with on their merits.

   The husband’s Application in an Appeal for an extension of time to appeal against Cronin J’s order has now been dismissed and there is, subject to any orders made following a hearing of the remaining matters in the husband’s Application in a Case, no reason why the costs assessment should not continue and be concluded.

   On that basis, although I propose to make a vexatious proceedings order which requires the husband to make an application for leave to institute proceedings I do not propose to make any orders with respect to the husband’s Application in a Case filed 24 March 2015.  This means that although the costs assessment is incomplete and the wife may still face proceedings with respect to Registrar Riddiford’s conduct of the assessment, she will not be required to respond to any further applications instituted by the husband unless he is granted leave to make such application.

10. There is no evidence of any foundation for the belief of the applicant husband that the hearing on 3 May 2016 would not proceed.  I do not accept that there was any reason for the applicant husband to believe that the further hearing in the Judicial Duty List at 10.00 am on 3 May 2016 would not proceed.  In circumstances where he had read the reasons for judgment of Macmillan J and the orders made, the applicant husband could be in no doubt that he should have attended the hearing in the Judicial Duty List if he proposed to be heard and also could be in no doubt that he was being afforded the opportunity to be heard on that date.  The applicant husband should also have been particularly vigilant to take up the opportunity to be heard in these circumstances where a vexatious proceedings order was made after a contested hearing.

11. I find on the balance of probabilities that the applicant husband was aware of the hearing on 3 May 2016 and has no plausible explanation for his failure to attend or notify the Court of any intention to participate in the proceedings. This is in circumstances where he is an experienced litigant familiar with the Judicial Duty List of this Court and in the context of a focus on the issue of the legal costs of the wife having been raised in multiple proceedings. He is also familiar with the Family Law Rules 2004 (Cth) which require that an application to appear by telephone be made prior to the hearing.

12. Having regard to the history of litigation before this Court and the reasons I have outlined earlier, I am 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 are without reasonable ground. I am satisfied that they are vexatious proceedings under the definition in the Act. Accordingly the application for leave must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 12 August 2016.

Associate: 

Date:  12 August 2016