Pencious & Searle

[2017] FamCAFC 210

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE [2017] FamCAFC 210

FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Apprehended bias – Procedural fairness – Whether appellant denied a fair trial due to the primary judge granting an adjournment of proceedings to the respondent and dismissing the oral application for adjournment of the appellant – Prolongation of proceedings and causing prejudice – Consideration of two-step process in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Appeal dismissed.

FAMILY LAW – APPEAL – VEXATIOUS PROCEEDINGS – Appeal against order made pursuant s 102QB(2)(b) of the Act, prohibiting the husband from instituting proceedings under the Act without first obtaining leave to commence those proceedings – Appeal against vexatious proceedings order allowed in part – Orders too broad – Orders varied – Appeal otherwise dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Orders prohibiting institution of proceedings did not exclude an appeal – Leave required to “start” a proceeding by filing a Notice of Appeal – Application for leave to file Notice of Appeal granted nunc pro tunc.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Affidavit to form part of appeal book admitted – Application to adduce letter not relevant to subject matter of the appeal – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal is largely or wholly unsuccessful – Costs fixed in the sum of $19,000 ordered in favour of the wife.

Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011
Family Law Act 1975 (Cth) ss 4, 117, 118, 102Q, 102QB, 102QD, 102QE, 102QG
Family Law Rules 2004 (Cth) r 19.18
Federal Court of Australia Act 1976 (Cth) s 4

Cannon & Acres [2014] FamCA 104
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fuller v Toms [2015] FCAFC 91
Johnson v Johnson (2000) 201 CLR 488
Mankiewicz and Anor & Swallow and Anor [2014] FamCA 579
Mankiewicz and Anor & Swallow and Anor (2016) FLC 93-725
Marsden & Winch (2013) FLC 93-560
Mbuzi v Griffith University [2016] FCAFC 10
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MTI v SUL (No 2) [2012] WASCA 87
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Pencious [2010] FamCA 605
Pencious & Pencious [2012] FamCA 74
Pencious & Pencious (No. 2) [2012] FamCA 212
Pencious & Pencious (No. 2) [2013] FamCA 748
Pencious & Searle (No. 3) [2015] FamCA 1217
Pencious & Searle (Disqualification) [2016] FamCAFC 150
Pencious & Searle (No. 2) [2016] FamCAFC 151
Potier v Attorney General (NSW) (2015) 89 NSWLR 284
Searle (formerly Pencious) & Pencious and Anor [2013] FamCA 375
Searle & Pencious [2016] FamCA 135
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT: Mr Pencious

RESPONDENT: Ms Searle

FILE NUMBER: MLC 11069 of 2008

FIRST APPEAL NUMBER: SOA 70 of 2015

SECOND APPEAL NUMBER: SOA 21 of 2016

DATE DELIVERED: 11 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF:	Bryant CJ, Ryan & Aldridge JJ
HEARING DATE:	11 October 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATES:

8 October 2015

7 March 2016

LOWER COURT MNC: [2015] FamCA 1217
[2016] FamCA 135

REPRESENTATION

THE APPELLANT: In person by telephone

COUNSEL FOR THE RESPONDENT: Mr Smith

SOLICITOR FOR THE RESPONDENT: Tasiopoulos Lambros & Co

Orders

1. Save for the husband’s affidavit filed 1 April 2015, included as part of the appeal books, the husband’s application to adduce further evidence filed 26 May 2016 is dismissed.

2. Appeal SOA 70 of 2015 is dismissed.

3. The husband have leave to file a Notice of Appeal nunc pro tunc in appeal SOA 21 of 2016 seeking the orders of Macmillan J made on 7 March 2016 be set aside.

4. Appeal SOA 21 of 2016 is allowed in part.

5. Order 1 of the orders made on 7 March 2016 is varied to provide that:

   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 s 102QE of the Act.

6. Appeal SOA 21 of 2016 is otherwise dismissed.

7. The husband pay the wife’s costs of and incidental to the appeals, fixed in the sum of $19,000 to be paid from the funds held in trust by Tasiopoulos Lambros & Co and Altona Legal.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Numbers:  SOA 70 of 2015; SOA 21 of 2016
File Number:  MLC 11069 of 2008

Mr Pencious

Appellant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court are two appeals, SOA 70 of 2015 and SOA 21 of 2016, brought by Mr Pencious (“the husband”) against orders made by Macmillan J on 8 October 2015 and 7 March 2016 respectively. By SOA 70 of 2015, the husband appeals against an order dismissing the husband’s oral application for Macmillan J to disqualify herself from hearing the matter. By SOA 21 of 2016, the husband appeals against an order made pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting him from instituting further proceedings under the Act in any court without first having been granted leave to commence such proceeding pursuant to s 102QE of the Act.

2. Both appeals are opposed by Ms Searle (“the wife”).

3. Before turning to the appeals it is necessary to set out some background facts and to explain in some detail the history of the proceedings.  Since there is no challenge to the chronology set out by the primary judge, we take the facts in large part from her Honour’s reasons in Searle & Pencious [2016] FamCA 135.

Background

1. The parties married in 1988 and physically separated in or about December 2008 when the wife left the family home with the parties’ children.

2. At the time of the hearing before the primary judge, the wife was 50 years old and self-employed.  The husband was also 50 years old and, at least according to the documents he had filed in the primary proceedings, had been unemployed since August 2008.

History of litigation

1. This matter has a long history, which is particularly relevant to the husband’s second appeal (SOA 21 of 2016).

2. On 8 December 2008 the wife filed an Initiating Application in which she sought both parenting orders and property settlement.

3. After the wife filed that application, the husband made numerous complaints against the wife’s then solicitor Mr Adrian Abrahams and his employee to the Legal Services Commissioner, Victoria Legal Aid and the Law Institute Ethics Committee.  All of those complaints, including an appeal against the decision of the Law Institute Ethics Committee, were dismissed.

4. On 3 December 2009 the husband filed an Application in a Case seeking to restrain the wife’s solicitors from acting on the wife’s behalf in the proceedings.  The application was heard over eight days by Cronin J, who dismissed the application on 28 February 2012 (Pencious & Pencious [2012] FamCA 74). On 5 April 2012 his Honour ordered the husband to pay the wife’s costs of and incidental to that application on an indemnity basis. The husband was also ordered to pay the costs of the Independent Children’s Lawyer with respect to the application (Pencious & Pencious (No 2) [2012] FamCA 212).

5. On 27 March 2012 the husband filed an appeal against the orders of Cronin J of 28 February 2012.  The appeal was later deemed abandoned after the husband failed to comply with an order for the filing of appeal books.

6. On 26 February 2010 the husband filed an Application in a Case seeking to join the wife’s parents as parties to the property proceedings, that her parents repay monies paid to them by the wife and that the husband have access to those funds to meet his legal costs.  On 21 April 2010 Cronin J heard the husband’s application.  The application was dismissed by Cronin J on 20 July 2010 on the basis that he was not satisfied as to his jurisdiction to make the orders sought against the wife’s parents and further that the husband did not sufficiently identify what material facts would be relied upon giving rise to a cause of action against the wife’s parents (Pencious & Pencious [2010] FamCA 605).

7. On 6 January 2011 the husband applied to the Victorian Civil and Administrative Tribunal (“VCAT”) seeking orders that ML Pty Ltd provide him with a key to the German motor vehicle that had been used exclusively by the wife since separation.  The wife deposed that on 19 May 2011 she received notice of an order made by VCAT adjourning the husband’s application so that the husband could apply to join her as an interested party to the proceedings. Although it was the husband’s evidence that he did not apply to join the wife, there is no dispute that the wife was made a party to the proceedings.  On 1 July 2011 VCAT dismissed the husband’s application.

8. On 27 November 2012 the husband filed an Application in a Case seeking orders against Searle Holdings Pty Ltd (“Searle Holdings”), a company controlled by the wife’s parents, which acted as trustee of a trust established by the wife’s parents in 1977 (“the Searle Family Trust”).  The husband alleged that the wife had a legal or beneficial interest in the trust which should be treated as property for the purposes of the property proceedings in this Court.  He claimed that the trust was indebted to him and sought orders restraining the wife’s parents as appointors of the Searle Family Trust from dealing with the assets of the trust, that they be directed to pay him such sum as the Court determined from the trust and that he be permitted to recover the monies owed to him by the trust.  On 29 January 2013 Benjamin J ordered that Searle Holdings be joined as a party to the proceedings and the company was thereafter separately represented in the proceedings.

9. The property proceedings were heard by Benjamin J over nine days between 29 January 2013 and 13 May 2013.  On 28 May 2013 Benjamin J made orders including an order dismissing the husband’s claims against Searle Holdings and the Searle Family Trust (Searle (formerly Pencious) & Pencious and Anor [2013] FamCA 375) finding that the wife did not have a “fixed and irrevocable entitlement to a share of the trust”. On 25 June 2013 the husband filed a Notice of Appeal against a number of the orders made by Benjamin J.

10. On 2 June 2014 the husband filed an Amended Notice of Appeal which contained 26 grounds of appeal.  At the hearing of the appeal on 2 July 2014 the husband abandoned 16 of those grounds.  On 10 September 2014 the Full Court dismissed the appeal.  On 8 October 2014 the husband filed an Application for Special Leave to Appeal to the High Court, which was dismissed on 5 March 2015.

11. On 21 March 2014 the husband filed an Application in an Appeal seeking the reinstatement of his appeal against the orders made by Cronin J on 28 February 2012, which had been deemed abandoned when he failed to file the appeal books.  On 13 January 2015 Strickland J dismissed the husband’s application and on 9 February 2015 the husband filed an Application for Special Leave to Appeal to the High Court.  That application was dismissed on 5 May 2015.

12. On 8 January 2015 the husband filed an Application in an Appeal seeking an extension of time to appeal against Cronin J’s orders of 20 July 2010 dismissing his application to join the wife’s parents as parties to the property proceedings and an order for costs arising out of that application that had been made by consent on 9 September 2010.

13. On 27 January 2015, prior to filing his Application for Special Leave to Appeal to the High Court against the decision of Strickland J dismissing his Application in an Appeal to reinstate his appeal against the orders made by Cronin J on 28 February 2012, the husband attempted to file an Application in an Appeal seeking an extension of time to appeal against Cronin J’s orders of 28 February 2012.  The Appeal Registrar refused to accept that application and on 16 February 2015 the husband filed an Application in an Appeal seeking a review of the registrar’s decision.

14. Also on 27 January 2015 the husband filed an Application in an Appeal seeking an extension of time to appeal against the order made by Cronin J on 5 April 2012 that the husband pay the wife’s costs on an indemnity basis of and incidental to the husband’s unsuccessful application that Adrian Abrahams Family Lawyers be restrained from acting on behalf of the wife.

15. On 26 February 2016, Strickland J dismissed all three Applications in an Appeal.

16. The primary judge observed that the order for costs made by Cronin J on 5 April 2012 had “generated significant and ongoing litigation” (at [31]).

17. Subsequent to the husband’s appeal against Cronin J’s order made 28 February 2012 being deemed to be abandoned, the wife’s then solicitors filed an itemised account.  On 5 December 2012 Registrar Riddiford issued a preliminary costs assessment of $156,609.30.  On 21 December 2012 the husband objected to the preliminary costs assessment and requested that a cost assessment hearing be conducted.

18. The costs assessment hearing was first listed for hearing before Registrar Kaur on 21 August 2013.  On that date the husband challenged the scope of the order made by Cronin J, claiming that it was limited to the hearing itself.  Accordingly Registrar Kaur wrote to Cronin J asking him to clarify the scope of his order made 5 April 2012.  On 3 October 2013 Cronin J made an order in chambers “[t]hat the Registrar assess the costs pursuant to the orders made 5 April 2012 according to the ruling this day”, that ruling being that the parties agree that the costs are to be assessed in relation to the discrete proceedings about the restraint of the wife’s solicitors (see Pencious & Pencious (No 2) [2013] FamCA 748).

19. On 22 October 2013 Registrar Riddiford ordered the husband to pay costs assessed in the amount of $50,634.84.  At the second hearing of the costs assessment before Registrar Riddiford on 20 November 2013, the wife’s costs were assessed and the husband was ordered to pay a further $10,870.76.  Those costs were paid from the moneys held as security for costs pursuant to orders made by Benjamin J on 14 August 2013.

20. The costs assessment was listed for further hearing on 19 February 2014.  The husband sought and was granted an adjournment on the basis that he pay the wife’s costs fixed in the sum of $2,760.  At the further hearing of the costs assessment on 21 March 2014 the matter was again adjourned on the husband’s application and he was ordered to pay the wife’s costs fixed in the sum of $3,950.  The primary judge recorded that at the time of the hearing before her, the husband had not paid either amount he was ordered to pay on 19 February 2014 or 21 March 2014.

21. On 21 March 2014 the husband applied for a stay of the costs assessment by Registrar Riddiford.  The wife deposed that she consented to the husband’s application for a stay in order to avoid incurring further legal costs associated with opposing that application.

22. The costs assessment hearings continued on 11 and 12 March 2015 and the husband was ordered by Registrar Riddiford to pay further assessed costs of $13,975.93.

23. On 24 March 2015 following the costs assessment hearing on 11 and 12 March 2015 the husband filed his Application in a Case seeking a stay of the costs orders made by Cronin J on 5 April 2012, the disqualification of Registrar Riddiford from the hearing of any further costs assessment and the discharge of all orders previously made arising out of that assessment.

24. In the course of the proceedings the husband has also made a number of complaints to officials about the proceedings.

25. By a letter dated 21 October 2014, the husband complained to the Commonwealth Attorney-General.  The letter alleged that there had been a miscarriage of justice as a result of a legal practitioner having “coached” a witness during the proceedings, which the husband said led to an adverse judgment and an oppressive order that he pay indemnity costs.  The husband further asserted that approximately 12 months after the costs orders were made by Cronin J, he received documents from that same legal practitioner which demonstrated that the “evidence given by that legal firm’s office in Court was false” and that the Court had been misled.

26. On 6 January 2015 the husband wrote to the Chief Justice of this Court complaining about the actions of Court officials and legal practitioners which he said had resulted in him being denied a fair process and natural justice.  In the letter the husband made allegations about legal practitioners giving false evidence and misleading the Court in the injunctive proceedings, the Registrar conducting the costs assessment indicating during the hearing that he was aware of confidential legal advice the husband had been given in relation to his application seeking to restrain the wife’s legal practitioners from acting on her behalf, and the same legal practitioner yelling out answers to his client in the witness box during the hearing of the property proceedings before Benjamin J.

27. These letters and the responses to the husband were annexed to the husband’s affidavit filed 24 March 2015 in support of his Application in a Case seeking a stay of the costs assessment and the disqualification of Registrar Riddiford.

28. At the commencement of the hearing before the primary judge in the Judicial Duty List on 5 May 2015 the husband made an oral application to restrain Mr Wood of counsel from appearing on behalf of the wife.  The primary judge dismissed that oral application on 22 May 2015.

29. During the hearing of the Applications in an Appeal by Strickland J on 6 May 2015, the husband made three oral applications.  The first of those applications was that Strickland J be disqualified from further hearing the matter.  His Honour heard and dismissed that application before dealing with the husband’s other oral applications seeking that Mr Wood be restrained from appearing on behalf of the wife on the hearing of the Applications in an Appeal and the adjournment of the husband’s Applications in an Appeal.

30. The husband asserted that there was evidence relevant to his Applications in an Appeal and his application that Mr Wood be restrained from appearing on behalf of the wife which he needed to put before the Court and that these matters should not proceed in the absence of that evidence.

31. That evidence included a letter which had been the subject of both a subpoena and a Notice to Produce addressed to the wife and an Application in an Appeal which had been forwarded to the Appeals Registrar on 27 April 2015 seeking orders for the wife to produce that letter.

32. In his reasons delivered on 6 May 2015 Strickland J noted that the husband’s application and his affidavit in support of that application had been returned to the husband under cover of a letter dated 28 April 2015 advising the husband of the Appeals Registrar’s reasons for refusing to accept the documents for filing and referring him to the relevant Family Law Rules 2004 (Cth), as well as the fact that the husband had then amended that application and sought to file that amended application on 1 May 2015. That application came before the Appeals Registrar on 4 May 2015 who refused to accept the amended application for filing and returned it to the husband referring him to the letter of 28 April 2015.

1. Strickland J dismissed the husband’s oral applications for an adjournment and that Mr Wood be restrained from appearing on behalf of the wife in the proceedings before him.

2. The husband thereafter filed Applications for Special Leave to Appeal to the High Court against each of Strickland J’s decisions with respect to the three oral applications.  On 4 November 2015 the High Court dismissed all three applications on the basis that they did not identify any question of law suitable for a grant of special leave.

3. On the last day of the hearing of the wife’s application for a vexatious proceedings order before the primary judge, the husband made an oral application that her Honour be disqualified from further hearing the matter. On 8 October 2015 the primary judge dismissed that application, and continued to hear the vexatious proceedings application.

4. On 11 and 19 June 2015 respectively, the husband filed Notices of Appeal in relation to the orders striking out his subpoena and Notice to Produce (SOA 40 of 2015) and the dismissal of his oral application for an injunction (SOA 45 of 2015).  Those appeals came before the Full Court (Bryant CJ, Aldridge and Kent JJ) on 29 February 2016.  The husband appeared by telephone and the wife was represented by counsel.

5. On the same day, the husband wrote to the Appeal Registrar asserting that Bryant CJ ought to be disqualified from further participation in the appeal on the ground of apprehended bias.  The Appeal Registrar informed the husband that if he wanted to make a disqualification application, he must do so by Application in an Appeal.  On 9 March 2016, the husband filed an Application in an Appeal to this end.  By agreement of both the parties, the application proceeded by written submissions.  On 4 August 2016, Bryant CJ delivered judgment dismissing the husband’s application for disqualification (Pencious & Searle (Disqualification) [2016] FamCAFC 150).

6. Also on 4 August 2016, the Full Court delivered judgment in relation to appeals SOA 40 of 2015 and SOA 45 of 2015.  The Full Court dismissed the appeals and ordered that the husband pay the wife’s costs of and incidental to the appeal (Pencious & Searle (No. 2) [2016] FamCAFC 151).

7. On 7 March 2016, the primary judge published judgment granting the wife’s application and making an order pursuant to s 102QB(2)(b) of the Act, prohibiting the husband from instituting proceedings under the Act without first obtaining leave to commence those proceedings.

8. For the sake of clarity, the two appeals that fall for us to determine are:

   ·The husband’s appeal against Macmillan J’s order of 8 October 2015 refusing to recuse herself from hearing the matter (SOA 70 of 2015); and

   ·The husband’s appeal against Macmillan J’s order of 7 March 2016, made pursuant s 102QB(2)(b) of the Act, prohibiting the husband from instituting proceedings under the Act without first obtaining leave to commence those proceedings (SOA 21 of 2016).

SOA 70 of 2015 — The Disqualification Appeal

1. It is necessary to deal with this appeal first. Were we to conclude the primary judge erred in not disqualifying herself, it would follow that the vexatious order appeal would necessarily succeed and the orders made by the primary judge would need to be set aside.

2. The oral application by the husband that the primary judge be disqualified was made on the basis of apprehended bias.  The application was opposed by the wife.

3. The husband’s Notice of Appeal contains seven grounds of appeal.  A number of the grounds overlap and are, in some respects, repetitive.  It seems to us that the challenges raised by the husband can be summarised as error by her Honour in that she:

   ·Failed to properly apply the relevant law and facts (grounds 1 and 6);

   ·Denied the husband procedural fairness by granting the wife’s application for adjournment (grounds 2 and 3);

   ·Failed to properly apply the relevant law and facts in granting an adjournment and ordering further pleading (ground 4); and

   ·Acted with apprehended bias (ground 5).

4. Ground 7 is not a ground of appeal.

5. The manner in which the application was made is explained by the primary judge in Pencious & Searle (No. 3) [2015] FamCA 1217:

   1.The matter listed for hearing before me is the wife’s application in a case filed 24 April 2015 seeking what is, in effect, a vexatious proceedings order restraining the husband from filing any application or document in either this Court or the Federal Circuit Court without having first obtained an order permitting him to do so.

   2.The hearing of the matter commenced on 5 May 2015, was adjourned part heard for further hearing on 22 May 2015 and was thereafter adjourned part heard for hearing on 20 August 2015.  At the hearing on 5 May 2015, the wife applied to have the subpoena issued by the husband requiring her to produce the letter dated 15 October 2010 sent by her then solicitors, Adrian Abrahams Family Lawyers, to Mr Wood of counsel, and the notice to produce filed by the husband requiring her to produce the same document, struck out. The husband, for his part, made an oral application seeking to restrain Mr Wood of counsel from appearing on behalf of the wife.

   On 22 May 2015, I made orders striking out the husband’s subpoena to the wife and his notice to produce for production of the letter sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel.  On 22 May 2015, I also dismissed the husband’s oral application for an injunction restraining Mr Wood from acting on behalf of the wife and proceeded to commence the hearing of the wife’s application for a vexatious proceedings order.

   3. Prior to the further hearing of the matter on 20 August 2015, the husband filed notices of appeal in relation to both my orders striking out the subpoena and the notice to produce and the dismissal of his oral application seeking to restrain Mr Wood from appearing on behalf of the wife.  At the commencement of the part heard hearing before me on 20 August 2015, the husband sought to have the matter adjourned pending the outcome of those appeals and his applications for leave to appeal to the High Court against orders made by Strickland J.  I dismissed the husband’s application for an adjournment of the matter.  It proceeded on 20 August 2015 and was further adjourned part heard before me this day.

   4.At the commencement of the part-heard hearing before me this day, the husband made an oral application for me to disqualify myself from hearing the matter.  The husband submitted in support of that application that, although I had refused his application for an adjournment on the last occasion, that I had told Mr Wood how to address deficiencies in his client’s application and, thereafter, acceded to Mr Wood’s application for an adjournment to enable him to address those deficiencies.  This is notwithstanding that I had told him on 22 May 2015 that he should be ready to meet the wife’s application on 20 August 2015.  It was his case that, not only should I have not helped Mr Wood to address the deficiencies in his case, but that to do so was prejudicial and undermined the integrity of the proceedings.  It was his case that if there were deficiencies in the wife’s application, her application should fail.

6. The primary judge then set out the applicable legal principles in Johnson v Johnson (2000) 201 CLR 488 (“Johnson”), Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) and Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, before dealing with the gravamen of the husband’s application as follows:

   10.The husband complains about my decision to refuse his application for an adjournment and allow the wife’s application for an adjournment.  The basis of the husband’s application for adjournment on 20 August 2015 was that he would be prejudiced by Mr Wood’s appearance on behalf of the wife because Mr Wood has been privy to confidential information about the husband contained in the letter sent by Adrian Abrahams Family Lawyers to Mr Wood.

   11.I found in relation to that application that the husband’s submissions as to the breach of confidentiality made little or no sense in circumstances where it was his case that that very letter should be in evidence and concluded that it followed that any counsel appearing on behalf of the wife would be tainted by the so called confidential information.  Nothing has changed since I made that decision and, in fact, it was submitted by Mr Wood that the husband is now seeking that the letter be produced for the purposes of his various appeals.

   12.The wife’s application for an adjournment, on the other hand, arose as a result of the dialogue between the bench and Mr Wood as to the way in which he framed his submissions.  It is, in my view, significant that the substance of my concerns was primarily with respect to the submissions being made based upon the evidence not in relation to deficiencies in that evidence.  I note that the wife has not filed or sought to file any further affidavits.

   13.My concern, which I made clear to Mr Wood, was that in circumstances where the Court would be required to make findings as to particular proceedings being vexatious, submissions as to the husband’s alleged vexatious conduct generally would necessarily require the Court to trawl through the evidence to determine what, if any, of the proceedings to date might be vexatious, something that in my view it should not be required to do.  This is reflected in the orders I made for the filing of further submissions and giving the husband the opportunity to reply to those submissions.

   14.The complaint was, in this case, directed to what the Court required by way of assistance from counsel in the management and conduct of the case.  As referred to in Johnson’s case, modern judges are required to more actively manage the cases before them to achieve a just and timely outcome. Significantly, the husband does not point to either any dialogue between the Bench and the bar table or, for that matter, any decision that would suggest to a reasonable-minded lay observer that I would not bring an impartial or unprejudiced mind to the question of whether or not a vexatious proceedings order should be made.  The Court must be able to manage the proceedings before it.  Arguably in this case there was also no prejudice to the husband as a result of my doing so as he was given an opportunity to understand in advance the case being put by the wife and have the opportunity to answer that case.

   15.In my view, the prejudice to the wife if the husband’s submission that the Court should have dismissed the wife’s case rather than adjourn it were accepted, highlights why it could not be said that the decision to reject the husband’s application for an adjournment and grant the wife’s application for an adjournment demonstrates that I might not bring an impartial and unprejudiced mind to the matter I must determine.  To the contrary, to adopt the approach the husband submits should be adopted would have resulted in the dismissal of the wife’s application not on the merits but on the basis of its presentation.

7. The primary judge then applied the two-step test in Ebner and concluded that the husband had not identified anything that she had said or done in the conduct of the proceedings that might lead the reasonable lay observer to conclude that she would decide the case other than on its legal and factual merits.  In relation to the second step of the test she concluded that even if the husband had identified something that she had said or done or orders made in the conduct of the proceedings, he had not articulated a logical connection between that matter and the feared deviation from the course of deciding the case on its merits. In the circumstances she dismissed the husband’s application.

Grounds 1, 5 and 6

1. The gravamen of grounds 1, 5 and 6 is that her Honour failed to properly apply the test for judicial disqualification.  However, the husband provides no detail of the alleged error and makes no challenge to her Honour’s statement of the applicable law.

2. The primary judge stated correctly that the test by which a judge decides to disqualify himself or herself is to be found in [6] and [8] in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner.  Those passages provide:

   6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

   …

   8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

Discussion

1. The husband’s submissions merely repeat what was submitted to the primary judge and as her explanation of the law is unchallenged, he did not identify any error in the application of those principles.  In particular, the husband did not address any submissions specifically directed to grounds 1, 5 and 6.  Rather the submissions address matters of procedural fairness which he asserts demonstrates apprehended bias.  We will deal with his submissions under his other grounds.

2. Accordingly grounds 1, 5 and 6 are not made out.

Grounds 2, 3, 4 and 5

1. As these grounds were addressed compositely by the husband we will deal with them in the same way.  The husband contends that he was denied a fair trial to the extent that the adjournment granted to the wife prolonged the proceedings and caused prejudice to him.

2. The husband also identifies two discrete matters which he says gave rise to apprehended bias on behalf of the primary judge, namely:

   ·The dialogue between the primary judge and counsel for the wife seeking to “address deficiencies” in the wife’s vexatious proceedings application; and

   ·The granting of an adjournment on the oral application of counsel for the wife.

3. According to the husband it is significant that before the wife made her successful application for an adjournment, his own application for an adjournment was refused.

4. At [12] of her reasons, the primary judge explained that she granted the wife’s adjournment primarily due to her concerns “with respect to the submissions being made based upon the evidence not in relation to deficiencies in that evidence”.  Further at [13] she notes:

   … in circumstances where the Court would be required to make findings as to particular proceedings being vexatious, submissions as to the husband’s alleged vexatious conduct generally would necessarily require the Court to trawl through the evidence to determine what, if any, of the proceedings to date might be vexatious, something that in my view it should not be required to do.  This is reflected in the orders I made for the filing of further submissions and giving the husband the opportunity to reply to those submissions.

5. The husband does not indicate what prejudice in particular he suffered, or what prejudice the prolonging of the proceedings caused.  He had the opportunity to see written submissions from the wife and had an opportunity to respond to them.

6. We accept the wife’s submission that the dialogue between the primary judge and counsel for the wife was appropriate and does not suggest bias or that her Honour prejudged the issue.  In support of this proposition the following passages from the transcript were emphasised:

   [THE HUSBAND]:    … It seems to me like you’ve already made up your mind on the ---

   …

   HER HONOUR:       … I have not made up my mind.  I want all the argument and the evidence upon which [counsel for the wife] bases that argument before me ... I certainly have not formed any concluded view …

   (Transcript of 20 August 2015, 88, lines 6–17)

7. And also:

   [COUNSEL FOR THE WIFE]:       Well, I don’t think “frequently” is going to be a problem in this case.

   HER HONOUR:  Well, it might be.

   (Transcript of 20 August 2015, 80, lines 18–20)

8. At [14] the primary judge explained that the adjournment did not prejudice the husband but rather gave him an opportunity to understand in advance the case being put by the wife on the question of the vexatious proceedings order application and provided him with an opportunity to answer that case.  The first step in the two-step process set out in Ebner assumes the fair-minded lay observer apprised of these facts would understand the reason for the adjournment (and thus the absence of bias), even if they did not fully agree with it.

9. The husband also falters at the second step.  This step requires a “logical connection” between the matters identified; that is, the provision of an adjournment to enable the wife’s counsel to file further submissions and for the husband to reply on the one hand, and a feared deviation from the course of deciding the case on its merits on the other. Nothing was suggested by the husband to support the second step beyond his obvious dissatisfaction with the course taken by her Honour.

10. Further, it will be recalled that the husband sought an adjournment – that is, he sought to create the very situation that he then said caused him prejudice.

11. It has not been made out that there was any prejudice to the husband as a result of the adjournment being granted to the wife for the filing of further submissions by both parties, nor importantly any logical connection with a fear the judge might not decide the case on its merits.  We accept the wife’s submission that the adjournment was granted not to provide the wife with the opportunity to improve her case but to allow the parties to provide the Court with further written submissions as no further affidavit material was filed (see [12]).  Her Honour’s analysis of the consequences of the adjournment are apt and, in particular, had the effect of the vexatious proceedings application being finally determined.  The point being, as her Honour explained, had the application been dismissed at that stage, a fresh application could have been commenced.

12. Accordingly, as no error has been demonstrated the appeal must be dismissed.

SOA 21 of 2016 – The Vexatious Proceedings Order Appeal

1. We turn now to the husband’s appeal against the vexatious proceedings order.

2. A vexatious proceedings order under s 102QB(1) of the Act may be made if the court is satisfied that:

   (a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

   (b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

1. Section 102Q(1) defines “vexatious proceedings” to include:

   (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.

2. It is useful at this stage to refer to some general principles that have emerged from considerations of the sections in other jurisdictions analogous to s 102QB.

3. In Potier v Attorney General (NSW) (2015) 89 NSWLR 284 Leeming JA, with the concurrence of Basten and Meagher JJA, discussed what is meant by “frequently” in the context of vexatious proceedings:

   114.The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.

   115.First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.

   116.Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.

   117.I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].

   118.Each of those considerations favour “frequently” being a relatively low threshold.

   119.The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.

   120.That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious. …

4. We agree with those propositions.

5. In an often quoted passage in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Perram J spoke of the general principles that apply to applications for vexatious proceedings orders. His Honour said:

   2.A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct.  However, the following principles are, at least, well-established.  First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right.  It is, therefore, not lightly to be made.

   3.Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

   4.Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim.  To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places.  Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

   5.Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

   6.Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits.  The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all.  Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit.  It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

   7.Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

   8.Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent.  The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

   9.Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively.  But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths.  Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.

   10.Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

   11.Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.

   12.Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined.  However, the factors which will be relevant are informed by the protective purpose which the order serves.  Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public.  On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely.  Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought.  Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.

   (Original emphasis)

6. With these principles in mind we turn to the question of whether the primary judge erred in making an order against the husband pursuant to s 102QB(2)(b) of the Act.

Is Leave to Appeal required?

1. The order made by the primary judge is:

   Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) [the husband] be 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.

2. The issue that arises is whether, in view of that order, leave is required by the husband to institute this appeal or whether he can do so as of right. This in turn requires consideration of whether appeals fall within the definition of “proceedings under the Act”.

3. In relation to a Court, s 102Q(1) proceedings are defined by reference to the definition of proceedings in s 4(1) of the Act. Thus “proceedings” means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”.

4. This definition is in contrast to the definition of “proceeding” in s 4 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), which specifically includes “an appeal”.

5. Nonetheless, the word “proceeding” is, of itself, apt to include an appeal, as is made clear by s 102Q, which defines “institute” to include:

   (d)for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

6. The separate definition of an appeal in s 4 of the Act, which is simply defined to include within its meaning “an application for a re-hearing”, does not detract from this conclusion.

7. Accordingly, although worded slightly differently from s 4 of the Federal Court Act, ultimately the effect is the same when the entirety of s 102Q(1) is read. See also the Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 at paragraph 199.

8. Section 102QD(1) prohibits an applicant who is subject to a vexatious proceedings order from instituting proceedings, or proceedings of the type described in the order, without leave of the Court under s 102QG. Hence the husband requires leave to “take a step necessary to start an appeal”, which in accordance with the Act is the filing of a Notice of Appeal.

9. This accords with what the Full Court of the Federal Court said in Fuller v Toms [2015] FCAFC 91, when dealing with the same issue:

   17.… [i]n terms of paragraph (d) of the definition of ‘institute’, an appeal from a single judge is ‘started’ by the filing of a notice of appeal: r 36.01(c) Federal Court Rules 2011 (Cth) ( Federal Court Rules).

   18.By this somewhat circuitous route, the position which is reached is that Mr Fuller did not require a grant of leave to seek to appeal. Rather what he required was a grant of leave to so as to institute (“start”) an appeal.

10. The husband does not require leave to start an appeal in relation to the disqualification appeal, as that appeal was commenced on 14 October 2015, prior to the vexatious proceedings order.

11. The husband did not formally seek leave to institute his appeal against the vexatious proceedings order but after an invitation from the Bench he made an oral application for leave in the event that we found leave was necessary.

12. Section 102QG enables the Court to grant leave to institute proceedings but only if the court is satisfied that the proceedings are not vexatious (s 102QG(3)).  Although counsel for the wife submitted that leave would be required, he did not submit that the court should not grant leave or that the appeal was itself vexatious.  We agree. Given the nature of the orders imposed we propose to grant leave to the husband to file the Notice of Appeal in proceedings SOA 21 of 2016.  In view of the fact that until the commencement of the appeal hearing the requirement for leave had not been identified, we propose to do so nunc pro tunc.

The basis of the primary judge’s finding that the proceedings were vexatious

1. As set out at [62]–[125] of her reasons, her Honour relied upon the following proceedings:

   ·The husband’s Application filed 3 December 2009 (at [62]–[68]);

   ·Proceedings subsequent to Cronin J’s decisions of 28 February 2012 and 5 April 2012 (at [69]–[86]);

   ·The husband’s Application for Special Leave to Appeal to the High Court filed 9 February 2015 (at [87]–[88]);

   ·The husband’s applications for an extension of time to appeal and a review of the decision of the Appeals Registrar on 6 May 2015 (at [89]–[102]);

   ·Other applications (at [103]–[120]); and

   ·The husband’s application to VCAT (at [121]–[125]).

The Husband’s Application filed 3 December 2009

1. At [64] her Honour said:

   Although Cronin J did not go as far as to say, as he was asked to do by counsel for the wife during the course of the hearing of the wife’s application for costs, that the husband’s motivation for pursuing his application was improper and inappropriate, he did say at paragraph 19 of his reasons delivered on 5 April 2012  (Pencious & Pencious (No 2) [2012] FamCA 212) that the husband was ‘… misguided, had extensive legal advice and pursued the issue over an extensive period of time requiring all major witnesses to be called for cross-examination’ and that he had put the wife to ‘unnecessary and unjustifiable expense’.

2. At [65] her Honour made reference to an “offer the wife had made to settle the matter … in which the wife’s solicitor offered to withdraw from the proceedings on the basis of a number of conditions”.

3. At [66] she indicated that:

   Cronin J said with respect to that offer of settlement at paragraph 25 as follows:

   … The terms of the offer in this case were magnanimous and sensible. The husband rejected the proposal which if it had been accepted, would have enabled the wife to have moved to a new firm of solicitors and have the substantive proceedings concluded. The husband’s approach as set out in the response of his solicitor at that time smacks of his obsession. It is almost trite to say that the husband chanced his arm and lost.

4. At [67] her Honour said:

   Given that ostensibly the purpose of the husband’s application was to restrain the wife’s solicitor from acting on her behalf, I am satisfied that it is reasonable to infer, in circumstances where the wife made what Cronin J described as a ‘magnanimous and sensible offer’ to resolve the matter which would, if accepted by the husband, have resulted in the wife engaging new solicitors, that the proceedings were pursued by the husband for some other purpose.

5. The primary judge recorded that she was “satisfied that the husband’s application to restrain the wife’s then solicitor from acting on her behalf … was intended to harass or annoy the wife, cause delay or, most likely, as the husband said, to bring her ‘to account’”. Her Honour was satisfied that in those circumstances the proceedings met the test of vexatious proceedings as defined by s 102Q(1) of the Act (at [68]).

Proceedings Subsequent to Cronin J’s Decisions of 28 February 2012 and 5 April 2012

1. The primary judge noted that the husband had filed a Notice of Appeal against the orders made by Cronin J on 28 February 2012.  She indicated at [69] that when the husband failed to comply with the directions of the Appeals Registrar for the filing of appeal books his appeal was deemed abandoned and that:

   [i]n circumstances where I have found that I am satisfied on the balance of probabilities that the proceedings from which the appeal arose were intended to harass or annoy the wife or to bring her ‘to account’, it is in my view reasonable to infer that the husband’s motivation vis-à-vis the appeal was similarly questionable.

2. It is useful to set out what her Honour describes as the matters underpinning the husband’s submissions and applications.  At [71] her Honour describes the husband’s repeated assertions that:

   … [t]he wife, her parents, the wife’s former solicitor and her counsel Mr Wood having ‘either deliberately failed to make full and frank disclosure in earlier proceedings or suppressed and withheld evidence that should have been disclosed to the court’.

3. The primary judge continues at [72] stating that “[t]he first piece of what the husband referred to as the ‘suppressed evidence’ … was the misleading evidence” of Ms D in earlier proceedings.  As her Honour explains at [72]:

   … It is the husband’s case that during the costs assessment he became aware of a number of items charged by the solicitors for the wife which he said demonstrated that Ms [D], a secretary in the employ of Adrian Abrahams Family Lawyers who gave evidence in support of the wife during the hearing of the husband’s application to restrain the firm from acting on behalf of the wife, had given misleading evidence. In his reasons delivered on 13 January 2015 Strickland J observed that this allegedly misleading evidence seemed to have been the catalyst for the continuing litigation which on the evidence before me seems to be the case at least until March 2015 when the husband says be became aware of the letter sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel dated 15 October 2010.

1. Her Honour then at [73]–[80] describes the basis for the dismissal by Strickland J of the husband’s application culminating in Strickland J’s conclusion, recorded by the primary judge at [80]:

   As the authorities recognise, the consideration of the relevant factors inform the court’s determination of the fundamental issue, namely, is it in the interests of justice to allow the appeal to proceed.  Here, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused.  There is no explanation of the failure to comply with the order made by the Appeal Registrar and there is no plausible explanation for the delay in filing the application.  Indeed, I have found a lack of bona fides in what was put on behalf of the husband in this regard, and in any event, the receipt of the wife’s itemised costs account had nothing to do with any alleged error by the trial judge in applying an incorrect test.  Then there were the deficiencies in the Notice of Appeal, namely the failure to apply for leave to appeal and there being no proper ground of appeal, and no suggestion of any amendment to overcome these deficiencies.  Further, the appeal lacked merit, it was plainly futile and finally, there was the serious prejudice to the wife if the application was granted.

2. The primary judge then went on to say (at [81]) that she:

   … had regard to Strickland J’s findings with respect to the husband’s failure to provide any explanation as to why he failed to comply with the order of the Appeals Registrar; the delay in bringing his application; the deficiencies in the Notice of Appeal, … and that the appeal lacked merit.

3. She also had regard (at [82]) to:

   … the futility of the husband’s Application in an Appeal seeking to reinstate an appeal from an interlocutory order, as described by Strickland J in his reasons for judgment delivered on 13 January 2015, in circumstances where there are no substantive proceedings on foot.

4. At [83] her Honour said, importantly in our view, that:

   [i]t is difficult to understand what the purpose of the husband’s Application in an Appeal might have been in circumstances where there were no extant parenting or property proceedings and all that remains are proceedings with respect to the costs payable by the husband arising out of those parenting and property proceedings …

5. At [84] her Honour then noted that:

   [a]s Davies J said in Gargan at paragraph 8 one of the ways unreasonable grounds may manifest themselves is ‘a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters’.

6. Her Honour then concluded at [86] that the “husband’s Application in an Appeal filed 21 March 2014 was a vexatious proceeding as defined by s 102Q(1) of the Act”.

The Husband’s Application for Special Leave to Appeal filed 9 February 2015

1. The primary judge dealt with the husband’s Application for Special Leave to Appeal to the High Court from the decision of Strickland J dismissing his Application in an Appeal to reinstate his appeal against the orders of Cronin J made 28 February 2012 at this at [87]–[88].

2. At [87] she noted that the Application was dismissed by the High Court on 5 May 2015. Her Honour opined:

   … It is reasonable in my view to infer on the basis of Strickland J’s findings both as to the merits of the husband’s Application in an Appeal seeking to reinstate the appeal and the appeal generally, the dismissal by the High Court of the husband’s Application for Special Leave to Appeal to the High Court on the grounds that it raised no important question of law, and, in any event, what I am satisfied is the futility of the appeal from an interlocutory order, that the husband filed his Application for Special Leave to Appeal to the High Court without having reasonable grounds for doing so and without having given any consideration as to whether or not there were reasonable grounds for that application …

   The primary judge, importantly in our view, then went on to say:

   … Having read the husband’s written submissions and heard his oral submissions during the hearing of this matter I am left with the distinct impression that the husband, based upon what he perceives to be the need to right a wrong, will appeal irrespective of any consideration of whether or not there may be reasonable grounds for doing so.

3. At [88] her Honour found herself “satisfied that the husband’s Application for Special Leave to Appeal to the High Court filed 9 February 2015 was a vexatious proceeding as defined by s 102Q(1) of the Act”.

The Husband’s Applications for an Extension of Time to Appeal and a Review of the Decision of the Appeals Registrar on 6 May 2015

1. Her Honour considered these matters at [89]–[102].

2. In the first of his three applications, filed 8 January 2015, the husband sought an extension of time to appeal against the orders made by Cronin J on 20 July 2010 and 9 September 2010.  The second application filed 27 January 2015 was an Application in an Appeal for an extension of time to appeal against the order made by Cronin J on 5 April 2012 that the husband pay the wife’s costs arising from his application to restrain the wife’s solicitors from acting for her.  In the third application filed 16 February 2015 the husband sought to review the Appeals Registrar’s decision rejecting an Application in an Appeal for an extension of time to appeal against the order made by Cronin J on 28 February 2012 dismissing his application to restrain the wife’s lawyers from acting for her.

3. Her Honour noted at [90] that:

   [t]he order made by Cronin J on 20 July 2010 from which the husband sought to appeal was the order dismissing his Application in a Case filed 26 February 2010 seeking to join the wife’s parents as parties to the proceedings, injunctive relief against the wife’s parents to the effect that monies allegedly paid to them by the wife be paid into trust and that the husband have access to the money held in trust to fund his litigation ...

4. As the primary judge explains at [92], the matters raised by the husband in respect of this application, being the assertion that the wife and her parents gave false evidence, were before Benjamin J during the hearing of the competing applications for final property orders and were dealt with by him.  In particular the primary judge noted:

   that even on the husband’s own case he became aware of this so called ‘false evidence’ during the hearing before Benjamin J of the competing applications for final property orders but did nothing, and did not provide a satisfactory explanation as to why he had done nothing, until 8 January 2015.

5. Her Honour noted at [93] that:

   … as Strickland J concluded, that the husband having failed to demonstrate an appealable error the husband having failed to demonstrate an appealable error with respect to the order made 20 July 2010, there was no basis to challenge the order for costs made by Cronin J on 9 September 2010 and it followed that there was no merit in the proposed appeal.

6. At [94] her Honour noted that the final orders for property settlement and the dismissal of the husband’s claim against the wife’s parent’s company were the subject of an appeal to the Full Court which was dismissed and his Application for Special Leave to the High Court was also dismissed.  The primary judge noted:

   … As noted by Strickland J in his reasons delivered on 26 February 2016 the futility of the husband’s proposed appeals with respect to the orders made by Cronin J on 20 July 2010 and 9 September 2010 is obvious in circumstances where the property proceedings have been determined and all avenues of appeal exhausted.

7. Her Honour concluded at [95] that the Application in an Appeal for the extension of time to appeal from the orders made on 20 July 2010 and 9 September 2010 were vexatious proceedings.

8. At [96] the primary judge considered the dismissal of the Application in an Appeal seeking to reinstate the husband’s appeal against the orders of Cronin J made 28 February 2012, the refusal of the Appeals Registrar to accept his Application in an Appeal seeking an extension of time to lodge an appeal against the same orders and Strickland J’s dismissal of his Application to review the Appeals Registrar’s decision.

9. Of this, at [97] her Honour said:

   As a general proposition it would seem prima facie to fly in the face of the well-established principle of res judicata for a party to proceedings, having had their application deemed abandoned and leave to reinstate that appeal declined, the appeal process hence being concluded, to re-agitate the same appeal by this means …

10. The primary judge concluded thus that the husband filed his Application in an Appeal on 16 February 2015 seeking a review of the Appeals Registrar’s decision “without having reasonable grounds for doing so and it was a vexatious proceedings as defined by s 102Q(1) of the Act”.

11. Turning then to the husband’s Application in an Appeal filed 27 January 2015 for an extension of time to appeal the costs order made by Cronin J on 5 April 2012, which was discussed at [98]–[100], the primary judge noted the application had been “filed almost three years after his Honour made that order”.  The primary judge observed that Strickland J in dismissing the Application had noted that the husband’s complaint was “not directed per se to the costs orders, and the reasons for judgment relating to those orders, but to the dismissal of his application to restrain the wife’s solicitor from acting for her”.  The primary judge indicated that while she did not have before her the husband’s affidavit in support of his Application in an Appeal nor the proposed Notice of Appeal, “Strickland J’s observation accords with the evidence the husband sought to rely upon in the proceedings before [her] and both his written and oral submissions”.  In noting that the husband asserted that had Cronin J had the evidence he said demonstrated that Ms D had given misleading evidence in the proceedings, then it was likely that his application to restrain the wife’s lawyers from acting would have been made.

12. The primary judge pointed out at [99] that:

    … this ignores the fact that the husband’s application for leave to reinstate his appeal from Cronin J’s orders made 28 February 2012 has been dismissed as was his Application for Special Leave to Appeal to the High Court from Strickland J’s decision dismissing that application ...

13. Furthermore, she noted that:

    … [h]is Application in an Appeal seeking to review the Registrar’s decision refusing to accept for filing his Application in an Appeal for an extension of time to appeal from Cronin J’s orders made 28 February 2012 has now also been dismissed ...

14. Her Honour concluded that “[i]n those circumstances the findings underpinning the orders made by Cronin J on 28 February 2012 stand and would support the order for costs made 5 April 2012 even if the husband had been granted an extension of time to appeal”.

15. Her Honour then found herself satisfied at [100] that this was also vexatious proceedings as defined.

16. Her Honour then went on to note at [101]–[102] that she found it significant that the husband filed all three applications after Strickland J had handed down his decision with respect to the reinstatement of his abandoned appeal on 13 January 2015 and indicated that it gave rise to questions about his motivation for filing the application, concluding that having read Strickland J’s reasons delivered on 13 January 2015 that the reasons:

    … not only highlight the futility of an appeal based upon the so called ‘suppressed evidence’ but also generally in circumstances where both the parenting and property proceedings have been finalised. It is difficult to understand how, having read his Honour’s reasons, the husband would not have questioned the merits of his Applications in an Appeal.

Other Applications

1. The primary judge then discussed the litigation engaged in by the husband in relation to a letter dated 15 October 2010, which he says was sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel (who had appeared on behalf of the wife), in which he alleged Mr Abrahams relayed privileged and confidential information given to him by the husband’s solicitor on 26 February 2010.  Her Honour noted at [105] that:

   [s]omewhat surprisingly given the way in which he put his case the husband also relied upon the affidavit of Mr [DS] filed 1 April 2015 in which Mr [DS] deposed that he had not made the statements allegedly attributed to him by Mr Abrahams in his letter to Mr Wood.

2. Her Honour noted that the letter in question was the subject of subpoena and a Notice to Produce and an Application in an Appeal in which he attempted to seek the production of the letter for the purposes of the hearing before Strickland J on 6 May 2015.

3. Her Honour noted at [107] that on 5 May 2015 the husband made an oral application before her to restrain Mr Wood from acting on the wife’s behalf and sought production of the letter for that purpose.  At [113] her Honour noted that as she had said in her reasons delivered on 22 May 2015 in dismissing the husband’s applications that:

   … it is hard to see how the husband can complain about the breach of his confidentiality and Mr Wood or any other counsel acting on behalf of the wife having access to the confidential information he says is contained in the letter, even if it were true, in circumstances where it is the husband who wants the letter to form part of the evidence.

4. At [116] her Honour indicated that although she had considered the letter and the alleged breach of the husband’s confidentiality in the context that his application that Mr Wood be restrained from appearing on behalf of the wife at the hearing before her, it was:

   … difficult to see how the information contained in the letter, even if it were true, would have been relevant for the purposes of any of the husband’s Applications in an Appeal or for that matter any appeal. Nor, as Strickland J observed with respect to the husband’s submissions with respect to the evidence of Ms [D], would it be likely to give rise to a different result. The husband made no submissions addressing the relevance of the letter to the proceedings or, assuming that the evidence were before the Court, what difference that evidence might have made to the outcome of any of the proceedings, other than his general assertion that Cronin J might not have rejected his application to restrain Adrian Abrahams Family Lawyers from acting or it follows the order for costs he made on 5 April 2012 if the so called ‘suppressed evidence’ had been available to him.

5. The primary judge explained that the husband had had the opportunity of reading Strickland J’s reasons delivered on 13 January 2015 and nevertheless attempted to file an Application in an Appeal seeking production of the letter in question and the oral applications before her (at [117]). Her Honour found that she was “satisfied that the husband made these oral applications without having reasonable grounds for doing so and that they were vexatious proceedings as defined by the Act”.

6. At [120] her Honour concluded:

   What is clear from both the husband’s written and oral submissions is that the husband is, and has been, intent on demonstrating what he considers to be an injustice by any means available to him and with complete disregard to the merits of the particular application or its relevance to the matters that he seeks to prove. I am satisfied that the husband will do anything to prove his point whether or not there is a legal basis for doing so, irrespective of whether the particular application he makes has any merit or the futility of the relief he seeks.  I am also satisfied, as demonstrated by his written submissions in response to the wife’s objection to his subpoena and his oral submissions that make clear the possibility of proceedings in other venues, that he has instituted and conducted proceedings in this Court for purposes unrelated to those proceedings.

Application to VCAT

1. Her Honour noted at [121] that the wife received notice of an order made by VCAT adjourning an application issued by the husband so that she could be joined as a party to the proceedings.  As we explained, the husband was seeking an order that ML Pty Ltd provide him with a key to a motor vehicle which had been used exclusively the wife since separation.

2. At [124] her Honour said:

   The husband does not deny that his application was dismissed on the grounds that it was misconceived nor does his explanation adequately explain why, when there were proceedings in this Court for property settlement, he was making an application to VCAT with respect to the key to a motor vehicle driven by the wife.

3. Her Honour concluded at [125] that she was satisfied that as there were proceedings for property settlement in the Family Court the husband’s application was totally misconceived and it was intended “inter alia to harass and annoy the wife”.

4. Her Honour then concluded having regard to these matters discussed above that the husband had frequently instituted or conducted vexatious proceedings on at least 11 separate occasions primarily in the Family Court, the High Court and on one occasion at VCAT.  She concluded at [128]:

   Significantly in this case those applications are on most occasions an attempt to re-litigate an issue that has already been determined and importantly in my view an attempt to re-litigate interlocutory proceedings long after the substantive proceedings have been determined and the appeal process concluded.

5. Her Honour then noted at [129]:

   Even if I am wrong and not all the proceedings which I have found to be vexatious are so, in my view the circumstances of this case are such that even a finding as to a lesser number of vexatious proceedings would be sufficient to satisfy the Court that the husband has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. It is the husband’s attempts to re-litigate issues and the interlocutory nature of the proceedings he seeks to re-litigate in the absence of any substantive proceedings and in those circumstances the futility of the proceedings that stands out in this case.

   (Our emphasis)

6. Her Honour considered whether to exercise her discretion to make a vexatious proceedings order.  She noted the husband’s submissions in opposition including that “the making of a vexatious order is not to be taken lightly” (at [132]) but was satisfied that it was a case in which the Court should exercise its discretion and make a vexatious proceedings order.

7. At [141] her Honour determined to make an order but indicated that she did not propose to make a new order with respect to the husband’s Application in a Case filed 24 March 2015 and that:

   … [t]his 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.

Grounds of Appeal

1. The husband’s Notice of Appeal contains six grounds of appeal, five of which are largely identical to those raised in SOA 70 of 2015.  The difference arises in ground 4 of this appeal which asserts that her Honour gave weight to irrelevant facts and insufficient weight to relevant facts, resulting in a miscarriage of justice.  Notwithstanding the apparent lack of relevance of the Notice of Appeal to the vexatious proceedings order, the husband’s Summary of Argument clarifies the issues raised in this appeal.

Grounds 1 and 5

1. Under these grounds the husband submits that the primary judge “erred on the facts and the law” and that the exercise of discretion “has led to an unsafe judgment”.

2. In order to understand the husband’s submissions it is helpful to set out the following finding of her Honour:

   127.I have found that I am satisfied that the husband in this case has instituted or conducted vexatious proceedings on at least 11 separate occasions primarily in this Court, the High Court and on one occasion at VCAT. They include his:

   ·    Application in a Case filed 3 December 2009 seeking to restrain Adrian Abrahams Family Lawyers from acting on behalf of the wife;

   ·    Notice of Appeal filed 27 March 2012 against Cronin J’s orders of 28 February 2012 dismissing his application to restrain Adrian Abrahams Family Lawyers from acting;

   ·    Application in an Appeal filed 21 March 2014 to reinstate the appeal against Cronin J’s orders of 28 February 2012 which was deemed abandoned;

   ·    Application for Special Leave to Appeal to the High Court filed 9 February 2015 from the orders made by Strickland J on 13 January 2015 dismissing his application to reinstate the appeal;

   ·    Application in an Appeal filed 16 February 2015 for a review of the Registrar’s decision rejecting his Application in an Appeal for an extension of time to appeal out of time against Cronin J’s orders of 28 February 2012;

   ·    Applications in an Appeal filed 8 January 2015 and 27 January 2015 for an extension of time to appeal out of time against the orders made by Cronin J on 20 July 2010, 9 September 2010 and 5 April 2012;

   ·    oral applications that Mr Wood be restrained from acting on behalf of wife at the hearing before Strickland J on 6 May 2015 and before me on 5 and 22 May 2015;

   ·    oral application for an adjournment of the hearing before Strickland J on 6 May 2015; and

   ·    application to VCAT in relation to the Mercedes motor vehicle.

1. As emerges from his Summary of Argument, the husband’s submissions appear to be that:

   ·Only applications at first instance can be taken into account when considering an order under s 102QB and that “the pursuit of appeals” cannot be determined as vexatious conduct;

   ·At the time the wife filed her application the husband had not filed any first instance application since February 2010; and

   ·None of the applications and appeals taken into account by her Honour had been described by the judges who determined those applications as being vexatious, frivolous or lacking in merit.

2. In so far as the husband’s argument is that appeals and applications in appeals cannot be taken into account, this is clearly misconceived. As we have explained earlier, appeals are included as proceedings for the purpose of s 102QB and the primary judge was fully entitled to take the husband’s appeals into account. Further, it is abundantly clear that her Honour was also entitled to take into account the various applications in an appeal as being “an incidental proceeding in connection with a proceeding” as the definition of “proceeding” in the Act makes plain.

3. Finally, we see nothing in s 102QB that precludes a judge hearing an application under that section from taking into account the matters raised by s 102QB(6) that occurred prior to the hearing as opposed to the filing of the application, provided that the respondent is on notice that those matters may be taken into account. Such a view is confirmed by subparagraph (d) of the definition of “institute” in s 102Q(1).

4. The third aspect of these grounds raises the question as to whether it was open to the primary judge to make a vexatious proceedings order in the absence of findings in the previous proceedings that they were vexatious.  In particular the husband refers to the decision in Marsden & Winch (2013) FLC 93-560 (“Marsden”) and contends that the provision of s 102QB of the Act does not replace s 118 of the Act but “merely seeks to clarify and add to it”.

5. The Court in Marsden was dealing with s 118(1)(c) of the Act prior to its amendment in 2012 and the insertion of Part XIB into the Act at the same time. That subsection is in quite different form to s 102QB and, as was pointed out in Marsden, a finding that the proceedings were vexatious was a precondition to any order being made under s 118(1)(c) (at [145]).

6. However, s 118(1)(c) was replaced by Part XIB and has no further role to play in the determination of whether a vexatious proceedings order should be made against a person. Section 118 in its present form is limited to empowering the court to dismiss proceedings that are frivolous or vexatious. There is therefore no requirement for the proceedings in which the vexatious proceedings order is sought to be categorised as vexatious: Mbuzi v Griffith University [2016] FCAFC 10 at [99]. The operation of s 102QB(2) is conditioned on a finding under s 102QB(1) that a person “has frequently instituted or conducted vexatious proceedings”. We consider that the categorisation of the previous proceedings as vexatious is a matter for the court hearing the application under s 102QB(2) and is not dependent on findings in the earlier proceedings that those earlier proceedings were vexatious.

7. This flows from an obvious reading of s 102QB(1) but is, in any event, confirmed by the Explanatory Memorandum, which notes that the amendment to the Act was:

   … designed to provide a consistent more comprehensive legislative framework for Federal Courts to deal with proceedings brought by persons who had frequently instituted or conducted vexatious proceedings in Australian courts and tribunals, or who are acting in concert with others that have done so.

   …

   Subsection 102QB(1) expressly allows a court to take into account vexatious proceedings instituted or conducted by a person in any other Australian court or tribunal, as well as in that particular court, so that a person need not have a history of vexatious proceedings just in that particular court before the court could consider making a vexatious proceedings order against them. One of the purposes of this provision is to minimise the possibility of a person unsuccessfully pursuing vexatious proceedings in one court, and then trying again with similar vexatious proceedings in another court.

8. The primary judge was clearly entitled to consider all the applications filed by the husband and to make her own assessment as to whether they were “vexatious” as defined.  Accordingly there is no merit in this complaint.

Grounds 2 and 3

1. By grounds 2 and 3 the husband contends that he was not afforded procedural fairness.  The husband has not particularised the ground and we agree with the submissions of counsel for the wife that the husband’s Summary of Argument raises these points:

   ·That the husband was not put on notice as to the form of the vexatious proceedings order sought, and, further, that the order made by the primary judge went beyond what was sought by the wife;

   ·That the primary judge erred in denying the appellant access to subpoenaed material; and

   ·That the primary judge relied upon the judgment of Strickland J delivered 26 February 2016 and the husband was not provided with an opportunity to be heard on that judgment.

2. As to the form of the order, the husband (at paragraphs 12 and 13 of his Summary of Argument) contends that he was denied procedural fairness in that Order 1 made by the primary judge is broader than the order sought by the wife and prohibits him from instituting proceedings under the Act in any court having jurisdiction under the Act without first being granted leave to commence that proceeding pursuant to s 102QE.

3. This, he contends, goes beyond proceedings involving him and the wife, which is what the wife sought to restrain. The order as it presently stands prevents him from commencing any proceedings under the Act unless leave is granted. This would mean that were he to commence a new relationship, the effect of the order would be to prevent him from litigating under the Act with anyone, not just the wife, without leave.

4. In other cases, more circumscribed language has been used. Comparably, a s 102QB(2)(b) order made by Watts J in Mankiewicz and Anor & Swallow and Anor [2014] FamCA 579 read:

   (1)Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the applicants ... be prohibited from instituting parenting proceedings in respect to [the children] under the Act in any court having jurisdiction under the Act.

5. In Cannon & Acres [2014] FamCA 104, Benjamin J ordered that “[t]he father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the mother or the child without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act”.

6. In her Application in a Case filed on 24 April 2015, the wife sought the following order:

   That the husband be and is hereby restrained by himself, his servants or agents from filing any application and/or document in the Family Court of Australia or the Federal Circuit Court of Australia without order of such Court to do so being first had and obtained.

7. It can be immediately seen that the order made by the primary judge is limited to proceedings under the Act and is thus narrower than the order sought by the wife. This is because the jurisdiction of both courts, but particularly that of the Federal Circuit Court, extends beyond that Act. Thus the submission of the husband to the contrary must be rejected.

8. In the course of oral submissions to the primary judge, counsel for the wife referred to the form of order sought and said:

   Now, as far as my client’s submissions are as follows, in so far as the decision in Cannon v Acres is concerned, his Honour has set out the type and form of the order that your Honour may care to make.

9. Thus, the issue as to whether any order to be made should be limited to proceedings involving the wife was squarely raised.  As the husband was aware of the original form of order and also of the submission to which we have just referred, he had ample opportunity to address the form of order in his submissions.  He did not do so.  That fact points away from any procedural unfairness and this aspect of the husband’s challenge fails.

10. In this case, there was no suggestion that the husband was conducting vexatious proceedings against anyone but the wife.  We consider therefore that the order made was too wide in its scope and should have been limited to proceedings involving the wife and people associated with her.  We will therefore allow the appeal to that extent and vary the order accordingly.

11. As to the second matter raised, the complaint that the judge denied access to the subpoenaed material is not germane to the appeal in relation to the vexatious proceeding order.  It was in fact the subject of an appeal heard on 29 February 2016, which was dismissed on 4 August 2016.  There is no merit in this ground.

12. As to the third matter, at paragraph 16 of his Summary of Argument the husband contends that the primary judge’s comments in [127] are in conflict with her comments at trial (and thus denied him procedural fairness).  At the hearing her Honour sought clarification that the appeal matters before Strickland J on 6 May 2015 were not going to be relied upon in the respondent’s application. We note the following exchange that took place:

    HER HONOUR:       Based upon the history – he wasn’t relying upon the fact that your applications which will be dealt with tomorrow would fail. Is that right?

    MR WOOD: What I’m saying is that the outcome of those appeals won’t be determined if given the history of this matter.

    HER HONOUR:       Alright. Well you are relying on the earlier history, not those matters.

    MR WOOD:             Absolutely.

    HER HONOUR:       He is relying upon those matters earlier, the earlier matters of the conduct of the proceedings and on that basis we would seek to have you declared vexatious.

    (Transcript of 5 May 2015, 18–19, lines 41–45 and 1–4)

13. Counsel for the wife submits that whilst this exchange did occur in May 2015, the concession made at that point was overtaken by subsequent events.  Her Honour indicates at [30] of the judgment that “[s]ince the conclusion of the hearing before [her] all three Applications in an Appeal heard by Strickland J on 6 May 2015 have been dismissed”.

14. Counsel for the wife contends that at paragraph 46 of her Summary of Argument filed 23 September 2016 that:

    … by the time the matter was ultimately heard in October 2015, it was clear that the applications subject to the reserved judgment of Strickland J formed part of the wife’s application for a vexatious proceedings order.  In the wife’s further submissions dated 3 September 2015, the wife lists the applications at paras 6.3 and 6.7 (Appeal book, vol 2, p 232; see also Appeal book, vol 4, p 565, line 14). These applications were also addressed at para 10 of the wife’s submissions in reply (Appeal Book, vol 2, p 268).

15. The wife also points to her Honour’s invitation to the husband to address her on “what would happen if at the end of all the appeal process the appeals were unsuccessful?” (Transcript 8 May 2017, p.61, line 26) and notes that the husband declined to answer.

16. Thus, the husband was then given the opportunity to address the impact of the decisions of Strickland J and was not denied procedural fairness.

17. However, even if the husband’s submission that there was some conflict as to what proceedings would be taken into account is established (which having regard to what occurred after the hearing on the 5 May 2015 cannot be accepted), two things can be said.  The first is that in describing the applications before Strickland J on 6 May 2015 and when dealing with these matters at [89]–[102], it is clear that the applications in an appeal which Strickland J heard on 6 May 2015 and subsequently dismissed continued the consistent theme of the husband’s litigation which was to agitate by way of interlocutory applications and appeals matters which had been conclusively and finally determined years earlier — and continued to demonstrate starkly the husband’s harassment through litigation.

18. Secondly, however, we observe that her Honour said at [129]:

    Even if I am wrong and not all the proceedings which I have found to be vexatious are so, in my view the circumstances of this case are such that even a finding as to a lesser number of vexatious proceedings would be sufficient to satisfy the Court that the husband has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. It is the husband’s attempts to re-litigate issues and the interlocutory nature of the proceedings he seeks to re-litigate in the absence of any substantive proceedings and in those circumstances the futility of the proceedings that stands out in this case.

19. We agree with that assessment and we find no error on the part of her Honour.  We are satisfied that there was no procedural unfairness to the husband and that he was on notice as to the fact that his appeals before Strickland J on 6 May 2015 were likely to be taken into account if judgment was handed down before the hearing.  In any event, even if it could be said that he was not afforded procedural fairness, such a breach had no bearing on the outcome of the hearing and does not warrant the setting aside of the current orders (Stead v State Government Insurance Commission (1986) 161 CLR 141).

Ground 4

1. Ground 4 goes to the weight placed by the primary judge on particular matters.  Again, this ground has not been particularised and we adopt counsel for the wife’s submissions (at paragraphs 56, 57, 64, 65 and 67).  The husband asserts that the primary judge erred:

   ·By relying upon a Victorian Civil Administrative Tribunal (“VCAT”) application made by the husband against ML Pty Ltd ([20], [121]–[127]);

   ·In placing weight on the complaints made by the husband to the Legal Services Commission, Victoria Legal Aid and the Law Institute Ethics Committee ([14]); and

   ·In relying upon possible criminal proceedings against the husband that is said arise from the contents of a letter subject to subpoena ([111], [120]).

The VCAT application

1. At paragraph 17 of his Summary of Argument the husband contends that her Honour erred by taking into account the application to VCAT as the application was made against ML Pty Ltd only and that the respondent was joined to the application by VCAT and not him.  In our view, the husband misapprehends the point of the inclusion of the VCAT application.  As her Honour clearly indicates at [124] and [125], the husband’s application was dismissed on the grounds that it was misconceived and he did not explain why when there were proceedings in the Family Court for property settlement he was making an application to VCAT with respect to the key to a motor vehicle driven by the wife.

2. Her Honour concluded, in our view appropriately, that where there were proceedings before the Family Court for property settlement the husband’s application was totally misconceived and on the balance of probabilities intended to harass and annoy the wife.  Whether she was initially a party to the proceedings or subsequently joined was not to the point.  Given the vehicle was in the wife’s control, at some point the proceedings were going to affect her.

3. No error has been demonstrated.

Legal Services Commissioner complaints

1. The husband submits (at paragraph 18 of his Summary of Argument) that the primary judge erred in placing weight on the complaints made by him to the Legal Services Commissioner and other bodies.

2. We accept, as counsel for the wife submitted, that her Honour noted at [14] under the history of proceedings that the husband made numerous complaints against the wife’s solicitors and his employee to the Legal Services Commissioner, Victoria Legal Aid and the Law Institute Ethics Committee all of which, including an appeal against the decision of the Law Institute Ethics Committee, were dismissed.  However, it is clear that her Honour does not take them into account at [127] as the basis for a finding that the husband has conducted vexatious proceedings and does not include them in one of the 11 separate occasions found by her Honour to have involved the institution or conduct of vexatious proceedings.

3. As we have already indicated, her Honour was well entitled to find on the basis of those 11 matters that the requirements in s 102QB(1) had been met.

Possible criminal proceedings

1. The husband (at paragraph 20 in his Summary of Argument) takes exception to the primary judge’s comments in [120] in which she says:

   What is clear from both the husband’s written and oral submissions is that the husband is, and has been, intent on demonstrating what he considers to be an injustice by any means available to him and with complete disregard to the merits of the particular application or its relevance to the matters that he seeks to prove. I am satisfied that the husband will do anything to prove his point whether or not there is a legal basis for doing so, irrespective of whether the particular application he makes has any merit or the futility of the relief he seeks.  I am also satisfied, as demonstrated by his written submissions in response to the wife’s objection to his subpoena and his oral submissions that make clear the possibility of proceedings in other venues, that he has instituted and conducted proceedings in this Court for purposes unrelated to those proceedings.

2. The husband asserts that these comments can be seen to relate to his referral of the contents sought in the subpoena to the police.  This submission is misconceived as there is nothing in [120] that suggests possible criminal proceedings or any prejudicial comment about the husband other than being satisfied that the husband’s litigation, as outlined by her Honour, has been vexatious.

Ground 6

1. Ground 6 asserts that the primary judge conducted herself in such a way that a fair-minded observer might reasonably apprehend that her Honour might not have brought an impartial and unprejudiced mind to the proceedings.

2. The test for apprehended bias has already been discussed.

3. As summarised in submissions by counsel for the wife (at paragraph 75 of the wife’s Summary of Argument), the husband identifies two matters which he says gave rise to apprehended bias on behalf of the primary judge:

   ·Her Honour relied upon the judgement of Strickland J delivered 26 February 2016 (see [92], [94], [97]–[98]); and

   ·Her Honour prejudged other matters yet to be agitated.

4. The husband also continues to agitate his claim (at paragraphs 23–27 of his Summary of Argument) that failure to allow him access to the subpoenaed material which he sought and failure to disqualify the wife’s counsel denied him procedural fairness and led a fair-minded observer to apprehend her Honour might not have brought an impartial and unprejudiced mind to the proceedings (Ebner).

5. We observe that “[t]he mere fact that a judge has previously decided cases adverse to a party does not provide a basis for a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to bear on the case at hand” (MTI v SUL (No 2) [2012] WASCA 87). Nothing has been advanced by the husband to identify a logical connection between the matters said to give rise to the apprehended bias (other than deciding issues against him) and the real not remote possibility of a deviation from the course of deciding the case on its merits (Ebner).

6. In so far as the husband seeks to rely upon her Honour’s reliance on the judgment of Strickland J delivered 26 February 2016 and the notion that her Honour had prejudged other matters yet to be agitated, the submission cannot be sustained. There is nothing to suggest bias or apprehension of bias on the part of her Honour referring to the 26 February 2016 judgment of Strickland J and notwithstanding that the primary judge referred to some outstanding matters when outlining the history of the proceedings, she made no findings or included any discussion in relation to them, and the basis of her findings in relation to vexatious proceedings appears at [127]. This ground must therefore be dismissed.

Conclusion

1. We have found no merit in the grounds of appeal, save for the form of the vexatious proceedings order which we found to be too wide.  This can easily be accommodated by re-exercising the primary judge’s discretion and varying Order 1 of the orders made on 7 March 2016 to confine the prohibition on the institution of proceedings, without leave, to proceedings involving the wife or her family or legal advisors, both past and present.

Application to Adduce Further Evidence

1. On 26 May 2016 the husband filed an application to adduce further evidence.  In short, the application seeks:

   ·To adduce the husband’s affidavit filed at first instance on 1 April 2015;

   ·To adduce the letters (referred to as Items 201 & 202) and the itemised bills of costs of Adrian Abraham Family Lawyers (we note that the letters are not annexed to the affidavit in support) (these were the documents at issue in appeal SOA 24 of 2012); and

   ·To review the Appeals Registrar’s decision to place the judgment of Strickland J in SOA 24 of 2012 on 6 May 2015 in the appeal books.

2. The first of these, the husband’s affidavit, was before the primary judge and counsel agreed that it should properly form part of the Appeal Book.  We admitted it on that basis.

3. As to the second, as counsel for the wife submitted, these letters formed the basis of unsuccessful attempts by the husband to have them admitted in earlier proceedings.  They are not relevant to the subject matter of these appeals, are controversial and will not be admitted.

4. As to the third, although the husband describes this document as the judgment of Strickland J of 6 May 2015, that was in fact the hearing date, and the date the judgment was delivered was 26 February 2016. We have dealt with this (at [158]–[165] above) because it arose as part of grounds 2 and 3 and we have found no merit in this ground. The judgment will thus continue to form part of the appeal book.

5. Accordingly, other than to admit the husband’s affidavit of 1 April 2015 which we received as part of the appeal books, the application will be dismissed.

Costs

1. The wife sought an order for costs in the event that the appeals were dismissed.  The costs were quantified as $19,997.  The husband was given an opportunity to make submissions in writing about the amount sought but declined the offer.  The husband opposed an order for costs on the basis that the issues in the appeals raised important matters and even if the appeals were unsuccessful no order for costs should be made.

2. The general position under s 117 of the Act is that the parties are to bear their own costs of the appeal (s 117(1)). However, where the circumstances justify a different order the Court may make such order as it thinks fit (s 117(2)). In determining whether such circumstances exist the Court must have regard to the matters set out in s 117(2A).

Discussion

1. The wife sought an order for costs if the two appeals were dismissed on the basis that the appeals had been wholly unsuccessful (s 117(2A)(e)). Whilst we have allowed Appeal SOA 21 of 2016 in part, that issue was only a very small part of the two appeals and the gravamen of the husband’s submissions was that that her Honour should have disqualified herself and that no order should have been made under s 102QB. On both appeals these arguments failed and the wife incurred expense in responding to the appeals. We agree with the comments of the majority in Mankiewicz and Anor & Swallow and Anor (2016) FLC 93-725 that it is difficult to conceive of circumstances where an unsuccessful appeal against a vexatious proceedings order would not justify an order for costs. It is appropriate that an order for costs in favour of the wife be made.

2. Rule 19.18(1) of the Family Law Rules 2004 (Cth) provides:

   (1)The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

3. The wife’s costs, calculated in accordance with the scale in Schedule 3 of the Family Law Rules 2004 (Cth), were $19,797.70.

4. In the circumstances we propose to order the husband to pay the wife’s costs fixed in the sum of $19,000.

I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Aldridge JJ) delivered on 11 October 2017.

Associate:     

Date: 11 October 2017