Orders
Orders of the court
SYC 9722 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PIERSON
Applicant
AND:
MR ROMILLY
Respondent
ORDER MADE BY:
SIMPSON J
DATE OF ORDER:
12 JUNE 2025
THE COURT ORDERS THAT:
1. Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”), the Applicant wife be prohibited from instituting proceedings against the Respondent husband in any court having jurisdiction under the Act without first obtaining leave pursuant to s 102QE of the Act.
2. The Applicant wife pay the costs of the Respondent husband on an indemnity basis in the amount of $45,738.40 within 90 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Evidence
Evidence Before The Court
Section 102QB(6) of the Act sets out as follows:(6) For the purposes of subsection (1), the court may have regard to:(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and(b)orders made by any Australian court or tribunal; and(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.The evidence The husband’s Senior Counsel took me to the husband’s chronology which set out the history of proceedings between the parties, both in this country and in France. Senior Counsel for the husband submitted that, in the context of a permanent stay upon proceedings in this court having been ordered in April 2019, all proceedings brought by the wife after that order was made must be seen in that context (such that every attempt by the wife to re-agitate proceedings here, ought be described as vexatious given that they were “an abuse of process” and, or, were commenced “without reasonable ground”, and thus readily come within the definition of vexatious proceedings in s 102Q(1) of the Act). I was referred to the judgment of Harper J in Morse & Duarte (No 8) [2024] FedCFamC1F 639 (“Morse & Duarte”) and His Honour’s consideration of the exercise of the court’s power to make vexatious proceedings orders. I respectfully refer to and adopt His Honour’s summary at paragraph 63, of authority about the principles to be applied in exercising power to restrict vexatious proceedings: The power to prohibit or restrict vexatious proceedings is well known across many jurisdictions. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J, in a passage followed many times (see for example Pencious & Searle (2017) FLC 93-805 (“Pencious”) at [75]), set out the following principles to determine when proceedings are vexatious, which I respectfully adopt: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 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 … are to be found, … , 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.
Decision
Reasons for decision
Neither party suggested that there were other matters which I ought to take into account.Conclusion – Justifying circumstances Each of the parties submitted that justifying circumstances existed for the making of a costs order. Given the matters addressed above, I find that there are circumstances which justify a costs order being made in favour of the husband against the wife. The husband sought that the wife pay his costs on an indemnity basis. In compliance with r 12.13(4) of the Rules, the husband annexes to his costs submissions the costs agreements by which he is bound as to the terms of the engagement of his lawyers. An order for indemnity costsis a significant departure from the normal standard and requires exceptional circumstances (Harris & Dewell (No 2) [2018] FamCAFC 180), where the Full Court said:23.In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.24.That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.25.The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”(Footnotes omitted) In Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, Shepherd J provided some examples of circumstances that might justify an order for indemnity costs. I respectfully refer to and adopt the guidance drawn from that decision by Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, where His Honour provided the following examples:(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.(c)Evidence of particular misconduct causing loss of time to the court and to other parties.(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.(e) An imprudent refusal of an offer to compromise.(Citations omitted)