Re NYY

Case [2025] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

Re NYY [2025] QCA 64

PARTIES:

NYY
(appellant)

FILE NO/S:

Appeal No 1188 of 2025
SC No 444 of 2025

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2025] QSC 29 (Freeburn J)

DELIVERED ON:

7 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2025

JUDGES:

Bond JA and Ryan and Cooper JJ

ORDER:

The appeal be dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – VEXATIOUS LITIGANT – where the appellant sought to commence a proceeding by filing an originating application with a supporting affidavit – where pursuant to rule 15 of the Uniform Civil Procedure Rules1999 (Qld) the appellant was not permitted to file the documents without the leave of the court – where the appellant’s application for leave to file was dismissed by the primary judge amongst other reasons because the claim was vexatious and lacking proper legal basis – whether the discretion of the primary judge miscarried

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – where the decision below was an interlocutory order on a matter of practice and procedure – whether the discretion of the primary judge miscarried – where the appellant was unable to demonstrate that any error of the primary judge caused her substantial injustice

Uniform Civil Procedure Rules 1999 (Qld), r 15

Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] 9 QR 141; [2021] QCA 198, applied
DU v Jackson (DCJ) [2024] QCA 122, applied

COUNSEL:

The appellant appeared on her own behalf

SOLICITORS:

The appellant appeared on her own behalf

  1. BOND JA:  The self-represented appellant sought to commence a proceeding in the trial division of the Supreme Court of Queensland by filing an originating application and a supporting affidavit.

  2. The registry referred the documents to a judge pursuant to rule 15 of the Uniform Civil Procedure Rules 1999 (Qld) and the judge directed the Registrar to refuse to issue the originating process without leave of the Court. The registry returned the documents to the appellant, unfiled.

  3. The appellant applied to the primary judge for such leave and the primary judge dismissed her application.  By the present appeal, the appellant seeks to overturn that order.

  4. For reasons which follow, the appeal should be dismissed.

    Background to the attempt to commence a proceeding in the trial division

  5. A marriage between the appellant and her husband broke down in January 2018.  There were three daughters of the marriage, presently aged about 14, 12 and 11.  For reasons which will become clear when regard is had to the nature of the allegations made by the appellant, it is convenient to refer to the appellant as the mother, to her former husband as the father and not to refer to the daughters…

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Details
AGLC
Re NYY [2025] QCA 64
Case
[2025] QCA 64
Decision Date

CaseChat Overview and Summary

The appeal in Re NYY was heard by the Queensland Court of Appeal, which was asked to determine whether the primary judge's decision to deny the appellant leave to file an originating application and supporting affidavit was a misapplication of their discretion. The appellant, who will be referred to as the mother, sought to commence a proceeding after her separation and subsequent litigation with her former husband, referred to as the father. The mother's claims were dismissed in the Family Court and on appeal, and she was denied special leave to appeal to the High Court. The mother's attempt to commence a new proceeding in the Supreme Court was thwarted by the primary judge's refusal to grant leave to file the originating application and supporting affidavit.

The court was required to decide whether the primary judge's refusal to grant leave to file the documents was an error of law or a misapplication of their discretion. The mother argued that the primary judge failed to consider her allegations of serious wrongdoing by the father, the State of Queensland, and possibly other parties. The mother claimed that she was entitled to relief under the Uniform Civil Procedure Rules 1999 (Qld) and that the primary judge's refusal to grant leave to file was an abuse of process. The court also had to consider whether the mother had demonstrated substantial injustice caused by the primary judge's decision.

The court found that the primary judge's decision was not a misapplication of their discretion. The mother's claims were considered vexatious and lacking a proper legal basis, and the court found that the primary judge was correct to refuse leave to file the documents. The court noted that the mother had already had multiple opportunities to present her claims in other courts and had been unsuccessful in each instance. The court also found that the mother had not demonstrated substantial injustice caused by the primary judge's decision. The appeal was dismissed, and the primary judge's decision was upheld.

The final orders of the court were that the appeal be dismissed, and the primary judge's decision to deny leave to file the originating application and supporting affidavit was upheld. The mother's attempt to commence a new proceeding in the Supreme Court was unsuccessful, and she was not granted leave to file the documents she sought to file. The court found that the primary judge's decision was not a misapplication of their discretion and that the mother had not demonstrated substantial injustice caused by the decision.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

For reasons which follow, the appeal should be dismissed.Background to the attempt to commence a proceeding in the trial division A marriage between the appellant and her husband broke down in January 2018. There were three daughters of the marriage, presently aged about 14, 12 and 11. For reasons which will become clear when regard is had to the nature of the allegations made by the appellant, it is convenient to refer to the appellant as the mother, to her former husband as the father and not to refer to the daughters by name. Since their separation in 2018 the mother and the father had been engaged in continuing litigation in the Federal Circuit and Family Court of Australia in respect of both financial and parenting issues. The mother told this Court during her oral argument that “I’m finished with the Family Court. There’s no other courts.” In that statement she was correct. In relation to her attempt to persuade a judicial officer of the truth of many of the allegations she now wishes to advance in the Supreme Court, she failed at first instance in the Federal Circuit and Family Court of Australia, failed on appeal, and failed in an application for special leave to appeal to the High Court of Australia. I turn to identify relevant parts of the litigation history so far. The financial proceedings between the mother and the father were largely resolved on 17 May 2022 when the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction dismissed the mother’s appeal against final property adjustment orders.[1] Parenting issues were ultimately resolved on 8 July 2022 when Baumann J made orders that the father would have sole parental responsibility for the three children, for the children to live with the father and for them to spend time with the mother on a supervised basis at a specified contact centre.[2] His Honour’s orders were upheld on appeal.[3][1]Newett & Newett (No 6) [2022] FedCFamC1A 70. The publication of the judgment under the name Newett & Newett reflected the use of a pseudonym, approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) (as at 28 November 2023). The present proceeding continues the desirable anonymisation by using the acronym used by the primary judge, namely Re NYY.[2]Newett & Newett (No 2) [2022] FedCFamC1F 439.[3]Newett & Newett (No 9) [2023] FedCFamC1A 23. The judgment of Baumann J examined the fraught history of the relationship between the mother and the father, including the mental health issues which had affected the mother during the period of the litigation. Some aspects of that history and of his Honour’s reasoning should be recorded. Parenting issues were initially dealt with by orders made on 18 April 2018 when a Judge of the Federal Circuit Court of Australia ordered -(a)the mother and the father were to have equal shared parental responsibility;(b)the children were to live with the mother; and(c)the children were to spend time with the father alternate weekends (Friday to Monday) and after school Monday to before school Wednesday in the off week – mathematically a split of time of nine nights/five nights.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Second, the documents which the mother has sought to file contain suggestions that she seeks to recover damages from the State of Queensland and, possibly, other persons. Again, because any attempt to do so would be likely to involve substantial disputes of fact, compliance with rules 9 and 11 of the Uniform Civil Procedure Rules would require that such relief should be pursued by claim and an accompanied statement of claim. And again, there is nothing which approaches a pleaded case, let alone one which is properly pleaded. If this is what the appellant is seeking to do, she has not complied with the applicable procedural rules. The appellant suffers no serious injustice in being denied leave to file the documents sought to be filed if, by filing those documents, she sought to invoke the Court’s jurisdiction to make an award of damages.Conclusion The appeal should be dismissed. RYAN J: I agree with Bond JA. COOPER J: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

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