Rilak (No 2)

Case [2022] FedCFamC1A 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Rilak (No 2) [2022] FedCFamC1A 100   

Appeal from:

Orders dated 15 February 2022;

Tsocas & Rilak (No 4) [2022] FedCFamC1F 296
Appeal number(s): NAA 48 of 2022
File number(s): SYC 2062 of 2010
Judgment of: ALDRIDGE J
Date of judgment: 1 July 2022
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant seeks to appeal against the dismissal of a recusal application, the refusal to grant leave to file an application seeking to set aside the vexatious proceedings order and procedural orders – No reasonable grounds established – Where the appeal has no prospect of success – Application for leave to appeal dismissed.    
Legislation:

The Constitution s 73

Family Law Act 1975 (Cth) ss 4(1), 69ZR, 94(1), 102NA, 102QB, 102QG

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7(1), 26, 28(3)

Federal Court of Australia Act 1976 (Cth) ss 4, 25

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)
Cases cited:

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167

Gadde & Gadde [2019] FamCAFC 116

Kabat & Garacia [2019] FamCAFC 191

Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1

Re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318

Reema & Baboor [2021] FedCFamC1A 19

Rilak [2021] FedCFamC1A 68

Rilak & Tsocas (No. 8) [2015] FamCA 1235

Rilak & Tsocas [2017] FamCAFC 26

Robeck & Robeck [2018] FamCAFC 201

Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228

Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

Tsocas & Rilak (No. 2) [2021] FedCFam1F 290

Tsocas & Rilak (No 3) [2022] FedCFamC1F 12

Yule & Junek (1979) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 63
Date of last submission: 20 June 2022
Date of hearing: Heard by way of written submissions
Place: In Chambers
The Applicant: Self-represented litigant

ORDERS

NAA 48 of 2022
SYC 2062 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

MS RILAK

Applicant

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

1 JULY 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 15 March 2022 is amended so as to include an application for leave to appeal against the orders made on 6 May 2022.

2.The Application in an Appeal filed on 15 March 2022 is dismissed.

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…

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Details
AGLC
Rilak (No 2) [2022] FedCFamC1A 100
Case
[2022] FedCFamC1A 100
Decision Date

CaseChat Overview and Summary

In the case of Rilak (No 2), the applicant sought leave to appeal a decision made by the primary judge. The nature of the dispute centred around the applicant's dissatisfaction with the primary judge's handling of contravention applications, specifically the manner in which these applications were dismissed and the subsequent expansion of the number of contravention applications on file.

The legal issues before the court involved the assessment of the primary judge's decision to dismiss the application for leave to appeal and the appropriateness of the primary judge's actions in expanding the number of contravention applications. The applicant argued that there was an error in the primary judge's decision, while the respondent contended that the primary judge's actions were justified and appropriate.

The court, in its reasoning, found that there was no evident error in the primary judge's decision to dismiss the application for leave to appeal. Given the facts and circumstances of the case, the court considered that the primary judge's decision to dismiss the application and expand the number of contravention applications was not erroneous. The court further noted that the applicant had not yet been heard on the contravention applications of her choosing, which further supported the primary judge's decision. Consequently, the court concluded that the applicant was unlikely to receive a grant of leave and that any appeal would not succeed.

Given the court's reasoning and conclusion, the application for leave to appeal was ultimately refused. The court found that there was no realistic prospect that the proposed appeal could succeed. The court's decision was based on the fact that the primary judge's actions were justified and appropriate, and there was no evident error in the dismissal of the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given that the applications are based on the same substrate of facts and the applicant is yet to be heard on the contravention applications of her choosing, I do not see an error by the primary judge in dismissing the application for leave and unnecessarily expanding the number of contravention applications on file.CONCLUSION In these circumstances the applicant is most unlikely to receive a grant of leave and it is difficult indeed to see how any appeal could succeed. It follows then that there is no realistic prospect that the proposed appeal could succeed. The application for leave to appeal must be refused.

Ratio Decidendi

Legal Principle Established

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