RK and SK
[2010] FamCAFC 142
•12 August 2010
FAMILY COURT OF AUSTRALIA
| RK & SK | [2010] FamCAFC 142 |
| FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – litigant subject to orders under s 118 Family Law Act 1975 (Cth) (“the Act”) – where the trial Judge refused to grant leave to the husband to institute proceedings under s 79A of the Act – where the husband’s application sought to re-litigate issues which have been finally determined by the trial Judge and the Full Court and by the High Court’s refusal of special leave to appeal – application dismissed. |
| Family Law Act 1975 (Cth) ss 79A, 118 |
| Henry v Henry (1996) 185 CLR 571 |
| APPELLANT: | Mr RK |
| RESPONDENT: | Mrs SK |
| FILE NUMBER: | MLF | 4544 | of | 2008 |
| APPEAL NUMBER: | SA | 47 | of | 2008 |
| DATE DELIVERED: | 12 August 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Faulks DCJ, Finn and Strickland JJ |
| HEARING DATE: | 8 July 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 465 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr RK in person |
| SOLICITOR FOR THE RESPONDENT: | No appearance - application heard ex parte |
Orders
The application by the husband for leave to appeal the orders made by the Honourable Justice Dessau on 4 June 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym RK & SK is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 47 of 2008
File Number: MLF 4544 of 2008
| Mr RK |
Appellant
And
| Mrs SK |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr RK (whom it is convenient to refer to as “the husband”) for leave to appeal an order made by Dessau J on 4 June 2008 in which her Honour dismissed an application by him for leave to institute proceedings in the Family Court of Australia.
We begin these reasons with an outline of the long history of proceedings under the Family Law Act 1975 (Cth) (“the Act”) involving the husband. This history will explain why it was necessary for the husband to seek leave to institute proceedings; it will also provide the necessary factual background to our decision.
History of proceedings
In November 1999 Brown J heard property settlement and other proceedings under the Act between the husband and his former wife, Mrs SK (“the wife”). Her Honour delivered reasons for judgment and made orders with respect to property on 20 December 1999. Those orders provided for the husband to transfer his interest in the former matrimonial home to the wife; for him to pay her the sum of $96,796; and for each to retain the chattels in their respective possession. Her Honour’s orders also restrained the husband from leaving Australia until all outstanding monies were paid.
An important aspect of her Honour’s decision was that although she found that there were, or had been, some form of financial proceedings between the parties in Iran (where both had been born and were married), she would not stay, as sought by the husband, but rather permitted, the wife’s application for property settlement to proceed in Australia. (In so deciding her Honour applied the principles contained in the High Court decision of Henry v Henry (1996) 185 CLR 571.)
An appeal by the husband against Brown J’s orders of 20 December 1999 was dismissed by the Full Court on 5 September 2000, save that the Full Court amended the amount which the husband had to pay the wife from $96,796 to $76,800 (in order to take account of an error in the valuation of certain jewellery in the wife’s possession).
On 1 February 2001 Brown J made orders sentencing the husband to four months’ imprisonment for contravention of certain of her property settlement orders of 20 December 1999, and also restraining him from instituting further proceedings under the Act without the leave of the Court. A similar restraining order had been made against the husband by Carter J on 28 April 2000.
On 15 March 2001 the Full Court heard and dismissed an appeal by the husband against the orders of Brown J of 1 February 2001, save for varying slightly her Honour’s order restraining the husband from instituting further proceedings under the Act.
On 15 February 2002 the High Court refused the husband’s application for special leave to appeal the decisions of the Full Court delivered on 5 September 2000 and on 15 March 2001, with Gleeson CJ observing that there was “no reason to doubt the correctness of either decision of the Full Court”.
An application filed by the husband on 7 March 2002 seeking leave to file an application under the Act (apparently seeking the discharge of the orders restraining him from leaving Australia) was dismissed by Wilczek J on 5 April 2002. An appeal against that decision was heard by the Full Court on 3 June 2002, and dismissed on 21 June 2002.
Further applications by the husband to the Full Court (including for the issue of a certificate under s 95(b) of the Act to permit him to appeal to the High Court) were heard by the Full Court on 18 September 2002, and dismissed on 26 September 2002
A further application by the husband filed on 29 October 2002 seeking leave to file an application (apparently for “a review” of Brown J’s orders of 20 December 1999) was dismissed by Joske J on 28 November 2002. An application for leave to appeal that decision was dismissed by the Full Court on 12 June 2003 “on the papers” (that is, without an oral hearing).
On 23 December 2002 Guest J made orders requiring the husband to deliver to the wife the duplicate Certificate of Title in relation to the former matrimonial home and also orders to provide for the situation if the husband failed to deliver the Certificate to the wife. An appeal by the husband against those orders was heard by the Full Court on 18 June 2003, and dismissed on 11 July 2003.
On 3 November 2003 Mushin J refused the husband leave to file an application seeking the discharge of the orders restraining his leaving Australia. On February 2004 the Full Court dismissed (“on the papers”) the husband’s application for leave to appeal Mushin J’s decision.
On 30 January 2004 Brown J made orders discharging the order restraining the husband from leaving Australia and releasing his passport to him. However, her Honour otherwise refused the husband’s application for leave to issue further proceedings. On 17 May 2004 the Full Court dismissed the husband’s application for leave to appeal Brown J’s refusal to grant him leave to issue further proceedings. In its reasons for judgment the Full Court repeated an observation made by the Full Court in its judgment of 5 February 2004, that absent a successful application under s 79A of the Act, the issues determined by Brown J in December 1999 (as altered by the Full Court in September 2000) “must now be considered to be fully determined.”
On 1 December 2004 Joske J dismissed a further application by the husband (filed 26 November 2004) whereby, as his Honour understood it, the husband sought to re-agitate issues originally determined by Brown J.
On 10 December 2004 Kay J dismissed an application filed by the husband on 6 December 2004 seeking to review a decision of the Southern Region Appeal Registrar to accept a document which the husband wished to file. The Full Court heard an application for leave to appeal against Kay J’s decision on 20 June 2005 and made orders dismissing that application on 29 July 2005. On 14 November 2005 the High Court refused the husband special leave to appeal that decision of the Full Court.
On 1 May 2006 Bennett J dismissed a further application by the husband for leave to institute proceedings against the wife for the transfer to him of certain property. On 4 July 2006 the Full Court dismissed (“on the papers”) the husband’s application for leave to appeal Bennett J’s order. In its reasons the Full Court can be seen as agreeing with Bennett J’s view that the Court did not have power to make any further orders in relation to the parties’ property absent a successful application under s 79A of the Act.
On 8 February 2007 the High Court refused the husband special leave to appeal the Full Court’s decision of 4 July 2006 which had upheld Bennett J’s refusal to grant the husband leave to issue proceedings.
On 9 May 2007 Dessau J dismissed a further application filed by the husband on 10 April 2007, seeking leave to proceed with an application for the return of property. Her Honour observed that the property which the husband sought to have returned to him comprised “the precise assets” which had been the subject of his application which Bennett J had dismissed on 1 May 2006. Dessau J also acknowledged that the husband may have been attempting to rely on s 79 A of the Act, but she concluded that there was nothing in his material to distinguish in substance the application before her from the application which was before Bennett J on 1 May 2006. On 26 July 2007 the Full Court dismissed (“on the papers”) an application by the husband for leave to appeal Dessau J’s decision of 9 May 2007.
On 29 August 2007 Guest J dismissed a further application filed by the husband on 31 July 2007 seeking leave to institute proceedings under the Act. On 5 February 2008 the Full Court dismissed (again “on the papers”) an application by the husband for leave to appeal Guest J’s decision of 29 August 2007.
On 4 June 2008 Dessau J heard and dismissed a further application by the husband (filed on 20 May 2008) for leave to institute proceedings in this Court.
The hearing of the present application for leave to appeal
It is the husband’s application for leave to appeal the orders of Dessau J of 4 June 2008 which is now before us. Although directions were originally made for the husband’s application for leave to appeal to be heard on the basis of written submissions only, it was decided once those submissions were received, that it would be useful if, notwithstanding the inevitable delay involved (given the number of matters waiting to be heard by the Full Court), the husband was to be provided with an oral hearing of this application for leave to appeal. Such a course would provide the husband with the best possible opportunity to establish the matters necessary to persuade the Court that he ought to be given leave to initiate proceedings under s 79A of the Act.
We would also explain at this point, particularly as this was a matter of concern to the husband at the hearing before us, that it was not necessary for the wife to attend that hearing. One of the principal reasons why orders are made restraining a party from instituting (without the leave of the Court) further proceedings under the Act, is to relieve the other party to previous proceedings involving the first mentioned party, from the burden of further court appearances. That purpose would be defeated if the other party was required to appear (at least in the first instance) on an application for leave to appeal against such a restraining order. Of course, if the Court was minded to grant leave to appeal such a restraining order, it would be necessary to adjourn the hearing of the application for leave to appeal in order to give the other party an opportunity to be heard on that application.
It is relevant to mention in connection with the position of the wife, that we understood the husband to submit (orally) at the hearing before us on 8 July 2010 that one of his purposes in now pursuing the proceedings is to find out the wife’s current address, which he apparently does not know. Given the long history of these proceedings, it is understandable that the wife would not want her current address disclosed to the husband. But leaving that consideration to one side, such an objective on the part of the appellant/applicant is not a proper function of an appeal.
It should also be mentioned at this point that the husband appeared from his oral submissions to us to be under the misapprehension that the original trial Judge in his proceedings, being (Brown J), gave him leave to appeal her decision (and presumably the subsequent decisions of other judges.) We can only assume that in this regard the husband is referring to the following observations made by Brown J at the conclusion of her reasons for judgment delivered on 1 February 2001 (in which she sentenced the husband to a term of imprisonment for contravention of orders and also restrained him from instituting further proceedings without the leave of the Court):
56. For the husband’s benefit, I repeat that he has the right to file a Notice of Appeal against some or all of the orders made by me today. He has said he will do that “tomorrow”. That is his right. He cannot continue to file applications seeking to re-litigate the applications for property and spousal maintenance orders. Into that category come any application seeking different property orders or seeking a review of or appeal against orders made this day, including the order for imprisonment. His right of appeal is a right to appeal to the Full Court, not to me or any other judge sitting at first instance.
It will be seen that her Honour was here only explaining to the husband his rights of appeal. Her Honour was not giving him leave to appeal her decision or decisions, or the decisions of any other judge, and in any event, her Honour would not have had the jurisdiction to do so – only a Full Court has the jurisdiction to grant leave to appeal a decision of a Judge of the Family Court.
The provisions of s 118 of the Act
Before referring to Dessau J’s reasons for her order which dismissed the husband’s application to be permitted to institute proceedings under the Act and which is now sought to be appealed by the husband, it will be useful to refer in more detail to the orders which restrain the husband from commencing proceedings. Before doing so, reference will be made to the provisions of s 118 of the Act which provides for the making of such restraining orders.
Section 118 provides:
(1)The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order,
and an order made by a court under paragraph (c) has no effect notwithstanding any other provision of this Act.
(2)A court may discharge or vary an order made by that court under paragraph 1(c).
The orders restraining the husband from instituting proceedings without leave
On 28 April 2000 Carter J, having made certain enforcement orders in relation to Brown J’s property orders of 20 December 1999 and also having dismissed applications made by the husband on the grounds that such applications were frivolous or vexatious, made the following order:
5. … that until further order the husband be restrained from filing any further application in this Court, save with the leave of the Court first obtained, and for the purposes of obtaining any such leave, file an application by way of a Form 8 application, supported by affidavit, which shall, in the first instance, be on an ex parte basis.
Subsequently on 1 February 2001 in the proceedings in which she sentenced the husband to four months imprisonment for contraventions of certain of her orders of 20 December 1999, Brown J having also dismissed an application of the husband on the basis that it would be an abuse of process (paragraph 44 of her reasons of 1 February 2001) made the following order:
10.That save with the leave of the Court first obtained the husband be and is hereby restrained from instituting any further proceedings under the Family Law Act 1975.
In its decision of 15 March 2001 the Full Court when otherwise dismissing the husband’s appeal against Brown J’s orders of 1 February 2001, varied her Honour’s restraining order by the addition of the following words:
“other than an application pursuant to s 112AK seeking to vary or discharge the sentence of imprisonment imposed by Order 1 of these orders upon the husband partially complying with Order 3 of these Orders.”
Thus, the second restraining order now reads:
That save with the leave of the Court first obtained the husband be and is hereby restrained from instituting any further proceedings under the Family Law Act 1975, other than an application pursuant to s 112AK seeking to vary or discharge the sentence of imprisonment imposed by Order 1 of these orders upon the husband partially complying with Order 3 of these Orders.
In relation to the many applications which the husband has made subsequent to that restraining order made by Brown J on 1 February 2001, we note in passing, that in considering either such applications or applications to appeal the refusal of such applications, some Judges have regarded Carter J’s order as being the relevant restraining order, while others have relied on Brown J’s order as amended by the Full Court on 15 March 2001.
When she made her restraining order on 1 February 2001, Brown J did not discharge Carter J’s restraining order made on 28 April 2000, and thus Carter J’s order might well be regarded as also still in force. To the extent that there might be an argument that Carter J’s order having been expressed to be “until further order” was inferentially discharged by Brown J’s order, such an argument, if correct, would have no practical consequence.
This is because there can be no doubt that Brown J’s order of 1 February 2001 remains in force, and so long as it remains in force the husband must obtain leave of the Court before instituting proceedings. That a judge at first instance or on appeal may, when dealing with an application by the husband for leave to institute proceedings, have referred to Carter J’s order rather than to Brown J’s order, would not be a material mistake of fact. The important fact is there is in existence an order restraining the husband from instituting further proceedings without the leave of the Court.
Finally, in connection with this matter, it should be observed that the words “until further order” in Carter J’s order may have been used simply to indicate that such a restraining order is always capable of being varied by a subsequent order of the Court.
Dessau J’s reasons for judgment of 4 June 2008
We turn then to Dessau J’s reasons for refusing the husband’s application to initiate further proceedings on 4 June 2008.
Her Honour began her reasons by explaining that the husband was seeking leave to institute proceedings, and that he required leave “pursuant to an order of 8 April 2000”. It can be assumed that her Honour was here intending to refer to Carter J’s order of 28 April 2000 and that the reference to an order of “8 April 2000” was a typographical error. But as we explained above, there was an order in place requiring the husband to obtain leave before instituting further proceedings, and an erroneous reference to the date of that order is an error of no consequence.
Dessau J then set out extracts from the husband’s application which was before her, before stating that “[t]he essence of the application seems to be for leave to file an application pursuant to s 79A of the Act based on ‘suppression of evidence’.”
Then having observed that there had been a long history of applications brought by the husband, her Honour continued:
5.I am concerned that although in this application [Mr RK] refers to s 79A of the Act, this application does not in fact differ from previous applications in any sufficient or substantial way. I note that when I heard another application by [Mr RK] for leave to file proceedings, on 10 April 2007, I noted then that although his application did not specifically refer to it, he appeared to be saying that his application was to set aside Brown J’s orders pursuant to s 79A of the Act. That part of my judgment is quoted by Guest J in his recent judgment as follows:
5.It seems that [Mr RK] is seeking to distinguish his current application from the previous applications, to satisfy me that it is not just a repeat of his previously unsuccessful attempts to upset Brown J’s orders. I think he is saying that this time his application is for the setting aside of Brown J’s orders, pursuant to s 79A of the Family Law Act. His application does not actually refer to that section. Although that in itself is not fatal to his application, I note there is nothing in his supporting affidavit that raises any relevant ground under s 79A of the Act or, for that matter, that goes beyond precisely what he appears to have argued before the case was decided by Brown J and in the applications since then to which I have referred. There is nothing in [Mr RK’s] material that appears to distinguish the application in substance from the application made before Bennett j on 1 May 2006. His application for leave must fail.
Her Honour then referred to the content of the husband’s affidavit in support of the application before her, saying:
8.In any event, it is only at paragraph 16, the last paragraph of his affidavit, that [Mr RK] referred to the “fraud” upon which a s 79A application would be based. He swore:
The wife by fraud did not disclose all the facts that I detailed in this affidavit, she was applicant for her asset settlement first in Iran then in Australia. She by fraud did not disclose that her asset settlement was done in Iran before. In addition by conspiracy between the wife and the translator the terms of her marriage contract was not translated then without detailing those terms in her marriage contract (pre-nuptial agreement) was submitted to the trial judge.
9.It is clear that the marriage contract, the asset settlement in Iran, the jurisdiction of the Australian versus the Iranian court, and the husband’s arguments about those issues, have been front and centre of not only the original litigation, but his various endeavours since then to upset Brown J’s orders. Nothing sufficiently new or different is raised in this application, despite a reference to s 79A of the Family Law Act, to warrant leave being granted.
10.Finally, at the end of his affidavit, [Mr RK] asserts:
The High Court of Australia accepted my case to be acted based on s 79A of the Act. Date of judgment at 9.39 am 8 February 2007.
11.I note from Guest J’s judgment that on 8 February 2007 the High Court refused the husband special leave to appeal against the orders of the Full Court on 4 July 2006. Whether or not the High Court made reference to a s 79A application on the husband’s part, I am not satisfied that it could be said that the High Court “accepted [Mr RK’s] case to be acted based on s 79A of the Act.” I recall that as the very argument raised by [Mr RK] when he was last before me in April 2007. In any event, for the reasons I have given this application continues to traverse previous material and leave to proceed shall not be granted.
The issues raised by the present application for leave to appeal
(i) Application of s 79A to this case
Having regard to the concluding remarks made by Dessau J concerning the husband’s reliance on s 79A, it will be useful for us in our consideration of the issues raised by the husband in support of his application for leave to appeal her Honour’s decision, to refer first to the husband’s apparent perceptions regarding the application of that section to his case.
In his proposed notice of appeal, filed with his application for leave to appeal, the husband states that the Full Court in its judgment of 4 July 2006 “accepted [his] case is relevant based on s 79A” and that on “8 February 2007 the High Court of Australia confirmed [his] case to be acted based [sic] on [that] law…”
Furthermore, in his oral submissions to us on 8 July 2010, the husband asserted that the High Court had said on 8 February 2007 in the second paragraph of its reasons that his case must be decided under s 79A.
As we endeavoured to explain to the husband when he was before us, neither the High Court, nor the Full Court, have ever said that his case “must” be decided under s 79A; that is, “must” in the sense that the Court must hear and therefore give the husband leave to file an application under s 79A. Rather what has been said is, that because the appeal process against Brown J’s property settlement order on 20 December 1999 has been exhausted (as it was with the High Court’s refusal of special leave on 15 February 2002), the only avenue available to the husband to set aside or vary those property settlement orders is by an application under s 79A to set aside or vary those orders.
However, the husband cannot be permitted to bring an application under s 79A unless he can persuade a court that he has available to him, or in other words, can establish, the necessary grounds required by s 79A for an application to be made under that section. To date the husband has not been able, in his many applications for leave to institute proceedings, to persuade the Court that he has such grounds available to him, and we would say at this point that we remain unpersuaded (as was Dessau J) that he has such grounds.
As Dessau J identified in her reasons for judgment of 4 June 2008, the ground or grounds on which the husband wishes to base his application under s 79A are “suppression of evidence” and/or “fraud” on the wife’s part constituted by her alleged failure to disclose in the original property settlement proceedings the monies or other assets which she had received in Iran (apparently pursuant to the parties’ marriage contract).
However, in her original property settlement judgment Brown J considered in great depth each party’s case regarding the financial proceedings between them in Iran (see particularly paragraphs 11 to 38 of her Honour’s judgment of 20 December 1999). It is important to note that her Honour stated that she was not satisfied that the wife had been “candid” about those proceedings.
Nevertheless, having considered relevant authority, her Honour decided that the property proceedings in Australia should be heard and determined. But it is also important to note that the wife’s monetary entitlement in Iran was a factor which her Honour said she would, and did in fact, take into account when assessing the wife’s financial position and ultimate entitlement under Australian law.
Thus, the issue as we understood the husband to describe it, of the wife’s being paid twice (that is, by way of property settlement in both Iran and Australia), which is the issue on which the husband wishes to base his application under s 79A, has already been considered, and importantly, dealt with, in the Australian property settlement. That issue cannot now be the basis of proceedings under s 79A. Thus, Dessau J was correct in the conclusion expressed in paragraph 9 of her reasons for judgment, and accordingly in her refusal to grant the husband leave to institute proceedings under s 79A.
(ii) The four “massive injustices” asserted by the husband
The conclusion which we have reached in the last paragraph may well be a sufficient basis for the dismissal of the husband’s application for leave to appeal Dessau J’s decision of 4 June 2008. However, we think it important in this case to satisfy ourselves that the decision sought to be appealed does not work a substantial injustice on the husband. We note in this regard that the husband’s asserts that four “massive injustices” have been imposed on him. These asserted injustices are detailed in his written material originally filed in support of this application for leave to appeal, and then in further written material provided to us at the hearing of that application, as well as in his oral submissions to us.
The first “massive injustice” was allegedly constituted by the wife concealing from Brown J the facts surrounding her matrimonial entitlements in Iran. As we explained above, Brown J was well aware of that matter, including the wife’s lack of candour about it, and took the matter into account in making her orders.
The second “massive injustice” alleged by the husband is that he lacked the necessary documents to prove his case before Brown J because the wife had stolen them. However, the husband also acknowledges in his written material that her Honour accepted that the wife did not make available documents which would be adverse to her case. This acknowledgement by the husband is correct. But he must also understand that her Honour also found that he had refused to disclose financial information, and that her Honour was therefore left to do the best she could in a case in which she found both parties to have failed to disclose all necessary material.
The third “massive injustice” alleged by the husband relates to the fact that under Brown J’s orders of 20 December 1999 the wife received the former matrimonial home in Australia and its contents in circumstances where she had already received a property settlement in Iran. We have already explained how Brown J dealt with the Iranian settlement in reaching her property settlement determination, and need say nothing further about this particular point.
The fourth “massive injustice” alleged by the husband is directed to Brown J’s finding that the husband had considerable sums of money in various overseas bank accounts at the time of the original proceedings before her Honour. Again in this context the husband raises issues of the wife’s non-disclosure and the wife’s Iranian entitlements, which are issues which we have already canvassed. As to her Honour’s findings concerning the various overseas bank accounts, reference to her Honour’s original judgment reveals that she did the best she could on the evidence then available to her about those matters.
Accordingly, we would not be persuaded to grant the husband leave to appeal the orders of 4 June 2008 on the basis of the matters which the husband claims amount to “massive injustices”.
(iii) Orders sought by the husband in proposed appeal
The final matter in the husband’s written material, which it is appropriate that we address, are the orders as set out in his proposed notice of appeal against the orders of 4 June 2008. Those orders are:
1. I seek order for the return and delivery of my property that for the second times were given to the wife, those property were listed in paragraph 43 of 1 February 2001 judgement by the trial judge which is attached.
2.I seek order for the payment of all legal costs, my losses and compensation please.
The first proposed order is best considered by reference to the following paragraphs from Brown J’s reasons of 1 February 2001:
43.In respect of the oral application for leave to file an application seeking the orders set out in paragraph (1) to (8) (which I accept the husband is making) I must look at the orders sought. He seeks an order that the [D] house be returned and transferred to him, that 2 kilograms of gold and a kilogram of gold jewellery be returned and delivered to him, that 20 Persian carpets be returned and delivered to him, that Legal Aid costs be either withdrawn or that the Legal Aid Commission withdraw the caveat on the property, that he be paid $5300 for transcript and photocopies for the Appeal Books, that the chattels and furniture in the former matrimonial home plus personal possessions be returned to him, that he be paid $18,200 for a car sold by the wife, and that he get back a number of documents (which he set out in an earlier application) which he needs for his case. The ninth paragraph contained the application to discharge the restraining order, with which I have dealt.
44.Every one of the other orders seeks to re-litigate matters that have been determined by this Court and have been the subject of an appeal to the Full Court. That appeal has been determined. The orders sought by the husband are not orders that I (or any other judge in this Court) has power to make. The application the husband seeks leave to file would be an abuse of process. On that ground alone leave should not be granted.
These observations by Brown J are undoubtedly correct, and in view of them nothing further need be said to explain why the first order now sought by the husband could not be made.
The second order now sought by the husband could only be made, at least so far as legal costs are concerned (if indeed the husband has, as a self-represented litigant, incurred such costs), if a particular application by the husband was successful. His present application which is before the Court, being leave to appeal the orders of 4 June 2008, will not succeed. “Compensation” and “losses” are not remedies available in this Court.
Conclusion
As we indicated much earlier we were prepared to give the husband an oral hearing to satisfy ourselves that no matter currently exists which would justify the husband being able to re-litigate property settlement matters in this Court. He was not able to persuade us that he should be given leave to do so. As already indicated, his application for leave to appeal the orders of 4 June 2008 will be dismissed.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 12 August 2010
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