Sampey & Sampey
[2024] FedCFamC2F 1289
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sampey & Sampey [2024] FedCFamC2F 1289
File number(s): SYC 87 of 2013 Judgment of: JUDGE STREET Date of judgment: 16 September 2024 Catchwords: FAMILY LAW – Application summarily dismissed – proceedings are frivolous, vexatious and an abuse of process, and have no reasonable prospect of success within the meaning of s 102QAB of the Family Law Act 1975 (Cth) – application sought to re-agitate issues other previous proceedings Legislation: Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Conveyancing Act 1919 (NSW)
Cases cited: Spencer v Commonwealth of Australia [2010] HCA 28 Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 16 September 2024 Place: Sydney Counsel for the Applicant: Mr D C Eardley Solicitor for the Applicant: Stewart Law Pty Ltd Solicitor for the Respondent: Mr D Ziman of Ziman & Ziman Solicitors ORDERS
SYC 87 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SAMPEY
Applicant
AND: MR SAMPEY
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The amended initiating application filed on 27 June 2024 is summarily dismissed under s 102QAB of the Family Law Act 1975 (Cth), as having both no reasonable prospect of success and as being frivolous, vexatious and an abuse of process.
2.The respondent husband is to pay the applicant wife’s costs fixed in the sum of $10,000.00
THE COURT NOTES THAT:
A.If any further application is filed by the respondent husband in these 2013 proceedings, the matter should be referred to a Judge to consider what if any security for costs order should be made before permitting any further agitation by the respondent of issues in the 2013 property proceedings that have otherwise been finalised.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These 2013 property proceedings were the subject of final orders that were made on 10 May 2016. Those orders have been the subject of refinement and were the subject of consent final orders on 15 December 2020 before a Registrar. No Application in a Proceeding has been filed before this Court to review those orders made on 15 December 2020. There were steps taken by the applicant wife (“the wife”), understandably, to try and enforce the outstanding orders that had been made on 15 December 2020, by the filing of an Application in Proceeding for Enforcement on 6 September 2023. The Court assumes that the reason for the enforcement process, in that regard, is the six years for enforcement by sequestration order under the Bankruptcy Act 1966 (Cth), would no longer be available to the wife in respect of that judgment sum.
The matter came before a Senior Judicial Registrar on 16 April 2024, and that Senior Judicial Registrar made orders identifying the amount outstanding under the consent orders made on 15 December 2020 in was in the sum of $364,980.00. The orders also identified that, in new proceedings between the same parties commenced, under the file number SYC5293/2022, there is an outstanding costs in the sum of $10,000.00. These 2013 proceedings are not a basis upon which orders made in the proceedings that were commenced in 2022 can be re-agitated. The issues in these proceedings can only be re-agitated either in those proceedings or by an appeal. There has been no such application to agitate the orders that were made on 13 July 2023. The Court made a final order on 13 July 2023 in relation to cost in the sum of $10,000 that the wife is entitled to enforce, if she sees fit, through the bankruptcy notice procedure because that order, on no view, is stale. The orders made on 16 April 2024 also purported to finally dispose of the application for enforcement that was filed by the wife on 6 September 2023.
On 27 June 2024, the respondent husband (“the husband”) filed a document described as amended application for final orders. That amended application for final orders purported to advance the agitation of a matter under s 78 of the Family Law Act 1975 (Cth) (“the Act”), in relation to whether there was an assignment and valid rescission of an assignment of the subject matter of part of the orders that were made on a final basis in this Court in the 2013 proceedings. The Court will come back to that declaration in a moment.
The application also sought to agitate an order that the enforcement application dated 6 September 2023 be set aside. There was no application filed for any extension of time insofar as it concerns the enforcement application dated 6 September 2023. The application also sought costs under s 117 of the Act, interlocutory orders for expedition of the hearing of these proceedings and sought to restrain the enforcement of orders made by this Court, and sought to have set aside orders made by this Court in other proceedings being proceedings under file number SYC 5293/2022.
It was completely inappropriate for the husband to purport to seek to agitate the costs order made on 13 July 2023 by this Court in the 2022 proceedings and the 2013 proceedings. The only way to agitate that order was by appeal or by proper application, if it was available, to this Court. The purported amended initiating application dated 27 June 2024, on its face, is entirely misconceived. Mr Eardley of counsel, on behalf of the husband, identified that there is an undated deed of rescission, albeit that the said deed identifies as being signed in 2018, in respect of a purported assignment to a third party that is not a party to these proceedings, not joined to his application that was filed this year. Mr Eardly also contends that there could be no assignment of funds outstanding, pursuant to orders made by this Court and contends that to the extent the assignment was validly affected, it cannot be rescinded and, therefore, there is nothing for the wife to enforce in respect of the orders that had early been made finalising the 2013 proceedings and, in particular, nothing to enforce in respect of the orders made on 15 December 2020.
The Court received into evidence the following affidavits:
·Affidavit of the applicant wife dated 9 September 2024.
·Affidavit of the respondent husband dated 15 April 2024.
·Affidavit of Andrew Stewart dated 13 September 2024.
·Affidavit of Mr OO dated 13 September 2024.
The Court raised with Mr Eardley that on the face of the purported amended initiating application, it appeared the proceedings were vexatious and bound to fail, and have no reasonable prospect success within the meaning of s 102QAB of the Act. Mr Eardley wished to rely upon his case outline and maintained that there was an issue in respect of the deed of rescission that and this Court should permit that issue to be agitated.
The fact that the enforcement proceedings were finalised before the Senior Judicial Registrar on 16 April 2024, makes it even more difficult to comprehend the nature of the purported amended initiating application. To the extent that the amended initiating application seeks to agitate orders made by this Court in the 2022 proceedings, that application is patently vexatious and has no reasonable prospect of success. Given that the enforcement process had been finalised, it is not apparent to this Court that there is any matrimonial cause that permits agitation by the respondent of the issue he wants to agitate concerning whether the rescission deed was effective in respect of a chose in action. Even more concerning in that regard, the relevant parties that would have to be joined have not been joined.
What is not apparent to this Court is what was represented to the learned Deputy Chief Judge McClelland that persuaded His Honour that it was appropriate to fix the purported matter for hearing before this Court. On 26 July 2024, the learned Deputy Chief Judge McLelland made orders that the matter set down for hearing before this Court for one day and identified a timetable and made a notation that the issues to be determined in the proceedings is whether the respondent assigned her interest, pursuant to earlier orders of the Court, to PP Pty Ltd and whether such an assignment is a chose in action that can be dealt with under s 78 of the Act, together with related issues.
After final property orders have been made, it is not open to a party to simply seek to re-agitate a purported subject matter under s 78 because they wish to do so. Indeed, if there were to be any agitation as to the validity of a rescission deed, the parties to the deed have to be joined. The parties to do the deed have not been joined before the Court. On that basis alone, these proceedings are doomed to fail and have no reasonable prospect of success.
But more than that, there is currently no enforcement process on foot that would permit, relevantly to the 2013 proceedings, a subject matter under s 78 to be agitated by the husband. Mr Eardley referred to s 103 and s 105 of the Act in respect of enforcement generally, and submitted that it an enforcement issue that the Court is entitled to deliberate upon. Where there is no enforcement currently on foot by the wife before the Court, the Court does not accept that those provisions provide any proper basis for the bringing of the application that has been advanced. The submissions by Mr Eardley, in relation to the deed of recission, makes reference to a person who is said not to be a director of the company PP Pty Ltd and propounds that there is no certainty as to when the deed of rescission became operative and advances an assertion that it should be construed against the wife.
It is not apparent to the Court, on what principle it is alleged, that any such adverse construction should be advanced. Reference was made to s 38 of the Conveyancing Act 1919 (NSW), in relation to the execution process of the deed. The contention advanced by Mr Eardley is that the deed had not been validly executed and, therefore, the deed of rescission was of no effect, and the purported assignment of the benefit of the relevant Court orders remained in place to the effect that the wife was not entitled to seek to agitate the orders of this Court. There is no matter properly before the Court in relation to the rescission of the deed and –all the proper parties have not been joined.
It is not appropriate for this Court to permit the husband any further opportunity to cause these proceedings to be adjourned or further costs to be incurred in attempts to re-agitate matters that, on their face, currently have no relevant enforcement issue before this Court. The issues in which the husband seeks to agitate are ones which, on their face, appears to have no reasonable prospect of success and, certainly, none in relation to the orders made by this Court in other proceedings.
The husband’s submissions identify the inconsistent assertions and actions by the husband referable to the deed, and maintains that his conduct in February 2019 and November 2018 were consistent with him having accepted that there was an effective rescission. More importantly, the orders made by consent on 15 December 2020, make patent that the husband had accepted there had been an effective rescission given the consent nature of those orders that were not further agitated. In those circumstances, the Court is not persuaded that there is any relevant tribal issue of fact as to the efficacy of the deed of rescission that the husband should be permitted to agitate in this Court.
Even if the proper parties had been joined, the conduct of the husband identifies that he had accepted that there were liabilities arising that remained in place, in respect of which the purported deed of rescission could work no answer.
The Court has taken into account that there were orders made by a Senior Judicial Registrar on 8 July 2024, that purported to make orders extending time under r 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), for the filing of the purported amended initiating application. On no view was that extension an extension of time under the relevant rule in respect of the Registrar's decision.
Quite why the Registrar permitted a document completely inconsistent with the identity of the parties to be filed in that form is not for the Court to determine on this occasion, beyond observing that the purported extension does not give an efficacy to the amended initiating application as being an application for review of the Registrar's orders made on 16 April 2024. It does not purport to do so and to the extent that there was an extension of time, it only operates in relation to the document filed, whatever its content may or may not lack. It does not operate as a de facto extension of time for the re-agitation of a Registrar's orders, which had it been filed in time, would have been a de novo rehearing. There is insufficient merit on the face of the husband’s application to warrant any extension of time by this Court at this time. Such an extension would not be in the interest of the administration of justice.
The Court is satisfied that the amended initiating application dated 27 June 2024 is frivolous, vexatious and an abuse of process. The Court has taken into account the principles in Spencer v Commonwealth of Australia [2010] HCA 28 and is alive to the caution in exercising the Court’s summary powers. Notwithstanding that caution, the Court is clearly satisfied that there is no relevant issue of fact or arguable question of law to be agitated before this Court. The proceedings have no reasonable prospect of success, as brought by the husband. The Court is also satisfied that the proceedings are hopeless and bound to fail, and have no reasonable prospect of success within the meaning of s 102QAB of the Act.
The Court notes that if any further application is filed by the husband in these 2013 proceedings, the matter should be referred to a Judge to consider what, if any, security for costs order should be made before permitting any further agitation by the husband of issues in the 2013 proceedings that have otherwise been finally determined.
The Court notes that P Pty Ltd was placed into administration in around mid-2020. The Court also notes that the purported deed of recession was otherwise dated 2018 and was signed by both parties.
In circumstances where it is apparent that the husband has not complied with the proper process available to agitate within the timely basis of 21 days of a Registrar's decision, it is not apparent why this Court should grant the husband any indulgence by purporting to extend time in respect of his initiating application.
It is for these reasons that the Court makes the above orders.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 23 September 2024
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