Scott
[2023] FedCFamC1A 161
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scott [2023] FedCFamC1A 161
Appeals from: Munayallan & Scott (No 5) [2021] FedCFamC1F 284
Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal numbers: NAA 256 of 2023
NAA 258 of 2023File number: SYC 59 of 2010 Judgment of: AUSTIN J Date of judgment: 22 September 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed two applications in an appeal – Where the first application seeks review of the appeal registrar’s decision to reject and not file the applicant’s Notice of Appeal – Where the intended appeal would commence new proceedings in contravention of the vexatious litigant injunction previously made against the applicant – Where the second application seeks leave to appeal against orders made in December 2021 – Where the December 2021 orders were amended in February 2023 under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where there is no evidence to explain the applicant’s delay in appealing the orders – Where the material upon which the applicant relies is not sufficient to persuade an exercise of discretion in his favour – Applications dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII and Pt XIB, s 102QE
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 10.13 and r 13.38
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27
Pencious & Searle (2017) FLC 93–805; [2017] FamCAFC 210
Number of paragraphs: 36 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 256 of 2023
NAA 258 of 2023
SYC 59 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SCOTT
Applicant
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 14 September 2023 is dismissed.
2.The Application in an Appeal filed on 15 September 2023 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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the dismissal of two Applications in an Appeal, filed respectively by the applicant on 14 and 15 September 2023.
The Application in an Appeal filed on 14 September 2023 (“the first application”) pertains to the applicant’s intended appeal from orders made by the primary judge on 11 August 2023 to finally conclude the matrimonial financial cause between the applicant and his former spouse under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The applicant seeks this relief by the first application:
(a)review of the appeal registrar’s decision to reject and not file his Notice of Appeal, first submitted by him to the registry on 8 September 2023 (Order 1);
(b)confirmation that his Notice of Appeal was competently filed on 8 September 2023 (Order 2); and
(c)permission to adduce further evidence (Order 3) – presumably in the appeal.
The Application in an Appeal filed on 15 September 2023 (“the second application”) seeks leave to belatedly appeal from orders made by the primary judge on 21 December 2021, during the pendency of the financial cause.
The two applications were supported by two affidavits sworn by the applicant on 13 September 2023, but filed simultaneously with the two applications. The text of the affidavits is identical. Only the annexures are different.
In each application, the applicant informed the Court he wanted the applications determined in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). His request is accommodated.
Brief background
Proceedings between the spouses under the Act were first commenced by the applicant in 2010 but were discontinued for a period after they reconciled.
The proceedings were revived by 2014, after the spouses finally separated. They contested both parenting and financial causes.
Orders were made to finalise the parenting cause between the spouses in August 2019. The applicant’s appeal from those orders was deemed abandoned and his application to re-instate the appeal was dismissed in December 2019. The applicant’s subsequent applications within original jurisdiction to vary the parenting orders failed and his applications for leave to file appeals out of time from those dismissal orders were dismissed in July 2021.
The financial cause between the spouses continued, while parallel proceedings concerning corporations and parcels of real property were conducted between the spouses and multiple other parties in the Supreme Court of NSW.
In August 2021, the applicant’s applications for the primary judge’s disqualification and an adjournment of the final hearing were dismissed. The applicant’s appeal from those orders was later dismissed in April 2022.
On 21 December 2021, the primary judge made various substantive and procedural orders. Relevantly, they included a vexatious litigant injunction against the applicant (Order 1), interim spousal maintenance orders (Orders 4 and 5), and a costs order (Order 7). The orders were later amended under r 10.13 of the Rules (“the slip rule”), apparently on or about 23 February 2023, some 14 months afterwards.
The spouses’ financial cause was finally tried in February 2023. By then, other parties were joined to the cause (including the liquidator of a corporation formerly controlled by the applicant) and part of the proceedings pending before the Supreme Court of NSW had been transferred for determination in conjunction with the matrimonial cause.
The primary judge pronounced orders on 11 August 2023 to finalise the financial cause between the spouses.
The final orders, in large measure, facilitated the completion of the liquidation of the corporation formerly controlled by the applicant (“[I Pty Ltd]”). In summary, her Honour declared I Pty Ltd to be the beneficial owner of certain property (Order 1), authorised the liquidator to reject proofs of debt received from certain persons and corporations (Order 2), authorised the liquidator to pay certain creditors of I Pty Ltd (Order 4), directed the liquidator to pay any surplus funds to the wife and her lawyers (Orders 6 and 7), fixed the liquidator’s remuneration for past work (Order 3), and enabled the liquidator to approach the court for further orders concerning remuneration (Order 5).
Additionally, the applicant was ordered to pay the wife up to $3,566,956 (Orders 8 and 9), the applicant’s liabilities to the wife, created by interlocutory orders, were declared to be judgment debts (Order 10), and the applicant was ordered to pay the liquidator’s legal fees (Order 12). Otherwise, a host of other procedural orders were made (Orders 11, 13, 14, 15, 16, 17, 18 and 20), and any other outstanding applications were dismissed (Order 19).
The second application
The second application represents a request for permission to bring an appeal against the orders made on 21 December 2021 (as amended under the slip rule on or about 23 February 2023).
It should be acknowledged that the amended orders are in a substantially different form from that in which they were originally published and do not state the date of their amendment. The applicant contends the orders were amended on 23 February 2023 and he did not receive a copy of the amended orders until it was sent to him by email from the primary judge’s chambers on 27 February 2023, which facts are accepted as being correct for present purposes.
The applicant attempted to file an appeal from the orders on 24 March 2023, within 28 days of his service with the amended orders. The applicant’s email, together with those sent afterwards, were sent to an incorrect email address. The appeal registrar did not receive the emails, of which the applicant was informed on or about 12 April 2023, by which time the proposed appeal was out of time.
The applicant then did nothing about filing any application for leave to extend time within which to bring the appeal until the second application was filed on 15 September 2023. By then another five months had elapsed.
The evidence adduced in support of the second application is seriously lacking. There is no evidence of which particular order or orders made on 21 December 2021 (as amended on 23 February 2023) is or are the subject of intended challenge. There is no draft Notice of Appeal to expose the nature of the intended challenge to the order or orders. There is no evidence to explain the applicant’s undue delay between April 2023 and September 2023, even if one accepts the delay between February 2023 and April 2023 as having been reasonable.
The interim spousal maintenance orders expired upon the pronouncement of final judgment in August 2023, so there is now no point to any appeal from those orders. The costs order made on 21 December 2021 was subsumed by the orders made on 11 August 2023 (Order 10(c)), so the separate appeal from the original costs order is moot. The first application, addressed below, concerns the intended appeal from the orders made on 11 August 2023.
By process of elimination, it is likely the applicant’s intended appeal from the orders made on 21 December 2021 relates only to the vexatious litigant injunction, but without some coherent explanation being advanced for why it is asserted that order was wrongly made there is no reasonable basis upon which to extend time for the applicant to appeal from it. Poignantly, the applicant has since been declared a vexatious litigant in the Supreme Court of NSW twice, in [2022], and also in the Federal Court of Australia in [2023]. The latter two of those three orders concern parties and property integral to the matrimonial cause finalised by the primary judge.
The material upon which the applicant relies is not sufficient to persuade an exercise of discretion in his favour extending time within which to appeal, according to established legal principles (Jackamarra v Krakouer and Anor (1998) 195 CLR 516; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Gallo v Dawson (1990) 93 ALR 479 at 480).
The first application
Any appeal from the final orders made by the primary judge on 11 August 2023 had to be filed by 8 September 2023.
The applicant undoubtedly tried to file an appeal from those orders on 8 September 2023, but his Notice of Appeal was rejected by the appeal registrar. The first application requires the review of that decision by the appeal registrar, which review entails the de novo consideration of the applicant’s lodgement of the Notice of Appeal for filing within time.
By an email sent at 4.16 pm on 8 September 2023, the registrar informed the applicant of several problems he faced, the most significant of which was that the intended appeal would commence new proceedings in contravention of the vexatious litigant injunction made against him in December 2021.
Relevantly, the injunction was made against the applicant in these terms:
1.Pursuant to s 102QE of the Family Law Act 1975 (Cth) (“the Act”) a vexatious proceedings order be made against [the applicant], born [date], and he is prohibited from instituting proceedings under the Act against or in relation to [the wife], born [date] or the children, [the youngest child], born [date]; and [the eldest child], born [date], without first having been granted leave to commence that proceeding pursuant to section 102QG of the Act.
a. This vexatious proceeding order does not apply to:
…
ii.Any appeal from these Orders provided such appeal is filed within the time prescribed under r 13.03 of the current Rules or such other time as is permitted by order of the Full Court
(As per the original)
Notations to the order inform the applicant that, if he seeks leave to file any new proceedings he must file an application and an affidavit in compliance with s 102QE(3) of the Act. That admonition was repeated by the appeal registrar in the covering email.
Little more than an hour later, at 5.30 pm, the applicant sent a reply email to the registrar asserting: first, that Order 1(a) made by the primary judge on 21 December 2021 excluded appeal proceedings from its operation; and secondly, that Order 16 made by the primary judge on 11 August 2023 permitted him to file the appeal.
The applicant was wrong on both counts.
Order 1(a) made on 21 December 2021 exempted only appeals brought from the vexatious litigant injunction itself – not appeals brought from any order at all. The intended appeal from the substantive financial orders made on 11 August 2023 is a new proceeding under the Act (Pencious & Searle (2017) FLC 93–805 at [77]–[88]), so the applicant requires leave under Pt XIB of the Act to relax the operation of the vexatious litigant injunction to bring the appeal.
Order 16 made on 11 August 2023 was only made to clarify that an appeal from the suite of orders made that day was not precluded by the terms of either Orders 14 or 15, which only stayed further applications brought by the applicant pending his payment of certain costs and interest (Order 15) and dictated how any fresh applications brought by either the applicant or other named persons within original jurisdiction would be listed for hearing (Order 14). Order 16 did not override the vexatious litigant injunction and give the applicant freedom to bring an appeal from the judgment determining the financial cause.
The appeal registrar correctly rejected the applicant’s Notice of Appeal, so the first application will be dismissed.
If the applicant still wants to pursue an appeal from the orders made on 11 August 2023, he will need to make an application under Pt XIB of the Act for leave to suspend the vexatious litigant injunction and allow him to bring the appeal. He will also now need to bring an application for leave to bring the appeal out of time. He has not yet made either application.
Disposition
The two applications are dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 22 September 2023
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