Scott & Munayallan (No 11)
[2023] FedCFamC1F 601
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 11) [2023] FedCFamC1F 601
File number: SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 20 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the first applicant sought various declarations relating to an undertaking given in the Supreme Court of New South Wales by himself and other parties and entities – Where the first applicant sought to appear for the second applicant company – Where the Court moved on its own motion to minimise costs with an intention to hear a summary dismissal application without the appearance of the respondent – Finding that this Court does not have jurisdiction to make the declarations sought – Finding further there was no prospect of success in prosecuting the application and it was an abuse of process – Application summarily dismissed – No order as to costs. Legislation: Corporations Act 2001 (Cth) ss 471B, 477.
Family Law Act 1975 (Cth) s 45A, 45A(2), 45A(4), 45A(5), 45A(6), 45A(7), 102QB, 102QB(3).
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 67(1)(b).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.18, 2.24, 3.09.
Federal Court (Corporations) Rules 2000 (Cth) r 2.13(1)(a).
Vexatious Proceedings Act 2008 (NSW).
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 36.16(3C).
Cases cited: Amery & Kedrina (2021) 63 Fam LR 1; [2021] FamCAFC 79
Curtain & Curtain [2022] FedCFamC1A 134
Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178
Klearchos & Klearchos [2021] FamCA 375
Lindon v Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14
Munayallan & Scott (No 5) [2021] FedCFamC1F 284
Munayallan & Scott (No 6) [2022] FedCFamC1F 345
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79
Scott & Munayallan [2021] FedCFamC1F 104
Scott & Munayallan (No 3) [2021] FedCFamC1F 121
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34.
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 18 July 2023 Place: Sydney The First Applicant: Litigant in person The Second Applicant: Litigant in person (did not participate) Solicitor for the Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers (excused from attending) ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR M
First Applicant
CC PTY LTD
Second Applicant
AND: MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr M and CC Pty Ltd on 6 July 2023 is summarily dismissed.
2.The oral application made by Mr M to be joined to the Application in a Proceeding filed by Mr Hatem on 8 May 2023 is dismissed.
3.There be no order as to costs.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
On 6 July 2023, an Application in a Proceeding (“Mr M’s Application”) was filed by Mr M in his own capacity and on behalf of CC Pty Ltd as the second applicant. Mr M is the sole director and a shareholder of CC Pty Ltd.
Mr AB in his capacity as liquidator of I Pty Ltd in liquidation was listed as the respondent.
This is the second Application in a Proceeding filed since judgment was reserved in the substantive hearing before this Court in February 2023, with final submissions made in April 2023. Judgement is still reserved. Mr M and CC Pty Ltd were a party to the substantive proceedings but failed to appear at the substantive hearing, other than to seek an adjournment.
The first Application in a Proceeding (“the Hatem Application”) filed since judgement was reserved was filed on 8 May 2023 by Mr Hatem in his own capacity and on behalf of I Pty Ltd. The Hatem Application sought various procedural orders, including that Mr Hatem be joined to the substantive proceedings and that the hearing be re-opened.
On 8 June 2023, the Hatem Application was listed to proceed on 13 July 2023 via Microsoft Teams. Upon the filing of Mr M’s Application, on 10 July 2023, I directed Mr Hatem and Mr M to appear in-person on 13 July 2023 and proposed both applications be dealt with at the same time given the commonality of issues and to avoid delay.
I required Mr M to appear in-person given he is a party to the substantive proceedings, and despite having lodged a proof of debt, failed to appear to prosecute that debt and it was important that he appear on this occasion.
For completeness, the substantive proceedings are in relation to property adjustment between Ms Munayallan and Mr Scott and finalisation of proceedings transferred from the Supreme Court of New South Wales to this Court.
SHORT HISTORY
I Pty Ltd is in liquidation by an order of Black J made in January 2022, with Mr AB appointed as its liquidator.
Proceedings have continued unabated on this and other issues in the Supreme Court of New South Wales, culminating in an order made by Williams J in May 2023, declaring Mr Scott, Mr M, CC Pty Ltd, DD Pty Ltd, and P Pty Ltd as vexatious litigants, relevantly for these proceedings, in respect of Mr AB in his capacity as liquidator of I Pty Ltd, any current or former employee of AJ Financial Services (the firm Mr AB is employed at), any current and former employee at ERA Legal (Mr AB’s legal representatives), and I Pty Ltd.
INTRODUCTION
On the day of the originally scheduled hearing, being 13 July 2023, the Court received two emails from Mr M at 10.10am and 10.33am. The matter was listed to commence at 11.00am. The email received at 10.10am was as follows:
Dear Associate,
[Mr Hatem] was on this way from from his [property] in [Town AK] this morning, but his car broken down. He asked me to appear today for both of us. However I am sick and trying to clear myself up to come in.
Can you please adjourn the hearing this morning to 3pm this afternoon or any time on Tuesday 18/07/2023.
I don’t have all the other partie’s email address.
(As per the original)
And the email at 10.33am:
Dear Associate,
I ask to appear by telephone this morning, to seek a short adjournment. I am on my way to the doctor later today.
(As per the original)
My Associate sent an email in response at 10.47am as follows:
Dear Mr M,
You have failed to provide any contact information for yourself on your Application filed with the Court.
You have failed to appear in person at any prior hearing before Her Honour in this Court.
Her Honour requires a medical certificate setting out in detail precisely why you cannot attend court in person today and that certificate is to be provided to Chambers by no later than 2pm today. On that basis only, Her Honour will hear the adjournment application at 2:30pm today, 13 July 2023.
Her Honour will only entertain an adjournment application via video conference on Microsoft Teams.
Please find video conferencing details below and an instructional guide attached.
…
(As per the original)
Upon sending this email, my Associate received an email immediately:
Subject: Do not send emails to this account. This email account is closed. …
(As per the original)
The hearing commenced shortly after 11.00am. My Associate called the matter twice and once upon commencement of the hearing, with no appearance made by either Mr Hatem or Mr M.
I initially dismissed both the Mr Hatem Application and the Mr M for want of prosecution and I would deliver Reasons for Judgment for dismissing these applications.
The Court had endeavoured to accommodate Mr M’s request but he had failed to provide contact details in his filed material,[1] including a telephone number, and the email address he provided to the Court bounced back with this message in the subject line:
Do not send emails to this account. This email account is closed.
(As per the original)
[1] Contrary to Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.24.
Extraordinarily, a further email was received from Mr M at 12.09pm from the same email address which had bounced back, enclosing a medical certificate, which failed to detail his symptoms or his illness upon which a Court could base a decision to adjourn a proceeding. Mr M asked the Court to provide him with telephone dial-in details, as he said:
I don’t to video dialin.
(As per the original)
After Mr M provided, for the first time, his mobile telephone number, I returned to Court to determine whether to hear his adjournment application via telephone link. Upon hearing from Mr M, I set aside my earlier orders, granted an adjournment and listed the matter at 10.00am on 18 July 2023 on the following conditions:
(1)Mr M and Mr Hatem filed a Notice of Address for Service by close of business on 14 July 2023; and
(2)Mr M and Mr Hatem appear in-person on 18 July 2023;
and if these conditions were not fulfilled, then I may dismiss their respective application. I note that Mr M complied with both requirements, albeit the first occurring the morning of the hearing.
On 18 July 2023 at 7.33am, Mr M emailed my Chambers, seeking the hearing commence at 11.00am, as his “representative” was not available until then. Mr Hatem was carbon copied into this email and did not object. I granted the small delay in the hearing commencing.
When the matter commenced at 11.00am, Mr M appeared and sought he appear on behalf of Mr Hatem. I did not permit this. Although the Court has heard nothing from Mr Hatem since 12 July 2023, he has been included in correspondence for many weeks, including correspondence leading up to and on the day of the hearing. Mr M sought an adjournment on behalf of Mr Hatem, who he said was still having “troubles” with his transportation to Court. This application was refused.
Mr M tendered an Amended Application in a Proceeding, a Minute of Order and written submissions (Exhibit A1). The unfiled Amended Application in a Proceeding was almost identical to an Application in a Proceeding filed by CC Pty Ltd on 26 October 2022. That particular application was listed to be heard with the final hearing in February 2023 and neither Mr M nor CC Pty Ltd attended to prosecute the application.
The orders sought in the Amended Application in a Proceeding were yet again to stay the winding up of I Pty Ltd and receivership of the JJ Trust, dismiss Mr AB’s appointment as liquidator for fraud and in respect of other breaches of conduct, and that funds be held by a solicitor who has filed a Notice of Ceasing to Act. Mr M agreed that almost all of the orders sought in the joinder have been the subject of concluded litigation in the Supreme Court of New South Wales and that he and many others are now the subject of a vexatious proceedings order in that Court.
In Exhibit A1, there are four different variations of the spelling of Mr Hatem’s surname:
(1)On the cover page of the Amended Application in a Proceeding:
Filed on behalf of:
Full name [Mr … Hatem] …
(As per the original)
(2)In ‘Part A – About the parties’, his name is spelt differently;
(3)In the Minute of Order, the heading appears as:
Short minutes of order
[Mr Hateem], [Mr M] …
(4)Further in the Minute of Order, where the parties are listed:
[Mr Hattem], [Mr M]
(Applicant)
(With underline emphasis)
I asked Mr M what the correct spelling of Mr Hatem’s name is. Mr M could not tell me and only after looking at documents, did he identify the differences in spelling. I have chosen the spelling of Hatem for these proceedings.
It is most unusual for a person to spell their surname differently in Court documents. One explanation may be that they did not complete the documents.
Additionally, the written submissions Mr M tendered were identical, including spelling mistakes, as those filed by Mr Hatem in his application.
Mr Scott attended Court on 18 July 2023 and he is entitled to so do as an observer. He was not named in either of the applications. However on two occasions, he sought to interject from the viewing gallery:
HER HONOUR: … And no, [Mr Scott], you cannot speak in this matter and you will sit at the back of the Court, not at the Bar table. Remove yourself.
[MR SCOTT]: But, your Honour, there’s some points I just wish to correct.
HER HONOUR: You will sit at the back of the Court and remove yourself. You can listen; you cannot participate. Please behave.
[MR SCOTT]: But you mentioned ---
HER HONOUR: Thank you, sir.
[MR SCOTT]: --- my name, your Honour, and I just wanted to address on the points ---
HER HONOUR: Thank you very much. [Mr M] and I are having a discussion in a polite, courteous fashion. Thank you. Sorry, [Mr M]. …
And then later:
HER HONOUR: … It’s, to use the vernacular, done and dusted.
[MR SCOTT]: Your Honour, if I can just assist the Court, your Honour, just one ---
HER HONOUR: No, [Mr Scott]. I need no assistance from you ---
[MR SCOTT]: --- just, yes. Because you said ---
THE MR M APPLICATION
This application was filed by Mr M in his own capacity and as a director of CC Pty Ltd, and sought orders as follows:
1.On the 21 October 2022, the Supreme Court of NSW transfer the proceedings No […] to this court proceeding No SYC59/2010
2. Orders required within No […]
3.Declaration that the undertaking purportedly given in August 2022 to Blake J in Supreme Court of New South Wales proceedings No […] (the […] Proceedings) by counsel for [CC Pty Ltd] and the Applicants to the Notice of Motion filed 14 August 2022 as noted in the orders made by Black J made in August 2022 was given without authority and instructions;
4.Declaration that the plaintiffs ([Mr AB]) in this proceeding No […] as the second defendant and the fourth applicant in the Supreme Court of New South Wales proceedings No […] are not bound to the purported undertaking noted by Black J in the orders made by him in August 2022;
5.The order 1 of the orders made on in August 2022 by Black J in the Supreme Court of New South Wales proceedings No […] be varied by removal of the words “on the undertaking given by each of [CC Pty Ltd] and each of the Applicants ([Ms AH], [DD Pty Ltd], [P Pty Ltd], [Mr M], [JJ Trust - Mr K Scott], Ms Scott) by their counsel, not to bring a further application, interlocutory process or notice of motion, in or substantially in the form of paragraphs 2-4 and 6-11 of the Interlocutory Process filed 14 August 2022.”
6.
(As per the original)
The evidence in support was Mr M’s affidavit affirmed and filed on 6 July 2023, which is as follows:
1.l call to read, affidavits [Mr AN] 13 June 2023 , the solvency report by [Mr AL] from [AM Financial Services], the affidavits of [Mr M] affirmed 2 November 2022, 19 January2023 and 14 April 2023 which is attached in the attached exhibit [M001].
Supreme Court of NSW Proceeding No […].
Hearing August 2022 ([…] Order made by Black J)
2.In August 2022, I was not in court; however [Mr AO] from [AP Lawyers] was in court on behalf of [CC Pty Ltd] for a Notice of Motion filed on the 14 August 2022.
3. I recall about 1 pm on the 15 August 2022, I spoke to [Mr AO] who said;
[Mr AO] “The application and evidence I prepared didn’t address the issues we want in proper format, we need to withdraw the application and re-file once it is in correct form, I will try to work out deal with the other party about cost”
I said; “how did this happen, you should be on top of this, I am upset the application was not prepared correctly. If this is your advice to withdraw it, ok then, but I am not happy how you are handling this, you are wasting time and costs”
At 1:27 pm I send the email to [Mr AO] to withdraw the Notice of Motion filed on the […] 2023. At pages 1 of Annexure “A” is a true copy of that email.
4.At any time, did [Mr AO] inform me or did I agree, consent, or authorise and undertaking with the conditions or order 1 dated August 2023 which states as follows;
1. Grants leave to [CC Pty Ltd] and the six named applicants, [Ms AH] and others, to discontinue the interlocutory process filed on 14 August 2022, on terms that this order be treated as constituting this discontinuance such that a separate notice of discontinuance need not be filed, on the undertaking given by each of [CC Pty Ltd] and each of the Applicants by their counsel, not to bring a further application, interlocutory process or notice of motion in or substantially in the form of paragraphs 2-4 and 6-11 of the Interlocutory Process filed 14 August 2022.
5.Second, I don’t recall providing instructions to [Mr AO] to list my personal name on the application which was in front of Black J. I recall [Mr AO] asked who are the creditors and are the beneficiaries of [I Pty Ltd], I provide the names to [Mr AO].
6.Third, I personally have never been added as an added as a party to the proceedings […], so I don’t understand how an order can be made against me. These are live issue in the court of appeals and the Federal Circuit Family Court of Australia.
7.Forth, Black J realised the issues of the legal firm of [AP Lawyers] and provided order 6 which states;
6.Reserve the question of any order for a costs order against the solicitor acting for the Second Defendant and the Applicants for determination at the conclusion of the proceedings, if such an order is then sought by the liquidator.
8.At 2-9 of Annexure “A’’ is a true copy of the Notice of Motion which was in front of Black J in August 2022 and Court orders dated August 2022.
(As per the original)
FINDINGS
The result of Mr AB being appointed the liquidator of I Pty Ltd is that he is ostensibly the only person to act on behalf of I Pty Ltd.[2] There is capacity for the Court to grant leave to a person to commence proceedings against a company in liquidation,[3] but no such leave was sought by Mr M to commence proceedings against I Pty Ltd.
[2] Corporations Act 2001 (Cth) s 477.
[3] Corporations Act 2001 (Cth) s 471B.
Further, a corporation must not start or carry on proceedings without a legal representative unless leave is granted by the Court.[4] This is extended to any creditor, contributory or officer of a corporation.[5] No such leave has been sought in respect of CC Pty Ltd by Mr M.
[4] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.09.
[5] Federal Court (Corporations) Rules 2000 (Cth) r 2.13(1)(a). See also Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.18 for the application of the Federal Court (Corporations) Rules 2000 (Cth).
The application in respect of I Pty Ltd must fail as no leave has been sought and granted to commence proceedings against that company, which is now in liquidation.
Secondly, proceedings ostensibly brought on behalf of CC Pty Ltd must also fail as no leave has been sought or granted for Mr M to act on behalf of that company and the application in those respects fail for want of prosecution. This is but the first hurdle.
From a thorough reading of the application, it was also ostensibly filed on behalf of the following:
(1)DD Pty Ltd;
(2)P Pty Ltd;
(3)Mr K Scott and Ms Scott as beneficiaries of the JJ Trust;
(4)Ms AH; and
(5)Ms L.
These parties and entities, together with Mr M, were the six named applicants in an Interlocutory Process filed in the Supreme Court of New South Wales. In August 2022, an order was made by Black J, noting CC Pty Ltd and the six named applicants, through their counsel, gave undertakings “not to bring an application, interlocutory process or notice of motion, in or substantially in the form” of certain paragraphs contained in the Interlocutory Process. The Interlocutory Process was ultimately dismissed with costs on an indemnity basis.
Mr M seeks that this Order be varied so that all the applicants, including himself and CC Pty Ltd, be released from their undertakings.
Fundamentally, Mr M cannot act on behalf of other parties and entities in any capacity, let alone seek to vary orders made in respect to them and he has no standing to do so.
Further, Mr M cannot act on behalf of corporation without leave,[6] which was not sought.
[6] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.09.
In respect of the application in his own name and taking his evidence at its highest, this Court cannot vary the order sought to be varied. This Court does not have jurisdiction to make the variation and there would be substantial difficulties for a Judge of the Supreme Court of New South Wales to make the variation sought for the following.
Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) says the following:
36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)
(1)The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2)The court may set aside or vary a judgment or order after it has been entered if—
(a)it is a default judgment (other than a default judgment given in open court), or
(b)it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c)in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3)In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it—
(a)determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b)dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A)If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
(3B)Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
(3C)Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4)Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
It is clear from sub-rule 36.16(3C) that the time limit for varying a judgment or order cannot be extended. Fourteen days was still within August 2022. The Mr M was filed on 6 July 2023, some 325 days after the order was entered.
This issue of jurisdiction has already been considered by Black J in the Supreme Court of New South Wales, albeit on a different issue, where Mr Scott sought an order of Sackar J made in April 2022 be set aside. His Honour said the following:
… That order is sought under a rule which applies in this Court and which is confined by the terms of that rule, UCPR r 36.16. Unless the consent order is set aside, then the consent judgment delivered by Sackar J remains in place, and binds the parties to it, and there is no basis on which that matter could be agitated in the Family Court in a way that would undermine a judgement delivered by this Court in respect of the relevant issues. That is not to say that the Family Court cannot exercise its own jurisdiction, in respect of issues arising before it. However, while that judgment remains in place, there is no potential for inconsistent findings as to the matters which it determines, as between the parties, as distinct from the matters which are properly determined by the Family Court in the exercise of its own jurisdiction.
(As per the original with bold emphasis)
There was no arguable case presented at all by Mr M. Even if there was jurisdiction to vary this order, I would not do so for the same reasons succinctly articulated by Black J. If such an order was sought to be set aside, or varied, it should have been prosecuted in the Supreme Court of New South Wales and was not.
In relation to the oral application for joinder, Mr M sought to be joined to the Mr Hatem Application. The oral application to be joined must fail on multiple grounds, primarily as there was no evidence presented to support a joinder. Additionally, Mr Hatem did not attend Court to prosecute his claim or to give his position in relation to the joinder.
Mr M made this oral application, despite being a party with CC Pty Ltd, to the substantive proceedings, in which they each had a right to present the very same case but failed to do. This is a second bite of the cherry and is impermissible on the evidence filed taken at its highest.
I have no jurisdiction to entertain the filed J.A. at any level. If Mr M and CC Pty Ltd are aggrieved by orders of the Supreme Court of New South Wales, the remedy is to file an appeal in that Court against the order made. If still aggrieved after the appeal is heard, their recourse is to the High Court.
This Court, the Supreme Court of New South Wales and the Federal Court of Australia are separate and distinct courts exercising their original jurisdiction. The rule of law requires, and it is a fundamental tenant of our legal system, that separate courts act in aid of each other and have no capacity to, in effect, sit on an appeal from a decision made in another court. Sitting in appeal from a decision of a Judge of a court is the role of the appeal court of that particular court, not a Judge of another court.
Mr M’s and CC Pty Ltd’s application seeks that I do precisely that, which I have no power to do, and is clearly a flagrant attempt to circumvent the order of Williams J made pursuant to the Vexatious Proceedings Act 2008 (NSW) declaring he, CC Pty Ltd and others, as vexatious litigants in respect proceedings relating Mr AB in his capacity as liquidator of I Pty Ltd and receiver of the JJ Trust, inter alia, and is an extreme example of an abuse of process.
Further, I have found, consistent with the conduct of Mr Scott in this Court,[7] as well as in the Supreme Court of New South Wales, the application has been brought to delay the delivery of my Reasons for Judgment in the substantive proceedings, this being a tactic employed again and again by Mr Scott, ably aided by Mr M and CC Pty Ltd, to the detriment of Ms Munayallan.
DISMISSING THE MR M APPLICATION SUMMARY
[7] For example, Scott & Munayallan (2021) 62 Fam LR 504 at [104] (Henderson J); Scott & Munayallan [2021] FedCFamC1F 104 at [48] (Henderson J); Scott & Munayallan (No 3) [2021] FedCFamC1F 121 at [22] (Henderson J); Munayallan & Scott (No 5) [2021] FedCFamC1F 284 at [172], [240] (Henderson J); Munayallan & Scott (No 6) [2022] FedCFamC1F 345 at [42] (Henderson J).
The law on summary dismissal
Section 45A of the Family Law Act 1975 (Cth) (“the Act”) provides the Court power to summarily dismiss proceedings, with the relevant parts set out below:
45A Summary decrees
…
No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
…
Proceedings that are frivolous, vexatious or an abuse of process
(4)The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5)To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse of process merely because an application relating to the proceedings or the part is made and later withdrawn.
Costs
(6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.
…
Such power is also contained in section 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Recently, in Curtain & Curtain,[8] the Full Court discussed the principles surrounding summary relief, citing Lindon v Commonwealth (No 2),[9] with the relevant extract below:
[8] [2022] FedCFamC1A 134 (Aldridge, McGuire and Strum JJ).
[9] (1996) 136 ALR 251 (Kirby J).
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why [summary] relief … is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
…
6.The guiding principle is … doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[10]
(As per the original with footnotes omitted)
[10] (1996) 136 ALR 251 at 256.
Mr M’s Application is vexatious, an abuse of process, doomed to fail at the outset, brought for an ulterior motive and utterly devoid of merit.
If this conduct continues, the Court has the power to, of its own motion, to make a vexatious proceedings order against a party.[11]
[11] Family Law Act 1975 (Cth) s 102QB(3).
Procedure
In order to minimise further costs and consistent with the overarching purpose of this Court,[12] I proposed to initially determine whether the proceedings should be summarily dismissed and did not require the respondents to the substantive proceedings to appear or respond unless the Court determined it needed to hear from other parties when a later date would be set.
[12] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67(1)(b).
On 10 July 2023, Mr M and all related parties were informed of this proposed course. No objection was taken by Mr M nor the other parties to this proposed course of action.
In Mohsen & Collings,[13] McClelland DCJ ordered that notice be given to the father that he contemplated exercising power under section 45A(7) of the Act so that procedural fairness was afforded to the father.[14] While notice is not a requirement prescribed under section 45A of the Act, notice was given by email sent to Mr M on 10 July 2023 and I am satisfied that notice has been provided and procedural fairness has been afforded to him and CC Pty Ltd.
[13] [2020] FamCA 1072 (McClelland DCJ).
[14] [2020] FamCA 1072 at [47].
For completeness, I note the substantive proceedings in this matter involving I Pty Ltd was listed for final hearing commencing on 20 February 2023. There were two distinct aspects of this matter:
(1)The finality of the matrimonial proceedings between Mr Scott and Ms Munayallan; and
(2)The finality of proceedings transferred from the Supreme Court of New South Wales on 14 October 2022 and 21 October 2022;
with both sets of proceedings heard simultaneously. Judgment was reserved on 20 April 2023 after final submissions were received.
Proceedings have been instigated in the Federal Court of Australia on this and other issues, and are outstanding.
On the Courts own motion, and having regard to all the circumstances above and taking the evidence provided at its highest, the applications are dismissed.
FUTURE PROCEEDINGS
The Court’s overarching purpose is contained in section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and minimising costs looms large:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
…
During the substantive proceedings, the Court was made aware of costs orders that have been made against Mr M, and CC Pty Ltd, in the proceedings transferred from the Supreme Court of New South Wales, and these costs orders are outstanding.
A question arises on these concerning facts as follows. In the event any further application be filed by Mr M and/or CC Pty Ltd, should they progress or be stayed until all outstanding costs orders are paid, given I have found that not only was the Mr M filed in Mr M’s own right and on behalf of CC Pty Ltd an abuse of process and designed to delay delivery of a final judgement, but of greater significance, was brought in this Court to circumvent the vexatious proceedings order made in the Supreme Court of New South Wales by Williams J in May 2023.
The Court’s power to impose, in effect, an injunction on proceedings progressing arises from its inherent jurisdiction upon a finding that proceedings are an abuse of process.[15]
[15] Williams v Spautz (1992) 174 CLR 509 at 518 (Mason CJ, Dawson, Toohey, and McHugh JJ), cited in Hearne & Hearne (2015) 53 Fam LR 454 at [116] (Austin J in minority), Klearchos & Klearchos [2021] FamCA 375 at [33] (Altobelli J).
In Norton & Locke,[16] the Full Court of the Family Court of Australia (as it was then known) said this on the Court’s jurisdiction generally:
43… This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice …” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612 at 638; 71 ALR 457 at 475 (Jackson)). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect[…] its function as a court”.[17]
(As per the original)
[16] (2013) 50 Fam LR 517 (Bryant CJ, Murphy and Benjamin JJ).
[17] (2013) 50 Fam LR 517 at [43].
Further, in Amery & Kedrina,[18] the Full Court of the Family Court of Australia said this on the Court’s jurisdiction with respect to a permanent stay:
[18] (2021) 63 Fam LR 1 (Ainslie-Wallace, Ryan and Tree JJ).
100In Tomlinson [v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; 323 ALR 1; 89 ALJR 750; [2015] HCA 28], the plurality of the High Court said of the relationship between the doctrines of estoppel and abuse of process:
24.… the doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25.Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
(Footnotes omitted)
101A permanent stay may be ordered regardless of the merits of the proposed proceedings [Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; 227 ALR 425; 45 MVR 288; [2006] HCA 27 at [63]].
102Further, in Johnson v Gore Wood [& Co (a firm) [2002] 2 AC 1], Lord Bingham at 31 referred to abuse of process in bringing successive proceedings, the “underlying public interest” of finality in litigation and the “current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole”.[19]
(As per the original with footnotes inserted)
[19] (2021) 63 Fam LR 1 at [100]–[102].
This also is a course, in addition to vexatious proceedings being instituted, that is available to the Court, so as to protect its processes in the event unmeritorious applications continue to be filed, as was found to be the case here.
CONCLUSION
I make the orders as set out in the forefront of these Reasons for Judgment.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 20 July 2023
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