Scott & Munayallan (No 15)
[2023] FedCFamC1F 838
•21 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 15) [2023] FedCFamC1F 838
File number(s): SYC 59 of 2010 Judgment of: ALDRIDGE J Date of judgment: 21 September 2023 Catchwords: FAMILY LAW – INTERIM HEARING – Where the applicant seeks a number of interlocutory orders, an order setting aside final property orders and an order that the liquidator’s remuneration of a company be dealt with in the Federal Court of Australia – Where the applicant made an oral application for an adjournment – Where it is not in the interests of justice to grant an adjournment – Where an appeal was already taken against her Honour’s orders and dismissed – Where her Honour already made orders in respect of the liquidator’s remuneration – Where there is no utility in the remaining proposed orders – No prospects of success – Application summarily dismissed – Applicant to pay the costs of the liquidator in a fixed sum.
FAMILY LAW – Oral application made by counsel for the liquidator and the company for the applicant to be declared a vexatious litigant under s 102QB of the Family Law Act 1975 (Cth) – Where the applicant was not given notice of that application and will need to be given an appropriate opportunity to respond to it – Pending the determination of the application, order made for the applicant to be restrained from filing any further application in the proceedings without leave of a judge first obtained – No objection to the application being determined on the papers – Orders for written submissions to be filed.
Legislation: Corporations Act 2001 (Cth) ss 198G, 471B
Family Law Act 1975 (Cth) ss 79A, 102QB
Federal Circuit and Family Court of Australia (Family Law) Rules 2001 (Cth) r 3.09
Cases cited: Matten & Munayallan [2023] FedCFamC1A 147
Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 21 September 2023 Place: Sydney The Applicant: Litigant in person The First Respondent: No appearance The Second Respondent: Litigant in person Counsel for the Third and Fourth Respondents: Mr Rose Solicitor for the Third and Fourth Respondents: ERA Legal ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MATTEN
First Applicant
CC PTY LTD
Second Applicant
AND: MS MUNAYALLAN
First Respondent
MR SCOTT
Second Respondent
MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
21 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Mr AB in his capacity as liquidator of I Pty Ltd (in liq) is added as the third respondent to the proceedings.
2.I Pty Ltd (in liq) is added as the fourth respondent to the proceedings.
3.Pending further order, Mr Matten is restrained from filing any further application in these proceedings without the leave of a judge first obtained.
4.Leave is granted to Mr Matten to approach my chambers for leave to file any further application or response to any application.
5.The Application in a Proceeding filed on 13 September 2023 is dismissed.
6.Mr Matten is to pay the costs of Mr AB as liquidator of I Pty Ltd (in liq) and I Pty Ltd (in liq) fixed in the sum of $5,000 within 28 days.
7.Mr Matten is to file and serve written submissions in response to the vexatious litigant application on or before 6 October 2023.
8.Any submissions in response are to be filed and served by 11 October 2023.
9.The requirement to file any affidavit in support of the application is dispensed with.
NOTATION:
A.An oral application has been made by Mr AB as liquidator for I Pty Ltd (in liq) for Mr Matten to be declared a vexatious litigant under s 102QB of the Family Law Act 1975 (Cth).
B.Mr Matten is thereby on notice of that application and has agreed to that application being determined on the basis of written submissions in chambers.
C.It is noted that a formal Application in a Proceeding will be filed on or before 5.00 pm on 22 September 2023.
D.The matter will proceed on the papers regardless of whether the difficulties that Mr Matten seems to have with his emails result in him not receiving it.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in a Proceeding filed on 13 September 2023, Mr Matten and CC Pty Ltd seek a number of interlocutory orders together with orders setting aside final property orders made by Henderson J on 11 August 2023, in proceedings I shall refer to shortly, and an order that the liquidator’s remuneration of a company called I Pty Ltd be dealt with by the Federal Court of Australia (“the Federal Court”).
The proceedings before Henderson J were complex. They arose in property proceedings between Mr Scott and Ms Munayallan, however a number of other parties were added to those proceedings so by the time of their conclusion, the other parties included Mr AB in his capacity as a liquidator of I Pty Ltd, P Pty Ltd, CC Pty Ltd, Mr Scott as litigation guardian for Ms Scott, AQ Real Estate and AR Pty Ltd, Mr Phong and Ms Phong as well as Mills Oakley Lawyers as the intervener. It is to be noted that Mr Matten was not a party to the proceedings before Henderson J.
Justice Henderson made a number of orders dealing with all aspects of the matter which included matters that had been transferred from the Supreme Court of NSW (“the Supreme Court”). Order 19 of her Honour’s orders was:
19.Subject to the above orders, all outstanding applications are dismissed in the following proceedings:
(a)Federal Circuit and Family Court of Australia proceedings SYC59/2010;
(b) Supreme Court of New South Wales proceedings …; and
(c) Supreme Court of New South Wales proceedings ….
Her Honour gave reasons for dismissing the applications in this Court and the Supreme Court at [434] and [684] of her Honour’s reasons (Scott & Munayallan (No 12) [2023] FedCFamC1F 665).
An appeal was taken against her Honour’s orders. In fact, two appeals were taken from those orders by Mr Matten. Those appeals were dismissed by Austin J on 1 September 2023 in Matten & Munayallan [2023] FedCFamC1A 147. His Honour summarily dismissed both appeals for the reasons set out in his Honour’s judgment.
On 1 September 2023, an application brought by Mr Matten, in almost identical form to that presently before me, was dismissed. First, on the basis that Mr Matten had not appeared and secondly, the orders sought were legally incompetent, futile or impossible to understand.
At the outset of the hearing of this appeal, I asked Mr Matten a number of questions about his application which he was unable to answer. He was given a short adjournment in which he tells me he obtained the benefit of legal advice. After that break, he handed to me an affidavit sworn by him of 19 September 2023 in which he deposes to what he says are his efforts to obtain legal representation in this matter. He said he became aware on 14 September 2023 that the matter had been listed for today. He contacted Mr BX, a barrister, being one that Mr Matten and CC Pty Ltd had previously engaged, but he told Mr Matten he was unable to alter his schedule to be available today. Another barrister was also approached but was not able to assist.
Mr Matten then says he contacted other barristers and no one was available. He does not say who they were, why they were not available or why he does not have at the very least a solicitor. However, the fact that this application has been brought on at relatively short notice is a ground for granting an adjournment, all other things being equal. However, all other things are not equal. There is no point in granting an adjournment of an application that is fundamentally defective. Indeed it would be a gross injustice to the other parties to prolong the agony and expense of a futile application.
For the reasons I am about to give, I am of the view that this is such an application and it would not be in the interests of justice to grant an adjournment.
There are a number of difficulties with the application. The first of which is that it seeks orders against Mr AB as liquidator of I Pty Ltd and orders against the company as well. Therefore they are essential parties to the application, although they are not named as parties. Accordingly, I order that they be added as parties in the proceedings.
As I said earlier, Mr Matten is not a party to the proceedings. One must therefore look with some care to see what his interest is in the various orders he seeks. That will require consideration of each proposed order.
Order 1 seeks to stay, vary or set aside the orders of Henderson J made on 11 August 2023 until:
(a)An application filed on 30 March 2022 by CC Pty Ltd is heard;
(b)The appeal filed in this appeal Court and the High Court of Australia is determined; and
(c)Ms Scott and CC Pty Ltd’s claim is heard in the proceedings.
There is no point to a stay because Mr Matten’s appeals against these orders have been dismissed. Mr Matten tells me that he has an application shortly to be heard before Austin J seeking to set those orders aside which dismissed the appeal on the basis that he was not present at the time. Be that as it may, the present position is that there is no appeal and there is no basis for a stay.
This Court sitting in first instance does not have the power to vary or set aside final orders made by another judge. That is a matter for appeal or a proper application made to set aside the orders, for example, under s 79A of the Family Law Act 1975 (Cth) (“the Act”).
The interest that Mr Matten has in CC Pty Ltd is not clear, but that company is also one of the applicants. It effectively seeks relief until its application filed on 30 March 2022 is heard. The difficulty for that is that application has been dismissed by the orders of Henderson J. Her Honour gave reasons for doing so. If they are wrong, or the order is wrong, that is a matter for appeal. CC Pty Ltd has not appealed. There is, therefore, no basis on which that order could be made by me today.
As to Order 1(b), there is no appeal extant by Mr Matten or CC Pty Ltd in this Court. I have no information whatsoever as to what is happening in the High Court. There is nothing before me that assists.
As to Order 1(c), I have no evidence as to what Ms Scott’s claim may be, but the interests of Mr Matten and CC Pty Ltd’s in her claim has not been elucidated and it seems more than tenuous to repeat that CC Pty Ltd’s claim has been dismissed as that of Ms Scott.
Order 3 (there is no proposed Order 2) seeks an order that Ms BY or Mr Matten be appointed as legal guardian for Ms Scott. A legal guardian has already been appointed earlier in the proceedings to Ms Scott. There is no need for another. In any event, given that the proceedings have been concluded, there is no utility in reconsidering the legal guardianship.
Order 5 (again there is no proposed Order 4) seeks that Mr Matten be granted leave to appear for I Pty Ltd in these proceedings pursuant to s 198G of the Corporations Act 2001 (Cth) (“the Corporations Act”). There is no basis in the evidence for such an order. The order is pointless as there are no extant proceedings and I Pty Ltd does not appear to seek any relief in this application, so the point of the order is beyond me.
Order 6 seeks an order pursuant to s 471B of the Corporations Act. Mr Matten and CC Pty Ltd appear to seek that order. The difficulty is that this application has not been brought by lawyers insofar as it relates to CC Pty Ltd. Rule 3.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires an application brought by a corporation to be brought and continued by a lawyer unless someone is granted leave to do so on its behalf. There is no application for leave brought by Mr Matten to act on behalf of CC Pty Ltd and the proceedings in relation to it are therefore fundamentally flawed in any event. There is nothing in the evidence that would justify Mr Matten being given leave to act on behalf of CC Pty Ltd and I could refuse any application for leave should it be made.
Returning to s 471B of the Corporations Act, which is leave to act in relation to a corporation in liquidation. The point of that proposed order is not explained, there is no evidence that would justify that order being made and it appears to be completely futile.
Proposed Order 7 seeks the setting aside of the orders dated 11 August 2023 importantly “altering property interests”. An application is said to be made pursuant to s 79A of the Act. Such an application cannot be made by an Application in a Proceeding and must be made by an Initiating Application.
Further I do not see what interest either Mr Matten or CC Pty Ltd would have in the orders made between Mr Scott and Ms Munayallan altering the interests in their property. They may have an interest in some of the other orders made by Henderson J but that is not the purpose of proposed Order 7.
Order 8 seeks that Henderson J be disqualified from the proceedings. That is not a matter that can be done at a trial level. That application needs to be made to Henderson J and if it is refused, it is a matter then for appeal. However, Henderson J’s role in these proceedings has ended as her Honour has made final orders in the proceedings. If in the event, anything does come before Henderson J, an application can be made to her Honour at that time.
Order 9 seeks an order that the liquidator’s remuneration, legal expenses and disbursements be dealt with in the Federal Court. Her Honour has already made those orders exercising the power that her Honour had under the Corporations Act, which is exactly the same as the power of the Federal Court, so the proposed order is misconceived. In any event, even if it was not misconceived, her Honour has made the orders and if there is an error in them then that is a matter for appeal. There is therefore no merit whatsoever in the proposed application.
I note that my decision on 1 September 2023 was the fourteenth decision in this matter this year in this Court.
It is plain from what Mr Matten has told me today that he does not accept that I Pty Ltd was properly placed into liquidation and that he will continue fighting until he achieves justice, which seems to me, means until he gets his way.
That issue has been determined by decisions of courts that have been the subject of appeal. It is not for subsequent courts to keep reconsidering them just because Mr Matten is not happy with them. However, it shows a concern that he will continue to lodge meritless applications in this Court. As a consequence of that, I sought submissions from Mr Matten as to whether or not an injunction should be made restraining him from bringing any further applications in this proceeding without the prior leave of a judge.
Counsel for Mr AB and I Pty Ltd then brought an oral application that Mr Matten be declared a vexatious litigant under s 102QB of the Act. Mr Matten has not been given notice of that application and will need to be given an appropriate opportunity to respond to it.
Then the question was raised as to what orders are to be made today. Since this application is in identical form to the one that I dismissed on 1 September 2023 and there is no evidence of changed circumstances, it is prima facie on its face vexatious, oppressive and ought be summarily dismissed.
Mr Matten’s response to that is that he was unaware of the listing date of 1 September 2023, so in effect he is saying this is an application to set aside those orders because he was not there and for him to have his application determined on its merits.
He has appeared today and has been given the opportunity to deal with the application on its merits. For the reasons I have given, it has no prospects of success whatsoever and is futile in many respects. I am of the view that, having regard to those matters alone, it is a vexatious application which ought be summarily dismissed.
Therefore the Application in a Proceeding filed on 13 September 2023 is dismissed.
I will give Mr Matten the opportunity to respond to the application under s 102QB, but pending the determination of that application, I order that Mr Matten is restrained from filing any further application in these proceedings without the leave of a judge first obtained. Mr Matten can approach me for leave and in response to any application.
An application has been made by Mr AB, in his capacity as liquidator of I Pty Ltd and by the company as well, for the payment of their costs in the sum of $5,000 which is the party/party costs.
The application filed by Mr Matten has been wholly unsuccessful. Indeed, I described it as an abuse of process. It is an application that should never have been brought. Those matters alone justify an order for indemnity costs.
However, on 14 September 2023, the lawyers for Mr AB and I Pty Ltd wrote to Mr Matten inviting him to withdraw the application with no order as to costs, failing which they would seek their costs on an indemnity basis. That offer should have been accepted and is a further basis for making an order for costs on a party/party basis. Accordingly, I order that Mr Matten pay the costs of Mr AB as liquidator of I Pty Ltd and I Pty Ltd (in liq) fixed in the sum of $5,000 within 28 days.
I note that in this matter an oral application has been made for Mr Matten to be declared a vexatious litigant under s 102QB of the Act. Mr Matten is thereby on notice of that application. He has agreed to that application being determined on the basis of written submissions in chambers.
I note that a formal Application in a Proceeding will be filed on or before the close of business tomorrow seeking that order but that the matter will proceed on the papers regardless of whether difficulties that Mr Matten seems to have with his emails result in him not receiving it.
Mr Matten is to file and serve written submissions in response to the application on or before 6 October 2023.
Any submissions in response are to be filed and served by 11 October 2023.
I dispense with the need to file any affidavit in support of the application.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 3 October 2023
SCHEDULE OF PARTIES
SYC 59 of 2010 Respondents
Fourth Respondent:
I PTY LTD
2
3