Scott & Munayallan (No 16)
[2023] FedCFamC1F 1007
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 16) [2023] FedCFamC1F 1007
File number(s): SYC 59 of 2010 Judgment of: ALDRIDGE J Date of judgment: 24 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding to declare the respondent a vexatious litigant – Where the respondent has been declared a vexatious litigant in the Supreme Court of New South Wales and the Federal Court of Australia – Findings in previous proceedings give rise to an issue estoppel – Parties are relevantly identical – Alternatively an abuse of process to contest the previous findings – Whether to exercise discretion to make an order – Respondent declared vexatious litigant – Order extended to any application signed by the respondent even if it is in the name of another – Respondent to pay the applicants’ costs. Legislation: Family Law Act 1975 (Cth) s 102QB
Federal Court of Australia Act 1976 (Cth) s 37AO
Vexatious Proceedings Act 2008 (NSW) s 8
Cases cited: Scott & Munayallan (No 14) [2023] FedCFamC1F 772
Scott & Munayallan (No 15) [2023] FedCFamC1F 838
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: Determined on the papers Place: In chambers Solicitor for the Applicants: ERA Legal The Respondent: Litigant in person ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AB AS LIQUIDATOR OF I PTY LTD (IN LIQ)
First Applicant
I PTY LTD (IN LIQ)
Second Applicant
AND: MR MATTEN
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth), Mr Matten, by himself or by his servants or agents, is prohibited from instituting any proceedings in the Federal Circuit and Family Court of Australia, or filing any application or originating process in any existing proceedings in the Federal Circuit and Family Court of Australia, either in his own name or in the name of any other person against any of following:
(a)Mr AB;
(b)I Pty Ltd (in liq);
(c)any current or former director, employee, agent or consultant of the firm AJ Financial Services; and
(d)any current or former director, employee, agent or consultant of ERA Legal,
relating to or in any way connected with the winding up of I Pty Ltd (in liq), without leave of the Court first obtained.
2.Pursuant to s 102QB(2)(a) of the Family Law Act 1975 (Cth), any other proceedings commenced on or after 21 September 2023 by or on behalf of Mr Matten, relating to or in any way connected with the winding up of I Pty Ltd (in liq), are permanently stayed.
3.For the purpose of Orders 1 and 2 above, Mr Matten is taken to do something in the name of another person or company if he signs any document in the name of, or purportedly in the name of, or purportedly on behalf of, any other person or company, or files, or causes to be filed, any application with a court or tribunal, or makes any oral application to any court or tribunal in the name of, or purportedly on behalf of, any other person or company.
4.Mr Matten pay the applicants' costs of this Application in a Proceeding, as agreed or as assessed.
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
ALDRIDGE J:
This is the determination of an application for orders against Mr Matten, prohibiting him from instituting proceedings in this Court pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”).
On 1 September 2023, I dismissed an application brought by Mr Matten for a variety of orders. Those orders included orders in relation to the winding up of I Pty Ltd. The parties to the application brought by Mr Matten were Ms Scott, Ms Munayallan and Mr Scott. I Pty Ltd was not named as a respondent.
On 1 September that application was dismissed firstly because Mr Matten did not appear to prosecute the application, and secondly, because the application was fundamentally misconceived and none of the orders sought by Mr Matten had any prospect of success: Scott & Munayallan (No 14) [2023] FedCFamC1F 772.
Undeterred, Mr Matten filed a further application on 13 September 2023, which sought similar, if not identical relief to that sought in the application dismissed on 1 September including setting aside final property orders made between Mr Scott and Ms Munayallan by Henderson J on 11 August 2023. CC Pty Ltd was identified as the second applicant. By orders made on 21 September, Mr AB in his capacity as liquidator of I Pty Ltd was added as the third respondent to the proceedings and the company added as the fourth respondent.
The application was dismissed by me on 21 September 2023: Scott & Munayallan (No 15) [2023] FedCFamC1F 838.
In his evidence, on that day, Mr Matten said he had not appeared at the hearing of the earlier application because he was unaware of the hearing date. Nonetheless, he did not seek to have those orders set aside as being made in his absence, but rather, simply filed a fresh application. Again, I found that the orders sought by Mr Matten were fundamentally misconceived, largely along the lines of the earlier reasons I gave. The application was dismissed. Counsel for Mr AB and I Pty Ltd brought an oral application for orders against Mr Matten pursuant to s 102QB. Quite appropriately Mr Matten needed to be given time to respond to that application.
A written application seeking that relief was filed on 22 September 2023.
Mr Matten agreed to the application being determined in chambers on the basis of written submissions. Directions were made for written submissions, but none was received from Mr Matten. He made an informal approach for an extension of time within an email sent to the Court, but that was rejected.
The basis for the order sought by Mr AB and I Pty Ltd is simply that in proceedings involving the same parties, findings have been made giving rise to an issue estoppel preventing Mr Matten from raising those issues again. It was submitted it must follow therefore that a similar order should now be made in respect of proceedings in the Federal Circuit and Family Court of Australia.
In mid-2023, Williams J in the Supreme Court of New South Wales made an order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) (“the Vexatious Proceedings Act”). The terms of that order were that Mr Scott, Mr Matten, CC Pty Ltd, P Pty Ltd and DD Pty Ltd are prohibited from instituting any proceedings in New South Wales in any way connected with the winding up of I Pty Ltd against Mr AB in his capacity as liquidator of I Pty Ltd, I Pty Ltd, and others, without leave of the court first having been obtained.
In mid-2023, Jackman J sitting in the Federal Court of Australia made orders prohibiting Mr Scott, Mr Matten, CC Pty Ltd, P Pty Ltd and DD Pty Ltd from instituting proceedings in any way connected to the winding up of I Pty Ltd in the Federal Court of Australia against Mr AB in his capacity as liquidator of I Pty Ltd and I Pty Ltd, amongst others. The orders were made pursuant to s 37AO(2) of the Federal Court of Australia Act1976 (Cth) (“the Federal Court Act”). In doing so, his Honour found that the matters determined by Williams J as being fundamental to her decision in that matter, were identical to the fundamental matters to be decided by him in those proceedings.
His Honour then found that, notwithstanding the terms of the legislation of the Vexatious Proceedings Act, the decision of Williams J was a final decision. Therefore, as the parties were identical between the two proceedings, the findings by Williams J as to abuse of process and lack of reasonable grounds to bring proceedings and that the proceedings were vexatious had been determined as between those parties and an issue estoppel had arisen.
Section 37AO of the Federal Court Act provides:
Making vexatious proceedings orders
(1) This section applies if the Court is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
(2) The Court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;
(c)any other order the Court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the Chief Executive Officer;
(c)a person against whom another person has instituted or conducted a vexatious proceeding;
(d) a person who has a sufficient interest in the matter.
(4)The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5)An order made under paragraph (2)(a) or (b) is a final order.
(6)For the purposes of subsection (1), the Court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
Thus, Jackman J found that the issue as to whether or not Mr Matten and the other applicants had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals was satisfied, relying on the determination of Williams J to the same effect. It then remained to his Honour to exercise the jurisdiction set out in s 37AO(2).
Section 102QB of the Act is set out in identical terms to s 37AO of the Federal Court Act.
The parties before me are not identical to those that were before their Honours. Ms Munayallan is now a party and P Pty Ltd and DD Pty Ltd are not parties. However, critically, the finding relied on by the liquidator of I Pty Ltd is the finding between them and Mr Matten which they submit was the final determination of issues as between them. There is force in that argument. As between those three parties, the question of whether Mr Matten has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, was finally determined, firstly by Williams J and then secondly by Jackman J.
In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, the majority described issue estoppel in the following terms (at [22]):
Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”.
(Citations omitted)
The issue of the nature of the proceedings commenced by Mr Matten has been determined, as between him, I Pty Ltd and Mr AB, in the earlier proceedings. The relevant parties are identical and as between the three of them, those issues have been determined “once for all”.
It follows, therefore, that an issue estoppel has arisen.
Alternatively, if there is no issue estoppel, it is nonetheless an abuse of process for Mr Matten now to contend, in light of the findings of Williams J and Jackman J, that the earlier proceedings were not vexatious. Justice Jackman explained it in the following terms:
57.… The relevant principle is that recognised in Reichel v Magrath (1889) 14 App Cas 665, in which the House of Lords held that a defence which was not barred by res judicata estoppel may nevertheless be struck out as an abuse of process. Lord Halsbury LC said (at 668):
… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again… there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure…
That reasoning was approved by Mason CJ, and Deane and Dawson JJ, in Walton v Gardiner (1993) 177 CLR 379 at 393, stating the principle (as applicable where the party abusing the process of the court is the moving party in the proceedings) as follows:
proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
In Rogers v The Queen (1994) 181 CLR 251 at 287, McHugh J stated the principle in similar terms.
58.The principle is often applied in cases where the doctrines of res judicata and issue estoppel are not applicable because of a difference in the identity of the parties. That was the case, for example, in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198. In that case, Handley JA (with whom Mason P and Heydon JA agreed) made a detailed examination of the authorities and the relevant factors to be taken into account in applying this principle of abuse of process. That reasoning makes clear that the issue determined in the earlier case must be one on which the party propounding it in the latter case had previously lost, and that issue must be precisely identified: [31] and [33]. As I have indicated, the relevant issues in the present case are the same as those decided by Williams J. It is also important to examine the opportunity available and taken to fully litigate the issue: [32]. I note in that regard that [Mr Scott] appeared in person before Williams J and argued the matter fully in his own interest, which necessarily encompassed the position of the other defendants. Although those other defendants did not appear, they had every opportunity of doing so. However, it is not an essential requirement for this species of abuse of process that the issue must have been a final one. At [31], this is described as the normal circumstance, and at [32], the finality of the finding as to the issue is stated as no more than a matter to which regard may be had. Accordingly, if, contrary to my reasoning above, the vexatious proceedings orders made by Williams J were to be found not to have been final orders, then that is a matter to be taken into account in applying the doctrine of abuse of process, but is not in itself determinative. If those orders were not final orders and the steps leading to those orders were not findings of a final nature, then they were certainly important matters on which Williams J expressed clear conclusions after lengthy debate and analysis in self-contained proceedings. The issues were substantive issues, not merely evidentiary or procedural ones. Accordingly, if I had not formed the view that an issue estoppel arose in the present case, then I would have concluded that it would be an abuse of process for any of the respondents to contest the findings of Williams J to which I have referred.
59.I note that the reasoning in Rippon v Chilcotin Pty Ltd has subsequently been approved by the Court of Appeal: Liao v New South Wales [2014] NSWCA 71 at [169]-[172] (Barrett JA, with whom Beazley P agreed); Benton v QBE Workers Compensation (NSW) Ltd [2015] NSWCA 101 at [5]‑[7] (Meagher JA), [90] (Adamson J).
I respectfully agree and adopt his Honour’s reasoning. Therefore, accordingly I find that Mr Matten has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals within the meaning of s 102QB(1).
It remains to me then to exercise my discretion as to whether or not an order should be made.
Earlier in these reasons I have referred to the two entirely misconceived proceedings filed by Mr Matten that were vexatious and oppressive. I recorded in the second of those:
27.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.
I am persuaded therefore that an order should be made against Mr Matten as sought.
Because Mr Matten has frequently invoked, as he did in this matter, corporations as applicants, it is appropriate to make an order extending to any application signed by him, even if it is in the name of another.
I do not propose to exempt any appeal from these orders. That means leave will have to be sought by Mr Matten before he can follow that course. Given the history of his proceedings in three courts, it seems entirely reasonable and in the interests of justice that he should first satisfy a court that any appeal is not vexatious before it is permitted to continue.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 24 November 2023
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