Scott (No 2)
[2023] FedCFamC1A 184
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scott (No 2) [2023] FedCFamC1A 184
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: ALDRIDGE, AUSTIN & HARPER JJ Date of judgment: 27 October 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications in an appeal – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the provisions of s 102QE of the Act have not been complied with – Where the proposed appeals lack ostensible merit – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII and Pt XIB, s 102QE and s 102QF
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.13
Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth) reg 4.02
Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Harrell [2021] FamCAFC 119
Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27
Scott [2023] FedCFamC1A 161
Spencer (No 2) [2023] FedCFamC1A 92
Spencer [2022] FedCFamC1A 131
Number of paragraphs: 33 Date of hearing: Determined on the papers in chambers 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:
ALDRIDGE, AUSTIN & HARPER JJ
DATE OF ORDER:
27 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 October 2023 in appeal no NAA 258 of 2023 is dismissed.
2.The Application in an Appeal filed on 18 October 2023 in appeal no NAA 256 of 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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & HARPER JJ:
These reasons explain the dismissal of two Applications in an Appeal filed by the applicant on 12 October 2023 and 18 October 2023.
Background
The applicant and his former spouse were once engaged in protracted proceedings for the division of their property under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), but that cause of action was concluded by final orders made by the primary judge on 11 August 2023.
The applicant’s application to review the appeal registrar’s refusal to file his appeal from that judgment was dismissed on 22 September 2023 (Scott [2023] FedCFamC1A 161 at [25]–[35]).
While the original financial cause was still pending, the primary judge made a vexatious litigant injunction against the applicant. The order was apparently made on 21 December 2021, though the sealed orders of the Court did not properly reflect the order until they were amended under the slip rule much later, apparently on or about 23 February 2023, notice of which the applicant did not receive until 27 February 2023 (Scott at [12], [17] and [18]). The applicant’s application for leave to appeal from the vexatious litigant injunction was summarily dismissed on 22 September 2023 (Scott at [17]–[24]).
Now, by two more applications filed on 12 and 18 October 2023, the applicant seeks leave to appeal from both the vexatious litigant injunction and the final property settlement orders.
The vexatious litigant injunction precludes the applicant from appealing from either it or the final property settlement orders until he obtains leave to do so under s 102QE of the Act. He also needs leave to appeal out of time in each instance.
No leave to appeal under s 28(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) and reg 4.02 of the Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth) is required in either instance. The vexatious litigant injunction is a final order (Harrell [2021] FamCAFC 119 at [9]), as were the financial orders made on 11 August 2023.
Vexatious litigant injunction
The injunction against the applicant was relevantly made 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, [name] born [date] or the children, [the eldest child], [born]; and [the youngest child], [born], 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:
i.Any cost application of the [applicant] arising from these Orders and filed within the time prescribed under the Family Law Act 1975 (Cth) and r 12.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (”the current Rules”).
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;
iii.An application made by the [applicant] to be provided with a copy of the transcript of proceedings heard before [the primary judge]; and
iv.The filing of a response or affidavit in reply by the [applicant].
(As per the original)
Within Pt C of the application filed on 12 October 2023, the applicant confusingly ticked the box indicating his wish for the application to be determined in chambers on the papers, but yet added the words:
Please the court to appear in person for this application.
Although the applicant may actually want his application determined in open court, irrespective of his desire, the application for leave to appeal under Pt XIB of the Act is instead determined on the papers as the Act permits (s 102QF(3) and s 102QF(4)). It is also permissible to deal with the application for leave to appeal out of time on the papers in chambers (s 28(4) of the FCFCA Act; r 13.13(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The relief sought by the applicant is in these terms:
1.If required, [l]eave be granted to commence proceedings pursuant to s102QG otherwise then [l]eave is granted to file out of time as per the amended order 1 (ii) received on 27/02/2023
In support of the application, the applicant relied upon his affidavit filed on 12 October 2023, which annexes the following documents, largely unexplained by the text of the affidavit:
(a)medical records relating to the applicant’s 86 year old mother;
(b)medical records relating to the applicant’s presentation at hospital on 24 May 2023;
(c)an unsealed and unsigned Further Amended Summons Seeking Leave to Appeal to the NSW Court of Appeal from one or more judgments of the NSW Supreme Court pronounced on unidentified dates;
(d)email correspondence between the appeal registrar, the applicant and other persons in the period between March 2023 and September 2023;
(e)an unsealed Notice of Appeal dated 8 September 2023, by which the applicant would like to challenge the orders made by the primary judge on 11 August 2023 (of which there are two copies);
(f)written submissions which purport to explain the errors inherent within the orders made by the primary judge on 11 August 2023;
(g)emails sent between September 2021 and July 2022 relating to the fiscal duty of a corporation;
(h)a statutory declaration signed in December 2021 by a justice of the peace;
(i)a Secured Equity Agreement dated 17 July 2015, into which the applicant entered with other parties;
(j)an excerpt of transcript of court proceedings on an unknown date in an unknown court;
(k)financial documents relating to a corporation and trust for past financial years;
(l)an Australian Business Register search;
(m)an unsealed affidavit affirmed by an accountant in June 2023, intended for use in proceedings before the NSW Supreme Court;
(n)a copy of the final orders made by the primary judge on 11 August 2023;
(o)an unsealed Notice of Appeal dated 23 March 2023, by which the applicant would like to challenge the orders made by the primary judge on 21 December 2021 (as later amended under the slip rule);
(p)an affidavit affirmed by the applicant on 13 September 2023, insisting on his right to appeal from the orders made on 21 December 2021 and 11 August 2023; and
(q)an email dated 27 February 2023 sent to the applicant from the primary judge’s chambers.
We first deal with the application for leave to appeal under Pt XIB of the Act, which is usually determined by the Full Court when the proposed appeal lies from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 1) (Harrell at [14]; Spencer [2022] FedCFamC1A 131 at [9]–[10]; Spencer (No 2) [2023] FedCFamC1A 92 at [8]).
The application for the grant of leave under s 102QE of the Act must be accompanied by an affidavit containing certain information (s 102QE(3)). If the affidavit does not substantially comply with the statutory requirements, the application may be dismissed on that basis alone (s 102QF(1)), as it is in this instance.
Two requirements for the accompanying affidavit are that it contain detail about all other proceedings instituted by the applicant in any Australian court or tribunal (s 102QE(3)(b)) and it discloses all facts relevant to the application (s 102QE(3)(c)). The applicant’s affidavit does not comply for two reasons.
First, he did not list all of the other proceedings he has instituted before the NSW Court of Appeal, the NSW Supreme Court and the Federal Court of Australia.
Secondly, the applicant does not disclose the other vexatious litigant injunctions which have been made against him in the NSW Supreme Court in June 2022 and May 2023 or in the Federal Court of Australia in August 2023.
The refusal of leave under Pt XIB of the Act to appeal from the vexatious litigant injunction makes it unnecessary to consider the allied application for leave to appeal from that order out of time. Nevertheless, it is useful to briefly address the difficulty with that application as well.
Accepting for the moment that the applicant did not know of the vexatious litigant injunction made against him until it was sent to him by email on 27 February 2023, he did try and file his appeal on 24 March 2023 within the prescribed period of 28 days. As was earlier recognised (Scott at [19]–[24]), the Notice of Appeal was not received by the appeal registrar until 12 April 2023 and was then out of time. The applicant then failed to apply for an extension of time to file it until September 2023, by which time another five months had elapsed. The applicant did not explain such delay when he sought leave to appeal in September 2023 and his current affidavit fails to do so again.
As presently drafted, the applicant’s proposed appeal from the vexatious litigant injunction comprises bare assertions of error. The lack of particulars within the grounds of appeal precludes any conclusion that the proposed appeal enjoys any reasonable prospect of success. In combination, the applicant’s delay, the absence of satisfactory explanation for it, and the lack of ostensible merit in an appeal militate against any extension of time (Jackamarra v Krakouer and Anor (1998) 195 CLR 516; Gallo v Dawson (1990) 93 ALR 479 at 480).
Final property settlement orders
Within Pt C of the application filed on 18 October 2023, the applicant ticked the box indicating his wish for the application to be determined in chambers on the papers.
The relief sought by the applicant is in these terms:
1.Leave to be granted to commence proceedings pursuant to s102QG, otherwise then [l]eave is granted to file out of time as per orders made on 11/08/2023 in Case SYD59/2010 by [the primary Judge].
In support of the application, the applicant relied upon his affidavit filed on 18 October 2023, which is identical to the affidavit he filed on 12 October 2023, save that it attaches a few more irrelevant and unexplained documents.
The applicant attempted to file his appeal from the orders made on 11 August 2023 within time. He sent his Notice of Appeal to the appeal registrar on 8 September 2023, but it was rejected because he was restrained by the vexatious litigant injunction, apart from other procedural defects. The applicant’s application to review that decision of the registrar was dismissed on 22 September 2023.
When the applicant’s review application was dismissed, this observation was made (Scott at [35]):
35.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.
The current application is undoubtedly an attempt to avail of those options.
For the same reasons stated above, leave to appeal under Pt XIB of the Act should be refused because the supporting affidavit does not comply with the requirements of the Act.
Again, it is unnecessary to consider the allied application for leave to bring the proposed appeal out of time, but some observations can be usefully made in that regard. In any application for an extension of time within which to appeal, the prospects of the appeal are a relevant consideration and the failure to demonstrate sufficient prospects of success may well be dispositive of the application (Gallo v Dawson). Here, the applicant’s affidavit fails to disclose how the proposed appeal enjoys any reasonable prospects of success. In which event it would be futile to grant leave to bring the appeal out of time.
The proposed grounds of appeal within the draft Notice of Appeal are pleaded as follows:
1. Acts upon a wrong principle;
2. Allows extraneous or irrelevant matters to guide or effect the decision
3. Mistakes the facts
4. Fails to take into account some material consideration.
5. Makes a decision, that, upon the facts, is unreasonable or plainly unjust.
6.Substantial wrong has occurred and Lack of knowledge of the jurisdiction (Corporations and Insolvency).
7.Failure by the trial judge to afford procedural fairness, to the parties.
8.Judicial prejudice, including apprehended, and unreasonable intervention by the trial judge.
9.Evidence wrongly admitted or excluded; and Failure to determine the issues.
10.Re Medlow & Medlow, the appelant will refer to the outline of Points of Grounds.
(As per the original)
The grounds simply allege a suite of bare legal, factual and discretionary errors.
The grounds are supposedly elaborated by the applicant’s written submissions, also annexed to his affidavit. However, they comprise a narrative, four pages in length, which have little to do with the validity of the orders made on 11 August 2023. Instead, the submissions refer to grievances about the conduct of the former parenting proceedings contested between the spouses and the vexatious litigant injunction (but not the property settlement orders), refer cryptically to documents in evidence before the primary judge, and refer to miscellaneous documents which (at least inferentially) were not tendered in evidence. The submissions certainly do not particularise or explain any of the draft grounds of appeal.
Disposition
The Application in an Appeal filed on 12 October 2023 is dismissed.
The Application in an Appeal filed on 18 October 2023 is dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Harper. Associate:
Dated: 27 October 2023