Scott (No 3) - [2023] FedCFamC1A 227

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scott (No 3) [2023] FedCFamC1A 227

Appeal from: Scott & Munayallan (No 12) [2023] FedCFamC1F 665

Appeal number(s): NAA 256 of 2023
NAA 258 of 2023

File number: SYC 59 of 2010

Judgment of: AUSTIN J

Date of judgment: 13 December 2023

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject documents he attempted to file in two separate appellate proceedings – Where the orders sought in the proposed appeals are incompetent and are an abuse of process – Applications dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.24

Cases cited:
Scott (No 2) [2023] FedCFamC1A 184

Scott [2023] FedCFamC1A 161

Number of paragraphs: 44

Date of hearing: 13 December 2023

Place: Sydney

The Applicant: Litigant in person (did not participate)
ORDERS

NAA 256 of 2023
NAA 258 of 2023
SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SCOTT

Applicant

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

13 DECEMBER 2023

THE COURT ORDERS THAT:
1.In appeal suit number NAA 256/2023:
(a)the Application in an Appeal filed on 24 November 2023 is dismissed; and
(b)the Application in an Appeal filed on 27 November 2023 is dismissed.

2.In appeal suit number NAA 258/2023:
(a)the Application in an Appeal filed on 24 November 2023 is dismissed; and
(b)the Application in an Appeal filed on 27 November 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 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

At hand for determination are four applications filed by the applicant to review the decision by the appeal registrar on 8 November 2023 to reject documents he attempted to file in two separate appellate proceedings, the proposed appeals within which two suits are intended to challenge separate orders made within financial proceedings finalised some months ago in August 2023.
The following reasons explain the dismissal of the applications.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott (No 3)

Details

AGLC: Scott (No 3) [2023] FedCFamC1A 227
Case: [2023] FedCFamC1A 227
Decision Date: 13 December 2023

CaseChat Overview and Summary

The applicant, Mr. Scott, sought a review of the appeal registrar’s decision to reject documents he attempted to file in two separate appellate proceedings. These proceedings related to the final property settlement orders made by the primary judge on 11 August 2023 and a vexatious litigant injunction issued against the applicant on 21 December 2021. The court had already dismissed the applicant’s previous applications for review and leave to appeal from both the final property settlement orders and the vexatious litigant injunction.

The legal issues before the court included whether the appeal registrar’s decision to reject the documents was correct, and whether the orders sought in the proposed appeals were competent and not an abuse of process. The court had to assess the procedural regularity of the applicant's filings and determine if they constituted a valid appeal or an abuse of the court's process.

The court found that the orders sought in the proposed appeals were incompetent and amounted to an abuse of process. The applications were dismissed based on the procedural irregularities and the apparent abuse of process, in accordance with rule 2.24(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court determined that the applications were not valid and did not merit further consideration.

In the appeal suit numbered NAA 256/2023, the court dismissed the Application in an Appeal filed on 24 November 2023 and the Application in an Appeal filed on 27 November 2023. Similarly, in the appeal suit numbered NAA 258/2023, the court dismissed the Application in an Appeal filed on 24 November 2023 and the Application in an Appeal filed on 27 November 2023. The court's order was subject to review for any minor typographical or grammatical errors, or any variation pursuant to the relevant rules.

Orders

Orders of the court

NAA 256 of 2023

NAA 258 of 2023

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SCOTT

Applicant

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

13 DECEMBER 2023

THE COURT ORDERS THAT:

1. In appeal suit number NAA 256/2023:

(a) the Application in an Appeal filed on 24 November 2023 is dismissed; and

(b) the Application in an Appeal filed on 27 November 2023 is dismissed.

2. In appeal suit number NAA 258/2023:

(a) the Application in an Appeal filed on 24 November 2023 is dismissed; and

(b) the Application in an Appeal filed on 27 November 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).

Background

Background to the litigation

The following reasons explain the dismissal of the applications.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]). Those appellate proceedings bore suit number NAA 256/2023. 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 made 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 also summarily dismissed on 22 September 2023 (Scott at [17]–[24]). Those separate appellate proceedings bore suit number NAA 258/2023. The applicant filed two more applications, on 12 and 18 October 2023, seeking leave to appeal from both the vexatious litigant injunction and the final property settlement orders. Those applications were also dismissed on 27 October 2023 (Scott (No 2) [2023] FedCFamC1A 184). Thereafter, on 2 November 2023, 6 November 2023, and 8 November 2023, the applicant repeatedly tried to file more applications within the two separate appellate proceedings, but the appeal registrar refused to accept them for filing on account of the applications being procedurally irregular and an apparent abuse of process (r 2.24(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). Ultimately, on 24 November 2023 and 27 November 2023, the appeal registrar accepted the following documents from the applicant, filed them, and listed them for hearing before me today (13 December 2023):(a)in appellate proceeding NAA 256/2023:(i)an Application in an Appeal filed on 24 November 2023;(ii)an Application in an Appeal filed on 27 November 2023;(iii)the applicant’s affidavit filed on 24 November 2023 (but sworn or affirmed on 30 October 2023); and(iv)written submissions which, by reference to the heading, are directed to the final property settlement orders made on 11 August 2023.(b)in appellate proceeding NAA 258/2023:(i)an Application in an Appeal filed on 24 November 2023;(ii)an Application in an Appeal filed on 27 November 2023;(iii)the identical affidavit as filed in NAA 256/2023, filed on 24 November 2023 (but sworn or affirmed on 30 October 2023); and(iv)the identical written submissions as filed in NAA 256/2023, even though this proposed appeal relates to entirely different orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal number(s):	NAA 256 of 2023 NAA 258 of 2023
File number:	SYC 59 of 2010
Judgment of:	AUSTIN J
Date of judgment:	13 December 2023
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject documents he attempted to file in two separate appellate proceedings – Where the orders sought in the proposed appeals are incompetent and are an abuse of process – Applications dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.24
Cases cited:	Scott (No 2) [2023] FedCFamC1A 184 Scott [2023] FedCFamC1A 161
Number of paragraphs:	44
Date of hearing:	13 December 2023
Place:	Sydney
The Applicant:	Litigant in person (did not participate)

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	13 DECEMBER 2023