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:

1. 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.

2. The following reasons explain the dismissal of the applications.

   Background

3. 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.

4. 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.

5. 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.

6. 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).

7. 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)).

8. 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.

9. In effect, the applications are review applications, seeking the de novo judicial review of the appeal registrar’s decision on 8 November 2023 to reject his preceding applications for filing.

10. Although the applicant this time insisted upon his applications being heard in open court, he failed to attend the appointed hearing. Nevertheless, the applications are dismissed on the merits, not simply because the applicant failed to appear to prosecute them.

    Appellate proceeding NAA 256/2023

11. The two review applications filed on 24 and 27 November 2023 replicate one another.

12. The first application seeks this form of relief:

    1.Pursant to rules 13:36 and 13.40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, that Review of [the Senior Judicial Registrar’s] decision dated, in proceeding NAA256/2023 on 8 November 2023 for rejection filing Application in an Appeal emailed to the registry on 2 November 2023 and or Notice of Appeal emailed to the registrar at 1.10pm 8 Septembert 2023 to challenge orders by [the primary judge] dated 11 August 2023 SYC59/2010. , which was within of the authority of Harrell & Hancock [2021] FamCA 132 [9].

    (As per the original)

13. The second application seeks this form of relief:

    1.Pursant to rules 13:36 and 13.40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, that Review of [the Senior Judicial Registrar’s] decision dated, in proceeding NAA256/2023 on 8 November 2023 for rejection filing Application in an Appeal emailed to the registry on 2 November 2023 and or Notice of Appeal emailed to the registrar at 1.10pm 8 September 2023 to challenge orders by [the primary judge] dated 11 August 2023 SYC59/2010. , which was within the authority of Harrell & Hancock [2021] FamCA 132 [9].

    (As per original)

14. By both applications, the applicant seeks to review the registrar’s decision to reject the documents he sought to file most recently on 8 November 2023.

15. However, the first application also seeks this supplementary relief, provided the application for the first order is granted:

    Once above Order 1 is granted, then the following orders are requested;

    2.Order that pursant to Rules 10.13 and 10.14 FCFCoA to set asde orders and reasons for judgment dated 27 October 2023 in case number NAA256/2023 & NAA258/2023 as appplicant was not notified of the hearing or notified 2 days beforehand to allow to file submissions as Part C (b) / Rule 5.15 on the Applicatiion in an appeal form.

    3.Leave to be granted to commence proceedings pursuant to s102QG, otherwise then Leave is granted to file out of time as per orders made on 11/08/2023 in Case SYD59/2010 by [the primary judge].

    4.Review [the Judicial Registrar’s] Decision, in his email between March-April 2023 and Septembr-October 2023.

    5.Order that the Notice of Appeal emailed to the registrar on the 8 September 2023 allowed to be filed.

    6.If above order 1 and 5 is granted, then seek a Stay orders made on the 11 August 2023 by [the primary judge] SYC59/201

    7.        Notes;

    This apllication is to be heard between the parties of [applicant] and [respondent] . [The respondent] does not oppose this application.

    This application is to be heard in person and please provide 2 days notice to provide outline of documents and writtern submission.

    (As per original)

16. First, it is necessary to identify the documents the applicant sought to file in NAA 256/2023 under cover of his email sent to the registrar at 3.20 pm on 8 November 2023, which were rejected by a reply email sent by the registrar later the same day at 5.07 pm.

17. Such documents comprised:

    (a)an Application in an Appeal dated 24 October 2023; and

    (b)the applicant’s affidavit sworn or affirmed on 30 October 2023.

18. The applicant sought these orders within that application:

    1.Order that the FCFCOA Rules 10.13 and 10.14 setting asde orders and reasons for judgment dated 27 October 2023 as appplicant was not notified of the hearing or notified 2 days beforehand to allow to file submissions as Part C (b) / Rule 5.15 on the Applicatiion in an appeal form.

    2.Leave to be granted to commence proceedings pursuant to s102QG, otherwise then Leave is granted to file out of time as per orders made on 11/08/2023 in Case SYD59/2010 by [the primary judge].

    3.Review [the Judicial Registrar’s] Decision (emails between March-April 2023 and Septembr-October 2023)

    4.Order that the Notice of Appeal emailed to the registrar on the 8 September 2023 allowed to be filed.

    5.If order 1 is granted, then seek a Stay orders made on the 11 August 2023 by [the primary judge] SYC59/201

    6.        Notes;

    This apllication is to be heard between the parties of [applicant] and [respondent] .

    [Respondent] does not oppose this application.

    This application is to be heard in person and provide 2 days notice to provide writtern submission.

    (As per original)

19. Proposed Order 1 was incompetent. The judgment delivered by the Full Court on 27 October 2023 explained why the subject applications were lawfully heard and determined in the applicant’s absence (Scott (No.2) at [9]–[10]).

20. Proposed Order 2 was an abuse of process. Such relief had already been sought and refused by Order 2 made on 27 October 2023 (Scott (No.2) at [8]–[20]) and the supporting evidence within the applicant’s affidavit, sworn or affirmed on 30 October 2023, was not materially different from the affidavit he filed in support of the dismissed application (Scott (No.2) at [12]). The applicant cannot successively apply for the same relief as has previously been refused, offering evidence which is essentially no different.

21. Proposed Order 3 was an abuse of process. Such relief had already been sought and refused by Order 1 made on 23 September 2023 (Scott at [25]–[35]). It was not open to the applicant to review the registrar’s decision for a second time.

22. Proposed Order 4 was incompetent in view of the inability to procure relief in the form of the preceding three orders.

23. Proposed Order 5 was incompetent because proposed Order 1 could not be granted. With no valid appeal on foot from the primary judge’s orders made on 11 August 2023, those orders could not be stayed.

24. Order 6 was not a proposed order at all. It was simply a statement of the applicant’s belief.

25. The Application in an Appeal was therefore an abuse of process and it was properly rejected by the appeal registrar.

26. That being so, the two review applications must fail.

27. It follows that the conditional application for supplementary relief sought within the first of the two review applications must also fail.

    Appellate proceeding NAA 258/2023

28. The two applications filed on 24 and 27 November 2023 replicate one another.

29. They both seek this form of relief:

    1.Pursuant to rules 13:36 and 13:40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, that Review of [the Senior Judicial Registrar’s] decision dated, in proceeding NAA258/2023 on 8 November 2023 for rejection filing Application in an Appeal emailed to the registry on 2 November 2023 , which was within of the authority of Harrell & Hancock [2021] FamCA 132 [9].

    (As per the original)

30. Just as in respect of suit NAA 256/2023, the applicant seeks to review the registrar’s decision to reject the documents he sought to file in suit NAA 258/2023 on 8 November 2023.

31. However, just as in respect of suit NAA 256/2023, the first application also seeks supplementary relief if the first order is granted. Such supplementary relief is as follows:

    2.        Once above Order 1 is granted, then the following orders are requested;

    3.Pursuant to rules 13.40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, that Review of [the Judicial Registrar’s] decision dated on 8 November 2023 for rejection filing application in an appeal and or a Notice of Appeal to challenge amended orders by [the primary judge] dated 27 February 2023 SYC59/2010.

    4.[Omitted in original]

    5.Order that pursuant to Rules 10.13 and 10.14 setting asde orders and reasons for judgment dated 27 October 2023, as applicant was not notified of the hearing or notified 2 days beforehand to allow to file submissions as Part C (b) / Rule 5.15 as stated on the Applicatiion in an appeal form.

    6.If required, Leave to be granted to commence proceedings pursuant to s102QG otherwise then Leave is granted to file out of time as per the amended order 1 (ii) received on 27/02/2023

    7.If order 1 is obtianed, then Order for the Ntoice of Appeal to be filed (which challenges amended orders dated 27/02/2023 (received amended orders on 27/02/2023, the original are dated 21/12/2021 in case SYC59/2010)

    3.Review [the Judicial Registrar’s] Decisios continated in emails between March-April 2023 and Septembr-October 2023)

    4.If order 1 or 2 is granted, then seek a Stay orders made on the 11 August 2023 by [the primary judge] SYC59/2010

    (As per the original)

32. Again, it is necessary to identify the documents the applicant sought to file in NAA 258/2023 under cover of his email sent to the registrar at 3.20 pm on 8 November 2023, which were rejected by a reply email sent by the registrar later the same day at 5.07 pm.

33. Such documents comprised:

    (a)an Application in an Appeal dated 27 October 2023; and

    (b)the applicant’s affidavit sworn or affirmed on 30 October 2023.

34. The applicant sought these orders within that application:

    1.Order that the FCFCOA Rules 10.13 and 10.14 setting asde orders and reasons for judgment dated 27 October 2023 as applicant was not notified of the hearing or notified 2 days beforehand to allow to file submissions as Part C (b) / Rule 5.15 on the Applicatiion in an appeal form.

    2.If required, Leave to be granted to commence proceedings pursuant to s102G otherwise then Leave is granted to file out of time as per the amended order 1 (ii) received on 27/02/2023

    3.If order 1 is obtained, then order for the Ntoice of Appeal to be filed (which challenges amended orders dated 27/02/2023 (received amended orders on 27/02/2023, the orginal are dated 21/12/2021 in case SYC59/2010)

    3.Review [the Judicial Registrar’s] Decision (emails between March-April 2023 and Setembr-October 2023)

    4.If order 1 or 2 is granted, then seek a Stay orders made on the 11 August 2023 by [the primary judge] SYC59/2010

35. Proposed Order 1 was incompetent. The judgment delivered by the Full Court on 27 October 2023 explained why the subject applications were lawfully heard and determined in the applicant’s absence (Scott (No.2) at [9]–[10]).

36. Proposed Order 2 sought two forms of relief, but was an abuse of process on both counts.

37. In so far as it first sought leave to appeal under Pt XIB of the Family Law Act 1975 (Cth), such relief had already been sought and refused by Order 2 made on 27 October 2023 (Scott (No.2) at [8]–[20]) and the supporting evidence within the applicant’s affidavit, sworn or affirmed on 30 October 2023, was not materially different from the affidavit he filed in support of the dismissed application (Scott (No.2) at [12]).

38. In so far as it additionally sought leave to appeal out of time, such relief had already been sought and refused by Order 2 made on 22 September 2023 (Scott at [17]–[24]) and the supporting evidence within the applicant’s affidavit, sworn or affirmed on 30 October 2023, was not materially different from the affidavit he filed in support of the dismissed application (Scott at [21] and [24]).

39. Proposed Order 3 (the first) was incompetent because the first proposed order could not be granted.

40. Proposed Order 3 (the second) was an abuse of process. Such relief had already been sought and refused by Order 1 made on 22 September 2023 (Scott at [25]–[35]). It was not open to the applicant to review the registrar’s decision for a second time.

41. Proposed Order 4 was incompetent because neither the first nor second orders could be made.

42. The Application in an Appeal was therefore an abuse of process and it was properly rejected by the appeal registrar.

43. That being so, the two review applications must fail.

44. It follows that the conditional application for supplementary relief sought within the first of the two review applications must also fail.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       15 December 2023