Scott (No 4)

Case [2023] FedCFamC1A 239

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Scott (No 4) [2023] FedCFamC1A 239

Appeal from: Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal number: NAA 256 of 2023
File number: SYC 59 of 2010
Judgment of: AUSTIN J
Date of judgment: 21 December 2023
Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Application in an Appeal to set aside orders made in his absence – Where the applicant did not have a reasonable excuse for failing to appear in the first instance – Where the applicant could not demonstrate a reason to suspect the result might have been different had he appeared and been able to present the case he intended – Where this is the fourth time in four months the applicant has unsuccessfully tried to initiate an appeal from final property settlement orders – Where the Court has the power to make orders that prevent an abuse of its process and protect the integrity of its functions – Where the Court will no longer exercise its appellate jurisdiction in this suit unless compelled to do so by prerogative writ of mandamus issued by the High Court of Australia – Order made permanently staying this appeal suit – Application dismissed.
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and s 44

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.14

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 34

Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 411 ALR 615; [2023] HCA 26

Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300; [1998] HCA 52

Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Newett & Newett (No.2) (2021) FLC 94-051; [2021] FedCFamC1A 11

R v Cook; Ex parte Twigg (1980) 147 CLR 15; [1980] HCA 36

R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39

Re Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82

Scott & Munayallan [2022] FedCFamC1A 44

Scott (No.2) [2023] FedCFamC1A 184

Scott (No.3) [2023] FedCFamC1A 227

Scott [2023] FedCFamC1A 161

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Number of paragraphs: 40
Date of hearing: 21 December 2023
Place: Newcastle (via Microsoft Teams)
The Applicant: Litigant in person

ORDERS

NAA 256 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:

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Details
AGLC
Scott (No 4) [2023] FedCFamC1A 239
Case
[2023] FedCFamC1A 239
Decision Date

CaseChat Overview and Summary

The case of Scott (No 4) involved an application by the applicant, Mr. Scott, to appeal property settlement orders made in his absence. The applicant had filed multiple unsuccessful applications in an attempt to initiate an appeal from the final property settlement orders made on 11 August 2023. This was the fourth time in four months that Mr. Scott had attempted to appeal the same orders, relying on hundreds of pages of documents that did not support the application being made. The applicant's repeated attempts to appeal despite the lack of merit in his applications raised concerns about the abuse of the court's process and the need to protect the integrity of its functions.

The legal issues the court had to decide included whether the applicant had a reasonable excuse for failing to appear in the first instance and whether he could demonstrate a reason to suspect that the result might have been different had he appeared and been able to present the case he intended. The court also had to consider whether it had the power to make orders that prevent an abuse of its process and protect the integrity of its functions. The court held that the applicant's repeated attempts to appeal were vexatious and an abuse of process, and that it had the power to make orders to prevent such abuse.

The court found that the applicant did not have a reasonable excuse for failing to appear in the first instance and could not demonstrate a reason to suspect that the result might have been different had he appeared and been able to present the case he intended. The court also found that the applicant's repeated attempts to appeal were vexatious and an abuse of process, and that it had the power to make orders to prevent such abuse. Therefore, the court dismissed the application in an appeal and permanently stayed the appeal proceeding. The court also directed the appeal registrar to reject and not accept for filing any further document proffered by the applicant in this particular appeal suit.

The court's orders were that the application in an appeal dated 13 December 2023 (filed on 14 December 2023) was dismissed, and appeal proceeding NAA 256/2023 was permanently stayed. The appeal registrar was directed to reject and not accept for filing any further document proffered by the applicant for filing in this suit number. The form of the order was subject to the entry in the court's records, and the copy of the court's reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

NAA 256 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:

21 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Application in an Appeal dated 13 December 2023 (filed on 14 December 2023) is dismissed.

2. Appeal proceeding NAA 256/2023 is permanently stayed and the appeal registrar is directed to reject and not accept for filing any further document proffered by the applicant for filing in this suit number.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It may be accepted the applicant is dissatisfied with the final property settlement orders made on 11 August 2023, but the appeal he desires to bring from those orders is impeded by the numerous obstacles identified and already explained in Scott, Scott (No 2) and Scott (No 3). Such obstacles are not overcome by repeatedly making the same unmeritorious applications.Conclusion The Application in an Appeal filed on 14 December 2023 is dismissed, but that is not all this time. This is the fourth time in four months the applicant has unsuccessfully tried to initiate, by one interlocutory means or another, an appeal from the property settlement orders made on 11 August 2023 relying upon hundreds of pages of documents which are not ostensibly supportive of the application being made. The orders dismissing such applications are interlocutory in nature and, while it is permissible for an unsuccessful party to make successive applications seeking the same interlocutory relief, it must follow that the prospects of success of repeated applications for the same relief premised on identical (or at least very similar) evidence rapidly diminish and then vanish altogether (Bienstein v Bienstein at [25]). It is a serious thing to shut a litigant out of resort to the appellate remedies the Court may be able to offer, but there must come a time at which the Court should be able to protect its resources from further waste on the misadventures of the misguided. Surely that point must have been reached after four unsuccessful attempts. The Court has power to make orders that prevent an abuse of its process and protect the integrity of its functions (Williams v Spautz (1992) 174 CLR 509 at 518). An abuse of the Court’s process may be apparent not just from the institution or prosecution of proceedings, but from procedural steps taken in the litigation, in which case the power to deal with the procedural abuse extends to the exclusion of the particular vexatious issue from the litigation (Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 267). That said, it is only exceptional circumstances which will justify an exercise of judicial power to permanently stay proceedings on the basis they are an abuse of process (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 411 ALR 615 at [3], [18] and [48]). Exceptional circumstances exist here because not even the yoke of a vexatious litigant injunction has retarded the applicant’s litigious zeal. In February 2023, the primary judge in the original proceedings confirmed making a vexatious litigant injunction against the applicant, which injunctions he has the knack of attracting. Vexatious litigant injunctions have also been made against the applicant twice by the Supreme Court of NSW in June 2022 and in May 2023 and once by the Federal Court of Australia in August 2023. Any consequences of those injunctions in other jurisdictions remain unconfirmed. Appeal proceeding NAA 256/2023 is permanently stayed and the appeal registrar is directed to reject and not accept for filing any further document proffered by the applicant in this particular appeal suit. Presently, there is no substantive appeal on foot requiring determination by the Full Court (s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), in which event the power of a single judge exercising appellate jurisdiction to make the order permanently staying the proceeding is implied if not express (ss 32(3), 32(5) and 44(a)). The permanent stay was foreshadowed to the applicant and he was permitted to make further submissions in response thereto by way of procedural fairness, but they were ineffectual.

Ratio Decidendi

Legal Principle Established

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