Scott (No 4)
[2023] FedCFamC1A 239
•21 December 2023
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 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 13 December 2023, an order was made (Order 1) dismissing the applicant’s two applications to review the appeal registrar’s refusal to accept and file an Application in an Appeal proffered by the applicant for filing on 8 November 2023 within appeal suit number NAA 256/2023 (Scott (No 3) [2023] FedCFamC1A 227).
The applicant failed to attend the hearing fixed on 13 December 2023, at which time the judgment and reasons were pronounced ex tempore. Later the same day, the applicant prepared another Application in an Appeal within appeal suit number NAA 256/2023. Although the application is dated 13 December 2023, it was not received by the appeal registrar from the applicant until 14 December 2023 and was filed on that day.
The fresh application was promptly fixed for hearing before me on 21 December 2023. This time the applicant appeared electronically, as he requested.
The fresh application seeks this relief:
1.Order that pursant to Rules 10.13 and 10.14 FCFCoA to set asde orders and reasons for judgment dated 13 December 2023 as the matter was dealt with in my absent.
2.The matter to be expedited and listed by AVL Recuse Aldridge and Austin for these proceedings as they become apprehended bias.
3.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 Appeal 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].
If the above Order 1 is granted, then the following orders are requested;
4.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.
5.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].
6.Review [the Appeal Judicial Registrar’s] Decision, in his email between March-April 2023 and Septembr-October 2023.
7.Order that the Notice of Appeal emailed to the registrar on the 8 September 2023 allowed to be filed.
SYC59/201
9.Notes;
This apllication is to be heard between the parties of [the applicant] and [the wife] .
[The wife] does not oppose this application.
(As per the original)
Apart from proposed Orders 1 and 2, the application is, for all intents and purposes, identical to the application the applicant attempted to file on 8 November 2023, which was refused by the appeal registrar and confirmed by me to be an abuse of process by the orders and reasons published on 13 December 2023 (Scott (No.3) at [11]–[27]).
By proposed Orders 1 and 2, it is evident the applicant wants the applications which were determined in his absence on 13 December 2023 now re-determined, this time in his presence, but by another judge on account of his apprehension of my bias.
In support of the application, the applicant relied upon:
(a)his affidavits:
(i)sworn or affirmed on 30 October 2023, filed on 24 November 2023 (comprising some 154 pages); and
(ii)affirmed on 18 December 2023, filed on 20 December 2023 (comprising 251 pages).
(b)these documents:
(i)numerous exhibits tendered in the first instance proceedings (comprising 82 pages);
(ii)documents contained within a “joint court book”, apparently prepared for use in the first instance proceedings (comprising 140 pages);
(iii)documents which the applicant said he unsuccessfully tried to tender in evidence in the original proceedings (comprising 26 pages);
(iv)a selection of documents which were annexed to an affidavit filed by the applicant in the original proceedings (comprising 11 pages);
(v)documents exhibited to an affidavit affirmed by the applicant on 15 September 2020, filed in the original proceedings (comprising 93 pages); and
(vi)an affidavit affirmed by Mr Matten on 10 September 2022 and filed in proceedings before the Supreme Court of NSW, which proceedings the applicant asserted were transferred to the primary judge to determine in the original jurisdiction of the Court (comprising 230 pages).
(c)his written submissions:
(i)dated 8 March 2023 (comprising 55 pages), apparently used in the first instance proceedings; and
(ii)dated 16 October 2023 (comprising 11 pages).
The evidence adduced and the submissions made by the applicant are not fit for purpose.
The affidavits and the annexures thereto, in the main, simply replicate that which the applicant has placed before the Court in support of earlier applications.
The documents and the written submissions used (or intended for use) in the concluded first instance proceedings are of no use in the present appellate proceedings, at least not until leave to appeal has been granted.
The written submissions dated 16 October 2023 are identical to those he has previously filed in support of earlier interlocutory appellate applications.
Neither the evidence, nor the documents, nor the written submissions, nor the oral submissions made at the hearing (which were terminated after 90 minutes) explain why the applicant should now be able to re-contest the orders made in his absence on 13 December 2023.
Apprehended bias
None of the applicant’s evidence nor written submissions bore upon the asserted need for my disqualification for apprehended bias. At the hearing, the applicant did not apply for my disqualification.
My involvement with the applicant has been limited to the exercise of appellate jurisdiction in relation to litigation to which he is a party in these four instances:
(1)Scott & Munayallan [2022] FedCFamC1A 44
(2)Scott [2023] FedCFamC1A 161
(3)Scott (No 2) [2023] FedCFamC1A 184
(4)Scott (No 3) [2023] FedCFamC1A 227
Scott & Munayallan was determined by the Full Court on 1 April 2022. The applicant was present at the appeal hearing. He made no later complaint of bias, either to or about me, in the subsequent hearings.
Scott was determined by me as a single judge on 22 September 2023 on the papers at the applicant’s request. There was no hearing.
Scott (No 2) was determined by the Full Court on 27 October 2023 on the papers pursuant to the statutory authority identified in the reasons for judgment. There was no hearing.
Scott (No 3) was determined by me as a single judge on 13 December 2023 in open court when the applicant failed to appear, so there was no effective hearing.
It follows that the applicant can have no complaint of apprehended bias arising from judicial conduct during a hearing in open court, in which event the complaint could only arise from the applicant’s dissatisfaction with the dismissal of his appeal and applications, as explained in the multiple reasons for judgments. Therein lies the fatal flaw in the assertion of apprehended bias, which is not demonstrated by the applicant’s disappointment with the results achieved in the litigation (Newett & Newett (No.2) (2021) FLC 94-051 at [59] and [76]–[80]).
Judges do not choose their litigants and litigants do not choose their judges. Any objection raised by a party to a judge sitting should be dismissed unless based upon a substantial ground (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348; Bienstein v Bienstein (2003) 195 ALR 225 at 233). It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to meekly disqualify him or herself just because requested by a party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300 at 302).
No basis for my disqualification was made out by the applicant.
Rule 10.13(1)(a)
The applicant’s generic reference within the application to reliance upon r 10.13 and r 10.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) is liable to unintentionally mislead. Rule 10.14 does not apply.
The applicant can only resort to r 10.13(1)(a) of the Rules, on account of his non-appearance on 13 December 2023, to re-contest the orders made that day in his absence. But r 10.13(1)(a) is permissive, not obligatory. The Court may vary or set aside an earlier order made in the absence of a party, but is not mandated to do so.
Before the Court will be persuaded to vary or set aside an order made in a party’s absence, the aggrieved party must be able to demonstrate, first, a reasonable excuse for having failed to appear in the first instance, and secondly, reason to suspect the result might have been different had the party appeared and been able to present the case he or she intended (Allesch v Maunz (2000) 203 CLR 172 at [28] and [48]–[50]).
In this instance, the applicant cannot demonstrate either of those elements.
As to his failure to appear, the applicant deposed this in his affidavit sworn or affirmed on 18 December 2023:
3.On the 28 November 2023, I received an email from Eastern Appeal, stating the application in the appeal is listed for hearing by via Microsoft Teams at 9.30am on the 13 December 2023. The hearing was only involving me as a single party, no other party was appearing. I did not realize the hearing was changed from Microsoft Teams to appear in a physical court room 6A in Sydney Family Court until the morning of the 13 December 2023.
(As per the original)
The applicant failed to elaborate why it was not until the morning of the hearing that he realised the hearing had been changed from electronic format to in-person format. He was advised of the change by email a week before the hearing.
By an email sent to him by the appeal registrar at 1.44 pm on 6 December 2023, the applicant was notified this:
…I refer to the above matters and to previous correspondence. In particular I refer to my email to you of 28 November 2023. For your ease of reference I have attached a copy of my earlier email.
The National Appeal Registry Sydney has now been advised that the Honourable Justice Austin will deal with your Applications in an Appeal each filed on 24 November 2023 in person in the Sydney Registry. Please note carefully the following listing details.
The Applications in an Appeal are listed for hearing before the Honourable Justice Austin of the Federal Circuit and Family Court of Australia, (Division 1), Appellate Jurisdiction at 9.30am on Wednesday, 13 December 2023 in the Sydney Registry, Lionel Bowen Building, 97-99 Goulburn Street, Sydney, New South Wales in Courtroom 6A.
Please note that you are required to appear personally before his Honour at the above hearing in the Sydney Registry. …
(Emphasis in original)
The applicant alleges he began sending email correspondence to my chambers staff at 8.50 am on the morning of the hearing, but none was received or noticed before the hearing commenced at 9.30 am and concluded at about 9.43 am in his absence.
The applicant deposed in his affidavit affirmed on 18 December 2023:
4.On the morning of the 13 December 2023, I work up with a serve headache. I could not focus on my court hearing which was to occur later that morning. I took two Panadol’s and laid down for a while. I was still dazed, however I forced myself to get up and attended to my computer and further prepare for my family law court case.
(As per the original)
Evidently, the headache did not prevent the applicant from engaging in the email correspondence to which he referred during the morning. Nor did it prevent him from actually attending court because he deposed to arriving “just before 9.50 am”.
Even if the applicant did have a reasonable excuse for failing to attend the scheduled hearing, he is unable to offer any submission as to how the result of the hearing on 13 December 2023 could be any different. The reasons delivered on 13 December 2023 explain why the same applications he previously filed were properly rejected by the appeal registrar as abuses of process. The current application is a repetition and should be dismissed for the same reasons.
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.
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 (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393; Re Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193–195, 214–215, 217–218 and 222–223; R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 25–30; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263 and 267).
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 21 December 2023
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