SCVG & Estate of KLD (No 2)

[2021] FedCFamC1F 233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

SCVG & Estate of KLD (No 2) [2021] FedCFamC1F 233

File number(s):	SYC 4380 of 2008 SYC 5956 of 2016
Judgment of:	GILL J
Date of judgment:	25 November 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside order on the basis it was obtained by fraud – Application without reasonable ground – Attempt to rehash previous unmeritorious claim – Declared to constitute a vexatious proceeding.
Legislation:	Family Law Act 1975 (Cth) s 102Q
Division:	Division 1 First Instance
Number of paragraphs:	4
Date of hearing:	25 November 2021
Place:	Canberra
Solicitor for the Applicant:	Self-represented litigant
Counsel for the First Respondent:	Ms Knight
Solicitor for the First Respondent:	Macphillamy Lawyers
Solicitor for the Second Respondent:	Sparke Helmore Lawyers

ORDERS

SYC 4380 of 2008
SYC 5956 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SCVG
Applicant

AND:

ESTATE OF KLD

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	25 NOVEMBER 2021

THE COURT ORDERS THAT:

1.It is ordered that the Application in a Case seeking leave to commence proceedings filed 5 October 2021 by Mr SCVG is refused and dismissed.

2.I declare that that Application in a Case constitutes vexatious proceedings. 

IT IS FURTHER ORDERED THAT:

3.The substantive proceedings between the parties are set for trial to commence at 10 am on 8 February 2022 for a period of three days.

4.The proceedings are to be conducted as in-person proceedings. 

5.The Application in a Case filed on behalf of the Estate on 24 November 2021 is set for hearing at 2 pm on 7 December 2021 with such attendance to be via Microsoft Teams.

6.In the event that Mr SCVG wishes to oppose and/or file any material in respect of that Application in a Case he is required to file a response, and any such affidavit by 4 pm on 1 December 2021.

7.The Registrar is entitled at the Registrar’s election to decline to attend and participate in the hearing of this matter, save that should the Registrar determine that an application for costs should be made on the Registrar's behalf, the Registrar will be entitled to do so notwithstanding non-attendance at the trial.

8.Should the Registrar determine that the Registrar will not attend for the trial than the Registrar is required, within 21 days, to advise each the parties and the Court in writing of the Registrar's intention not to attend at the proceedings.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. The applicant seeks leave to institute proceedings and to issue subpoenas regarding the setting aside of a judgment previously given by me in relation to a claim wherein the applicant sought to restrain certain legal practitioners from acting against him.  He was unsuccessful in that application but now seeks to set aside that judgment on the basis that he asserts that it was procured by fraud. 

2. The previous contention was reliant on the notion that there had been sharing of confidential information between a barrister previously acting for the applicant and those now acting for the respondent Estate.  In the judgment that I gave on that matter I identified no such inference was reasonably available. 

3. The applicant now relies upon an affidavit to support a claim that that judgment was obtained by a fraud being perpetrated upon the Court.  Such a claim meets a high bar.  Here there is not the merest suggestion in the mix of submission, speculation and evidence contained in the applicant’s affidavit of such.  The assertion that there has been a deception on the Court is utterly without merit and seeks to rehash a previously unmeritorious claim.  It will be dismissed.

4. Prior to dismissing the matter however, it should be observed that for the reasons identified above the application for leave has been instituted and pursued in this Court without any reasonable ground whatsoever. By virtue of meeting that description it also meets the description set out at s 102Q of the Family Law Act 1975 (Cth) of being vexatious proceedings. A declaration will be made identifying that fact.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       25 November 2021