Searle & Pencious

[2016] FamCA 135

FAMILY COURT OF AUSTRALIA

SEARLE & PENCIOUS [2016] FamCA 135

FAMILY LAW – PRACTICE & PROCEDURE – Application by the wife for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the husband has frequently instituted vexatious proceedings in this Court and other courts and tribunals – where the proceedings have a long history – final orders made prohibiting the husband from instituting proceedings without first obtaining leave of the Court

Family Law Act 1975 (Cth), s 102QB
Vexatious Proceedings Act 2008 (NSW)
Family Law Rules 2004 (Cth)

Attorney-General (NSW) v Gargan [2010] NSWSC 1192
Cannon & Acres [2014] FamCA 104
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Pencious & Pencious [2010] FamCA 605
Pencious & Pencious [2012] FamCA 74
Pencious & Pencious (No 2) [2012] FamCA 212
Pencious & Pencious (No 2) [2013] FamCA 748
Pencious & Searle (2015) FLC 93-627; [2015] FamCAFC 2
Pencious & Searle [2015] FamCA 504
Pencious & Searle (No 2) [2015] FamCA 608
Pencious & Searle (No 2) [2015] FamCAFC 112
Pencious & Searle and Ors [2016] FamCAFC 27
Searle (formerly Pencious) & Pencious and Anor [2013] FamCA 375
Searle & Pencious [2013] FamCA 756
Searle Pty Ltd & Pencious and Ors [2013] FamCA 717

APPLICANT: Ms Searle

RESPONDENT: Mr Pencious

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 7 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 22 May, 20 August and 8 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: Tasiopoulos Lambros & Co

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT:

1. Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the respondent husband, Mr Pencious, be prohibited from instituting proceedings under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.

2. Paragraphs 1, 2, 3, 4, 5, 7 and 8 of the husband’s Application in a Case filed 24 March 2015 and paragraphs 2, 3, 4, 5, 7, 8 and 9 of the wife’s Application in a Case filed 24 April 2015 be adjourned for further hearing in the Judicial Duty List at 10.00 am on 3 May 2016.

3. The question of costs arising out of or incidental to the wife’s application for a vexatious proceedings order be reserved for determination.

4. On or before 4.00 pm on 28 March 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the wife’s application for a vexatious proceedings order.

5. On or before 4.00 pm on 11 April 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the wife’s application for a vexatious proceedings order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Ms Searle

Applicant

And

Mr Pencious

Respondent

REASONS FOR JUDGMENT

1. On 24 March 2015 the husband filed an Application in a Case in which he sought the following orders:

   1.That the Orders of the Honourable Justice Cronin 5 April 2012 be stayed.

   2.That Registrar Riddiford be disqualified from further hearing of the Costs Assessment pursuant to the Orders of 5 April 2012 or any other matter involving the husband before this Honourable Court.

   3.That the Orders made by Regisrar [sic] Riddiford pursuant to the Costs Assessment on 25/11/13; 10/12/2013; 19/02/14; 21/03/14; be discharged.

   4.That any Orders made or proposed to be made by Registrar Riddiford arising from the Costs Assessment on 11/03/2015 & 12/03/2015 be discharged.

   5.That the Wife pay back the Husband, within 7 days all the amounts paid by the Husband to the wife or to the Wife’s legal representatives, pursuant to the Orders referred to in 3 & 4 above with interest of an amount to be determined by this Honourable Court.

   6.That this Honourable Court grant the Orders sought in my Notice of Appeal filed 27 January 2015.

   7.That the Husband’s Costs thrown away as a result of an incidental to the Costs Conference hearings be awarded to the Husband on an indemnity basis.

   8.That the wife pay the Costs of the husband, for and incidental to this Application on an indemnity basis.

   9.Any other Order that this Honourable Court deems appropriate.

2. The wife in her Application in a Case filed 24 April 2015 then sought amongst other orders a vexatious proceedings order.

3. Both the husband’s Application in a Case and the wife’s Application in a Case, including her application for a vexatious proceedings order, were listed for hearing before me in the Judicial Duty List on 5 May 2015.

Background

1. The husband and the wife in this case were married in 1988. They physically separated in or about December 2008 when the wife left the former matrimonial home with the children of the marriage. The wife commenced proceedings in this Court in December 2008 seeking both parenting and property orders.

2. The wife is 50 years of age and is self-employed.

3. The husband is 50 years of age and according to documents he has filed in these proceedings currently unemployed. The wife’s case is that he has claimed to be unemployed since resigning from his employment in August 2008.

4. The wife lives in what was the former matrimonial home with the two children of the marriage who are now aged 22 and 19 years of age. It is the wife’s case that the husband stopped paying any child support shortly after separation and she has borne all the responsibility for the financial support of the children since that time, including paying private school fees. The wife also says that she has been the parent who has been largely responsible for the children’s physical and emotional support and that the children have not spent any time with the husband, the eldest child since May 2009 and in the case of the youngest child since March 2010.

Documents Relied Upon

1. The wife relied upon the following documents:

   ·Application in a Case filed 24 April 2015;

   ·Affidavit of the wife filed 24 April 2015; and

   ·Affidavit of the wife filed 9 September 2015.

2. The husband relied upon the following documents:

   ·Application in a Case filed 24 March 2015;

   ·Affidavit of the husband filed 24 March 2015;

   ·Affidavit of the husband filed 1 April 2015;

   ·Affidavit of Mr DS filed 1 April 2015;

   ·Affidavit of the husband filed 1 May 2015; and

   ·Affidavit of the husband filed 12 June 2015.

3. Both the husband and the wife filed detailed written submissions and I heard oral submissions in support of and in addition to their written submissions.

Standard of Proof

1. The standard of proof in this case is the balance of probabilities. The parties did not give oral evidence and were not cross-examined and this is not a case that turned to any significant extent upon whose evidence, when that evidence was in dispute, should be accepted. Rather it was a question of what conclusion the Court might draw as to whether or not the husband had instituted or conducted vexatious proceedings and as to the frequency of those proceedings based primarily upon the history of those proceedings.

History of the Proceedings

1. This matter has a lengthy history both in this Court, other courts and tribunals and before other bodies, organisations and authorities. I do not propose to include every single hearing or event but it is necessary for the purposes of the application before me to set out the procedural history in some detail.

2. On 8 December 2008 the wife filed an Initiating Application in which she sought both parenting orders and property settlement.

3. The wife deposes that after she issued that application, the husband made numerous complaints against her then solicitor Mr Adrian Abrahams and/or his employee Ms Deanna Freeman to the Legal Services Commissioner, Victoria Legal Aid and the Law Institute Ethics Committee all of which, including an appeal against the decision of the Law Institute Ethics Committee, were dismissed.

4. On 3 December 2009 the husband filed an Application in a Case seeking to restrain Adrian Abrahams Family Lawyers from acting on the wife’s behalf in the proceedings. This application was on foot for approximately two years culminating in a hearing before Cronin J conducted over eight days commencing on 8 February 2011 and concluding on 9 February 2012.  On 28 February 2012 Cronin J dismissed the husband’s application that Adrian Abrahams Family Lawyers be restrained from acting on behalf of the wife (Pencious & Pencious [2012] FamCA 74) and on 5 April 2012 he ordered the husband to pay the wife’s costs of and incidental to that application on an indemnity basis. The husband was also ordered on that same day to pay the costs of the Independent Children’s Lawyer with respect to his application (Pencious & Pencious (No 2) [2012] FamCA 212).

5. On 27 March 2012 the husband filed a Notice of Appeal against Cronin J’s orders made 28 February 2012 (SOA 24 of 2012), once again seeking orders restraining Adrian Abrahams Family Lawyers from acting on behalf of the wife in the parenting and property settlement proceedings.

6. On 23 May 2012 the Appeals Registrar conducted a directions hearing and ordered that the husband file appeal books by 4 July 2012. When the husband failed to comply with the order for the filing of the appeal books his appeal was deemed abandoned. The parties were notified accordingly by letter dated 9 July 2012.

7. On 26 February 2010 the husband filed an Application in a Case seeking to join the wife’s parents as parties to the property proceedings, that her parents repay monies paid to them by the wife and that the husband have access to those funds to meet his legal costs. On 21 April 2010 Cronin J heard the husband’s application for joinder and reserved judgment. On 20 July 2010, his Honour delivered reasons and made orders dismissing the husband’s application for joinder on the basis that he was not satisfied as to his jurisdiction to make the orders sought against the wife’s parents and further that the husband did not sufficiently identify what material facts would be relied upon giving rise to a cause of action against the wife’s parents (Pencious & Pencious [2010] FamCA 605). His Honour also made orders dismissing the responses of each of the wife and the wife’s parents, save as to any issue of costs.

8. On 9 September 2010 Cronin J made orders by consent that “the husband pay to the wife’s solicitors the sum of $9000 on or before 9 December 2010 in full satisfaction of her costs in respect of the application of the husband [for joinder] filed on 26 February 2010 and the wife’s response filed 19 April 2010”.

9. On 6 January 2011 the husband applied to the Victorian Civil and Administrative Tribunal (“VCAT”) seeking orders that ML Pty Ltd (“ML”) provide him with a key to the German motor vehicle that had been used exclusively by the wife since separation. The wife deposes that on 19 May 2011 she received notice of an order made by VCAT adjourning the husband’s application so that the husband could apply to join her as an interested party to the proceedings. Although it is the husband’s evidence that he did not apply to join the wife, there is no dispute that the wife was made a party to the proceedings. In any event on 1 July 2011 VCAT dismissed the husband’s application.

10. On 27 November 2012 the husband filed a Statement of Claim seeking orders against Searle Holdings Pty Ltd (“Searle Holdings”), a company controlled by the wife’s parents which acted as trustee of the Searle Family Trust, that trust being established by the wife’s parents in 1977. The husband alleged that the wife had a legal or beneficial interest in the trust which should be treated as property for the purposes of the property proceedings in this Court, that the trust was indebted to him and he sought orders restraining the wife’s parents as appointors of the Searle Family Trust from dealing with the assets of the trust, that they be directed to pay him such sum as the Court determined from the trust and that he be permitted to recover the monies owed to him by the trust. On 29 January 2013 Benjamin J ordered that Searle Holdings be joined as a party to the proceedings and the company was thereafter separately represented in the proceedings.

11. The property proceedings were heard by Benjamin J over nine days commencing on 29 January 2013 and concluding on 13 May 2013. On 28 May 2013 Benjamin J handed down his judgment and made orders including an order dismissing the husband’s claims against Searle Holdings and the Searle Family Trust (Searle (formerly Pencious) & Pencious and Anor [2013] FamCA 375) finding that the wife did not have a “fixed and irrevocable entitlement to a share of the trust”. On 25 June 2013 the husband filed a Notice of Appeal against paragraphs 1, 3, 5, 6, 7, 8 and 9 of Benjamin J’s orders made 28 May 2013. Those orders related to:

    ·the payment by the wife to the husband of $346,720 subject to any order the Court may make to apply all or part of that sum towards any outstanding costs orders in favour of the wife and/or any security for costs order made against the husband (with the wife given leave to file an application in a case seeking orders to deduct from the $346,720 payment the amount payable to her pursuant to the costs order made on 5 April 2012);

    ·the husband indemnifying the wife with respect to any liability she might have as a result of his debt to Citibank;

    ·general orders providing for each party to retain property and superannuation benefits in their possession and/or control;

    ·a direction that any application for costs by any or all of the parties be dealt with in accordance with the Family Law Rules 2004 (Cth); and

    ·the dismissal of all extant applications.

12. On 2 June 2014 the husband filed an amended Notice of Appeal which contained 26 grounds of appeal. At the hearing of the appeal on 2 July 2014 the husband abandoned 16 of those 26 grounds of appeal.

13. On 14 August 2013 Benjamin J ordered that the husband pay the costs of Searle Holdings in relation to the property proceedings and its application for costs on a party/party basis (reasons delivered on 13 September 2013, see Searle Pty Ltd & Pencious and Ors [2013] FamCA 717). Benjamin J also made orders that day which required the sum of $157,833.79 of the $346,720 to be paid by the wife to the husband pursuant to his orders made 13 May 2013 to be held on trust by both the solicitors for the husband and the wife as security for the costs payable by the husband to the wife pursuant to the order made by Cronin J on 5 April 2012. Benjamin J also ordered that a further sum of $100,000 of the $346,720 payable by the wife to the husband be held on trust as security for the costs payable by the husband to Searle Holdings (reasons delivered 13 September 2013, see Searle & Pencious [2013] FamCA 756 and Searle Pty Ltd & Pencious and Ors [2013] FamCA 717). On 10 September 2013 the husband filed a Notice of Appeal against the orders made by Benjamin J on 14 August 2013 that the husband pay the costs of Searle Holdings on a party/party basis and that the wife pay the amount of $100,000 to be held on trust as security for that costs order.

14. On 10 September 2014 the Full Court dismissed both the husband’s appeal against Benjamin J’s orders made 28 May 2013 and his orders made 14 August 2013. On 8 October 2014 the husband filed an Application for Special Leave to Appeal to the High Court. The High Court dismissed that application on 5 March 2015.

15. On 21 March 2014 the husband filed an Application in an Appeal seeking to reinstate his Notice of Appeal against the orders made by Cronin J on 28 February 2012, deemed abandoned when he failed to file the appeal books. That application was heard by Strickland J on 7 May 2014. On 13 January 2015 Strickland J dismissed the husband’s application and on 9 February 2015 the husband filed an Application for Special Leave to Appeal to the High Court. That application was dismissed by the High Court on 5 May 2015.

16. On 8 January 2015 the husband filed an Application in an Appeal seeking an extension of time to appeal against Cronin J’s orders made 20 July 2010 dismissing his application to join the wife’s parents as parties to the property proceedings and the order for costs arising out of that application made by consent on 9 September 2010 (SOA 3 of 2015). The husband’s application for an extension of time to appeal was heard by Strickland J on 6 May 2015 and judgment reserved.   

17. On 27 January 2015 prior to filing his Application for Special Leave to Appeal to the High Court against the decision of Strickland J dismissing his Application in an Appeal to reinstate his appeal against the orders made by Cronin J on 28 February 2012, the husband attempted to file an Application in an Appeal seeking an extension of time to appeal against Cronin J’s orders of 28 February 2012. The Appeals Registrar refused to accept that application and on 16 February 2015 the husband filed an Application in an Appeal seeking a review of the registrar’s decision (SOA 24 of 2012). That application was also heard by Strickland J on 6 May 2015 and judgment was reserved.

18. On 27 January 2015 the husband also filed an Application in an Appeal seeking an extension of time to appeal against the order made by Cronin J on 5 April 2012 that the husband pay the wife’s costs on an indemnity basis of and incidental to the husband’s unsuccessful application that Adrian Abrahams Family Lawyers be restrained from acting on behalf of the wife (SOA 5 of 2015). Strickland J similarly heard that application on 6 May 2015 and judgment was reserved.

19. Since the conclusion of the hearing before me all three Applications in an Appeal heard by Strickland J on 6 May 2015 have been dismissed.

20. The order for costs made by Cronin J on 5 April 2012 has itself generated significant and ongoing litigation.  Subsequent to the husband’s appeal against Cronin J’s order made 28 February 2012 being deemed to be abandoned, the wife’s then solicitors filed an itemised account. On 5 December 2012 Registrar Riddiford issued a preliminary costs assessment of $156,609.30. On 21 December 2012 the husband objected to the preliminary costs assessment and requested that a cost assessment hearing be conducted.

21. The costs assessment hearing was first listed for hearing before Registrar Kaur on 21 August 2013. On that date the husband challenged the scope of the order made by Cronin J claiming that it was limited to the hearing itself. Accordingly Registrar Kaur wrote to Cronin J asking him to clarify the scope of his order made 5 April 2012. On 3 October 2013 Cronin J made an order in chambers “[t]hat the Registrar assess the costs pursuant to the orders made 5 April 2012 according to the ruling this day”, that ruling being that the parties agree that the costs are to be assessed in relation to the discrete proceedings about the restraint of the wife’s solicitors (see Pencious & Pencious(No 2) [2013] FamCA 748).

22. On 22 October 2013 the costs assessment proceeded before Registrar Riddiford who ordered the husband to pay $50,634.84 costs as assessed.  At the second hearing of the costs assessment before Registrar Riddiford on 20 November 2013, the wife’s costs were assessed and the husband was ordered to pay a further $10,870.76. Those costs were paid from the moneys held as security for costs pursuant to the orders made by Benjamin J on 14 August 2013 as detailed above.

23. The costs assessment was listed for further hearing on 19 February 2014. The husband sought and was granted an adjournment on the basis that he pay the wife’s costs fixed in the sum of $2,760. At the further hearing of the costs assessment on 21 March 2014 the matter was again adjourned on the husband’s application and he was ordered to pay the wife’s costs fixed in the sum of $3,950. The husband has not paid either amount he was ordered to pay on 19 February 2014 or 21 March 2014.

1. On 21 March 2014 the husband applied for a stay of the costs assessment by Registrar Riddiford which had commenced in 2012. The wife consented to the husband’s application for a stay, she said, in order to avoid incurring further legal costs associated with opposing that application.

2. The costs assessment hearings continued on 11 and 12 March 2015 and the husband was ordered by Registrar Riddiford to pay further assessed costs of $13,975.93.  

3. On 24 March 2015 following the costs assessment hearing on 11 and 12 March 2015 the husband filed his Application in a Case seeking inter alia a stay of the orders made by Cronin J on 5 April 2012, the disqualification of Registrar Riddiford from the hearing of any further costs assessment and the discharge of all orders previously made arising out of that assessment.

4. The husband had previously complained to the Attorney-General for the Commonwealth of Australia by letter dated 21 October 2014. That letter was in relation to what he asserted had been a miscarriage of justice as a result of a legal practitioner having “coached” a witness during the injunctive proceedings which he said led to an adverse judgment and an oppressive order that he pay indemnity costs. The husband further asserted in that letter that approximately 12 months after the orders were made by Cronin J the husband received documents from that same legal practitioner which demonstrated that the “evidence given by that legal firm’s office in Court was false” and that the Court had been misled.

5. On 6 January 2015 the husband wrote to the Chief Justice of this Court complaining about the actions of Court officials and legal practitioners which he said had resulted in him being denied a fair process and natural justice. His complaints included legal practitioners giving false evidence and misleading the Court in the injunctive proceedings, the Registrar conducting the costs assessment indicating during the hearing that he was aware of confidential legal advice the husband had been given in relation to his application seeking to restrain the wife’s legal practitioners from acting on her behalf, and the same legal practitioner yelling out answers to his client in the witness box during the hearing of the property proceedings before Benjamin J. 

6. These letters and the responses to the husband were annexed to the husband’s affidavit filed 24 March 2015 in support of his Application in a Case seeking inter alia a stay of the costs assessment and the disqualification of Registrar Riddiford.

7. At the commencement of the hearing before me in the Judicial Duty List on 5 May 2015 the husband made an oral application to restrain Mr Wood of counsel from appearing on behalf of the wife. Due to time constraints on that day, I made orders adjourning that oral application part-heard to 22 May 2015. On 22 May 2015 I dismissed that oral application.

8. During the hearing before Strickland J on 6 May 2015 the husband made three oral applications. The first of those applications was an application that Strickland J be disqualified from further hearing the matter. His Honour heard and dismissed that application before dealing with the husband’s other oral applications that Mr Wood of counsel be restrained from appearing on behalf of the wife on the hearing of his Applications in an Appeal and the adjournment of the husband’s Applications in an Appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015. It was the husband’s case that there was evidence relevant to his Applications in an Appeal and his application that Mr Wood of counsel be restrained from appearing on behalf of the wife which he needed  to put before the Court and that these matters should not proceed in the absence of that evidence.   

9. That evidence which the husband said he wished to put before the Court included a letter which had been the subject of both a subpoena and a Notice to Produce addressed to the wife in the proceedings before me in the Judicial Duty List on 5 May 2015 (which I subsequently struck out on 22 May 2015) and an Application in an Appeal which had been forwarded to the Appeals Registrar on 27 April 2015 seeking orders for the wife to produce the letter in question. In his reasons delivered on 6 May 2015 Strickland J noted that the husband’s application and his affidavit in support of that application had been returned to the husband under cover of a letter dated 28 April 2015 advising the husband of the Appeals Registrar’s reasons for refusing to accept the documents for filing and referring him to the relevant Family Law Rules 2004 (Cth). Strickland J in his reasons also referred to the fact that the husband had then amended that application and sought to file that amended application on 1 May 2015. That application came before the Appeals Registrar on 4 May 2015 who refused to accept the amended application for filing and returned it to the husband referring him to the letter of 28 April 2015.

10. Strickland J dismissed the husband’s oral applications for an adjournment and that Mr Wood of counsel be restrained from appearing on behalf of the wife in the proceedings before him. 

11. The husband thereafter filed Applications for Special Leave to Appeal to the High Court against each of Strickland J’s decisions with respect to the three oral applications.  On 4 November 2015 the High Court dismissed all three Applications for Special Leave to Appeal to the High Court on the basis that the materials filed in support of those applications did not identify any question of law suitable for the grant of  special leave to appeal.

12. Finally on the last day of the hearing of the wife’s application for a vexatious proceedings order before me, the husband made an oral application that I be disqualified from further hearing the matter. On 8 October 2015 I dismissed that application before proceeding with the hearing of the matter and reserving judgment.   

Legal Principles

1. Section 102QB(2) of the Family Law Act 1995 (Cth) (“the Act”) provides that the court may make any or all of the following orders:

   (a)an order staying or dismissing all or any part of proceedings already instituted by the person;

   (b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

   (c)any other order the court considers appropriate in relation to the person. 

2. Pursuant to s 102QB(3) of the Act, the court may make such an order on its own initiative or, as in this case, upon the application of a person against whom vexatious proceedings are alleged to have been instituted or conducted. Section 102QE(2) of the Act provides that a person who is subject to a vexatious proceedings order may apply to the court for leave to institute proceedings that are subject to the order. However, in order to make such an application for leave, pursuant to s 102QE(3) of the Act the person the subject of the vexatious proceedings order must file an affidavit in support of that application that:

   (a)lists all the occasions on which the applicant has applied for leave under this section;

   (b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

   (c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

3. The court may make a vexatious proceedings order in circumstances where it is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (s 102QB(1)(a) of the Act).

4. The expression vexatious proceedings is defined in s 102Q(1) of the Act as including:

   (a)proceedings that are an abuse of the process of a court or tribunal; and

   (b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

   (c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and

   (d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

5. This list of examples in s 102Q(1) of the Act is not intended to be exhaustive.

6. In Cannon & Acres [2014] FamCA 104 (“Cannon & Acres”) Benjamin J referred to the approach of Davies J in Attorney-General (NSW) v Gargan [2010] NSWSC 1192 (“Gargan”) in which his Honour at paragraph 8 set out the principles relating to vexatious litigants by reference to the earlier decision of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398. Whilst the proceedings in this case are conducted on the basis of the provisions of s 102QB of the Act and the definition of “vexatious proceedings” in s 102Q(1) of the Act, that list, as previously referred to, is not an exhaustive list, and the principles enunciated by Davies J provide some insight into the nature of proceedings for an order of this kind. Davies J said at paragraph 8 as follows:

   … his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.

   [2]A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.

   [3]Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

   [4]Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

   [5]Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

   [6]Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

   [7]Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

   [8]Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

   [9]Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct. 

   [10]Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

   …

   [12]Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.

7. In Cannon & Acres at paragraph 446, Benjamin J referred to the Full Court decision of Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177 (“Marsden & Winch”) at paragraph 81 where the Full Court referred to the following test in relation to “vexatious proceedings” as follows:

   1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

   2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

   3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable of manifestly groundless to be utterly hopeless.

8. The husband submitted that although he has filed various applications which have been dismissed, none have been dismissed because they were either frivolous or vexatious. He relied in support of that submission upon the decision of the Full Court in Marsden & Winch in particular paragraph 145 in which the Full Court said “[a] finding that the proceedings are “vexatious” is thus a precondition to any order under s 118 and r 11.04…”.

9. The Full Court went on to say at paragraph 157, as referred to by the husband in this case in his written submissions, as follows:

   Although the father has filed and prosecuted numerous applications in the court, not all of which have been successful, none has been dismissed as being either frivolous or vexatious. Similarly, the proceedings before the trial judge were unsuccessful but his Honour’s reasons do not suggest that the proceedings were vexatious.

10. What the husband did not appear to appreciate is that the Full Court in Marsden & Winch was considering and applying the provisions of s 118 of the Act not s 102QB(2) of the Act which applies in this case. Section 118 of the Act provided as follows:

    (1)The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

    (a)dismiss the proceedings;

    (b)make such order as to costs as the court considers just; and

    (c)if the court considers appropriate, on the application of a party to the proceedings -- order that the person instituted proceedings shall not, without leave of a court having jurisdiction under this Act, Institute proceedings under this Act of the kind or kinds specified in the order;

    …

11. As highlighted by Benjamin J in Cannon & Acres at paragraph 420 there are two fundamental differences between the provisions of s 118 of the Act and the new section. Firstly that “[t]he test is no longer a court having frivolous or vexatious proceedings before it but rather whether or not there is a history of a person having frequently instituted or conducted vexatious proceedings” in this court or other Australian courts or tribunals and secondly that the Act now contained a definition of vexatious proceedings.

12. Section 102QB(6) of the Act provides that for the purposes of determining whether a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals or has acted in concert with another to do so the court may have regard to:

    (a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

    (b)orders made by any Australian court or tribunal; and

    (c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

    including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

13. The court must not make a vexatious proceedings order in relation to a person without hearing that person or giving them the opportunity to be heard (s 102QB(4) of the Act). The husband against whom the order is sought in this case was given the opportunity to be heard and participated in and represented himself in these proceedings. The matter was heard over three days commencing on 22 May 2015 and concluding on 8 October 2015.

14. The approach adopted by Benjamin J in Cannon & Acres at paragraph 440 was, in summary, to:

    ·determine which proceedings constitute vexatious proceedings instituted in Australian court and tribunals;

    ·if there have been vexatious proceedings, determine whether such proceedings have been instituted and/or conducted frequently; and

    ·if the threshold test that there have been vexatious proceedings instituted or conducted frequently in Australian courts or tribunals is met, determine whether to exercise the court’s discretion to make a vexatious proceedings order and the scope and nature of that order.

1. I propose to adopt a similar approach as that adopted by Benjamin J in this matter.  

The Proceedings Relied Upon by the Wife in Support of her Application

1. Counsel for the wife pointed to what he says was the sheer volume of applications particularly since both the parenting and property proceedings were concluded, specifically in relation to or arising out of the hearing before Cronin J and the subject of his orders made 28 February 2012. However counsel for the wife also directed me to particular applications which he submitted the Court should find were “vexatious proceedings” as defined by the Act.

The Husband’s Application filed 3 December 2009

1. As previously referred to on 3 December 2009 the husband filed an Application in a Case in which he sought an injunction restraining the wife’s then solicitors, Adrian Abrahams Family Lawyers, from continuing to act on her behalf in these proceedings. That application was heard by Cronin J over a period of eight days and on 28 February 2012 his Honour dismissed the husband’s application. On 5 April 2012 Cronin J ordered that the husband pay the wife’s costs of those proceedings on an indemnity basis. Cronin J said at paragraph 68 of his reasons delivered on 28 February 2012 (Pencious & Pencious [2012] FamCA 74) as follows:

   The cross-examination of the husband otherwise about the injunction concerning Mr Abrahams was also directed to the husband’s motivation. Whilst his motivation was expressed to be the pursuit of justice and the reunification of his relationship with his children, I do not accept that that was really his intent. His observation about bringing the wife “to account” in this proceeding is a good example of his motivation.

2. Although Cronin J did not go as far as to say, as he was asked to do by counsel for the wife during the course of the hearing of the wife’s application for costs, that the husband’s motivation for pursuing his application was improper and inappropriate, he did say at paragraph 19 of his reasons delivered on 5 April 2012  (Pencious & Pencious (No 2) [2012] FamCA 212) that the husband was “…misguided, had extensive legal advice and pursued the issue over an extensive period of time requiring all major witnesses to be called for cross-examination” and that he had put the wife to “unnecessary and unjustifiable expense”.

3. In his reasons delivered on 5 April 2012 Cronin J also referred to the offer the wife had made to settle the matter contained in a letter dated 15 September 2011 in which the wife’s solicitor offered to withdraw from the proceedings on the basis of a number of conditions (Pencious & Pencious (No 2) [2012] FamCA 212).

4. Cronin J said with respect to that offer of settlement at paragraph 25 as follows:

   … The terms of the offer in this case were magnanimous and sensible. The husband rejected the proposal which if it had been accepted, would have enabled the wife to have moved to a new firm of solicitors and have the substantive proceedings concluded. The husband’s approach as set out in the response of his solicitor at that time smacks of his obsession. It is almost trite to say that the husband chanced his arm and lost.

5. Given that ostensibly the purpose of the husband’s application was to restrain the wife’s solicitor from acting on her behalf, I am satisfied that it is reasonable to infer, in circumstances where the wife made what Cronin J described as a “magnanimous and sensible offer” to resolve the matter which would, if accepted by the husband, have resulted in the wife engaging new solicitors, that the proceedings were pursued by the husband for some other purpose.

6. In all of the circumstances I am satisfied that the husband’s application to restrain the wife’s then solicitors from acting on her behalf which was instituted or, at the very least, continued in the face of what Cronin J found was a sensible offer by the wife to resolve the matter, was intended to harass or annoy the wife, cause delay or, most likely, as the husband said, to bring her “to account”. I am satisfied it was in those circumstances a vexatious proceedings as defined by s 102Q(1) of the Act.

Proceedings Subsequent to Cronin J’s decisions of 28 February 2012 and 5 April 2012

1. As previously referred to on 27 March 2012 the husband filed a Notice of Appeal against the orders made by Cronin J on 28 February 2012. When the husband failed to comply with the directions of the Appeals Registrar for the filing of appeal books his appeal was deemed abandoned. In circumstances where I have found that I am satisfied on the balance of probabilities that the proceedings from which the appeal arose were intended to harass or annoy the wife or to bring her “to account”, it is in my view reasonable to infer that the husband’s motivation vis-à-vis the appeal was similarly questionable.

2. On 21 March 2014 some 20 months after the husband’s appeal against the orders made by Cronin J on 28 February 2012 was deemed abandoned the husband filed an Application in an Appeal seeking to reinstate that appeal.

3. In both his written and oral submissions for the purposes of the hearing before me the husband referred repeatedly to the wife, her parents, the wife’s former solicitor and her counsel Mr Wood having “either deliberately failed to make full and frank disclosure in earlier proceedings or suppressed and withheld evidence that should have been disclosed to the court”. It is this allegedly “suppressed evidence” which appears to underpin not only the husband’s submissions in this case but also the various Applications in an Appeal and his Application in a Case with respect to the costs assessment that have followed. Given that is the case and in order to understand the husband’s case it is necessary to consider the evidence which the husband says has been suppressed and how that impacts on the case before me.

4. The first piece of what the husband referred to as the “suppressed evidence” which underpinned his Application in an Appeal to reinstate his appeal against the orders of Cronin J made 28 February 2012 was what he said was the misleading evidence of Ms D. It is the husband’s case that during the costs assessment he became aware of a number of items charged by the solicitors for the wife which he said demonstrated that Ms D, a secretary in the employ of Adrian Abrahams Family Lawyers who gave evidence in support of the wife during the hearing of the husband’s application to restrain the firm from acting on behalf of the wife, had given misleading evidence. In his reasons delivered on 13 January 2015 Strickland J observed that this allegedly misleading evidence seemed to have been the catalyst for the continuing litigation which on the evidence before me seems to be the case at least until March 2015 when the husband says be became aware of the letter sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel dated 15 October 2010.

5. Strickland J said at paragraph 14 of his reasons (Pencious & Searle (2015) FLC 93-627; [2015] FamCAFC 2) as follows:

   … As to the paragraphs of the affidavit referred to, paragraphs 5 and 6 identify events that had occurred before the Notice of Appeal was even filed, and all paragraph 7 reveals is that subsequent to the order of 5 April 2012 a copy of the wife’s itemised costs account was made available to the husband and his solicitors. In that regard it is unchallenged that the account would have been received on or about 2 July 2012. However, none of that provides any explanation for either the failure to comply with the order for the filing of the appeal books, or the almost 20 month delay in filing the application. Further, senior counsel for the wife points out in his written summary of argument, that by a Notice disputing the itemised costs account dated 7 November 2012, the husband specifically objected to items 355, 356, 358, 359 and 361 in the wife’s itemised costs account. It is said, and I accept, that that demonstrates that at least by 7 November 2012, still some 16 months before the application is filed, the husband and/or his solicitor had specifically considered the contents of each of those items.

6. Significantly Strickland J observed, in summary, in dismissing the husband’s application as follows:

   ·that insofar as the husband submitted that circumstances had arisen, i.e. that he had obtained the evidence he said had been suppressed during the course of the costs assessment process, in circumstances where he had received a copy of the wife’s itemised account on or about 2 July 2012, that new information had been available to him since that date yet he had not filed his Application in an Appeal for leave to reinstate that appeal until 21 March 2014;

   ·that by way of a Notice disputing the itemised costs account dated 7 November 2012, still some 16 months before his application was filed, the husband had specifically objected to the items which he said demonstrated that Ms D had given misleading evidence which his Honour accepted demonstrated that the husband and/or his solicitor had specifically considered those particular items, and which his Honour said reflected upon the bona fides of the husband putting his application on that basis;

   ·his Honour also accepted, as submitted by senior counsel for the wife, that the husband required leave to appeal as the application determined by Cronin J was an interlocutory application and that no leave was sought in the Notice of Appeal and no facts were presented that demonstrated an error of principle or substantial injustice as required if leave were to be granted; and

   ·as his Honour also pointed out, there was one and only one ground of appeal that the “learned Trial Judge erred in law by dismissing the Husband’s Application to restrain the Wife’s Solicitors from acting on her behalf” and that this was a mere assertion and failed to identify any error of law alleged to have been made by the trial judge.

7. Although as submitted by the husband both in his written submissions and during the hearing before me it is correct that Strickland J did observe at paragraph 27 of his reasons delivered on 13 January 2015 that he was “… not in a position to be definitive about whether there is merit in this argument, and I must concede that it is arguable” this was in relation to the submissions made by counsel for the husband that Cronin J had applied the wrong test in that he did not apply the test in McMillan & McMillan (2000) FLC 93-048, not with respect to the husband’s allegations in relation to the suppression of evidence.

8. Despite the deficiencies he had identified in the husband’s case, in the interests of justice, Strickland J permitted counsel for the husband to explain the asserted error of law at which time it was submitted that Cronin J, as previously referred to, had applied the wrong test.

9. However as pointed out by Strickland J in his reasons for judgment delivered 13 January 2015, for any test to be applied there needed to be evidence of the alleged inconsistency between what Ms D said in her oral evidence to Cronin J and what appears in the itemised bill of costs. Strickland J further said that that evidence casting doubt upon the evidence of Ms D would, if leave were granted to reinstate the appeal, need to be the subject of an Application in an Appeal to adduce further evidence (which was not addressed by the husband’s counsel) and  not only would the principles in CDJ v VAJ (1998) 197 CLR 172 need to be satisfied but that the further evidence could not be controversial or require cross-examination. Strickland J concluded such an application would fail on both counts. His Honour also observed that not only was the evidence which was sought to be adduced controversial but insofar as it related to the credit of a witness rather than the issues of fact in question, it could not give rise to a different result.

10. At paragraphs 28 – 29 of his reasons delivered on 13 January 2015 his Honour also addressed what he said was the futility of the appeal in circumstances where the interlocutory order the subject of the appeal was made in the context of parenting proceedings which were concluded by orders made by consent on 22 May 2011, prior to the order the subject of the appeal being made, and where the property proceedings, the only substantive proceedings then on foot, were concluded by way of orders made by Benjamin J on 23 May 2013. As his Honour also pointed out, although the husband did appeal against those orders, that appeal had been dismissed. The husband’s Application for Special Leave to Appeal to the High Court with respect to the final property proceedings was also dismissed on 5 March 2015. This highlights not only the futility of the husband’s appeal from the orders made by Cronin J on 28 February 2012 and his application to reinstate that appeal, but also the futility of the proceedings he has instituted since that application was dismissed.

11. Strickland J, referring to the conduct of the husband in relation to his application to reinstate his appeal from the orders of Cronin J, said at paragraph 30 of his reasons delivered on 13 January 2015 as follows:

    I have touched on how in effect to pursue this application in the absence of an explanation for the failure to comply with the order of the Appeal Registrar, and for the delay in bringing the application, smacks of a lack of bona fides on the part of the husband. That is also brought into sharp focus by the futility of the appeal even if it was reinstated, as well as the failure to seek leave to appeal and the absence of any proper ground of appeal…

12. In conclusion Strickland J said at paragraph 33 as follows:

    As the authorities recognise, the consideration of the relevant factors inform the court’s determination of the fundamental issue, namely, is it in the interests of justice to allow the appeal to proceed.  Here, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused.  There is no explanation of the failure to comply with the order made by the Appeal Registrar and there is no plausible explanation for the delay in filing the application.  Indeed, I have found a lack of bona fides in what was put on behalf of the husband in this regard, and in any event, the receipt of the wife’s itemised costs account had nothing to do with any alleged error by the trial judge in applying an incorrect test.  Then there were the deficiencies in the Notice of Appeal, namely the failure to apply for leave to appeal and there being no proper ground of appeal, and no suggestion of any amendment to overcome these deficiencies.  Further, the appeal lacked merit, it was plainly futile and finally, there was the serious prejudice to the wife if the application was granted.

13. I have had regard to Strickland J’s findings with respect to the husband’s failure to provide any explanation as to why he failed to comply with the order of the Appeals Registrar; the delay in bringing his application; the deficiencies in the Notice of Appeal, namely the failure to apply for leave to appeal, there being no proper ground of appeal and no proposed amendment of the Notice of Appeal to overcome these deficiencies; and that the appeal lacked merit. 

14. I have also had regard to the futility of the husband’s Application in an Appeal seeking to reinstate an appeal from an interlocutory order, as described by Strickland J in his reasons for judgment delivered on 13 January 2015, in circumstances where there are no substantive proceedings on foot.

15. It is difficult to understand what the purpose of the husband’s Application in an Appeal might have been in circumstances where there were no extant parenting or property proceedings and all that remains are proceedings with respect to the costs payable by the husband arising out of those parenting and property proceedings. In that regard I note that the husband did not file an Application in an Appeal seeking an extension of time to appeal out of time against the costs order made by Cronin J on 5 April 2012 until 27 January 2015 which, as pointed out by Strickland J, was well after the husband became aware of the alleged “suppressed evidence” in relation to Ms D.

16. As Davies J said in Gargan at paragraph 8 one of the ways unreasonable grounds may manifest themselves is “a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters”.

17. I am satisfied on the balance of probabilities that the husband’s Application in an Appeal seeking to reinstate his abandoned appeal against the orders of Cronin J made 28 February 2012 was instituted without reasonable grounds and for some other purpose, in this case likely to be what he perceived to be a miscarriage of justice brought about by the actions of the wife, her parents and her legal representatives absent any reflection upon what, if anything, he would achieve or how any injustice might be remedied even if the Full Court was satisfied that there had been a miscarriage of justice as he alleged.

18. In all of the circumstances and having regard to all the matters I have discussed I am satisfied on the balance of probabilities that the husband’s Application in an Appeal filed 21 March 2014 was a vexatious proceeding as defined by s 102Q(1) of the Act.

The Husband’s Application for Special Leave to Appeal filed 9 February 2015

1. As previously discussed on 9 February 2015 the husband filed an Application for Special Leave to Appeal to the High Court from the decision of Strickland J dismissing his Application in an Appeal to reinstate his appeal against the orders of Cronin J made 28 February 2012.  That application was dismissed by the High Court on 5 May 2015. It is reasonable in my view to infer on the basis of Strickland J’s findings both as to the merits of the husband’s Application in an Appeal seeking to reinstate the appeal and the appeal generally, the dismissal by the High Court of the husband’s Application for Special Leave to Appeal to the High Court on the grounds that it raised no important question of law, and, in any event, what I am satisfied is the futility of the appeal from an interlocutory order, that the husband filed his Application for Special Leave to Appeal to the High Court without having reasonable grounds for doing so and without having given any consideration as to whether or not there were reasonable grounds for that application. Having read the husband’s written submissions and heard his oral submissions during the hearing of this matter I am left with the distinct impression that the husband, based upon what he perceives to be the need to right a wrong, will appeal irrespective of any consideration of whether or not there may be reasonable grounds for doing so.

2. In all of these circumstances I am satisfied that the husband’s Application for Special Leave to Appeal to the High Court filed 9 February 2015 was a vexatious proceeding as defined by s 102Q(1) of the Act. 

The Husband’s Applications for an Extension of Time to Appeal and a Review of the Decision of the Appeals Registrar on 6 May 2015

1. There were three Applications in an Appeal filed by the husband listed for hearing before Strickland J on 6 May 2015. In the first of those applications (filed 8 January 2015) the husband sought an extension of time to appeal against the orders made by Cronin J on 20 July 2010 and 9 September 2010. The second application (filed 27 January 2015) was his Application in an Appeal for an extension of time to appeal against the order made by Cronin J on 5 April 2012 that the husband pay the wife’s costs arising from his application to restrain Adrian Abrahams Family Lawyers from acting on her behalf. In the third application (filed 16 February 2015) the husband sought to review the Appeals Registrar’s decision rejecting an Application in an Appeal for an extension of time to appeal against the order made by Cronin J on 28 February 2012 dismissing the husband’s application to restrain Adrian Abrahams Family Lawyers from acting on the wife’s behalf.

1. The order made by Cronin J on 20 July 2010 from which the husband sought to appeal was the order dismissing his Application in a Case filed 26 February 2010 seeking to join the wife’s parents as parties to the proceedings, injunctive relief against the wife’s parents to the effect that monies allegedly paid to them by the wife be paid into trust and that the husband have access to the money held in trust to fund his litigation. The background to that application was that the husband alleged that the wife had removed $165,000 cash from their safe at the time of separation and had paid $150,000 of that amount to her parents. Whereas the wife admitted that she had taken $165,000, it was her case that there had been $330,000 in the safe and she had only removed half of that amount. Although the wife acknowledged that she had paid $150,000 to her parents it was her evidence that she did so to repay a loan. The husband sought to join the wife’s parents for the purposes of obtaining an injunction requiring them to repay the amount of $150,000.

2. In his written submissions dated 25 September 2015, filed for the purposes of these proceedings, the husband said as follows:

   The appeals of the Husband, have arisen in circumstances whereby the respondent wife, the wife’s parents and the wife’s former solicitor and present counsel, either deliberately failed to make full and frank disclosure in earlier proceedings or suppressed and withheld evidence that should have been disclosed to the court, as is required under the rules of the court [Family Law Rules (2004) (Cth)], thereby misleading the court and causing a miscarriage of justice to the Husband and the eroding the [sic] integrity of the administration of justice. That this evidence was suppressed, withheld and misleading evidence, was given by the wife or, on her behalf to the court, is evidence of the wife’s own hand. This includes but is not limited to, the wife deliberately giving false evidence about dispersal of matrimonial funds and having her parents give false supporting evidence for the wife’s, at an application for Joinder, on 21 April 2010, only for the wife’s mother to retract that evidence at final trial 3 years later. [Affidavit of the husband filed 8 January 2015, at Para 2-12; referred to in the Husband’s Affidavit 24 March 2015 at para 3] The false and misleading evidence of the wife and the wife’s parents, have [sic] caused an appeal to come about.

3. I will deal firstly with the husband’s assertion that both the wife and her parents gave “false evidence” in relation to his application to join her parents as parties to the property proceedings. In his reasons delivered 26 February 2016 dismissing the husband’s Application in an Appeal for an extension of time to appeal against the orders of Cronin J made on 20 July 2010 and 9 September 2010 (see Pencious & Searle and Ors [2016] FamCAFC 27), Strickland J made a number of observations relevant to the matters I must consider for the purposes of the wife’s application for a vexatious proceedings order:

   ·that although Benjamin J expressed some reservations about the wife’s mother’s evidence he did not find that she had given “false evidence”;

   ·that although Benjamin J accepted the wife’s evidence that she had taken $165,000 from the safe and left $165,000 for the husband and paid $150,000 to her parents, he did not accept that there was a loan and treated all of the $165,000 as money the wife had retained for her own benefit; and

   ·that even on the husband’s own case he became aware of this so called “false evidence” during the hearing before Benjamin J of the competing applications for final property orders but did nothing, and did not provide a satisfactory explanation as to why he had done nothing, until 8 January 2015. 

4. Even ignoring the fact that the order for costs made on 9 September 2010 was made by consent, as Strickland J concluded, the husband having failed to demonstrate an appealable error with respect to the order made 20 July 2010, there was no basis to challenge the order for costs made by Cronin J on 9 September 2010 and it followed that there was no merit in the proposed appeal.

5. As previously referred to the final orders for property settlement and Benjamin J’s order dismissing the husband’s claim against Searle Holdings were the subject of an appeal to the Full Court of this Court. That appeal was dismissed and the husband’s Application for Special Leave to Appeal to the High Court in relation to the decision of the Full Court of this Court dismissing the husband’s appeal against Benjamin J’s order has also been dismissed. As noted by Strickland J in his reasons delivered on 26 February 2016 the futility of the husband’s proposed appeals with respect to the orders made by Cronin J on 20 July 2010 and 9 September 2010 is obvious in circumstances where the property proceedings have been determined and all avenues of appeal exhausted.

6. I am satisfied in all of the circumstances that the husband filed his Application in an Appeal for an extension of time to appeal from the orders made by his Honour on 20 July 2010 and 9 September 2010 without having reasonable grounds for that application and that it was a vexatious proceeding as defined by s 102Q(1) of the Act.

7. As previously referred to Strickland J handed down his decision dismissing the husband’s Application in an Appeal seeking to reinstate his appeal against the orders of Cronin J made 28 February 2012 on 13 January 2015 (Pencious & Searle (2015) FLC 93-627; [2015] FamCAFC 2). On 4 February 2015 the Appeals Registrar refused to accept the husband’s Application in an Appeal seeking an extension of time to lodge an appeal against the same orders. On 16 February 2015, the Appeals Registrar having refused to accept that application for filing, the husband filed an Application in an Appeal seeking a review of the Appeals Registrar’s decision. That application was the third Application in an Appeal heard by Strickland J on 6 May 2015.

8. As a general proposition it would seem prima facie to fly in the face of the well-established principle of res judicata for a party to proceedings, having had their application deemed abandoned and leave to reinstate that appeal declined, the appeal process hence being concluded, to re-agitate the same appeal by this means. On 26 February 2016 his Honour dismissed the husband’s application finding at paragraph 38 that there was nothing new in the grounds of the proposed appeal and that the proposed appeal like the previous abandoned appeal was “futile regardless of any merit”. In all of the circumstances I am satisfied that the husband filed his Application in an Appeal on 16 February 2015 seeking a review of the Appeals Registrar’s decision rejecting the an Application in an Appeal for an extension of time to appeal from the orders made by Cronin J on 28 February 2012 without having reasonable grounds for doing so and that it was a vexatious proceedings as defined by s102Q(1) of the Act.

9. The husband’s Application in an Appeal filed 27 January 2015 for an extension of time to appeal in relation to the costs order made by Cronin J on 5 April 2012 was filed almost three years after his Honour made that order. Strickland J observed in his reasons delivered on 26 February 2016 at paragraph 32 that the husband’s complaint “... is not directed per se to the costs orders, and the reasons for judgment relating to those orders, but to the dismissal of his application to restrain the wife’s solicitor from acting for her”. Whilst I do not have the husband’s affidavit in support of his Application in an Appeal before me or the proposed Notice of Appeal, Strickland J’s observation accords with the evidence the husband sought to rely upon in the proceedings before me and both his written and oral submissions. In particular the husband submitted in the proceedings before me that had Cronin J had the evidence he says demonstrates that Ms D gave misleading evidence in the proceedings before his Honour and the letter to which I will refer in more detail later in these reasons, he would likely have acceded to the husband’s application to restrain Adrian Abrahams Family Lawyers acting on behalf of the wife and in those circumstances he would not have made the order for costs against him. 

10. However this ignores the fact that the husband’s application for leave to reinstate his appeal from Cronin J’s orders made 28 February 2012 has been dismissed as was his Application for Special Leave to Appeal to the High Court from Strickland J’s decision dismissing that application.  His Application in an Appeal seeking to review the Registrar’s decision refusing to accept for filing his Application in an Appeal for an extension of time to appeal from Cronin J’s orders made 28 February 2012 has now also been dismissed.  In those circumstances the findings underpinning the orders made by Cronin J on 28 February 2012 stand and would support the order for costs made 5 April 2012 even if the husband had been granted an extension of time to appeal.   

11. Strickland J in dismissing the husband’s Application in an Appeal found that the husband had not identified any appealable error in his draft Notice of Appeal and that there was no merit in the proposed appeal. In all of the circumstances I am satisfied that the husband filed his Application in an Appeal for an extension of time to appeal against the order for costs made by Cronin J without having reasonable grounds for doing so and that it is also a vexatious proceeding as defined by s102Q(1) of the Act.

12. In my view it is significant for the purposes of the matters I must determine that the husband filed all three  applications after Strickland J had handed down his decision with respect to the reinstatement of the husband’s abandoned appeal on 13 January 2015.  In my view this gives rise to questions about the husband’s motivation for filing that application and what consideration he gave to the possible grounds for or the merits of his Applications in an Appeal.

13. I have already referred to Strickland J’s reasons delivered on 13 January 2015 with respect to the husband’s application to reinstate his abandoned appeal against the orders made by Cronin J on 28 February 2012 and the husband’s attack on the evidence of Ms D which is one of the pieces of evidence upon which the husband continues to rely in support of his various applications. Those reasons not only highlight the futility of an appeal based upon the so called “suppressed evidence” but also generally in circumstances where both the parenting and property proceedings have been finalised. It is difficult to understand how, having read his Honour’s reasons, the husband would not have questioned the merits of his Applications in an Appeal.

Other Applications

1. The husband’s case is that he was not aware of the third piece of what he describes as the “suppressed evidence” until March 2015 after he had filed his Application for Special Leave to Appeal to the High Court against Strickland J’s order made 13 January 2015, his Applications in an Appeal seeking an extension of time to appeal and his Application in an Appeal for a review of the Appeals Registrar’s decision not to file his Application in an Appeal for an extension of time to appeal the orders made by Cronin J on 28 February 2012.  

2. The letter which is referred to by the husband in his affidavit filed 1 April 2015 is the letter dated 15 October 2010 he says was sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel, who has appeared on behalf of the wife throughout the proceedings, in which he alleges Mr Abrahams relayed privileged and confidential information given to him by the husband’s solicitor on 26 February 2010.

3. Somewhat surprisingly given the way in which he put his case the husband also relied upon the affidavit of Mr DS filed 1 April 2015 in which Mr DS deposed that he had not made the statements allegedly attributed to him by Mr Abrahams in his letter to Mr Wood.  

4. As previously referred to the letter in question was the subject of a subpoena issued by the Court on the application of the husband and a Notice to Produce filed by the husband requiring the wife to produce the letter sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel for the purposes of the matters listed for hearing before me on 5 May 2015 and the Application in an Appeal which he attempted to file on 27 April 2015 seeking the production of that letter for the purposes of the hearing before Strickland J on 6 May 2015.

5. On 5 May 2015 the husband made an oral application before me to restrain Mr Wood of counsel from acting on the wife’s behalf and sought the production of the letter for the purposes of that oral application. The wife objected to the production of the letter on the grounds of relevance and on the basis that the letter was privileged.

6. The husband initially submitted that Mr Wood should be restrained from appearing on behalf of the wife because he might be a witness in future proceedings. In his written submissions opposing the wife’s objection to the subpoena for the production of that letter the husband also referred to the fact that the letter might even constitute a “criminal offence” and that the letter demonstrated that Mr Wood had been privy to a breach of the husband’s confidentiality. Although the husband made general assertions about their having been a miscarriage of justice he did not submit nor did he direct me to any evidence that suggested that either the letter itself or the information he asserted was contained in that letter had played any part in the hearing of his application seeking to restrain Adrian Abrahams Family Lawyers acting on behalf of the wife or for that matter in any of the proceedings that have followed.

7. On 5 May 2015 I reserved judgment regarding the wife’s objection to the husband’s subpoena and the Notice to Produce and adjourned the husband’s oral application that Mr Wood of counsel be restrained from appearing on behalf of the wife for further hearing on 22 May 2015. On that adjourned date I made orders striking out the husband’s subpoena and Notice to Produce, in my reasons concluding that the husband’s assertion that there might in the future be proceedings in relation to which Mr Wood might be required to give evidence was speculative at best and that as there were presently no such proceedings, the letter had no apparent relevance to any issue in dispute.

8. On 22 May 2015 the focus of the husband’s case that Mr Wood of counsel should be restrained from appearing on behalf of the wife shifted from the possibility of Mr Wood of counsel being a witness in either these or some other proceedings to what he said had been a breach of his confidentiality and that as a result of that breach Mr Wood of counsel was privy to information he should not have had.

9. Although the letter itself is not in evidence, in his Affidavit sworn 1 April 2015 the husband deposed as follows:

   That on 11 & 12 March, the Wife and her solicitor, produced to the Court and entered into evidence Items 201 & 202 of the Bill of Costs. These documents are from the Wife’s former legal practitioners Adrian Abrahams Family lawyers written and sent to a member of the Victorian Bar. They are letters dated 15 October 2010 and state that Confidential and Privileged information was given to the Wife’s legal practitioner, Adrian Abrahams on 26 February 2010 by the Husban’s [sic] former legal practitioner, [Mr DS] of [DS Lawyers]. It is further stated by Adrian Abrahams that [Mr DS] made statements to him about the Husband of a criminal nature, of the worst possible kind. That the husband had made threats to do harm to [Mr DS] and to [Mr DS’] family. It was further stated that [Mr DS] was quoted as saying words to the effect “I don’t need to be dealing with this shit” and that [Mr DS] had stated that this information should be kept Confidential as it is Privileged…

10. The husband further deposed in that same paragraph as follows:

    The contents of these letters have caused me and continue to cause me great distress and concern. Their repeated airing only hightens [sic] my distress. I am concerned that these and other statements and/or publications have been made concerning disgusting allegations and breaches of my Confidentiality whether they be true or not and to whom they have been made and to whom they have been further disseminated to, the extent of which is incalculable and overwhelmingly distressing.

11. As I said in my reasons delivered on 22 May 2015 in relation to the husband’s application to restrain Mr Wood of counsel from acting (Pencious & Searle (No 2) [2015] FamCA 608), it is hard to see how the husband can complain about the breach of his confidentiality and Mr Wood or any other counsel acting on behalf of the wife having access to the confidential information he says is contained in the letter, even if it were true, in circumstances where it is the husband who wants the letter to form part of the evidence.

12. The husband has sought to appeal my orders made on 22 May 2015 striking out the subpoena and the Notice to Produce and my orders made on that same day dismissing his oral application that Mr Wood of counsel be restrained from appearing on behalf of the wife. These appeals have been heard and judgment reserved.  

13. The husband submitted on a number of occasions during the hearing before me that the letter in question should be in evidence not just with respect to his oral application that Mr Wood of counsel be restrained from appearing on behalf of the wife, but also with respect to his Application in a Case filed 24 March 2015, his various Applications in an Appeal as well as the criminal proceedings he said might result from that letter and its contents.

14. Although I considered the letter and the alleged breach of the husband’s confidentiality in the context of his application that Mr Wood of counsel be restrained from appearing on behalf of the wife at the hearing before me, it is also difficult to see how the information contained in that letter, even if it were true, would have been relevant for the purposes of any of the husband’s Applications in an Appeal or for that matter any appeal. Nor, as Strickland J observed with respect to the husband’s submissions with respect to the evidence of Ms D, would it be likely to give rise to a different result. The husband made no submissions addressing the relevance of the letter to the proceedings or, assuming that the evidence were before the Court, what difference that evidence might have made to the outcome of any of the proceedings, other than his general assertion that Cronin J might not have rejected his application to restrain Adrian Abrahams Family Lawyers from acting or it follows the order for costs he made on 5 April 2012 if the so called “suppressed evidence” had been available to him.

15. As I have already observed the husband had had the opportunity of reading Strickland J’s reasons delivered on 13 January 2015 and in particular that part of those reasons relating to the evidence of Ms D. Nonetheless he attempted to file an Application in an Appeal seeking the production of the letter in question, and sought to rely upon the letter both in support of his oral application before me on 5 May 2015 that Mr Wood of counsel be restrained from appearing on behalf of the wife in the proceedings before me and his oral applications made before Strickland J on 6 May 2015 for an adjournment of his Applications in an Appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 and that Mr Wood of counsel be restrained from acting on behalf of the wife in those appeal proceedings. I am satisfied that the husband made these oral applications without having reasonable grounds for doing so and that they were vexatious proceedings as defined by the Act.

16. Although the husband claims ignorance of the court processes, I agree with Strickland J that the husband is an experienced litigant and well understands those processes (see Pencious & Searle (No 2) [2015] FamCAFC 112). It is difficult to see in those circumstances that the husband genuinely believed that he had reasonable grounds for the many and various applications he has made, including his oral applications seeking to restrain Mr Wood of counsel from appearing and the adjournment of the proceedings before Strickland J on 6 May 2015 for the purposes of adducing the evidence he said had been “suppressed” by the wife and her legal representatives.

1. This conclusion is reinforced by the futility of the husband’s various applications, his Applications in an Appeal seeking to reinstate his appeals or for an extension of time to appeal, his application seeking a review of the decision of the Appeals Registrar and his Applications for Special Leave to Appeal to the High Court in circumstances where there are no parenting or property proceedings on foot. Even if there were either property or parenting proceedings on foot, Adrian Abrahams Family Lawyers is no longer instructed to act on behalf of the wife.

2. What is clear from both the husband’s written and oral submissions is that the husband is, and has been, intent on demonstrating what he considers to be an injustice by any means available to him and with complete disregard to the merits of the particular application or its relevance to the matters that he seeks to prove. I am satisfied that the husband will do anything to prove his point whether or not there is a legal basis for doing so, irrespective of whether the particular application he makes has any merit or the futility of the relief he seeks.  I am also satisfied, as demonstrated by his written submissions in response to the wife’s objection to his subpoena and his oral submissions that make clear the possibility of proceedings in other venues, that he has instituted and conducted proceedings in this Court for purposes unrelated to those proceedings.

Application to VCAT

1. As I have already set out under the history of the proceedings, the wife deposes in her affidavit filed 24 April 2015 that on or about 19 May 2011 she received notice of an order made by VCAT adjourning an application issued by the husband so that she could be joined as a party to the proceedings. The husband was seeking an order that ML provide him with a key to the German motor vehicle which had been used exclusively by the wife since separation. The wife’s evidence was that she had paid for all outgoings for the vehicle during that period.

2. The husband in his Affidavit in reply filed 12 June 2015 deposed at paragraph 20 as follows:

   The application I made to VCAT was against [ML Pty Ltd] only. The wife’s claims are ambit and false. [ML Pty Ltd] had decoded the spare key to the car the wife was driving which was legally registered in my name. [ML Pty Ltd] did this after the wife lied to them that she had lost the key. The original application to vcat which was presented at trial clearly shows the only respondent as [ML Pty Ltd]. My application simply sought to recode the functionality of the key. To restore the status quo. [ML Pty Ltd] stated that as they had been lied to, they would not incur the expense of a new key. Further any new key would require the presence of the car. Later I was informed by [the manufacturer] that to restore the key did not require the car to be present. However, as [ML Pty Ltd] had made these less than truthful claims the presiding member of vcat joined the wife to the proceedings. It was not as a result of any application by me. The wife has not been honest. The wife’s needless dishonesty can be seen to have created the whole sad situation and the wife has sought to make currency out of her own dishonest conduct.

3. The wife further deposed that on 15 June 2011 she received a further letter from VCAT informing her that she had been made a party to the proceedings however on 1 July 2011 VCAT found that the husband’s application was misconceived and it was dismissed.

4. The husband does not deny that his application was dismissed on the grounds that it was misconceived nor does his explanation adequately explain why, when there were proceedings in this Court for property settlement, he was making an application to VCAT with respect to the key to a motor vehicle driven by the wife.

5. I am satisfied that in circumstances where there were proceedings before this Court for property settlement that the husband’s application was totally misconceived and that on the balance of probabilities it was intended inter alia to harass and annoy the wife. 

Has the Husband Frequently Instituted or Conducted Vexatious Proceedings?

1. In Gargan Davies J considered the meaning of the term “frequently” in the context of an application pursuant to s 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW) which is drafted in almost identical terms to the provision of the Act which I must apply in the proceedings now before me. Davies J said at paragraph 7 as follows:

   (a)the test of “frequently” is a less demanding than was required under s 84 Supreme Court Act 1970;

   (b)the term “frequently” is a relative term and must be looked at in the context of the litigation being considered;

   (c)the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;

   (d)regard may be had to applications made by the person in proceedings against that person;

   (e)regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;

   (f)regard may be had to the proceedings in any Australian court or tribunal;

   (g)regard may be had to the findings and result in the proceedings under consideration.

   (emphasis added)

2. I have found that I am satisfied that the husband in this case has instituted or conducted vexatious proceedings on at least 11 separate occasions primarily in this Court, the High Court and on one occasion at VCAT. They include his:

   ·Application in a Case filed 3 December 2009 seeking to restrain Adrian Abrahams Family Lawyers from acting on behalf of the wife;

   ·Notice of Appeal filed 27 March 2012 against Cronin J’s orders of 28 February 2012 dismissing his application to restrain Adrian Abrahams Family Lawyers from acting;

   ·Application in an Appeal filed 21 March 2014 to reinstate the appeal against Cronin J’s orders of 28 February 2012 which was deemed abandoned;

   ·Application for Special Leave to Appeal to the High Court filed 9 February 2015 from the orders made by Strickland J on 13 January 2015 dismissing his application to reinstate the appeal;

   ·Application in an Appeal filed 16 February 2015 for a review of the Registrar’s decision rejecting his Application in an Appeal for an extension of time to appeal out of time against Cronin J’s orders of 28 February 2012;

   ·Applications in an Appeal filed 8 January 2015 and 27 January 2015 for an extension of time to appeal out of time against the orders made by Cronin J on 20 July 2010, 9 September 2010 and 5 April 2012;

   ·oral applications that Mr Wood of counsel be restrained from acting on behalf of wife at the hearing before Strickland J on 6 May 2015 and before me on 5 and 22 May 2015;

   ·oral application for an adjournment of the hearing before Strickland J on 6 May 2015; and

   ·application to VCAT in relation to the German motor vehicle.

3. Significantly in this case those applications are on most occasions an attempt to re-litigate an issue that has already been determined and importantly in my view an attempt to re-litigate interlocutory proceedings long after the substantive proceedings have been determined and the appeal process concluded.

4. Even if I am wrong and not all the proceedings which I have found to be vexatious are so, in my view the circumstances of this case are such that even a finding as to a lesser number of vexatious proceedings would be sufficient to satisfy the Court that the husband has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. It is the husband’s attempts to re-litigate issues and the interlocutory nature of the proceedings he seeks to re-litigate in the absence of any substantive proceedings and in those circumstances the futility of the proceedings that stands out in this case.

Should the Court Exercise its Discretion to Make a Vexatious Proceedings Order?

1. These proceedings were commenced in December 2008. In 2015 alone the husband has filed one Application in an Appeal seeking a review of a decision of the Appeals Registrar, two Applications in an Appeal for an extension of time to appeal out of time, four Applications for Special Leave to Appeal to the High Court, and one Application in a Case. He has also made five oral applications including two applications that Mr Wood of counsel be restrained from appearing on behalf of the wife. All of these proceedings have been instituted in circumstances where there are no extant parenting or property proceedings on foot. The interlocutory orders made by Cronin J on 28 February 2012 were the subject of an unsuccessful Application in an Appeal seeking to reinstate the husband’s appeal against those orders. The final property orders made by Benjamin J on 28 May 2013 and the associated orders for costs were the subject of an unsuccessful appeal by the husband. In both cases the husband applied for Special Leave to Appeal to the High Court and his applications were dismissed.

2. The husband both in writing and orally submitted that the Court should not make a vexatious proceedings order because there has been only a partial disclosure of what he says is the wife’s fraudulent behaviour and that a vexatious proceedings order would preclude him pursuing any further purported miscarriage of justice that might be disclosed in the course of the costs assessment process. This highlights the fact that the husband has misconstrued both the nature and purposes of the costs assessment process which is not, as his submissions suggest, for the purposes of gathering evidence for use in other proceedings, and also, given the history of this matter, the likelihood of the husband instituting further proceedings. His submissions also highlight either his lack of understanding of the finality of proceedings or an unwillingness to accept that is the case.

3. Although making a vexatious proceeding order is not to be taken lightly I am also mindful in this case that the husband is not being prevented from making an application but rather where there are grounds for such application he is being required to seek leave to do so.

4. As the husband submits, the wife has had the benefit of legal representation and I am satisfied that the financial cost of responding to the husband’s myriad of applications has been substantial. Although Benjamin J made orders by way of security for costs, those funds are limited. In circumstances where the husband has been unemployed for some years and submits that he has no funds and has failed to pay the costs he was ordered to pay on 5 April 2012 and 14 August 2013, I am left with little confidence that an order for costs sufficiently protects the wife from the costs of the ongoing litigation. Nor am I satisfied that the threat of a costs order is likely to deter the husband from further litigation irrespective of the merits of that litigation. The husband himself complains of the emotional costs of the ongoing litigation. That ignores the fact that it is the husband who is driving that litigation in circumstances where there appears little to be gained in doing so.

5. However it is not just the wife that this order is designed to protect. This order will also serve to protect the Court itself and its limited resources. This case has unnecessarily taken up an enormous amount of time and Court resources in circumstances where there are no extant applications for any final relief.

6. In all of the circumstances I am satisfied that this is a case in which the Court should exercise its discretion and make a vexatious proceedings order as sought by the wife.

Extant Applications or Appeals

1. Section 102QB(2)(a) of the Act provides that the court may make orders “staying or dismissing all or part of any proceedings in the court already instituted by the person” against whom the order is sought.

2. In his Application in a Case filed 24 March 2015 the husband seeks inter alia that the orders of Cronin J be stayed, that Registrar Riddiford be disqualified from further hearing of the costs assessment pursuant to the orders made 5 April 2012, that any orders made or proposed to be made by Registrar Riddiford arising in the course of the costs assessment be discharged, that the wife repay any costs paid pursuant to any assessment made by Registrar Riddiford together with any interest thereon, that the Court make the orders sought by the husband in his Notice of Appeal filed 27 January 2015 and that the wife pay the husband’s costs of and incidental to the costs assessment and this application on an indemnity basis. 

3. It is clearly not for this Court to make orders which are the subject of an appeal and on 20 August 2015 I made orders dismissing paragraph 6 of the husband’s Application in a Case whereby he sought such an order. I also made an order staying the further hearing of the costs assessment pursuant to the order made by Cronin J on 5 April 2012 and adjourned the other parts of the husband’s application with respect to the costs order and the assessment until after judgment in the husband’s appeal against that order had been delivered.

4. Although the Court does have the power to make an order dismissing all or any part of the proceedings the husband has instituted, which would include his application that Registrar Riddiford be disqualified from any further hearing of that costs assessment, I am not satisfied that I should do so in this case. In my view the husband’s application to disqualify Registrar Riddiford and any orders that might follow as a consequence are matters that should be dealt with on their merits.

5. The husband’s Application in an Appeal for an extension of time to appeal against Cronin J’s order has now been dismissed and there is, subject to any orders made following a hearing of the remaining matters in the husband’s Application in a Case, no reason why the costs assessment should not continue and be concluded.

6. On that basis, although I propose to make a vexatious proceedings order which requires the husband to make an application for leave to institute proceedings I do not propose to make any orders with respect to the husband’s Application in a Case filed 24 March 2015.  This means that although the costs assessment is incomplete and the wife may still face proceedings with respect to Registrar Riddiford’s conduct of the assessment, she will not be required to respond to any further applications instituted by the husband unless he is granted leave to make such application.

7. The wife in her Application in a Case filed 24 April 2015 also sought orders against the husband and unless those matters have been resolved (noting that I have already struck out the subpoena the subject of paragraph 6 of that application), her application also must be dealt with by the Court. In all of the circumstances I propose to adjourn the balance of the husband’s Application in a Case filed 24 March 2015 and the wife’s Application in a Case filed 24 April 2015 to the Judicial Duty List for determination.  

I certify that he preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 March 2016.

Associate: 

Date: 7 March 2016