Vang & Chung (No 8)
[2025] FedCFamC1F 47
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 8) [2025] FedCFamC1F 47
File number(s): SYC 1433 of 2020 Judgment of: BENNETT J Date of judgment: 6 February 2025 Catchwords: FAMILY LAW – FINANCIAL PROCEEDINGS – where there has been an extraordinary volume of interlocutory disputes by way of applications in proceedings, review of the exercise by Judicial Registrars of delegated powers, an appeal to the Full Court and stays requiring determination in property proceedings for which a final hearing has been scheduled in about two months.
FAMILY LAW – FINANCIAL PROCEEDINGS – summary dismissal – where there now falls for determination is now the husband’s application to summarily dismiss a further review application filed by the wife; the wife’s further review application; the husband’s application for injunctions to preserve assets in face of unsatisfied orders for costs; and the husband’s vexatious proceedings application.
FAMILY LAW – FINANCIAL PROCEEDINGS – review of judicial registrar’s decision – where parties agree that trail judge will be best placed to determine issues of relevance of documents sought on subpoena.
FAMILY LAW – INJUNCTIVE RELIEF – where court not satisfied that there is a real danger that unpaid costs orders in favour of the husband will not be satisfied unless the wife is restrained from dealing with the property she owns – where injunctions not granted.
Legislation: Family Law Act 1975
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: In the marriage of Stowe (1981) FLC 91-027
In the marriage of Waugh (2000) FLC 93-052
M v DB (2006) FLC 93-293
Vang & Chung (No 3) [2024] FedCFamC1F 101
Vang & Chung (No 6) [2024] FedCFamC1F 604
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 22 & 24 January 2025 Place: Melbourne Counsel for the Applicant: Litigant in Person Counsel for the First Respondent: Ms Tabbernor Solicitor for the First Respondent: Broun Abrahams Burreket Solicitor for the Second Respondent: Mangioni Biggs & Co ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANG
Applicant
AND: MR CHUNG
First Respondent
MR D
Second Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.There be leave to the wife to amend her Application for Review filed on 13 November 2024 by adding to the end of paragraph 2 in Part D, being orders sought, “including a discharge or revocation of the orders for costs under review”.
BY CONSENT, THE COURT ORDERS:
2.The wife’s Application for Review filed on 13 November 2024 be and is hereby dismissed save for paragraph 2 of the orders sought in relation to 5 and 6 of the Order made on 16 October 2024, which is reserved to the trial judge.
3.Pending further order, paragraph 5 of the Order of 16 October 2024 be stayed.
4.Notwithstanding paragraph 5 of the Order made by Justice Harper on 10 September 2024, all documents produced pursuant to subpoenas issued by the wife on 19 March 2024, which remain in the registry, continue to be held by the registry until further order and IT IS NOTED that nothing in this Order entitles either party to seek release of the documents so held or to seek to inspect them.
5.The husband’s application for summary dismissal filed on 8 January 2025 be and is hereby dismissed.
THE COURT FURTHER ORDERS THAT:
6.I reserve my judgment in relation to the husband’s Application in a Proceeding filed 25 November 2024 for a vexatious proceedings order to a date to be fixed and notified to the parties in writing.
7.On the day of handing down of judgment I excuse the parties from attendance at Court unless otherwise notified by my Chambers AND IT IS DIRECTED that my Chambers send the reasons for decision to the parties as soon as practicable after handing down of judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
These are property proceedings between the applicant wife, Ms Vang (“the wife”), the first respondent husband, Mr Chung (“the husband”), and the second respondent who is the father of the husband, Mr D (“the husband’s father”). The history of the matter is summarised comprehensively over many judgments of Justice Harper. The background to the matter is set out in Vang & Chung (No 3) [2024] FedCFamC1F 101 (“Vang (No 3)”), delivered on 28 February 2024, see [2] to [26].
The matter comes before me today initially by way of an Application for Review filed by the wife on 13 November 2024. The Application seeks a review of a costs order made by a Judicial Registrar on 16 October 2024 following a subpoena objection hearing in which all of the subpoenas issued at the behest of the wife on 19 March 2024 were struck out. By way of two Applications in a Proceeding filed 25 November 2024 and 8 January 2025 respectively, the husband seeks that the wife’s Application for Review filed 13 October 2024 by summarily dismissed, orders restraining the wife from dealing with her Suburb K property pending payment of outstanding orders for costs, save for the purposes of complying with costs orders, and a vexatious proceedings order.
The hearing was conducted on the courts’ MS Teams platform. These reasons relate to the summary dismissal of the wife’s Application for Review, orders restraining the wife from dealing with her Suburb K property pending payment of outstanding orders for costs, save for the purposes of complying with costs orders, and a vexatious proceedings order.
The husband is represented by Broun Abrahams Burreket, solicitors. Ms Tabbernor, of Counsel appears for the husband who was present. The husband’s father is represented by Mangioni Biggs and Co. The husband’s father was not present. I understand that the husband’s father is incarcerated in Country YY. His solicitors were excused and attended only some of the hearing, making submissions only in respect of the vexatious proceedings application. The wife was self-represented.
I pronounced these orders in Court but because of the late hour said I would deliver my complete reasons subsequently. These are those reasons.
PROCEDURAL HISTORY
On 19 March 2024 the wife caused subpoenas to the law firms AD Lawyers and AE Lawyers. She issued a further three subpoenas to the accounting firm AC Accountants, National Australia Bank Ltd (“NAB”), and Y Pty Ltd. On 3 July 2024, the subpoenas were subject to ten Notices of Objection which were otherwise dismissed by the judicial registrar after setting aside the subpoenas. The Judicial Registrar made directions for the hearing of the costs applications made by the respondents and non-party objectors but did not hear the costs applications on that date. The Judicial Registrar ordered that the parties file submissions as to costs by 17 July 2024.
On 5 July 2024, the wife filed an Application for Review of the Judicial Registrar’s Order made on 3 July 2024. On 25 July 2024, Justice Harper ordered, inter alia:
3.The orders of Judicial Registrar Jackson made on 3 July 2024 (striking out all subpoenas issued 19 March 2024) which are the subject of an Application for a Review filed on 5 July 2024, be stayed pending further order of the Court.
The Application for a Review filed on 5 July 2024 sought a review of all orders made on 3 July 2024 including paragraph 8 which adjourned the costs application to a Chambers hearing. The wife’s Application for Review and the wife’s Application in a Proceeding filed 5 July 2024 were adjourned by Justice Harper to himself on 28 August 2024.
The wife’s Review was heard by Justice Harper as a hearing de novo on 28 August 2024: Vang & Chung (No 6) [2024] FedCFamC1F 604. Justice Harper allowed some limited subpoena material and directed that documents produced on those subpoenas remain in the Registry. Justice Harper otherwise dismissed the Application for Review stating that:
[54]Two general deficiencies, manifest in all the subpoenas, can frame the discussion. First, each subpoena seeks documents in widely drawn categories primarily for the period March 2011 to date. The wife did not establish why such a lengthy time frame was justified, particularly where there was no dispute the parties’ relationship existed for no more than a period from 2015 to 2018.
[55]Second, the paragraphs in each schedule are too vaguely or oppressively worded, in the sense that the recipient, in order to comply with the subpoena, is required to determine for themselves which documents may have apparent relevance so as to fall within the subpoena.
The ultimate result was that the Judicial Registrar’s order of 3 July 2024 was largely, but not completely, upheld, with some limited material produced pursuant to subpoena. The exact details are not relevant to the issue before me today.
On 16 October 2024, the original Judicial Registrar decided costs applications of the husband and his father in Chambers. It was ordered that:
5.By resort to rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Applicant must pay the First Respondent costs of and incidental to the subpoena hearing fixed in the sum of $4,500, by no later than 4.00pm on 13 November 2024.
6.By resort to rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Applicant must pay the Second Respondent costs of and incidental to the subpoena hearing fixed in the sum of $2,000, by no later than 4.00pm on 13 November 2024.
The wife reviews those paragraphs of the Order of 16 October 2024. There is a Notation to the orders that lists the materials relied upon by parties with respect to costs. None of those documents post-date the orders of Justice Harper. The costs applications of the non-party objectors were dismissed.
This Review application first came before me for a mention on 2 December 2024 where I made directions for the filing of material and identification of material relied upon. I was informed that the husband would move on a vexatious proceedings application and an application for summary dismissal of the wife’s Application for Review. The wife informed me of the documents relied upon by her. The matter was set down for determination on 22 January 2025.
On 22 January 2025, the wife said that she had not been afforded “procedural fairness” with respect to the husband’s Application filed 8 January 2025, in which he sought that a previous application filed on 25 November 2024 (vexatious proceedings) be heard with the application filed on 8 January 2025 and that they both be listed before me. The husband’s application filed 25 November 2024 sought that the wife be declared a vexatious litigant pursuant to s102QB of the Family Law Act 1975 and that the wife pay the husband’s costs of that application. The 8 January 2025 application sought summary dismissal of the wife’s Application for review, a restraint on the wife dealing with the property at J Street, Suburb K (“the wife’s residence”) without the husband’s consent, and that the wife pay the husband’s costs of that application. Both applications had been set down before me for determination on 22 January 2025.
The wife complained that she had not been provided with the husband’s Case Outline until the evening of 21 January 2025. The timeline for filing in the Order of 2 December 2024 did not specify submissions or Outlines of Case filed by either party with respect to the specific application filed 8 January 2025, however filing of such a document had been envisaged. In any event, the Court was temporarily stood down and the wife was given time to read the husband’s Case Outline. Once Court recommenced, the wife sought a 28-day adjournment in order to prepare her case, citing that there should be “strict” adherence to the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (the “Rules”). However, at the very least, the wife had been on notice of the summary dismissal and vexatious proceedings claim from at least 2 December 2024, as I had made an order as follows:
6.Without limiting the operation of the above order, each other party is on notice that the husband [intends] to make an application for the proceedings to be declared vexatious within the meaning of section 102QB of the Family Law Act 1975 (Cth) and an application for summary dismissal.
As the husband’s case outline had been served late, I adjourned the hearing of the four applications for two days, to Friday 24 January 2025, and required the wife to file or identify any further material she relied upon by no later than 5:00pm on 23 January 2025. Notably, the time taken on 22 January for the wife to identify and specify the relevance of the documents she wished to rely upon at that stage was equivalent to time estimated for all four applications.
I ordered that the applications proceed in the following order on the adjourned date:
(1)The husband’s application to summarily dismiss the wife’s review application;
(2)The wife’s review application;
(3)The husband’s application for injunctions to preserve assets; and
(4)The husband’s vexatious proceedings application.
The matter proceeded on 24 January 2025. The applicant was self-represented. The respondent husband was represented by Ms Tabbernor of Counsel, and the second respondent by Ms Dai, solicitor, with respect to the vexatious proceedings application only. The wife had filed her submissions 2.5 hours late, after close of business on 23 January 2025 but Ms Tabbernor did not take an issue with later service. Ms Tabbernor submitted, correctly in my view, that the wife’s case outline did not appear to relate to the four applications to be determined. The purpose of allowing additional material was directed to condensing the vexatious proceedings matter. The submissions referred to subpoenas, principally those dismissed on 6 July 2024. I asked the wife to identify where in the submissions she dealt with the subject matter before me today. She responded from page 1 to 35 was relevant. It was not. I invited the wife to make 30 minutes of oral submissions per application.
THE APPLICATION FOR REVIEW
The wife’s application for review the two costs orders (together totalling $6,500) is most simply understood if the orders the wife seeks be made are extracted in full.
1.Seek the court to grant an extension of time for this order review and an urgent listing.
2.Seek the court grant an order to revoke all orders related to the subpoenas on 16 October 2024 for further directions.
3.Seek the court consider the revised orders related to the subpoenas made by the Judge Harper and letters for seeking clarification with the Registrar and the Family Court. Particularly:
-In July 2024, Judge Harper ordered to stayed all of the orders made by the same Registrar per her subpeona [sic] orders given on 3 July 2024.
-In August 2024, the subpoena application and review [sic] were not discussed or covered during the listing on 28 August 2024, but Judge Harper revised the Registrar's original orders given on 3 July 2024 and considered certain subpeonas [sic] relevance refer to Judge Harper's orders given on 10 Sept 2024.
-The Registrar did not consider any revised orders or stay orders made by the judge in July, September and October 2024 before she made cost orders.
-I sought clarifications with the Registrar as her costs orders given on 16 Oct 2024, asked me to refer to other orders which never exsited [sic] and unclear (such as 6a, and 6b). No response [sic] received which caused me this delay of order review due to communication with Registrar and court.
-Judge made another procedure orders also to consider costs applications in a later date per orders 16 Oct 2024.
-According to the revised orders, the two Respondents objection of subpoenas were not successful.
-The Registrar only referred to her original orders made on 3 July 2024 to make cost orders.
4. The review not listed before Justice Harper.
5. Grant me sufficient time to speak during listings.
6.Seek the Court to grant me leave to file an application for stay the cost orders and for seeking extended time for the order review evidence and reasons.
7.My financial situation per my earlier application affidavit and latested [sic] financial statement to be considered for cost orders.
At the commencement of the hearing on 24 January 2025 I took the wife to her Notice for Review and clarified that what she sought in paragraph two which included a revocation of all orders made in relation to subpoenas on 16 October 2024 including a discharge or revocation of costs orders under review. Ms Tabbenor objected to the amendment on the basis that the husband “continues to spend thousands upon thousands of dollars in legal fees to meet cases that are not properly drawn, that are incompetent, and that every indulgence is continued to be given to otherwise meet these cases by way of further listings and the like. […] –we’ve already gone through one review in respect of these subpoenas that was – lasted for an entire day hearing before Harper J in July last year”.
I permitted the amendment as it was no more than a clarification. The costs orders made in proceedings about subpoenas were, in my view, capable of being described as “orders made in relation to subpoenas”. The difficulty for the husband and his father was that between the Judicial Registrar striking out all subpoenas on 3 July 2024 and determining the costs applications in Chambers on 16 October 2024, Justice Harper had made orders that preserved some of subpoenas so that it could no longer be said, within the meaning of s117(2A)(e) of the Act, that the wife had been “wholly unsuccessful” in relation to the subpoenas.
In discussion, the parties agreed that, save for the amended order sought, the wife’s Application for Review be dismissed along with the husband’s application for summary dismissal filed on 8 January 2025. It was agreed that what remained of the Application for Review could be dealt with by the learned trial judge who will have all facts before her by way of context. Accordingly, I made orders by consent as sought by the parties.
FINANCIAL INJUNCTION
By way of an application in a proceeding filed 8 January 2025, the husband seeks:
Pending the Applicant Wife’s compliance with all extant costs orders in these proceedings, the Applicant Wife be hereby restrained from selling, disposing, further encumbering or otherwise dealing with the property situate at [J Street, Suburb K] without the consent of the First Respondent Husband, except for the purpose of complying with the Costs Orders.
The wife opposes the injunction being made. I heard oral submissions from both parties, the second respondent having filed a submitting notice.
Section 114(1)(e) provides that the Court may make such an order or injunction as it considers proper with respect to the property of a party to the marriage. Section 114(3) provides that an order may be made in any case in which it appears to the Court to be just or convenient to do so either unconditionally or upon such conditions as the Court considers appropriate.
There is an inexact amount of equity in the wife’s property, but my strong impression is that it is only a modest equity. The husband’s case is that several costs orders have been made against the wife in his favour which remain unsatisfied. Those costs orders approximate $35,000 or something similar. This is not a great amount by community standards in the context of the number of applications filed by the wife, but it appears that for the wife this is a significant sum. The wife has paid some monies on account of costs owing to the husband over 6 months by instalments of $250 per week and she was at the same time paying a similar amount to her former solicitors in respect of costs outstanding. She is now self-represented.
Counsel for the husband submitted that the unpaid costs orders are capable of being enforced by the husband but that he seeks the more lenient remedy of an injunction to preserve, by restraining order, the equity in the wife’s property so it will be available for subsequent enforcement proceedings or an enforcement order if needs be.
The wife says she has no intention of selling the property and has no other place to live. The wife submitted that property was acquired as to approximately 80% by borrowings from Commonwealth Bank of Australia and secured by mortgage and that her mother provided her with 20% of the proposed price. The mother’s interest in the property is not secured by registered mortgage or any written agreement but the wife says that there is a debt owed to her mother, albeit not urgently.
The wife says she won’t sell the property before final hearing. As for further encumbering the property between now and final hearing, the wife says that she contemplates having to ask the bank for some further borrowings, not for legal expenses, but for borrowings for everyday expenses. She expects that instalments due under the bank’s mortgage will increase from the amount they are now.
It is settled law that an application for an injunction of this nature must demonstrate a danger that a claim (i.e. the unpaid costs orders) will be defeated or prejudiced unless the injunction is granted (In the marriage of Waugh (2000) FLC 93-052) and that the injunction is necessary and goes no further than is necessary to prevent the abuse or frustration of the court’s process (M v DB (2006) FLC 93-293). There must be a real risk that the husband’s entitlement to costs will be prejudiced or defeated unless the inunction is granted (In the marriage of Stowe (1981) FLC 91-027). Clearly, I have the power to make the injunction, the issue is whether on the balance of convenience it is an appropriate exercise of my discretion to do so.
It was not challenged that the wife was not seeking to increase the mortgage by anything more than what was required for her living expenses. There is also no evidence that the mortgagee bank would be likely to advance funds. The husband has not satisfied me that there is a risk that, unless the injunction is granted, the wife may irretrievably dispose of or deal with the property so that the costs orders will go unsatisfied.
I did not ask at the outset but is apparent the wife would have provided a usual undertaking as to damages had the injunction been granted however the injunction will not be granted on the husband’s application as drawn.
If the husband wants to enforce the costs orders in his favour he can proceed to do so.
Accordingly, I dismiss the husband’s application for an injunction.
VEXATIOUS PROCEEDING
The final element of the applications to deal with is the husband’s application that the wife be declared a vexatious litigant. I heard argument on the husband’s vexations proceedings application. However, it had gone 6:00pm by the time the wife had finished her oral submissions and not fair on my staff to sit any later. I reserved my decision.
GENERALLY
I have ordered a transcript of today’s proceedings.
This concludes my reasons for decision.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 6 February 2025
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