Vang & Chung (No 9)
[2025] FedCFamC1F 54
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 9) [2025] FedCFamC1F 54
File number(s): SYC 1433 of 2020 Judgment of: BENNETT J Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – VEXATIOUS PROCEEDINGS – application by respondent husband for applicant wife to be restrained pursuant to s102QB(2)(b) from instituting further proceedings without first obtaining leave of the court to do so – where wife found to have frequently instituted vexatious proceedings – where application granted – where appeals not included in classes of application for which leave is required because Court not satisfied of jurisdiction Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Pencious & Searle (2017) FLC 93-805
Potier v Attorney-General [2015] 89 NSWLR 284
Vang & Chung (No 2) [2024] FedCFamC1A 190
Vang & Chung (No 4) [2024] FedCFamC1A 237
Vang & Chung (No 6) [2024] FedCFamC1F 604
Vang & Chung (No 8) [2025] FedCFamC1F 47
Vang & Chung [2022] FedCFamC2F 1364
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 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:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to s102QB of the Family Act 1975 (Cth) (“the Act”) a Vexatious Proceedings Order is made in proceedings SYC1433/2020 against the Applicant wife Ms Vang (“the wife”) and for the purposes of this Order:
(a)Pursuant to s102QB(2)(b) the wife is restrained from filing any further applications without first obtaining leave of the Court; and
(b)In the event that the wife does file any further applications then those applications are stayed pursuant to s 102QD of the Act until leave has been given by the Court for the application to proceed; and
(c)Pursuant to s 102QE(4) of the Act, the wife must not serve a copy of any application (or affidavit) on any party in these proceedings prior leave being given for the application to proceed pursuant to s 102QG(1)(a) of the Act.
2.For the purposes of the preceding paragraph, “applications” includes any application seeking orders of the Court, including but not limited to:
(a)Applications in a Proceeding; and
(b)Review Applications –
but does not include an application filed pursuant to extant trial directions for the final hearing or as ordered by the learned trial judge.
3.The proceedings of 24 January 2025 be transcribed and a copy be made available to the parties or their practitioners.
4.Any party wishing to make or press an application for costs in relation to the application filed 25 November 2024 do so in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) prior to 26 February 2025.
5.The husband’s application for a vexatious proceedings order filed 25 November 2024 be otherwise dismissed.
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 reasons should be read alongside Vang & Chung (No 8) [2025] FedCFamC1F 47. There, I recorded the proceedings on 24 January 2025 and my reasons for decision on the discrete issues of summary dismissal of the wife’s Application for Review, the wife’s Application for Review, and an application for injunctive relief sought by the husband, being that pending payment by the wife of outstanding orders for costs the wife be restrained from reducing the equity in her residence or disposing of the property. We sat late on 24 January to conclude the interlocutory applications but, by 6:00 p.m., we had only just finished the respondent’s submissions on the vexatious proceedings application and had no replies. I reserved my decision on the issue of vexatious proceedings. This is that decision.
The procedural history of the matter before me is referred to or recounted in Vang & Chung (No 8) [2025] FedCFamC1F 47.
THE APPLICATION
The husband’s application filed 25 November 2024 seeks 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 Act was amended in 2012 to refer to “vexatious proceedings” in lieu of “vexatious litigants’.
The husband seeks:
2. Pursuant to s102QB of the Family Act 1975 (Cth) (“the Act”) a Vexatious Proceedings Order is made in proceedings SYC1433/2020 against the Applicant Wife [Ms Vang] (“the wife”) and for the purposes of this Order:
2.1 Pursuant to s102QB(2)(b) the wife is restrained from filing any further Applications (including Reviews, Appeals or Applications in a Proceeding) without first obtaining leave of the Court; and
2.2 In the event that the wife does file any further Applications then those Applications are stayed pursuant to s 102QD of the Act until leave has been given by the Court for the Application to proceed; and
2.3 Pursuant to s 102QE(4) of the Act, the wife must not serve a copy of any Application (or affidavit) on any party in these proceedings prior leave being given for the Application to proceed pursuant to s 102QG(1)(a) of the Act.
3. For the purposes of Order 2.1 above “Applications” includes any Application seeking orders of the Court, including but not limited to:
3.1 Applications in a Proceeding;
3.2 Review Applications;
3.3 Appeals; and
3.4 Applications in an Appeal.
The wife opposes the application.
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 on that date 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.
The matter proceeded on 24 January 2025. The applicant wife was self-represented. The respondent husband was represented by Ms Tabbernor of Counsel, and the second respondent by Ms Dai, solicitor, but sought to be heard only with respect to the vexatious proceedings application. 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 late service. Due to the late filing, I did not see the wife’s submissions until a few minutes before Court commenced. The submissions did not appear to be directed to the husband's application.
The purpose of acceding to the wife’s request to file material, further to the 46 pages of submissions already filed, was to contain the time required for oral submissions. That did not work. I asked the wife to identify where in the submissions she dealt with the vexatious proceedings order sought by the husband. She responded from page 1 to page 35 was relevant. I did not find that to be so.
The wife would do well to bear in mind that, in relation to evidence, “relevance” is defined in s 55 of the Evidence Act 1995 (Cth) thus:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Whilst submissions are not evidence, the corollary of s 55 is that submissions should relate directly to the issues to be determined, and that each submission is not an opportunity to regurgitate past grievances. The wife’s submissions went largely to the wife’s motivation for causing more subpoenas to issue and how she had been dealt with unfairly by other judicial officers. Of recent times, at least two of the wife’s applications have included as an order sought “Grant me sufficient time to speak during listings”. I did not persist with the further 35 pages of submission and invited the wife to make oral submissions instead.
The wife’s oral submissions were long-winded and not helpful. I record, by way of example, an extract from the transcript:[1]
[1] Transcript of Proceedings 24 January 2025, pages 77-78.
HER HONOUR: [Ms Vang], you are on notice that they are relying on statements by judicial officers in published reasons for judgment that your applications have been an abuse of process without merit or vexatious.
[MS VANG]: Your Honour
HER HONOUR: Is there anything that you want to say about those?
[MS VANG]: Your Honour, those are not correct, because for each of the appeals, they are serving different purposes. And as your Honour, you understand that for each appeal, I must file a stay application. So I only have very limited applications since the case transferred to division 1. First is for false mention, second is for litigation ..... the third is for injunction order. All the rest of them is seeking a stay or seeking – while seeking a stay and seeking some – like, for example, if the court could, you know, issue some subpoenas or the recusal of the judge, the July application was recusal of the judge. And then October was seeking the ..... evidences. So if – your Honour, if you open any of those applications, and you can see any of them is seeking repetitive orders. And maybe if I seek for one order is to seek the judge’s consent to grant not to deregister – not allow the husband to deregister his company, [Y Pty Ltd], to the final hearing. The judge never considered it’s appropriate.
And my communication with ASIC, ASIC saying you must seek a court order from your primary judge. And that is what I did. But the judge never give it any consideration. And if the company was deregistered, how would we supposed to seek evidences? And if we can’t seek evidences, the judge could simply make orders based on his assumption. That would be very biassed. So, as I mentioned, Registrar Cameron said, in her husband’s way, saying the first [Suburb F] house, 20,000, was kind of like a verbal loan. Where are the evidences? Because the current evidence is [Y Pty Ltd] paid for the husband, the first [Suburb F] property. It is neither proved that the father paid for the property. It is also not proved by saying [Y Pty Ltd] is belonging to the father.
So all of these were not known, but Justice Harper preferred making the orders based on his assumptions. He said, “the husband is too young.” He was 25 over 10 years ago when the property was purchased. He was not like a kid. Even if he was young, maybe two years old, for example, it doesn’t mean that it was an actual loan. And which means in my points of claim, which are attached as annexures too under my submission, I clearly give you the reasons why those points of a claim need your serious considering, your Honour because those documents were controlled by the husband. And the Justice Harper requested me to evidence them. How am I supposed to evidence something controlled by my husband? I must use a subpoena. And then when I used subpoenas to prove my case, all my subpoenas were dismissed by him. How am I supposed to prove my case, your Honour?
HER HONOUR: I take that as a rhetorical question.
[MS VANG]: And that is the reason I’m escalating this case to the high court, because this case has significant management issues. And Justice Harper, the husband’s claim point four – sorry, I did take some notes, because those were not accurate. The husband, per his affidavit, he said the husband, the father, firstly attended the court hearing was on 22 January 2024, which under my submission, annexures 1, I provided your Honour the transcript. You can see that transcript and understand whether it is appropriate or not. The father added to the party in March 2024. But the father attended all of the case hearings since November 2023, all of them without seeking leave. Without asking for my permission. But the judge considered a non-party’s proposed orders and make his orders instead of considering me as the case major applicant having so many open applications. And the judge, Chief Judge Alstergren said, the wife has current urgent applications need your handling, which regarding to the litigation found per his order – per Chief Judge’s order in – I believe on 21 September 2023, when Chief Judge ..... a public national listing, and he heard my case, he showed his concerns on my case. But guess what? Justice Harper heard my applications half a years later. But before he heard any of my applications, he already agreed the father, a non-party to the case, and agreed the father to sell the husband’s property.
What is life to me here? I have nothing to secure. And until now, we are here today, which is almost the final hearing, we don’t even have evidences in the case. Because there are significant amendment issues. Everybody can hear that. With no evidences, how would I proceed my case with a final hearing? And that is my aim to ask your Honour consider to archive all of those subpoena document. And I believe very limited documents were produced.
And my concern is the husband’s father has been in jail since 2018. And my saying husband has been managing [Y Pty Ltd] since the company registration because the husband has been living in Australia with me.
[…]
I did refer to parts of the submission to which the wife directed me. Just because I have not mentioned every argument or point made by the parties, that does not mean that I did not take it into account.
THE LAW
The court may make any or all of the following orders pursuant to s102QB(2):
(a)an order staying or dismissing all or part of any proceedings in the court 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.
The Court may make a vexatious proceedings order on its own initiative or on application by the Attorney-General, the appropriate court official, a person against whom another person has instituted or conducted vexatious proceedings, or a person who has sufficient interest in the matter.
Section 102QB of the Act provides that the section applies if a Court exercising jurisdiction in proceedings under the Act is satisfied:[2]
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
[2] Family Law Act 1975 (Cth) s102QB(1).
The purpose of a vexatious proceedings order is not to punish an individual but rather to protect members of the public from baseless litigation and to safeguard the Court’s limited resources (Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“Gargan”) at [2]–[3]). It is an extreme measure not to be taken lightly.
HAVE VEXATIOUS PROCEEDINGS BEEN “FREQUENTLY INSTITUTED” BY THE WIFE?
The husband deposed that from May 2023 to 25 November 2024 the wife has filed 23 Applications, cross applications, appeals and reviews. The wife had lawyers acting on her behalf from the commencement of the proceedings to 25 March 2020 and from 9 April 2021 to 1 April 2022. All but one of the applications have been filed by the wife as a self-represented litigant. The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely, or even necessarily, by the number of proceedings. As the Court of Appeal, Supreme Court of NSW in Potier v Attorney-General[3] concluded: ‘frequently’ has a relatively “low threshold”[4] and “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.[5] The applications have to be looked at in context.
[3] [2015] 89 NSWLR 284; cited with approval by the Full Court of the Family Court in Pencious & Searle (2017) FLC 93-805.
[4] Potier v Attorney-General [2015] 89 NSWLR 284 [114].
[5] Ibid [116].
At [11] of the husband’s affidavit sworn 8 January 2025, the husband deposes to the following table which the wife did not impugn.
Number Appeal/Application Filing Date Outcome 1 Application in a Proceeding 15 May 2023 Subsumed into Application in a Proceeding filed 22 January 2023 and dismissed. 2 Application – Review 15 May 2023 Dismissed (with variation to orders pertaining to Single Expert valuations). 3 Application in a Proceeding 12 June 2023 Subsumed into Application in a Proceeding filed 22 January 2023 and dismissed. 4 Application in an Appeal (NAA 176 of 2023) 29 June 2023 Dismissed. 5 Application for Review 11 July 2023 Dismissed. 6 Application in a Proceeding 6 September 2023 Dismissed. 7 Application in a Proceeding 7 September 2023 Subsumed into Application in a Proceeding filed 22 January 2023 and dismissed. 8 Amended Application in a Proceeding 21 November 2023 Subsumed into Application in a Proceeding filed 22 January 2023 and dismissed. 9 Application in a Proceeding 12 December 2023 Stay granted of Order 2(e) of the Orders of Justice Harper 14 November 2023. 10 Appeal (NAA341/2023) 12 December 2023 Dismissed.
Costs order in favour of Husband $9,914.07.11 Application in a Proceeding 22 January 2024 Dismissed. 12 Appeal (NAA69/2024) 26 March 2024 Dismissed. 13 Appeal (NAA70/2024) 27 March 2024 Dismissed. 14 Application in a Proceeding 8 April 2024 Dismissed. 15 Application in a Proceeding 2 July 2024 Dismissed. 16 Appeal (NAA168/2024) 4 July 2024 Dismissed. 17 Amended Application in a Proceeding 5 July 2024 Dismissed. 18 Application – Review 5 July 2024 Orders of Judicial Registrar Jackson dated 3 July 2024 varied such that Y Pty Ltd and AD Lawyers produced limited documents to the Court, and otherwise dismissed. 19 Appeal (NAA183/2024) 15 July 2024 Dismissed.
Cost applications pending.20 Appeal (NAA259/2024) 8 October 2024 Ongoing, Application for Summary Dismissal heard before Justice Jarrett on 16 December 2024. Awaiting Judgment. 21 Application in a Proceeding 10 October 2024 Summarily dismissed. 22 Application in an Appeal - NAA283/2024 29 October 2024 Dismissed on 18 November 2024. 23 Appeal (NAA293/2024) 7 November 2024 Considered abandoned due to late filing of draft appeal index. Application to have appeal reinstated dismissed on 23 December 2024.
The wife’s application filed 12 December 2023, seeking a stay pending appeal, was successful as was the wife’s review of delegated judicial power filed 15 May 2023. The application filed 5 July 2024 was partially successful. All other applications have been dismissed and some dismissals have been accompanied by orders that the wife pay costs.
On 15 September 2023, Senior Registrar Hayward made the following order and notation:
2. Prior to the listing of any further interim applications, the Applicant is required to seek leave of the court in accordance with Clause 5.22 of the Family Law Case Management Central Practice Direction
[…]
H. The Applicant has exhausted the number of Applications she can file provided by the Central Practice Direction and therefore needs to seek leave from the court.
The efficacy of that order is marginal because the wife is not required to obtain leave before filing and serving her application.
By way of further context, I asked how many applications were initiated by other parties to these proceedings. Counsel for the husband submitted that the husband’s applications were limited to applications for summary dismissal or otherwise “orthodox objections” to subpoenas. From the Court Portal, it appears that the husband has initiated three previous applications in a proceeding (a security for costs application, an application seeking to set aside two subpoenas, and a costs application) aside from the two applications before me today (see also Vang & Chung (No 8) [2025] FedCFamC1F 47).
Counsel for the husband submits that the ongoing applications, and the pages and pages of material filed by the wife in support of her applications, impedes the husband and his legal representatives from focussing on the task of preparing for the final hearing which is set down to commence in March 2025. In the course of this proceeding before me I observed or was referred to affidavits and submissions expressed in a stream of consciousness style. The material relied upon by the wife was expressed by her at the first day of the hearing on 22 January 2025 to be:
·An Affidavit of the wife filed by her on 8 July 2024 (made on 5 July 2024); and
·The wife’s Outline of Case filed 26 August 2024;
However, the wife also had recourse to her written submissions filed on 23 January 2025 and in those submissions referred to:
·An affidavit of the wife filed by her on 13 December 2024 in support of her Response to the husband’s application in a proceeding dated 25 November 2024;
·An affidavit of the wife filed by her previous solicitors on 8 January 2024;
·An affidavit of the wife filed by her on 2 July 2024; and
·An affidavit of the wife filed by her on 3 July 2024;
In her written submissions the wife specifically requested that: “… the wife as a respondent in all these Applications filed by the husband seek the judge consideration read that [13 December 2024] affidavit…”.
The wife’s affidavit filed on 13 December 2024 alone is 185 pages, of which 54 are narrative. Her submissions filed on 23 January 2025 were 92 pages with 36 pages of actual submission and then annexures.
Practitioners for the other parties must read them in order to prepare for hearing and this incurs substantial costs.
It was submitted that the husband has incurred significant legal costs responding to the wife’s applications. Notably, to the extent that the husband and his father have obtained costs orders against the wife, I am satisfied that the orders for costs have gone largely unpaid.
Numerous subpoenas have been issued at the behest of the wife and, to no small degree, the appeals and reviews she has filed have been a product of objections to the subpoenas.
In s102Q “vexatious proceedings” are defined as follows
"vexatious proceedings" includes:
(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.
Even though the subparagraphs end with “and”, the subparagraphs are not to be read conjunctively. It is sufficient if an application qualifies under one subparagraph. It is an inclusive definition so proceedings could qualify as vexatious without engaging any of the examples in (a) to (d).
Vexatious is defined in the Macquarie dictionary as follows:
adjective 1. causing vexation; vexing; annoying.
2. Law (of legal actions) instituted without sufficient grounds, and serving only to cause annoyance.
In Official Trustee in Bankruptcy v Gargan [No 2] [2009] FCA 398, Perram J provided the following as qualities that may be suggestive of a vexatious proceeding (at [2]–[12]; adopted by the Full Court in Pencious & Searle (2017) FLC 93-805 (“Pencious”)):[6]
·The commencement of similar proceedings in the same court or in other courts;
·“Habitual and persistent” institution of proceedings;
·Proceedings that are manifestly hopeless or devoid of merit (see also Edelman J in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at [73]–[74]); and
·The repetition of issues that have been determined previously.
[6] Hopkins & Elliott (No 7) [2024] FedCFamC1F 312.
Ms Tabbenor, counsel for the husband, and Ms Dai, solicitor for the husband’s father, submitted that the following comments made by judicial officers can be considered as an abuse of process or otherwise vexatious within the meaning of Division 1, Part XIB – Vexatious Proceedings.
In Vang & Chung [2022] FedCFamC2F 1364, Judge Morley stated that (emphasis added):
[44] I find that the schedules in the original subpoenas are an abuse of process in that they are oppressive upon the entities subpoenaed, they are examples of fishing expeditions. I find that the submissions, in effect, of the wife, as to alternate schedules, suffer from the same defects. I find that it is not up to the subpoenaed entities to do the work of the party seeking issue of the subpoena and repair the schedules and I find that it is not up to the Court to do the work of repairing the schedules where, in relation to both subpoenas, virtually the whole of the schedules are infected with the objectionable matter.
I am satisfied that what Judge Morely describes as an abuse of process in relation to subpoenas is analogous to the definition of vexatious proceedings described in sub-paragraph (a) of the definitions at s102Q(1).
In Vang & Chung (No 6) [2024] FedCFamC1F 604, Justice Harper recorded that (emphasis added):
[24] The first reason is that, plainly, the proposed orders regarding the unrestrained half seek to litigate the same issues which informed the orders made on 28 February 2024, which are the subject of appeal. Vang (No 3) determined an application which raised the same issues which the wife seeks to agitate in support of her amended application. This is doubly impermissible, on the one hand because any discharge or variation of those orders could undermine the efficacy of or conflict with the appellate process, and on the other an application agitating the same issues is an abuse of process.
…
[28] She also appeared to believe that because she made the assertion that the loan by the father to the husband for the purchase of [E Street] was a “sham”, and the evidence to her mind put this beyond argument, I should accept this as a fact on an interlocutory basis. However, as pointed out above in the extract at [9], this question has already been considered by me, as were the issues of the ownership of the proceeds of sale of both [H Street] and [E Street]. The attempt to revisit the same issues in a further interlocutory application without demonstrating a material change of circumstances, constitutes an abuse of process. This is sufficient to dispose of her application for further interlocutory relief in relation to the unrestrained half.
…
[38] I am not satisfied the wife has shown any basis to impose additional, or reconsider any existing, interlocutory orders, as sought in her application, bearing in mind a further injunction was imposed on the restrained half by order made on 5 September 2024. I also point out here that the injunction upon the restrained half has been imposed without extracting an undertaking as to damages, which the wife refused to give when asked on 5 September 2024. This means her position at final hearing is protected in respect of the restrained half, without exposing her to the consequences of failure of her claims, if an undertaking as to damages had been given. Leave to bring the application for orders 4, 5, 6(1), and 7 will be refused, because there is no basis to grant leave to agitate an application which is an abuse of process and otherwise without merit. Her amended application will be dismissed.
Justice Harper identified that the relief sought by the wife was as an attempt by her to re-argue a point already determined against her and constituted an abuse of process which falls within the definition of vexatious proceedings described in sub-paragraph (a) of the definitions at s102Q(1).
In Vang & Chung (No 2) [2024] FedCFamC1A 190, the Full Court, comprised of Aldridge, Hartnett & Riethmuller JJ stated that (emphasis added):
[17] On an examination of the material, we agree with the argument of the second respondent that the further evidence sought to be adduced by the wife is “duplicative and redundant” and that the wife’s affidavit filed 18 September 2024 is “prolix and largely indecipherable” (second respondent’s Summary of Argument filed 20 September 2024, paragraphs 5 and 6).
[18] The wife’s affidavit does not set out the relevance of some of the additional evidence to be adduced to any issue in this appeal, nor why material available and known to the wife on the date of the hearing at first instance was not adduced at the hearing before the primary judge. Otherwise, and overwhelmingly, the wife seeks to adduce evidence already included in the Appeal Book and other evidence before the primary judge on 5 September 2024. Much of it is irrelevant, dealing with matters already dealt with in the proceeding without addressing the specific matters raised by the making of those orders the subject of leave to appeal.
[19] The wife’s filing of such material appears to be an attempt by her, on appeal, to relitigate matters which the Court has already addressed at first instance and on appeal as already heard and determined.
[20] Accordingly, the wife’s application for leave to adduce further evidence and rely upon the further proposed material is refused.
The Full Court’s description of the wife using an appeal to re-argue matters which had previously been determined at first instance and held on appeal are, in my view, vexatious by virtue of being a repeat of issues that have been determined previously.
In the costs judgment, Vang & Chung (No 4) [2024] FedCFamC1A 237, the same Full Court stated that (emphasis added):
[11] The second respondent’s Schedule of Costs records that in relation to the appeal hearing, the appellant served upon the second respondent voluminous material, which included many thousands of words, which the lawyers for the second respondent were required to peruse, consider, give advice and seek instructions on. Such voluminous material was, as submitted by the second respondent, not appropriately targeted to the real issues in dispute at the appeal hearing, resulting in the wastage of costs and resources. The appellant continued in her approach to the appeal in her written submissions as to costs, those submissions being prolix and largely irrelevant.
[12] Following the orders made by the primary judge on 5 September 2024 and 10 September 2024, the appeal should not have proceeded. It was entirely devoid of merit and utility and so was bound to fail.
I am satisfied that the Full Court’s description of the wife’s appeal as being entirely devoid of merit and utility and bound to fail meets the definition of vexatious proceedings in (c) of the definition of vexatious proceedings in s102Q being proceedings instituted in a court or tribunal without reasonable ground.
Reasons from Appeal Judicial Registrar Cameron in Appeal number NAA 293/2024 dated 23 December 2024 (heard 18 December 2024) (emphasis added):
[21] Despite the wife’s commitment to unnecessarily appealing each and every order made by the primary Judge, his Honour persevered in his efforts to move the proceedings towards a final hearing.
…
[91] It will be recalled that the wife’s Amended Application in a Proceeding was dismissed by the primary Judge on 10 September 2024. On 8 October 2024 the wife filed her Notice of Appeal, including against the specific order.
[92] It must be an abuse of process for the wife to seek to re-agitate a dismissed application that was the subject of an appeal.
[93] Any appeal against the dismissal of this order is entirely without merit and is doomed to fail.
…
[138] It must be an abuse of process for the wife to seek to reagitate a challenge to the orders made on 14 November 2024 when she has already instituted an appeal against those orders and has consented to its dismissal. It is immaterial that the wife may now regret her forensic decision that was taken at a time when she was legally represented.
[168] The wife’s appeal was entirely without merit and should never have been commenced. I accept the second respondent’s submission that the wife has been wholly unsuccessful in these appeal proceedings.
The description by Appeal Judicial Registrar Cameron of the wife’s appeal being a re-agitation of a dismissed application that was upheld on an appeal as an abuse of process and entirely without merit equates to vexatious proceedings within the inclusive definition in s102Q.
In my decision Vang & Chung (No 8) [2025] FedCFamC1F 47 I found only one of the seven orders sought in the wife’s Application to Review to be competent. I allowed the wife to amend her Application to Review to put beyond doubt that she did seek a discharge of the paragraphs of the Order she sought to review. This was an example of the wife using a review of delegated judicial power to seek orders unrelated and irrelevant to the orders reviewed (that she pay costs totalling $6,500).
I am satisfied that the wife has instituted proceedings which are an abuse of process and or without reasonable grounds or a prospect of success. The wife has probably not intended or wanted to harass or annoy the other parties or to cause delay in the substantive proceedings, which concern an alteration of property interests and spousal maintenance, or cause detriment to the other parties. My impression is that she has wanted to progress her case from an imperfect understanding of what is relevant and the procedures of the court. Unfortunately, the other parties have experienced vexation, annoyance, frustration and irritation. The wife has been unreasonably deaf to the criticisms and reasoning, set out in a number of published decisions, of her behaviour and how she has conducted the proceedings. It would be cold comfort to the other parties to applications and persons under subpoena to be advised, even correctly, that the wife’s new application will fail because they still have to respond and, thereby, incur costs which, to date, remain largely unpaid. I am satisfied that, regardless of intent, the respondents to the wife’s applications described above have experienced her applications as vexatious.
I conclude that the wife’s conduct meets the description in s102QB(1)(a) of a person who has frequently instituted or conducted vexatious proceedings in an Australian court.
SHOULD A VEXATIOUS PROCEEDINGS ORDER BE MADE AGAINST THE WIFE?
The courts power to make the order is discretionary. The legislation does not specify matters which should inform the exercise of the discretion. It follows, that I can have regard to any matters which are not irrelevant or extraneous.
I have regard to the repetitive mature of the wife’s applications, her tenacity and perseveration. There is no indication that the wife will desist in spite of her errors being identified in published reasons for decision.
I accept that the wife’s applications are distracting for the other parties both financially and in the context of allocating time to prepare for the final hearing. They are also necessarily distracting for the wife who should be in the process of structuring a case which fits within the confines of a property settlement proceeding under Part VIII of the Family Law Act 1975 rather than taking steps which are largely self-defeating. The final hearing is a once and for all process and, absent appealable error, the parties do not get a second chance.
The making of a vexatious proceedings order is not a bar to the wife making any application. It merely protects the other parties from exposure to her applications until such time as the Court considers whether leave ought to be granted or finds that the proposed application is itself vexatious (s102QF(2)) or the wife has not substantially complied with the requirements of s102QE(3) and the application should be refused. If the Court is minded to grant leave, the respondents to the proposed application will be afforded an opportunity to be heard on the question of leave.
WHAT IS THE SCOPE OF THE VEXATIOUS PROCEEDINGS ORDER?
Section 102QB(2) provides that, upon being satisfied that a vexatious proceedings order ought to be made, the court can make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court 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.
The husband seeks an order which includes “appeals” in the class of applications in respect of which the wife would have to seek leave. With the enactment of the Federal Circuit and Family Court of Australia Act 2021, the appeal provisions which had been in the Family Law Act 1975 were repealed and were replaced by Chapter 3 - Part 2 - Division 4 – Subdivision B of the Federal Circuit and Family Court of Australia Act 2021. The effect is that appeals against first instance decisions of Divisions 1 and 2 of the Courts described as the Federal Circuit and Family Court of Australia are proceedings under the Federal Circuit and Family Court of Australia Act 2021 rather than proceedings under the Family Law Act 1975 and, therefore, outside the description “proceedings … under this Act” as it appears in s102QB(2)(b).
The exclusion of appeals from the relief sought by the husband was not a matter on which I invited submissions from the parties. Frankly it did not occur to me at the time. Given that the matter is set down for final hearing in March of this year, I do not want to distract the parties from their important preparations. I will delete reference to appeals from the vexatious proceedings order I will make on the basis that I am not satisfied that there is jurisdiction to include appeals.
As indicated, I understand that the final hearing is fixed for next month. On 7 February 2025, Christie J made orders in relation to the filing of the parties’ trial affidavits. There was no mention of further or amended applications. In any event, this vexatious proceeding order is not intended to capture an application or amended application which is sought to filed by the wife pursuant to an express direction for trial or other Order of the learned trial judge enabling or directing the wife to file a further or amended application.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 12 February 2025
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