WAINWRIGHT and WAINWRIGHT

[2019] FCWA 254

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WAINWRIGHT and WAINWRIGHT [2019] FCWA 254

CORAM: TYSON J

HEARD: 25 NOVEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 7342 of 2015

BETWEEN: MS WAINWRIGHT

Applicant

AND

MR WAINWRIGHT

Respondent

Catchwords:

FAMILY LAW – Application for the wife to be declared a vexatious litigant –– Application dismissed – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Cannon & Acres [2014] FamCA 104

Marsden & Winch (2013) FLC 93-560

Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398

Pencious & Searle [2017] FamCAFC 210

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1[Ms and Mr Wainwright] were unable to agree on orders as to an alteration of property following the breakdown of their marriage. The proceedings went to trial in April 2018. Reasons were published and orders were made on 31 May 2018.

2The husband now seeks an order that the wife be declared a vexatious litigant, which is opposed by her. It is that discrete application that is before me for determination.

EVIDENCE RELIED UPON

3The husband relies upon his Form 2A filed 2 April, and his affidavit of the same date and 20 May 2019.

4The wife has filed an affidavit on 8 October 2019, which does not specifically deal with the current application, but voices a number of complaints she has in relation to the current proceedings. She opposes the orders sought.

5Both parties have attended today and I have had the benefit of hearing from each of them.

BACKGROUND FACTS

6I refer and rely on my Reasons delivered on 31 May 2018, which sets out the background facts and the chronology of the proceedings up until that time. I do not propose to repeat those matters, given they are well known to the parties.

7I also refer and rely upon my Reasons delivered on 9 September 2019, in which I dealt with the wife’s application that I recuse myself. These Reasons should be read in conjunction with those Reasons, which provided a further chronology of the proceedings and competing applications before the Court up to that time.

WHAT IS THE APPLICANT’S CASE?

8In turning to the husband’s application, in his Form 2A filed on 2 April, he seeks orders, as follows:

On the basis of the information contained within the respondent’s accompanying affidavit, filed 16 January 2019, which makes accusations of being warned off by the magistrate and accusations of fraud, perjury, harassment and extortion and corruption made by the application about the Family Court. In the respondent’s affidavit, annexure B and K, has no evidence to support these claims. The respondent would like to seek that the applicant be deemed a vexatious litigant who has no interest in finalising litigation and that the case be finalised, with the cost application being brought to a conclusion as the applicant has provided no new information, just fabrications to prolong litigation in order to avoid a conclusion to the costs application to prevent the respondent from getting on with life post-court case.

9In his affidavit in support, the husband refers to the wife’s application filed 16 November 2018, in which she sought an extension of time in which to respond to his costs application on the basis she was unwell. He refers to the wife’s complaints, including of corruption, fraud, perjury, conflict of interest and the criticisms of [Dr F], the Court and other parties involved in these proceedings, including solicitors and counsel.

10The husband also refers to the contents of the wife’s affidavit filed on 18 January, in support of her recusal application, which repeated many of the same accusations.

11The husband, in his oral submissions, has articulated his frustration at the lengthy delay in the resolution of the proceedings before the Court, which commenced in 2015. He says that he has been the subject of repeated accusations by the wife and from his perspective, there is no end in sight. He feels that as a consequence of the wife’s repeated applications since the trial, that he faces “ongoing charges”, which in his view are vexatious.

12The husband has also expressed concerns about the impact the ongoing litigation is having upon the parties’ adult daughter, [X], who has experienced an incident of acute mental health recently, resulting in her hospitalisation as a result of suicidal ideations. The husband says these proceedings are exacerbating the stress and distress experienced by the entire family, including all three children, but in particular, X. The husband says that he considers he has no alternative but to proceed with his application.

13The wife opposes the husband’s application and has articulated her empathy for the concerns raised by the husband, in relation to X. The wife says she is intimately aware of X’s mental health difficulties, both from the contact she has with X but also because she was X’s primary carer in 2014, when X also experienced an incident of acute mental health difficulties.

14The wife, in summary, says that the applications she has made have been motivated out of a sense that she feels the trial and the result was unjust and unfair. The wife says her further applications have been an effort, albeit unsuccessfully, to try and have those matters dealt with by the Court.

15For the benefit of the parties, I am going to explain briefly the law, because they are each self-represented litigants.

WHAT IS THE LAW?

16It is well established that courts have the power to ensure that its processes are not abused. That power extends to prevent frivolous or vexatious litigations.

17The Explanatory Memorandum in 2018, when amendments were made to the Family Law Act 1975 (Cth), stated that the aims of the new provisions were to clarify and modernise the powers of the court and to allow the court to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate family violence.[1]

[1] Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth), Explanatory Memorandum, Part 2, Division 1, Item 14, [74].

18A court may, at any stage, if it is satisfied that proceedings are frivolous, vexatious or an abuse of process, dismiss all or part of the proceedings.[2] Proceedings are not frivolous, vexatious or an abuse of process merely because an application was made and later withdrawn.[3]

[2] Section 45A(4).

[3] Section 45A(5).

19A vexatious proceeding order may be made under section 102QB(1) of the Act if, and only if, the court is satisfied that:

(a)a person has frequently instituted or conducted vexatious proceedings in Australia courts or tribunals, or

(b)a person acting in concert with another person who is the subject of a vexatious proceeding order or who is covered by the preceding paragraph has instituted or conducted vexatious proceedings in an Australian court or tribunal.

20Section 102QB(2) provides that a court may make any or all of the followings orders:

(a)an order staying or dismissing all or part of any proceedings in a 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, and

(c)any other order the court considers appropriate.

21Vexatious proceedings are defined in the Act[4] as including proceedings that are an abuse of the process of the court; proceedings that have been conducted to harass or annoy, or to cause delay or detriment or for another wrongful purpose; proceedings that have been instituted or pursued without reasonable ground; proceedings that are conducted in a way so as to harass, annoy, cause delay or detriment or achieve a number of wrongful purposes.

[4] Section 102Q(1).

22The definition does not provide an exhaustive list. It is open to the Court to consider other matters which it views as relevant to the particular circumstances of a case in a determination of whether proceedings can be characterised as vexatious.

What is meant by the term “frequently”?

23The authorities have considered what is meant by the term “frequently”, which establish that:

•“Frequently” is a relatively low threshold test.[5]

•Both the quality of the vexatiousness of proceedings and the nature of the proceedings itself, inform the assessment of frequency.

•“Frequently” is not to be assessed merely by an arithmetic calculation.

•The high or low proportion of proceedings instituted by a person charged with being vexatious is not determinative.

•The Court must bear in mind that a vexatious proceeding order may bear on all future proceedings, vexatious or not.

What factors should the Court have regard to?

[5] Pencious & Searle [2017] FamCAFC 210 at [75].

24In terms of the factors the Court must have regard to, Perram J in Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 discussed the general principles which apply to vexatious proceedings orders, which are summarised as follows:[6]

[6] Cited with approval by the Full Court in Pencious & Searle (supra).

(a)The making of such an order is an extreme remedy and is not to be made lightly.

(b)The purpose of the order is to shield the public, including individuals and the court, whose limited resources and needs must be managed and protected from baseless, repetitive suits. The purpose of the order is not to punish for past litigious misdeeds.

(c)The power is not enlivened by the mere single occurrence of a vexatious claim.

(d)The commencement of proceedings must lack reasonable grounds and the institution of such proceedings may fairly be said to be both habitual and persistent.

(e)The Court must ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit [even then, if it was the first application of that kind, it would not enliven the discretion].

(f)The Court must ask whether there is a failure, often a refusal, to understand the principles of finality on litigation?

(g)The Court must ask whether there is a quality of repetition where proceedings commenced as a matter of course, symptomatic of an inability not to engage, and a question of whether a litigant has persisted where a rational person would have abandoned the field?

(h)The Court must ask whether the litigant has genuinely, but misguidedly, persuaded us to the correctness of his or her own conduct.

(i)The notion of a proceeding is broad, and includes substantive proceedings and collateral applications within proceedings, and extends outside the proceedings to appeals therefrom and collateral applications.

(j)The character of the proceedings is a matter that the Court must take into account.

(k)Once the threshold has been met, the consideration for the exercise of the power are unconfined. However, the matters which will be relevant are informed for the protective purpose which the order serves.

25The Full Court in Marsden & Winch (2013) FLC 93-560 referred to the decision of the Attorney-General of New South Wales v Wentworth[7] in New South Wales, where Roden J defined vexatious proceedings in the following terms:

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 motives of the litigant, they are so obviously untenable or manifestly groundless to be utterly hopeless.

[7] (1988) 14 NSWLR 481 at [168].

26In Cannon & Acres [2014] FamCA 104, Benjamin J set out the approach he adopted in determining whether to make a vexatious proceeding order in a Family Court matter as follows:

Firstly, a determination of which proceedings constitute vexatious proceedings.

Secondly, if there had been vexatious proceedings, to then determine whether such proceedings had been conducted or instituted frequently.

And thirdly, if the threshold was met, then to consider whether to exercise discretion as set out in section 102QB(2).

27I propose to adopt his Honour’s approach, which in my view remains appropriate, notwithstanding the legislative amendments since his decision was handed own.

ARE ANY OF THE PROCEEDINGS INSTITUTED OR CONDUCTED BY THE WIFE VEXATIOUS?

28In turning to the question as to whether or not any of the proceedings instituted or conducted by the wife are vexatious, nothing in the substantive proceedings, that is, up until the time of trial and delivery of the judgment, were, in my view, vexatious. Nor, in fairness, did the husband submit that there was anything in terms of the substantive proceedings to support such a finding.

29The husband’s complaints focus on events since the trial.

30Final orders were made in May of 2018. Since that time, both parties have filed applications seeking costs. Those applications have not yet been determined, as a consequence of the other interim applications which the Court has had to deal with, together with the wife’s repeated requests for extensions of time in which to file her further submissions due to poor health.

31Where both parties have made applications for costs and where they have not yet to be determined, I am not satisfied that the wife’s application for costs, could readily be characterised as a vexatious application.

32The wife’s application filed on 16 November 2018, sought orders for the transfer of property pursuant to the final orders. The application came before me on 30 November 2018, at which time orders were made by consent for the husband to provide a verification of identify form and the completed transfer of land form for the said property. The application was then dismissed. The wife’s application cannot be said to have either been vexatious or inappropriate, where orders were made by consent in relation to enforcement of orders made by the Court.

33The subsequent application made by the wife on 18 June 2019 sought that I recuse myself, which the husband opposed. On 4 April 2019, the wife filed a further application providing a medical certificate and seeking that the recusal application be heard by a different court officer and a delay in the matter being dealt with as a result of her health. The husband filed his response on 20 May 2019, seeking dismissal of the application and repeating his application for the wife to be declared a vexatious litigant.

34On 14 June and 30 June 2019, the wife filed further applications repeating her request that I recuse myself.

35The wife’s recusal application was initially listed for hearing on 17 June 2019. The wife did not attend and was unable to be contacted by telephone. As a consequence, the proceedings were adjourned to 1 August 2019, at which time the wife appeared and the hearing was conducted. On 9 September 2019, I delivered Reasons dismissing the wife’s application.

36While the wife’s application was unsuccessful, I observed in my Reasons that the wife held her beliefs genuinely and sincerely and that she struggled to put herself into the shoes of a reasonable, fair-minded lay observer, in circumstances where the proceedings were highly personal and important to her.

37Since that time, the wife has attempted to file a Notice of Appeal on 9 September 2019. The Notice was not accepted for filing, for the reasons explained in correspondence from the Appeals Registrar on 16 September 2019.

38After careful consideration of the evidence and the submissions, there is nothing to support a finding that the proceedings to date in terms of either the wife’s conduct or her applications have been vexatious. I acknowledge that the wife has unsuccessfully sought that I recuse myself.

39I accept the husband’s complaint that in the wife’s affidavit material, she has made a number of serious complaints and criticisms of him and of the Court. Those applications have been dismissed. I also accept that there has been a significant delay in the only now outstanding application before the Court being dealt with.

40While the wife made not less than three applications for me to recuse myself, I dealt with them as one application and they were unsuccessful. In any event, I note the authorities establish that multiple applications alone is not sufficient to satisfy the term “frequently”.

41A review of the chronology of the proceedings does not support a finding that these proceedings have been conducted by the wife with the intention of annoying or embarrassing the husband, nor am I satisfied that the proceedings have been conducted to achieve a wrongful purpose.

42As I have observed to the wife on multiple occasions when she has raised complaints about the conduct of the proceedings and the determination of matters on a final basis, the avenue that is open to the wife is to appeal. She is out of time in which to do so. She can seek leave to appeal out of time. There is no current leave to appeal out of time.

43I appreciate the husband’s disagrees with the wife’s complaints and he is frustrated at the wife’s repeated criticisms of himself, the Court, the solicitors involved which he considers to be unfair and without foundation. He is also frustrated at the delays occasioned due to the wife’s health. Again, these matters do not support the order he seeks.

44Each party has articulated today concerns for the health and safety of their family. Both have expressed the adverse impact on them and their family, of the continuation of the current proceedings. That again is not sufficient to support an order as sought by the husband.

45On the basis I am not satisfied the proceedings have been vexatious, that is the end of the inquiry. The only outstanding applications now are the applications for costs.

46In order to avoid further delay and difficulties, I intend to make orders today that allows each of the parties leave to file any further costs submissions, by 6 January 2020. I then intend to deal with the outstanding costs applications on the papers, in accordance with the orders previously made.

47I consider that timing to be appropriate, given the parties’ submissions. I do not consider there is any benefit in requiring the parties to supplement their written submissions with oral submissions. My proposals will avoid any further distress that coming to Court may have upon them and their families. After hearing from the parties, it is not in their best interest for there to be any longer delay in conclusion of these proceedings. As a result, I intend to make those programming orders that will then see the final application that is currently before the Court being dealt with.

48The proposals in terms of the filing of material by 6 January 2020 gives both of the parties a reasonably lengthy period of time in which to consider anything further that they may wish to file. The parties have already filed material that they seek to rely upon. I wish to make it clear that if they elect not to file any further material or fail to do so, then the costs applications will be determined on the documents that are already before the Court.

49I make those orders in circumstances where each of the parties have expressed concerns about the time they have available to attend to these matters, their health and the health of members of their family. I consider the proposed orders allows each party sufficient time in which to file further submissions if they wish to do so, without putting undue pressure on them, but also balances the need to bring these proceedings to an end.

50For those brief reasons, I intend to make orders as follows.

PROPOSED ORDERS

1.The Respondent’s, [MR WAINWRIGHT], Form 2A filed 2 April 2019 and Form 2A Response filed 20 May 2019 be and is hereby dismissed.

2.All outstanding applications save and expect as to costs will be dismissed.

3.The Applicant, [MS WAINWRIGHT], and the Respondent each have leave to file and serve by no later than close of Registry on 6 January 2020 any further costs submissions upon which they seek to rely.

4.Regardless of their compliance with the preceding order the determination of costs will then be made in Chambers without any further notice to the parties noting the previous material filed by the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD
Secretary

2 DECEMBER 2019