Wood and Muller
[2020] FamCA 162
•19 March 2020
FAMILY COURT OF AUSTRALIA
| WOOD & MULLER | [2020] FamCA 162 |
| FAMILY LAW – PRACTICE AND PROCEDURE – summary dismissal – where the husband initiated proceedings seeking final property orders – where final property orders were made by the court between the husband and the wife in 2005 – where the husband did not engage in those proceedings – where the wife seeks a summary dismissal and that the husband be declared a vexatious litigant – where the court has no power to make orders as sought by the husband – where the husband’s application had no reasonable prospect of success – order that the proceedings be summarily dismissed pursuant to section 45A. |
| Family Law Act 1975 (Cth) ss 45A, 102Q, 102QB Family Law Rules 2004 (Cth) rr 10.12, 10.14 |
| Arthurman & Arthurman (2019) FLC 93-926 Brogden v Attorney-General [2001] NZCA 2008 Lindon v Commonwealth (No. 2) (1996) 136 ALR 251 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Pedrana & Roberts (No 2) [2015] FamCA 231 Pelerman & Pelerman (2000) FLC 93-037 Pencious & Searle (2017) FLC 93-805 Potier v Attorney General (NSW) (2015) 89 NSWLR 284 Siteberg Pty Ltd v Maples [2010] NSWSC 1344 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) AustTorts Reports 81-423 |
| APPLICANT: | Mr Wood |
| RESPONDENT: | Ms Muller |
| FILE NUMBER: | MLC | 10449 | of | 2019 |
| DATE DELIVERED: | 19 March 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 10 March 2020 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Hams, Southern Family Law |
Orders
That the applicant husband’s amended Initiating Application filed 23 January 2020 be dismissed.
That save as to the issue of costs, the respondent wife’s Response to Initiating Application filed 28 November 2019 and Application in a Case filed 5 December 2019 be otherwise dismissed.
That by 4.00 p.m. on 3 April 2020 the respondent wife file and serve any written submission relied upon in support of her application for costs arising out of or incidental to her Response to Initiating Application and Application in a Case.
That by 4.00 p.m. on 17 April 2020 the applicant husband file and serve any written submission in response to the submissions filed by the applicant wife in relation to her application for costs.
That any submissions as to costs be limited to 10 pages.
That any application for costs be reserved for determination in chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wood & Muller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10449 of 2019
| Mr Wood |
Applicant
And
| Ms Muller |
Respondent
REASONS FOR JUDGMENT
Introduction
Final property orders were made on an undefended basis in proceedings between the husband, Mr Wood and the wife, Ms Muller by Dessau J on 9 December, 2005 (“Final Orders”). The husband did not participate in those proceedings. The Final Orders had the effect of ending the parties’ financial relationship.
Pursuant to those orders, the former matrimonial home at C Town (“C Town property”) was transferred to the wife in 2006. Notwithstanding the husband’s obligation under the orders to discharge loans from the Westpac Bank secured over the title to the C Town property, he did not do so. As a consequence, the wife refinanced and assumed responsibility for that debt.
In 2018 the wife sold the C Town property.
Some 14 years after the Final Orders were made, the husband commenced further proceedings by way of Initiating Application filed 13 September 2019, which was subsequently amended by an amended Initiating Application filed 23 January 2020. That application seeks a raft of relief against the wife, her former lawyers, her current lawyers, the Westpac Bank, National Australia Bank, a conveyancer and the third party who purchased the C Town property from the wife in 2018. Essentially, the husband seeks orders that will restore the parties’ financial relationship to that which was in existence prior to their separation, and brings to account the lawyers, banks and other agents who have facilitated compliance with the Final Orders.
By Application in a Case filed 5 December 2019, the wife seeks that:-
·The husband’s application for final orders be summarily dismissed;
·Pursuant to section 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the husband be restrained from making further application to the Court without first having obtained leave from a registrar; and
·The husband pay her costs in relation to these proceedings.
Background
The husband is aged 62 years and is unemployed. He has represented himself in these proceedings.
The wife is aged 58 years and is employed as an administrative officer.
The parties married in 1985 and were divorced in 2005.
The wife commenced proceedings for final property orders in July 2005. Final orders were made by Dessau J on an undefended basis on 9 December 2005. Those orders provide that:-
1.That within 30 days from the date of this order the husband shall:
a.Do all such things and sign all such documents as may be necessary to transfer all his right, title and interest in the former matrimonial home at B Street, C Town, being the whole of the land contained in Certificate of Title Volume … Folio … (“the former matrimonial home) to the wife;
b.Discharge the Westpac business loan account number …44; and
c.Indemnify the wife against all liability arising out of the said Westpac business loan account both past and present and shall henceforth assume sole liability for the said loan.
2.That contemporaneously with the husband completing the acts required in paragraph 1 of these orders, the wife shall:
a.Do all such things and sign all such documents as may be necessary to transfer her shareholding in Wood Pty Ltd to the husband and resign as Director and Secretary of Wood Pty Ltd;
b.Assume sole liability for and indemnify the husband in respect of all liability arising out of the former matrimonial home housing loan being account number 49-0031; and
c.Forego all claims she may have against any superannuation benefits earned by the husband.
3.That the husband shall indemnify the wife in respect of all liabilities including taxation liability of whatsoever nature arising out of her office holding and shareholding in Wood Pty Ltd both past, present and future.
4.That the husband shall forego all claims he may have against any superannuation benefits earned by the wife.
5.That each party shall otherwise be entitled to the exclusion of the other to all property (including choses-in-action) in possession of such party as at the date of this order.
6.That in the event that the husband fails to sign any documentation necessary to transfer his interest in the former matrimonial home to the wife the Registrar of the Melbourne Registry of the Family Court of Australia shall sign the documentation on behalf of the husband to give effect to such transfer.
7.That from this date:
a.The wife shall have the sole use and occupation of the former matrimonial home to the exclusion of the husband; and
b.The husband be and is hereby restrained from entering upon the land and entering the dwelling at the former matrimonial home.
8.That all outstanding proceedings shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation.
9.That the wife’s solicitors shall arrange for a sealed copy of these orders to be served on the husband forthwith.
10.That a transcript of my reasons given this day shall be prepared, placed on the court file and made available to each party.
Following the making of those orders, the wife commenced proceedings to enforce them by application filed in the Family Court in May 2006.
On 10 August 2006, Bennett J made orders with respect to that enforcement application as follows:-
1.That the parties and their legal practitioners attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry this day at 2:15pm.
2.That the wife’s amended application be removed from the acting pending cases list with a right of reinstatement.
3.That the wife’s right of reinstatement be exercised by arrangement with my Associate … to have the matter listed before me or if I am not reasonably available as directed by the List Registrar.
There has been no appeal against the orders made in 2005 and 2006, nor has there been any application to set aside those orders.
The hearing
The husband relied upon the following documents in support of his application:-
·Amended Initiating Application filed 23 January 2020; and
·Affidavit of the husband filed 23 January 2020.
The wife relied upon the following documents:-
·Response to Initiating Application filed 28 November 2019;
·Application in a Case filed 5 December 2019;
·Affidavit of the wife filed 29 November 2019; and
·Annexures to the affidavit of the wife filed 29 November 2019 (Exhibit R-1).
The hearing was conducted on the papers. The husband represented himself and the wife was represented by her lawyer.
Prior to the hearing commencing, I informed the parties as to how the matter would proceed on the papers. The husband confirmed his understanding of that process.
The husband’s application
At the commencement of his submissions, the husband identified the two principal issues which seemingly motivated his current application, they being his desire to “seek orders to rescue [the wife]” and to “remove [his] contempt of Court.”
Many of the orders sought by the husband appear to be motivated by his desire to be restored to the position enjoyed by the parties prior to their separation. For example, paragraphs 2 and 3 of the final orders sought by him in his amended application seek that the C Town property be transferred to him. At paragraph 4 of his application, he seeks an order that the consideration for the transfer of that property to him be on the basis that “let no man separate”.
The husband seeks to share sole use and occupation of the C Town property with the wife. Further at order 9, he seeks to share all property (including choses in action) in possession with the wife.
At order 10 of the amended application, the husband seeks an order that he “…shall care for his wife for better, for worse, for richer, for poorer, in sickness and in health, to faithfully love and cherish her until death according to God’s ordinance”. Orders 11, 12 and 13 also seek the restoration of the family to the C Town property.
Orders 14 to 23 are orders designed to restore the parties’ pre-separation savings accounts. The relief sought by the husband includes relief against Westpac Bank, so as to restore the parties to their pre-final orders position.
At paragraphs 24 to 26 of his amended application, the husband seeks similar relief against the National Australia Bank.
Paragraphs 30 to 35 of the husband’s amended application seeks orders against the wife’s former lawyers. The effect of the orders sought is that those lawyers disgorge all legal fees paid to them by the wife in relation to the Family Court and Magistrates’ Court proceedings between the parties following their separation.
Orders 36 to 41 of the husband’s amended application seeks that the conveyancer who acted upon the wife’s behalf in relation to the sale of the C Town property, disgorge its fees charged in association with the provision of those services.
Orders 42 to 46 of the husband’s amended application seeks orders against the wife’s current lawyers, requiring that they disgorge fees paid to them by the wife for these proceedings.
Finally, at paragraphs 48 to 51 of his amended application, the husband seeks that the current occupant of the C Town property, vacate the property, to assist in the restoration of the parties to that property.
Given the nature of the relief sought by the husband in his amended application, it is unsurprising that the wife seeks that it be summarily dismissed.
Should the husband’s application be summarily dismissed?
The power of the Court to summarily dismiss proceedings before it, is found at s 45A of the Act and Part 10.3 of the Family Law Rules 2004 (Cth) (“the Rules”).
Section 45A of the Act provides as follows:-
No reasonable prospect of successfully defending proceedings
(1)The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a)the first party is prosecuting the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a)hopeless; or
(b)bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4)The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5)To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
Costs
(6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.
This section does not limit other powers
(8)This section does not limit any powers that the court has apart from this section.
Note: Part XIB also gives courts powers relating to vexatious proceedings.
Rule 10.12 of the Rules provides as follows:-
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
The Court’s powers with respect to an application under Part 10.3 of the Rules are found at Rule 10.14, which provides as follows:-
On an application under this Part, the court may:
(a)dismiss any part of the case;
(b)decide an issue;
(c)make a final order on any issue;
(d)order a hearing about an issue or fact; or
(e)with the consent of the parties, order arbitration about the case or part of the case.
Note: This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).
Justice Kirby considered the circumstances in which an application may be summarily dismissed in Lindon v Commonwealth (No. 2) (1996) 136 ALR 251 at pages 255 to 256. The Full Court of this Court helpfully summarised those principles in Pelerman & Pelerman (2000) FLC 93-037 at [46] as follows:-
…
(a) The power for summary dismissal is a discretionary one.
(b) Relief “is rarely and sparingly provided”.
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”
(f) “If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.”
(Emphasis removed)
Those principles must be read subject to s 45A of the Act and Part 10.3 of the Rules. In considering whether an application has “no reasonable prospect of success”, the Full Court in Arthurman & Arthurman (2019) FLC 93-926, cited with approval the decision of the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 (“Lysaght”) and noted at [18] that:
…the test asks whether the application has a “real” as opposed to “fanciful” chance of success. Whilst it must be applied by reference to its own language, the test is nonetheless broader than “hopeless” or “bound to fail”. It must also be borne in mind that “the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried” (Lysaght at [35]).
Discussion
It is submitted on behalf of the wife that the issues raised in the husband’s application were dealt with and finalised by the Final Orders made by Dessau J in 2005. The effect of those orders was to finalise the financial issues between the parties. In accordance with those orders the C Town property, which the husband seeks be transferred to him, was transferred to the wife and subsequently sold by her. The loan from Westpac Bank, which the husband was to discharge pursuant to the Final Orders (and now seeks to be “restored”) has been discharged by the wife. As a result of the Final Orders it is submitted, and I accept, that the Court’s jurisdiction to deal with the parties’ property has been exhausted. There has been no appeal against those orders, nor any application to set them aside. Accordingly, it is submitted that the husband’s application for property relief is doomed to fail and as such, should be summarily dismissed.
Further, it is submitted and I accept that the orders sought by the husband against the financial institutions, the wife’s former and current lawyers and her conveyancer are beyond the Court’s jurisdiction and bound to fail.
Whilst the husband was invited to address those considerations during the course of his submissions, he did not do so. Rather, in support of his application, the husband pointed to his “contempt” of Court, insofar as he did not discharge the business loan as required pursuant to order 1(b) of the Final Orders. As a result of the husband’s non-compliance with that part of the orders, the wife did bring enforcement proceedings in 2006. Ultimately she did not press that application, which resulted in the orders made by Bennett J in 2006, granting the wife a right to reinstate the application.
The husband was under some misapprehension that he could exercise the right to reinstate the wife’s enforcement application. Clearly this is not the case. It is a matter for the wife to press her enforcement application. She has not done so and does not choose to do so. That is the end of that aspect of the case.
Further, notwithstanding the husband’s non-compliance with the Final Orders, there has never been an application for him to be found in contempt of Court, notwithstanding his concession during oral submissions that he had wilfully breached the Final Orders. Again, there is no application before the Court with respect to those matters and the wife does not seek to agitate those issues.
The application by the husband, to make orders to effectively restore the family unit, is an application for the Court to exercise powers it does not possess. There is no power within the Act to enable the Court to provide the relief sought by the husband so as to restore the wife and the family to the C Town property, or to bind the husband to care for her, to share his property with her or to prohibit him from separating from her. As a result, I am satisfied that that part of his application is bound to fail.
Likewise, I am satisfied that the relief sought by the husband against Westpac Bank, National Australia Bank, the wife’s former lawyers, the former conveyancer and the wife’s current lawyers has no reasonable prospect of success and indeed is bound to fail. The husband seeks orders against each of those entities that they shall not “engage in malfeasance, usurpation or devastavit of persons land home, profession or business”. Again, there is no power within the Act to grant the relief sought by the husband against each of those entities.
Whilst it is rare for the Court to make an order that an application be summarily dismissed, I am satisfied that in this matter such order is appropriate. Having regard to the Final Orders made in 2005 and the nature of the relief now sought by the husband some 15 years later, I am satisfied that the relief sought by him is beyond the Court’s jurisdiction and as such, is an application which does not have any reasonable prospect of success.
Accordingly, I will dismiss the husband’s amended application.
Is the husband a vexatious litigant?
The wife seeks an order that pursuant to s 102QB(2) of the Act, the husband be restrained from making any further application to this Court without first having obtained leave to do so.
Vexatious proceedings are defined at s 102Q of the Act as:-
(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.
The word “proceedings” is defined in section 4 of the Act:-
proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
If the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals or a person acting in concert with another person who is subject to a vexatious proceedings order, has instituted or conducted vexatious proceedings in an Australian court or tribunal, the Court may make orders staying or dismissing all or part of any proceeding, make an order prohibiting the person instituting proceedings or any other order the Court considers appropriate in relation to the person (s 102QB).
A proceeding may be an abuse of process where:-
·The proceedings are unreasonably oppressive and unfair to the other party;
·The proceedings will bring the administration of justice into disrepute; and/or
·It is sought to re-litigate something that has already been determined in previous proceedings.
(State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,086 – 64,089)
Whether vexatious proceedings have been frequently instituted or conducted is not determined solely or even necessarily by the number of proceedings. In Potier v Attorney General (NSW) (2015) 89 NSWLR 284 the Court of Appeal of the Supreme Court of New South Wales concluded that “frequently” has a relatively “low threshold” and “both the quality of the vexatiousness of a proceedings and the nature of the proceedings itself, inform the assessment of frequency”.
The Full Court contemplated the circumstances in which a vexatious proceedings order may be made in the decision of Pencious & Searle (2017) FLC 93-805. At paragraph 75 of the judgment the Full Court cited with approval the principles identified by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“Official Trustee in Bankruptcy v Gargan (No 2)”). Those principles relevant to the determination of whether or not to make a “vexatious proceedings order” are:-
2.…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).
11.Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
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.
(Original emphasis)
Having regard to those principles, in assessing the wife’s application that the husband be declared a vexatious litigant, it is necessary to consider the proceedings instituted, conducted or pursued by him in this and other courts.
The intervention order proceedings
On 17 September 2009 the wife obtained an indefinite intervention order against the husband in the Magistrates’ Court. The husband applied for the discharge of that intervention order in 2013. That application was dismissed.
Other than those bare facts, I have no other information as to those proceedings. Accordingly, I am not in a position to determine whether or not they were vexatious proceedings. The dismissal of an application does not in and of itself mean that it was a vexatious proceeding within the meaning of the Act.
The husband’s initiating application filed 13 September 2019
As noted earlier in this judgment, the husband’s initiating application sought orders beyond the jurisdiction of the Court. It sought to revive the property proceedings determined by the Court in 2005 and further to restore the parties to the position held by them prior to their separation. On any view, the husband’s application lacked merit and had no reasonable prospect of success. The affidavit filed by him in support of his application spanned 62 pages, not including annexures, was prolix and repetitive. In part, the husband cited biblical passages to support his contentions as to the need for the Court to grant orders as sought so as “to protect his family”, “to return for (his) bride” and for the wife to “acknowledge the one whom she has pierced as her saviour”.
The parties have been separated since 2003 and divorced since 2005. Given the period of time that has elapsed since the parties’ divorce and final property orders, in my view, the wife could reasonably have assumed that the burden of litigation with her former husband was at an end. The commencement of proceedings by the husband, effectively seeking the resumption of the marital relationship with the wife, has likely caused the wife significant distress. She deposes at paragraph 5 of her affidavit filed 29 November 2019 as to her concerns that the husband’s application is motivated by his desire to obtain her personal details, to cause her further harassment and to spruik his religious ideologies.
Having regard to the orders sought by the husband and the matters contained in the husband’s affidavit, I am satisfied that the wife’s concerns are justified. I am satisfied that the husband’s application is likely to have been instituted or conducted so as to harass or annoy the wife.
The question to be determined is whether that application alone is sufficient to support the making of a vexatious proceedings order as sought by the wife. The wife relies upon the decision of Cronin J in Pedrana & Roberts(No 2) [2015] FamCA 231 (“Pedrana”) at paragraph 63, where his Honour noted:-
Section 102QB applies if the court is satisfied a person has frequently instituted or conducted those vexatious proceedings in a court. It is conceivable that a small and limited number of proceedings could fall within the definition of “frequently instituted” if they were an attempt to relitigate or get around an issue that had already been determined (see Siteberg Pty Ltd v Maples [2010] NSWSC 1344 and Brogden v Attorney-General [2001] NZCA 2008).
That the husband is attempting to re-litigate an issue already determined, as was the case in Pedrana, is clear. However, given that this is the husband’s only application with respect to those matters since the Final Orders, I am not satisfied that it is sufficient to found a vexatious proceedings order; it cannot be said that he has frequently instituted or conducted vexatious proceedings. There is no doubt that the husband’s application is misconceived and that it has been seriously and unfairly burdensome upon the wife, causing her to feel harassed. That the husband has seen fit to bring the application so many years after the proceedings were finalised, has surely heightened the wife’s misgivings as to his motivations in bringing the application.
However, I am not satisfied that the husband has frequently instituted or conducted vexatious proceedings, given it is the only such application filed by him. As was noted by Perram J in Official Trustee in Bankruptcy v Gargan (No 2), to make a vexatious proceedings order is an extreme remedy which has the effect of depriving a citizen of his or her right to litigate. It is a severe power, not to be enlivened by the mere single occurrence of a vexatious claim.
In circumstances where the husband’s application will be summarily dismissed, were he to file any further application with respect to the parties’ property interests, such application may well found the making of a vexatious proceedings order.
Costs
The wife also seeks orders that the husband pay her costs of and incidental to the proceedings. At the conclusion of the proceedings, it was agreed that that part of her application be dealt with by way of written submissions. Accordingly, I will set a timetable for the filing of submissions in respect of that issue and subject to any submission to the contrary, I will deal with such application on the papers in chambers.
Therefore, the orders that I make are as follows:-
(1)That the applicant husband’s amended Initiating Application filed 23 January 2020 be dismissed.
(2)That save as to the issue of costs, the respondent wife’s Response to Initiating Application filed 28 November 2019 and Application in a Case filed 5 December 2019 be otherwise dismissed.
(3)That by 4.00 p.m. on 3 April 2020 the respondent wife file and serve any written submission relied upon in support of her application for costs arising out of or incidental to her Response to Initiating Application and Application in a Case.
(4)That by 4.00 p.m. on 17 April 2020 the applicant husband file and serve any written submission in response to the submissions filed by the applicant wife in relation to her application for costs.
(5)That any submissions as to costs be limited to 10 pages.
(6)That any application for costs be reserved for determination in chambers.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 March 2020.
Associate:
Date: 19 March 2020
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