Vexatious Proceedings – Rule & Rule [2015] FCCA 3191 (2 December 2015)

Vexatious Proceedings – Rule & Rule [2015] FCCA 3191 (2 December 2015)

Last Updated: 14 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The application filed on 3 August 2015 is summarily dismissed.
(2) The wife is directed to instruct that the funds held on trust for the parties pursuant to the Orders of 22 May 2013 by Diane Williams Solicitor, of (omitted) be paid out by that firm:

<li “=””>(a) The sum of $26,000 to Ms B Rule pursuant to paragraph 2(c)(ii) of the final Orders made on 22 May 2013 provided however that in the event that such funds have already been paid by Ms Williams to Ms B Rule then such amount be divided equally between the husband and the wife;<li “=””>(b) The sum of $67,997.76 to the wife’s solicitors trust account for payment out to the wife; and<li “=””>(c) The balance then remaining (approximately $24,588.88) be paid to the husband save that:
<li “=””>(i) From the husband’s share there be paid to the wife’s costs of $7,756.<li “=””>(ii) From the husband’s share of the funds there be deducted any further legal costs rendered by Ms Williams in this matter.

(3) That the wife have sole authority to direct the conveyancer to disburse the proceeds of sale without the husband’s consent.
(4) Pursuant to s.102QB(2)(b) of the  Family Law Act 1975  (Cth) the Applicant MR RULE is prohibited from instituting proceedings under the Act against or in relation to the Respondent
MS RULE without first being granted leave to commence that proceeding pursuant to s.102QE of the Act.

IT IS NOTED

1. The particular consequences arising from a vexatious proceedings order are set out in s.102QD of the Act, which provides:-

(1) If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:

(a) that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and

(b) another person must not, acting in concert with the person, institute, or proceedings of that type, in the court without the leave of the court under section 102QG.

(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.

(3) Without limiting subsection (2), the court may make:

(a) an order declaring proceedings are proceedings to which subsection (2) applies; and

(b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.

(4) The court may make an order under subsection (3) on its own initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or Territory;

(b) the appropriate court official;

(c) a person against whom another person has instituted or conducted vexatious proceedings;

(d) a person who has a sufficient interest in the matter.

2. That if the Applicant or any other person acting in concert with him wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the Applicant or such other person will be obliged to comply with s.102QE of the Act which provides:-

Section 102QE(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.

Section 102QE(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

Section 102QE(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

IT IS NOTED that publication of this judgment under the pseudonym Rule & Rule is approved pursuant to s.121(9)(g) of the  Family Law Act 1975  (Cth).

MLC 9480 of 2012

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. The application listed before me on 23 October 2015 was an application by the respondent wife for summary dismissal of the applicant husband’s initiating application, an order declaring the proceedings vexatious, enforcement of the property orders and an order for costs.
2. The matter was listed for hearing at 9:30am. Due to an earlier hearing, it did not commence until 10:00am. The applicant husband was called outside the court room but did not answer the call.
3. I am satisfied that he was on notice of today’s hearing and that it was appropriate to proceed with the matter in his absence. The husband was in Court when this matter was set down for hearing on 30 September 2015. The husband has been in correspondence with the wife’s solicitor and my chambers. He sought an adjournment which was not consented to. He was aware that the matter remained listed. He emailed submissions to my chambers on 20 October 2015 in accordance with the directions made by Judge Bender on 30 September 2015. Exhibit A is a series of correspondence between the wife’s solicitor and the husband. The wife’s solicitor emailed the husband copies of the relevant sections of the  Family Law Act 1975  (Cth) and the authorities referred to in the wife’s written submissions. He also sent the husband further submissions amending the wife’s position with respect to costs. The wife now seeks a specific amount in accordance with the scale rather than indemnity costs. The husband received that because he emailed a response at 6:26pm on 21 October 2015 which reads “Fuck off middlemis you lieing fucking deadshit [sic]”.
4. The husband sent further emails to chambers and the wife’s solicitors after the hearing. He made reference to going to the wrong court. That does not explain his failure to attend as he could have made enquiries of court staff and checked the court list to find the correct court room. This is particularly so given that the matter could not proceed for half an hour after it was listed. The tone of the husband’s correspondence and references to both judges of this Court and the wife’s solicitor is offensive and totally inappropriate. This is a recurring theme of the material he has filed.
5. Before turning to those issues it is necessary to set out the background. The chronology of the proceedings is set out as follows:
   • 1989 – Parties commence living together.
   • (omitted) 1991 – Parties marry.
   • 8 October 2011 – Parties separate.
   • 16 October 2012 – Wife commences proceedings by filing Initiating Application seeking orders for property settlement.
   • 16 November 2012 – Husband files a Response.
   • 22 May 2013 – Final Orders for property settlement made by consent by Judge Bender at Bendigo. The husband is self-represented. The wife is represented by Mr Middlemis.
   • 10 September 2013 – Husband files a Contravention Application.
   • 24 October 2013 – Wife files Initiating Application seeking orders pursuant to Section 79A(1)(b)(c) of the  Family Law Act 1975 .
   • 12 November 2013 – Husband files a Response – he is self-represented.
   • 14 November 2013 – Husband files an amended Response – he is self-represented.
   • 25 November 2013 – Husband’s contravention and wife’s initiating application listed for hearing.
   • 29 January 2014 – Further orders made.
   • 6 March 2014 – Final Orders made by Judge Bender at Bendigo. Wife is represented by counsel. Husband is self-represented. Orders require parties to comply with order for sale of real property, order pursuant to Section 106A of the Act and otherwise all extant applications are dismissed.
   • 22 April 2014 – Husband files an initiating application seeking to in essence vary the property orders to give him a greater percentage of the property.
   • 22 April 2014 – Husband files another Contravention Application.
   • 23 June 2014 – Final Orders made by Judge Bender at Melbourne. Husband is self-represented. Wife is represented by counsel. Orders made regarding providing an account, payment of moneys from trust and dismissing all applications including the husband’s contravention application.
   • 3 August 2015 – Husband commences current proceedings seeking orders pursuant to Section 79A of the Act, and presumably more particularly pursuant to subsection 79A(1)(a) by filing an Initiating Application.
   • 22 September 2015 – Husband files application in a case seeking that Judge Bender disqualifies herself. He does not serve the application.
   • 22 September 2015 – Wife files Response seeking summary dismissal and that the husband be declared a vexatious litigant.
   • 30 September 2015 – Judge Bender makes orders inter alia recusing herself from further hearing the matter and dismissing the husband’s Application in a Case. The husband is self-represented and the wife is represented by counsel. The husband then serves the wife’s counsel with his Application in a Case filed 22 September 2015. The wife’s counsel does not take issue with the Court determining the application prior to her being made aware of it or being served.
6. Final property orders were made by consent on 22 May 2013. The husband extracts parts of the transcript of the proceedings on that day before Judge Bender. By only annexing parts of the transcript there is the potential that the transcript be taken out of context and be misleading. The parties had attended a mediation where the parties had reached a heads of agreement. It is clear from the transcript that Mr Rule was unhappy about some aspects of the agreement and there was a dispute about payment of bills and the timing of those bills. It is also clear from the transcript that the applicant was given more than one opportunity to consider his position. It was made very clear to him that he did not have to sign the consent orders and that if he did not agree to the consent orders, the matter would need to be adjourned for a final hearing. He was given time to consider his position and had the option of speaking with the duty lawyer. He signed the consent orders.
7. The applicant husband did not appeal those consent orders. The consent orders are set out in full:
   1. (a) That within 7 days of the date of these orders each of

the husband and the wife do all things necessary to:

(i) obtain quotations from tradesman to complete the necessary repairs (to ready the property for sale) to the real property situate and known as Property K (the former matrimonial home); and
(ii) the husband shall co-operate with all reasonable requests of the wife’s tradesman to attend and inspect the home.

(b) That within 14 days of the date of these orders the parties agree upon a tradesman to forthwith carry out the repairs to the former matrimonial home and the following provisions shall apply:

(i) the husband and wife shall agree to the identity of the tradesman to carry out the work and in the absence of the parties reaching an agreement then such tradesman as nominated by Ms Dianne Williams solicitor shall be appointed and if Ms Williams is unwilling to act then as chosen by the wife’s solicitor; and
(ii) the tradesman shall forthwith commence the work and shall complete same as quickly as possible and the husband shall at all times co-operate with the reasonable requests of the builder for access to the property; and
(iii) the costs of such repairs shall be paid from the funds held on trust by Ms Dianne Williams solicitor and shall be paid immediately upon both parties so authorising Ms Williams.

2. That the real property situate and known as Property K (Certificate of Title Volume (omitted) Folio (omitted)) be forthwith sold altogether out of Court (“the sale”) and the proceeds of the sale be applied:
   <li “=””>

   (a) first to pay all costs, commission and expenses of the said the sale;

<li “=””>

(b) secondly to discharge the mortgage and any other encumbrance affecting the real property;

<li “=””>

(c) thirdly in payment of:

<li “=””>

(i) the parties debt to (omitted), and

<li “=””>

(ii) the parties debt to Ms B Rule ($26,000.00), and

<li “=””>

(iii) the parties joint (omitted) Visa card, and

<li “=””>

(iv) the balance at separation (8 October 2011) of the husband’s (omitted) VISA card and (omitted) Mastercard (jointly referred to hereinafter as the “husband’s credit cards”) save that any additional charges to the husband’s credit cards since the date of separation being acknowledged by the wife as attributable to the husband’s conduct of the party’s (omitted) business shall also be paid; and

<li “=””>

(v) the agreed creditors as detailed in Annexure “A” hereto;

<li “=””>

(d) fourthly the balance then remaining be divided in the proportions of:

<li “=””>

(i) 50 per centum thereof to the husband; and

<li “=””>

(ii) 50 per centum thereof to the wife.

3. The following provisions shall apply to the sale of the former matrimonial home:
   <li “=””>

   (a) the selling agent shall be (omitted) Real Estate and the husband shall permit the real estate agents to forthwith inspect the property to list the property for sale; and

<li “=””>

(b) the conveyancer shall be Ms Dianne Williams who shall forthwith be instructed to prepare a Section 32 statement and all other documents necessary for the sale of the property; and

<li “=””>

(c) the property shall forthwith be placed on the market for private sale at such selling price as is agreed between the parties and failing agreement as nominated by the president for the time being of the Real Estate Institute of Victoria and such nomination shall be obtained by either party requesting same from the president of the Real Estate Institute of Victoria; and

<li “=””>

(d) the property shall be listed for private sale for a period of 60 days post the date of these orders and if not sold within that time then:

<li “=””>

(i) the property shall be listed for sale by public auction no later than 90 days from the date of these orders and the reserve price and selling conditions shall be as agreed between the parties and failing agreement as nominated by the president for the time being of the Real Estate Institute of Victoria; and

<li “=””>

(e) that either party have urgent liberty to apply to the Court with respect to the provisions of the sale of the former matrimonial home.

4. That pending the completion of the sale:
   <li “=””>

   (a) the husband have the sole right to occupy the former matrimonial home and that during such right of occupation the husband maintain the home in good repair and the husband pay all instalments pursuant to the mortgage and all gas, electricity and telephone of the real property as they fall due (with any arrears be adjusted against the husband’s 50% share of the net proceeds);

<li “=””>

(b) the parties hold their respective interests in the real property upon trust pursuant to these orders; and

<li “=””>

(c) neither party encumber or further encumber the real property without the consent in writing of the other party.

5. That within 14 days of the date of these Orders each of the husband and the wife shall do all things necessary to sell (either through a clearing sale to be conducted by (omitted) Real Estate or some other agreed effective sale method):
   <li “=””>

   (a) the remaining (business omitted) plant & equipment, and

<li “=””>

(b) the remaining farm plant & equipment including:

<li “=””>

(i) the farm feedout wagon; and

<li “=””>

(ii) the farm bailer; and

<li “=””>

(iii) the fertiliser spreader; and

<li “=””>

(iv) the two wheel motorcycle; and

<li “=””>

(v) the new water pump; and

<li “=””>

(vi) the Auger; and

<li “=””>

(vii) the milk vat (if not sold with the real property);

<li “=””>

(viii) the electronic cup remover (if not sold with the real property); and

<li “=””>

(ix) the tractor;

<li “=””>

(c) the bull presently located with (omitted); and

<li “=””>

(d) the remaining (omitted) stock from the (business omitted); and

<li “=””>

(e) the billiard tables

6. The net proceeds from the afore mentioned chattel’s sale (after payment of selling costs and commission) shall forthwith be paid to Dianne Williams Solicitor who shall hold the funds on trust for the parties and apply them in accordance with paragraphs 2(iii) and 2(iv) hereof.
7. The parties shall jointly engage a solicitor (Cosgriff Orchard Legal) to act on their behalf with respect to proceedings against the tenants occupying the primary production portion of the former matrimonial home and with respect to such tenants:
   <li “=””>

   (a) proceedings shall issue to evict them from the real property, and

<li “=””>

(b) proceedings shall issue to collect all outstanding lease and other payments.

8. All funds recovered by the aforementioned legal proceedings against the tenants of the real property shall be paid to Dianne Williams Solicitor and disbursed in accordance with paragraphs 2(iii) and 2(iv) hereof.
9. That each of the husband and the wife continue to jointly instruct (omitted) Accountants to act on their behalf with respect to the parties’:
   <li “=””>

   (a) joint corporate entity – (omitted) Pty Ltd, and

<li “=””>

(b) their dispute with the landlord of the (business omitted), and that the parties shall:

<li “=””>

(i) endeavour to conclude all outstanding issues between themselves and the (business omitted) landlord, and

<li “=””>

(ii) wind up the corporate entity (omitted) Pty Ltd;

and that the costs of such legal representation by (omitted) Accountants shall be paid equally by the parties and any expenses shall be met equally by the parties and any funds received shall be divided equally between the parties.

10. That Dianne Williams Solicitor of (omitted) continue to hold funds on trust for the parties and only pay funds out in accordance with Orders of this Court and upon all creditors and other agreed expenses (including Ms Williams’ fees for so acting) being paid the net funds are to be divided equally between the parties.
11. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
    <li “=””>

    (a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property (including the granny flat) being deemed to be in the possession of the husband;

<li “=””>

(b) monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties;

<li “=””>

(c) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

<li “=””>

(d) insurance policies remain the sole property of the life insured named therein.

<li “=””>

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

<li “=””>

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and

<li “=””>

(g) each party foregoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

12. That the applications of the wife filed 16 October 2012 and the response of the husband filed 16 November 2012 be otherwise dismissed.

IT IS DIRECTED:

13. That these proceedings be removed from the Pending Cases List maintained by the Court.

THE COURT NOTES:

1. That the parties intend that these orders shall as far as practicable finally determine the financial relationships and spousal maintenance issues between them and avoid further proceedings between them.

8. The orders have not been fully implemented. There are still funds to be distributed from the conveyancer’s account. I will address this issue later in these reasons.

Application for summary dismissal

9. The Federal Circuit Court has power to summarily dismiss proceedings pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).
10. Section 17A is set out as follows:
    <li “=””>

    (1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    <li “=””>

    (a) the first party is prosecuting the proceeding or that part of the proceeding; and

<li “=””>

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

<li “=””>

(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

<li “=””>

(a) the first party is defending the proceeding or that part of the proceeding; and

<li “=””>

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

<li “=””>

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

<li “=””>

(a) hopeless; or

<li “=””>

(b) bound to fail;

<li “=””>

for it to have no reasonable prospect of success.

<li “=””>

(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.

11. Rule 13.10 of the Federal Circuit Court rules is set out as follows:
    <li “=””>

    The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

<li “=””>

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

<li “=””>

(b) the proceeding or claim for relief is frivolous or vexatious; or

<li “=””>

(c) the proceeding or claim for relief is an abuse of the process of the Court.

<li “=””>

Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the  Family Law Act .

12. There are several authorities which have addressed the matters the Court must consider when determining whether or not to summarily dismiss a matter. Kirby J’s comments at paragraph 14 of Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14 are often quoted. In that paragraph he said:
    <li “=””>

    “The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt:

1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;

2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

5. 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 pleading. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim; and

6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”.

13. In the Family Court decision of Gitane & Velacruz [2007] FamCA 183 Kay J summarised the position well at paragraph 25 where he said:
    <li “=””>

    “I paraphrase the salient points as follows:

<li “=””>

(1) that relief for summary dismissal is rarely and sparingly provided;

<li “=””>

(2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;

<li “=””>

(3) that it is not enough to attain summary dismissal to show that it is a weak case;

<li “=””>

(4) that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and

<li “=””>

(5) that one only summarily dismisses if it is clear that the case is doomed to fail”.

14. It is clear from s.17A and from the authorities that the bar for being able to successfully have an application summarily dismissed is a high one. It is appropriate that it be so because it is depriving a litigant of an opportunity to pursue his or her claim.
15. In his initiating application filed on 3 August 2015 the husband says:
    <li “=””>

    I am a application of the final order made on 22 May 2013 to have them set aside section 79A because there has been a miscarrige of justice be reason of fraud, duress, suppression of evidence, including failure to disclose relevant information, giving false evidence.

16. Presumably the husband is seeking to rely on s.79A(1)(a) of the Act which says:
    <li “=””>

    Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

<li “=””>

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance

<li “=””>

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

17. It is clear from the subsection above that there are five grounds for a miscarriage of justice.
18. The first is fraud. It is a very serious matter to accuse the person of fraud. Particulars of the basis of such an accusation must be given. The applicant is not able to provide any evidence as to what fraudulent conduct there was.
19. The second is duress. There is no basis for making such a complaint in circumstances where the transcript makes it very clear that the applicant husband was given the opportunity to obtain legal advice and was told very clearly he did not need to consent to the orders. It would have meant that some of the creditors were not paid straightaway but that is an issue that could have been addressed at a final hearing if the applicant has chosen that course.
20. The third ground is the suppression of evidence. The applicant husband did not provide any evidence to support such a complaint.
21. The fourth ground is giving false evidence. Again there is no evidence before the court to support such a ground.
22. This fifth ground is any other circumstance which gives rise to a miscarriage of justice. Complaints under this general ground have included incompetent legal advice: see Clifton and Stuart (1991) FLC 92-194. The other common grounds for complaint is based on orders being made in the absence of a party. A miscarriage of justice does not occur simply because orders were made in the absence of party. The issue is whether or not a party was on notice about the court date and the opportunity to be heard.
23. In support of his initiating application the husband filed a financial statement and an affidavit. In his affidavit he complains about the Court proceedings which took place on 23 May 2013 when the final property orders were made.
24. His first complaint is that Judge Bender had arranged for a lawyer to assist him. He suggests that this was somehow done deliberately to confuse him. There is nothing remarkable about a judge arranging for a duty lawyer to assist an unrepresented litigant in Court. It is a matter for the litigant as to whether he or she takes advantage of that assistance or not. The bus was repossessed before the consent orders were made.
25. The husband complained that the wife’s solicitor lied to the Court and committed fraud. He does not particularise these very serious allegations. It is clear that the husband is very upset by the result, which he consented to and that he feels hard done by. His complaints particularly centre on the timing of payments to creditors and the repossession of a bus.
26. The tone of the husband’ affidavit is vitriolic and insulting towards Judge Bender and the wife’s solicitor.
27. The husband also complains that he was arrested and blames Judge Bender for that. However, it is clear from the annexure to his own affidavit that the arrest warrant was issued by the Magistrates Court, not this Court. He entered into an undertaking of bail before the Magistrates Court at Echuca. Proceedings before the Magistrates Court are entirely separate and independent of proceedings in this Court.
28. The husband refers to orders made on 20 November 2012 referring to creditors being paid. He complains that he sent a list of creditors to the wife’s lawyer on 1 May 2013 and they had not been paid. The relevant order made on 20 November 2012, being order 10 refers to “agreed creditors” being paid. It does not address paying creditors where there is no agreement. Those orders also included directions for final hearing which was listed in the Castlemaine sittings in the week commencing 25 February 2013. The husband was legally represented when those orders were made. The matter was adjourned on 26 February 2013 for a final hearing in the week commencing 20 May 2013. The husband was still legally represented. The parties agreed to an order to attend a private mediation. The orders made on 26 February 2013 make no mention of the creditors.
29. The extract of the transcript the husband relies on makes it clear that he was complaining about the non-payment of the creditors and the fact that the bus had been repossessed a few days before the 22 May 2013 court date. The wife’s solicitor submitted that there had been non-compliance on both sides but that those issues had been addressed and that the issue that needed to be addressed was the creditors. The handwritten heads of agreement is the last annexure to the husband’s affidavit. It refers to at point (VII) “agreed creditors”. Clearly that was something which the consent orders needed to address. The heads of agreement was undated.
30. Judge Bender stood the matter down to enable to parties to discuss the creditors. She indicated that she would rule on the ones not agreed and that the duty lawyer would assist her.
31. When the matter was re-mentioned the parties had agreed to the list of creditors. The husband complained again that he had sent the list of creditors to the wife’s lawyer on 1 May 2013. He also complained about the bus being repossessed which he says was because creditors were not paid. Be that as it may, it is clear that there was no enforceable order about that issue. The heads of agreement reached at the mediation are not binding. Only orders, whether made by consent or by the Court, are. The previous orders referred to above only dealt with agreed creditors. The husband highlights a portion of order 12 of the orders made on 20 November 2012 which refer to the proceeds of sale from the water being used to pay agreed creditors and that the wife’s consent will not be unreasonably withheld. There is no evidence about the creditors. The husband did not file any affidavit material after 20 November 2012 and before 20 May 2013. The extracts of transcript annexed to the husband’s affidavit clearly show that Judge Bender explained to him that she had understood that the parties had reached agreement and that various problems arise during negotiations and she could not address that. He acknowledged that. She then went through the list of creditors.
32. It is also clear from page 33 of the transcript which is annexed to the husband’s affidavit that Judge Bender explained to him that she would make orders that day if they were agreed. If there was no agreement the matter would have to be adjourned for hearing. The debts would not be paid. The husband again laid the blame for the bus being repossessed on the wife’s solicitor. However, this ignores order 1(d) of the orders made on 20 November 2012 that the parties do all things necessary to sell the bus. The husband must also take some responsibility for the situation.
33. The meaning of miscarriage of justice has been discussed by many authorities. It is broadly interpreted. The fact that a party was not legally represented when consenting to orders is not a miscarriage of justice. Final property orders will only be set aside in limited cases. There are sound reasons for this which are obvious. Parties need to be able to finalise financial matters between them and move on with their lives separately. Section 81 of the  Family Law Act 1975  reflects this. Multiple litigants must be discouraged to avoid the courts becoming more clogged than they already are.
34. Many parties in family law matters feel aggrieved. They often involve highly personal, emotional issues.
35. The other relevant s79A grounds are:
    1. Circumstances that have arisen since the order was made making them impracticable. This is not the case here.
    2. A person has defaulted in carrying out an obligation under the orders and in the circumstances that have arisen as a result makes it just and equitable to vary the orders.
36. Order 3 of the orders made on 30 September 2015 directed the husband to file submissions in dot point addressing why his application should not be summarily dismissed. The husband emailed his submissions to chambers. His submissions do not address the issue of the summary dismissal. Rather it raises complaints about the two contravention applications which he filed, both of which were dismissed. It is significant to note that the husband did not appeal either order dismissing those applications.
37. I am satisfied that it is clear on the face of the documents the husband has filed in support of his initiating application that his case is doomed to fail. The applicant has not provided any evidence to support an arguable case for a miscarriage of justice. I am also satisfied that the husband’s application is vexatious as it is raising the same subject which has already been dealt with by the Court.
38. I will summarily dismiss the husband’s application.

Enforcement of the orders made by consent on 20 May 2013

39. As the wife deposes to in her affidavit filed on 22 September 2015 the consent orders are yet to be fully implemented. She seeks orders by way of enforcement to allow that to occur.
40. The final consent orders were made on 20 May 2013 which is well over 2 years ago. The matter must come to an end.
41. Order 5 of the orders sought by the wife is drafted in the passive voice which is unenforceable. I raised this with the wife’s counsel. There is no challenge by the husband in his submissions or affidavit as to the correctness of the figures the wife sets out in her affidavit. Given the level of bitterness the husband feels and vitriol he directs to the wife’s solicitor and the Court, I can have no confidence that he will comply with an order requiring he and the wife to direct the conveyancer to disburse the remaining funds held in her trust account.
42. In order to avoid there being yet another application before the Court, I am satisfied it is appropriate to give the wife sole authority to direct the conveyancer to disburse the funds.

The wife’s application to have the husband declared a vexatious litigant

43. Part XIB of the  Family Law Act 1975  deals with vexatious proceedings. Section 102Q defines vexatious proceedings as follows:
    (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.

44. Section 102QB addresses making vexatious proceedings orders. That section says:
    (1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
    (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) The court may 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.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
45. Benjamin J provided a very useful discussion of vexatious proceedings in Cannon v Acres [2014] FamCA 104.

46. The last section of the husband’s submissions are concerning and are set out below:
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    “I am also going to speak with some of our politicians and someone will pick this case up and take it to parliament. The Federal Parliament has just announced one hundred million dollars to family violence and the family law court is a disgrace, what has happened to me in court is disgusting, the court and middlemis has caused me so much anger and depression, no wonder people get shot”.

47. In light of these comments it is necessary to draw the husband’s attention to section 121 of the  Family Law Act 1975 . It is an offense to publish identifying information about family law proceedings.
48. The issue of whether or not a person has frequently instituted or conducted vexatious proceedings will depend on the context of the individual case. The subject matter of the proceedings is also relevant.
49. The husband’s application filed on 9 August 2015 is not the first time the issue of s.79A has been raised. The wife raised it for the first time in her initiating application filed on 24 October 2013.
50. The husband’s initiating application filed on 22 April 2014 sought a variation of the orders made on 20 May 2013 including a variation of the percentage division. The remedy the husband sought could only be granted pursuant to one of the grounds under s.79A.
51. The husband’s submissions filed with respect to the summary dismissal and vexatious proceedings argument go on to accuse a judge of this Court and the husband’s solicitor of being corrupt. These are very serious allegations to make and there is simply no evidence to support them.
52. The husband filed an application in a case, which he did not serve until the matter was in Court on 30 September 2015, seeking that Judge Bender recuse herself from further hearing these proceedings. The husband’s submission that she has “admitted her guilt” by disqualifying herself is misconceived. Throughout his material the husband refers to Judge Bender in insulting and offensive terms. It is clear from his own material that he would have been very agitated if she continued to hear the proceedings. Fortunately, the Melbourne registry is a large registry and it was a simple matter to disqualify herself and transfer the matter without having a contested hearing, which probably would have had to have been adjourned because it had not been served.
53. The current proceedings commenced by the husband is an abuse of process because he is seeking to re-litigate issues which have already been addressed by this Court.
54. I am satisfied that the husband has frequently instituted proceedings. This is readily apparent from the history of the proceedings: see s.102QB  Family Law Act 1975 . The husband has had the opportunity to be heard: see s.102QB(4)  Family Law Act 1975 . The husband’s conduct during the proceedings is a relevant factor: see s102QB(6)  Family Law Act 1975 . I have referred to his inappropriate conduct above.
55. Fortunately, the only issues which have been agitated between the parties are financial ones. Section 81 of the  Family Law Act 1975  refers to the duty of the court to end financial relations between the parties. The frequency that further proceedings and applications which have been brought by the husband is a relevant consideration.
56. I am satisfied that it is appropriate to make the vexatious proceeding order. The consequences of making this order are set out in ss.102QD and 102QE. I have set these out as notations so it very clear to the husband that he is now restrained from bringing further proceedings under the  Family Law Act 1975  against the wife unless he satisfies the stringent requirements set out in s.103QE.
57. The decision deprives the husband of access to the Court but I am satisfied that it is justified in this case. It is clear that the husband is extremely bitter and is unlikely to stop bringing applications seeking to re-litigate the same issue unless the order is made.

The wife’s application for costs

58. The wife seeks an order that the husband pay her costs. Initially, she sought unspecified indemnity costs. She filed a further submission, which the husband received, seeking costs in accordance with the Federal Circuit Court scale and provided a calculation for those costs which includes the appearance on 30 September 2015. I am satisfied that there are justifying circumstances pursuant to s.117(2A) of the  Family Law Act 1975  that make it appropriate for the applicant to pay costs in accordance with the scale which will be less than her actual costs. She has been required to incur expenses in responding to an unmeritorious claim. The applicant has been wholly unsuccessful. The amount will be deducted from the husband’s share of the proceeds of sale.