Searle & Pencious  FamCA 135 (7 March 2016)
HAS THE HUSBAND FREQUENTLY INSTITUTED OR CONDUCTED VEXATIOUS PROCEEDINGS?
- In Gargan Davies J considered the meaning of the term “frequently” in the context of an application pursuant to s 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW) which is drafted in almost identical terms to the provision of the Act which I must apply in the proceedings now before me. Davies J said at paragraph 7 as follows:
- <li “=””>(a) the test of “frequently” is a less demanding than was required under s 84
<li “=””>(b) the term “frequently” is a relative term and must be looked at in the context of the litigation being considered;<li “=””>(c) the number of proceedings considered
may be small if the proceedings are an attempt to re-litigate an issue already determined
- against the person;<li “=””>(d) regard may be had to applications made by the person in proceedings against that person;<li “=””>(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;<li “=””>(f) regard may be had to the proceedings in any Australian court or tribunal;<li “=””>(g) regard may be had to the findings and result in the proceedings under consideration.
- I have found that I am satisfied that the husband in this case has instituted or conducted vexatious proceedings on at least 11 separate occasions primarily in this Court, the High Court and on one occasion at VCAT. They include his:
- Application in a Case filed 3 December 2009 seeking to restrain Adrian Abrahams Family Lawyers from acting on behalf of the wife;
- Notice of Appeal filed 27 March 2012 against Cronin J’s orders of 28 February 2012 dismissing his application to restrain Adrian Abrahams Family Lawyers from acting;
- Application in an Appeal filed 21 March 2014 to reinstate the appeal against Cronin J’s orders of 28 February 2012 which was deemed abandoned;
- Application for Special Leave to Appeal to the High Court filed 9 February 2015 from the orders made by Strickland J on 13 January 2015 dismissing his application to reinstate the appeal;
- Application in an Appeal filed 16 February 2015 for a review of the Registrar’s decision rejecting his Application in an Appeal for an extension of time to appeal out of time against Cronin J’s orders of 28 February 2012;
- Applications in an Appeal filed 8 January 2015 and 27 January 2015 for an extension of time to appeal out of time against the orders made by Cronin J on 20 July 2010, 9 September 2010 and 5 April 2012;
- oral applications that Mr Wood of counsel be restrained from acting on behalf of wife at the hearing before Strickland J on 6 May 2015 and before me on 5 and 22 May 2015;
- oral application for an adjournment of the hearing before Strickland J on 6 May 2015; and
- application to VCAT in relation to the German motor vehicle.
- Significantly in this case those applications are on most occasions an attempt to re-litigate an issue that has already been determined and importantly in my view an attempt to re-litigate interlocutory proceedings long after the substantive proceedings have been determined and the appeal process concluded.
- Even if I am wrong and not all the proceedings which I have found to be vexatious are so, in my view the circumstances of this case are such that even a finding as to a lesser number of vexatious proceedings would be sufficient to satisfy the Court that the husband has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. It is the husband’s attempts to re-litigate issues and the interlocutory nature of the proceedings he seeks to re-litigate in the absence of any substantive proceedings and in those circumstances the futility of the proceedings that stands out in this case.
SHOULD THE COURT EXERCISE ITS DISCRETION TO MAKE A VEXATIOUS PROCEEDINGS ORDER?
- These proceedings were commenced in December 2008. In 2015 alone the husband has filed one Application in an Appeal seeking a review of a decision of the Appeals Registrar, two Applications in an Appeal for an extension of time to appeal out of time, four Applications for Special Leave to Appeal to the High Court, and one Application in a Case. He has also made five oral applications including two applications that Mr Wood of counsel be restrained from appearing on behalf of the wife. All of these proceedings have been instituted in circumstances where there are no extant parenting or property proceedings on foot. The interlocutory orders made by Cronin J on 28 February 2012 were the subject of an unsuccessful Application in an Appeal seeking to reinstate the husband’s appeal against those orders. The final property orders made by Benjamin J on 28 May 2013 and the associated orders for costs were the subject of an unsuccessful appeal by the husband. In both cases the husband applied for Special Leave to Appeal to the High Court and his applications were dismissed.
- The husband both in writing and orally submitted that the Court should not make a vexatious proceedings order because there has been only a partial disclosure of what he says is the wife’s fraudulent behaviour and that a vexatious proceedings order would preclude him pursuing any further purported miscarriage of justice that might be disclosed in the course of the costs assessment process. This highlights the fact that the husband has misconstrued both the nature and purposes of the costs assessment process which is not, as his submissions suggest, for the purposes of gathering evidence for use in other proceedings, and also, given the history of this matter, the likelihood of the husband instituting further proceedings. His submissions also highlight either his lack of understanding of the finality of proceedings or an unwillingness to accept that is the case.
- Although making a vexatious proceeding order is not to be taken lightly I am also mindful in this case that the husband is not being prevented from making an application but rather where there are grounds for such application he is being required to seek leave to do so.
- As the husband submits, the wife has had the benefit of legal representation and I am satisfied that the financial cost of responding to the husband’s myriad of applications has been substantial. Although Benjamin J made orders by way of security for costs, those funds are limited. In circumstances where the husband has been unemployed for some years and submits that he has no funds and has failed to pay the costs he was ordered to pay on 5 April 2012 and 14 August 2013, I am left with little confidence that an order for costs sufficiently protects the wife from the costs of the ongoing litigation. Nor am I satisfied that the threat of a costs order is likely to deter the husband from further litigation irrespective of the merits of that litigation. The husband himself complains of the emotional costs of the ongoing litigation. That ignores the fact that it is the husband who is driving that litigation in circumstances where there appears little to be gained in doing so.
- However it is not just the wife that this order is designed to protect. This order will also serve to protect the Court itself and its limited resources. This case has unnecessarily taken up an enormous amount of time and Court resources in circumstances where there are no extant applications for any final relief.
- In all of the circumstances I am satisfied that this is a case in which the Court should exercise its discretion and make a vexatious proceedings order as sought by the wife.
EXTANT APPLICATIONS OR APPEALS
- Section 102QB(2)(a) of the Act provides that the court may make orders “staying or dismissing all or part of any proceedings in the court already instituted by the person” against whom the order is sought.
- In his Application in a Case filed 24 March 2015 the husband seeks inter alia that the orders of Cronin J be stayed, that Registrar Riddiford be disqualified from further hearing of the costs assessment pursuant to the orders made 5 April 2012, that any orders made or proposed to be made by Registrar Riddiford arising in the course of the costs assessment be discharged, that the wife repay any costs paid pursuant to any assessment made by Registrar Riddiford together with any interest thereon, that the Court make the orders sought by the husband in his Notice of Appeal filed 27 January 2015 and that the wife pay the husband’s costs of and incidental to the costs assessment and this application on an indemnity basis.
- It is clearly not for this Court to make orders which are the subject of an appeal and on 20 August 2015 I made orders dismissing paragraph 6 of the husband’s Application in a Case whereby he sought such an order. I also made an order staying the further hearing of the costs assessment pursuant to the order made by Cronin J on 5 April 2012 and adjourned the other parts of the husband’s application with respect to the costs order and the assessment until after judgment in the husband’s appeal against that order had been delivered.
- Although the Court does have the power to make an order dismissing all or any part of the proceedings the husband has instituted, which would include his application that Registrar Riddiford be disqualified from any further hearing of that costs assessment, I am not satisfied that I should do so in this case. In my view the husband’s application to disqualify Registrar Riddiford and any orders that might follow as a consequence are matters that should be dealt with on their merits.
- The husband’s Application in an Appeal for an extension of time to appeal against Cronin J’s order has now been dismissed and there is, subject to any orders made following a hearing of the remaining matters in the husband’s Application in a Case, no reason why the costs assessment should not continue and be concluded.
- On that basis, although I propose to make a vexatious proceedings order which requires the husband to make an application for leave to institute proceedings I do not propose to make any orders with respect to the husband’s Application in a Case filed 24 March 2015. This means that although the costs assessment is incomplete and the wife may still face proceedings with respect to Registrar Riddiford’s conduct of the assessment, she will not be required to respond to any further applications instituted by the husband unless he is granted leave to make such application.
- The wife in her Application in a Case filed 24 April 2015 also sought orders against the husband and unless those matters have been resolved (noting that I have already struck out the subpoena the subject of paragraph 6 of that application), her application also must be dealt with by the Court. In all of the circumstances I propose to adjourn the balance of the husband’s Application in a Case filed 24 March 2015 and the wife’s Application in a Case filed 24 April 2015 to the Judicial Duty List for determination.