5.1 A threshold issue: to what extent does the applicant's Statement of Issues raise issues legitimately within the scope of the litigation
86 The respondents filed a Statement of Issues which were agreed between them (respondents' SOI) (CB vol 2 at 733). While the applicant sought to raise a significant number of additional issues in her SOI, she did not disagree with the proposition that the issues raised in the respondents' SOI properly fell to be determined in the proceeding. This is subject to the caveat that the findings made on some issues may (and in fact did) render certain other issues moot.
87 The applicant also filed a separate SOI (CB vol 2 at 713). The applicant's SOI purported to raise some 88 issues, some of which overlapped in whole or in part with those identified in the respondents' SOI. In this regard, the respondents did not therefore object to the following issues identified in the applicant's SOI: issues 14, 16, 17, 18, 21, 22, 24, 55, 56, 62, 63, and 64.
88 However, the remaining issues identified in the applicant's SOI were misconceived. In effect, the applicant sought to turn the litigation into a broad-ranging inquiry into the conduct of this and earlier litigation and into other issues which were irrelevant. This included an attempt by the applicant to mount a collateral challenge to decisions in other courts from which no appeal or application for leave to appeal had been instituted. For example, in the ACS (in response to R4CS), the applicant asserted that:
6. … The Applicant states yet again, that she has never colluded with her ex-husband or any person to defeat the Official Trustee or any other person. The lies and failure to state the truth in the District Court and now Federal Court proceedings is an indication of what the Fourth Respondent in conjunction with the First Respondent and their Counsel … is capable of. Johnston J was sucked into the vortex of what was presented to him by these persons, accepted what they said as truth without evidence in support. …
(See also e.g. ACS (in response to R4CS) at [8]-[9])
89 Leaving aside the scandalous and unfounded nature of such allegations against the respondents and their legal counsel, it clear that the applicant vehemently disagrees with the findings by the Family Court. So much may be accepted. However, this Court is not able to undertake what is in substance a collateral attack on those decisions acting effectively as a de facto court of appeal. Specifically this Court lacks jurisdiction to entertain an appeal from the Family Court and the current proceedings are not an appeal from the FCC decision. Furthermore, as I held in DOQ (No 1) with respect to the attempt to amend to raise a collateral challenge to the FCC decision:
66. However, as the respondents submit, if issue was taken with the conduct of the matter before the FCC, the proper avenue of challenge was by way of an appeal from the FCC decision. The attempt now to challenge that decision collaterally in separate proceedings would constitute an abuse of process on the basis that it would undermine the principle of finality, namely, that it is not only in the interests of the parties, but also of the state that there be an end to litigation. As for example, Gleeson CJ, Gummow, Hayne and Heydon JJ held in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (D'Orta):
34. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
67. As their Honours continued at [35], the principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system - a system which the applicant did not seek to engage with respect to the FCC's alleged breach of procedural fairness.
90 In this regard, the applicant's submission that she did not appeal the Family Court proceedings within time because she lacked the funds to engage legal representation is irrelevant (ACS (in response to R4CS) at [2]). The finality principle applies irrespective of whether or not a person has legal representation and, contrary to the applicant's submission, would apply equally if the matter were "referred to the High Court" (ACS (in response to R4CS) at [3]). It is also notable that the applicant was not deterred from seeking to mount a collateral challenge to the decision of Johnston J in this proceeding despite being unrepresented.
91 Bearing these matters in mind, I rejected the following issues identified in the applicant's SOI as matters which the Court could or should decide in order to resolve the proceeding for the following specific reasons.
(1) Issues 1 to 13, 43, 58, 65-66 invite this Court in effect to undertake an inquiry into the handling by the Family Court of the consent orders and challenge findings by the Family Court and the conduct of counsel for the respondents. This Court has no jurisdiction to entertain an appeal from, or otherwise to undertake a review of, the Family Court judgment as the applicant seeks to do.
(2) Issues 19, 20, 23 and 25 are not raised on the applicant's pleadings or articulated as a part of any cause of action. These issues illustrate how the applicant has conflated those matters giving rise to a cause of action with issues which form part of a broad-ranging enquiry which the applicant seeks to have this Court undertake about the conduct of other proceedings in other courts.
(3) Issues 26-31 allege that the legal representatives for the parties misled the District Court as to the removal or redaction of the Family Court Orders from the contract for sale and thereby seeks to mount an impermissible collateral attack on the District Court decision.
(4) As this is not an appeal from the FCC decision, issues 32-35 are misconceived although issue 32 can in any event be disposed of by the fact that the first, second, third and seventh respondents no longer contend that the FCC judgement gave rise to an issue estoppel.
(5) Issues 33, 34, 35 and 40 simply do not arise on the pleadings.
(6) Nor is vicarious liability which is identified in issue 37 raised on the pleadings and, if it had been raised by the applicant's pleadings, I accept the respondents' submission that it is likely that they would have sought to lead evidence on the issue. As such, to permit the issue to be raised now would prejudice the respondents.
(7) Issues 38 and 39 are beyond the scope of the pleadings. Furthermore, as counsel for Ms Nash submitted, the Model Litigant Principles constitute a direction made under s 55ZF of the Judiciary Act 1903 (Cth). Section 55ZG(2) of that Act makes it plain that a breach of a direction made under s 55ZF is not actionable.
(8) The issue sought to be raised at paragraph 41 constitutes an attempt to raise again a part of the pleading which has already been struck out. In this regard I note that an accurate record of those parts of the pleadings which have been struck out or abandoned is contained in the table at CB748 which was attached to the opening submissions for the first, second, third and seventh respondents.
(9) Issue 42 seeks to revisit the interlocutory decision in DOQ17 (No 1) refusing leave to further amend the statement of claim (save in one respect) and to join additional parties when no application for leave to appeal was filed.
(10) Issues 44-46, 48 and 50 proceed on the assumption that the Registrar-General is subject to a requirement to upload the orders onto the Register. It is not suggested however by any party that the Registrar-General was under any such obligation. As such the issues sought to be raised by these paragraphs do not arise.
(11) Issue 47 refers to a statement by solicitors. Again this issue seeks to turn the litigation into an enquiry into matters not relevant to establishing the elements of any of the causes of action alleged, as is also the case with issues 50 and 51.
(12) Issue 49 alleges that the Registrar-General is misleading the Court in claiming that it had no knowledge of the notation on the Family Court Orders. The allegation is without any foundation in the evidence. To the contrary, it is plain on the face of the Request to the Registrar-General and attached Family Court Orders that the notation did not appear (Ex A1 at 232-235).
(13) To the extent that the issues allege that the applicant has been defamed, the applicant's pleadings were struck out in the District Court and leave to amend the statement of claim to plead a cause of action in defamation was refused in DOQ17 (No 1) (see in particular issues 54, 59, 60 and 61 against Ms Nash).
(14) With respect to issue 57, no breach of the Harman principle has been pleaded. Nor in any event would a breach of that principle give rise to an action for damages.
(15) Issue 67 makes allegations against the respondents and their legal representatives, alleging that they followed a systemic pattern of misleading the courts as to the truth of the matter. Again there is no basis for the making of these scandalous and embarrassing allegations, and it is not open in any event to the Court to entertain a collateral attack on earlier decisions.
(16) Issues 68-72 question whether the Commonwealth Attorney-General's Department "stand[s] as the real litigant behind the First, Second, Third and Seventh Respondents" despite advising that it would not intervene pursuant to s 78B of the Judiciary Act 1903 (Cth), a question which is plainly irrelevant. Furthermore, there is no reason why the Attorney-General could not legitimately maintain an interest in a matter where a constitutional issue is raised even if he did not intervene.
(17) Issues 73-80 invite the Court to undertake an inquiry into communications between an officer of the Family Law Branch of the Attorney-General's Department, the fourth respondent, and the applicant which are irrelevant to any cause of action.
(18) Issue 79 invites the Court to consider whether the fourth respondent misled the NSW Legal Services Commission, a federal member of Parliament, the Commonwealth Attorney-General's Department, and the FCC in relation to the uploading of the applicant's Family Court documents onto AustLII. These allegations are irrelevant to any cause of action and invite the Court to embark upon an inquiry which is beyond the power of the Court to undertake.
(19) Issues 81-83 invite the Court to review whether the applicant was discriminated against by the Chief Justice of the Family Court in relation to the question of whether the alleged breach of s 121 of the Family Law Act should be referred to the AFP. The issues sought to be raised are plainly irrelevant and would breach judicial immunity. Further, no cause of action in discrimination has been pleaded and there is no determination of a complaint made to the Australian Human Rights Commission which is a necessary precursor to bringing a proceeding in this Court.
(20) Para 84 is relevant but admitted. As such it is not in issue.
(21) Issues 85, 87 and 88 ask the Court to determine whether the AFP refused to investigate the applicant's complaint that s 121 of the Family Law Act had been breached, whether the applicant is a victim of crime under the Civil Liability Act 2002 (NSW) (Civil Liability Act), and whether the Australian Information Commissioner is able to investigate complaints of a breach of s 121 of the Family Law Act. Effectively by these issues the applicant seeks advice from the Court. However, the Court has no jurisdiction to give an advisory opinion: see Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).
(22) Issue 86 asks this court to impose criminal penalties for a breach of s 121 of the Family Law Act, which this Court lacks jurisdiction to do.
92 I note that the applicant contended that if this Court is unable to deal with the issues which she seeks to raise, then she has been suing in the wrong court. However, any appeal against the Family Court or FCC decisions or application for leave to appeal would be substantially out of time and in many instances, the issues are not justiciable in any event. In reaching the view that these issues cannot properly be raised within these proceedings, I accept that the applicant feels aggrieved and upset. However, that does not render these matters justiciable.
93 The applicant also submitted at 17 on p. 6 of her final submissions in response to the respondents' final submissions that one of the issues for determination is that "[t]his matter of what the public may have done with information obtained from the Applicant's Family Court Orders and/or Judgment has not been determined and would be a further breach of s121 Family Law Act 1975 and would involve further litigation against any third party who may have misused that information" (emphasis in original). However, the Court has no jurisdiction to consider hypothetical issues. That notwithstanding, it is hoped that this judgment brings this lengthy and misconceived litigation to an end.