Rapallino & Dekker (No 3) [2025] FedCFamC1A 60 (8 April 2025)

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rapallino & Dekker has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 11 July 2024 a judge of the Federal Circuit and Family Court of Australia (Division 1) made property settlement orders between the parties. The present applicant filed a Notice of Appeal against those orders on 8 August 2024. The appeal was heard on 18 November 2024 and dismissed on 12 February 2025. An order was made that written submissions be filed as to costs, which has occurred.
2. The applicant has filed an Application in an Appeal together with an affidavit on 25 March 2025. The application seeks the following orders:
   1. An order staying the costs determination pending resolution of the procedural fairness an d [sic] administrative interference issues raised by the Appellant.
   2. An order restoring the Appellant's affidavit in support of the Application to Reopen to the court portal and official court file.
   3. An order confirming the Appellant's right to a fair hearing regarding the reopening of the case before finalizing [sic] the costs determination [sic]
3. Various other documents including an Amended Application in an Appeal and Further Amended Application in an Appeal and an affidavit of some 194 pages have been lodged without leave. They include references to a judicial review and referral to the National Anti-Corruption Commission.
4. There is an immediate difficulty with the application. The appeal has been heard and dismissed. The court that heard the appeal no longer has any matter before it save as to costs. The substantive litigation was terminated by the order of dismissal on 12 February 2025. There has been no application for leave to appeal to the High Court, not that such an application would grant this court jurisdiction to hear the present application.
5. It follows therefore that the court no longer has jurisdiction to deal with procedural decisions of the registrar that were made prior to the appeal and in the course of preparing the appeal for hearing, if that is what is in fact the subject of the application. The application is therefore completely misconceived.
6. It is also misconceived in that there is no application for judicial review extant or on foot. In fact, I do not understand what is meant by that phrase. What judge in what court is going to conduct what review?
7. Secondly there is no point revisiting procedural orders or decisions made by the registrar as to documents that have been filed or lodged because, as I have said, the appeal has been heard and determined. However, the mere fact that a document was removed from the portal or that the applicant was not permitted to file a document does not establish any misbehaviour whatsoever on behalf of the registrar. It is the registrar's job to maintain the integrity of the court's files by ensuring that only properly drawn and appropriate documents are filed and to deal with those documents that do not comply.
8. There is no basis to reopen the case, and I note in that regard that there was no application to adduce further evidence before the court that heard the appeal. If an application to that effect had in fact been refused filing by the registrar, there was no application for review. A significant principle of litigation is finality. The litigation has been concluded by the dismissal of the appeal. Although a litigant may not like the outcome, absent successful rights of appeal or other limited rights they may have, the decision is final.
9. Finally, there is no basis, nor would it be proper, to refer this matter to the National Anti-Corruption Commission.
10. The application must be dismissed for these reasons, but principally on the ground there is no jurisdiction to hear it.
11. That also applies to the Response that seeks a vexatious proceedings order in relation to the applicant. But for that difficulty, there is much to be said in that application for a vexatious proceedings order and the applicant should understand that if she files another application at first instance she may well be met with a successful application that she be declared a vexatious litigant.
12. No further applications should be permitted to be filed in the appeal because, as I say, the appeal has been dismissed.
13. Lastly, to the extent it might be seen that the application is solely in relation to the outstanding application for costs the answer is it cannot be. It does not seek any orders in relation to the issue of costs. On the face of the application and the evidence, it is concerned with the substantive orders of the primary judge. For these reasons the Application in an Appeal and the Response are dismissed.

1. An application has been made by the respondent for payment of his costs.
2. The Application in Appeal has been wholly unsuccessful and I am not satisfied there is anything remotely like an injustice that would justify non-payment.
3. The next question is whether those costs should be paid on an indemnity basis. Costs are awarded on an indemnity basis only in exceptional circumstances (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340). One of the grounds for awarding indemnity costs is where a case is pursued that has no reasonable prospects of success or is completely misconceived.
4. The history of the matter, as appears from the affidavit of the respondent, is that there has been a history of unfortunate applications. The primary judge refused a stay of the primary orders pending the appeal. The applicant appealed against that order. After the primary appeal was dismissed, the appeal against the stay order was yet to be determined. The applicant did not withdraw it and it was ultimately summarily dismissed by the court. The applicant has been warned by the primary judge that she was bordering on being a vexatious litigant and incurring great cost to the respondent.
5. I mention these matters not to suggest to take them into account as the applicant's conduct in this matter, but because it indicates that she is well aware that there are difficulties with running meritless applications. The primary difficulty with the present application is that, as emerges from the affidavit in support, what the applicant is really seeking to do is to relitigate issues that were determined by the primary judge and upheld on appeal. That is not a permissible course of conduct.
6. In all of the circumstances I am satisfied this is an exceptional case and that costs should be ordered on an indemnity basis. The applicant will pay the respondent's costs fixed in the sum of $5,000 within 28 days.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.