Foden, Re Section 42, Supreme Court Act 1941

When a person subject to a civil restraint order under Supreme Court Act 1981, section 42, seeks leave to continue proceedings, the court cannot use that application to revisit the making of the order itself. Proceedings which merely re-litigate issues already determined, or pursue satellite and collateral complaints, may constitute an abuse of process and lack reasonable grounds. Leave may formally be given to make the application but refused on its merits. The judgment also records that no appeal lies from a section 42 ruling.

The applicant, a person declared vexatious under section 42 of the Supreme Court Act 1981, sought leave to continue proceedings against her former husband. The proposed proceedings alleged perjury, fraud, conspiracy and related wrongdoing connected with earlier matrimonial and property litigation. She also sought, in substance, to reopen issues determined in that litigation and to challenge the consequences of her bankruptcy and vexatious-litigant order.

The application had been adjourned for an oral hearing. The central issues were whether the proposed action could properly proceed and whether the court could reconsider the earlier section 42 order in the course of deciding the application for leave.

1. Application under section 42. The applicant was already subject to an order declaring her vexatious. The court could not go behind the making of that order when determining whether she should have leave to continue proceedings.
2. Nature of the proposed proceedings. Although the allegations were expressed in terms of perjury, fraud, conspiracy and professional wrongdoing, their substance was an attempt to re-litigate the matrimonial proceedings and to reopen issues dealt with in previous litigation. The proposed action also sought to revive satellite and collateral disputes associated with an earlier property dispute.
3. Abuse of process and absence of reasonable grounds. Continuing the proceedings would amount to an abuse of the process of the court. The proceedings had no reasonable grounds. The court accordingly gave leave to make the application but refused leave to continue the substantive proceedings.
4. Former matrimonial home. The court remained concerned that a county court order concerning the division of proceeds from the former matrimonial home might have been made without the judge having the relevant Court of Appeal order. A transcript of the judgment was therefore ordered at public expense and was to be sent to the county court judge and the applicant. This was intended to enable appropriate action if the earlier order had been made in ignorance of material documentation, not to direct a review or reopening.
5. Appeal. The judge stated that no appeal lay from a ruling under section 42.

The judgment describes earlier matrimonial proceedings, bankruptcy proceedings, and a final order declaring the applicant vexatious. It does not give a citation for any judgment in those proceedings. The present court determined the application for leave under section 42.