Agisaliou and Agisaliou and Ors (No. 2)

[2007] FamCA 1610

FAMILY COURT OF AUSTRALIA

AGISALIOU & AGISALIOU AND ORS
(NO. 2) [2007] FamCA 1610

FAMILY LAW – PROPERTY – Family trust – Proceedings brought in Supreme Court by beneficiaries of trust – Application for anti-suit injunction – Accrued jurisdiction

Family Law Act 1975 (Cth)
Trustee Act 1958 (Vic.)

Fencott and Ors & Muller and Anor (1983) 152 CLR 570
Warby & Warby (2002) FLC 93-091

Philip Morris Inc.  & Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457

LL and Anor & MR and Anor [2006] Fam CA 690
ReWakim; Ex Parte McNally (1999) 198 CLR 511
CSR Ltd.  & Cigna Insurance Australia Ltd. (1997) 180 CLR 345
Lederer & Hunt (2007) 36 Fam LR 587
Valceski & Valceski (2007) 36 Fam LR 620

APPLICANT WIFE: Mrs Agisaliou

RESPONDENT HUSBAND: Mr Agisaliou

2^ND, 3^RD, 4^TH, RESPONDENTS: Ms E Erasmus, Miss K Erasmus, an infant and Master T Erasmus, an infant

FILE NUMBER: MLF 3695 of 2004

DATE DELIVERED: 15 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 November, 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.M. Salamanca

SOLICITOR FOR THE APPLICANT: Webb Korfiatis

COUNSEL FOR THE RESPONDENT: Mr G.P.L. Thompson

SOLICITOR FOR THE RESPONDENT: McKean Park

COUNSEL FOR THE

 2^ND , 3^RD & 4^TH RESPONDENTS:

Mr Maloney

SOLICITOR FOR THE

2^ND , 3^RD & 4^TH RESPONDENTS:

Kennedy Guy

Orders

1. THE COURT FINDING  that the subject matter of Supreme Court of Victoria proceedings number … of 2007 (“the Supreme Court proceedings”) falls within the accrued jurisdiction of this Court and that it has the power to make the orders sought in the Supreme Court proceedings :

   (a)the plaintiffs in the Supreme Court proceedings be joined as the second, third and fourth named respondents to these proceedings;  and

   (b)the second, third and fourth respondents be and are hereby restrained, until further order, from further prosecuting the Supreme Court proceedings.

2. That the originating motion filed in the Supreme Court proceedings stand as an application in this Court for relief in the terms sought in the Supreme Court proceedings.

3. That on or before 30 November, 2007 each of the parties file a List of Documents specifying all documents in his or her possession or control concerning the financial affairs of the … Family Trust and any distributions or payments made from the income or assets of that Trust for the accounting periods from 2002 to 2007.

4. That on or before 30 November, 2007 each of the parties make available for inspection by the other parties all documents in the List of Documents filed and served pursuant to paragraph (3) hereof and the inspection of such documents be undertaken by 14 December 2007. 

5. That on or before 23 November 2007 the wife and the husband provide to the second, third and fourth respondents copies of all other affidavits or other documents that have been filed herein, which are to be relied upon by either of them in these proceedings which relate to any claims that either of them makes or intends to make in relation to the treatment of assets or income of the … Family Trust. 

6. That on or before 4 January 2008 the second, third and fourth respondents file and serve any affidavits upon which they intend to rely in support of the relief sought in their application against the husband in his capacity as trustee, guardian and appointer of the … Family Trust. 

7. That on or before 18 January 2008 the husband and wife file and serve any additional affidavits upon which he or she intends to rely:

   (a)in opposition to the grant of the relief sought by the second, third and fourth respondents against the husband;  and

   (b)in support of the relief sought by each against the other.

8. That the proceedings be listed for further directions, by telephone at 9:30 am. on 22 January, 2009.

9. That all extant applications herein be listed for trial to commence at 10:00 am. on 29 January, 2008. 

10. That the form 2 filed 13 November, 2007 and the form 2A filed 14 November, 2007 be otherwise dismissed. 

11. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

12. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3695 of 2004

MRS AGISALIOU  

Applicant Wife

And

MR AGISALIOU  

Respondent Husband

And

MS E ERASMUS
MISS K ERASMUS, an infant
MASTER T ERASMUS, an infant
2^ND, 3^RD  and  4^TH Respondents

REASONS FOR JUDGMENT

1. This matter came before me on Monday as a primary trial, as between husband and wife. On that day the court was advised that on the preceding Friday, the husband's sister and her two infant children (through a litigation guardian) filed an originating motion in the Supreme Court of Victoria seeking orders pursuant to the Trustee Act 1958 (Vic.) relating to the Family Trust (“[The] Trust”).  All orders sought by the plaintiffs in those Supreme Court proceedings relate to that trust.  There is no claim for a remedy outside that trust;  for example, no claim that a constructive trust was created.  In those circumstances, counsel for the husband sought that the trial be adjourned. 

2. For these purposes, it is sufficient to note that a significant part of the asset pool was considered by the parties (until then) to be a property in Queensland, valued at some $1 million, which is owned by the Trust.  It was put that a claim having being made in respect of the Trust, the court would not be in a position to ascertain the asset pool as between husband and wife until that claim (as between the plaintiffs and the husband, he being the defendant in the Supreme Court proceedings) was determined.  I declined a submission by senior counsel for the wife that the court make an ex-parte, anti‑suit injunction against the plaintiffs in the Supreme Court proceedings that day and go on with the trial, being satisfied that would be inappropriate for at least two reasons.  The first was the lack of procedural fairness to the plaintiffs;  the second was the inappropriateness of starting a trial in those circumstances, where there had to be some genuine doubt as to the court’s capacity to complete it in a timely way. 

3. On Monday I made a number of orders, directed to allowing the wife in these proceedings to apply to join the plaintiffs in the Supreme Court proceedings to them, to seek an anti-suit injunction in respect of those Supreme Court proceedings and to make any other applications that they saw fit.  Pursuant to that order, the wife filed a form 2 application on 13 November, in which she sought that Ms E Erasmus (being the first of the three named plaintiffs in the Supreme Court proceedings) be restrained from prosecuting the originating motion.  It is conceded by counsel for the wife that an order would need to be directed to all plaintiffs in the Supreme Court action.  An order was also sought that this Court exercise its accrued jurisdiction to determine the matters raised by the plaintiffs in the originating motion, and that the husband or Ms E Erasmus pay the wife's costs. 

4. That was met by a response which can best be seen in the context of a cogent, concise submission filed by counsel for the plaintiffs.  It could be summarised by saying that if this Court determined that the matters for determination in the Supreme Court fell within its accrued jurisdiction, and could properly be determined at the same time as the dispute between the husband and wife in this Court, the plaintiffs would not wish to be heard to oppose that course and would seek orders relating to the ongoing prosecution of their claims in these proceedings.

5. It is not submitted that the Court lacks capacity to make a determination on the accrued jurisdiction argument at this stage.  It is a discrete issue and can properly be determined on submission. 

6. In my view there is sound reason for the attitude of the plaintiffs.  It would be improper to restrain them from prosecuting Supreme Court proceedings in circumstances where, in the course of proceeding in this Court, a judge could find either no jurisdiction to determine the matters in dispute between them and the husband in the Supreme Court proceedings (that is, that the dispute did not fall within this Court’s jurisdiction) or that, in its discretion, the jurisdiction should not be exercised.  I am satisfied it is appropriate to determine the accrued jurisdiction point today. 

Legal principles

1. I will be brief.  Counsel have referred to a number of authorities, many of which are well known.  I have also been referred to a couple of more recent authorities by counsel for the plaintiffs and I have now had an opportunity to consider them, together with the authorities referred to in his summary of argument filed last night. 

2. A succinct statement of the relevant principles is contained in the majority decision in Fencott and Ors & Muller and Anor (1983) 152 CLR 570 and is referred to in the decision of the Full Court decision of this Court in the case of Warby  &  Warby (2002) FLC 93-091. As explained by Barwick CJ. in Philip Morris Inc.  &  Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457 at 475, it is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole of the matter.

3. In Fencott and Ors & Muller and Anor the majority view was that a "matter" is a justiciable controversy which must be constituted by, or must include, a claim arising under a federal law but which may also include another cause of action arising under another law, provided it is attached to and is not severable from the former claim.  The majority found that the proposition that a matter may include a cause of action arising under a non-federal law, though denied in the dissenting judgments, was the ratio decidendi of Philip Morris. It follows that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law, or which are to be determined by reference to that law alone.

4. In the more recent decision of LL and Anor & MR and Anor [2006] Fam CA 690 the Full Court of this Court, in the context of discussing a reference to matters of impression and practical judgment in Fencott and Ors & Muller and Another referred (at para.129) to the discussion by Gummow and Hayne JJ in ReWakim; Ex Parte McNally (1999) 198 CLR 511, in which they examined the criteria or basis of the jurisdiction. In that case, their Honours expanded on the considerations a judge will take into account in determining whether there is a justiciable controversy, as follows :

   . . . considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete.  Necessarily, then, the question will have to be decided on limited information.  But the question is not at large.  What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”.  There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”.

   So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination.  Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter. 

   Often, the conclusion that ,if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter.  By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.

   (Footnotes omitted)

5. The first step in the process under s.79 in the proceedings between the husband and wife is to ascertain the pool of assets.  Whether any or all of the assets of the Trust fall into that pool is in dispute.  In his initial response the husband sought an order that the wife forgo all her rights and interests in the Trust and a number of consequential orders.  Thus, the Trust has been in issue between the parties to the Family Law Act 1975 litigation from that time.

6. In this case, the potential for different findings were the proceedings in the Supreme Court and the Family Court to proceed in parallel is clear.  The potential is acknowledged by counsel for the husband seeking an adjournment of this trial to enable the proceedings in the Supreme Court to determine the issue between the plaintiffs and the husband, and is acknowledged in the relief now sought by the wife.

7. The Trust is in issue in the proceedings between the husband and wife.  All relief sought by the plaintiffs in the Supreme Court proceedings relates to the Trust.  This Court has a wide range of remedial powers and reference has been made to the declaratory relief available under s.78 of the Act.  The Court also has specific power to appoint or remove trustees, together with a broad power to make any other orders which it believes necessary to do justice between the parties.

8. As counsel for the plaintiffs in the Supreme Court proceedings noted, there is now some interesting jurisprudence on the question of whether, having found a matter is capable of being heard pursuant to the accrued jurisdiction of a federal court, the court has a discretion as to whether to exercise the accrued jurisdiction.  In Warby & Warby (2002) FLC 93-091, the Full Court of this Court seems to have assumed it does, as they set out a number of criteria a court should consider when deciding whether to exercise that discretion. A close reading of Warby may give rise to the potential for ambivalent constructions of this point but in this case, there is no submission that, were the court to be satisfied it could exercise accrued jurisdiction in respect of the matters in dispute in the Supreme Court, it should not do so.

9. In the circumstances, I am satisfied that the Court can, as part of its accrued jurisdiction, determine the matters in issue in the Supreme Court.  It has within its armoury remedies sufficient to do justice between the plaintiffs and the defendant in those proceedings.  It should determine the issues in dispute in those proceedings, having regard to the communality of subject matter and the necessity for the issue to be determined in order to do justice between all the parties.

10. The Court having found that the subject matter of the Supreme Court proceedings does fall within the accrued jurisdiction of this Court, the plaintiffs in the Supreme Court proceedings will be joined as the second, third and fourth respondents in these proceedings.  They (the second, third and fourth respondents) will be restrained, until further order, from further prosecuting the Supreme Court proceedings.

11. I do not propose to deliver lengthy reasons for making that anti-suit injunction.  I am satisfied on the material before me, in the light of authorities including CSR Ltd.  &  Cigna Insurance Australia Ltd. (1997) 180 CLR 345, Lederer & Hunt (2007) 36 Fam LR 587 and Valceski  &  Valceski (2007) 36 Fam LR 620, that this Court has the power to grant the anti-suit injunction and, for reasons which are inseparable from my reasons relating to the accrued jurisdiction issue, it should do so.

12. Putting aside questions of costs, that brings the court to the question of the trial.  That is of particular importance, having regard to the fact that these proceedings have been on foot in this court since late 2004.  Counsel for the plaintiffs (now the second, third and fourth respondents) has handed me a minute of proposed orders and directions, including discovery process.  I do propose to make orders in those terms.  It is vital that the second, third and fourth respondents comply with the order for the filing of affidavits.  The wife has made clear her scepticism about the bona fides of those who brought the Supreme Court proceedings.  They should not assume that an adjournment will be granted if they fail to comply with the order and could face an application for dismissal of their claim for want of evidence.

13. The trial will be listed to commence on 29 January, 2008 and there will be provision for a mention, by telephone, on 22 January, 2008.

I certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

Date: 15 November 2007