Amelia v Dallas

[2013] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

AMELIA v DALLAS

[2013] SASC 160

Judgment of The Honourable Justice Gray

25 October 2013

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - ORIGINAL JURISDICTION - MATTERS IN WHICH HIGH COURT HAS ORIGINAL JURISDICTION  - MATTERS BETWEEN STATES OR RESIDENTS OF STATES

HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - JURISDICTION AND POWERS - GENERALLY

This is an application for a permanent stay of the within proceeding.  The deceased died in Bali, Indonesia, on 19 May 2012, leaving the bulk of his estate in Indonesia.  The plaintiff is the mother of the second of the deceased's two sons.  The defendant is the deceased's mother.  An action was initiated on 19 September 2012 by the defendant in the Denpasar District Court, Indonesia.  On the same day, the plaintiff issued the within proceeding in the High Court of Australia against the defendant.  On 2 November 2012, Hayne J made an order remitting the proceeding to this Court.  The defendant applied to this Court for an order permanently staying the remitted proceeding.  On the hearing of the application, the Attorney-General for South Australia intervened.  Whether this Court has jurisdiction to determine the proceeding.  Whether this Court is an inappropriate forum in which to permit this action to proceed. 

Held (refusing the application):

(1)  This Court must abide the order of the High Court and has jurisdiction to hear this matter (at [31] and [55]).

(2)  The defendant has not demonstrated that this Court is a clearly inappropriate forum in which to hear the matter.  This is not a case where it is appropriate for a stay of proceeding to be ordered (at [54]).

Judiciary Act 1903 (Cth) s 34, s 38, s 39 and s 44; Australian Constitution s 75(iv); Supreme Court Act 1935 (SA) s 17, s 18 and s 19, referred to.
Johnstone v Commonwealth (1979) 143 CLR 398; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; Dinnison v Commonwealth (1997) 74 FCR 184; New South Wales v Kable (2013) 87 ALJR 737; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; Puttick v Tenon Ltd (2008) 238 CLR 265; Henry v Henry (1996) 185 CLR 571; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; Cameron v Cole (1944) 68 CLR 571; DMW v CGW (1982) 151 CLR 491; Ousley v The Queen (1997) 192 CLR 69; Re Macks; Ex parte Saint (2000) 204 CLR 158; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; R v Gray; Ex parte Marsh (1985) 157 CLR 351, considered.

AMELIA v DALLAS
[2013] SASC 160

Civil

GRAY J.

1. This is an application for a permanent stay of the within proceeding.

   Background

2. Cade Paul Dallas died in Bali, Indonesia, on 19 May 2012.  He left an estate, the value of which is as yet unknown and is in dispute.  It seems that, irrespective of the total value, the bulk of the estate is in Indonesia.

3. Cade Dallas had two sons.  The first, ZD, is resident in Australia.  His mother, a former partner of Cade Dallas, was served with the papers but declined to participate in the within proceeding.  Cade Dallas’ second son, KAD, is aged nine years and lives with his mother, Veny Amelia, the plaintiff in this proceeding.  Ms Amelia and KAD moved to Australia on 8 August 2012 and are now resident and domiciled in South Australia.  KAD is the holder of an Australian passport. 

4. Kerrie Ann Dallas, the mother of Cade Dallas and the grandmother of ZD and KAD, is the defendant in this proceeding.

5. Ms Amelia and Cade Dallas were married in Indonesia on 8 October 2002.  Whether they remained married up until Cade Dallas’ death or whether they were divorced is in dispute.

6. On approximately 29 July 2012, Ms Amelia signed a document nominating Ms Dallas to be trustee for all monies left to KAD by Cade Dallas.  The circumstances in which Ms Amelia signed the document are in dispute.

7. On 30 July 2012, the document was incorporated into a certificate constructed by Susan Lee Barnett.  It is apparent that there is confusion over Ms Barnett’s status as a legal practitioner.  The document was then sealed by the Indonesian Consulate General at Sydney as “legalised” on 2 August 2012.  The signature of the Consul was placed on the document.  The document, as sealed, was dated 2 August 2012.

8. Ms Amelia retained solicitors in Australia.  The solicitors received notice on 17 September 2012 from Ms Dallas’ Indonesian solicitors that they were treating the document as a “letter of guardianship”.

9. An action was initiated by Ms Dallas in the Denpasar District Court, Indonesia, on 19 September 2012.  The nature of that proceeding is in dispute.  In any event, the document was presented to the Denpasar District Court as a letter of Ms Amelia, legalised before the Indonesian Consul and consenting to the trusteeship by Ms Dallas of the monies left by Cade Dallas to KAD.  It is in dispute as to whether notice of the Indonesian proceeding was given by Ms Dallas to Ms Amelia. 

10. On that same day, 19 September 2012, Ms Amelia issued the within proceeding in the High Court of Australia against Ms Dallas.  A statement of claim was attached to the writ of summons.  On 2 November 2012, Hayne J made the following order remitting the proceeding to the Supreme Court of South Australia:

    BY CONSENT THE COURT ORDERS THAT:

    1.     The proceeding be remitted to the Supreme Court of South Australia.

    2.The proceeding continue in that Court as if the steps already taken in the proceeding in this Court had been taken in that Court.

    3.The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

    4.The costs of the summons be costs in the proceeding.

    5.The costs of the proceeding to the date of remission including the costs of this order are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

    DATE AUTHENTICATED     7 November 2012

    THE SEAL OF THE HIGH COURT OF AUSTRALIA     Registrar

11. Ms Dallas has applied to this Court for an order permanently staying the remitted proceeding.  The application is advanced on two grounds.  It is said that this Court does not have jurisdiction to determine the proceeding.  It was further contended that this Court is clearly an inappropriate forum in which to permit the action to proceed. 

12. On the hearing of the application, the Attorney-General for South Australia intervened.  The Solicitor-General attended on behalf of the Attorney-General.

13. Extensive affidavit material was tendered including affidavits from both Ms Dallas and Ms Amelia, as well as from their respective solicitors.  The parties agreed to the tender of the affidavits without requiring any deponent to attend for cross-examination.  Both parties treated the proceeding as being interlocutory in nature.  It was accepted that any findings to be made on the application would be made on untested evidence and were to be understood to be findings made for the purposes of the interlocutory application and were not to be treated as final or concluded findings.

14. The statement of claim, as filed in the High Court, alleged inter alia:

    -That Ms Amelia is a natural person resident and domicile in South Australia, that she is the mother of an infant child, KAD, and that she had brought the proceeding in a representative capacity as the sole legal guardian of KAD, as well as in her own right, and that KAD is resident and domiciled in South Australia. 

    -That Cade Dallas was born on 14 December 1976 in New South Wales and died on 19 May 2012 in the province of Bali, the Republic of Indonesia. 

    -That Ms Amelia and Cade Dallas were married in Bali on 8 October 2002 and that KAD was born from that relationship in New South Wales on 28 December 2003. 

    -That KAD’s older half-brother, ZD, who is also the child of Cade Dallas, resides in New South Wales.

    -That KAD is an Australian citizen within the meaning of the Australian Citizenship Act 2007 (Cth). 

    -That Ms Dallas is the mother of Cade Dallas and the grandmother of KAD and ZD.  Ms Dallas was said to be resident and domicile in the state of New South Wales. 

    -That on 26 January 2006, Ms Amelia obtained a decree of divorce from a religious Magistrate in Denpasar, Indonesia.  However, on approximately 2 August 2006, Ms Amelia and Cade Dallas remarried in an Islamic ceremony in the province of Bali. 

    -That legal guardianship is part of parental responsibility within the meaning of section 61B of the Family Law Act 1975 (Cth). Reliance was placed on section 61C of the Family Law Act, which was said to provide that parental responsibility vested in each of the parents of an infant. 

15. Ms Amelia sought declarations that the marriage ceremony of 2 August 2006 was a valid marriage ceremony and that Ms Amelia is the sole legal guardian of KAD and his property. 

16. Ms Amelia also sought a declaration that a letter described in her statement of claim as “the open letter”, the earlier referred to document dated 2 August 2012, is void and of no effect.  The open letter is identified as a letter signed by Ms Amelia at Ms Dallas’ request on or about 2 August 2012, in which Ms Amelia purported to nominate Ms Dallas as the trustee of all monies left to KAD by Cade Dallas.  Allegations followed that the document was in English, that the mother tongue of Ms Amelia is Bahasa Indonesia, and that her ability to write, speak and understand the English language is limited.  It is asserted that Ms Dallas required Ms Amelia to sign the open letter without the document being explained to her in her mother tongue and without the benefit of legal advice.  It was claimed that Ms Amelia did not understand the meaning and effect of the open letter and, in particular, did not understand the meaning and scope of the word “trustee” or that the open letter could form a basis upon which Ms Dallas could take possession of monies due to KAD in the estate of Cade Dallas.  It is further asserted that the open letter was signed in circumstances where Ms Dallas had promised to provide for the interim maintenance of KAD pending the proper administration of the estate of Cade Dallas being effected.  Ms Amelia claimed that Ms Dallas had used the open letter to support a claim of right to act as KAD’s legal guardian and the financial controller of his property.

    The Order of the High Court

17. As noted above, Ms Dallas contends that the order made by Hayne J under section 44(1) of the Judiciary Act 1903 (Cth) remitting the plaintiff’s application to this Court was made without jurisdiction and that, as a consequence, this Court also lacks jurisdiction.

18. The High Court has jurisdiction conferred by section 75(iv) of the Australian Constitution in all matters “between residents of different States”. Pursuant to sections 38 and 39(1) of the Judiciary Act, that jurisdiction is made exclusive to the High Court. Pursuant to section 39(2) of the Judiciary Act, that jurisdiction is then re-invested in the courts of the States, subject to the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise. 

19. It is the first duty of the court to satisfy itself that it has jurisdiction. In the absence of an express order or decision concerning jurisdiction, a superior court’s order is to be taken as embodying a decision that it has jurisdiction. It follows that in exercising its jurisdiction, the High Court implicitly decided that Ms Amelia and Ms Dallas were residents of different Australian States and, accordingly, determined that it had jurisdiction with respect to the matter under section 75(iv) of the Australian Constitution.  The order remitting is to be construed as containing an implicit finding that Ms Amelia and Ms Dallas were residents of different Australian States.

20. The High Court is a superior court of record.[1]  Orders of superior courts are valid and effective until set aside.[2]  In Gray; Ex parte Marsh, Mason J observed:[3]

    In general, the grant of jurisdiction to a superior court carries with it the power to determine conclusively, subject to any appeal, the existence or otherwise of facts upon which the jurisdiction depends, unless the legislature otherwise provides. As Dixon J. pointed out in Parisienne Basket Shoes, to make an actual fact, event or circumstance a condition on which jurisdiction depends, "produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed".

    The point has special force in relation to a superior court, even if it be a superior court with limited jurisdiction.

    [Footnote omitted.]

    [1]    High Court of Australia Act 1979 (Cth) section 5.

    [2]    Cameron v Cole (1944) 68 CLR 571, 590-591, 598, 605-6; DMW v CGW (1982) 151 CLR 491, 505; Ousley v The Queen (1997) 192 CLR 69, 99; Re Macks; Ex parte Saint (2000) 204 CLR 158, [19]-[23], [49]-[50], [135], [329]; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [151].

    [3]    R v Gray; Ex parte Marsh (1985) 157 CLR 351, 374-5.

21. As the High Court is a superior court of record, it is not open to this Court to entertain a collateral challenge to the High Court’s order.  As McHugh J commented in Ousley:[4]

    … Judicial orders of superior courts cannot be made the subject of a collateral challenge. Such orders are valid until they are set aside or varied by appeal to a higher court even if they have been made in excess of jurisdiction. They cannot be treated as nullities. It is not open to an inferior court to ignore them. …

    [Footnotes omitted.]

    [4]    Ousleyv The Queen (1977) 192 CLR 69, 99.

22. The only means by which an order of the High Court can be set aside is by way of appeal pursuant to section 73(i) of the Australian Constitution[5] and section 34 of the Judiciary Act.[6] 

    [5] Section 73(i) of the Australian Constitution provides:

    The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences--

    (i.)    Of any Justice or Justices exercising the original jurisdiction of the High Court…

    [6] Section 34 of the Judiciary Act 1903 (Cth) provides:

    (1)   The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers.

    (2)   An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers.

    The Jurisdiction of the Supreme Court

23. Pursuant to sections 17, 18 and 19 of the Supreme Court Act 1935 (SA), this Court is established as a court of general jurisdiction. Under section 17 of the Supreme Court Act, jurisdiction is vested in the Supreme Court “in and for the State”.  The requirement of a nexus with South Australia is to be liberally applied.  In the present proceeding, there is a real connection with South Australia; Ms Amelia’s residence in South Australia.

24. The jurisdiction of this Court to hear matters remitted by the High Court is granted by section 44(1) of the Judiciary Act, which provides:

    Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court’s own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

25. In Johnstone v Commonwealth, Aickin J considered the effect of section 44, and concluded:[7]

    [7]    Johnstone v Commonwealth (1979) 143 CLR 398, 408-9.

    … [T]he effect of s. 44 is to confer federal jurisdiction on State courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matters in which this Court has federal jurisdiction by virtue of s. 75 of the Constitution. That jurisdiction is coextensive with the jurisdiction of this Court, subject only to the Supreme Court having jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction, without investigation of the question whether the Supreme Court would have had jurisdiction (whether State or Federal) over the particular parties and the particular subject matter if the action in question had been commenced in that Supreme Court rather than in the High Court.

    This jurisdiction is conferred on the State courts by the Parliament, not by this Court. What s. 44 does is not to authorize this Court to confer federal jurisdiction on the State courts. What it does is to confer federal jurisdiction on State courts in cases where this Court is authorized to remit the proceedings to State courts and does in fact so remit.

    This statement of the operation and effect of section 44 has been adopted and reaffirmed by members of the High Court in MZXOT v Minister for Immigration and Citizenship, where Gleeson CJ, Gummow and Hayne JJ observed:[8]

    [8]    MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601, [48].

    The plaintiff referred to Johnstone v The Commonwealth. The issue in that case was whether an action in tort against the Commonwealth might, in exercise of the power conferred by s 44 of the Judiciary Act as it then stood, be remitted to the Supreme Court of any State or whether by reason of s 56 of the Judiciary Act the action might be remitted only to the Supreme Court of the State in which the cause of action had arisen. The decision of the majority was that s 44 empowered the Court to remit the action to the Supreme Court of any State and that s 56 did not require any other outcome. But, critically for the reliance the plaintiff seeks to place upon the outcome in Johnstone, Aickin J, one of the majority, said that:

    "the effect of s 44 is to confer federal jurisdiction on State courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matters in which this Court has federal jurisdiction by virtue of s 75 of the Constitution ...

    This jurisdiction is conferred on the State courts by the Parliament, not by this Court. What s 44 does is not to authorise this Court to confer federal jurisdiction on the State courts. What it does is to confer federal jurisdiction on State courts in cases where this Court is authorised to remit the proceedings to State courts and does in fact so remit."

    It is true that the other members of the majority in Johnstone, Gibbs J and Murphy J, did not express themselves with the same precision of language as Aickin J. But, however that may be, it is in the reasons of Aickin J that the statement of the doctrine of the Court is to be found.

    [Footnotes omitted.]

    Heydon, Crennan and Kiefel JJ observed:[9]

    [9]    MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601, [186]-[188].

    A power of this Court to remit matters necessarily involves the investiture of other courts with jurisdiction in respect of the subject matter of a proceeding.

    This Court's statutory powers of remitter in the Judiciary Act have been considered by this Court from time to time. In Johnstone v The Commonwealth Aickin J considered the words "federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject matter and the parties" appearing in s 44 of the Judiciary Act. He said:

    "[t]he effect of s 44 is to confer federal jurisdiction on State courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matters in which this Court has federal jurisdiction by virtue of s 75 of the Constitution ...

    This jurisdiction is conferred on the State courts by the Parliament, not by this Court. What s 44 does is not to authorise this Court to confer federal jurisdiction on the State courts. What it does is to confer federal jurisdiction on State courts in cases where this Court is authorised to remit the proceedings to State courts and does in fact so remit."

    Further, it was noted by Gummow J in Re Jarman; Ex parte Cook that exercising a power of remitter is a "step in [a] sequence" involving the investment or conferral of original jurisdiction on a federal or a State court by operation of s 44(3) of the Judiciary Act. His Honour said:

    "Section 44(3) ... operates ... as a law under s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, or as a law under s 77(iii) of the Constitution investing any court of a State with federal jurisdiction."

    [Footnotes omitted.]

1. The Supreme Court’s jurisdiction under section 44(1) of the Judiciary Act has been enlivened by the remittal order.  Once the High Court matter has been remitted, it becomes a proceeding in this Court.  In Dinnison v Commonwealth,[10] an application was made for the transfer of a proceeding in the Federal Court to the Supreme Court of New South Wales pursuant to section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), with the matter having initially commenced in the High Court and been remitted to the Federal Court. Foster J concluded:[11]

   I am satisfied that once a High Court matter has been remitted to this Court for hearing it becomes a proceeding in this Court to be determined, in all respects, in accordance with this Court's procedures and in accordance with any relevant statute law impinging upon those procedures. There is no suggestion that, once the remitter has taken effect, the proceedings have any further connection with the High Court. No interlocutory steps are to be taken in the High Court and the judgment given in the proceedings is a judgment of this Court.

   [10] Dinnison v Commonwealth (1997) 74 FCR 184.

   [11] Dinnison v Commonwealth (1997) 74 FCR 184, 188-9.

2. To similar effect, Gleeson CJ, Gummow and Hayne JJ in MZXOT v Minister for Immigration and Citizenship observed:[12]

   It is true that the usual consequence of the exercise by the High Court of its statutory power of remitter is that the Court, after making the order for remitter, is taken thereby to choose not to exercise further its original jurisdiction, at least where the whole of the matter has been remitted. In due course thereafter it may be that the appellate jurisdiction under s 73 of the Constitution is invoked but that will be the last step in a sequence following the investment or conferral of original jurisdiction in the federal or State court concerned. That investment or conferral of jurisdiction occurs by operation of the statute, not by a decision of this Court.

   [12] MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601, [42].

3. The principle that the orders of a superior court of record are valid until and unless overruled by a higher court was most recently reinforced by the High Court in New South Wales v Kable.[13]  In particular, the plurality observed:[14]

   [13] New South Wales v Kable (2013) 87 ALJR 737.

   [14] New South Wales v Kable (2013) 87 ALJR 737, [32]-[36].

   It is now firmly established by the decisions of this court that the orders of a Federal Court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that any of these decisions should be reopened and there would be powerful reasons not to disturb such a long-established stream of authority. Nor was it submitted that these principles did not apply equally to the judicial orders of a State Supreme Court. Rather, as already noted, the principles were said not to apply because the order made by Levine J was not a judicial order. And, for the reasons already given, that submission must be rejected.

   The roots of the doctrine, that the orders of a superior court of record are valid until set aside even if made in excess of jurisdiction, lie in the nature of judicial power.

   First, any court must decide whether it has authority to decide the claim that is made to it. And, as Gaudron J said in Ex parte Saint (at [53]):

   [53] In establishing the Federal Court as a “superior court of record”, the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties’ right to appeal or to seek relief pursuant to s 75(v) of the Constitution. [Emphasis added.]

   Second, giving the orders of a court created by the parliament these characteristics is within legislative power, either as incidental to the power to create the court or as an exercise of the legislative powers given by ss 76 and 77 of the Constitution. And giving these characteristics to the orders of a court by designating it to be a superior court of record reflects the distinction between the exercise of judicial power (by the final quelling of controversies according to law) and the exercise of executive power (subject to law). As Gummow J said in Ex parte Saint (at [216]):

   [216] … That does not mean that the stream [of judicial power] has risen above its source. Rather, it is to recognise the relationship between Chs II and III of the Constitution and the reach of s 51(xxxix) in conjunction with ss 71 and 77(i).

   Contrary to the view expressed by Basten JA in the Court of Appeal, and supported by Mr Kable in argument in this court, these conclusions present no “logical conundrum”. Nor do these conclusions require consideration of whether “where a judicial function and an incompatible non-judicial function are purportedly exercised in one proceeding, the incompatible non-judicial function is not thereby incorporated into a single exercise of federal jurisdiction”.

   The conundrum identified by Basten JA was expressed as being that the law on which the effect of the judicial order depended gave it “an effect extending beyond the constitutional limits of that jurisdiction”. But, as has been explained, the effect which is given to the order made beyond jurisdiction comes not from the law which purported to confer the relevant jurisdiction but from the status or nature of the court making the order (as a superior court of record). The effect which is given to the order is for only so long as it remains in force. Once set aside on appeal, the order is spent.

   [Footnotes omitted.]

4. The defendant submitted that this Court lacks jurisdiction to deal with the substance of the action.  It was contended that the High Court lacked jurisdiction to make the order and, as such, that this Court suffered from a similar lack of jurisdiction.  When it was put to counsel for the defendant in oral submissions that there are authorities regarding the efficacy of orders until set aside, it was conceded that the submission relating to the High Court’s purported lack of jurisdiction cannot succeed before this Court. 

5. The Solicitor-General, on behalf of the Attorney-General, and the plaintiff submitted that this Court has jurisdiction to hear the matter on the principles set out above, specifically, that jurisdiction is supplied by section 44(1) and section 39(2) of the Judiciary Act.

6. The defendant did not establish any basis for concluding that the order of the High Court should not be obeyed by this Court.  Any issue which the defendant has regarding the validity of the High Court’s order must be pursued in that Court.  For the purposes of the matter presently before this Court, this Court must abide the order of the High Court and has jurisdiction to hear this matter.

   Application for a Permanent Stay

7. It is convenient at this point to return to the Indonesian proceeding.  On 3 December 2012, the Denpasar District Court made orders passing control of Cade Dallas’ bank accounts to Ms Dallas.  The terms of the orders, as translated, are as follows:

   1.   To comply with [Ms Dallas’] petition;

   2.   To give permission to [Ms Dallas] to represent the children of the late Code [sic] Paul Dallas, namely [ZD] and [KAD] to withdraw the savings of the deceased, among others in Banks:

   …

   3.   To charge [Ms Dallas] with the cost of the petition arising from this petition that up until this moment is Rp 166,000.- (one hundred and sixty-six thousand rupiah);

   This has be [sic] decided/stipulated on this Monday December 3, 2012 by ERLY SOELISTYARINI, SH.M.Hum, Judge of said District Court, the stipulation of which has been pronounced on the same day before a session open to the public by said Judge in the presence of Hj. SRI ASTUTIANI, SH. Alternate Clerk at said District Court and in the presence of [Ms Dallas] accompanied by her attorney.

8. It is important to note that these were final orders and that the proceeding was concluded.

9. The defendant submitted that this Court is an inappropriate forum in which to permit this action to proceed and that if the matter were to proceed in this Court it would be oppressive and vexatious to the defendant.  The defendant contended that it is vexatious to require her to litigate similar issues in different courts and that the court in Bali would be the appropriate forum for the plaintiff to agitate issues concerning the management of the assets of the deceased. 

10. The plaintiff contended that the defendant did not make out a case that this Court cannot justly adjudicate this matter.

11. The Attorney-General submitted that nothing in the High Court’s order remitting the matter to this Court prevents this Court from determining the question of whether it is a clearly inappropriate forum for the determination of the dispute.

12. Once a matter is remitted to a court under section 44 of the Judiciary Act it becomes a proceeding in that court to be determined, in all respects, in accordance with the court’s procedures. 

13. A remittal moves the matter to a new forum and supplies that forum with jurisdiction with respect to the matter.  Subject to any directions with respect to the matter made ancillary to the remittal order,[15] it does not bind the Court to any conclusion as to the appropriateness of staying the matter on other than jurisdictional grounds.  The remittal by the High Court does not prevent this Court from concluding that it is a clearly inappropriate forum as compared to the courts of Indonesia.

    [15] See section 44(1) of the Judiciary Act 1903 (Cth).

14. The principles regarding the power to stay proceedings were considered by the High Court in Voth v Manildra Flour Mills Pty Ltd.[16]  The plurality, in considering the judgments in Oceanic Sun Line Special Shipping Company Inc v Fay,[17] observed:[18]

    … First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution".

    [16] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

    [17] Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197.

    [18] Voth v Manildra Flour Mills Pty Ltd (1990) 171 538, 554.

15. In Puttick v Tenon Ltd[19] the High Court was invited to reconsider the test for a stay of proceeding on the grounds of the chosen forum being inappropriate, as formulated in Voth v Manildra Flour Mills Pty Ltd.[20]  The Court declined the invitation.  French CJ, Gummow, Hayne and Kiefel JJ summarised the Voth test in the following terms:[21]

    In Voth v Manildra Flour Mills Pty Ltd, the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth pointed out that the focus must be "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum".

    [Footnotes omitted.]

    [19] Puttick v Tenon Ltd (2008) 238 CLR 265.

    [20] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

    [21] Puttick v Tenon Ltd (2008) 238 CLR 265, [27].

16. As was described by the High Court in Henry v Henry, a court will be considered a clearly inappropriate forum if continuation of the proceedings in that court would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of productive of serious and unjustified trouble and harassment:[22]

    In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried "suitably for the interests of all the parties and for the ends of justice"".

    [Footnotes omitted.]

    [22] Henry v Henry (1996) 185 CLR 571, 587.

17. In discussing the principles concerning forum non conveniens applications, the plurality in Voth further observed:[23]

    It follows that, subject to the question of onus discussed in the preceding paragraph, the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Deane J. in Oceanic Sun. In the application of those principles the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.

    [Footnotes omitted.]

    [23] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

18. Lord Goff in Spiliada Maritime Corp v Cansulex Ltd considered that such connecting factors include those affecting convenience or expense, the law governing the relevant transaction and the places where the parties respectively reside or carry on business.  Lord Goff observed:[24] 

    In my opinion, having regard to the authorities (including in particular the Scottish authorities), the law can at present be summarised as follows.

    …

    (4) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case, 1926 S.C. (H.L.) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.

    …

    (6) If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; see the The Abidin Daver [1984] 1 A.C. 398, 411, per Lord Diplock, a passage which now makes plain that, on this enquiry, the burden of proof shifts to the plaintiff. How far other advantages to the plaintiff in proceeding in this country may be relevant in this connection, I shall have to consider at a later stage.

    [Emphasis added.]

    [24] Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, 477-478, 482-484.

19. While any legitimate personal or juridical advantage is a relevant consideration, it is not decisive.  The fundamental question is whether the selected forum is clearly inappropriate.[25]

    [25] Henry v Henry (1996) 185 CLR 571, 588-9.

20. As to the relevance of the applicable law being that of a foreign jurisdiction, in Regie Nationale des Usines Renault SA v Zhang, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed:[26]

    An Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae. …

    [26] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, [81].

21. As was observed by French CJ, Gummow, Hayne and Kiefel JJ in Puttick v Tenon Ltd:[27]

    … But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction. …

    While a relevant consideration, it is not enough that foreign law may apply. Before this factor is to be taken into account, it is necessary to determine that foreign law is applicable. 

    [27] Puttick v Tenon Ltd (2008) 238 CLR 265, [31].

22. With regard to the relevance of duplicative proceedings in another jurisdiction, Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry observed:[28]

    It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

    It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

    [Footnotes omitted.]

    [28] Henry v Henry (1996) 185 CLR 571, 591.

1. In the circumstance where different issues are involved in local and foreign proceedings, the plurality in CSR Ltd v Cigna Insurance Australia Ltd observed:[29]

   In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging".

   [Footnote omitted.]

   [29] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 400-1.

2. The onus is on Ms Dallas to persuade the Court to exercise its discretion to grant a stay.  That said, it can be expected that each party will seek to establish the existence of certain factors relevant to persuading the court to exercise its discretion in its favour.  In relation to such factors, the evidential burden will rest on the party who asserts the existence of the particular factor.

3. At the heart of this matter is the question of the adequate provision for the child KAD out of the assets of Cade Dallas.

4. On the evidence before the Court, the plaintiff and her son KAD reside in South Australia.  ZD, the other son, lives in New South Wales.  The locality of the residence of Ms Dallas, whether it be in New South Wales or Denpasar, Indonesia, is in contention.

5. During oral submissions it became apparent that the Court in Indonesia had not been provided with notice of the High Court proceeding.  It was put by counsel for the plaintiff that the plaintiff did not learn of the Indonesian proceeding until after the proceeding in this Court had been initiated and only then due to documents received through this proceeding.  The Court was also informed that the proceeding in Indonesia concluded on 3 December 2012. The possibility of this Court taking evidence from witnesses in Indonesia was discussed.  Counsel for the defendant submitted, however, that this would cause undue trouble and inconvenience, and that Indonesia was the appropriate jurisdiction to resolve the matter.

6. The effect of the order of the Indonesian Court is to protect the interests of the children.  In an affidavit, the defendant deposed that, according to the Indonesian bank where the money is held, she is unable to transfer any of the funds held in the bank accounts to Australia for the benefit of the children until they obtain the age of 18 years.  While no request had been made for the transfer of those funds, counsel for the plaintiff indicated that the plaintiff would seek the transfer of those funds to the suitors’ fund of this Court to be dealt with according to the orders of this Court.  While the resolution of this question is not a matter for the Court to address at the present time, it reveals a lacuna affecting the interests of the children.  It is conceivable that this could be resolved in conjunction with notice to the Indonesian Court and the potential payment of monies into this Court’s suitors’ fund.  Both parties agreed that this was an option which might be pursued.

7. The defendant has not demonstrated that this Court is a clearly inappropriate forum in which to hear the matter.  The legitimate interests of both children must be borne in mind.  It is a possibility open on the facts before me that provision for the children might best be effected by the involvement of this Court.  This is not a case where it is appropriate for a stay of proceeding to be ordered.

   Conclusion

8. This Court has jurisdiction to hear the matter.  The application for a permanent stay of this proceeding is refused.