BARKLY & BARKLY and ORS
[2012] FMCAfam 697
•4 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARKLY & BARKLY and ORS | [2012] FMCAfam 697 |
| FAMILY LAW – Constitutional issue – Notice under s.78B of the Judiciary Act 1903 – Contracts Review Act 1980 – jurisdiction. |
| The Australian Constitution s.51(xxxi) Family Law Act 1975 (Cth) ss.79, 90AE and 90AK Judiciary Act 1903 (Cth) s.78B Contract Review Act 1980 (NSW) s.7(1) Family Law Rules 2004 (Cth) R6.07 |
| Re Lynette [1999] FAMCA 1239 Abbott v Abbott (1995) FLC92-582 Vella and Vella dated 10 August 1992(unreported) Morrison & Morrison (1995) FLC92-639 Duff v Duff (1977) FLC 90-217 Blacker v National Australia Bank Limited 25 May 2000 (2000) FCA 681 Rochester Communications Group Pty Ltd v Adler (1996) 65FCR 572 |
| Applicant: | MS BARKLY |
| First Respondent: | MR BARKLY |
| Second Respondent: | MS KEATING |
| Third Respondent: | MS KEATING IN HER CAPACITY AS AN EXECUTOR FOR THE ESTATE OF THE LATE MR WARNER |
| File Number: | SYC 2070 of 2011 |
| Judgment of: | Kemp FM |
| Hearing date: | 4 June 2012 |
| Date of Last Submission: | 4 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Christopher Mackay Lawyer |
| Counsel for the First Respondent: | Mr Levet |
| Solicitors for the First Respondent: | Valerie Gibson-Tilley |
| Counsel for the Second & Third Respondents: | Mr Jefferis |
| Solicitors for the Second & Third Respondents: | C R Elvy & Associates |
ORDERS
The first respondent’s oral application for an adjournment of the property hearing listed for two days commencing today, is granted.
I DIRECT that the first respondent forthwith provide the notices required under s.78B of the Judiciary Act 1903 in the terms of that section, so as to comply with rule 6.07 of the Family Law Rules 2004.
The parties file and serve written submissions in respect of the Contracts Review Act 1980 issue identified today, 48 hours prior to the adjourned date.
The matter be adjourned to 24 August 2012 at 9.30am for mention in relation to the property matters only.
The Independent Children’s Lawyer is excused from attending on the adjourned date.
The parties’ costs of today in relation to the adjournment application, be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Barkly & Barkly and Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2070 of 2011
| MS BARKLY |
Applicant
And
| MR BARKLY |
First Respondent
| MS KEATING |
Second Respondent
| MS KEATING (AS EXECUTOR FOR THE ESTATE OF THE LATE MR WARNER) |
Third Respondent
REASONS FOR JUDGMENT
These proceedings involve both property and parenting matters.
The parenting matters have been listed for hearing on 3 and 4 December 2012. Orders have been made for the filing of affidavits relevant to parenting matters and the provision of a family report.
The property aspects of the proceedings were listed today for a two day hearing.
Both property and parenting matters were listed for those specified hearings on 23 February 2012.
On 28 November 2011, the Second Respondent was joined to the proceedings.
The setting down of the property proceedings followed an unsuccessful conciliation conference held on 9 December 2011 between the parties.
On 23 February 2012, some interim parenting orders were made and directions were made in respect of the property matter including that the Second Respondent file and serve any Amended Response and any Affidavit in support within 21 days of that date.
An Amended Response was filed on 3 May 2012, which refers to the Second Respondent in her own capacity and in the capacity as an Executor of the Estate of the late Mr Warner, being her late husband.
The Amended Response seeks to enforce by way of declaration, a Deed of Agreement dated August 2009 for the transfer of property interests in the property at Property S1, together with seeking a declaration in respect of an indebtedness said to arise between the Applicant and First and Second and Third Respondents.
Certain other relief is as set out in the Amended Response as follows:
(1)A declaration that the Second Respondent and the Third Respondent have a 60/100th interest in law (being a joint tenancy) in the unencumbered Property S property being Property S1 and Property S2,being the land comprised and described in Title Folio Identifier (omitted).
(2)A declaration that the Second Respondent and the Third Respondent have a 60/100th interest in equity in the unencumbered Property S property being Property S1 and Property S2, being the land comprised and described in Title Folio Identifier (omitted).
(3)A declaration that the Applicant and the First Respondent are jointly and severally indebted to the Second and Third Respondent in the sum of $152,357.32; together with accrued interest under the Deed of Acknowledgement of Loan Agreement.
(4)In lieu of the payment of the liability in paragraph 3, that liability be set off against the Applicant and First Respondent’s equity in the Property S property and to this effect, the Applicant and First Respondent upon being requested to in writing by the Second and Third Respondents, execute a transfer in registrable form to the Second and Third Respondents of their 40/100th interests in the unencumbered Property S property; being Property S1 and Property S2, being the land comprised and described in Title Folio Identifier (omitted) and failing their execution of the said transfer within 21 days of being so requested the Registrar of the Federal Magistrates Court at Sydney be authorised and directed to execute the said transfer on their behalf of their interests in the property at Property S1 and Property S2, being the land comprised and described in Title Folio Identifier (omitted).
In the alternative,
(5)The Second and Third Respondents seek the following orders in relation to the property at Property S1 and Property S2 being the land comprised and described in Title Folio Identifier (omitted):
(a)The First Respondent transfer his interest in the Property S property to the Applicant within 42 days of the making of an order, on terms that the Applicant assume the First Respondent’s liabilities in respect of the mortgage debt owing to the ANZ Bank and any debts owing to the ANZ Bank and any debts owing to the Second and Third Respondents.
(b)Simultaneously, with and upon the making of any Order in 5a, the Applicant transfer her interest in the Property S property (and the interest acquired from the First Respondent pursuant to Order in No 5(a) to the Second and Third Respondents within 42 days of the making of an order on terms as follows:
(i)The Second and Third Respondents assume all the Applicant’s liabilities in respect of the mortgage debt owing to the ANZ Bank and any other debts in relation to the Property S property; and
(ii)The Second and Third Respondents forgive all the debts of the Applicant and the First Respondent owing to the Second and Third Respondents, including interest that has accrued but has not been paid and is currently owing to the Second and Third Respondents; and
(iii)The Applicant execute and deliver a Memorandum of Transfer in registrable form to effect the transfer of title to the Property S property from the Applicant to the Second and Third Respondents, failing which the Registrar of this Court be authorised to sign the said transfer.
(c)The Second and Third Respondents will indemnify and releases the Applicant and First Respondent, or either of them, for any debt or liability that either the Applicant and/or First Respondent may have in any respect whatsoever to the Second and Third Respondents;
(d)The Applicant, First Respondent and Second and Third Respondents are to do all things necessary to complete the matters referred to in orders 5(a) to 5(c) herein.
(6)Failing agreement of the parties within 28 days as to the debts and costs and expenses of construction as between the parties, an Order for an accounting for all monies expended owing to the Second and Third Respondents for costs expended by them on the construction of the Property S property be undertaken, such accounting to be undertaken by a Chartered Accountant; within 42 days of the Chartered Accountant being notified of his commission;
(7)The Second and Third Respondents costs to be paid by the Applicant and/or First Respondent.
By a consent order made on 11 May 2012, the Second Respondent was also joined to the proceedings as a Third Respondent in her capacity as an Executor of the Estate of the late Mr Warner.
On 11 May 2012, by consent of all parties, the matter was listed to go over to the final hearing commencing for two days today.
The First Respondent husband, by an Application in a Case filed on 28 May 2012, sought to have today’s hearing date vacated, the time for the filing of any affidavits to be extended, the time for answering a Notice to Admit Facts and Authenticity of Documents to be also extended and for the matter to be transferred to the Family Court of Australia.
That application was supported by the First Respondent’s Affidavit sworn 28 May 2012. The First Respondent, husband also relied on an Amended Response filed on 28 May 2012, which relevantly sets out the relief sought including a declaration that the Second and Third Respondents are estopped from enforcing all or any of the provisions of a Deed of Acknowledgement of Loan Agreement dated 30 June 2000.
The husband also sought:
a)in relation to a document dated 20 May 2009, purporting to transfer a 60 per cent share of all that parcel of land known as Property S, from the husband and wife to the Second Respondent and her late husband, the Third Respondent that such transfer be set aside on the grounds that in its terms, it was unconscionable or alternatively that such transfer be set aside on the grounds that the consent of the First Respondent was obtained by the undue influence of the Applicant and the Second Respondent and the Second Respondent’s late husband, the Third Respondent for whom the Second Respondent is the Executor of that Estate. Together with the solicitor for the Second Respondent, a declaration pursuant to section 7(1) of the Contracts Review Act 1980 that such transfer is void, and an order that the Second and the Third Respondents be restrained from either by herself or by her agents, registering such transfer so as to effect a change in the registered ownership of the property
b)In relation to the deed dated August 2009 purporting to transfer a 60 per cent share of the property from the husband and wife to the Second Respondent and her late husband, Mr Warner, that such deed be set aside on the grounds of it is unconscionable or alternatively that such transfer be set aside on the grounds that the consent of the First Respondent was obtained by the undue influence of the applicant and a declaration pursuant to section 7(1) of the Contracts Review Act 1980 that such transfer is void.
Further, other orders sought by the husband were:
5.That the applications sought by the Second and Third Respondent in her Amended Response filed 3 May 2012 be dismissed.
As against the Applicant
(1)That the parties do all acts and things necessary to place the property on the market for sale by private treaty at a price agreed between the parties, or failing such agreement at a price equivalent to the mean of three valuations by registered valuers being members of the Institute of Valuers, one obtained by and at the expense of the each of the parties, such valuation be made not more than two weeks apart from each other;
(2)That in the event that the property is not sold by private treaty within three (3) months from the date hereof, the parties do all acts and all things necessary, including the execution of all documents necessary for the sale of the property by public auction and, in particular:
(a)Place the property with an estate agent (“the Auctioneer”) to be agreed between the parties and failing agreement to be nominated by the President for the time being of the Real Estate Institute New South Wales for the sale of the property at auction at the earliest possible date;
(b)Execute all documents requested by the Auctioneer for the sale of the property;
(c)Request the Auctioneer to recommend a reserve price to be placed on the said property for the purpose of the auction sale and accept such recommended reserve price;
(d)Pay to the Auctioneer to recommend a reserve price to be placed on the said property for the purpose of the auction sale and accept such recommended reserve price;
(e)Co-operate in every way with the Auctioneer in relation to the sale of the property;
(f)Attend the auction and negotiate with the highest bidder and in the event that the reserve price is not reached accept the advice of the Auctioneer as to the acceptance of a price less than the reserve price;
(g)Execute a contract for sale and other documents necessary to complete the sale.
(3)That the husband and wife do all acts and things necessary to procure that upon the sale of the property, the proceeds of sale be paid in the following manner and priority:
(a)In payment of agent’s commission and auction expenses (if any) due on sale;
(b)In payment of legal costs of sale;
(c)In discharge of any registered mortgage presently secured against the property;
(d)In payment of any amounts found by the Court to be due to the Second and Third Respondents;
(e)In payment of one half of the balance then remaining to the wife;
(f)In payment of the balance then remaining to the husband.
Parenting Orders
(4)That leave be granted pursuant to Section 60I(9)(b(iv) to make application for parenting orders notwithstanding the absence of a Certificate pursuant to Section 60I of the Family Law Act.
(5)That the husband and wife have equal responsibility for the children of the marriage namely X (born (omitted) 2000) and Y (born (omitted) 2003) (hereinafter called “the children”).
(6)That the living arrangements for the children be as follows:
(a)During school term periods for one week with the husband and the following week with the wife and alternative weeks thereafter.
(b)During school holiday periods:
(i)In respect of each school holiday period except for the Christmas school holiday period that the children reside for the first half of such holiday period with the husband and the second half of such school holiday period with the wife;
(ii)In respect of the Christmas school holiday period commencing in 2011 and each alternate year thereafter that the children reside for the first half of such holiday period with the husband and the second half of such school holiday period with the wife.
(iii)In respect of the Christmas school holiday period commencing in 2012 and each alternate year thereafter that the first half of such school holiday period the children reside with the wife and the second half of such school holiday period the children reside with the husband.
Costs
(7)That the applicant wife and the Second and Third Respondent pay the Respondent Husband’s costs of and incidental to these proceedings.
When the matter came before the Court this morning, Mr Mackay, solicitor, appeared for the Applicant. Mr Levet of Counsel appeared for the First Respondent and Mr Jefferis of Counsel appeared for the Second and Third Respondents.
Mr Levet sought an adjournment, not strictly in terms of the application filed by his client but rather on the basis of an oral application, given that he said his client’s opposition to the Second and Third Respondents’ Amended Response raised a constitutional question and that pursuant to s.78B of the Judiciary Act1903 (Cth) (“the Judiciary Act”) where such a question arose, it was the duty of the Court not to proceed in the cause, unless and until the Court was satisfied that notice of the cause specifying the nature of the matter had been given to the Attorneys-General of the Commonwealth and of the States and a reasonable time had elapsed since the giving of the notice.
The constitutional matter said to arise involves the constitutionality of s.90AE of the Family Law Act1975 (Cth) (“the Act”), being the provision under which the Court may make an order under s.79, binding upon a third party.
Mr Levet argues that the Court’s consideration under s.90AE of the Act may impact on his client’s rights by way of defence to defend the debt claim and the assertion of a Contracts Review Act claim. He says that that may be a breach of s.51(xxxi) of the Commonwealth of Australia Constitution Act (“the Constitution”) which states:
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;
The Court directed Mr Levet to provide a written notice in terms of a proposed s.78B of the Judiciary Act notice.
The terms of that notice are as set out in his email to my Associate dated 4 June 2011 at 11.40 am, which the Court now makes Exhibit “A” on the application before it.
Mr Levet says in terms of Exhibit “A” that he proposes a s.78B notice be given in the following terms:
(1) Is section 90AE of the Family Law Act a valid law of the Commonwealth Parliament; or alternatively;
(2)(a) is a defence available under the Contracts Review Act 1980 (NSW) property for the purposes of section 51(xxxi) of the Constitution. If yes;
(b) does section 90AE of the Family Law Act operate to acquire such property and if yes;
(c) does such an acquisition amount to an acquisition on other than just terms.
A copy of the notice referred to above was provided to the parties. The Court pointed out to Mr Levet the terms of s.90AK of the Act which relevantly provides as follows:
(1) The Court must not make an order or grant an injunction in accordance with this part if the order or injunction would:
(a) result in the acquisition of property from a person otherwise than on just terms, and;
(b) be invalid because of paragraph 51(xxxi) of the Constitution.
The Court was concerned to point out that provision as it would appear that it, otherwise, saved s.90AE from any question of being ultra vires the Constitution.
The Court, in considering any matter would need to satisfy itself that an order would not fall foul of the terms of s.51(xxxi) of the Constitution and to the extent that an order did fall foul of the terms of that provision, it could not be made under s.90AE, thus preserving the constitutional validity of s.90AE itself.
Whilst the Court raised that matter, it was concerned as to the fundamental submission of Mr Levet that simply asserting in proceedings in which a cause was pending in a Federal Court, including this Court, involving a matter arising under the Constitution or involving its interpretation, as Mr Levet said that his submission gave rise to such a matter which would then involve the Court in giving interpretation to that issue, then it was immediately the duty of the Court not to proceed in the cause unless and until the Court was satisfied that notice of the cause specifying the nature of the matter had been given to the relevant Attorneys-General and a reasonable time had elapsed.
The Court has had regard relevantly to s.78B(2) which provides that a Court in which a cause referred to in subsection (1) is pending, may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit together with directing a party to give notice in accordance with that subsection and may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
The Court asked Mr Levet as to whether there was any authority known as to whether there was a threshold issue, namely whether the Court had to be satisfied either of an arguable case or on some other basis, before it was obligated to implement a s.78B giving of notice procedure. Mr Levet indicated that he was unaware of any such authority and that if it had simply been raised as a matter arising in pending Federal Court proceedings that was all that was required.
In that regard, the Court has considered Rule 6.07 of the Family Law Rules which apply in this Court. Relevantly, although that rule imposes a duty on parties to the case, the note to the relevant rule refers to s.78B of the Judiciary Act. Section 78B which the Court has already referred to, provides that once a Court becomes aware that a case involves a matter referred to in that section, the Court itself has a duty.
Rule 6.07 of the Family Law Rules2004 (Cth) states that:
If a party is or becomes aware that a case involves a matter that:
(a) arises under the Constitution or involves its interpretation within the meaning of section 78B of the Judiciary Act, and;
(b) is a genuine issue in the case,
the party must give written notice of the matter to the Attorneys-Generals of the Commonwealth and each State and Territory and to each other party to the case.
That rule seems to impose as said, an obligation on a party to give written notice and it seems to impose a consideration as to the genuineness of that issue in the proceedings. It does not appear that obligation is extended to the Court’s consideration.
The Court has had regard, in the very short time period available to it when this matter was first raised to seek to consider some relevant authority.
The Court has has regard to a decision of the Full Court of the Family Court of Australia in Re Lynette [1999] FAMCA 1239 of 15 September 1999, being a decision of the Full Court constituted by Nicholson CJ, Kay and Holden JJ. In that particular case it was noted that:
Where the claim of a constitutional argument is hopeless, notices need not be given pursuant to section 78B of the Judiciary Act.
Reference is also made to earlier decisions of Abbott v Abbott (1995) FLC92-582 (which cited the unreported decision of the Full Court of the Family Court of Australia in Vella dated 10 August 1992) and of Morrison & Morrison (1995) FLC92-639.
In the Re Lynette case, the Full Court, on appeal were considering the matter where it would appear the issue of s.78B notice only arose on the appeal itself. In that case, it was stated by the Court:
“In the result, we considered that Mr S’s argument as to section 116 of the constitution was hopeless and adopted a similar approach to the Full Courts in Abbott and Vella. As will be seen below, in our view, his Honour’s orders in no way infringed upon Mr S’s right to practise religion and there is no suggestion in the Appeal Books that his Honour preferred one religion over another. These were issues before the Full Court in Morrison & Morrison (1995) FLC 92-639. In that case, no notice under section 78B was given and the Court explained:-
Before leaving this matter, we note that the husband’s submissions may have raised “a matter arising under the Constitution or involving its interpretation” within section 78B of the Judiciary Act. That section requires that notice be given to the Attorneys-General when a case raises such a matter.
No such notice was given in this case. The issue of the infringement of section 116 of the Constitution was not expressly contained within the appellant’s Notice of Appeal, nor in his Outline of Argument. The only aspects of the written material which might have been thought to attract the need for notice were a reference to s.116 in the husband’s amended list of authorities and the following paragraph in his Notice of Appeal and Outline of Argument, filed shortly before the hearing of the appeal:-
“the learned trial judge’s discretion miscarried in that the orders made were unreasonable or plainly unjust in relation to the husband’s right of religious freedom with his children.”
In any event, this Court has previously acknowledged that the fact that a party purports to raise a constitutional issue does not necessarily mean that any such issue actually exists in a particular case, see Vella’s (10 August 1992 unreported) and Abbott (1995) FLC 92-582.
In Vella, Fogarty J with whom Lindenmeyer and Hase JJ agreed, said that although an issue raised in that case may have involved the interpretation of the Constitution, it was,
I think, insufficiently arguable to justify setting in motion the machinery under section 78B. Whilst it is not unusual for this Court to make a preliminary judgment in relation to such issues, there must be some filtering process”
So, too, in this case, there was no realistically arguable constitutional issue to justify the setting in training of that process.”
In Abbott & Abbott, the Full Court of the Family Court of Australia, then constituted by Fogarty, Baker and Kaye JJ. had cause to consider the issue of notices under s.78B of the Judiciary Act and referred (at page 81-780) to the following:
“The fact that since 1975, this issue has been raised in defence to applications for dissolution of marriage on a number of occasions before the Full Court, single Judges and more recently, Registrars and Judicial Registrars. The Court has adopted the view that such submissions are untenable. Consequently, we concluded in this case, as the Full Court did in Vella, …, and as the Court has on a number of other occasions, that it would be absurd to require notice to be given every time these issues are sought to be re-litigated.”
The Court earlier referred to the dicta of the Full Court in the Morrison decision where, again, the Full Court was considering the lack of a notice given in a case on the appeal. The Court there said at 92-639:
“Before leaving this matter, we note that the husband’s submissions may have raised “a matter arising under the Constitution or involving its interpretation” within s.78B of the Judiciary Act. That section requires that notice be given to the Attorneys-General when a case raises such a matter.
No such notice was given in this case. The issue of the infringement of s.116 of the Constitution was not expressly contained within the appellants Notice of Appeal, nor in his outline of argument. The only aspects of the written material which might have been thought to attract the need for notice were a reference to s.116 in the husband’s amended list or authorities and the following paragraph in his Notice of Appeal and Outline of argument filed shortly before the hearing of the appeal: [not reproduced]
In any event, this Court has previously acknowledged that the fact that a party purports to raise a constitutional issue does not necessarily mean that any such issue actually exists in a particular case; see Vella and Abbott ...
So, too, in this case, there was no realistically arguable constitutional issue to justify the setting train of that process.”
Given the tests referred to by the Full Court of the Family Court of Australia, this Court is unable to say that the matter, the subject of Exhibit “A”, is not arguable or is hopeless.
Further, s.78B(2) of the Judiciary Act appears to contemplate a requirement on the Court to consider the adjournment of the proceedings and to make the orders that the Court has referred to when an issue is raised in the terms that have been raised before the Court today.
Mr Mackay, who appears for the Applicant, as said, opposes any adjournment today and says, essentially, that there is no affidavit material underpinning the evidential basis of any need to give notice.
The Court is of the view that that, in itself, is not sufficient, given that a constitutional point needs only to arise in proceedings pending in this Court.
Mr Levet tended as an Exhibit, included within Exhibit “CW3”, a letter from Mr Mackay to his client, dated 12 January 2012, which appears to have been provided to the Second Respondent and referred to in her affidavit, and to which Mr Levet submitted that legal privilege had apparently been waived. Specific references were made in that letter to the issue of constitutionality of s.98AE. However the Court accepts that that, in itself, does not raise the issue before the Court.
The issue has, however, been squarely raised, not by the Applicant but by Mr Levet in his oral submissions today.
No issue has been raised by Mr Mackay or Mr Jefferis as to the lack of constitutionality of the relevant provision.
A further point which bears more substance in relation to Mr Mackay’s concern is the lack of any affidavit material grounding the evidential basis for the relief under s.7(1) of the Contracts Review Act 1980 (NSW), which has also been raised by the First Respondent.
Mr Jefferis adopted Mr Mackay’s submissions in opposing the adjournment.
Both suggested that the First Respondent’s right to pursue declaratory relief could not be property in terms of that defined under the Act.
The thrust of the First Respondent’s position is that, if contracts between him and the Second and Third Respondents are set aside under the Contracts Review Act, or declarations are made that no sums are owing, then property would fall into the pool to be distributed between the Applicant and the First Respondent.
Similarly, if that relief was not granted, those debts and property interests would potentially be taken into account in limiting the size of the property pool for distribution between the Applicant and the First Respondent. In that regard, the Court has considered the definition of property, set out in Duff v Duff (1977) FLC 90-217.
Mr Jefferis further raised the practicality of the matter being raised at this late stage, given that, again, there was no affidavit material before the Court and, if there was an issue, as he submitted, the First Respondent could have raised it in the Supreme Court of New South Wales and that this Court could not now determine that issue in a vacuum. However, the Court needed to hear the property matter, make orders and leave the issue as to constitutionality up to an appellant Court.
Further, as Mr Jefferis submitted there was some prejudice to his client in that the matter continued to hang over her head. The Court raised this issue as to whether his client’s prejudice could not, otherwise be dealt with by way of a potential order for costs, as is contemplated in s.78B(2)(a).
The Court is of the view that these proceedings should, however, be adjourned to enable the relevant notices to be given. The Court adjourns the matter for a number of reasons, including its acceptance that the mandatory requirement to give notice applies to it on the basis that Counsel has squarely raised the matter and that, on that basis, it is not something which, at this stage the Court could say, is clearly without substance.
The Court has to accept, in that regard, when Counsel, properly instructed, raise matters before the Court that they have considered the relevant rules and determined, in his/her own mind at least, the genuineness of that particular issue before raising it in Court.
Further, the Court is not dealing with the application to transfer the matter to the Family Court of Australia, as it would wish to await the outcome of the notices to the various Attorneys-General.
Further, of particular concern to the Court and only raised with the parties is the relevant impact of s.7(1) of the Contracts Review Act (NSW) 1980, this too, impacts on the Court’s decision to grant an adjournment.
The Court raised an authority of which it was aware as to whether this Court could, in effect exercise jurisdiction within the accrued jurisdiction principles.
In the short time that the Court has had to look at this matter, the Court has had regard to the decision of Katz J. in Blacker v National Australia Bank Limited 25 May 2000 (2000) FCA 681. In that case, his Honour dealt with an issue under the Contracts Review Act and whether the discretionary relief available under that Act is only relevantly available to Courts referred to in the relevant State legislation and not to this Court and whether that would similarly apply to the Family Court of Australia.
If that be the case, then the Family Court (if it has jurisdiction) may need to transfer the matter to the Supreme Court of New South Wales, which can exercise jurisdiction under that Act as well as jurisdiction under the Family Law Act, noting, in that regard, post Wakim that such a transfer is still legitimate.
In particular, the Court would seek from the parties, prior to any adjourned date, relevant submissions, as Katz J. did in Blacker, to determine, as his Honour did in that particular case, when discovering the existence of a decision by Beaumont J. in Rochester Communications Group Pty Ltd v Adler (1996) 65FCR 572 that it appeared to him that the jurisdictional issue dealt with in that case was materially identical to that raised by the form taken by s.7(1) of the Contracts Review Act.
His Honour’s comments are very apposite to the proceedings currently before me. The Court would seek the parties’ written submissions 48 hours prior to the adjourned date in respect of the Contracts Review Act point raised.
In those circumstances, the Court is of the view that the oral application for an adjournment will be granted.
The Court will direct the First Respondent provide the notices required under s.78B in the terms of that section and in compliance with Rule 6.07.
Mr Levet says that his experience is such that that will take some six weeks or so.
The proceedings will, therefore, stand adjourned before me to 24 August 2012 at 9.30 am for mention.
The Court, at that stage, will hear the parties’ submissions, referable to the Contracts Review Act and as to whether these proceedings should either be listed for further hearing in this Court, transferred to the Family Court of Australia or transferred to some other Court.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Kemp FM
Date: 12 July 2012
ADDENDUM
The Court has since the delivery of its oral reasons, considered the terms of Rule 10.06 of the Federal Magistrates Court Rules 2001 which is in similar terms to that of Rule 6.07 of the Family Law Rules 2004 but states that any notice required to be filed and served may be in the form prescribed for the purpose under the Federal Court Rules. Given the terms of that rule, the Court does not propose to amend order 2.
I certify that the preceding paragraph is a true copy of the addendum to the reasons for judgment of Kemp FM
Date: 12 July 2012
0
2
5