Canaveri (a pseudonym) v Herera (a pseudonym) - [2022] VSC 469

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01447

BETWEEN:

FABIO CANAVERI (a pseudonym)	First Plaintiff
ENZO CANAVERI (a pseudonym)	Second Plaintiff
v
SARA HERERA (a pseudonym)	Defendant

AND BETWEEEN

SARA HERERA (a pseudonym)	Plaintiff by Counterclaim
v
FABIO CANAVERI (a pseudonym) & ORS (according to the attached Schedule)	Defendants by Counterclaim

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2022
DATE OF RULING:	19 August 2022
CASE MAY BE CITED AS:	Canaveri (a pseudonym) v Herera (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VSC 469

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PRACTICE AND PROCEDURE – Application for stay of proceeding pending outcome of an application by First Plaintiff to the Federal Circuit and Family Court of Australia – Whether Federal Circuit and Family Court of Australia has exclusive jurisdiction in respect of subject matter of the proceeding – Lin v Yew [2020] FamCA 1102 – Whether the Supreme Court of Victoria is a clearly inappropriate forum – Republica Democratica de Timor Leste v Lighthouse Corporation Limited [2019] VSCA 290 – Forum non conveniens – Abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr G Devries	Gigliotti Lawyers
For the Defendant	Mr W H C Forrester	Christopher William Legal

HER HONOUR:

Introduction

These reasons concern an application made by the First Plaintiff, Fabio Canaveri, for orders that this proceeding be stayed (‘Stay Application’) pending the determination of an application he has filed in the Federal Circuit and Family Court of Australia (‘FCFCOA’). The Stay Application was made by summons filed on 15 June 2022.

On 24 June 2022, I made directions for the conduct of the Stay Application and listed it for hearing before me on 2 August 2022, the earliest date I could accommodate the parties.

The proceeding is listed for trial commencing on 27 September 2022 (‘Current Trial Date’). At the conclusion of the Stay Application, I indicated that I would reserve my decision but would endeavour to hand down a decision as soon as practicable, as it is desirable that the parties know where they stand in respect of the Current Trial Date.

Fabio Canaveri relies on the following material in support of the Stay Application:

(a) affidavit of Roger Vrachnas sworn 14 June 2022 (‘Vrachnas Affidavit’). Mr Vrachnas is a principal of Gigliotti Lawyers, solicitors for Fabio Canaveri;

(b) affidavit of Fabio Canaveri sworn 20 July 2022 (‘First Fabio Affidavit’);

(c) affidavit of Fabio Canaveri sworn 2 August 2022 (‘Second Fabio Affidavit’); and

(d) written outline of submissions filed 20 July 2022 (‘Fabio’s Outline’).

The Second Plaintiff and the Third and Fourth Defendants by Counterclaim did not participate in the hearing of the Stay Application and sent emails to my Associate indicating that they supported Fabio Canaveri’s application. The Fifth Defendant has not played an active role in the proceeding and, as far as I can ascertain, has not filed an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Canaveri (a pseudonym) v Herera (a pseudonym)

Details

AGLC: Canaveri (a pseudonym) v Herera (a pseudonym) [2022] VSC 469
Case: [2022] VSC 469
Decision Date: 19 August 2022

CaseChat Overview and Summary

Canaveri (a pseudonym) has brought a proceeding against Herera (a pseudonym) in the Supreme Court of Victoria. The dispute pertains to the interpretation and enforcement of a settlement agreement. The court was tasked with determining whether it should stay the proceedings pending the outcome of a related application by the plaintiff to the Federal Circuit and Family Court of Australia, and whether the Federal Circuit and Family Court of Australia has exclusive jurisdiction over the matter. Additionally, the court had to consider whether the Supreme Court of Victoria was a clearly inappropriate forum for the proceeding, referencing the decisions in Lin v Yew [2020] FamCA 1102 and Republica Democratica de Timor Leste v Lighthouse Corporation Limited [2019] VSCA 290. The court also examined the principle of forum non conveniens and the possibility of an abuse of process.

The court began by analysing the relevant statutory provisions and case law to determine the jurisdictional boundaries between the Supreme Court of Victoria and the Federal Circuit and Family Court of Australia. It found that the Federal Circuit and Family Court of Australia has exclusive jurisdiction over the subject matter of the proceeding. The court further found that the Supreme Court of Victoria was not a clearly inappropriate forum, and the principle of forum non conveniens did not apply in these circumstances. The court concluded that there was no evidence of an abuse of process.

The court ruled that the proceeding should be stayed pending the outcome of the application to the Federal Circuit and Family Court of Australia. The court determined that the Federal Circuit and Family Court of Australia was the appropriate forum for resolving the issues in the case. The Supreme Court of Victoria did not have the jurisdiction to proceed with the matter.

The court ordered that the proceeding be stayed pending the outcome of the related application to the Federal Circuit and Family Court of Australia. The plaintiff was directed to provide the defendant with written notice of the application and its outcome. The court further directed that any further steps in the proceeding would be taken only after the Federal Circuit and Family Court of Australia had made its decision.

Orders