Canaveri (a pseudonym) v Herera (a pseudonym)

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 appearance in the proceeding. The Fifth Defendant informed Mr Vrachnas that notwithstanding she had not been served with this proceeding, she did not object to the Stay Application.[1]
[1]Vrachnas Affidavit, [15]; Exhibit RV-1, p 5-6.

The Stay Application is opposed by the Defendant, Sara Herera, who relies on the following material:

(a) affidavit of Sara Herera sworn 13 July 2022 (‘First Sara Affidavit’);

(b) affidavit of Sara Herera sworn 27 July 2022 (‘Second Sara Affidavit’); and

(c) written outline of submissions filed 27 July 2022 (‘Sara’s Outline’).

For the reasons which follow, I will not order a stay of this proceeding. It follows that the Stay Application will be dismissed.

Background
What this proceeding is about

The plaintiffs, who I shall refer to as Fabio Canaveri and Enzo Canaveri, are brothers. The defendant, Sara Herera, was previously engaged to Fabio Canaveri, which engagement was called off in 2015. The third and fourth defendants by counterclaim are the parents of Fabio and Enzo Canaveri, and without any disrespect I shall refer to them as the Parents. Where necessary, I shall refer to the plaintiffs and defendants by counterclaim as the Canaveris. Otherwise, where referring to the parties as individuals, I will refer to them by their first names, and mean no disrespect by doing so.

Enzo was the registered proprietor of two adjacent properties in Reservoir (‘Darebin Properties’). In about 2014, Enzo was suffering financial difficulties and the registered mortgagee of the Darebin Properties asked him to sell and repay his mortgage. At the request of Fabio and Enzo, Sara purchased the Darebin Properties from Enzo so that the Parents could remain living in the house at one of the Darebin Properties (‘Property’). Sara borrowed $950,000 from Westpac to fund the purchase of the Darebin Properties and related expenses (‘Mortgage’). It was agreed that the Canaveris would meet all mortgage repayments and associated expenses. The property not lived in by the Parents was sold by Sara in 2015 and the proceeds were applied in reduction of the Mortgage and outstanding rates associated with that property.

It appears that the Canaveris paid at least some of the Mortgage payments. Since the engagement between Fabio and Sara ended in 2015, it appears that Sara has been paying at least some of the Mortgage payments and associated expenses for the Property. The Parents remain in occupation of the Property without paying any rent. A caveat has been lodged on the title to the Property by one or more of the Canaveris and Enzo claims an equitable interest in the Property. Since orders were made by me on 18 August 2020 (’18 August 2020 Orders’) upon the giving of an undertaking by Fabio (‘Undertaking’), Fabio has been paying the mortgage repayments in respect of the Property to Sara’s solicitors each month.

There are other allegations regarding the Property, including whether Sara is obliged to sell the Property to Fabio and/or Enzo for a specified sum. There are also allegations regarding other investments or financial dealings involving Fabio and Sara.

Fabio and Enzo seek orders recognising a purported proprietary interest in the Property. Fabio seeks to offset any amount owed to Sara by reason of alleged claims arising from separate property transactions, which liability Sara denies. Sara’s position is that the Canaveris have no legal or equitable interest in the Property and seeks a declaration that she is the legal and beneficial owner of it, along with a declaration that the mortgage payments made by the Canaveris are to be treated as rent from 2013.

Relevant procedural history

It is necessary to set out some of the procedural history of this proceeding.

This proceeding was commenced on 20 September 2018 and a defence and counterclaim was filed on 7 November 2018. Fabio and Enzo filed a defence to counterclaim on 10 December 2018, and the Parents filed their defence to counterclaim on 14 February 2019.

On 31 May 2019, I made orders fixing the trial for 24 August 2020 (‘First Trial Date’) on an estimate of 5-7 days and made detailed pre-trial orders, including for expert reports, lay witness outlines, preparation of a court book, submissions, and a book of authorities (‘Pre-Trial Orders’).

The Canaveris have had three sets of solicitors on the record in this proceeding: Cornwall Stoddart were on the record from the inception of the proceeding to around 22 March 2019; Andrew Croxford & Associates (‘Croxford’) were on the record from then until 12 June 2020; and Waters Lawyers were on the record from 17 June 2020 to 15 March 2022. Since 6 April 2022, Fabio has been represented in this proceeding by Gigliotti Lawyers, such that he has now had four sets of solicitors on the record in this proceeding. As matters currently stand, no solicitor has filed a notice of appointment in respect of Enzo and the Parents, hence they have been unrepresented in this proceeding since Waters Lawyers went off the record.

At a hearing before me on 12 June 2020 to deal with an application by Croxford to file and serve a notice of ceasing to act on behalf of the Canaveris, Mr Benjamin Murphy of Counsel appeared for Croxford, Sara was represented by Ms Meg Liberatore, her solicitor, and Mr Noel Waters appeared for the Canaveris. Croxford’s application was supported by an affidavit sworn 10 June 2020 by Andrew Croxford (‘Croxford Affidavit’). Mr Croxford deposed that his invoices in relation to the proceeding had not all been paid; that he had repeatedly requested that funds be placed in his trust account to pay for trial preparation and engage counsel, which had not occurred; and he had been unable to obtain proper instructions from the plaintiffs. I granted Croxford’s application.

At that hearing, Mr Waters informed the Court that he had just been retained and that his clients wanted to adjourn the trial as both plaintiffs were located overseas. Sara opposed this. I indicated that I would not entertain an application to vacate the First Trial Date unless it was made in the usual way, by summons and supporting affidavit, and by a solicitor on the record. It was also apparent that virtually none of the Pre-Trial Orders had been complied with by the Canaveris.

On 31 July 2020, I heard a summons filed by Fabio and Enzo on 27 July 2020, which sought, amongst other things, that the First Trial Date be stayed until discovery and inspection had taken place. By the time of that hearing, the Canaveris no longer sought a stay of the First Trial Date until discovery and inspection had taken place, and they also no longer sought orders for the provision of the loan account details in respect of the Mortgage. There was no other relief sought in that summons.

Despite this, Counsel for the Canaveris said that they wanted the trial not to go ahead on the First Trial Date. This was effectively a vacation of the First Trial Date on different grounds to those raised in the summons. The reasons stated in the Canaveris’ oral submissions were that pre-trial orders had not all been complied with, there was insufficient time before the First Trial Date to complete them, Fabio was overseas and had difficulties communicating with his solicitors, and his current legal team (Waters Lawyers and the Counsel briefed by them) had only just come into the matter. I proceeded to hear that oral application at the hearing and refused to vacate the First Trial Date.

On 24 August 2020, I heard a further summons filed 14 August 2020 by Fabio and Enzo, seeking a vacation of the First Trial Date and orders for discovery by Sara. On that date, I made orders granting the vacation of the First Trial Date and it being re-listed for trial not before 30 November 2020, and for discovery by Sara. The 24 August 2020 Orders were made after I accepted Fabio’s evidence and the submissions made on his behalf that the First Trial Date could not be maintained as he was (and had been for some time) located in Colombia, was unable to return to Australia due to restrictions associated with the COVID-19 pandemic, and did not have access to reliable internet so as to participate in a virtual trial. I also found that the prejudice to Sara occasioned by the vacation of the First Trial Date could be ameliorated if the Undertaking which had been proposed by Fabio was given, and if it was backed by orders which provided for the Canaveris’ claims in the proceeding to be dismissed and Sara’s counterclaim to be granted if Fabio defaulted on the Undertaking.

On 31 August 2020, the proceeding was listed for trial commencing on 7 June 2021, which was subsequently changed to 13 July 2021 (‘Second Trial Date’). At a directions hearing on 16 April 2021, the Canaveris sought and Sara opposed orders vacating that trial date and for the parties to attend a mediation. A court-ordered mediation had previously taken place. On 18 June 2021, I heard and refused a summons issued by Fabio and Enzo the previous day, seeking orders that the experts retained by the parties confer, the parties be ordered to mediation, and the Second Trial Date be vacated until mediation was completed.

On 12 July 2021, Moore J made orders by consent vacating the Second Trial Date and referring the proceeding to a judicial mediation, having been informed by the parties that they were involved in settlement negotiations. The orders made by his Honour also included an order that the proceeding be listed before me for directions on a date to be fixed following that mediation.

The proceeding not having resolved at judicial mediation, I conducted a directions hearing on 25 February 2022 and made updated pre-trial orders and fixed the proceeding for trial commencing on 27 September 2022 (‘Current Trial Date’).

In respect of the Stay Application, Fabio objected to Sara relying on the Second Sara Affidavit, contending that a further affidavit filed after his affidavit had not been provided for in the directions I made on 24 June 2022. Fabio submitted that if I was minded to allow Sara to rely on that affidavit, then he had sworn an affidavit in response to that and wished to rely on it. Ultimately, and for reasons given at the hearing, I gave Sara leave to rely on the Second Sara Affidavit and Fabio leave to rely on the Second Fabio Affidavit.

Evidence
Evidence relied upon by Fabio in support of the Stay Application

Mr Vrachnas deposes that:

(a) he first met with Fabio on 24 February 2022 and was formally retained by him the following day. He was provided with a small number of documents in the proceeding on 24 February and some more documents on 2 March;[2]
[2]Vrachnas Affidavit, [6]-[10].

(b) he had taken steps to obtain Fabio’s file from his previous solicitors but as at the date of swearing his affidavit, he had not yet received it;[3]
[3]Vrachnas Affidavit, [11].

(c) he received further and more detailed instructions from Fabio on 4 March 2022;[4]
[4]Vrachnas Affidavit, [12].

(d) having received those further instructions and considered the documents and those instructions, he formed the view that this Court did not have jurisdiction to finally determine the matters before it between Fabio and Sara. He wrote to the other parties to convey this view and set out his reasons for it, and proposed that this proceeding be stayed pending an initiating application to the FCFCOA and the determination of that application by the FCFCOA;[5]
[5]Vrachnas Affidavit, [13].

(e) only Sara objected to that proposal;[6]
[6]Vrachnas Affidavit, [14]-[18].

(f) Gigliotti Lawyers has prepared, filed and served documents necessary to “initiate proceedings” in the FCFCOA on behalf of Fabio, being:[7]
[7]Vrachnas Affidavit, [20].

(i) the initiating application filed 13 June 2022 (‘Initiating Application’);[8]
[8]Exhibit RV-1 to the Vrachnas Affidavit, pp 8-26.

(ii) the affidavit in support of the initiating application sworn by Fabio on 6 June 2022 (‘Fabio’s FCFCOA Affidavit’);[9]
[9]Exhibit RV-1 to the Vrachnas Affidavit, pp 27-126.

(iii) a financial statement dated 6 June 2022 (‘Financial Statement’);[10]
[10]Exhibit RV-1 to the Vrachnas Affidavit, pp 127-138.

(iv) a genuine steps certificate dated 6 June 2022 (‘Genuine Steps Certificate’);[11] and
[11]Exhibit RV-1 to the Vrachnas Affidavit, pp 139-142.

(v) a financial questionnaire dated 10 June 2022 (‘Financial Questionnaire’).[12]

(g) Fabio has instructed him that he is prepared to give an undertaking to this Court to prosecute the Initiating Application with “as much speed as the processes of [the FCFCOA] permit”.[13]

[12]Exhibit RV-1 to the Vrachnas Affidavit, pp 143-148.

[13]Vrachnas Affidavit, [44].

The balance of the Vrachnas Affidavit comprises mainly Mr Vrachnas’ views about the issues in dispute between the parties, his view as to the FCFCOA’s jurisdiction, and the reasons for his view that this Court does not have jurisdiction. Sara objected to those parts of the Vrachnas Affidavit, which in the course of the hearing Fabio indicated that those parts of the affidavit were not relied upon.

Fabio’s First Affidavit was filed after Sara’s First Affidavit, so many of the matters he deposes to are in direct response to that affidavit. Fabio deposes, at times by reference to Fabio’s FCFCOA Affidavit, as follows:

(a) he and Sara met in October 2011, began dating in early 2012 and commenced their de facto relationship in about October 2012;[14]
[14]Fabio’s First Affidavit, [7]; Fabio’s FCFCOA Affidavit, [5].

(b) he and Sara became engaged to be married in mid-2013;[15]
[15]Fabio’s First Affidavit, [7]; Fabio’s FCFCOA Affidavit, [6].

(c) he and Sara “separated” in or about the end of 2015;[16]
[16]Fabio’s First Affidavit, [7]; Fabio’s FCFCOA Affidavit, [7].

(d) he denies Sara’s assertion that they never lived together, saying that they spent a number of nights most weeks living together either at a property in Port Melbourne or an office in Reservoir, sharing the same bed and having sexual relations. He and Sara also travelled together on numerous occasions both overseas and within Australia for weekends to the snow, Bali and Mount Buller, during which they shared the same room and bed and had sexual relations;[17]
[17]Fabio’s First Affidavit, [8(a)-(c)].

(e) he agrees with Sara’s First Affidavit that they did not have joint bank accounts but says they were always aware of each other’s financial position and that Sara knew everything about his financial and business affairs;[18]
[18]Fabio’s First Affidavit, [8(d)-(e)].

(f) Sara assisted him with acquiring numerous properties, was involved in an investment with him and others in a gold mine in the Philippines, and became involved in the Property.[19] He denies that Sara lent him money for the Philippines investment, saying that she invested herself;[20]
[19]Fabio’s First Affidavit, [8(f)-(g), (j)].
[20]Fabio’s First Affidavit, [10(e)].

(g) Sara acknowledged the Port Melbourne property as his postal address, they shared payment of utility bills for those premises and the water and electricity bills were in his name;[21]
[21]Fabio’s First Affidavit, [8(i)].

(h) he deposited approximately $180,000 into Sara’s bank accounts between approximately 2012 and 2015, a significant amount of which was for mortgage payments;[22]
[22]Fabio’s First Affidavit, [8(k)].

(i) he denies that he lived overseas throughout the course of their relationship, travelling on average once but never more than three times per year and not being away for more than about two weeks at a time;[23]

(j) he concurs with Sara in wanting to be extricated from their financial ties to one another and finalise all matters, however he has been advised that the only way he can achieve such finality is in the family law jurisdiction. He says he has spent a similar amount in legal fees to Sara thus far;[24] and

(k) he has now obtained a copy of his file from his former solicitor. It was not obtained earlier due to his solicitor being ill and not providing him with a final account but all of his fees had been paid, and the delay in obtaining it was not due to a failure to pay his previous solicitor.[25]

[23]Fabio’s First Affidavit, [10(b)].

[24]Fabio’s First Affidavit, [28].

[25]Fabio’s First Affidavit, [29].

In Fabio’s First Affidavit, he also deposes to matters which are the subject matter of this proceeding. It is not necessary for me to go into that further: I have summarised it in paragraphs 8 to 11 above and it is clear that the parties are in disagreement over many of those matters. Sara also deposes to those matters.

In Fabio’s Second Affidavit, he says that during the course of this proceeding he has heard “various attempts to attribute to me blame for all of the delays in the progression of the litigation in this matter”. He says that not all the delays were “my doing” and refers to the following matters:[26]
[26]Fabio’s Second Affidavit, [32].

(a) judgment in default of defence was entered against Sara on 8 November 2018, which was subsequently set aside by the Court on 12 February 2019. Fabio says this had the indirect effect of delaying the matter at first instance;[27]
[27]Fabio’s Second Affidavit, [32(a)].

(b) on 14 August 2020, “my lawyers issued a further summons seeking a stay of the trial pending further discovery. The stay was granted by Judicial Registrar Matthews [as I then was] conditional upon other orders. The trial was vacated and set for 7 June 2021.”;[28]

(c) on 7 May 2021, I dealt with an application for new orders for the parties’ compliance with orders previously made on 16 April 2021 with respect to experts and submissions. The directions hearing initially scheduled for 4 June 2021 was adjourned to 18 June 2021 in those orders made on 7 May 2021;[29] and

(d) on 12 July 2021, the parties jointly requested orders vacating the trial date of 13 July 2021 [that is, the Second Trial Date] on the basis that the matter be sent to judicial mediation on 7 September 2021.[30]

[28]Fabio’s Second Affidavit, [32(b)].

[29]Fabio’s Second Affidavit, [32(c)].

[30]Fabio’s Second Affidavit, [32(d)].

Evidence relied upon by Sara in opposition to the Stay Application

Sara deposes as follows:

(a) she and Fabio met in 2012 and began dating some time after that and by late 2014 they were engaged. She ended the relationship in April 2015;[31]
[31]Sara’s First Affidavit, [6].

(b) she denies Fabio’s assertions that they were in a de facto relationship. She says that they both come from a similar cultural background where living together as a couple outside marriage was not accepted. She says they never lived together, did not have a sexual relationship and did not sleep at each other’s houses. She says she lived with her parents for the entire time of her relationship with Fabio;[32]
[32]Sara’s First Affidavit, [6]-[7].

(c) Fabio spent a lot of time overseas and that they did not spend a lot of time together;[33]
[33]Sara’s First Affidavit, [7].

(d) she and Fabio did not have joint bank accounts: Fabio did not know about or have access to her bank accounts, and she did not know what bank accounts he had. They had separate financial lives and she was financially independent, and they kept their property and lives separate. They each ran separate businesses of different types, and each was not involved in the other’s business;[34]
[34]Sara’s First Affidavit, [8]-[9].

(e) Fabio often asked to borrow money from her, an example of this was in 2013 when he borrowed $110,000 from her for a mining project he had in the Philippines which he said was a joint venture for him and his friends;[35]
[35]Sara’s First Affidavit, [10].

(f) Fabio told her he did not have capacity to borrow from a bank, and he used her name to purchase two properties in Coburg and Preston with someone else, with whom all profits were split. Through those projects he was able to pay her back the money he had borrowed;[36]
[36]Sara’s First Affidavit, [10]-[11].

(g) Fabio asked her to purchase the Darebin Properties on condition that the Canaveris would pay the mortgage and all expenses associated with the properties, as he said he didn’t have the money or the borrowing capacity to purchase them and the Canaveris would lose them if she did not do this.[37] She borrowed the funds to acquire the Darebin Properties, but the Canaveris did not uphold their agreement to pay the Mortgage and all expenses;[38]
[37]Sara’s First Affidavit, [12].
[38]Sara’s First Affidavit, [13].

(h) the Canaveris occupied and controlled the Darebin Properties. She sold one of them (the one the Parents were not living in) in April 2015 and after settlement the sale proceeds were applied to reduce the Mortgage;[39]

(i) she details other financial transactions between them, and says that despite some sporadic payments in respect of the Property and the Mortgage by Fabio, she continued to pay the Mortgage and a number of other bills. Frustrated with this situation, in October 2016 she told Fabio she intended to sell the Property, to which Fabio responded with a threatening and abusive email.[40] Following this, Fabio agreed to purchase it from her and signed a sale contract on 1 April 2017. Fabio paid part of the deposit, extended the settlement date several times, and by October 2017 when another settlement was requested, she refused it and rescinded the contract;[41] and

(j) she continued to pay the Mortgage, and Fabio and Enzo started this proceeding on 20 September 2018 in response to an application to remove a caveat lodged by Fabio on 21 May 2018 on the Property;[42]

[39]Sara’s First Affidavit, [15], [17].

[40]Sara’s First Affidavit, [23].

[41]Sara’s First Affidavit, [24]-[25].

[42]Sara’s First Affidavit, [26].

Sara also deposes that the delays in bringing this proceeding to an end have caused her emotional and financial stress.[43] She is now married with two young children and is the main income earner in her family, and does not own a home she can live in.[44] She has her own business and is unable to grow it as she has limited borrowing power caused by the Mortgage.[45]
[43]Sara’s First Affidavit, [28].
[44]Sara’s First Affidavit, [33].
[45]Sara’s First Affidavit, [31]-[32].

Sara deposes that she has incurred costs of close to $200,000 for this proceeding thus far and has no desire for it to be delayed any further. She wants the Court to determine her rights to sell the Property as soon as possible.[46]
[46]Sara’s First Affidavit, [30], [34].

In response to Fabio’s First Affidavit, Sara disagrees with much of it and deposes that:[47]
[47]This paragraph does not summarise all that Sara deposes to: where she is merely repeating what she has said earlier, I have omitted it.

(a) she and Fabio did not spend nights living together at the Port Melbourne property or Fabio’s office in Reservoir;[48]
[48]Sara’s Second Affidavit, [10(a), (b)].

(b) she and Fabio did not travel to Bali together, and the material Fabio included in his second affidavit and stated was in respect of a trip she took with him was actually in relation to a trip she took with three girlfriends;[49]
[49]Sara’s Second Affidavit, [10(c)].

(c) she and Fabio did travel to New Zealand together, but her sister and brother-in-law went to and at all times they stayed in separate bedrooms;[50]
[50]Sara’s Second Affidavit, [10(d)].

(d) she and Fabio made trips to Mt Bulla [sic] but these were day trips and they did not stay overnight;[51]

(e) they did not have a sex life;[52] and

(f) they did have the same accountant, but did not attend meetings together.[53]

[51]Sara’s Second Affidavit, [10(e)].

[52]Sara’s Second Affidavit, [10(i)].

[53]Sara’s Second Affidavit, [10(k)].

Sara deposes that on 27 July 2022 she received a text message from what she understands to be a foreign number which said “wait until you see the videos I took at the office slut, it will go to public soon”.[54] Sara says that she believes it to be from Fabio, either directly or indirectly. She says she has never received a random text like this before and the language used is similar to that used by Fabio in his email to her of 24 October 2016. She also says it is not the first time Fabio has tried to intimidate her.[55] In Fabio’s Second Affidavit, Fabio denies the allegation about the text message and says he knows nothing about it.[56]
[54]Sara’s Second Affidavit, [6]; Exhibit SH to Sara’s Second Affidavit, p 1.
[55]Sara’s Second Affidavit, [6]; Exhibit SH to Sara’s Second Affidavit, p 2.
[56]Fabio’s Second Affidavit, [8].

Sara also deposes that on 25 July 2019 two men went to her father-in-law’s fish and chip shop with a threatening message from Fabio, and a few days later the shop was set on fire. There was a police investigation but no one was charged.[57] Sara exhibits a photograph of the men she says were sent by Fabio.[58] In Fabio’s Second Affidavit, Fabio denies the allegation and says he does not know the men in the photograph.[59]
[57]Sara’s Second Affidavit, [7].
[58]Exhibit SH to Sara’s Second Affidavit, p 3.
[59]Fabio’s Second Affidavit, [9].

Sara deposes that she continues to feel threatened and intimidated by Fabio and wants nothing else to do with him, which is another reason she wants this proceeding determined as soon as possible.

Submissions
Submissions made on behalf of Fabio

A great deal of Fabio’s Outline recites a number of provisions of the Family Law Act 1975 (‘FLA’). By reference to a number of provisions,[60] Fabio submits that the FCFCOA has the “sole and exclusive jurisdiction to finally determine the distribution of the property of the parties to a de facto relationship or either of them after the breakdown of their relationship.”[61]
[60]Specifically, FLA ss 39A, 39B(1), 4(1), 4AA, 40(3), 90RC(2), 90ST.
[61]Fabio’s Outline, [10].

Fabio acknowledges that he needs an extension of time from the FCFCOA in order to pursue an action in the FCFCOA under the FLA in relation to his relationship with Sara. Section 44(5) of the FLA provides that an application for orders regarding property can only be made within the ‘standard application period’, which is two years after the end of the de facto relationship, or if both parties consent to the application being made.

Section 44(6) of the FLA relevantly provides:

The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that … hardship would be caused to the party or a child if leave were not granted …

Fabio submits that there is no provision in the FLA vesting jurisdiction in any other court if these time limits are not complied with and leave to apply out of time is not granted.

In oral submissions, Fabio’s Counsel submitted that a voluminous number of cases demonstrate that, in determining whether a de facto relationship exists, the Court has regard to the totality of the particular circumstances. It was said that the existence of a de facto relationship is contingent on the findings of the Court of the day.

In Fabio’s Outline, it is stated that in Sara’s First Affidavit, “she does not address, much less dispute, the existence of a de facto relationship … save that she deposes to some factors that may or may not go to the existence of a relationship of that nature.”[62]
[62]Fabio’s Outline, [16].

I interpose here to observe that this is plainly incorrect: at paragraph 6 of Sara’s First Affidavit, she refers to Fabio’s assertion in Fabio’s FCFCOA Affidavit that they were in a de factor relationship and says “I reject that assertion”.

In oral submissions, Fabio’s Counsel submitted that, as to Sara’s assertion that Fabio and Sara were not in a de facto relationship, Fabio and Sara are at loggerheads as to the indicia of a de facto relationship, and resolution of the various issues in dispute between them will require a hearing in the FCFCOA.

Fabio submits that if the existence of a de facto relationship is in issue, then that cannot be determined ‘on the papers’ as it were, and will require a hearing in the FCFCOA to determine that issue after taking evidence and witnesses being cross-examined.

Fabio submits that if the parties were in a de facto relationship, then this Court does not have jurisdiction to finally determine the financial relationship between them, including the distribution of the property of either or both of them, irrespective of how long this proceeding has gone, what stage it has reached, and what costs have been expended, how long it takes to determine the proceedings in the FCFCOA. It is said that the parties cannot confer on this Court a jurisdiction that is solely and exclusively that of the FCFCOA.

Further, in oral submissions Fabio’s Counsel submitted that the criteria to which this Court will have regard in determining the parties’ interests in the Property are different from those to which the FCFCOA will consider in the context of a property dispute between a de facto couple (or dispute where a marriage has broken down).

Fabio submits that in assessing whether the applicant has established ‘hardship’ for the purposes of obtaining an extension of time, the FCFCOA merely needs “to be satisfied the prospective property settlement claim [is] reasonable or arguable, with such assessment made summarily without a detailed hearing on the merits”[63] and “in which case (as is usual) the applicant’s untested evidence [has] to be accepted”.[64]
[63]Relying on Welland & Hawthorn (2021) 64 Fam LR 520, [16] (Austin, Rees, Wilson JJ) citing Gadzen & Simkin [2018] FamCAFC 2018; Edmunds & Edmunds [2018] FamCAFC 121; Althaus & Althaus (1979) 8 Fam LR 169.
[64]The citation given for this in Fabio’s Outline is “Ibid [4]”, however it is unclear which part of the previous footnote is referred to or relied upon in this respect.

Fabio’s Outline acknowledges that even if hardship is demonstrated, whether to extend time is an exercise of the court’s discretion and numerous factors can influence this, including the length of delay, the adequacy of reasons for delay, and the prejudice the respondent (ie Sara) would suffer if the application for extension of time was granted.[65]
[65]Fabio’s Outline, [20]. A case is cited in Fabio’s Outline for this proposition, however the citation is incomplete and I have not included it here.

Fabio submits that the parties have been involved in litigation in this Court initiated by him since 2018, and although it has not proceeded as quickly and smoothly as desirable, it can hardly be said he has allowed Sara to believe he has walked away from his claim and/or never intended to pursue it.

Fabio submits that it is not necessarily the length of the delay that dictates the outcome, but rather what occurred or did not occur in that time. In this regard, Fabio’s solicitor provided a list of seven cases (but not the cases themselves) to my Chambers, stating that they were referred to in First Plaintiff’s submissions. Despite many of the cases not appearing in Fabio’s Outline, his Counsel made oral submissions at the hearing about the length of delay in each of those cases, which were said to be between 4 and 18 years. Another case from 1986 was mentioned, where the delay was said to be 35 years.

One particular case which Fabio’s Counsel spent some time on, Lin v Yew,[66] related to a delay of 32 years. Fabio’s Counsel reliance on this case was two-fold. On the one hand, at the hearing Fabio’s Counsel pointed to a list of cases set out in Lin v Yew concerning the question of delay, which list contains instances of delay ranging from a few months to 15 years.[67] Fabio’s Counsel then pointed to passages from that decision in which Wilson J stated that delay is but one consideration to weigh in the context of an application for leave pursuant to s 44(3) of the FLA,[68] albeit “more important [is] the existence of a reasonable claim and the hardship that the applicant would suffer if the leave sought under s 44(3) were to be refused. Further, a certain thread in the authorities … indicates that the court entertaining the s 44(3) application will be particularly concerned about the prejudice caused by the delay in commencing the proceeding”.[69] Fabio’s Counsel then referred to his Honour’s conclusions in respect of the application itself, in which it was observed that “the real issue in a s 44(3) application is hardship”.[70]
[66](2020) 62 Fam LR 244.
[67]Ibid, [31].
[68]Ibid, [32].
[69]Ibid, [35].
[70]Ibid, [78(e)].

On the other hand, Fabio’s Counsel submitted that Lin v Yew is distinguishable from the present set of facts because, in that case, Wilson J determined that he was unable to undertake the task prescribed by the High Court in Stanford v Stanford[71] until this Court heard and determined competing claims made by the parties with respect to the wife’s asserted equitable interests in the trust property.[72] According to Fabio’s Counsel, this is not comparable with the present factual matrix, because “[w]hat the parties are litigating in this honourable court is their interest in property that’s in the name of one or other of them, and more particularly, the wife”. On this basis, Fabio’s Counsel assert that it is therefore not a matter of this Court determining the interests of the parties in the Property that is not already owned by one or other, or both of them.[73]
[71](2012) 247 CLR 108.
[72]Lin v Yew, [121(c)].
[73]Transcript, 2 August 2022, 20.22-27.

Fabio submits that if the FCFCOA declares that there was a de facto relationship and grants his extension of time, then all financial issues between the parties will be finally determined. This is said to include the claims involving Enzo and the Parents, as the FCFCOA will have jurisdiction to deal with those matters pursuant to s 29 of the Federal Circuit and Family Court of Australia Act 2021. Once that has been done, Fabio says the parties can return to this Court to argue who should bear what responsibility for what costs.

Fabio submits that if the FCFCOA does not declare that there was a de facto relationship or does not grant the extension of time, then the matter would return to this Court, the stay would cease and the matter proceed to final hearing. It is said that the costs caused by Fabio by the Initiating Application would “surely fall at his feet and any further delay incurred on the part of [Sara] would be the subject of a claim for interest and/or other recompense.”[74] In oral submissions, Fabio’s Counsel asserted that any delay which might arise from this would be outweighed by the prospect of the FCFCOA seizing itself of the matter and proceeding with it without delay. Fabio’s Counsel further submitted that the relief sought in the Stay Application would only operate to stay this proceeding until any proceeding in the FCFCOA is determined.
[74]Fabio’s Outline, [29].

Fabio submits that if the Stay Application is not granted, he would still prosecute his matter in the FCFCOA. It is said that such a course would be significantly less than ideal for all parties for at least the following reasons:

(a) the parties will be litigating in two jurisdictions with their attendant financial and non-financial costs;

(b) there will be the ever-present risk of the two jurisdictions making inconsistent decisions, which such prospect should be avoided “at almost all cost”;[75] and

(c) even if this Court granted Sara the relief she seeks, that would not prevent the FCFCOA making a decision that affected the outcome of this proceeding, which is undesirable. This proceeding may only resolve part of the parties’ financial relationship and then, perhaps, only conditionally or provisionally.

[75]Fabio’s Outline, [30(b)].

Fabio submits that filing the Initiating Application is not an abuse of process and that he has not taken this step merely to cause further delay in this proceeding or frustrate it being heard. In oral submissions, Fabio’s Counsel rejected the implication that his instructors would be party to an abuse of process – it is said that Mr Vrachnas has deposed to the view he formed about jurisdiction and that this is the reason for the Initiating Application. Mr Vrachnas’ conclusions, it is submitted, were well and truly open on the material. Further, Fabio’s Counsel submitted that if one accepts Fabio’s evidence as to the existence of a de facto relationship, this paves the way for this Court to grant the relief sought in the Stay Application such that no abuse of process can be said to ensue. Quite how this sits with Fabio’s submission that the existence of a de facto relationship was for the FCFCOA to determine was not addressed.

Counsel further submitted that the delay between forming that view and making the Stay Application is attributable to Mr Vrachnas first corresponding with the other parties about it (which I note there is evidence for) and to Mr Vrachnas’ view that it would be pointless to make the Stay Application until the Initiating Application had been filed in the FCFCOA (which I note there is no evidence for). Fabio’s Counsel also submitted that, due to the volume of the material and complexity of the process, it took his instructors some time to prepare and file the material in the FCFCOA.

Submissions made on behalf of Sara

Sara submits that the Stay Application should be dismissed, for several reasons.

First, it is submitted that even if Fabio were to succeed on the Initiating Application, which Sara contends is highly unlikely, there is no good reason why this proceeding cannot continue to trial. There is no jurisdictional issue preventing this Court from determining all of the current issues in dispute, and this proceeding will determine the interests in property of all of the parties. It is submitted that if Fabio wishes to then continue an application against Sara for division of property in the FCFCOA, the first part of the exercise will have been achieved by this Court. In this regard, the Court was urged to follow Lin v Yew. That is said to be in keeping with the overarching purpose of the Civil Procedure Act 2010 (Vic) (‘CPA’), various provisions of which are said to have been and continue to be abused by Fabio.[76]
[76]Specifically, ss 16, 19, 20, 22, 23, 24 and 25 are referred to.

Second, Sara submits that the effect of a stay will be to further delay resolution of the real issues in dispute between the parties. It is said that such delay will be substantial, as:

(a) Fabio requires leave to proceed in the FCFCOA;

(b) the first return date for the Initiating Application is 27 September 2022, being the Current Trial Date. It is likely that a hearing for leave alone will not take place until some time in 2023;

(c) there will need to be a preliminary hearing as to whether Fabio and Sara were in a de facto relationship, which is likely to involve witnesses and significant court time, cost and delay. It is unknown when that hearing will occur; and

(d) if leave is granted, the family law proceeding is likely to take at least 18 months for resolution.

Sara submits that she will be prejudiced by the Stay Application being granted. It is said that she will once again be prevented from having the critical issues in dispute resolved in a just and efficient manner, thereby delaying her ability to sell the Property and discharge the Mortgage. There will also be a significant duplication and increase in costs.

Third, there is said to be no reasonable basis to assume Fabio will succeed in the Initiating Application. It is submitted that he is “grossly out of time, the evidence of a de facto relationship is very weak and there is compelling evidence to the contrary, and there is no evidence or likelihood of proof of hardship such that leave is likely to be granted”.[77]
[77]Sara’s Outline, [13].

Fourth, Sara submits that “the Court should see this application for what it is – a clear abuse of process. Fabio and Enzo commenced [this proceeding] against Sara. No doubt on the stark realisation that their case is very weak, and that they will substantially fail at trial, there has been a pattern of avoidance of the trial culminating in this current application to stay their own proceeding. The purpose is to exert further financial and emotional pressure on Sara and avoid the inevitable.”[78] Sara also says that despite engaging a new solicitor in February 2022, Fabio waited until 13 June 2022 to file the Initiating Application, and that the apparent realisation that the parties were in the wrong jurisdiction took Fabio four months to attempt to rectify. She submits that Fabio does not have an interest in bringing this proceeding to a close, rather he wishes to continue his pattern of obfuscation and delay.
[78]Sara’s Outline, [14].

In respect of this Court’s jurisdiction, Sara submits that at this stage, there is no proceeding technically on foot in the FCFCOA. There is merely the Initiating Application which is an application for leave to commence a proceeding out of time. Accordingly, there is no de facto financial cause within the meaning of the FLA on foot in the FCFCOA or any other Court. Therefore, Sara submits that at this point in time, only this Court has jurisdiction and, until and unless the FCFCOA grants leave to commence his proceeding, there is no proceeding in the FCFCOA.

Sara submits that the Initiating Application is entirely speculative and faces numerous hurdles: primarily, the application for leave to commence out of time; and secondly, determining whether there was or was not a de facto relationship.

Sara submits that there is nothing in Fabio’s FCFCOA material which reveals that he seeks anything other than orders about property. There is nothing to indicate that maintenance is sought. It is submitted that in the Financial Questionnaire, the only non-financial contribution listed by Fabio is actually a financial contribution, being payment of the Mortgage, and he has not stated what percentage of the property he seeks. Sara submits that the subject matter of this proceeding is effectively the subject matter of Fabio’s FCFCOA proceeding and that what is sought there is in essence what is sought here, albeit subject to the power of the FCFCOA to distribute property according to additional matters set out in the FLA.

Sara submits that there is nothing in the material about any hardship to Fabio in this proceeding being determined first. Establishing hardship being an essential requirement of obtaining leave to proceed in the FCFCOA, Sara submits that there are no non-financial contributions claimed in the Initiating Application or other FCFCOA documents which he would be prevented from pursuing if leave is not granted.

Sara submits that hardship will not be established where Fabio cannot demonstrate that he would be denied a claim that is worth pursuing. It is said that he must show serious injustice or substantial detriment, and that the court must not make an order under s 90SM of the FLA unless it is satisfied that, in all the circumstances, “it is just and equitable to make the order”. Sara contends that it is hard to see the basis upon which it would be just and equitable to make an order in Fabio’s favour that would differ from any order made by this Court.

Sara also submits that the evidence of a de facto relationship is very weak. Sara’s Outline sets this out in more detail, but she primarily relies on her evidence that they did not live together, did not have a sexual relationship, did not run a household or share household tasks, had separate bank accounts and owned separate businesses. She says there was no domesticity in their relationship, such that none of the requisite indicia of a de facto relationship are present.

Sara’s submission acknowledged that true it is that if leave to proceed in the FCFCOA is obtained, then Fabio can ask the FCFCOA to engage in a distribution of assets, that being the second step in Stanford v Stanford.

However, Sara submitted that the sensible thing is for this Court to determine the interests of all parties to the properties/assets said to be in the pool, such that this proceeding will establish the legal and beneficial interests of the parties. If he so desires, Fabio can then continue his FCFCOA application with half of the job already done. If there is a residual action successfully brought by Fabio in the FCFCOA for an adjustment of property, then that court will be armed with a determination of the parties’ entitlement to property, leaving it with a relatively straightforward task.[79]
[79]Lin v Yew, [118]-[122].

Sara submits that it is incorrect to assert that this Court does not have jurisdiction to hear and resolve all of the matters between the parties. She says that since the commencement of the cross-vesting legislation, the Parliament has recognised by implication that State courts may determine issues that were previously in the exclusive jurisdiction of the FCFCOA, and that State courts have exercised their concurrent jurisdiction.[80]
[80]Referring to Young v Lalic (2006) 197 FLR 27; Eberstaller v Poulos (2014) 87 NSWLR 394; Singh v Singh [2018] NSWCA 30,[250] (Gleeson, Leeming and White JJA).

Since the jurisdiction currently sits with this Court, Sara says the most sensible thing is for this proceeding to continue as the Initiating Application is highly speculative.

She submits that apart from ticking a box on the Genuine Steps Certificate saying the Initiating Application is urgent and a statement that this proceeding is listed for trial commencing 27 September 2022, there is no application in the FCFCOA material filed by Fabio seeking expedition of the determination of either the leave or de facto point. Sara contends that a determination of the Initiating Application, including a ruling as to whether a de facto relationship was in existence, is at least some months away and any final determination unlikely before the conclusion of 2023.

Sara submits that she will experience significant prejudice if the Stay Application is granted due to the additional expenses which will inevitably follow and the likely significant delay in resolution of matters between the parties. She also points to the FCFCOA being a ‘no costs’ jurisdiction, which is significant given she has already incurred substantial costs in this Court.

Sara submits that to succeed on the Stay Application, Fabio must establish that this Court is a clearly inappropriate forum. She says that this requires a determination of whether continuing this proceeding 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, to the party objecting.[81]
[81]Relying on Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (‘Voth’).

Sara submits that Fabio must fail in this for the following reasons:

(a) there is no evidence to establish that this Court is the clearly inappropriate forum;

(b) there is evidence from Sara that Fabio’s conduct in this proceeding thus far has been oppressive and vexatious;

(c) the Court can readily infer from its supervision of this proceeding that the Canaveris’ conduct, particularly that of Fabio, has been oppressive and vexatious; and

(d) Sara’s evidence is that a stay of this proceeding would be oppressive and vexatious to her.

Sara submits that prima facie, it is vexatious and an abuse of process for Fabio to attempt to commence a second proceeding against Sara in another court in respect of the same factual matters which have been raised in this proceeding.

In respect of abuse of process, the High Court in Jeffery & Katauskas v SST Consulting[82] affirmed that:

Courts have a broad inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people”. [83]

[82](2009) 239 CLR 75.

[83]Cited in Equuscorp Pty Ltd v Acehand Pty Ltd [2010] VSC 89, [28]-[35] (Hollingworth J).

Sara submits that a proceeding amounts to an abuse of process when a party uses the process of the court to effect an object not within the scope of the process, or for a purpose other than that for which the proceeding is properly designed, or to secure some collateral advantage.[84] Sara submits that the Initiating Application and the Stay Application are directed towards avoiding the trial on 27 September 2022. She says this can readily be inferred from Fabio’s past conduct in this proceeding and the timing of the applications. She says that the status quo prevents her from selling the Property, keeps the Parents in occupation of the Property, and averts Fabio and Enzo paying any costs. She remains liable for water bills, council rates, cannot borrow further because of the Mortgage, and has not been reimbursed for all of her Mortgage payments and costs.
[84]Klement v Randles [2010] VSCA 336, [32] (Maxwell P and Emerton AJA).

Consideration

In order to determine the Stay Application, I consider that the following matters need to be addressed:

(a) The Initiating Application having been made, is Fabio’s contention that the FCFCOA has sole and exclusive jurisdiction correct such that this Court lacks jurisdiction?

(b) If that contention is incorrect, then is this Court the clearly inappropriate forum such that this proceeding should be stayed pending the outcome of the Initiating Application?

(c) Are there any other reasons why the Stay Application should or should not be granted?

I will address matters these in turn.

The Initiating Application having been made, is Fabio’s contention that the FCFCOA has sole and exclusive jurisdiction correct such that this Court lacks jurisdiction?

Section 39B of the FLA confers jurisdiction on the FCFCOA for applications under the FLA in respect of de facto financial causes. While that section establishes a concurrent jurisdiction with state and territory courts, s 39D of the FLA empowers the Governor-General to make a proclamation fixing a date after which de facto financial causes may not be instituted in or transferred to such courts. There was no evidence before me or submissions made that such a proclamation had been made, although Fabio’s Outline does refer to a proclamation made in respect of matrimonial causes pursuant to s 40(3) of the FLA.

The expression ‘de facto financial cause’ is defined in s 4(1) of the FLA. Relevantly, it provides that de facto financial cause means:

(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship;

…
(c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;

…

Fabio may well be right that the FCFCOA has exclusive jurisdiction to determine a de facto financial cause under the FLA as a consequence of s 39D of the FLA. I cannot say so definitively, however, as I was not taken to the relevant proclamation, as referred to above. Nonetheless, for the purposes of the Stay Application, I am prepared to proceed on the basis that this is correct.

However, Fabio’s submissions do not grapple with the fact that this proceeding is not a de facto financial cause under the FLA both because it does not concern an application made under that Act and it does not necessarily fall within the definition of de facto financial cause.

At its heart, this proceeding is about an asserted equitable interest in the Property. This Court deals with disputes over legal and equitable interests all the time, including between parties in a relationship or previously in a relationship. What this Court is engaged in is determining the legal and equitable interests of the Canaveris (including Fabio) and of Sara.

True it is that there may be an overlap – the FCFOCA may be called upon to determine what is the property of a party to a proceeding in that court which, if it is disputed, would have to be determined before any adjustment of interests under the FLA can be undertaken. But that does not mean that the FCFCOA has exclusive jurisdiction to determine whether Fabio has an equitable interest in the Property. A de facto financial cause under the FLA involves the FCFCOA in determining what adjustments should be made in respect of property and assets, and is not necessarily confined to concepts of legal and/or equitable ownership. A de facto financial cause concerns the distribution of property, not necessarily ownership, and may involve altering the interests of the parties in the property.[85]
[85]That property settlement proceedings after the breakdown of a de facto relationship may involve orders altering the interests of the parties in the property is apparent from s 90SM of the FLA.

Fabio’s reliance on s 90RC(2) of the FLA in support of his contention in this regard is misplaced. That section concerns what laws apply to financial matters (as defined in the FLA) in respect of de facto financial provisions (as defined in the FLA) such that those provisions apply and state and territory laws in respect of financial matters do not. It is therefore about what laws the FCFCOA applies when dealing with de facto financial causes rather than about who has jurisdiction.

Yin v Lew was a case decided by the predecessor to the FCFCOA and involved an anti-suit injunction by the wife, seeking to prevent a proceeding already commenced in the Supreme Court of Victoria by the husband from going ahead. That anti-suit injunction was rejected and the family law proceeding was stayed pending resolution of the Supreme Court matter. Yin v Lew does not stand for so narrow a proposition as submitted by Fabio, referred to in paragraph 53 above. If the submission was that the effect of Yin v Lew is that this Court lacks jurisdiction because the property is owned by one of the parties to the alleged de facto relationship, then I reject that submission.

Accordingly, I do not accept Fabio’s submission that this Court lacks jurisdiction. Therefore, the question becomes one of forum non conveniens, rather than whether this Court has jurisdiction at all.

If this Court has jurisdiction, then is it Court the clearly inappropriate forum such that this proceeding should be stayed pending the outcome of the Initiating Application?

This Court having jurisdiction, the question is then whether Fabio has established that this Court is the clearly inappropriate forum such that the Stay Application should be granted.

A party seeking a stay will ordinarily be entitled to such an order if they persuade the local court that, having regard to the circumstances of the particular case and the availability of a foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the matter, it is a clearly inappropriate forum for the determination of the dispute. The question whether the local court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.[86] The principles applicable to the forum non conveniens inquiry were recently summarised by the Court of Appeal in Republica Democratica de Timor Leste v Lighthouse Corporation Ltd,[87] where it was held:[88]

In Voth v Manildra Flour Mills Pty Ltd (‘Voth’), the High 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 principle is a manifestation of the broader power reposed in a superior court to stay proceedings if they are oppressive, vexatious or an abuse of process, or are productive of injustice in the particular case.
In many cases, the Court said, the application of the ‘clearly inappropriate’ test — which focuses on the inappropriateness of the local forum, rather than on the appropriateness of any other forum — is likely to yield the same result as an inquiry as to which of the two fora is the ‘more appropriate forum’. Further, the inquiry will inevitably involve an assessment of the relevant ‘connecting factors’, including the nature of the dispute and cause of action, the law to be applied, the location of the cause and the location of witnesses.

The fact that the law of the forum provides the governing law of the cause may be important, but is not necessarily determinative. So much follows from the choice of law rules which permit a local court to apply the law of a foreign jurisdiction. It may be that the existence of a much stronger connection with a foreign forum may justify a conclusion that the local court is clearly inappropriate notwithstanding that the law of the cause may not be the law of the foreign forum.
The onus remains on the party seeking the stay to establish that the chosen forum is clearly inappropriate. The test is a stringent one that requires the party seeking a stay to establish not only that the local forum is inappropriate, but that it is clearly so. This indicates that ‘something more than merely balancing relevant considerations is required’.

[86]Voth, 565 (Mason CJ, Deane, Dawson and Gaudron JJ).

[87][2019] VSCA 290.

[88]Ibid, [40]-[44] (citations omitted).

There are two points broad points I wish to make in this respect. First, it cannot be said at this point in time that the FCFCOA even has jurisdiction in respect of the disputes between Fabio and Sara. The Initiating Application, as it currently stands, is an application for leave to commence a proceeding in the FCFCOA and not a proceeding in the FCFCOA. In other words, until and unless the FCFCOA grants Fabio leave to commence a proceeding, there is no other proceeding or other court seized of the matter. I accept Sara’s submissions in this regard.

That being the case, it can hardly be said that this Court is the clearly inappropriate forum.

Secondly, at the present time and for some time to come, the timing of which is uncertain, the prospect of there being a proceeding in the FCFCOA is merely speculative. There are two substantive matters which Fabio must establish before there can be a proceeding in the FCFCOA to determine the de facto financial cause: he must obtain leave to commence a proceeding, for which he must establish hardship and also persuade the FCFCOA to exercise its discretion to grant leave; and he must establish that he and Sara were in a de facto relationship. These are both significant threshold matters in respect of which Fabio bears the onus.

Much of the parties’ submissions before me were directed to their respective positions on these two threshold matters. It is not for me to determine whether Fabio will be able to discharge his onus in that respect: that will be a matter for the FCFCOA. Rather, and as the authorities make crystal clear, in this application the onus falls on Fabio, being the party seeking a stay of this proceeding, to establish that this Court is the clearly inappropriate one.

However, it is abundantly clear to me that there is significant dispute between the parties in respect of both threshold matters referred to in the preceding paragraph and the outcome is by no means certain.

In circumstances where Fabio is not seeking a maintenance order from the FCFCOA or contending that there are non-financial contributions to be taken into account when determining the distribution of property between them (save for the lone non-financial contribution stated in the Financial Questionnaire which, I accept, is in fact a financial contribution),[89] establishing hardship may not be as straightforward as he contends. I accept Fabio’s submission that the FCFCOA must take into account factors when making property settlement orders that would not necessary be factors for consideration in this Court,[90] but he will likely need to demonstrate to the FCFCOA which of those matters he relies on and the evidence for them to establish hardship and that the discretion should be exercised in his favour.
[89]The only non-financial contribution listed by Fabio is “I was gainfully employed during the relationship and whatever I earned was used to acquire and develop properties”, which is clearly a financial contribution: exhibit RV-1, p 146.
[90]Being those matters listed in s 90SF(3) of the FLA: see s 90SM(4)(e) of the FLA.

While I accept Fabio’s submission that extensions of time have been granted by the FCFCOA when the delay has been considerable, the list of cases received by my Chambers and referred to in paragraph 52 were of limited assistance: it is not clear from the list provided, but it seems to me that only two of the seven cases could have been de facto cases because the other five cases were prior to 2008 when the predecessor to the FCFCOA obtained jurisdiction over de facto financial causes, and Yin v Lew was a matrimonial case not a de facto one. In any case, and save for Yin v Lew, Fabio’s Counsel’s submissions in respect of these cases were mostly cursory and primarily concentrated on the period of delay in the respective cases.

The parties are in heated dispute as to the nature of their relationship: Fabio contends it was a de facto relationship, although I note that this is not pleaded in his statement of claim, and Sara denies this. The parties have not asked me to determine which of them is correct about this and accordingly I do not choose to do so. I will say, however, that on the state of the evidence as it currently is and if Sara’s evidence is accepted, it will be difficult for Fabio to establish that “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”,[91] as few of the indicia of a de facto relationship[92] are readily apparent at this point.
[91]FLA, s 4AA(1).
[92]FLA, s 4AA(2), (3).

Therefore, it seems to me that this Court is not the clearly inappropriate forum when it is merely speculative that Fabio will be able to pursue a proceeding in the FCFCOA under the FLA. Further, it is unclear when that question will be determined: all that is known at this point is that there is a directions hearing scheduled for the Initiating Application on 27 September 2022; when it will be heard and determined is unknown despite both parties making submissions about that before me.

I have already touched on why this Court has jurisdiction to hear the issues ventilated by the parties in this proceeding.[93] In these circumstances, and where I have found that this proceeding concerns the determination of legal and equitable interests or the Canaveris and of Sara, it can hardly be said that this Court is the clearly inappropriate forum.
[93]Eg, see paragraphs Error! Reference source not found. to Error! Reference source not found. above.

I accept that the claims involving the Parents and Enzo could be dealt with in a FCFCOA proceeding if Fabio obtains leave and establishes a de facto relationship,[94] and that the matters in dispute between Fabio and Sara could also be dealt with, so it is possible that a FCFCOA proceeding could resolve all matters involving the claims in this proceeding. However, that does not mean that this Court is the clearly inappropriate forum: this Court has jurisdiction to deal with all of the claims made in respect of this proceeding. The FCFCOA will only have jurisdiction to deal with all of the claims in this proceeding, including those involving Enzo and the Parents, if it is seized of the dispute between Fabio and Sara.
[94]Federal Circuit and Family Court of Australia Act 2021 (Cth), s 29.

Fabio’s submissions that a stay should be granted so as to avoid duplication or multiplicity of proceedings, a risk of inconsistent findings, or wasted costs may have some force if circumstances were different.

If there was already a proceeding under way in the FCFCOA which had some degree of certainty in terms of timing, then avoiding multiple or duplicate proceedings may be a consideration carrying more weight than it does in these circumstances. Here, there is little to no risk of inconsistent findings since this proceeding is likely to be heard and determined prior to even the Initiating Application being heard and determined. To the extent that there is anything left after the conclusion of this proceeding which Fabio wants to agitate pursuant to the FLA, such as an alteration or distribution of property, the starting point for the FCFCOA will presumably the outcome of the claims in this proceeding in terms of who owns what. Such is not a risk of an inconsistent finding, but a deliberation based on possibly different criteria to a different end.

I found Fabio’s submission in respect of costs somewhat disingenuous. So far as the submission summarised in paragraph 55 is concerned, it ignores the fact that the family law jurisdiction is generally a no costs one, and it leaves the question of the costs of this proceeding unresolved for what is likely to be a considerable period of time. In the context of the amounts the parties have already incurred in legal costs in this proceeding, it is far more likely that costs will be wasted by staying this proceeding rather than having it go to trial as listed. This trial going ahead will resolve those aspects of the claims and if there is anything left for the FCFCOA to do, costs will not be incurred in respect of the matters already determined. So far as the submission summarised in paragraph 56 above is concerned, it does not deal with legal costs per se, rather, it just deals with the consequences of delay for the monetary value of the claim.

The submission referred to in paragraph 57 above are premised on the proposition that Fabio would still prosecute the Initiating Application and any subsequent FCFCOA proceeding if the Stay Application is not granted. There is no evidence of this. Fabio does not say, in either of his affidavits, that he would still prosecute the matter in the FCFCOA if the Stay Application is not granted. I do not attribute much weight to this however, as I have already formed the view that the negative consequences postulated by Fabio as summarised in that paragraph are more illusory than real, for the reasons set out above.

For completeness, I note that has Fabio not satisfied me that this proceeding is oppressive, vexatious or an abuse of process. As I have already made clear, it is Fabio who commenced this proceeding in this Court in the first place, and as the applicant for the stay, Fabio must satisfy me that it is oppressive or vexatious for him to have to continue this proceeding, his own proceeding. He has not done so.

It follows that Fabio has failed to discharge the onus of establishing that this Court is the clearly inappropriate forum for the hearing of the matters agitated by the parties in this proceeding.

Are there any other reasons why the Stay Application should or should not be granted?

I find the circumstances and timing of the Initiating Application and the Stay Application to be quite concerning.

Mr Vrachnas has deposed as to when he was first retained and when he formed the view that Fabio’s claims should be prosecuted in the FCFCOA, and the steps he took after that. I accept that evidence. I accept the submission that Mr Vrachnas and Gigliotti Lawyers have not set out to involve themselves in an abuse of process.

Nonetheless, the evidence relied upon by Fabio and the submissions made on his behalf seek to create the impression that it was only when Mr Vrachnas became involved that this issue came to Fabio’s attention or was considered by him or that he decided to make the Initiating Application. There is simply no evidence of that: Fabio gives no evidence about it at all. When I raised this issue at the hearing, Fabio’s Counsel urged me to infer that if Fabio had received advice earlier, presumably from one of his other solicitors, that the FCFCOA was the right jurisdiction and this Court the wrong one, then he would have done something about it. I decline to draw that inference. There is no proper basis for it and Fabio could have gone into evidence about it but did not do so. Further, it is difficult to imagine that the three different firms of solicitors previously engaged by the Canaveris (including Fabio) in this proceeding did not turn their minds to it, particularly in circumstances where it was Fabio (and Enzo) who commenced this proceeding. Surely the solicitors at that time would have turned their minds to it if the instructions given to them were sufficient for the possibility to have occurred to them.

Of greater concern is the timing of both applications in the context of Fabio’s previous four attempts (whether formally made by summons or not) to vacate the First and Second Trial Dates, as set out in paragraphs 15 and 18 to 22 above, only one of which was successful. Naturally, I do not take into account the vacation of the Second Trial Date by consent between the parties, as set out in paragraph 23 above.

In the context where the Canaveris are clearly advantaged by delay, primarily because it means that the Parents can remain in occupation of the Property, such delays are particularly undesirable. This is particularly the case when one considers that Fabio is the plaintiff: it is somewhat perverse for a plaintiff to continue to avoid the hearing and determination of his claims.

Even more perverse is that it is Fabio seeking to stay his own proceeding while he pursues a proceeding traversing the same subject matter in a different court, some four years after commencing this proceeding. I was not taken to any case by either party where it was a plaintiff seeking to stay their own proceeding so as to pursue another one.

I accept the submission that not all of the delays in this proceeding are the result of Fabio’s conduct. However, the manner in which he has sought to cast his conduct is of some concern. I refer here to paragraph 32(b) of Fabio’s Second Affidavit.[95] It creates the impression, on a plain ordinary reading, that the First Trial Date was vacated because further discovery was required. The summons filed 14 August 2020 sought, at paragraph 1, that the First Trial Date be vacated and, at paragraph 2, that orders for further discovery by Sara be made. Fabio’s affidavit sworn 15 August 2020 in support of that summons went solely to the issue of him being in Colombia, not being able to return to Australia, and the difficulties of preparing for and participating in a virtual trial as a result of that and the inadequate internet facilities where he was. Mr Waters’ affidavit sworn 14 August 2020 in support of that summons went to the difficulties of preparing for trial because of the issues referred to by Fabio, referred to the further discovery sought by Sara, and also referred to difficulties he was experiencing because he didn’t have Fabio’s discovered documents either. It is readily apparent from a perusal of the transcript of the hearing of the summons on 18 August 2020[96] that the primary reasons for vacating the trial were the technological difficulties and Fabio’s solicitors difficulties in preparing given those issues and the fact that they had very few documents. Sara’s solicitors had provided the documents requested of Sara the evening before and said that if there were some Mr Waters identified as missing they would provide those. Fabio’s then-counsel made it clear that even if they got Sara’s discovery very quickly, that would not make everything all right. One only has to read the transcript of the ex tempore ruling I delivered that day to see that the reason for vacating the First Trial Date was Fabio’s inability to return to Australia in time for the trial by reason of the pandemic restrictions and his inability to properly instruct his lawyers in preparation for trial or to participate in a virtual hearing because of the technological problems and the absence of available and reliable internet services.
[95]This is set out at paragraph 30(b) above.
[96]Which transcript is on the Court file.

I therefore consider it disingenuous at best, and misleading at worst, for Fabio to characterise the vacation of the First Trial Date in the manner he has in paragraph 32(b) of Fabio’s Second Affidavit.

At the hearing of the Stay Application, I raised this issue with Counsel who indicated that he did not have any instructions in this regard. I make no criticism of Fabio’s Counsel or his solicitors in this respect: they were not involved in this proceeding at that time and had no direct knowledge of the hearing on 18 August 2020 and were presumably reliant on instructions from Fabio. It is Fabio who has deposed to this, not his lawyers.

I accept Sara’s evidence that the delays in finalising matters with the Canaveris has caused her financial and emotional distress. This is not a determinative factor, but it is relevant in the exercise of the Court’s discretion.

I make no findings in respect of Sara’s allegations that Fabio has attempted to intimidate or threaten her, in particular the matters referred to in paragraphs 35 and 36 above, as those matters are denied by Fabio and both parties’ evidence has not been tested through cross-examination. While I accept the submission that Fabio’s email to Sara of 24 October 2016 is intimidatory and threatening, as it is plain on the face of the email, I do not give any weight to this in the exercise of my discretion as it is some time ago and prior to this proceeding being issued.

Although they are not as important as the factors going to the forum non conveniens point, the matters referred to in paragraphs 115 to 122 above all weigh against granting the Stay Application.

Further, granting the Stay Application on the basis of an application brought in another Court which does not yet have jurisdiction and in which there will only be a proceeding if leave to commence it out of time is granted and where a key threshold issue is hotly disputed is hardly in keeping with the CPA. The overarching purpose of the CPA is “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.”[97] In exercising its powers, this Court must seek to give effect to the overarching purpose.[98] The overarching purpose is served by the Current Trial Date being maintained and the Stay Application being refused. It will not further the just, efficient, timely and cost-efficient resolution of these disputes to further delay the trial on the speculative basis that the FCFCOA may, at some undetermined point in the future, be seized of the disputes.
[97]CPA, s 7(1).
[98]CPA, s 8(1).

Mr Vrachnas has deposed that he has instructions from Fabio that he would be prepared to give an undertaking to this Court to prosecute the FCFCOA proceeding with as much speed as the processes of that court permit. I note that Fabio does not depose to this, in either of his affidavits. Assuming that Fabio is willing to give that undertaking, which I have presumed is proffered as part of the Court granting the Stay Application, it is insufficient to deal with what I consider to be the real and present prejudice to Sara of granting the Stay Application. This is due to the very early stage of the Initiating Application when contrasted with this proceeding and the fact that, as is implicitly acknowledged by the way the proposed undertaking is couched, much of it is likely to be beyond Fabio’s control.

Conclusion

For the reasons set out above, I have concluded that the Stay Application should be refused as I do not accept that the FCFCOA has sole and exclusive jurisdiction or that this Court is the clearly inappropriate forum, and there are no other reasons in favour of the Stay Application.

That being the case, it is not necessary for me to determine whether the Stay Application is an abuse of process.

Accordingly, orders will be made dismissing the Stay Application. The solicitors for the parties to the Stay Application are to confer and provide my Chambers with a proposed form of orders, including as to costs, by 4.00pm on 24 August 2022. If consent is not reached in that regard, then each party is to provide my Chambers with their preferred form of orders and a short submission of no more than two pages by that same date. Unless I form the view that a hearing is necessary, I will settle the form of orders and deal with costs on the papers after that date.

SCHEDULE OF PARTIES

S ECI 2018 01447
BETWEEN:
FABIO CANAVERI (a pseudonym)	First Plaintiff
ENZO CANAVERI (a pseudonym)	Second Plaintiff
- v -
SARA HERERA (a pseudonym)	Defendant
AND BETWEEN:
SARA HERERA (a pseudonym)	Plaintiff by Counterclaim
- v -
FABIO CANAVERI (a pseudonym)	First Defendant by Counterclaim
ENZO CANAVERI (a pseudonym)	Second Defendant by Counterclaim
MATTEO CANAVERI (a pseudonym)	Third Defendant by Counterclaim
MARIANA CANAVERI (a pseudonym)	Fourth Defendant by Counterclaim
REGISTRAR OF TITLES	Fifth Defendant by Counterclaim

[2022] VSC 469

19 August 2022