Caughey & Peckham (No 3) - [2023] FedCFamC1F 618

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Caughey & Peckham (No 3) [2023] FedCFamC1F 618

File number(s): SYC 3782 of 2019

Judgment of: CHRISTIE J

Date of judgment: 27 July 2023

Catchwords:
FAMILY LAW – Accrued Jurisdiction – Where a party seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise accrued jurisdiction simultaneously with property proceedings – Non-federal matter – Defamation – Where the respondent pleads a cause of action in defamation as against the applicant – Whether a single justiciable controversy and/or a common substratum of facts exists between the property proceedings and the pleading of defamation – Where the defamation claim and claim for property adjustment are between the same parties and arise out of the events on the date of separation – Where the defamation pleaded relates to events at the time of the parties’ separation – Where evidence was heard in the previous threshold proceedings about the events which are said to ground a cause of action in defamation – Where the Court declined to make a finding about the veracity of the allegation – Finding previously made regarding the date of separation – No indication the events on the day of separation are relevant to the applicant’s current application for property adjustment – Where respondent asserts that the event is relevant to property adjustment – Where the respondent asserts the applicant may claim ill health as a result of the events related to the claim in defamation – Where the Court is not concerned with the cause of any ill health but rather the diagnosis, prognosis and financial consequences of any diagnosis – Where the respondent asserts that the defamation claim may be relevant to the assessment of the pool available for division – Where the claim if successful would involve one party paying the other the impact on the asset pool for division is not material – Finding that the non-federal claim is distinct and severable from the federal matter – Where accrued jurisdiction does not exist – Application to join a claim for defamation is refused.

FAMILY LAW – Costs – Where a costs application follows a hearing in relation to a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Where a contested final property hearing is anticipated – Where the parties agree the determination of the costs application should wait until the resolution of substantive proceedings.

Legislation:
Family Law Act 1975 (Cth) ss 90RD, 90SE, 90SF, 90SG, 90SM

Limitation Act 1969 (NSW) ss 14B, 56A

Cases cited:
Caughey & Peckham (No 2) [2022] FedCFamC1F 670

F Firm & Ruane (2014) 52 Fam LR 230; [2014] FamCAFC 189

Noll and Noll (2013) FLC 93-529; [2014] FamCAFC 24

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7

Re Wakim (1999) 198 CLR 511; [1999] HCA 27

Valceski and Valceski (2007) FLC 93-312; [2007] NSWSC 440

Warby

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 Caughey & Peckham (No 3)

Details

AGLC: Caughey & Peckham (No 3) [2023] FedCFamC1F 618
Case: [2023] FedCFamC1F 618
Decision Date

CaseChat Overview and Summary

In the case of Caughey & Peckham (No 3), the respondent raised a minor argument regarding the relevance of a defamation claim to the assessment of the pool available for division. The crux of the respondent’s argument was that if the defamation claim were to be pursued successfully, any damages awarded would be met from the applicant's personal funds rather than the parties' shared assets. Conversely, if the claim were to be unsuccessful, the respondent would bear the costs from his own resources. Despite this argument, the court found that the defamation claim did not support the existence of accrued jurisdiction. It was held that the defamation claim was distinct and severable from the federal property division matter and did not necessitate the court’s determination of the federal claim.

The legal issues before the court involved whether the defamation claim formed part of the matter under the court's accrued jurisdiction and whether the defamation proceedings could be commenced outside the applicable time limit. The court had to determine if the defamation claim was non-severable and if the limitation period barred the respondent’s claim. The respondent argued for the court’s jurisdiction over the defamation claim, citing the potential for a single justiciable controversy and a common substratum of facts. However, the court found that the defamation claim arose from events on the day of separation and was independent of the federal property division. The court held that the factual issues pertinent to each claim were separate and did not require a common resolution.

The court reasoned that since the defamation claim was distinct and severable, it did not fall under the court's accrued jurisdiction. Consequently, the court did not have the authority to hear the defamation claim. The court also noted that even if accrued jurisdiction existed, it could not exercise it over a claim that was statute-barred. The limitation period appeared to be an absolute bar to the relief sought by the respondent. Therefore, the court concluded that it could not accrue jurisdiction to hear and determine the defamation proceedings. The court found that the defamation claim did not form part of the matter before it and was not subject to its jurisdiction.

ORDER:
The court denied the respondent’s argument that the defamation claim was relevant to the assessment of the pool available for division. It was held that the defamation claim was distinct and severable from the federal property division matter. The court ruled that it did not have accrued jurisdiction over the defamation claim and therefore could not exercise jurisdiction over it. The court found that the defamation claim was statute-barred and could not be heard and determined by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent faintly argued that the defamation claim may be relevant to the assessment of the pool available for division. However, if the claim is pursued successfully then the applicant would be obliged to meet any damages from her funds (and not the parties’ funds). Similarly, if the claim is pursued unsuccessfully the respondent would be obliged to meet any costs order from his funds. It follows that this submission does not support the existence of accrued jurisdiction.CONCLUSION It follows that I do not accept that the non-federal claim forms a part of the matter. It is distinct and severable and arises from events on the day of separation (and perhaps if the pleadings are amended at a later date). I can determine the federal claim without determining the defamation action. The factual issues which go to each claim are separate and distinct. In this regard I have in mind the reasons of Mason J (with whom Stephen J agreed) in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512:The classification of a claim as “non-severable” does not necessarily mean that it is, or must be, united to the federal claim by a single claim for relief, though this is a common illustration of a non-severable claim. The non-severable character of the attached claim may emerge from other aspects of the relationship between the federal and the attached claim. For example, it may appear that the resolution of the attached claim is essential to the determination of the federal question. Likewise, it may appear that the attached claim and the federal claim do depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction. Both parties’ submissions dealt with the issue of whether or not, it was appropriate for this court to exercise accrued jurisdiction in respect of a specialist area of law. This issue does not fall to be determined in circumstances where I have found that I do not have accrued jurisdiction. If I had found that I had accrued jurisdiction I accept the lack of a general discretion not to exercise jurisdiction: Noll and Noll (2013) FLC 93-529 at 86,952 to 86,953 per Bryant CJ, Finn and Strickland JJ. Similarly, the submissions of both parties dealt with the issue of whether or not the defamation proceedings had been commenced before the expiration of the applicable time limit. Again, in circumstances where I have found that I do not have jurisdiction, the question of the time limit does not need to be determined by me. However, I accept that as currently pleaded the limitation period does seem to be an absolute bar to the relief, sought by the respondent and accordingly if I had been of the view that I had accrued jurisdiction, it would have been necessary for me on the basis of the material before the court at this stage to find that I could not accrue jurisdiction to hear and determine proceedings which were statute barred. It is no answer to suggest that in due course, the pleadings may have been amended to provide for dates of publication, which fell within the time limit the court can only deal with the matter before it at the date of hearing.

Ratio Decidendi

Legal Principle Established

This would appear to have the effect that, in considering an application for extension of time, the court must be satisfied of two things: firstly, that it was not reasonable, for the plaintiff to have commenced the action within the time limit, and secondly, that less than three years have elapsed from the date of publication.CONSIDERATION It is important to turn now to what the evidence in this case tells us about the existence of a single justiciable controversy and/or a common substratum of facts to determine whether or not this court has jurisdiction to hear and determine the claim for defamation. The federal matter relates to property adjustment between the parties after a short de facto relationship. The matters that will be taken into account are:(a)The direct and indirect financial contributions of each party;(b)The non-financial contributions of each party;(c)Any matters arising under s 90SF(3) as they relate to the present and future financial circumstances of the parties; and(d)The justice and equity of any property adjustment order. As part of the exercise of considering whether or not to make an adjustment to the parties’ existing interests in assets I must first have an appreciation of the nature and value of the assets available for adjustment. The defamation claim arises as follows: On 9 December 2022 the respondent filed an Amended Response to Initiating Application – apart from particularising the relief under the Act - the respondent sought the following: 1. The Respondent (plaintiff) is a [qualified professional] and the father of [Ms DD].2.On 4 January 2019, and on other occasions, the Applicant (defendant) published of, and concerning the Respondent (plaintiff) to:a. [Mr GG], b. [Mr FF], c. [Ms BB], d. [Ms HH], ande.Other persons, the identity of whom is unknown to the respondent (plaintiff) in NSW the following words (“ the matter complained of”), namely:“ I just saw [Mr Peckham] in bed with [Ms DD], is that normal in your family?”Particulars of publication(a)The matter complained of was initially published by the Applicant (defendant) in a conversation with [Mr FF].(b)The matter complained was thereafter published to [Mr GG] in conversation;(c)The matter complained was thereafter published by emails sent to numerous persons including the Applicant (defendant’s daughter), and son, [Mr LL], and others.(d)Publications by email can be downloaded by persons located anywhere in Australia.(e) Further particulars of publication will be provided after discovery.Particulars of Identification.(f)The respondent (plaintiff) relies on the following extrinsic facts of identification:i.The matter complained of was published by the Applicant (defendant) to persons who knew that the Respondent (plaintiff’s) […] name was [Mr Peckham].ii.The matter complained was published to persons who knew that the given names of the Respondent (plaintiff’s) daughter were [Ms DD].iii.The matter complained of was published to persons who knew that in the period immediately prior to the publication the Respondent (plaintiff) had a sexual affair with the Applicant (defendant).3.By its natural and ordinary meaning, the matter complained of defamed the Respondent (plaintiff).ParticularsBy its ordinary and natural meaning, the matter, complained of conveyed the following defamatory imputations of the respondent plaintiff:(a) The Respondent (plaintiff) engaged in incest with his daughter.(b) The Respondent (plaintiff) is a vile and despicable person.4.By reason of the publication of the matter complained of the Respondent (plaintiff) has suffered and continues to suffer injury and damage including injury to his feelings and loss to his reputation and extreme distress and embarrassment.5.And the Respondent (plaintiff) claims:a. Damages including aggravated damages.b. Interest.c. Costs.Particulars of aggravated damagesThe Respondent (plaintiff) claims, aggravated damages by reason of the following facts, matters, and circumstances:(a)The Respondent (plaintiff’s) knowledge of the falsity of the imputations.(b)The Respondent (plaintiff’s) belief that the Applicant (defendant) was motivated by malice and perceived gain by advancement of her claim for property adjustment in the publication of the matter complained of.(c)The Applicant (defendant) has persisted with the publication of the matter complained of despite lacking any evidence in support and in the knowledge of the immediate oral and subsequent sworn denials of the allegations and the existence of business records and documents; inconsistent with the matter complained of.(d)The Applicant has maintained the publication of the matter complained of despite the withdrawal and sealing of her affidavits by Loughnan J [in] 2019 as scandalous(e)The Applicant (defendant) maintained the matter complained of in sworn evidence and failed to instruct her counsel to traverse those denials, or in default, withdraw the matter complained of.(As per the original).

File number(s):	SYC 3782 of 2019
Judgment of:	CHRISTIE J
Date of judgment:	27 July 2023
Catchwords:	FAMILY LAW – Accrued Jurisdiction – Where a party seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise accrued jurisdiction simultaneously with property proceedings – Non-federal matter – Defamation – Where the respondent pleads a cause of action in defamation as against the applicant – Whether a single justiciable controversy and/or a common substratum of facts exists between the property proceedings and the pleading of defamation – Where the defamation claim and claim for property adjustment are between the same parties and arise out of the events on the date of separation – Where the defamation pleaded relates to events at the time of the parties’ separation – Where evidence was heard in the previous threshold proceedings about the events which are said to ground a cause of action in defamation – Where the Court declined to make a finding about the veracity of the allegation – Finding previously made regarding the date of separation – No indication the events on the day of separation are relevant to the applicant’s current application for property adjustment – Where respondent asserts that the event is relevant to property adjustment – Where the respondent asserts the applicant may claim ill health as a result of the events related to the claim in defamation – Where the Court is not concerned with the cause of any ill health but rather the diagnosis, prognosis and financial consequences of any diagnosis – Where the respondent asserts that the defamation claim may be relevant to the assessment of the pool available for division – Where the claim if successful would involve one party paying the other the impact on the asset pool for division is not material – Finding that the non-federal claim is distinct and severable from the federal matter – Where accrued jurisdiction does not exist – Application to join a claim for defamation is refused. FAMILY LAW – Costs – Where a costs application follows a hearing in relation to a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Where a contested final property hearing is anticipated – Where the parties agree the determination of the costs application should wait until the resolution of substantive proceedings.
Legislation:	Family Law Act 1975 (Cth) ss 90RD, 90SE, 90SF, 90SG, 90SM Limitation Act 1969 (NSW) ss 14B, 56A
Cases cited:	Caughey & Peckham (No 2) [2022] FedCFamC1F 670 F Firm & Ruane (2014) 52 Fam LR 230; [2014] FamCAFC 189 Noll and Noll (2013) FLC 93-529; [2014] FamCAFC 24 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 Re Wakim (1999) 198 CLR 511; [1999] HCA 27 Valceski and Valceski (2007) FLC 93-312; [2007] NSWSC 440 Warby