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& Warby (2002) FLC 93-091; [2001] FamCA 1469
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 22 June 2023 Place: Sydney Counsel for the Applicant: Mr Givney with Mr Senior Solicitor for the Applicant: Apex Legal Counsel for the Respondent: Mr Sullivan KC with Mr Livingstone Solicitor for the Respondent: Holmes Donnelly & Co ORDERS
SYC 3782 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CAUGHEY
Applicant
AND: MS PECKHAM
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
27 JULY 2023
THE COURT ORDERS THAT:
1.The costs application filed 11 October 2022 is adjourned to a date to be fixed after the making of final orders.
2.The respondent’s application to join a claim for defamation against the applicant is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
There were two matters before the court – but by agreement the parties accepted that determination of the application for costs made by Ms Caughey should appropriately await resolution of the substantive proceedings and accordingly these reasons deal only with the issue of whether this Court has accrued jurisdiction to hear and determine a foreshadowed claim by Mr Peckham that he has been defamed by Ms Caughey.
On 13 September 2022 following contested proceedings I made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties were in a de facto relationship for the purposes of property adjustment under s 90SM of the Act.
On 16 November 2022 Ms Caughey filed an Amended Initiating Application seeking property adjustment orders under s 90SM of the Act. The respondent, by his Amended Response to Initiating Application filed 9 December 2022, pleads a cause of action in defamation against the applicant. Accordingly, the respondent de facto husband seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise accrued jurisdiction to hear and determine those proceedings simultaneously with property proceedings as between the parties.
On 17 February 2023 I directed that the parties file and serve written submissions in relation to the exercise of accrued jurisdiction to hear and determine defamation proceedings as between the parties. The accrued jurisdiction issue was subsequently listed for interim hearing for further oral argument on 22 June 2023.
The parties accepted that it was appropriate that this issue be determined as a preliminary issue since the evidence to be filed would depend on the scope of the relief.
THE LAW
The Court has jurisdiction to hear and determine the federal matter which arises from the Family Law Act 1975.
The extent to which the Court has jurisdiction (in any individual case) to hear and determine non-Federal matters has been the subject of extensive judicial opinion.
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 in the judgement of his Honour Justice Barwick the following appears at 475:
It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place, attractive federal jurisdiction. It extends, in my opinion, to the whole matter between the parties. This accrued jurisdiction carries with it, the authority to make such remedial orders, as are necessary, or convenient, for, or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may in force rights which derive from a non-Federal source…
Subsequently, in Warby& Warby (2002) FLC 93-091 the Full Court of the Family Court of Australia, noting the (theoretical) existence of accrued jurisdiction, commented at [79] that“[t]he factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction”.
To the extent that the jurisprudence uses the expression “matter” it is important to understand that “matter” does not mean a proceeding but the whole of the justiciable controversy between the parties.
In F Firm & Ruane (2014) 52 Fam LR 230 the Full Court referred to the judgment of Gummow and Hayne JJ in Re Wakim (1999) 198 CLR 511 (“Re Wakim”) in which their Honours noted at [140]:
What is a single controversy “depends on what the parties have done the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter, if different claims arise out of “common transactions and facts”, or a “common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of thirdparty proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely claims, which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.
(Footnotes omitted).
As will be seen, Mr Peckham’s pleadings concerning alleged publication(s) of the alleged defamatory statement(s) do not contend publication outside NSW. In NSW an action on a cause of action for defamation is subject to a limitation period. Section 14B of the Limitation Act 1969 (NSW) (“Limitation Act”) provides that such action is not maintainable if brought after the end of a limitation period of one year, running from the date of publication of the matter complained of.
Section 56A of the Limitation Act, deals with extensions of time and provides as follows:
(1)A person claiming to have a cause of action for defamation apply to the court for an order extending the limitation period for the cause of action.
(2)A court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.
(3) In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the plaintiff’s delay, and
(b) if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—
(i) the day on which the facts became known to the plaintiff, and
(ii)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action, and
(c) the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.
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], and
e.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).
Particulars
By 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 damages
The 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).
Put simply, the respondent says that on 4 January 2019 the applicant said that she had seen the respondent in bed with his daughter. It is said she repeated this on unspecified subsequent occasions and this constitutes publication.
It is in this context it is important to understand how the two matters - a claim for defamation and a claim for property adjustment - are said to be a single justiciable controversy arising from a common substratum of facts. I accept that determining the scope of the matter is, as Gummow J observed, a circumstance in which “difficult questions of fact and degree” will arise and “about which reasonable minds may well differ”: Re Wakim at 588 [149].
On 13 September 2022, following a contested hearing, I made an order that pursuant to s 90RD of the Act this Court declares that the parties were in a de facto relationship for a period of not less than two years
The factual findings upon which that declaration was grounded, were contained in my reasons for judgment, and they included a finding that the parties had commenced their de facto relationship in 2016 and a finding that relationship between the parties broke down on 4 January 2019. In order to make a finding about the date of separation or breakdown of the de facto relationship it was necessary for me to hear evidence about the events of 4 January 2019.
There was no appeal against the declaration and accordingly when I come to consider the application for property adjustment, it will be in the context of a relationship which commenced in 2016 and concluded on 4 January 2019. I will not need to revisit this finding.
For completeness, I wrote in Caughey & Peckham (No 2) [2022] FedCFamC1F 670:
132.The respondent asked that I make a finding about what occurred on 4 January 2019. The applicant contended that a finding was unnecessary. The agreed facts permit me to conclude that the applicant walked in and unexpectedly found the respondent with a woman. This precipitated the parties’ continued estrangement and resulted in their eventual separation.
133.The respondent says a finding is necessary because it goes to the credit of the applicant. Given the contents of exhibits C and D, I would not make a credit finding adverse to the applicant about the events of 4 January 2019, and I decline to otherwise make a finding about what occurred on that day as it is unnecessary in the assessment of the evidence concerning the breakdown of a relationship or otherwise.
The respondent submitted that “whether or not the alleged incest [the respondent’s expression] occurred …is plainly relevant to the defamation proceedings”. That much is true. The question for this Court is whether it is relevant to or sufficiently connected to the property proceedings so as to be part of the same matter.
The respondent submitted that since the applicant regarded the events of 4 January 2019 as relevant to the previous proceedings, then she cannot now be heard to suggest that it does not form part of the common substratum of facts.
I accept the submission on behalf of the applicant that, to the extent that she raised the events of 4 January 2019 previously, by the time of the threshold hearing before me she had consented to an order sealing the affidavit in which the allegation had been made. The allegation formed no part of her case at the threshold hearing. To the extent that it was raised at the threshold hearing it was raised in the respondent’s case where I was asked (and declined) to make a finding about the veracity of the allegation. All of that being the case, there is no evidence that the applicant seeks to rely on those circumstances in support of her present application for property adjustment, nor does it appear, based on her conduct to date, that she is seeking a finding in respect of that allegation as part of her property adjustment proceedings, nor indeed, could she properly do so.
I accept that there is a connection between the two claims in so far as:
(a)They are between the same parties;
(b)They arise out of events on the date of the parties’ separation.
The focus of the court’s inquiry in the substantive property hearing will be on the contributions of the parties and their respective current and future financial positions. In recognition of this, the parties made oral submissions to me about how in the context of that inquiry a defamation action may be considered part of a single justiciable controversy.
Counsel who appeared on behalf of the respondent identified two potential ways in which the matters may be linked:
(1)Counsel said that the wife was claiming psychiatric injury keeping her out of the workforce, or the need for psychiatric treatment as a consequence of the events, which led to the separation, and so these are related to the alleged defamation; and
(2)Counsel submitted that if an award of damages was made then this may have an impact on the pool of assets available for adjustment
I will deal with both of those submissions in turn but do so in a context where the information available to me about the further conduct of the proceedings is limited to that which can be drawn from the pleadings and my findings in the previous declaration proceedings.
This limitation creates practical difficulties. As the Supreme Court of New South Wales recognised in Valceski and Valceski (2007) FLC 93-312: “close attention to the pleadings and the factual basis of each claim” will assist to identify whether there is a single justiciable controversy or not.
The applicant’s health
The respondent asserted that the events of 4 January 2019 were relevant to adjustment under sections, s 90SM(4)(d) and (e), spouse maintenance under ss 90SE and 90SF(3) and urgent spouse maintenance under section 90SG. I do not agree. The applicant does not seek spouse maintenance under s 90E or urgent spouse maintenance under s 90SG of the Act. Section 90SM(4)(d) and (e) of the Act are concerned with the assessment of financial and non‑financial contributions. I will discuss whether there is a sufficient connection with the matters considered in s 90SF(3) of the Act below.
The applicant is sixty two years of age and describes her occupation, in her amended application, as “home duties”. During the latter period of the parties’ relationship I found that the applicant had undertaken some paid work for the respondent. Until May 2019 the applicant received $1,000 from the respondent although I found that it was common ground at least in the period March to May 2019 that there was no work undertaken by the applicant.
In the written submissions on behalf of the respondent, the respondent sets out a paragraph from the applicant’s affidavit filed 13 June 2019:
34. In January 2019 I found the Respondent in bed with a female Person who I do not wish to name. I was so shocked that I suffered Post Traumatic Stress and have been treated by [Dr JJ] since I was referred to him specifically to deal with this issue, by my psychologist. In January 2019, I moved to my mother’s home in [City KK] as I could not be in the same home as the Respondent…
The applicant has consulted a psychologist whose notes were in evidence before me at the earlier threshold hearing. The respondent, in his list of documents relied upon at this hearing asked that I consider them in the context of this application as well. Those notes did not deal with earning capacity or impact of health on earning capacity.
I accept that it may be some part of the applicant’s case at the hearing that she either suffers from and/or has suffered ill health and specifically from post-traumatic stress, depending upon the evidence before the court, at that time, the court would be interested in diagnosis, prognosis, and the financial consequences of any diagnosis, rather than causation.
Impact on the asset pool
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.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 27 July 2023
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