Clayton v Bant

[2020] HCATrans 137

[2020] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B21 of 2020

B e t w e e n -

CLAYTON

Appellant

and

BANT

Respondent

KIEFEL CJ
BELL J
GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 9 SEPTEMBER 2020, AT 10.02 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MS A‑M. McDIARMID in Brisbane and MS S.F. GAUSSEN in Sydney for the appellant.  (instructed by Ferguson Legal Solicitors)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR M.W. TODD for the respondent.  (instructed by Watts McCray Lawyers)

KIEFEL CJ:   The record will show that Justice Edelman and I are sitting physically in Brisbane, Justices Bell and Gageler in Sydney and Justice Gordon in Melbourne and that the proceedings are being hosted through Courtroom 2 in Canberra.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  The Court should have our outline of argument.

KIEFEL CJ:   Yes. 

MR JACKSON:   If your Honours are happy for me to proceed with the argument in substance I will do so.

KIEFEL CJ:   Yes, Mr Jackson.

MR JACKSON:   As the Court will have seen – and I am referring, in particular, to paragraph 2 of our appellant submissions in‑chief – the issue in the proceedings is whether, as the Full Court held, divorce in the United Arab Emirates, in particular in Dubai, prevented the appellant from persisting with applications for property settlement and spousal maintenance in the Family Court of Australia and the bases underlying the Full Court’s reasons being res judicata or, perhaps a version of it, or Anshun, or as it is called in the judgment, the “Henderson extension”, form of estoppel.

It may be convenient, your Honours, if first I indicate where the core of the Full Court’s reasons is to be seen and that, if I could go to the core appeal book, is at page 66, paragraphs 26 to 30 in respect of the claim for property settlement and, on the next page, page 67, at paragraphs 31 to 38 in respect of spousal maintenance.

Your Honours, if I can come for a moment to the base for the background facts.  They may be stated shortly.  They appear in submissions in‑chief, in paragraphs 1 to 15 and may I mention them in summary form.  They are these.  The appellant and the respondent married in Dubai on 15 July 2007.  The husband is a national of the UAE, the wife Australian.  The husband lives in the UAE.  The parties separated in July 2013 and as the primary judge said in paragraph 7 of her Honour’s reasons, which is in page 10 of the core appeal book, they had lived throughout their relationship between the UAE and Australia. 

Further, your Honours, the parties owned property as set out in paragraph 3 of our submissions in‑chief and then, the husband and wife instituted divorce proceedings in Dubai and Australia respectively.  The appellant also instituted proceedings for property settlement and spousal maintenance in Australia.  The respondent in Dubai had sought a waiver or extinguishment of the appellant’s right – a term to which I will come in a moment. 

The Dubai court was the earlier court to give judgment in the matter, and the judgment of the Dubai court may be seen in the book of further materials at pages 9 to 13.  May I take your Honours to that for just a moment, to indicate what are the central parts of it for immediate purposes.  Your Honours will see, if one goes to page 11 of that document, at about line 40:

The two arbitrators exerted great effort with him in order to reconcile them, but this did not happen.  And whereas the plaintiff did not comment on the arbitrators report –

and so on.  I will not read out the rest of that paragraph, but you can see that the effect of it was that there was an approval of it and a ruling in favour of a payable amount of 100,000 dirham ‑ which relates to dowry and I will come to that in just a moment – had to be paid by us to the husband.  Then your Honours, if one goes to page 12, lines 19 to 35, it was said there that:

As for his request to drop off her deferred dowry and her alimony, this subject is untimely.  On top of that, the other party did not demand them and hence there is no need to make reference to them in the text.

We were obliged to pay the expenses.  You will see the actual order, I think, in the paragraph under the heading “And for these reasons”.  Finally, your Honours, page 13, there is a ruling, which you will see under the heading “The Ruling”, which is to the effect that I have indicated earlier.

Your Honours, could I say that the effect of the judgment in Dubai was summarised in the evidence of the respondent’s expert witness, Ms Barton, again in the book of further materials at page 16.  At the bottom of the page – the whole report is not there, but at paragraphs 74 and 75 she was asked:

What issues does the decision determine?

She said that - your Honours will see it there, that she:

is to replay the Dowry of 100,000/- Dirhams –

and it deals with costs and required us to pay the costs.  Now, the references to “dowry”, your Honour, acquire content from the previous page of her report and at paragraph 11 on that page, your Honours will see evidence about the position in Dubai.  You will see that in the second line:

Marriage is a formal contract, with documented provisions including a dowry that the husband must pay his wife on marriage, and which will often include a deferred dowry that the husband must pay to his wife on divorce or on her demand. 

Your Honours will see the remainder of the paragraph.

KIEFEL CJ:   Mr Jackson, just out of curiosity, how does the order that the wife pay dowry then come about?

MR JACKSON:   It came about, your Honour, essentially, it would seem, because she had come to Australia from Dubai for a holiday with the child of the marriage and then would not go back and because of that she is treated as the party at, if I could use the term perhaps a little loosely, fault in the matter, giving rise to the order that the dowry be paid back.

Your Honours, apart from the provisions as to dowry to which I have just referred, there was no order made in the Dubai proceedings in respect of property of the marriage, or parties to the marriage, by whomsoever owned.  That was for a combination of two reasons.  One reason was that the Dubai court did not have jurisdiction with respect to any property located outside the United Arab Emirates.  This is a matter which had been agreed between the experts for the parties and your Honours will see that in the book of further materials at page 70 between lines 20 and 22.  Your Honours will see particularly question 4 about line 12, it was agreed there was:

no jurisdiction with respect to property outside the territorial jurisdiction of the Emirate.

But in addition, even in relation to property in the UAE, the only right to seek property was that contained in Article 62.1 of a law of the UAE, which I will describe, for brevity, as a personal status law, and you will see that at page 37 of the further materials.  Your Honours will see the law at Article 62, the second half of the page.  There is a title “Title Five Effects of Marriage” and there, under the further heading, “General Provisions”, your Honours will see the terms set out there:

A woman having reached the age of full capacity is free to dispose of her property and the husband may not, without her consent, dispose thereof; each one of them has independent financial assets.  If one of the two participates with the other in the development of property, building a dwelling place or the like, he may claim from the latter his share therein upon divorce or death.

Now, your Honours, as can be seen from the terms of Article 62.1, it is only in the circumstances referred to in the second sentence of Article 62.1 that there can be any claim to a share.  The primary judge – I am about to refer to paragraph 130 of her Honour’s reasons at page 34 of the core appeal book - accepted the limited circumstances in which there could be accepted that there were the limited circumstances to which I have referred in a claim by a wife against a husband on the rules.

Could I refer your Honours to paragraph 130 and, your Honours, I will not read it out of course, but could I ask your Honours to read it, and also your Honours to read at page 45 of her Honours reasons, paragraphs 192 to 194.  Our learned friend’s submissions – written submissions, your Honours, at paragraphs 17 and 18, seek to say that Article 62.1 is not dissimilar to section 79 of the Family Law Act.  But it should be borne in mind, if one looks at their submission in paragraph 18, the dissimilarity in 18(a) appears to be simply a reference to the fact that in the opening words of the provision, and also in (a) itself, there are two negatives.  The similarity is said to be you cannot do this or you cannot do that.

And when one looks at 18(b) and 18(c), your Honours, the basis and the regime referred to there deal only with property in Dubai and deal only with cases in which there has been contribution by the claiming party to the property in Dubai.  And, your Honours, if one goes to our learned friend’s outline of oral submissions for today’s purposes, and you go to paragraph two, it says:

The significant common feature of the [two] proceedings . . . was properly held below to be that both concerned the financial consequences to the parties arising from the breakdown of the marriage ‑

Your Honours, in relation to – one needs to qualify that, of course ‑ by saying that the financial consequences of the parties arising from the breakdown of the marriage, so far as affected or potentially affected by the Dubai order was simply in relation to whatever property there might be in Dubai and property of the kind where there had been a contribution referred to in Article 62.1.

Your Honours, could I go then to the reasoning of the Full Court?  After referring to the passages of the primary judge’s reasons – to which I referred a moment ago – the Full Court, in paragraph 13, at page 64 of the core appeal book, went on to set out the basis for its views and setting out there the thrust of the challenge.  Your Honours, could we just say that then at paragraphs 13 and 15, one sees recited the argument on behalf of the respondent. 

Then when one goes to paragraphs 18 to 27, pages 64 to 66, the underlying cause of action is identified as being the “financial consequence” from the breakdown of the marriage relationship.  The implication by the Full Court was that this was – the implication by the Full Court that this was the underlying cause of action in both jurisdictions was not, in fact, what the primary judge found. 

If I could take your Honours to our written submissions in‑chief in paragraphs 35 through to 39.  Your Honours will see that we recite the Full Court’s proposition at paragraph 35, but then we refer to – your Honours will see the footnote on the page – what the primary judge said at paragraph 179.  For the claim to be made out it must be established that the decision relied on – that is the Dubai decree – had a number of features, one of which was (c):

the court or tribunal had jurisdiction over the parties and the subject matter –

Your Honours will see the remainder of the matters there set out.  Your Honours, the Full Court had – I refer your Honours to paragraphs 37 and 38.  But can I go on to say if one looks at what the primary judge actually did - you will see that referred to in paragraph 39 of our submissions in‑chief - in paragraphs 191 to 194 of her judgment to which I referred earlier, you will see, in particular, paragraph 193:

I accept the submission that it is unnecessary that the legal regime for divorce in Dubai be identical to the legal regime for divorce in Australia; what is necessary is that the proceedings in Dubai dealt with the same subject matter.  I consider that the causes of action determined by the Dubai proceedings are the divorce of the parties in Dubai and the financial consequences associated with divorce according to the law administered in Dubai – which I consider to be limited to the issue of the deferred dowry and alimony -

that being because of the two limitations to which I have referred earlier.  You will see that at paragraph 194 of her Honour’s reasons as well.

Your Honours, if one goes to the Full Court’s reasons at paragraph 20 at page 65 of the core appeal book, the references to Henry to which I will come back, and Caddy v Miller appear to be references which further broaden the concept of cause of action and, in our submission, take it out of context.  We refer to that in our written submissions in‑chief in paragraph 43.

Your Honours, the respondent’s argument turns in relation to res judicata on treating the cause of action involved as being the same as or, as is said by the Full Court at paragraph 25, “sufficiently analogous”.  That gives cause of action a very broad operation indeed.  It has the effect that any proceeding which relates to financial consequences of breakdown of marriage is capable of giving rise to a res judicata in relation to all such consequences, and if one looks at paragraphs 27 and 28 of the Full Court’s reasons at page 66 of the core appeal book the problem with the view taken there is that the first part of Article 62.1 says nothing about settlement of property.

The second part, however, says no more than that you could get a share of property in Dubai that, to put it briefly, you helped build or construct.  That, in our submission ‑ or that approach, your Honours, in our submission, is not res judicata but rather an expanded version and we would submit that the concept of res judicata is a relatively precise concept.  The nature of it can be seen from the decisions to which we have referred in our reply in paragraph 3.  You will see there the reference to the well‑known passage, if I can put it that way, from Blair v Curran, but the passage should really start just a little bit earlier because if one goes to the joint book of authorities at page 92, and it is page 532 of the case itself, his Honour was there drawing a distinction between res judicata and issue estoppel and he said at the top of page 532:

The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence –

et cetera.  Your Honours, in circumstances where the Dubai court in fact made no decision dealing with property, except in relation to return of the initial dowry, has no jurisdiction to make an order dealing with property outside the UAE and could only have made an order declaring a form of joint ownership in respect of property in the UAE in the circumstances as referred to in Article 62.1.  It is very difficult to see, in our submission, how it could be said that the very right or cause of action had passed to judgment in the Dubai proceedings.

And could I refer also, your Honours, to what was said in the joint reasons of Chief Justice Gibbs and Justices Mason and Heydon on res judicata in a discussion in the Anshun Case, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at page 597. That is at page 137 of the authorities book. And you will see, your Honours, two‑thirds of the way down the page, their Honours say:

The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.  Here the indemnity cause of action was not litigated in the Soterales proceedings.  The judgment in that case did not deal with that cause of action, though it evidently proceeded on the assumption that the Authority was not entitled to an indemnity.

The language of that provision suggests that a res judicata would not arise in the present case.  And, more recently, your Honours, in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, which is at relevantly page 187 of the book, at page 516 emphasis is placed on the question of merger in the joint reasons. You will see, your Honours, in paragraph 20, halfway down the paragraph:

The rendering of a final judgment in that way “quells” the controversy between those persons.  The rights and obligations in controversy, as between those persons, cease to have an independent existence:  they “merge” in that final judgment.  That merger has –

Your Honours will see the reference then to res judicata.  Could I refer your Honours to our reply in paragraph 6.  And your Honours will see in paragraph 6…..in a short way the submission that the Dubai court’s decision did not determine the claims made by the appellant, nor did it have jurisdiction to do so, nor did it purport to do so.  And as is apparent from Ms Barton’s affidavit, which is at page 16 of the joint book and paragraph 75, to which I have already taken your Honours, the bottom of that page, the decision in financial terms deals only with dowry and costs.

EDELMAN J:   Mr Jackson, is the question one which effectively is to characterise the nature of the controversy at the right level of generality, so that issues such as the jurisdiction of a court will be perhaps a strong indicator of the proper characterisation of the controversy?

MR JACKSON:   Your Honour, I would answer that yes, of course.  It is a question of its application to particular cases, and what one sees or what one should see, in our submission, is that you have a situation where you are looking simply to the proceeding in one court that has already been decided and what other proceedings that are sought to be decided in the second case.

In relation to the first of those, one inevitably is looking to see what is the body that is deciding it, what is its jurisdiction to decide and the controversy that there is in relation to that matter ‑ the controversy, I am sorry, in relation to that court is one that necessarily turns on what the court does or is capable to do.

Your Honours will – although I think it is not in our materials – can see that in one of the early cases in this court, O’Keefe v Williams, where a question was whether the Land Court of New South Wales, by its decision, was able to effect a declaration of ownership of Crown land and both had to…..of Chief Justice Griffith.  Justice Barton agreed and also Justice Isaacs, both said no, it had no jurisdiction to do so.  Your Honour, I have gone off to a slight…..in that. 

What I was going to say was that, if you had been looking to see what is the procedure, what is the proceeding that is sought to be estopped, you need to look to see what it is about in the first place, what is the property if we are talking about property, what is the property that is involved, what to a lesser degree perhaps are the types of orders that can be made?  But at the same time you cannot treat it as something that is bereft of a factual connection.  That is what I would seek to say in relation to what your Honour was putting to me.  If one goes to the very broad approach that was taken by the Full Court here, it does have the effect that any order made by a court elsewhere dealing with any property of the parties of a former marriage precludes proceedings in Australia dealing with all their property.

Your Honours, could we say a little more on res judicata and related matters.  We seek to do so because our learned friend’s submissions do appear to make it a rather broader concept than in our submission it is.  I referred earlier to Tomlinson, your Honours. May I go back there for just a moment. That is at page 387, I have referred to, in paragraph 20. One sees after paragraph 20, a discussion at paragraph 21 of estoppel in relation to judicial determinations. Then, at paragraph 22 there is a reference to there being three forms of estoppel and, your Honours, the first, which is referred to in the third line of the paragraph, is described as “cause of action estoppel”. The second, halfway through the paragraph, is mostly called “issue estoppel”, and the third form is “Anshun estoppel”.

Now, your Honours, if one looks at cause of action estoppel, the first of them, it appears - I am looking at this fourth and fifth lines of the paragraph:

it operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment.  It is largely redundant –

et cetera, but there is the requirement that it be determined by the judgment.  The Dubai decision does not do that. 

Your Honours, our learned friend’s written submissions speak of cause of action estoppel and it appears to be used, and I do not say this by way of adverse criticism, as if it were the same as res judicata.  I am referring to paragraphs 2, 6, 8, and 9 of their written submissions.  But the additional ground relied on appears to be Anshun estoppel, and that is referred to, your Honours, in paragraphs 27, 30, and 37g. 

Your Honours, could I just say this, so far as the case turns on Anshun estoppel, the requirements for that doctrine were also discussed in Tomlinson in paragraph 22.  Your Honours will see the test set out at the top of page 518 of the Commonwealth Law Reports, the bottom of page 188 to the top of page 189 of the Court’s materials, where it says:

The third form of estoppel is now most often referred to as “Anshun estoppel” . . . That third form of estoppel is an extension of the first and of the second . . . operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.

We have referred your Honours to that test in our written submissions in‑chief at paragraph 32 and in paragraph 7 of the reply, but your Honours it would seem, with respect, bizarre to say that it was unreasonable for the appellant not to have raised her property claims in the Dubai proceeding when the Dubai court could not have adjudicated upon them.

Could we invite the Court also to note the Full Court’s reference to Henderson v Henderson, which you will see in the core appeal book at page 66 at paragraph 24.  The case, if your Honours want to see it in full, is at page 115 of the materials.  If one goes to what is said at paragraph 24, commencing at the bottom of page 65:

where a party who might be expected –

to take a step:

to raise a claim –

does not, and there your Honours will see what is in Henderson v Henderson is this.  First of all, it refers to the case in the opening words:

…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction ‑

Which does seem to involve a question of jurisdiction.  And then your Honours will see a few lines further down a reference to:

in respect of matter which might have been brought forward as part of the subject in contest ‑

And then the last couple of lines:

which properly belonged to the subject of litigation ‑

We refer to those matters, your Honours, in paragraph 34 of our submissions in‑chief.  Your Honours, in reality, we would submit, that so far as the Anshun Case is concerned, Henderson is rather against the other side’s case.

Could I mention, your Honours, two other points which are referred to in the written submissions?  The first is that which your Honours would see in our submissions in‑chief, at paragraphs 35 to 39.  Your Honours will see ‑ I have taken your Honours to this, I will not…..again ‑ the first point is that which we make in paragraphs 35 to 39 and it concerns the passage from the primary judge which we quote at page 35 ‑ paragraph 35.  And we have referred your Honours already to paragraph 193 of the judge’s judgment.

The second point, your Honours, concerns the Full Court’s reference to Henry v Henry, and you will see that your Honours quoted in the Full Court’s reasons at paragraph 20 at page 65. The actual case is at pages 125 to 126 of…..You will see the reference in Henry v Henry, which was a case which was dealing with an application for a stay on the ground…..on convenience.  There were concurrent divorce proceedings by the wife in Monaco and the husband in Australia.

Your Honours will see – I should actually…..if one goes to page 124 of the - about point 6 in the joint reasons it is said:

There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings - 

The passage from Henry v Henry which was relied on by the Full Court, paragraph 20, is one which has to be read with some qualifications. We have set out the qualifications in our written submissions in‑chief, paragraphs 40 to 42. Your Honours will see that some reliance appeared to be placed by the Full Court on the last sentence of the passage quoted at paragraph 20.

Could we just say, your Honours, that that observation is qualified by the word…..if it went further the requirement that there be some underlying…..respect to the marital relations would often not be set aside.  The passages from Henry v Henry which follow that quoted by the Full Court do not really support the use made of it by the Full Court.

Your Honours will see that when one goes to the judgment in Henry v Henry itself, if one goes to page 592, about point 8 on the page, there are references to the considerations which are to be taken into account deciding whether to stay.  Your Honours will see about point 8:

As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.

…..goes on from that, “Other considerations”, and your Honours will see those….end of the continuing paragraph on page…..  Your Honours, the present case, to put it shortly, was one where we would submit that there was…..stay of proceeding, settlement property without consideration of the matters to which we have referred in paragraph 41 of our submissions in‑chief and…..the reference to the re‑exercise of the discretion by the Full Court in paragraph 44 of its reasons where it does not deal with any detail of the matter.  Your Honours, could I just say ‑ ‑ ‑

EDELMAN J:   Mr Jackson, is there an ancillary point or an anterior point here, which is really the same as the point that you make about res judicata which is, before one turns to the question of study you need to ask what the parties’ controversy is, properly characterised?

MR JACKSON:   Yes.  Your Honour, what I was just about to say ‑ ‑ ‑

KIEFEL CJ:   Mr Jackson, we are having a little bit of difficulty hearing you.

MR JACKSON:   I am sorry, your Honour.  Could I just say that - what I was just about to say was if you go to the passage from Henry v Henry quoted by the Full Court at paragraph 20, and to the last sentence of the passage quoted…..hesitate ever to say here that there was, in a sense…..but it does, with respect, bear that aspect because…..proposition are to be applied to every case where a settlement of parties’ property is involved, no doubt germane to the case with which the court was there dealing but to be used as a foundation stone for arguments…..the Full Court just goes ‑ ‑ ‑

KIEFEL CJ:   Mr Jackson, I am sorry, your voice is cutting in and out.  I do not know what the problem is.  It is a little hard to follow what you are saying.  I think we might just have to adjourn shortly while we see what is wrong with the connection.

AT 10.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.23 AM:

KIEFEL CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honour.  Your Honour, may I go back just a little to the point at which I started dealing with the subject I was dealing with at the time when the Court adjourned.  I was seeking to refer to what was said by the Full Court in paragraph 20 of its reasons, at page 65 of the core appeal book, where there was reference to Henry v Henry.  Could I just say a couple of things about it? 

One is that we referred your Honours to page 590 of Henry which earlier in the passage was quoted at about point 6 in the joint reasons.  That was where it was noted by the Court that there were more compelling reasons to grant a stay of local proceedings if there were proceedings in another country with the words added “which has jurisdiction to entertain those proceedings”.  It is page 124 of the joint book, your Honours. 

We would also submit that the passage from Henry v Henry relied on by the Full Court should be read with some qualifications. We have set out those qualifications in our submissions in‑chief at paragraphs 40 to and including 42. Could I also refer to paragraphs 44 to 48?

Your Honours, we would submit – if I could say the last thing I wanted to say in dealing with the question of property settlement is that it is not correct, if one goes to our learned friend’s written submissions at paragraph 25, to suggest that we persist in searching for a precise analogue to or a detailed resemblance of section 79.  Rather, we simply seek to apply the test in the decisions on res judicata and Anshun estoppel.  Talking of

paragraphs 25a and 25b of our learned friend’s written submissions, I hope I will not be accused of a new plagiarism if we say that our submissions may be bland, but our submission was correct.

Can I move then on to the question of alimony or spousal maintenance.  The primary judge dealt with this issue at page 46 of the core appeal book, paragraph 196.  She thought that a concept similar to spousal maintenance under the Act existed and she went on to say:

had the Dubai divorce and Judgment dealt with this issue then . . . the Applicant’s right to seek the payment of spousal maintenance by the Respondent would have been barred.  However, I consider that the Dubai divorce and Judgment did not in fact deal with that issue at all but, rather, described it as “untimely”.

The Full Court dealt with issue in paragraphs 31 to 38.  Your Honours will see there that they arrive at the conclusion in paragraphs 39 and 40 and the basis for the decision was as set out in paragraph 37.  In our submission, the true situation is as set out in our written submissions in paragraphs 54 and 55.  Our submission is that the usage of the term “untimely” suggests that the issue of alimony was left to be decided at some future time if there was a need to do so. 

Your Honours, we would say there was nothing to suggest that the Dubai court was taking the view that the future claim for alimony might not be made in that court.  Your Honours, in our submission, if the Court is in our favour in the matter, the orders we seek are those in Part VII of those written submissions, and they are set out at page 11 of those submissions.  Your Honours, subject to that we rely on our written submissions and achieve that by way of ‑ ‑ ‑

KIEFEL CJ:   Yes, thank you, Mr Jackson.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  As your Honours have seen there is a deal of common ground between us as to the critical issue.  In paragraph 1 of our outline we express it slightly differently, but we accept that the substance is in line with the principle to be seen from the authorities in question as between these parties.  It is an application of the particular facts which is in question. 

There is no doubt that there are major…..differences between the incidents and mutual…..obligation and the possibility of future claims or adjustments as between spouses governed by the law of Dubai and spouses governed by the law of Australia.  We accept that that is in itself sufficient to create the kind of tension that…..basal requirement of cause of action estoppel or res judicata in the strict sense, even before one gets to any Henderson extension.

It is our submission that…..discards, as principle and authority clearly shows one does discard, the notion of giving effect to every substantive difference by declining to find sufficient identity between the foreign decision and the outcome sought in the Australian proceedings.  Then, in our submission, it is simply a question of making the evaluative assessment in light of relevant considerations. 

Relevantly, there are concurrent findings with respect to the evaluative assessment in question in the court below as to some, but not all, of the aspects of the controversy before…..court.  Can I remind you of a passage to which you have been already taken in detail to be found in the core appeal book at 45 in paragraph 193 of the first instance…..  Her Honour there held:

that the causes of action determined –

I emphasise the word “determined”:

by the Dubai proceedings are the divorce . . . and the financial consequences associated with divorce -

Then that is glossed in a way that excluded what I will call property adjustment by the phrase that her Honour adds:

which I consider to be limited to the issue of the deferred dowry and alimony.

In our submission, there is a finding – not complete for our purposes but contributing towards our success with respect to the application of the relevant doctrines of estoppel – to render the Australian proceedings amenable to a stay by reason of the estoppel.  When one turns then to pages 67 and 68 in the core appeal book, in the Full Court there is further explanation and holding, concurrently with…..on that subject matter.  In paragraph 36, their Honours note:

The husband wished to be absolved from paying the deferred dowry and he sought the wife’s rights to alimony to be extinguished.

We would venture, with respect, that there is no great difficulty or conceptual gap or leap involved in seeing a sufficient validity for the purpose of res judicata or cause of action estoppel between foreign jurisdictions treating alimony as sufficiently analogous with limits.   

Their Honours then went on in paragraph 36 to note the failure by our client in Dubai on…..counts, but to note surely correctly, given the necessary juristic nature of a determination, that success or failure was immaterial, but rather, as their Honours put it:

that the Dubai law provided a mechanism for the determination of alimony; it was engaged . . . determined as being “untimely” because the wife had not pressed her claim.

Then in 37 an answer is given to the…..recently put by our friend in relation to that matter still being open in Dubai.  Their Honours note in 37 that:

While the husband’s plaint –

that is, the claim to have alimony dropped off, et cetera:

the application was available to the wife and the issue was finally heard and determined.  The wife cannot bring a claim for spouse maintenance by operation of the “Henderson extension”.

That skips over a couple of steps of reasoning which are important in the way in which their Honours have approached it, namely that the claim for spouse maintenance or alimony was finally disposed of in Dubai.  It would have a different identity to a claim for spouse maintenance in Australia, and therefore it cannot now be based in Australia.

It is, in our submission, in light of the way in which the evidence from our – we think without contest – in the courts below, understandable that that is the way in which the matter was seen recurrently by the courts below, if one goes, by way of example, in the appellant’s book of further materials to page 72, one will see an agreement between the experts recorded at about line 24, namely that:

The Dubai court had jurisdiction over the divorce . . . and pronounced on the concomitant financial obligations relating to that divorce being dower (mahr); maintenance during the idda period –

Now, that is not…..a relatively short period:

and any compensation for harm suffered –

to which your Honours will have seen some reference made.  Then at page 78, with respect to the question of dowry, there is a difference recorded between the experts starting at about line 42.  Our learned friend, with respect, understandably referred to the 100,000 dirham as being in relation to dowry.  Rather, it would appear that the figure is by no means a mere coincidence.  Whether it is a reversal of dowry, it is perhaps a point of…..only.  Without reading it, we draw to attention the way the experts would address the matter differently, on page 78 in that passage.

On pages 79 and 80, one sees in answer to an explanation of common ground and differences between the experts, numbers 38 and 39, so starting at about line 35 and going over to the top of page 80.  One again sees the reference to the questions of fault and compensation were all fairly encompassed in a final, binding determination in Dubai.

It is for those reasons, in our submission, that the trial judge was partly correct, and certainly in principle was taking the correct approach in paragraph 193, by characterising the question at hand at the level of generality shown by the phrase “the financial consequences associated with divorce according to the law administered in Dubai”.  Now, one needs to observe that we…..in the Full Court, particularly in the Full Court, to extend that beyond the dowry and…..maintenance to all women…..all alimony and to property adjustment. 

It is for those reasons, in our submission, that, as my friend…..properly…..the Full Court in the core appeal book at page 67, in their paragraph 36, the passage to which I have taken your Honours earlier, extend, in our submission, correctly, the principle that…..property by the trial judge was only incompletely applied.

That then leads, obviously, to the question whether the very considerable difference, partly founded, as my friend correctly points out, on matters of jurisdiction but also largely turning on the substantive law concerning the possible financial consequences of divorce in Dubai, whether that is enough to prevent the application of certainly res judicata in the strict sense, if there be a broader sense of cause of action estoppel, and then finally Henderson v Henderson estoppel. 

The starting point is, we accept, the way in which…..had put it, calling in aid…..by this Court in a different although related area, namely stay for what used to be called forum non conveniens in Henry v Henry 185 CLR 571. But as we note in paragraph 3 of our outline, it is of course important in considering Henry v Henry…..my learned friend made here.  These observations have been made in a distinctly different context from the present one. 

Of course, it is true, as our learned friends say in their written submissions, that both this case and Henry v Henry concern…..not a significant…..it is the nature of the ground for the respective…..which differ so…..  In our case, the stay was sought because by application of a…..doctrine, forum non conveniens/res judicata, the Australian case should be regarded as inappropriate to be heard and determined at all by reason of the anterior determination of a sufficiently identical controversy between the parties in another court…..

A forum non conveniens stay, that is, a basis of Australia being a clearly inappropriate forum, proceeds upon matters which may be, in very general terms, somewhat related to those conditions, but in fact they do not require the making out of res judicata…..

It is for those reasons that some care should be taken in extrapolating beyond the…..sufficient identity of the foreign and local proceedings when considering the observations to which we have drawn attention at the foot of page 591 of 185 CLR.  I do not need to read it because your Honours understand that it is a critical passage between the parties.  We have both written about it.  True it is the word “ordinarily” is twice used in that passage, but not in any way which excites the understanding of any, what I might call, exception or specific case which would be true of our case.

What is important is that the first “ordinarily” deals with the very premise we are seeking to advance in defending the Full Court.  It either goes without saying or can at least be said without any legal…..that there are major differences between the law concerning the financial consequences of divorce, no doubt the law concerning divorce as between Dubai and Australia, or as their Honours put it, in those reasons in Henry v Henry:

different in significant respects.

That was no cause for refusing to consider a forum non conveniens in that case, a fortiori it should be no cause for refusing to consider the res judicata study as in our case.  It is of course relevant to and sets the Court up for the different…..question, is there sufficient identity to give any footing for the application of the…..estoppel principles.  In our submission it is the next sentence, which is the second use of the word “ordinarily” in the passage, that provides the solution to that question, pejorative in this Court, that is, the footing can be and should be conceptualised and be confirmed as its main controversy, notwithstanding that…..of differences. 

True it is that is expressed as a generalisation, hence the word “ordinarily” being used, but nonetheless…..is no mere accidental or extraneous observation by their Honours and it provides, in our submission, useful guidance for this Court in this case to see the correctness of both the first instance method of principle and the intermediate application of those principles to the circumstances as being all of them correct as to principle, and the Full Court correct as to application, namely, that what had occurred in Dubai dealt finally with the financial consequences of the breakdown of the matrimonial relation, including…..divorce, and that appears enough then to produce the stay that the Full Court determined was the only possible response.

Can I then turn over the page, as my friend did in Henry v Henry, to page 592 of the CLR.  It is true that halfway down that page that there will be – there were a number of factors, some of which my learned friend has referred to, which will play a part ordinarily, if I may put it that way, in the subsequent discretionary consideration in a forum non conveniens stay application.  Some will be truly discretionary, some might more properly be called simply matters of contestable and evaluative assessment.  But, in our submission, these are an example of matters which in Henry v Henry find no special application in a case such as the present.

Once we preclude the effect that the relevant estoppel doctrine if determined in this case as it was by the Full Court, there is, as it were, no residual or further discretion to be exercised so as to permit an Australian court to proceed notwithstanding that an Australian court has determined that the…..is precluded…..examination by reason of those doctrines of estoppel. 

That is of course in stark contrast from what occurs in relation to evaluative assessment and accompanying discretion…..upon highly…..circumstances and…..proceedings, one foreign, one domestic, that is involved in a case such as Henry v Henry.

It is true in our case that what the Full Court does, having determined the preclusive effects of the circumstances arising from the Dubai determination, it is true that they then say they are turning to the question of discretion, that is, their exercise of discretion.  It is also true, as my learned friend pointed out, that nothing there picks up those matters on the next page in Henry v Henry, that that is no error or deficiency; it is simply to note that there was in truth, we submit, only one outcome that was possible once they had reached that evaluative conclusion concerning a sufficient identity of the matters determined in Dubai for the matter sought to be litigated in Australia.

Your Honours, obviously I need to deal with – I do not know whether I should answer that, your Honours, but I do not know how ‑ ‑ ‑

KIEFEL CJ:   Hopefully it will pass.

MR WALKER:   Thank you, your Honour.  Can we go to where I was?  I hope this was not some sort of…..signifying difficulty in my argument.  I have to confront the jurisdictional point, that is plain, if unadorned and unexplained, or at least unelaborated in the expert evidence to which you have been referred.  There is no jurisdiction with respect to property foreign, from a Dubai viewpoint, in their nationality of law.

There is no elaboration available looking to understand whether there is anything functionally equivalent in any respect at all, what might be called in our system the…..jurisdiction, notwithstanding a…..style…..to property…..  All we know is there is no jurisdiction, there is not a trace or a suggestion that matters of Australian property of either or both spouses played any part in any way in the Dubai outcome.  We have to accept that.  It is plain.

So it is argued against us with, we accept, beguiling simplicity that if there is no jurisdiction…..determined a claim for an adjustment, for what I am going to call Australian or Dubai prime property for…..Dubai, first of all…..be Henderson v Henderson it would never be unreasonable to fail to raise a claim which it cannot raise and, second, coming back to where our…..directed, it cannot be said that there have been the relevant…..of sufficient…..cause of action for a determination which is simply not available to have been made in Dubai.

I leave to one side the Henderson v Henderson point, which is one way of saying…..unreasonable not to raise a claim you cannot…...  But we do want to focus on the sufficient identity point because if we win on that we will not need to worry about a Henderson v Henderson expansion.  It cannot be right, in light of the need to ascertain the level of generality of specificity with the Dubai determination so as to…..adjudication that the mere unavailability of a desired…..outcome suffices to show that that identity cannot be…..

That must be so because otherwise it is impossible to understand our different remedies, different rights and significant differences between that and other aspects of a foreign and Australian claim when they are to be compared could make any sense at all.  It is for those reasons that we submit that it is not to the point that the Dubai court did not have, in our terms, jurisdiction to adjust rights to Australian property any more than it is to the point to say that property rights by way of…..extended no further than…..compensation for wrongs and reversal or enforcement of dowry. 

When one considers the compensation for wrongs point, that surely would suffice.  If the boot was on the other foot, and in Australian law there could be a court‑based divorce with damages for matrimonial wrong, and it could not be in Dubai, it would not be to the point, in the application of res judicata and allied doctrines, to observe that something was not available in…..and thus a determination in Dubai would not preclude proceedings continuing in Australia thereafter.

In our submission, the same would be exactly true with the property.  Not being available is not a matter which…..an identity between a system of law…..that lack of availability and Australia’s system of law which, for the sake of argument, bestowed that availability.  It is for those reasons, in our submission, that there is no magic to the word we use in English, “jurisdiction”, as a ground to explaining why it was not available in Dubai for the appellant to claim a judgment for property rights by reference to, or directly in relation to, real estate or other property located in Australia or, indeed, anywhere out of Dubai.

For those reasons, in our submission, there is no critical problem for the outcome of reasoning in the Full Court raised by the not entirely satisfactory or eloquent translations into English of the reasons and decisions in Dubai.  We are certainly not giving evidence from the Bar table by Arabic…..almost non‑existent.  But your Honours have seen the difficulty in both courts below and in written submissions and – I am about to complete it – in our addresses, in seeking to give what might be called a sufficient…..black letter understanding in our legal terms to the word “untimely” as it appears in the record.

Further, as we have pointed out, similar difficulties arise by use of the expression “no need to refer”.  One can be sure, we submit, bearing in mind holdings concurrently below, it cannot be said that those…..matters have been put to one side to be dealt with if anyone cared to raise them again in Dubai in the future.  One cannot understand the concurrent holding to which we have drawn attention, which is not in challenge in this appeal.  We cannot understand then as…..that would have been determined, as the Full Court holds, that could……the appellant becoming…..in a Dubai court in new pleadings.  The expert said…..

Now, that does not mean that I…..if any of your Honours asked me what does “untimely” mean.  One starts with the very helpful proposition that it might mean too early or too long or it may mean something…..one or other or both of those in the alternative such as in temporal terms inappropriate, none of which advances the understanding really contextually of the use of…..

In our submission, on top of that explanation, it must be understood to refer to something which played a part in the outcome below and…..the non‑participation in such a way as to produce a determination of misdirection, in some respects, of the appellant, but a non‑participation in these respects which did not prevent the Dubai court from holding that they could not make the order…..  Now, that left perhaps ‑ ‑ ‑

KIEFEL CJ:   Mr Walker, if there is a real doubt about what the Dubai court did in these respects, what course should an Australian court take if it is not able to determine clearly what course was actually taken?  I suppose it is relevant that it is the husband’s application for stay requiring proof of decisions of foreign courts.

MR WALKER:    Yes, with everything that entails, your Honour, yes.  Yes, we have to pull out the burden to…..of the sufficient identity to engage the doctrines we are talking about.  Unsatisfactory vagueness will no doubt contribute to difficulties in discharging that onus, although…..in both…..and…..translation between both Arabic and the Dubai legal system into English and the Australian legal system ought not to be regarded as…..an insuperable obstacle…..to discharge that burden.  However, we entirely accept, which seems completely salutary in terms of the whole legal system, that the burdens on us…..involved ‑ ‑ ‑ 

KIEFEL CJ:    …..

MR WALKER:   Probably including the present, an understanding of expressions such as….. - I am sorry, your Honour. 

KIEFEL CJ:   We lost you just for a moment there, but I do not think it is a problem.  You have come back now. 

MR WALKER:   I am sorry, your Honours.  Our point is that the current findings are such as to show that with respect to that which is the subject matter of the “untimely and no need to refer”, their Honours were satisfied in light of the expert evidence which differed to some degree and had a large measure of agreement…..determination of the matters notwithstanding perhaps what they and the court that if they had been rejected by the court as being the subject of our client’s application in Dubai. 

It is a very familiar notion that a claim is determined as much as by being rejected as it is by being accepted.  That…..of that finality and the element of determination of a claim that produced finality, and that in our submission is an answer to the possibility raised by the Chief Justice in the questions to me as to doubts inspired by this unsatisfactory state of translation and the burden of proof in relation to the undoubted…..throughout. 

The answer is that the courts below were and were correctly with…..determination and, in our submission, there is no call whatever…..backwards in any expert material this Court would differ from that outcome.  So it is by that means that we seek to address together the questions of “untimely” and “may need to refer”, that being the fourth proposition in the outline.  Unless there is anything that your Honours wish to raise with me, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Walker.  Anything in reply, Mr Jackson?

MR JACKSON:   Sorry, your Honour, it just was not clear – I am sorry – that my learned friend had finished.  Could I, by way of reply, just say something first of all concerning the reliance or lack of reliance on Henry v Henry by our learned friend’s argument.  Your Honours, if one looks at the concepts of there being a stay before the resolution of proceedings in either country on the one hand, and the resolution of proceedings in one country on the other, it would seem slightly odd if there was no relationship between the stay, the concepts involved in a stay, and the concepts involved in res judicata and estoppel.

If you take, for example, a case where an application for a stay is being heard before the decision in either court, the situation that your Honours are being referred to indicates that a significant…..be whether the court of one forum does or does not have jurisdiction to deal with the issues that are raised in the proceedings.

Why does that cease to be a relevant matter in determining whether what decision has been made is one which gives rise to a res judicata or an estoppel.  The two issues seem to be similar…..to say the court had no jurisdiction but we are obliged to give effect to it – to its decision even though we would not have let the matter proceed and we would have stayed the matter or effectively stayed the matter if we could have.

Your Honours, could I…..we are talking about.   Our learned friend referred to property in Australia but we are not just…..property in Australia or property in Dubai…..referred to the parties’ property in her reasons in paragraphs 7 and 8, at page 10 of the core application book, where:

the Respondent has had . . . extensive property interests in the United Arab Emirates, Paris, Jordan and Thailand –

Your Honours will see the remainder of those two paragraphs.  Your Honours, if one is looking also at what is in – the point made in paragraph 3 – I just put it shortly of our learned friend’s outline of submissions, your Honours one wonders why the Full Court found it appropriate to refer to Henry v Henry and the reason why it seems to have found it appropriate to refer to them is in the last sentence of the passage which is quoted in the Full Court’s reasons. 

It is not…..your Honours, in that…..is the passage quoted, I think, in our learned friend’s paragraph 2 of the outline because when one goes to either paragraph 3 or paragraph 2 and it speaks of the financial consequences of the parties arising from the breakdown in the marriage, one

has to read that in relation to the circumstances to which it applies and, in particular, the best one can say about it is both concerned a – sorry I will start again – the best one can say about the Dubai attachment is that it concerns a part of the financial consequences of the parties arising from the breakdown of the marriage.  It concerned a part, namely, the parts to which we referred earlier, their property in Dubai and property of a certain kind where there had been the….. 

Your Honours, if one goes to our learned friend’s submissions also, if I can do it briefly by going to the outline at paragraph 1, that is expressed, if I may say so, with respect, at – to use the words of it “a level of generality/specificity” without really telling one, unless one goes to what is in the succeeding passages, paragraphs 2 and 3 what one really is talking about.

The reality of the situation, we would submit, is that one has to look to see what is in issue in the several proceedings.  The answers will differ from case to case.  To pick up the passage quoted in the words in italics in paragraph 2 as the discrimen to be applied in every case is, in our submission, to apply criterion which is inapposite to every case.

Your Honours, can I go, then, to what is said also in paragraph 4 of that document, namely, the decision determining spousal maintenance.       The Court…..has to deal with what the evidence is.  There were two experts who seemed competently to have agreed on some things, not on others and, your Honours, the passages we have referred to have been ones in which they indicate what their view of the position was.  There was no reason why it should not be accepted.  Each seemed to have experience.

But, your Honours, if one looks at the question – or looks at paragraph 4 of that outline, my learned friend speaks of rendering the determination, et cetera.  There was no determination.  No determinations…..determination has been made.  Your Honours, I do not think there would be more I wanted to add.

KIEFEL CJ:   Yes, thank you, Mr Jackson.  I am sorry, Mr Jackson, was there something else you wished to say?

MR JACKSON:   No, your Honour, I was trying to convey there was nothing more I wanted to say.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.

AT 12.11 PM THE MATTER WAS ADJOURNED