Clayton v Bant

[2020] HCATrans 50

[2020] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B65 of 2019

B e t w e e n -

CLAYTON

Applicant

and

BANT

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 APRIL 2020, AT 9.32 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend MS A. McDIARMID for the applicant.  (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)

NETTLE J:   Yes, Mr Jackson.

MR JACKSON: Your Honours, the application involves two aspects. One is the applicant’s claim for property settlement under section 79 of the Family Law Act.  The other is her claim in respect of alimony or maintenance, perhaps I should say.  May I deal with them in that order?

NETTLE J:   Yes, thank you.

MR JACKSON:   If I could take your Honours first to something - a few matters said by the primary judge and then to a central part of the Full Court’s reasons.  First of all, page 44 of the application book, your Honours will see the primary judge’s reasons.  I am going to refer your Honours to paragraphs 192 and 194.  Your Honours, as is apparent from the terms of paragraph 192, the primary judge held:

that the law of Dubai contains no provision for the redistribution of assets or property of the parties to the marriage contract on the breakdown of the marriage or divorce ‑

other than that provided for by the marriage contract.  She elaborated upon that in the second sentence of paragraph 192, where, your Honours will see, she said:

I accept the law of Dubai is such that ‑

and your Honours will see the remaining aspects of that sentence.  She emphasised the same matters in paragraph 194, as your Honours will see, and in particular the last few lines of that paragraph.

Your Honours, two matters arise from that.  If I could return to paragraph 192 to the exception – if I could put the words in inverted commas - in the last few lines of paragraph 192.  That is a reference to Article 62.1 of Federal Law No 28 of 2005, which your Honours will see set out at page 97 of the application book about line 43 on the page. 

NETTLE J:   Yes.

MR JACKSON:   Your Honours will see that it makes no provision for the court‑ordered transfer of property from husband to wife or vice versa, except in the one exception referred to, namely where the two have participated:

in the development of a property, building a dwelling place or the like –

In such a case one may claim from the other:

his share therein upon divorce –

and the share of course must be the share therein.

NETTLE J:   Mr Jackson, may I ask you, in making that submission are you, and did the primary judge and the Full Court, apply Australian techniques of statutory construction to this provision or did they apply a technique established by evidence of the fact of the way in which a Dubai court would do it?

MR JACKSON:   Your Honour, I suspect there is an element of both in that.  I just do not have it in front of me at the moment, but I could get your Honour the statement of agreed facts and so on.  I was going to say that - and perhaps I could come back to that in just a second - but, your Honour, there was nothing to suggest, if I could put it this way, that the result of the operation of 62.1 was other than as appears from its words, read in the ordinary way. 

The second feature, your Honour, is that as the judge had also observed at paragraph 192 at page 44, the property, the subject of a Dubai order, must be property within the jurisdiction.  Your Honours will see that first of all in paragraph – I am sorry, page 44 in paragraph 192, and you will see the fourth‑last line of that paragraph “within the jurisdiction” and similarly the last line of paragraph 194.  That reflected the terms of the answer to question 4 in exhibit 1 – exhibit 1, the memorandum of agreement and disagreement between the experts – party’s expert witnesses. Your Honours should have been supplied with a copy of that.

NETTLE J:   Yes, we have been.  Thank you. 

MR JACKSON:   As your Honours will see, the experts – the question was what are the sources of jurisdiction, et cetera?  Your Honours will see it set out there and it was agreed there was no jurisdiction with respect to property outside the territorial jurisdiction of the Emirate - the Emirate of course being the UAE of which Dubai forms part. 

Your Honours, as is apparent, if I could then go to the Full Court, at page 69 of the application book, your Honours will see in paragraphs 26 and 27, particularly the second sentence of paragraph 27, it is said - and this appears to be simply looking at the wording of the provision:

Clearly, that Article, by its terms, provides for the adjustment of property as between spouses on divorce and provided the wife with the means by which she could have sought such property adjustment.

Now, your Honours, if one then goes to paragraph 29, the Full Court also held that Article 62.1 provided for what it described as the “Henderson” - perhaps more commonly called today the Anshun ‑ the “Henderson exception” or the Anshun approach.  Your Honours, could I just say in relation to paragraph 29, as can be seen from the passage in Henderson, which is quoted at paragraph 24 commencing at the bottom of page 68, the doctrine there referred to requires that the matter must be something which might have been brought forward as part of the subject in contest.

GORDON J:   So, your short point, Mr Jackson, is that in relation to this aspect, namely the property aspect of the application, it was not possible for it to be the subject of the application in Dubai. 

MR JACKSON:   Indeed, your Honour, yes.  You will see, your Honour, the two references in the fifth and also the last line of the quotation in paragraph 28.  Could I also say, your Honours, the Family Law Act of course, as your Honours will be familiar, does make provision for alteration of property interests. I do not think I need to take your Honours to the detail of it. It is section 79, and your Honours will see that set out at page 90 of the application book.

The relevant provisions, or the most relevant provisions are sections 79(1)(a) read with (1)(c) and (1)(d). The Act also recognises that its jurisdiction, the Family Court’s jurisdiction, may be exercised in relation to parties who have divorced under the law of an overseas country – that is section 79(1B)(ba).

Your Honours, the Full Court also appears to have taken the view that the relevant level of generality for these concepts was the marital relationship itself.  Your Honours will see that in paragraph 20 at page 68, where there is a quotation from the judgment of four Justices of the Court in Henry v Henry.  What appears from that passage is, one sees, for example, towards the – I will not go into the detail of it but your Honours will see that it speaks generally of controversies being “with respect to the marital relationship”.

Your Honours, as they used to say in the periodicals which came out once a week and had stories that continued on, in effect, “Now, read on”.  If one goes to what is then set out in Henry v Henry, immediately following that passage – that is at 185 CLR 592, and I think your Honours have been given a reference to that.

NETTLE J:   Yes.

MR JACKSON:   Your Honours will see that if one looks at the next two paragraphs at page 592 and then going over to the top of page 593, in the first paragraph under the heading “Considerations relevant to a stay”, et cetera, your Honours will see that a number of matters are to be taken into account.  In particular, your Honours will see in the last three lines, for example, of that paragraph 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.

Then, your Honours, if one looks at the next paragraph it sets out a number of considerations which should be taken into account, saying also the list is not exhaustive.

Your Honours will see that the decision of the Full Court also does not sit well with that court’s earlier decision in Pagliotti v Hartner (2009) FLC 93‑393. Your Honours will see, if I could go to page [83249] of that case, and in particular to paragraphs 117 and 118, what your Honours will see is that, in that case, the Full Court said in paragraph 117 that:

we glean nothing from the Judgment, or elsewhere, to suggest that any factual issues likely to impact upon the entitlements of the parties . . . were either traversed . . . or the subject of any findings or conclusions –

Then in paragraph 118, why would not both parties be estopped if that was right, and that is in the context that in those proceedings, as here, the husband had sought relief from the New South Wales courts in relation to Australian property.  Those proceedings, I might say, were transferred to the Family Court.  In the present case, the wife had sought to have the husband’s proceedings in the Supreme Court transferred to the Family Court.  That issue has not been resolved.  When one comes ultimately to paragraphs 124 and 125 at page [83250], your Honours will see in 124:

Given that the Roman Tribunal had no jurisdiction to determine the beneficial entitlements of the parties to the B property –

that is, Australian property – and your Honours will see the remainder of that paragraph, and then in paragraph 125 the view taken that it was not a case of res judicata.  Your Honours, in our submission, there are distinct similarities between Pagliotti and this case but inconsistent results.

Could I just say, your Honours, turning to the second aspect – that is the question of what is described as alimony – the terms of the actual order made by the Dubai court appear most clearly in the application book at page 70, in paragraph 35 of the Full Court’s reasons.  It said:

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 -

In our submission, if one looks at paragraph 34, the preceding paragraph, it was apparent that the respondent had sought to take away all the applicant’s rights to “all type of alimony” but, in our submission, the Dubai court simply did not decide the claim.  The terminology used in the decree, “untimely”, suggests that the issue was left to be decided if at some future time there was a need to do so.  The Full Court at paragraph 37 on page 71 treated the issue as falling between the Anshun‑type estoppel and it said there that:

the application was available to the wife and the issue was finally heard and determined.

Perhaps the first of those matters available to the wife may be, may not be correct, but the second is not - it was not finally heard and determined.  It was not, your Honour, finally heard and determined.

Your Honours, may I say one thing just for completeness and that is that if one looks at the Full Court’s orders at page 73, you will see that it refers to the “Third Amended Initiating Application” of 3 November 2016.  Your Honours, that document is not in the application book but copies have been supplied to the Court, I think. 

Your Honours, in our submission, this is a case where special leave should be granted.  It is, if I may say so, with respect, a rather bizarre result in that the decision of the court, which had no power to order one person to hand over property to another, and which could not make orders in respect to properties outside Dubai, or the UAE, yet prevents the ‑ may I finish three or four words, your Honour?

NETTLE J:   Certainly.

MR JACKSON:   ‑ ‑ ‑ yet prevents the applicant, otherwise perfectly entitled to proceed, to conduct her proceedings in Australia ‑ ‑ ‑

NETTLE J:   Thank you, Mr Jackson.  Mr Walker.

MR WALKER:   May it please your Honours.  The reason why, in our submission, this is not a case appropriate for special leave is that the application does not propose that there should be any alteration to or even subtle modification of what this Court said in Henry v Henry, which, as my friend points out, has some but not all of the relevant explanation quoted in paragraph 20 of the Full Court’s reasons at application book page 68. 

Dwelling on that which was extracted by their Honours in paragraph 20, may we take up immediately the way in which my learned friend concluded his address?  There is nothing bizarre and nothing at all strange about legal regimes differing between different law districts, different national law districts, with respect to what the High Court called in Henry v Henry, available remedies in stipulated circumstances. 

A remedy that is not available is another way of saying the court has no power to do what somebody might wish to achieve.  It will not do, really, to say that there is something bizarre about a claim being held precluded by res judicata notwithstanding it seeks a remedy not available in the jurisdiction which has pronounced final relief.  That is precisely the purpose of the reasoning and the underlying principle expounded by the Court in Henry v Henry. 

NETTLE J:   Yet there is nothing novel, is there, in a section 79 application being made even long after orders have been made for divorce and property settlement in the Family Court of Australia?

MR WALKER:   No, within Australia, your Honour, with respect, is correct.  There are, not only under that section, provisions by which matters can be revisited.  We accept that. It is not what I will call an illegitimate staging or instalment process to which we took objection.  It was the fact that there had been proceedings, brought and finished in a foreign court properly seized of an issue which, understood at the proper level of generalisation, embraced all aspects including those now sought to be ventilated in Australia. 

NETTLE J:   You say that notwithstanding that there was no jurisdiction in the Dubai court to deal with Australian real property? 

MR WALKER:   Yes, I do.  We, of course, would frame that differently.  Jurisdiction, as your Honours appreciate, is a word that ‑ has a meaning requiring to be teased out contextually.  There was no power to grant a remedy with respect to property anywhere in the world except on stipulated terms in Dubai.  So dowry, alimony and what might be understood as, in our system, something equivalent to an equity raised by contribution.  There is no jurisdiction in the sense that there is no remedy available for any other form of property wherever situate and it is for those reasons, in our submission, that Henry v Henry is plainly engaged at the proper level of generalisation, the financial consequences of the cessation of the matrimonial relationship.

That is why, with respect, the trial judge was correct - if I could just use the extract at page 66 of the application book in the Full Court’s paragraph 12 quoting her Honour’s paragraph 193 - was correct in the first half of that last sentence, about line 50:

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 -

Now, the law administered in Dubai simply did not provide available remedies or substantive rights or discretions of a kind sought to be now raised in Australia.  That does not mean that the Dubai court or legal system leaves it to other systems.  It means, in Henry v Henry terms, that there is a finality accomplished according to the law of the court that accomplishes the finality.

However, the second half of that sentence following the dash, at about line 55 in her Honour’s paragraph 193, is, with respect, wrong, and is at the heart of the factual controversy that has been satisfactorily quelled by determinations at first instance and in the court below – not really raised prospectively in this Court.  That is the fact of about what the law of Dubai actually stipulates.  Her Honour there describes the matter as being:

limited to the issue of the deferred dowry and alimony.

NETTLE J:   May I interrupt to ask you, is that a question of construction?

MR WALKER:   Yes, it is, your Honour.  It is a matter of construction relevant to a determination of a question of fact, being the content, meaning effect of the foreign law.

NETTLE J:   Is it accepted that the appropriate technique of construction was the Australian technique of construction of statutes, or was it contended that it was to be interpreted according to Dubai standards of statutory construction and if so, was that proved?

MR WALKER:   Your Honour is testing my memory of the fine detail of a long‑distant first instance hearing.  But I think it is correct to say that there was little, if any, attention addressed to what I will call methodological approaches to interpretation as such as they might differ between the law of the Emirates and the law of Australia.

It was, obviously, the evidence was given with respect to translated texts and the findings and reasoning of the Australian judges was on the basis of their understanding of the factual expert evidence about laws that we all sought to understand in English translation.

NETTLE J:   It was accepted that that was the appropriate way to proceed in the state of the evidence being as it was?

MR WALKER:   Unquestionably so, your Honour.  There was not, as it were, some fundamental heuristic difference identified between the systems.

NETTLE J:   Yes, thank you.

GORDON J:   Did the experts address that, Mr Walker?

MR WALKER:   Not really, your Honour, and I should warn everyone that I am doing that partly by memory.  In many respects, as I do recall it, a lot of this was, as it were, assumed, no doubt each party proceeding on the assurances of their retained experts, that it could be caught up, as it were, in the process of translation into English.

NETTLE J:   Yes.  Yes, thank you.

MR WALKER:   Now, your Honours, it is for that reason that the level of generality is, with respect, as my friend has put it, at the heart of the matter.  But that raises no special question of principle.  That simply is what is required by the law, which will not be altered by any decision, either way, in an appeal in this case.

We draw to attention, as your Honours might expect, that in Henry v Henry, as part, not the whole, but as part of the process of choosing the right level of generalisation their Honours refer to the marital relationship lying at the heart of all the proceedings.  With respect to marital status, true, especially proceedings for the dissolution of marriage, but their Honours then go on, significantly, to say that disputes with respect to property and maintenance will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.

That bodes ill, with respect, for the notion that one can choose a more specific level of generality in order to distinguish between Dubai dowry proceedings and Australian property interest alteration proceedings.  That, with respect, would be a misunderstanding of the intention of the principle adumbrated by the Court, not originally of course, but stated authoritatively in Henry v Henry, a principle which has to do with finality, notwithstanding radical differences in outcome between the proceedings which have been had abroad and the proceedings which are proposed, subject to a stay, to be heard here.

The next point that we would wish to emphasise in the same regard is that it is really not to the point that Article 62.1 was agreed by the experts to be an article in relation to what I will call alteration of legal property interests restricted to property within the Emirates territorial jurisdiction being property with respect to which there was a contributions question. 

That really only restates the proposition that the substantive law may expose the property of one or other of the parties to a claim for alteration of property interests, or may not, and there may or may not be remedies with respect to such claims.  It is, in short, precisely the passage in Henry v Henry which the Full Court quoted in their paragraph 20 which disposes of that argument.  But as my learned friends ‑ ‑ ‑

GORDON J:   Can I ask one question about that, Mr Walker, and that is this.  To what extent, if at all, do the contractual provisions in relation to marriage in Dubai affect that analysis, if any?

MR WALKER:   They do affect that analysis in the sense that the law in the Emirates gives to what I will call the marriage contract, particularly, with respect, obviously, to dowry, effect which has not been seen in jurisdictions like Australia for a very long time, notwithstanding that specialised and regulated forms of contract now have their own place in our law.

It was not critical in this case in the sense that I do not apprehend that there has been any complaint either in Dubai or here that there has been any failure to observe the terms of the relevant contract between these parties.  I think in many ways it rather lies in our mouth to say that it is an attempt to move outside the contract and to get more than the contract stipulated, which is constituted by the Australian proceedings threatened against us. 

GORDON J:   Is that because that contract dealt with these property questions and the question of alimony?

MR WALKER:   Yes, your Honour, that is what our argument on the merits of that point would be if we ever had to fight it.  Of course, the Australian proceedings outflank all such approach because the contract in this case obviously does not answer the descriptions of agreements enforceable under the Family Law Act. 

NETTLE J: But it was not contended below, was it, that the proceeding – purported proceeding under section 79 was in breach of the contract?

MR WALKER:   No, your Honour, that would – it was simply that there was a res judicata. 

NETTLE J:   I see.  Thank you. 

MR WALKER:   Your Honours, as my friend says, whether you are reading Charles Dickens first time round on its publication or now, read on.  There is more in Henry v Henry, but the passage at 592 in particular that my learned friend quoted from is one which, in our submission, highlights the point of principle I am seeking to make against special leave. 

The notion that there could be more effective decision of issues or in controversy between parties by one court or another emphatically cannot mean that there are more, or more than official remedies available for one party in one court rather than in the other court because that would be to, of course, backtrack utterly and radically on what their Honours had said in the preceding passage set out by the Full Court in their paragraph 20.  Rather those presumably are references to the kind of considerations with which the Court is familiar in what used to be handily called handily forum non conveniens arguments. 

The same, with respect, is the way in which we would urge against the notion that this Court is appropriately to grant special leave in order to settle some supposed difference between the Full Court in this case and the Full Court in Pagliotti.  The passages to which my learned friend went again really did no more than appropriately factually characterise what it was that was in play before the Rome Tribunal. 

What we have in this case is a factual determination which is not sought to be challenged but what was in play were the financial consequences of the dissolution of the marital relationship.  There is no contradiction of anything explicit or implied in Pagliotti by the Full Court in this case. 

It is for those reasons, in our submission, that there is equally nothing in the point that the alimony or maintenance determination was one that leaves open that question.  Could I remind your Honours of the passage

to which our learned friend took you?  Handily one can find it at page 70 of the application book.  In paragraph 35, the disposition of what, in paragraph 37, last line on page 70, the Full Court called the “husband’s plaint” - there was no mistake in that sentence. 

At the top of page 71, when their Honours talk about the issue being finally heard and determined, that was the issue raised by the husband’s plaint.  When they say the “plaint was not accepted” that means it was considered and no relief was granted as sought.  It was determined.  The husband cannot be heard to say that his plaint has been left as unfinished business in Dubai.  It was dismissed for the reasons set out in the English translation quoted at paragraph 34.

Now that, in our submission, plainly shows that so long as it be true factually that the wife had rights that she did not seek to press by seeking an order in Dubai – and there is no suggestion that there is any factual issue fit for special leave concerning that – it is, according to an ordinary understanding of the final determination of issues, not to the point that my client failed on an issue in Dubai.

We are bound by that failure.  The res judicata accompanies everything, including whether there should be relief of that kind.  It is for those reasons, in our submission, that properly understood, the Full Court was doing no more than correcting one critical wrong term by her Honour in relation to the operation of well‑understood principles not sought to be disturbed by the prospective appeal.  If it please your Honours.

NETTLE J:   Thank you, Mr Walker.  Any reply, Mr Jackson?

MR JACKSON:   Your Honours, may I just mention four things.  The first concerns the reference by my learned friend to Henry v Henry, which is in paragraph 20 of the Full Court’s reasons at page 68.  Your Honours will see in the third line and also the third‑last line the reference to the term “ordinarily”.  Our learned friend’s argument uses the phrase “considered at the proper level of generality” but, your Honours, the matter turns very much on all the circumstances, as the following passages in that case demonstrate.

The Full Court also did not take into account any matter other than the res judicata, to put it shortly, or other relevant aspects that it relied upon.  Your Honours, in any event, if one looks at what is said in Henry v Henry, and in the last parts of that, the last sentence in particular, your Honours, it is a matter which was really a kind of obiter dictum and it is something which perhaps goes a little too far.

Your Honours, the second point relates to Henderson v Henderson in paragraph 24 of the Full Court’s reasons.  Your Honours will note the words to which I have referred earlier which twice appear:

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

Your Honours, the third point is that if one looks at the Full Court’s reasons page 70, paragraphs 34 and 35, it is quite clear that paragraph 34 sets out what the husband was applying for.  It is equally clear, in our submission, that paragraph 35 is one which makes it apparent that the issue was not decided, “this subject is untimely”.

Now, your Honours, the fourth point is – would your Honours excuse me for just a moment while I check on this.  Your Honours, that is all I wanted to say.

NETTLE J:   Mr Jackson, might I ask you, if the Court were to grant special leave, would you wish to press all of the grounds presently expressed in the notice of appeal?

MR JACKSON:   Your Honour, I think they perhaps needs some trimming and focusing, what we would seek to advance – and if necessary, have leave to amend the proposed grounds of appeal to cover the subject matter with which I have dealt today.

NETTLE J:   Yes, thank you.  In this matter there will be a grant of special leave.  Mr Jackson, the applicant will have leave to file an amended notice of appeal at the time at which she is required to file the notice of appeal.  Would counsel’s instructing solicitors please engage with the Registrar for the appropriate directions, which are in the usual form?

MR JACKSON:   Thank you, your Honour.

MR WALKER:   If it please your Honour.

NETTLE J:   We will adjourn briefly.

AT 10.11 AM THE MATTER WAS CONCLUDED