Comino v Kremetis

Case [2023] NSWSC 32


Supreme Court


New South Wales

Medium Neutral Citation: Comino v Kremetis & Anor [2023] NSWSC 32
Hearing dates: 25 October and 9 November 2022; further written submissions filed on 14, 22 and 28 November 2022
Date of orders: 2 February 2023
Decision date: 02 February 2023
Jurisdiction:Common Law
Before: Chen J
Decision:

(1) Order, pursuant to s 5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), that the proceedings (2021/353072) be transferred to the Federal Circuit and Family Court of Australia (Division 1), Sydney Registry.

(2)   Order that the costs of the parties in this court, other than the costs of this notice of motion, be reserved to the Federal Circuit and Family Court of Australia (Division 1).

(3)   Order that the plaintiffs and second defendant pay the first defendant’s costs of, and incidental to, this notice of motion (excluding any costs thrown away by the filing of the amended notice of motion filed in court on 25 October 2022, in respect of which make no order as to costs).

Catchwords:

JURISDICTION OF COURTS – Transfer of proceedings – from Supreme Court to Federal Circuit and Family Court of Australia – whether seriously arguably that Federal Circuit and Family Court of Australia would not have jurisdiction

Legislation Cited:

Acts Interpretation Act 1901 (Cth)

Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

Family Law Act1975 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Limitation Act 1969 (NSW)

Cases Cited:

Anderson v Canaccord Genuity Financial Ltd [2022] NSWSC 58

Aviani v Loh (No 2) [2022] NSWSC 1148

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61

Brogden & Brogden [2022] FedCFamC1F 218

Burman v Zillman [2017] NSWSC 229

CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2

Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

Director of Public Prosecutions v Walters (2015) 49 VR 356; [2015] VSCA 303

Djime v Kearnes [2019] VSC 117

Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

In the marriage of Warby (2001) 166 FLR 319; [2001] FamCA 1469

In the matter of Glenvine Pty Limited (in liquidation) [2020] NSWSC 866

Irwin v State of Queensland [2011] VSC 291

James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353

Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34

La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201; [1992] FCA 673

Mustac v Medical Board of Western Australia [2007] WASCA 128

Nevins v Urwin (2022) 64 Fam LR 640; [2022] FedCFamC1A 57

Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2)

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AGLC
Comino v Kremetis [2023] NSWSC 32
Case
[2023] NSWSC 32
Decision Date

CaseChat Overview and Summary

In Comino v Kremetis, the dispute arose between the parties over issues pertaining to the transfer of proceedings from the Supreme Court to the Federal Circuit and Family Court of Australia. The plaintiff, Comino, sought to have the matter heard in the Supreme Court, while the defendant, Kremetis, argued that the Federal Circuit and Family Court of Australia had jurisdiction over the matter. The Federal Circuit and Family Court of Australia was called upon to determine the appropriate forum for the proceedings.

The court was required to decide whether it was seriously arguable that the Federal Circuit and Family Court of Australia did not have jurisdiction over the matter. The court examined the relevant legislative provisions, including the Family Law Act 1975, to ascertain the scope of its jurisdiction. The court also considered the principles of federalism and the importance of determining the appropriate forum for the proceedings in order to avoid unnecessary duplication and to ensure that the matter was heard by the most appropriate court.

The court found that it was seriously arguable that the Federal Circuit and Family Court of Australia had jurisdiction over the matter. The court held that the relevant legislative provisions conferred jurisdiction upon the Federal Circuit and Family Court of Australia in relation to family law matters, and that the dispute between the parties fell within the scope of those provisions. The court also noted that the principles of federalism and the importance of determining the appropriate forum for the proceedings supported the conclusion that the Federal Circuit and Family Court of Australia had jurisdiction. Consequently, the court ordered the transfer of the proceedings to the Federal Circuit and Family Court of Australia.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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