Correy and Correy and Ors - [2014] FCCA 1939

FEDERAL CIRCUIT COURT OF AUSTRALIA

CORREY & CORREY & ORS

[2014] FCCA 1939

Catchwords:
FAMILY LAW – Transfer to Family Court of Australia – eligibility for costs certificates.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, r.8.02

Federal Proceedings (Costs) Act 1981, s.10

Family Law Act 1975, s.79

Property Law Act 1958, s.172

Applicant:

MS N CORREY

First Respondent:

MR A CORREY

Second Respondent:

MR N CORREY

Third Respondent:

[T] PTY LTD

Fourth Respondent:

MS I CORREY

File Number:

MLC 2604 of 2012

Judgment of:

Judge F. Turner

Hearing date:

18 August 2014

Date of Last Submission:

18 August 2014

Delivered at:

Melbourne

Delivered on:

18 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Grant & Mr Bailey

Solicitors for the Applicant:

Merhi & Associates

Solicitors for the First Respondent:

Elamine Lawyers

Solicitors for the Second Respondent:

Stenta Legal

Counsel for the Second Respondent:

Mr Davis

Solicitors for the Fourth Respondent:

Constanzo Lawyers

Counsel for the Fourth Respondents:

Mr Alexander

ORDERS

The matter be transferred to the Family Court of Australia at Melbourne to be listed on a date and time to be advised to the parties.

AND THE COURT NOTES THAT:

Counsel for the second respondent will submit written submissions to chambers in relation to an application for costs; such application will be dealt with in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Correy & Correy & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2604 of 2012

MS N CORREY

Applicant

And

MR A CORREY

First Respondent

MR N CORREY

Second Respondent

[T] PTY LTD

Third Respondent

MS I CORREY

Fourth Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

This decision involves the question of whether the matter should be transferred to the Family Court of Australia. That question was raised by this Court upon hearing an opening submission for the applicant wife.
The parties in the case are:
·The applicant wife (the “wife”);
·The first respondent husband (the “husband”);
·The second respondent, who is the husband’s brother and sole director of the third respondent;
·The third respondent is [T] Pty Ltd, which was established by the first and second respondents. It is now deregistered and was not represented; and
·The fourth respondent, is the wife of the second respondent.
Mr Bailey Counsel for the wife seeks to bring a claim within the accrued jurisdiction of the Court, that the husband allegedly improperly drew down $354,000.00 from the mortgage on the matrimonial home and gave it to the second respondent, who then placed it into the accounts of the third respondent, and the money was later disbursed to various people other than the wife.
Messrs Grant and Bailey for the wife submits that the matrimonial property includes property in relation to which the claim under accrued jurisdiction is brought, and therefore there is a claim under the Family Law Act1975 (the “FL Act”) to which the claim under the accrued jurisdiction can attach.
Mr Bailey submits that the funds were held in a constructive or resulting trust. Mr Davis for the second respondent and Mr Alexander for the fourth respondent submit that there is no property held by the husband or wife available to be divided between them under s.79 of the FL Act, and therefore there is no claim under the FL Act before the Court, to which a claim under the accrued jurisdiction can attach.
The question is whether there is a claim under the FL Act in relation to which the Court can make orders, particularly the alteration of the property interests of the husband and wife, to which the claim in relation to the $354,000.00 can attach.
The Court finds that there must be a genuine family law proceeding in existence in the Court before a state issue can be attracted. The state issue here is a claim under s.172 of the Property Law Act 1958 (the “PL Act”).
Matters relevant to the question of transfer to the Family Court are set out in the Federal Circuit Court Rules 2001 (the “Rules”) in r.8.02 as follows:
(1)The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2)Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3)Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(4)In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c)whether the proceeding will be heard earlier in the Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e)the wishes of the parties.
Note: See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.
Here the question of transfer has been raised by the Court. As this is the first time in which a claim under the accrued jurisdiction has been raised, it is the proper time to consider a transfer.
Pursuant to r.8.02(4)(a), the Court finds that the proceedings involve questions of general importance, and it is desirable for there to be a decision by the Family Court on “whether a claim for money under the accrued jurisdiction can be considered as part of the property of the parties so that the matter of alteration of property interests is properly before the Court under the FL Act”.
Also, the question of whether, if there is no property available for division between the husband and wife pursuant to s.79 of the FL Act, is there a claim for a division of property that is properly before the Court under the FL Act? If not, should the claim alleged under the accrued jurisdiction be dismissed summarily, or should the defence by the first and second respondents be dismissed summarily?
The next question is whether the money drawn down and held by the first and second respondents was held in a constructive or resulting trust?
A further question is whether the Court has jurisdiction to grant general equitable relief outside the jurisdiction conferred on it by statute?
Consider r.(4)(e) – The parties say that a transfer to the Family Court is a matter for the Court, although Mr Davis for the second respondent opposes the transfer.
The Court must also have regard to s.39 of the Federal Circuit Court of Australia Act 1999 (the “FCCA Act”). The Court has had regard to the Rules of this Court.
The matter is listed for three days and the parties seek a further three days; with 9 witnesses it is likely that it will take in excess of four days of final hearing time.
The Court refers to Item 8 of the Protocol between this Court and the Family Court where matters in excess of four days of final hearing primarily should be heard in the Family Court. A further three days of hearing time are not available before me until March or April next year and there is no guarantee that the matter will be decided before I retire in June 2015. The resources of this Court are therefore not sufficient to determine the proceedings.
The interests of the administration of justice will be served better by having a decision of the Family Court on the issues.
Item 7 of the Protocol provides for a matter to be transferred to the Family Court if there are complex questions of jurisdiction and law involved; such questions are involved here.
The Court orders that the matter be transferred to the Family Court of Australia.

Costs

After the Court ordered a transfer, Mr Davis of Counsel for the second respondent applied for a Certificate under s.10 of the Federal Proceedings (Costs) Act 1981 (the “Costs Act”) which is as follows:
Costs certificates--incomplete proceedings
(1)This section applies to the High Court, the Federal Court, the Family Court, the Federal Circuit Court and a court of a Territory.
(2)Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3)Subject to this Act, where:
(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(4)The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.
(5)A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court.
Mr Davis agreed to put short written submissions to the Court within 48 hours, after which the Court would make a decision, as to costs certificates in chambers. The other parties supported the application by Mr Davis, and agreed to rely on his written submissions.
In those submissions Mr Davis contends that the proceedings before this Court were rendered abortive through no neglect, default or improper act of the parties.
The Court finds that by its express provisions, the Costs Act applies to circumstances where:
·Proceedings are rendered abortive;
·By reasons that the person, or persons before whom the proceedings being conducted, dies, resigns, or his removed or dismissed from their office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in the proceedings.
By reason of the maxim ‘Expressio Unius Est Exclusio Alterius’, s.10(2) applies only to the things expressly mentioned therein, and does not apply to a transfer of proceedings, pursuant to the reasons in s.45(2) of the FCC Act and r.8.02 of the Rules.
Section 3 applies only to where a hearing is discontinued and a new hearing is ordered. The hearing here was not discontinued, it was transferred.
Section 10(3) continues “Subject to this Act… which imports s.10(2) into (3), s.10(3) then provides:
(a)the hearing of any proceedings in a court to which this section applies is discontinued…”
For the reasons expressed above, s.10 does not apply to these proceedings. Costs certificates therefore cannot be granted under s.10(3) in present circumstances. There are therefore no grounds for one or more costs certificates to be granted as a result of the transfer of these proceedings to the Family Court.
The applications for costs certificates are dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date 26 August 2014