Henry v Henry

[1995] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No S47 of 1995
  Sydney

B e t w e e n -

GERDA GERTRUD HENRY

Applicant

and

BARRY WALTER HENRY

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 JULY 1995, AT 11.32 AM

(Continued from 22/6/95)

Copyright in the High Court of Australia

MR M.D. BROUN, QC:   If the Court pleases, I continue to appear with MS J.C. GIBSON for the applicant.  (instructed by Schweizer & Co)

MR B.W. RAYMENT, QC:   May it please Your Honours, I cannot find my junior who is in Hong Kong, otherwise the appearance is as before.  (instructed by Marshall Marks Kennedy)

MR BROUN:   Your Honours, we have filed the supplementary application book envisaged and if I could just briefly take your Honours to the more important parts about what evidence there was and what the position was in the courts below as to the wife’s proceedings in Monaco.  May I take your Honours first of all to the affidavit of Maitre Palmero who was the husband’s lawyer in the Monaco proceedings, and if I can take your Honours to page 142 of the supplementary papers.  That is the numbers at the bottom right-hand corner. 

BRENNAN CJ:   Now, this affidavit was before the court?

MR BROUN:   Yes, indeed, your Honours.  Indeed, your Honours can see that was also in the appeal book, I believe, of the proceedings before the Full Court.

GUMMOW J:   Yes.

GAUDRON J:   Its filing date is 1 February 1984, so it was before - - -

MR BROUN:   1 February 1994.

GAUDRON J:   Yes.  It was before the Full Court then, not - - -?

MR BROUN:   No, it was also before Justice Ross-Jones and, I think, the Judicial Registrar.  Yes, it was before all courts at all times.

If I could perhaps begin on page 141 where Maitre Palmero explains the procedure, paragraph 9:

The rules of procedure relating specifically to divorce are set out in Article 199 to 206-16 of the Monegasque Civil Code.

BRENNAN CJ:   We have been through this material, Mr Broun.  So, what we need you to demonstrate is that - I think from your point of view you would need to demonstrate that before the Full Court there was evidence that there were pending divorce proceedings in the court at Monaco.

MR BROUN:   Certainly, your Honour.  The first then is Maitre Palmero:  he sets out what the thing is and at page 148 he actually annexes an English translation of the wife’s first-stage application which he describes as being the first stage in the divorce proceedings.  That begins on 148-149.  On 11 August 1993 it was filed.  So, that is before the husband’s application.

Then, if I can take your Honours to the husband’s own dissolution application.

BRENNAN CJ:   Does that matter?

MR BROUN:   He sets out the same material in his own dissolution application which is - - -

BRENNAN CJ:   Be it so but, I mean, that was not pending before the Monaco court, was it?

MR BROUN:   No, but the husband’s dissolution application in Australia refers to the fact when he filed it there was pending proceedings in Monaco.

BRENNAN CJ:   I see.

MR BROUN:   That is particularly at page 137 where he sets out what was happening - the pending proceedings in Monaco.  What it is an annexure to is explained further back in the document but, in effect, the dissolution application under the Australian Family Court Rules requires that any pending proceedings be documented or described in the dissolution application.  So, he actually sets out there paragraph 2, under “Part 1 (Monaco)”:

Application to initiate divorce proceedings (formal reconciliation hearing set for 17 November 1993:  no writ served).

Now, Maitre Palmero’s affidavit explains that.  The writ is the second stage of the divorce proceedings.  One has the first stage.  If the presiding judge is satisfied that it is appropriate to continue, then the writ for divorce may be served.  Then if I may take your Honours to the wife’s - - -

GUMMOW J:   The translation of the writ is at 156, is that right?

MR BROUN:   Yes, your Honour, that is the second stage, and Maitre Palmero, in his affidavit, explains that.

Your Honour, noting that date, 17 November 1993, which the husband refers to in his dissolution application which shows that it started before his dissolution application, of course, if I could take your Honours to the wife’s affidavit at page 201 where she refers to that hearing on that day.

GUMMOW J:   Yes, paragraph 18.

MR BROUN:   Paragraph 18, yes.  That was one of the ones which was not struck out or not disallowed by Justice Ross-Jones.  So, paragraph 18:  she refers to him having “appeared in person, with two lawyers” on that date.  Then, your Honours, if I may remind your Honours of the Full Court judgment, page 91 in the first volume where the fact that the Full Court was seized of this matter is made clear at line 14.  This is the Chief Justice’s judgment, Chief Justice Nicholson’s judgment:

Mr Broun pointed to the prompt issuing of family law proceedings here when proceedings were already pending in Europe, and to the fact that such was the husband’s involvement -

et cetera, but at the first two lines.  So, the Full Court was well seized with the point that we were making.

Then, your Honours, also, if it is necessary - and it may not add all that much - the fresh evidence material is at pages 188 to 190, or the most relevant part of it, which is the most recent judgment in Monaco which dismisses the husband’s appeal on the domicile issue, holding that he was, for their purposes, under their law, domiciled in Monaco.  The rejection of the fresh evidence by the Full Court is at page 172 saying, in effect, that they did not think it carried the matter much further.  That is Chief Justice Nicholson at line 20:

we do not propose to admit the fresh evidence, Mr Broun.  We do not regard it as taking the matter any further in terms of our determination of this issue.

And his Honour may well have been right, that it was already clearly before them that there were the pending proceedings and the further fresh evidence just clarified where it was up to; what the latest stage was but, particularly, pointing out, perhaps, the importance of the fresh evidence was that the Monaco court had dismissed the husband’s appeal on the ground of domicile, holding that that court had jurisdiction.

BRENNAN CJ:   In the affidavit that has been filed on the other side, there seems to be some insistence on the state of play as at the date on which proceedings were instituted in Australia by your client, as distinct from what might have been before the Full Court.

MR BROUN:   Your Honours, I think it is clear from Maitre Palmero’s material that on 11 August 1993 we had filed in Monaco the first stage or the first step in divorce proceedings and that that was returnable before that court on 17 November.  The husband then files an application here on 10 November.

BRENNAN CJ:   Yes.  Well, the question simply is does it matter that as at 10 November 1993 there were not then any proceedings seeking a dissolution of the marriage in Monaco for the reason that the proceedings that were held on 17 November in Monaco were conditions precedent to the issuing of divorce process and, in that sense, might be regarded as the first stage but were not, in fact, proceedings for divorce?

MR BROUN:   Your Honour, we would submit that it does not matter if, in effect, one has commenced what is Maitre Palmero even describes as the first step in dissolution proceedings, that is to say, we take the first step required to bring that situation about.  Now, it is a question, in effect, what does one do to institute?  Is it the taking of the first step or, having taken the first step, taking the second step of the actual writ for divorce?

BRENNAN CJ:   There are two questions, are there not, and that is, what is the issue that is going to be raised for consideration by this Court?

MR BROUN:   Your Honours, we would raise, as we put in our original submissions or contentions, the difficulty, essentially, which arises in a family law situation of a husband and wife who are not, in a sense, arm’s length litigants in that the pot for division is diminished by the litigation and the costs either of them incur.  They have, as it were, a financial unity which the Court is to dissolve and - - -

BRENNAN CJ:   But can you identify the legal issue for determination?

MR BROUN:   Your Honours, we have endeavoured to do so.  Following your Honours’ rejection of our grounds 1 and 2, we have endeavoured to redraft the notice of appeal and we have put it, in effect, in a form of what is relevant to the question of the forum non conveniens and essentially what we are hoping to convince the Court on appeal is that the doctrine laid down in Voth v Manildra Flour Mills should not apply in a husband and wife situation in its strong form of plainly inappropriate forum when one is dealing with a husband and wife situation where, in effect, the existence of two pieces of litigation is a matter of not just something to be adjusted on costs, it actually has an impact upon the fund or the property to be divided.  It is not the normal arm’s length situation where one can say - - -

BRENNAN CJ:   Is the question for determination whether or not the test is to be applied by a court as at the date of the institution of proceedings or at some other and what date?  That is the first question.

MR BROUN:   Your Honour, we would accept that the first date, the date of institution of the proceedings in this country, is the first position at which it should be reviewed but that a court should not be inhibited from looking at the subsequent developments of the matter in order to do justice and to defeat this terrible jurisdiction race which occurs, which is destructive to both parties and which, in effect, make the - - -

BRENNAN CJ:   I am not looking for a speech, Mr Broun, I am looking for a proposition that we can consider.  Now, the question is what is your submission of the proposition of law which, in your contention, this Court should uphold?

MR BROUN:   That the Court looks at the situation as at the date of the institution of the proceedings.  The Court further looks at the situation as it develops thereafter or what has happened since the institution of the proceedings in so far as it reflects upon the question of, essentially, which court should deal with the one dispute.  To look at it at both dates but certainly one would begin by what was the position at the time of institution and we would say that at the time of institution of the proceedings it was clear that there were already the proceedings on foot and being actively prosecuted and actively defended in Monaco.

GUMMOW J:   That, I thought you relied on as a matter of distinction, a point of distinction between this case and the so-called forum non conveniens cases?

MR BROUN:   Yes.  Your Honour, we would rely as the point of distinction that and also, in a matrimonial situation, really different principles must apply from the situation of arm’s length litigants; that one really has a different problem from an insurance company and an injured plaintiff or - - -

GAUDRON J:   Do you go so far though as to say that you have to look at what is, in effect, the sum of the matrimonial causes that might be in issue as distinct from the particular proceeding?

MR BROUN:   Indeed, your Honours.  It is, in our submission, a matter of which court is going to deal with the matrimonial causes - plural - between the husband and the wife and that one should not have litigation around the world between them.  One should have some court, somewhere, make an affirmative decision as to where it is to be and not accept the possibility of litigation in two courts racing with each other which may be appropriate in a situation where you have arm’s length litigants but which, we submit, is intolerable in a situation where you have a husband and wife.

GAUDRON J:   Now, is there anything in the papers - I presume not - as to the possibility of staying the proceedings in Monaco?

MR BROUN:   I do not think the husband - yes, sorry, he has, in fact, made an application to stay in Monaco as I believe it and it failed.  That is in the fresh evidence application, your Honour, particularly.  That refers to his appeal on the question of domicile and jurisdiction which would have produced a stay and that seems to be the way in which the question staying the Monaco proceedings was approached.

GUMMOW J:   But the stay was really in relation to jurisdiction because of domicile, was it not?

MR BROUN:   Yes, that is so.

GUMMOW J:   It was not a stay on broader considerations?

MR BROUN:   As far as any document I have seen it does not seem to have been approached on broader considerations and one could understand that since the parties had no connection with Australia during the married life and there was no property here.

BRENNAN CJ:   Mr Broun, looking at your amended draft grounds of appeal, if I go to ground 3 first of all, paragraph 3 on page 204 - - -

MR BROUN:   I put that in, your Honours, just in case that material was necessary.

BRENNAN CJ:   As I understand it, you are not pressing that?

MR BROUN:   No, we do not press that, your Honour.

BRENNAN CJ:   Well now, if we go back to paragraph 2, there is a recitation of a series of alleged facts, followed by the proposition that “Australia is forum non conveniens”.  That may well be right but, for my part at the moment, I do not understand what is the ground of law which you wish to advance.

MR BROUN:   Your Honour, I apologise that we have not formulated that with appropriate precision.

GAUDRON J:   You have put it in negative terms.  You have not asserted a positive proposition of law.  You have said that Voth v Manildra Flour Mills does not apply but what do you assert should apply or does apply?

MR BROUN:   Indeed, your Honour is right, I have not.  Essentially, the substance of our submission is that dealing with a husband and wife situation a decision should be made not at all on the question of non conveniens but on the question of which is the court to deal with the matter for the justice of the parties, the minimisation of costs and expense and the resolution of their problems in the appropriate place, in effect, the positive question of where should this issue be dealt with?

GAUDRON J:   Yes, but how is that to be determined, according to you?

MR BROUN:   The Court would obviously have to consider a large number of facts:  where they lived; where the property is; what their domicile is or was; what the costs factors would be, what we might call all the usual venue questions.  If one has an argument as to whether a case should be heard in Sydney or Wollongong, one considers questions of conveniens in all that sort of respect.  In our submission, when one is dealing with international citizens, one should not be saying “Let’s have jurisdictions compete” but the question of “What is the convenient, just, economical place to litigate?”

GUMMOW J:   Do you place any reliance on what seems to have been the submission set out at page 201, paragraph 16 of the affidavit?  That seems to have been before the judge - - -

MR BROUN:   No, your Honours, we have to accept the finding of the trial judge in the Full Court that under the Australian Domicile Act, the husband is domiciled in Australia but - - -

GUMMOW J:   No, I do not think you have read paragraph 16 properly, Mr Broun.  The question is do you say that is a factor?

MR BROUN:   We would, your Honour, in a hearing before a single judge but we would accept that that has not been established - - -

GUMMOW J:   We are trying to get to some propositions of law, Mr Broun.

MR BROUN:  

Yes, I appreciate, your Honour. 

GUMMOW J:   The questions is you say there are various factors.  I am asking you - - -

MR BROUN:   The proposition of law we would put, your Honours, is that when you have a husband and wife situation of this kind one does not decide it in the way of arm’s length litigants but on the basis of what is the convenience and justice as between this husband and this wife as to which court should deal with it and that in no circumstances should there be two.

GAUDRON J:   Now, when you say “in no circumstances should there be two”, do you put any special reliance on the fact that proceedings were in fact pending, whether they be for - whatever their nature be, that proceedings were pending pursuant to which there were orders made of the kind dealing with what would be matrimonial causes under our legislation?

MR BROUN:   Your Honours, we do place reliance on the fact - sorry, I should say we point to that as one of the factors which a court should take into account and it certainly has the additional advantage of being something that did not arise in Voth v Manildra Flour Mills and gives a point of departure or distinction but we would seek to go broader than that and to go beyond that and say that it should be determined simply on the question of somebody addressing the question, “Where should these parties be litigating their matrimonial problems?”

BRENNAN CJ:   Mr Broun, I have been trying to write down what might be your submission.  I am not sure that I have got it correctly but is it something along this line:  that as between the courts of Australia and the courts of another country where the jurisdiction of both to make a decree of dissolution of marriage has been invoked, the jurisdiction of the Australian courts should be exercised if, what?

MR BROUN:   If considerations of justice and convenience between the parties so permit or make it appropriate.

BRENNAN CJ:   Make it appropriate or less appropriate or more appropriate or - - -?

MR BROUN:   Perhaps I should say that the choice between the two should be on the basis of the consideration of justice and convenience between the

parties and not on a basis of having to show that one jurisdiction is wholly inappropriate or the Australian jurisdiction is wholly inappropriate.

BRENNAN CJ:   The jurisdiction should be exercised as a matter of choice between the courts on the footing of whichever court is more appropriate.

MR BROUN:   Yes, your Honour, rather than a burden of showing that the Australian court is a wholly inappropriate forum.

BRENNAN CJ:   Yes.

MR BROUN:   Thank you, your Honours.  I am sorry that I have not formulated with greater clarity.

BRENNAN CJ:   Yes, Mr Rayment.

MR RAYMENT:   If it please your Honours.  Your Honours, first of all can I deal with this question of lis alibi pendens which, at any rate, on the last occasion, formed the basis upon which it was suggested that the Voth Case was an inappropriate place to find the relevant principles.  Your Honours, what was pending on 10 November 1993 in the Monaco court was an application for judicial separation and nothing else, in our respectful submission. 

GAUDRON J:   An application to issue a petition, was it not?

MR RAYMENT:   There was an application to a judge, filed in August, the effect of which is to obtain the judge’s permission to issue a summons for a reconciliation conference.  If the parties are not then reconciled the judge may give permission to issue an assignation de divorce and once that writ is served and once its first return day occurs then, and only then, under the law of Monaco, is there pending any divorce proceeding between the parties, and all of that was a long time after 10 November.

GUMMOW J:   All these are questions of characterisation, Mr Rayment, really.

GAUDRON J:   There were proceedings pending.

MR RAYMENT:   There were proceedings of a kind pending.  They were proceedings for judicial separation pending.

GAUDRON J:   And for maintenance and - - -

MR RAYMENT:   There was a maintenance order within the judicial separation proceeding.

GUMMOW J:   But the consequence of a proceeding set out at 149 was the cancellation of the separation proceeding, was it not?  That appears at 151, line 8.  She accepts that she is going to sue for divorce now, not simply legal separation.  She is “obliged”, she says:

to institute new proceedings distinct from the first which shall be cancelled.

MR RAYMENT:   Yes, she says that.  They were not and they still have not been.  So that the current position in Monaco is that while there now have been correctly commenced divorce proceedings, there were two proceedings before the courts in Monaco.  Presumably, at some stage, he is going to have to elect between them.

BRENNAN CJ:   What is the meaning of 151, line 20?

MR RAYMENT:   That is a statement in the petition for divorce of August 1993.  No doubt, it was a correct statement of intention at the time, whereas, as things currently stand, Ms Pfeiffer intends to sue for divorce and no longer simply legal separation.

BRENNAN CJ:   Is this, as it is said to be, a petition for divorce?

MR RAYMENT:   It is called a petition for divorce but, no, it is not, in our terms.

GUMMOW J:   That is a question of characterisation.

MR RAYMENT:   Maitre Palmero says what it is.  Its legal affect is not to start a divorce proceeding.  She actually has a paragraph in the affidavit dealing directly with the question.  She says under Monaco law a divorce proceeding is commenced when not only has a writ been issued but it has been served and it has had is first return day.

BRENNAN CJ:   Let me understand this correctly.  Was this document, at page 151, the initiating process which, in the fullness of time, has led to the service of the assignation?

MR RAYMENT:   No.  Well, sorry, yes and no.  The assignation is the commencing document which, once served, will put the divorce proceedings in train.  It is the writ which initiates the divorce proceedings.

GUMMOW J:   Yes, I know, but you could not get to that stage unless you had been at this stage.

MR RAYMENT:   No, you could not.

GUMMOW J:   That is the point.

MR RAYMENT:   I accept that.   Now, a similar sort of question arises today in Europe about which is the court first seized.  There is a 1968 convention which applies in England and in most of the Continent which deals with issues of forum non conveniens in relation, particularly, this question of lis alibi pendens.  Your Honours, could I hand up a bundle of materials, the third part of which is the current Dicey and Morris dealing with the English Convention which discusses this very question of when a court is first seized.

GUMMOW J:   But it is construing a convention, is it not?

MR RAYMENT:   It is construing a convention, yes, your Honour.

BRENNAN CJ:   To which Australia is or is not a party?

MR RAYMENT:   Is not a party.

BRENNAN CJ:   That is all very interesting but, I mean, the problem that we have to face is this, is it not, that we have a decision here of the Full Court of the Family Court which applies Voth v Manildra to a situation where proceedings, however characterised, which have, in fact, led to divorce, where pending?

MR RAYMENT:   Yes.

BRENNAN CJ:   And, in fact, which at the time that the Full Court was reaching its decision had got to the stage of the service of the assignation.

MR RAYMENT:   That actually had occurred prior to the Judicial Registrar.  The service had occurred before the Judicial Registrar’s first hearing.

BRENNAN CJ:   Yes.  There are two possibilities of time, it seems to me:  one is when the proceedings are initiated; the second is when the court, or the jurisdiction of which is invoked, is asked no longer to exercise it.

MR RAYMENT:   Yes.  The husband, when he was served with the writ of divorce, the assignation, moved the Monaco courts to, I suppose, a stay, but certainly he challenged the jurisdiction of the Monaco court and the position as at the time of the hearing before the judge in this case, Justice Ross‑Jones, was that he had been successful.  The Court of Appeal in Monaco had agreed with him that the wife’s petition for divorce should be treated as being without jurisdiction.  By the time the matter came before the Full Court of the Family Court, the Cour de Revision had reversed that finding and they reached a view about domicile, as apparently always happens in Monaco, without hearing from any witness but just looking at a few documents that were allowed to be tendered.  They say in their reasons that having read those few documents they were not satisfied that the husband was domiciled in Australia.  They are directly opposite - - -

GUMMOW J:   A few documents or otherwise, I think we are getting away from the question that the Chief Justice was putting to you.

MR RAYMENT:   It is the case that by the time the matter was before the Full Court the Monaco courts had elected to proceed with the writ of divorce in Monaco.

Your Honours, could I put, shortly as I may, the reasons why we would respectfully submit this is not an appropriate case for a grant of special leave?  In the first place, if you look at the way in which a similar question about whether a lease is pending in the European courts, the question there is determined according to the national law of the various places where proceedings might be commenced.  You often have, apparently in England, this problem where the French courts require, for the purposes of commencement of proceedings, the service of a writ, whereas the English courts require merely that it be filed, and it is explained in the papers I have just handed up that the European court has resolved that question by saying it should be determined according to the national law of each of the respective countries.  So, the courts will work out in England who was first seized by looking at the national law of France and England, as the case may be, and working out under which law, according to each national law - - -

GUMMOW J:   That would be a question for us, I suppose.

MR RAYMENT:   It would.

GUMMOW J:   Of which there is no authority in Australia.

MR RAYMENT:   On which there is no authority in Australia.  But, in our respectful submission, that approach, if the question becomes material, would commend itself, that is, of asking, pursuant to each national law, when was the case commenced and answer is given in Maitre Palmero’s affidavit in this case:  under Monaco law, it was commenced when one, there had been service of the assignation and two, the first return date had occurred.  It was, after all, up to the wife to decide whether she would serve the writ and if she did not serve the writ then nothing happened.  It was, similarly, necessary for her to press the case to the point where the first return date occurs before a writ of divorce was regarded, under Monaco law, as having been commenced - proceeding for divorce, I should say.

BRENNAN CJ:   Now, if that is right, you should succeed if there were an appeal in this case but on grounds different from those which were advanced by the Full Court?

MR RAYMENT:   Well, the Full Court looked at the question, in our respectful submission, in precisely the right way.  The Full Court’s real reason for refusing to contemplate a stay was that the reasons advanced by the wife for such a view related not to the divorce between the parties but to the property settlement.  If you read the answer which she filed, the terms of which are set out in Mr Meyer’s affidavit, the answer claiming that there was something inappropriate about proceeding with the matter in Australia, it is all about not the divorce, the dissolution of the marriage, but the property.

GAUDRON J:   But that is what really worries me about this case.  There is filed at one in the same time a petition for divorce and an application for property settlement, this being procedure that I take is relatively new in the Family Court.  It used not to be the case, certainly.

MR RAYMENT:   I do not profess to know.

MR BROUN:   It has been possible since 1983, your Honour.

GAUDRON J:   Thank you.  Now, Monaco there are proceedings which, on any view, would be a matrimonial cause as defined under our legislation.

MR RAYMENT:   The judicial separation.

GAUDRON J:   Well, the application is for maintenance, whether it be interim or not and so forth.

MR RAYMENT:   Yes.

GAUDRON J:   How can you, in a case like this, isolate out the divorce petition from what is clearly going to be a case about disputed property?  Why would you not say, when you get the application for a stay of the petition, that, “We must have a look and take into account the fact that there are also property settlement proceedings here and that there are property proceedings that have reached a more advanced stage in another case”, and say, “What we are concerned with is the resolution of the various different matters in dispute between this husband and wife rather than the segregation of it into tiny separate steps.”?

MR RAYMENT:   Your Honour, in the first place, in Monaco, what had happened was there was a proceeding for interim maintenance in the judicial separation proceedings.  It was heard ex parte and my client was ordered to pay FF 50,000 a month, which is about $12,000 a month, which is a current order until, I think, 3 weeks ago or less when it was halved.  Your Honours, if a divorce decree is granted in Monaco on the wife’s petition which will follow a contested divorce because she has to establish fault, then and only then she may become entitled, under Monaco law, to some kind of division of property which would be a separate proceeding after the divorce before a notary public, apparently.

Now, here, quite a different order of events applies.  Here, a judge or a registrar, I am not sure, will determine - it is before a judge on the very question of forum non conveniens within the next few weeks in the Family Court as I think the Court was told on the last occasion.  But that will be, if the Court determines that it should proceed with the property application in Australia, a quite different proceeding and it will not depend upon any question of, “ Was anybody at fault?”  An order can be made in favour of the wife even if she was at fault.

GAUDRON J:   Does property depend on fault?

MR RAYMENT:   No, but getting a property order in Monaco depends upon getting a divorce and that depends upon fault as does judicial separation in Monaco also depends upon fault.  What you had really here ‑ ‑ ‑

GUMMOW J:   They would be factors to take into account, I suppose.

MR RAYMENT:   They would but they were not very well explored in the evidence and, your Honours, no submission was made below anywhere, either before the registrar or the judge or the Full Court that the onus on these matters lay otherwise than was suggested in Voth v Manildra, that is, otherwise than on the wife; no suggestion was ever made to that effect.

Your Honours, the first of those materials that I have handed up is a case of Gadd v Gadd in the English Court of Appeal where, as a matter of fact, after the Abidin Daver, there was a proceeding pending in Monaco and a proceeding pending in England and upon proof that the wife’s ability to get a property order depended upon her not being at fault, the court said that the English proceeding would be allowed to proceed.  That is the kind of evidence which, if an onus issue had been raised below, we could have sought to obtain.  But, indeed, the course is quite different:  before the Judicial Registrar, my learned friend’s junior who appeared - and we have put the transcript on with this affidavit - expressly conceded that he had the onus.  Before the judge, the Judicial Registrar who so found, was not challenged upon this matter and even in the Full Court there was no suggestion - when, in our submission, it was too late.  Even in the Full Court no submission was made that the onus was the other way.  We apprehend that my learned friend will say, in this Court if special leave is granted, that the onus was different from that which it had been agreed between the parties and by all the courts it was found to be on the wife.

Now, in our respectful submission, that is a good discretionary reason not to take this case.  My learned friend really wants to argue a point that was not taken below and which, if he had argued below, it would have been open to my client to obtain the kind of evidence that was led before the court in Gadd v Gadd, which is the very first of those materials that we have handed up.

BRENNAN CJ:   What was argued then below?

MR RAYMENT:   Very little.  We have actually put the transcript on about the matter.

GUMMOW J:   In a way, this matter has never been properly tried.

BRENNAN CJ:   Yes.

MR RAYMENT:   Very little has been ever said in the courts below about this issue of forum non conveniens, that is, by the wife who has had the carriage of it.

GUMMOW J:   It is not a very happy picture.

BRENNAN CJ:   One certainly gets the impression that a problem which is one of considerable importance has not even be adverted to by the parties.

MR RAYMENT:   Your Honours, the position as we would respectfully urge it is this:  there was pending before the Monaco courts something which might, after various other conditions precedent were fulfilled, lead to an application for divorce which might, in turn, lead to a finding of divorce depending upon whether fault was obtained and all of that, in our respectful submission, was at a no more than inchoate stage when my client started this case.  This case, of course, raised as to the divorce entirely distinct questions.  It was not in any way a question of the same facts being before two courts.  The relief was the same but the ground of obtaining the relief was quite different.  The relief would be obtained by my client as of right if he proved domicile, as he did, and if he proved separation for 12 months, as he did.

Now, the question, if properly investigated, would have been what were the differences between the property position in relation both to the wife and the husband under Monaco law and our law, and there is not much evidence on it.  There is in Gadd v Gadd but there is not here and it was never submitted below that the onus lay otherwise than on the wife.  So, in our respectful submission, the case is an inappropriate vehicle.  What your Honours will be doing is looking over materials tendered on a limited basis and perhaps even applying the presumption that foreign law is the same as local law in order to resolve this matter.

Before the Family Court shortly both parties will have a proper opportunity to put on evidence on the forum question and that, in our respectful submission, would be, if there be some error made, an appropriate vehicle as between these parties to investigate forum, not this one.  In our respectful submission, Suttor v Gundowda would preclude the kind of submission proposed, apparently, to be made by the appellant.

GAUDRON J:   Perhaps we should stand this over and wait and see what happens in the other court, see the other proceedings?

MR RAYMENT:   Your Honours, there is no reason, in our respectful submission, to think that if this matter were raised and agitated at length before a judge, proceedings not dependent on fault by a person actually domiciled here would have been stopped to allow to be proceeded with, complicated defended fault proceedings, in Monaco.

GAUDRON J:   That sounds very neat and clear but if one proceeds on the basis that there were matrimonial proceedings pending which might ultimately result in divorce and orders with respect to property and that there were subsequent matrimonial proceedings instituted which might have the same effect, why do you not just have a straight lis alibi pendens and why should you, when we all now know the actual decree is almost a side wind in terms of the matrimonial issues that arise, should we approach it by reference to the divorce proceedings as such rather than the fact that they are matrimonial proceedings?

MR RAYMENT:   There are two questions.  One is was there a lis pendens, and I have really submitted that on the materials which were before the Family Court there was not.

GAUDRON J:   If you look at it as divorce proceedings, there were not.  If you look at it as matrimonial proceedings, there were.

MR RAYMENT:   There were.  The second matter is no doctrine of lis pendens has ever stopped proceedings which were merely related to one and other going ahead at the same time in different countries.  If they were the same cause of action, a lis pendens doctrine has traditionally stopped such a proceeding but if they are related no automatic result has followed.

If you look at the way Lord Diplock put it - and perhaps the strongest statement against my client - in Abidin Daver 1 AC 398 - we have merely picked out the relevant passage from Lord Diplock’s judgment at the foot of page 411, and the top of page 412.

GUMMOW J:   That is a shipping case, is it not?

MR RAYMENT:   It is a shipping case, but it was applied - - -

GUMMOW J:   They have special residences for persons, particularly such as Lord Diplock, I think.

MR RAYMENT:   Yes.  Well, later that year the Court of Appeal applied it in Gadd v Gadd.  But just below G, his Lordship says:

Where a suit about a particular subject matter between a plaintiff and a defendant is already pending in a foreign court which is a natural and appropriate forum for the resolution of the dispute between them, and the defendant in the foreign suit -

and, of course, that was not what my client was, we would submit -

seeks to institute as plaintiff an action in England about the same matter to which the person who is plaintiff in the foreign suit is made defendant, then the additional inconvenience and expense which must result from allowing two sets of legal proceedings to be pursued concurrently in two different countries where the same facts will be in issue and the testimony of the same witnesses required, can only be justified if the would-be plaintiff can establish objectively by cogent evidence that there is some personal or judicial advantage that would be available to him only in the English action that is of such importance that it would cause injustice to him to deprive him of it.

That reverses the onus from the Voth v Manildra view, but it is in very limited circumstances.  It is not because there are shipping proceedings, for example, pending between the same parties, it is because the very collision which was the subject matter of both the Turkish and the English proceedings in that case, the merits of who was right and who was wrong, were to go before two courts with the same witnesses.  But that is, in our respectful submission, a distinguishable state of affairs and I have sought to put it at its highest against us by going to it.  Thank you, your Honours, those are our submissions.

BRENNAN CJ:   Yes, Mr Rayment.  Mr Broun.

MR BROUN:   Your Honours, firstly, as to the question of onus, the wife has always accepted the onus we would have to show why Australia should not be dealing with it.  The question is what do we have to show?  Before the lower courts, of course, we were - I hesitate to say - “stuck with”, but the courts were proceeding on Voth v Manildra as adopted and applied in matters other than child welfare matters or custody matters by the Full Court of the Family Court in Gilmore v Gilmore, that is to say, that what we had to show was clearly inappropriate forum.

As to why there was relatively little material about this question before the lower courts, of course the answer is simple:  everything was admitted.  Everything we relied upon:  where they lived during their marriage; where the property was; when the husband came to Australia; that they had never been in Australia during the course of the marriage or, until a year after they had separated, the husband had not been here.  All of that was admitted.  There was no real dispute on the facts so it was never really developed at any great length which is perhaps, in retrospect, a pity but when everything is admitted one does not spend a lot of time on it.

Your Honours, every country has a different family law, different procedure.  In Australia, we have a procedure which separates entirely the divorce from anything else.  I might say we have had the greatest difficulty getting the European lawyers to understand that such a bizarre system can exist anywhere in the world but in every single country there is a different method as to how one goes about dealing with the question of - - -

GUMMOW J:   What do you say about fault?

MR BROUN:   Fault.  There are non-fault grounds also, your Honours, but as I understand it, what is being proceeded with at the moment is an allegation of fault but there are non-fault grounds as well available, as I understand it.

GUMMOW J:   As you understand the Monegasque law?

MR BROUN:   But, certainly, there is no doubt that we are proceeding on a fault ground which does not, as I think my friend agreed, have any impact thereafter on the property question; that property is dealt with according to a statutory regime and the statutory regime to be applied, as we understand it, would be the German one because of the origin and most of the matrimonial domicile of these parties.

Your Honours, every country has a different method and one cannot, as it were, looking at the ordinary rules about a cause of action, analyse it.  It is essentially the whole question of separating a husband and wife and dividing up their property and, if there are children, working out what happens to the care of the children.

BRENNAN CJ:   What is the difference between the onus that you accepted in the court below and the onus in Voth v Manildra?

MR BROUN:   We accepted it as us to prove - it is up to us to show and satisfy the Court that the Australian court should not be dealing with it.  What we say is that we should not have to prove that Australia is a clearly inappropriate forum - Voth and Gilmore v Gilmore.  What we say is that we ought to be able to show the Court that Australia is not the place that, in fairness, justice and convenience, ought to be dealing with the division up of these parties’ - both of their marital ties and their property and financial relationships.

BRENNAN CJ:   What is the difference between those two?

MR BROUN:   One, we have a very heavy burden of showing that Australia is a place so clearly inappropriate that the Court should not be embarking upon it at all, the Court accepting the notion of two courts having litigation between the same parties.  We say that a court should come to a decision, “Where is the appropriate place?”, and make an order, in effect, to say, “Well, it’s in Australia.  We’ll restrain the parties from proceeding elsewhere” or “It’s in Monaco.  We’ll stay these proceedings”.  And, of course, there are cases, particularly in family law matters and children’s matters, where parties have been restrained from proceeding in a foreign court.

BRENNAN CJ:   What do you say about Gadd v Gadd?

MR BROUN:   We would say that it turns upon the interpretation of a particular treaty which, unfortunately, we do not have in Australia.  If we did, we might have been in a stronger position.

Now, your Honours, if it would assist the Court, Ms Gibson and I would have a go at redrafting our notice of appeal before the Court finally determined the matter to see if we could express it in a way that raises the questions as we perceive them more clearly.

BRENNAN CJ:   How long would it take you to do that?

MR BROUN:   We could do that within - well, certainly within a few days, your Honours.

BRENNAN CJ:   Could you do it within a few minutes?

MR BROUN:   I suppose I could but I would rather have a couple of days, if I could.

BRENNAN CJ:   Yes, but I mean this case has been going on and on, Mr Broun, and really, the issue that was important to this Court was directed to your attention some time ago in Brisbane.

MR BROUN:   Your Honours, I concede that your Honours did make it clear.  Perhaps I had not given enough thought to the drafting.  May we have a half an hour to attempt to do that, your Honours?

BRENNAN CJ:   You have 23 minutes, Mr Broun.  We will adjourn until a quarter to one.

MR BROUN:   Your Honours, we will do our best.  Thank you, your Honours.

AT 12.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.49 PM:

MR BROUN:   Your Honours, with the assistance of the Registry who has provided a very admirable typing service, we have prepared a draft ground.

BRENNAN CJ:   Yes.  We have a copy of that, Mr Broun, I think.

MR BROUN:   There would have to be, of course, consequential other changes in the notice of appeal.

BRENNAN CJ:   Yes.  You have seen this draft ground, Mr Rayment?

MR RAYMENT:   Yes, thank you, your Honour.

BRENNAN CJ:   Mr Broun, the draft ground does not even indicate whether or not, consequent on the breakdown of the marriage, there would be a suit for dissolution.

MR BROUN:   Your Honour, what we intended there is to say everything that results consequent from the breakdown of the marriage:  divorce, property, custody, if there were one.  In fact, there is not in this case.

BRENNAN CJ:   Reconciliation.

MR BROUN:   Indeed, your Honour, yes, the question of investigation of reconciliation.  Everything that results - - -

BRENNAN CJ:   Yes.  Well, we do not propose to grant you special leave on that ground.  I will, however, indicate to you a ground which, if you are minded to accept it, is one on which the Court will grant special leave.

MR BROUN:   Thank you, your Honours.

BRENNAN CJ:   Where there are proceedings for dissolution of marriage and for ancillary relief (whether contingent or otherwise on the making of a decree of dissolution) pending in an Australian court and in the court of another country, and an application for a stay is made to the Australian court, the Australian court should determine the application by reference to the general circumstances of the case including the order of institution of the proceedings, the history of the marriage, the connection of the parties with the respective jurisdictions and the issues on which relief might depend in the respective jurisdictions.

MR BROUN:   Your Honours, that expresses, if I may say so, what we have in mind better than I have done and we would certainly accept that ground, your Honour.

BRENNAN CJ:   I see.  Well now, that does not exclude you, Mr Rayment, of course, from raising any question as to the conduct of the proceedings in the court below.

MR RAYMENT:   No, if your Honour pleases.

BRENNAN CJ:   Very well, there will be a grant of special leave in this case limited to the ground which I have expressed.  There will, consequently, be an order continuing the stay of the proceedings for a decree in the Family Court of Australia pending the hearing and determinination of the appeal, if any, instituted pursuant to this grant of special leave or until further earlier order.

What we have said does not, of course, touch the property proceedings which are pending in the Family Court of Australia.  The order that we have made is in relation to the proceedings for the decree of dissolution.  It is a matter for the Family Court of Australia to consider and to determine any application made to it in relation to the property proceedings.

MR RAYMENT:   Your Honours, this may not be an appropriate time to ask for any possible expedition of this appeal but, your Honours, the proceedings have been pending a very long time, as your Honours will have noticed from the papers.  They have had a very long history, with the result see-sawing between these parties and, to the extent to which it is now open to me, I would ask your Honours to allow the matters to be listed as soon as an appeal book can be prepared because they obviously could have an effect upon the other pending proceedings as well.

BRENNAN CJ:   Yes.  Well, no doubt it will have to compete with other claims for the early consideration of the Court but I take it that your client is as anxious to proceed as the other side, Mr Broun?

MR BROUN:   Indeed, your Honour.  We would support any expedition that could be given.

BRENNAN CJ:   Yes, very well.  The request is noted, Mr Rayment, but you might keep in touch with the Registry and draw the Registry’s attention to any particular considerations which ought to affect the order of listing of the case.

MR RAYMENT:   If your Honour pleases.

AT 12.54 PM THE MATTER WAS CONCLUDED