Holt v Forehan
[2006] VSC 148
•21 April 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 9543 of 2005
| DIANA JILLIAN HOLT | Plaintiff |
| v | |
| JOHN TERRY FOREHAN | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 APRIL 2006 | |
DATE OF JUDGMENT: | 21 APRIL 2006 | |
CASE MAY BE CITED AS: | HOLT v FOREHAN | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 148 | |
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PRACTICE AND PROCEDURE – Application to transfer proceedings to Western Australia - Jurisdiction of Courts (Cross-vesting) Act 1987, s.5 – Whether in the interests of justice to transfer – Burden of proof – Role of burden of proof where factors are evenly balanced – Different principles to those in forum non conveniens applications - BHP Billiton Ltd v Schulz (2004) 211 ALJR 523, Ewins v BHP Billiton Ltd [2005] VSC 4, McLeod v Munro [2005] VSC 375 and Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA considered – Application to transfer granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr D. Kovacs | Taussig Cherrie & Associates |
| For the Defendant | Mr I. Jones | Rigby Cooke Lawyers |
HIS HONOUR:
This proceeding was brought in the Supreme Court of Victoria by writ issued on 24 November 2005. By her statement of claim, the plaintiff alleges that, at different intervals over some years, she and the defendant lived in a de facto relationship as man and wife; and that between the years 1985 and 1998, a period covering those intervals, the two enjoyed what the amended statement of claim describes as "a committed personal relationship." They were then residents of Western Australia. By the amended statement of claim, the plaintiff seeks an order that the defendant pay to her, pursuant to an equity of acquiescence, the sum of $195,000, or such other sum as to the Court seems just and equitable. She further (or in the alternative) claims an order that the defendant pay her $700 per month for 10 years by way of contribution to a specified mortgage.
The equity of acquiescence arises, so the statement of claim alleges, because by the plaintiff's actions the defendant has been unjustly enriched; and that unjust enrichment has resulted from actions – of which the defendant knew and in which he acquiesced – undertaken by the plaintiff in reliance, to the defendant's knowledge, on a promise made by the defendant to the plaintiff that he would make provision for the plaintiff's financial security. He was to do this by (a) subdividing for her benefit a farm owned by him; (b) leaving to the plaintiff in his will a life interest in that farm together with the fee simple ownership of a house owned by the defendant in the United States; and (c) discharging a mortgage over a property owned by her in Harold Street, Mount Lawley, Western Australia.
These promises, according to the plaintiff, induced her to take the primary responsibility for housekeeping at the several households maintained by the couple, and to make a substantial financial and non-financial contribution to the improvement and conservation of the properties and to the financial resources and welfare of the defendant. She also, she claims, decided on the basis of the promises that she did not need to invest in her own long term future; and she therefore refrained from doing so.
The further or alternative claim is for an order that the defendant pay to the plaintiff the sum of $700 per month for a period of 10 years. She alleges that, after the two separated, the defendant promised her that he would contribute for a period of 10 years to the mortgage on the Harold Street property or on any property which, having sold that in Harold Street, the plaintiff subsequently purchased. As things happened, a replacement property was purchased - in Peel Street, Kew, Victoria. The plaintiff now claims that she acted to her detriment in selling the Harold Street, Mount Lawler, property, and that it is unconscionable that the defendant be permitted to resile from the second promise.
The amended statement of claim alleges that each of the two promises upon which the plaintiff relies were made in Western Australia, and that, with the exception of the Peel Street purchase, the actions taken in reliance upon them were taken in that State. For his part, the defendant puts forward these circumstances to found an application, made by summons dated 18 January 2006, for an order that the proceeding be transferred to the Supreme Court of Western Australia.
The power to make such an order is conferred by the Jurisdiction of Courts (Cross-vesting) Act 1987. As Street CJ explained in Bankinvest AG v Seabrook[1], that Act forms an integral part of a legislative scheme, adopted by the Parliaments of the Commonwealth, the States and the Territories, to confer on each of the Federal Court, the Family Court and the eight Supreme Courts, an Australia-wide jurisdiction "and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another." The purpose of the scheme was to require "the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon considerations of the interests of justice."[2]
[1](1988) 14 NSWLR 711.
[2]Ibid, at 713-714.
A court has a prima facie duty to exercise its judicial power whenever its jurisdiction has been regularly invoked. The cross-vesting scheme does not displace this duty. Now overriding it, however, is a statutory requirement that such jurisdiction not be exercised, and that a proceeding be transferred to another of the courts exercising the Australia-wide jurisdiction to which Street CJ referred, whenever it appears that such a transfer is dictated by the interests of justice: BHP Billiton Ltd v Schultz[3].
[3](2004) 211 ALR 523 at [14] per Gleeson CJ and McHugh and Hayden JJ
The relevant legislative provision is, in its essence, simple enough. Where, as here, the question is one as between two Supreme Courts, s.5 of the Act relevantly provides that this Court shall transfer to that other Supreme Court a proceeding pending in this Court if it appears to this Court to be in the interests of justice that the proceeding be determined in the other Supreme Court.
This is to be contrasted with the position which arises when a court is asked to grant a stay of proceedings, and thus to put aside its prima facie duty to exercise its jurisdiction, because - although it is the forum selected by the plaintiff - another forum is clearly more appropriate; and the selected forum is, as such, therefore clearly inappropriate: this is known as the "forum non conveniens" ground for declining to exercise jurisdiction otherwise regularly invoked.
Such an application was made in Oceanic Sun Line Special Shipping Co Inc v Fay[4]. In that case, Deane J referred to a basic tenet of Australian jurisprudence: that, where jurisdiction exists, access to the courts is a right, not a privilege.[5] It therefore cannot be withdrawn unless the chosen forum is “clearly inappropriate”.[6] The emphasis is plain. A party who seeks to interfere with a plaintiff’s access, regularly invoked, to its chosen forum, has the burden of convincing that forum that it should nevertheless refuse to do what would ordinarily be its duty.
[4](1988) 165 CLR 197
[5]Ibid, at 252
[6]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
So it is in forum non conveniens cases. This is to be contrasted with litigation in which the issue is whether, because the interests of justice so require, there must be a transfer pursuant to s.5 of the Jurisdiction of Court (Cross-vesting) Act. The point is emphasised by s.5(7) of the Act, which provides that a court may, of its own motion, effect the transfer of a proceeding from that court to one or other (as the justice of the case indicates) of the nine remaining courts upon which the Australia-wide jurisdiction has been conferred.
In these cases, the question of the burden of proof gives rise to different considerations. In BHP Billiton Ltd v Schulz, Gummow J referred to the description of s.5 given by the Attorney-General for New South Wales in the second reading speech on the bill for what was to become the Cross-vesting Act. After noting that, if proceedings are commenced in an inappropriate court, the courts will have power to transfer those proceedings to the court which is most appropriate, the Attorney said that the purpose of the section was "to ensure that proceedings are always dealt with by the most appropriate court", Gummow J continued[7]:
"That legislative policy is implemented by s.5(7). This provides that an order for transfer may be made not only on application by a party to the proceeding, but by the court, either of its own motion or on the application of the Attorney-General of the Commonwealth or of a State. Section 5(7) indicates that it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof."
[7](2004) 79 ALJR 348 at [25]
There has been a deal of controversy about whether this passage is an accurate reflection of the law. Hayne J delivered a concurring judgment. Gummow’ J’s view was, however, not expressly endorsed by the other members of the Court (Gleeson CJ and McHugh and Haydon JJ), who delivered a separate joint judgment – but who, in doing so, emphasised that the courts must apply the cross-vesting legislation “without any kind of presumption as to where the balance of the interests of justice might come down”.[8] In this Court, Gillard J was “not prepared to accept that it [the relevant passage in the judgment of Gummow J] represents the law” because “[m]any judges have referred in the past to the burden, and the general view is that an applicant does carry a burden … [W]here the factors favouring a transfer and those against are equal, the burden of proof will have a part to play.”[9] For her part, Dodds-Streeton J - after referring to the remarks of Gillard J in Ewins – recognised “that there may be different views, but … [considered] the observations of Gummow J in Schultz to be persuasive.”[10] Her Honour noted in this context the statement of Rogers AJA in the Bankinvest case that “the only lodestar that a judge may steer by is, what do the interests of justice dictate should be done? It is inapt to speak in terms of onus. Bearing in mind that the court may make an order of its own motion the language of onus being discharged is inapplicable.”[11]
[8]Ibid, at [25]
[9]Ewins v BHP Billiton Ltd (unreported) [2005] VSC 4 at [39].
[10]McLeod v Munro (unreported) [2005] VSC 375 at [37].
[11](1988) 14 NSWLR 711 at 727.
I respectfully agree with Gummow J that it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. In so far, however, as Rogers AJA held that such an applicant bears no burden at all, I respectfully disagree. Unless the court decides that it is in the interests of justice that the proceeding be determined elsewhere, it will stay where it is. There are two inter-related reasons why this must be so. First, an application for transfer must fail if the considerations in favour of transfer are no more persuasive than the considerations in favour of retention - as, likewise, any court-initiated steps towards a transfer must in those circumstance cease (and in any event, a court would not of its own motion order a transfer unless, when that process was initiated, it appeared that the interests of justice pointed strongly in that direction, and those indicia were not subsequently displaced). Secondly, and of more importance, the legislation only allows the transfer of a proceeding if it appears to the court to be in the interests of justice that the proceeding be determined elsewhere. This is the other side of the cross-vesting scheme: where the interests of justice do point to a transfer, the first court has no discretion. The proceeding must be determined by the other court.
It thus remains true that it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Such an applicant is not in the same position in this respect as an applicant in a forum non conveniens case. The latter must confront the principle that, once the jurisdiction of the court has been regularly invoked, the court has a duty to hear and decide the issues between the parties unless it is a clearly inappropriate forum for that purpose; and if the application is to succeed, the applicant must persuade the court of that inappropriateness. The former, by contrast, need do no more than make it appear to the court that, in the interests of justice, the proceeding should be determined elsewhere; and will not face any kind of presumption about where the interests of justice might come down.
This, in the words of Street CJ in Bankinvest, is “a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.”[12] That being the nature of the inquiry, the decision of the House of Lords in Spiliada Maritime Corporation v Cansules Ltd”[13] is helpful. Paradoxically, this is so although it is a forum non conveniens case, and although in Oceanic Sun Line Special Shipping Co Inc v Fay, the majority of the High Court declined to accept it as stating the law in Australia on that topic. But, in considering the principles applicable to forum non conveniens disputes, the majority of the High Court in Oceanic favoured the “clearly inappropriate forum” test whereas, when undertaking the same exercise in Spiliada, the House of Lords approached the forum non conveniens problem much as if it had arisen under the Australian cross-vesting legislation. Thus, in his judgment in Bankinvest, Rogers AJA was able to say:
“Nonetheless, the criteria laid down by Lord Goff of Chieveley, with the approval of the other members of the House, for the application of principles of forum non conveniens, broadly correspond to the criteria designated by the [Jurisdiction of Courts (Cross-vesting)] Act. The questions posed by Spiliada and the legislation are the same. What court is more appropriate and what court is pointed to by the interests of justice. … I am not suggesting that the draftsman had the speech [of Lord Goff] available when drafting the Act. However, quite obviously, both the House of Lords in Spiliada and the parliaments enacting the cross-vesting legislation were responding to the same needs.” [14]
[12](1988) 14 NSWLR 711 at 714.
[13][1987] AC 460.
[14]Bankinvest at 728 per Rogers J.
The more appropriate court, and that which is pointed to by the interests of justice, is that which has the most real and substantial connection with the subject matter of the proceeding; and the connecting factors (which will vary from case to case - as will the weight to be given to each) “will include not only factors affecting convenience or expense (such as the availability of witnesses) but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business.”[15]
[15]Spiliada at 478 per Lord Goff of Chieveley.
There is no relevant difference between Victoria and Western Australia in the law applicable in the present case. That is therefore not a factor. Neither is the place of residence of the parties, since the plaintiff lives in one jurisdiction and the defendant in the other. In neither jurisdiction is there concurrent litigation which should be heard in conjunction with this.
In these circumstances, the allegations in the amended statement of claim are, I think, decisive. It is there asserted that, as a result of the first promise - and in reliance upon it - the plaintiff did a number of things. Western Australia was the location of all of them. She made improvements to the defendant’s properties in that State. She became pregnant by him, and at his insistence but at considerable personal anguish, terminated that pregnancy. She entertained the defendant, his friends and his business associates at the defendant’s property in Cliff Street, Perth, at his farm at Moore River, and at her Harold Street house. This on occasions involved catering and cooking elaborate meals, often for large numbers of people. At different times between 1985 and 1988 the couple lived together at each of these places, and at Floreat Park and Leederville. The plaintiff kept each stocked with food, and at each did most of the shopping and cooking as well as all necessary household tasks. She acted as caretaker at the farm: she mowed the grass, constructed a new horse-jumping area, improved the dressage arena, planted numerous trees, and did other extensive work on the gardens and grounds. She fulfilled the role of step-mother to the defendant’s two children, and encouraged and supported him in his personal and business pursuits.
These being allegations made in the amended statement of claim, one can be confident that the plaintiff will call evidence in an attempt to prove them. She may rely for this purpose only on herself. Or she may seek to call supporting witnesses. Perhaps those whom the plaintiff has in mind have also relocated to Melbourne. If so, I have no evidence to that effect. I must, however, take into account the likelihood that most of those who can speak admissibly about the matters raised by the plaintiff resided in Western Australia at the time, and reside there still. It is likely that both parties will anticipate the need to call some of these people, and take the necessary preparatory steps to that end: in an affidavit sworn on 29 March 2006, the defendant swore to his desire to call at least 17 witnesses, apart from valuers, all of whom live in Western Australia. There is also the real possibility that the need to call others will be appreciated for the first time during the course of the trial. If that is held in Melbourne, and the witnesses are in Western Australia, getting them to court in time on short notice might be much more difficult than it would were the trial to take place in Perth. This is true even in an age in which giving evidence by video-link is an everyday occurrence: it may well be less complicated to arrange to have a Western Australian witness give evidence when physically present in a Western Australian court, than to have that witness give evidence by video-link in Melbourne. In any event, my experience as a trial judge satisfies me that, all things otherwise being equal, contested evidence is best evaluated when given orally by a witness who appears in person in a witness box in the same courtroom as the judge or jury. And the evidence about the nature and extent of the plaintiff’s response to the defendant’s promises is as likely to be contested as is the giving of the promises themselves. Given such a contest, it is possible that one or both parties might seek a view – of the farm at Moore River, for example, to see the arena the plaintiff claims to have improved, and the horse jumping area she says she constructed.
If any expert evidence is to be called, the experts are far more likely to be based in Western Australia than in Victoria.
By contrast, the connections between the issues in dispute and the jurisdiction of the Supreme Court of Victoria are, it seems to me, much less substantial. The plaintiff now lives in the jurisdiction, and has purchased a house here. She claims that the defendant should contribute to the mortgage taken out by her to effect its purchase. The fact that she has a mortgage may not be in contest; and, if it is, the evidence necessary to prove its existence should be as easy to present in Western Australia as it is in Victoria, save that the plaintiff will have to travel to Perth for the purpose. According to an affidavit sworn by her solicitor, Debra Cherrie, on 31 March 2006, she proposes to call her bank manager and accountant; but I do not know whether their evidence will be controversial, and if it is not, it can be given via video-link without any prejudice to the plaintiff’s case. Even if it is controversial, I do not think that any disadvantage to the plaintiff would outweigh the disadvantages that the defendant will face if the proceeding is determined here.
The plaintiff through the affidavit of Ms Cherie deposes to an imbalance in her financial resources compared with those of the defendant. She “cannot afford the expense and inconvenience of conducting her proceeding in Western Australia”. He is a man, according to the affidavit, “of very comfortable means, owning property in Western Australia and Colorado in the United States and in receipt of a substantial income.” He is retired, and would therefore be less inconvenienced by having to travel to Victoria for the trial than would she if she is required to move to Western Australia for the duration. She remains in employment, and cannot easily absent herself for a Perth trial, or afford the expense of travel. Nevertheless, in the absence of evidence to the contrary, I assume that the plaintiff would be unable to attend her place of work while the trial continues, wherever it is held.
An order that the proceeding be determined in the Supreme Court of Western Australia would defeat the intent of the cross-vesting legislation (and the interests of justice) if the result was that the plaintiff’s lack of means forced her to abandon her claim even though for his part the defendant was financially able to defend it in Victoria. Were I satisfied that the plaintiff would have no choice but to discontinue if the proceedings were transferred as the defendant contends they should be, I would - given the evidence of his “very comfortable means … and… substantial income” - probably refuse his application for a transfer despite the considerations favouring the move. But I cannot be so satisfied. The plaintiff does not descend into sufficient detail for me to conclude that an order for a transfer would indeed result in the proceeding being discontinued because she could not afford to persist.
For the reasons given above, it appears to me that it is in the interests of justice that this proceeding be determined by the Supreme Court of Western Australia. In these circumstances, I have no discretion in the matter. The Jurisdiction of Courts (Cross-vesting) Act 1987 requires that I transfer the proceeding to that Court. I shall so order.
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