Hurley v Williamson
[2009] VCC 539
•19 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-00965
| JENNIFER MARY HURLEY | Plaintiff |
| v | |
| KENNETH DOUGLAS WILLIAMSON | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 May 2009 |
| DATE OF RULING: | 19 May 2009 |
| CASE MAY BE CITED AS: | Hurley v Williamson |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0539 |
RULING
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Catchwords: DOMESTIC RELATIONSHIPS - applicant commenced a proceeding under Part IX of the Property Law Act 1958 (Part IX was repealed on 1 December 2008 and the Relationships Act 2008 commenced on 1 December 2008) – respondent commenced a proceeding under the Relationships Act 2008 – application to strike out the respondent’s proceeding – whether respondent able to bring the proceeding under the Relationships Act 2008: sections 41(1) and (2), 72, 73 and 74 of the Relationships Act 2008.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Stoikovska | Berger Kordos |
| For the Defendant | Mr Strum | Robinson Gill |
| HIS HONOUR: |
Introduction
1 Before the Court is a Summons filed by the defendant returnable on 7 May 2009 applying to have the Writ and the Statement of Claim struck out.[1]
[1] The application made by Mr Strum was framed differently from the relief sought in the Summons
2 Mr Strum appeared for the defendant, who is the applicant to the application, applicant and Ms Stoikovska appeared for the plaintiff, who is the respondent to the application.
3 The defendant’s solicitor, Mr Robinson, filed an affidavit sworn 23 April 2009 in support of the application, however, Mr Strum and Mr Stoikovska informed me that because of the nature of the application the affidavit and its exhibits merely provided background rather than any direct evidence which would affect the outcome of the application.
The Proceedings
4 The following is the relevant history of the proceedings filed on behalf of the plaintiff and the defendant:
•
The defendant filed an Originating Motion on 28 November 2008 applying for an adjustment of property interests pursuant to Part IX of the Property Law Act 1958 (“Part IX”).[2]
•
Subsequently the plaintiff filed a Writ on 11 March 2009 applying for an adjustment of property interests and spousal maintenance pursuant to section 41 of the Relationships Act 2008 (“the Relationships Act”).
[2] Proceeding number CI 09-00965
The Issues before Me
5 Essentially the issues raised by this application are whether the plaintiff can commence a separate proceeding, or alternatively, bring a counterclaim, relying on the provisions of the Relationships Act where the defendant has commenced a proceeding under Part IX.
The Statutory Enactments
6 Part IX established a basis upon which domestic partners could apply to the court for orders for adjustment of interests in property.
7 Part IX was repealed on 1 December 2009 by the combined effect of sections 72 and 73 of the Relationships Act.
8 By section 74(4) of the Relationships Act, the commencement day of the Relationships Act was 1 December 2008.
9 Section 74 of the Relationships Act contains transitional provisions dealing with the repeal of Part IX and the commencement of the Relationships Act. Those provisions are as follows:
“(1) Subject to this section, any right or entitlement that a person had under Part IX of the Property Law Act 1958 immediately before the commencement day is taken, on and after that day, to be a right or entitlement of the person under this Act. (2) Despite its repeal, section 301 of the Property Law Act 1958, as in force immediately before the commencement day, continues to apply on and after that day in relation to any order made or injunction granted under Part IX of that Act before the commencement day. (3) If an application for an order under Division 2 of Part IX of the Property Law Act 1958 was made before the commencement day but had not been determined before that day, the application is to continue to be dealt with on and after that day in accordance with Part IX of that Act as if that Part had not been repealed.”
10 The purpose of section 74 is to make it clear which Act applies depending upon when an application is filed.
11 Subsection (1) provides that if domestic partners had any right or entitlement under Part IX, but had not made an application for adjustment of property interests as at 1 December 2008, when Part IX was repealed, then such right or entitlement is a right or entitlement under the Relationships Act.
12 Subsection (2) provides that orders made under section 301 of Part IX continue despite the repeal of Part IX.[3]
[3] Section 301 of Part IX deals with enforcement of orders
13 Subsection (3) provides that an application by domestic partners for adjustment of interests in property made before 1 December 2008 continue to be dealt with under Part IX as if Part IX had not been repealed.
14 Section 41 of the Relationships Act deals with an application for adjustment of property interests and maintenance. It is in the following terms:
“(1) A domestic partner may apply to a court for either or both of the
following—
(a) an order for the adjustment of interests with respect to the property of one or both of the domestic partners; (b) an order for the granting of maintenance. (2) An application may be made whether or not any other application for any remedy or relief has been or may be made under this Act or any other Act or any other law.”
15 Section 74(3) was relied upon by Mr Strum, who submitted that because the defendant had commenced his application before 1 December 2008 under Part IX, that the plaintiff was confined in any application which she desired to make to her rights and entitlements under Part IX.
16 The subsection does not go that far. It is trite to observe, that in interpreting the provisions of an Act, I must give to it the meaning intended by Parliament. If Parliament had intended to so confine an application commenced before 1 December 2008 under Part IX in that way, it would have said so.
17 I consider that the transitional provisions do no more than define the Act under which an existing application is to be determined and a new application is to be commenced. They do not limit a cross applicant to a cross application under Part IX merely because the commencing application was brought under
Part IX.
18 Therefore, I consider that the transitional provisions do not have the effect of limiting the respondent’s cross application to Part IX.
19 I am fortified in reaching that conclusion because I consider that it is section 41(2) of the Relationships Act which is relevant to the determination of the question raised by this application.
20 Section 41(2) is in Part 3.3 of the Relationships Act which is headed “PROPERTY AND MAINTENANCE”, and under Division 2 of that Part is a subheading “Application for orders under this Part”.
21 Section 41(2) was intended by the Parliament to define the circumstances in which an application could be made under the Relationships Act.
22 The subsection contemplates that an application might be made even though there is another application for any remedy or relief. Although that part of the subsection is drafted broadly, contextually it must include an application made under Part IX because it is also trite to say that the most relevant type of other application addressed by the subsection would be an application under Part IX.
23 Furthermore, the balance of the subsection contemplates that an application under section 41(1) could be made whether there was any other application for any remedy or relief under the Relationships Act or any other Act or any other law. I consider that this confirms that the Parliament had in mind the very situation of the respondent, that is, that any cross application should be made under the Relationships Act.
24 Given the conclusion I have reached that the transitional provisions do no more than the work I have referred to above, it must then mean that where an application is made by a domestic partner under Part IX before 1 December 2008 and a cross application is made after that date, whether by counterclaim or by Writ, such a claim is a cross application and must be based upon the provisions of the Relationships Act.
Conclusions
25 For the reasons enunciated above, I intend to dismiss the Summons, subject to hearing further submissions by counsel relevant to the matters referred to below.
26 I do not propose to consider the further application made by Mr Strum to strike out the respondent’s Writ pursuant to O23.01(1)(c) as an abuse of process of the court.
27 Whether or not the respondent was ill-advised in commencing the cross application by Writ or not, and whether the endorsement on the Writ is a statement of claim, are matters which I will consider on the next return date of the summons.
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