FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – JURISDICTION – application by represented third parties to summarily dismiss the intervenors’ cross claim on the basis that Division 1 of the Federal Circuit and Family Court of Australia has no jurisdiction to entertain it by reason of the fact that the represented third parties assert that units transferred from the bankrupt husband to his son are not “vested bankruptcy property” presently in the hands of the trustees-in-bankruptcy – whether paragraphs (cb) and (f) of the definition of “matrimonial cause” are engaged.
FAMILY LAW – JURISDICTION – court having jurisdiction to determine disputed questions of fact which ground the court’s jurisdiction – jurisdictional facts as distinct from adjudicative facts considered – validity, enforceability and efficacy of deed of settlement, deed of declaration of trust and instrument of transfer of 98 units hotly disputed – need to determine validity of three instruments in order for this court’s jurisdiction to be engaged – represented third parties seeking perfunctory dismissal of intervenors’ cross claim before a determination is made about the validity and efficacy of those three instruments – held, represented third parties’ summary dismissal application is dismissed.
FAMILY LAW – PRACTICE & PROCEDURE – represented third parties’ application to dismiss the intervenors’ cross claim on the basis that it has no reasonable prospect of success – test espoused in Spencer v Commonwealth and Lindon v Commonwealth applied – cross claim arguable – no basis shown for dismissal on the ground that it has no reasonable prospect of success.
FAMILY LAW – PRACTICE & PROCEDURE – DISCLOSURE – represented third parties’ application to limit disclosure to events not later than 2009 when deed of settlement, deed of declaration of trust and instrument of transfer were executed – that application counterintuitive to the overarching purpose of litigation in Division 1 of the Federal Circuit and Family Court of Australia – such an approach would serve to delay and prolong the litigation – held, application refused.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jess & Jess (No 7) [2023] FedCFamC1F 291
Case
[2023] FedCFamC1F 291
Decision Date
CaseChat Overview and Summary
In the case of Jess & Jess (No 7), the dispute involved the jurisdiction of the court to hear claims made by the trustees in bankruptcy regarding the vesting of bankruptcy property. The court was required to determine whether it had jurisdiction to hear the trustees' cross claim based on the definition of "matrimonial cause" under the Family Law Act. The trustees argued that their claim had a sufficient connection to the existing proceedings, which would allow the court to exercise jurisdiction under subparagraph (f) of the relevant section.
The primary legal issue was whether the court had jurisdiction to hear the trustees' claim, particularly in the absence of vested bankruptcy property. The court had to consider whether the claim could rely on the definition of "matrimonial cause" and whether the nexus required by subparagraph (f) was satisfied. The trustees contended that their claim had a connection with either the original property proceeding or the wife’s current property proceeding, which was sufficient for jurisdiction. Conversely, it was argued that the court could only determine its jurisdiction after making findings of fact or addressing issues of mixed fact and law.
The court held that it was not appropriate for the represented third parties to argue that the court lacked jurisdiction, particularly given the contested nature of the events leading up to the execution of the impugned documents and the existence of a legal argument regarding the retention of a bare right by Mr Jess Snr. The court had a duty to decide on the facts that underpinned its jurisdiction. Ultimately, the court found that it could not conclude, on a preliminary examination of the facts, that there was no jurisdiction. Denying jurisdiction in these circumstances would be inequitable and contrary to public policy.
The court ruled that it had jurisdiction to hear the trustees' cross claim, allowing the proceedings to continue. The decision highlighted the importance of the court’s duty to determine jurisdictional facts and the potential for equitable considerations to influence the outcome.
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MR J
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Ratio Decidendi
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MR J
Mr Myers AC KC also contended that a claim that relied exclusively on s 106B of the Family Law Act did not invoke any of the subparagraphs of the definition of “matrimonial cause”.[67] In reply Mr Austin KC submitted[68] – Now, the second issue that has been put against us about the want of jurisdiction is whether the court has jurisdiction even absent vested bankruptcy property by reference to subparagraph (f) of section – of the section which defines “matrimonial cause”. That subsection, of course – subparagraph, I should say, refers to completed – concurrent, pending or completed proceedings, and we say we have that in the sense that there was – there have been completed proceedings, and then there are existing proceedings. So there plainly are proceedings to which we can be attached to or parasitic to brought in this court. So that’s why we say section – subparagraph (f) is a sufficient jurisdictional hook for us to be here.…We say the nexus that is required by subparagraph (f) isn’t so confined and the claim – provided our claim under 106B has a connection with either the original property proceeding or the wife’s current property proceeding, that either is sufficient.[67] Transcript 23 March 2023 T 17 L 34.[68] Transcript 23 March 2023 T 47 L 20-30 and T 49.CONSIDERATION OF JURISDICTIONAL ISSUE Accepting that the trustees’ cross claim depended on an affirmative response to the question whether the vested bankruptcy property is presently held by the trustees, it seemed to me that this court can only give that answer once it makes findings of fact or addresses issues of mixed fact and law in order to determine its own jurisdiction. That approach is consistent with conventional orthodoxy in R v Federal Court of Australia; ex parte WA National Football League,[69] DMW v CGW[70] and R v Ross-Jones; ex parte Green.[71][69] (1979) 143 CLR 190.[70] (1982) 151 CLR 491.[71] (1984) 156 CLR 185. To my mind, it does not lie in the mouths of the represented third parties to contend that the court has no jurisdiction to entertain the trustees’ claims on the basis that bankrupt property did not vest in the trustees, in circumstances where – (a)the events leading up to and including the execution of the three impugned documents is contested; and(b)a legal argument exists to the effect that Mr Jess Snr retained a bare right which passed to the trustees and which bare right has been construed in the authorities as being property. In addition, as Deane J held in R v Ross-Jones; ex parte Green,[72] the court is under a duty to decide facts on which its jurisdiction depends.[72] (1984) 156 CLR 185, 222. In this case I am unable to reach a conclusion upon a preliminary examination of the facts that there is no jurisdiction. It would be most peculiar, to say nothing of inequitable, contrary to public policy and an affront to justice, that jurisdiction was denied to a party (the trustees) where the alleged want of jurisdiction was occasioned by acts described elsewhere as being fraudulently committed by one or more of the parties asserting the want of jurisdiction.