Jess & Jess & Ors
[2013] FamCA 863
•5 November 2013
FAMILY COURT OF AUSTRALIA
| JESS & JESS & ORS | [2013] FamCA 863 |
| FAMILY LAW – INJUNCTION – anti - anti-suit injunction – where the applicant wife seeks orders that would restrain the second, fourth and twenty-ninth respondents from commencing or pursuing proceedings in any other court to restrain the wife from continuing with proceedings in this court – orders made restraining the second, fourth and twenty-ninth respondents from commencing or pursuing proceedings in any other court to restrain the applicant wife continuing with this proceeding pending the hearing of the determination by this court of the challenge to its jurisdiction. |
| Family Law Act 1975 (Cth) s 79A; 90G; 90K; 106B; 117 Evidence Act 1995 (Cth) s 128 Family Law Rules 2004 (Cth) r 13.05 |
| McCarney v McCarney (1977) FLC 90-200 Esmore v Esmore (1979) FLC 90-711 Smith and Saywell (1980) FLC 90-856 Bak and Bak (1980) FLC 90-877 Baba v Jarvinen (1980) FLC 90-882 Savage v Hodgson (1982) FLC 91-281 Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 Société Aerospatiale v Lee Kui Jak [1987] AC 871 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Incitec Ltd v Alkimos Shipping Company (2004) 138 FCR 496 Pan Australia Shipping Pty Ltd v The Ship Comandate [2006] FCA 881 TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194 Lederer v Anor v Hunt (2007) 208 FLR 120 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551 Yen v Yen [2010] Fam CA 1 |
| APPLICANT: | Ms E Jess |
| 1st RESPONDENT: | Mr N Jess |
| 2nd to 29th RESPONDENTS: | Mr Jess (Jnr) & Ors |
| FILE NUMBER: | MLF | 3444 | of | 2006 |
| DATE DELIVERED: | 5 November 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 12 September, 18 September and 24 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Glick of Senior Counsel |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr McCormick |
| SOLICITOR FOR THE 1ST RESPONDENT: | Carew Counsel Solicitors |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Brown of Senior Counsel and Mr Mereine and Mr Waller |
| SOLICITOR FOR THE 2ND RESPONDENT: | HWL Ebsworth Lawyers |
Orders
That pending the hearing of the determination by this Honourable Court of the challenge to its jurisdiction, the Second, Fourth and Twenty-Ninth Respondents be and are hereby restrained from commencing or pursuing proceedings in any other court to restrain the Wife continuing with this proceeding.
The extent to which the Second, Fourth to Twenty-Ninth Respondents pay the Wife’s costs of and incidental to this application is reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jess & Jess and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: MLF 3444 of 2006
| Ms E Jess |
Applicant
And
| Mr N Jess |
First Respondent
And
Mr Jess (Jnr) & Ors
2nd to 29th Respondents
REASONS FOR JUDGMENT
Introduction
By application in a case filed 10 September 2013 (“the application”), the wife seeks orders that would have the effect of restraining the second, fourth to twenty-ninth respondents from commencing or pursuing proceedings in any other court to restrain the wife from continuing with proceedings in this Court. By response filed on behalf of the second, fourth to twenty-ninth respondents (Mr Jess (Jnr) and Ors hereinafter referred to as “JJO”) they seek orders that would have the wife’s application dismissed with costs.
The interlocutory proceedings have as their foundation the initiating application filed by the wife on 3 September 2013 which seeks the following final orders:
(1)That pursuant to Section 106B of the Act:
(a)The Deed of Declaration of Trust purportedly made on 28 February 2002 be set aside and/declared a sham;
(b)The Deed of Settlement executed by the Husband, the Wife and the Second to Twenty-Eighth Respondents on 20 September 2009 be set aside.
(2)That pursuant to Section 90K (1) of the Act (Family Law Act 1975) the Binding Financial Agreement between the Husband and the Wife dated 20 September 2009 be set aside by reason of:
(a)Fraud pursuant to Section 90K (1) (b);
(b)Being void, voidable or unenforceable pursuant to Section 90K (1) (b); or
(c)The Husband’s unconscionable conduct pursuant to Section 90K (1) (e).
(3)That pursuant to Section 79A (1) (a) of the Act the orders made by this Honourable Court on 24 September 2009 be set aside and by reason of the miscarriage of justice constituted by fraud and the giving of false evidence by the Husband.
(4)That this Honourable Court make orders for property adjustment as between the Husband and the Wife on the basis of the Husband’s property interests consequential to paragraphs 1, 2 and 3 above.
(5)That the First, Second, Fourth, Thirteenth and Twenty-Ninth Respondents pay the Applicant the costs of and incidental to this proceeding on an indemnity basis.
(6)Such further and other orders as this Honourable Court deems appropriate.
The wife also sought interim and procedural orders directed to the future conduct of the initiating application. Additionally, the wife filed a financial statement pursuant to Rule 13.05 of the Family Law Rules 2004 (Cth) on
3 September 2013. There is nothing that arises from the financial statement which is required to be considered in order to determine the application.
The husband has not filed a response to the initiating application, nor any documents in relation to the application in a case. Whilst JJO has not filed a response to the initiating application, that is hardly surprising given the position adopted by the respondents namely, to dismiss the orders sought in the application in a case and thereafter bring proceedings in the Supreme Court of Victoria, where orders would be sought that if granted, would see at the very least, the wife restrained from seeking orders in the initiating application which would involve the respondents.
The initiating application was initially listed for mention before Cronin J on
10 September 2013. The circumstances surrounding the hearing are the subject of an affidavit by the wife’s solicitor Stephen Gregory filed 10 September 2013. The chronology of events would appear to be uncontroversial. On the hearing before Cronin J the wife was represented by Mr Glick of senior counsel with Mr Dickson of counsel, the husband was represented by
Mr Crofts of counsel and JJO was represented by Mr Brown of senior counsel with Mr Waller of senior counsel and Mr J Mereine appearing.
At the hearing (but not before his Honour), an indication was given that JJO intended to institute proceedings in the Supreme Court of Victoria, seeking to restrain the wife from continuing with the proceedings filed in this Court.
When the matter was called on before Cronin J, senior counsel for the wife made an oral application to the effect that JJO be restrained from commencing or pursuing proceedings in any other court which seek to restrain the wife from continuing the current proceedings.
His Honour required formality and the current application was filed. The proceedings were adjourned for hearing on 12 September 2013. On that occasion the Court heard extensive submissions, both written and oral, predominately from senior counsel representing the wife and JJO respectively.
At the conclusion of the initial submissions, senior counsel for JJO sought my leave to file a further affidavit to annexe the reports of a handwriting expert commissioned by the wife in or about 2008. Submissions would be completed thereafter.
Without unduly truncating the submissions of senior counsel for JJO, for reasons that will become apparent, the importance of the reports is to establish that in the original proceedings, the wife considered that the Deed of Declaration of Trust purportedly entered into on 28 February 2002, was thought by the wife to have been made at a significantly later date, namely 2006/2007. This is particularly important in respect of the case as presented by JJO, namely, if the wife seeks to argue that she had no issue or concern in respect of the provenance of the said Declaration of Trust in the original proceedings with the matter becoming a live issue only once the alleged admissions were made by the husband that the said Declaration of Trust bearing the date of execution of 28 October 2002, was a sham.
The handwriting reports were apparently documents that formed part of the record in the proceedings before the Supreme Court of Victoria and senior counsel for JJO submitted that there would need to be a release from the “Harman Implied Undertaking” before those documents could be used in these proceedings.
Whilst there was some issue raised by senior counsel for the wife that this Court could grant a release from the Undertaking, in all the circumstances, I considered that the foreshadowed application should properly be made to the Court where the documents had been tendered.
Accordingly, the matter was adjourned to 18 September 2013 and then for final submissions on the said Application and Response to 24 September 2013.
Proposed supreme court of Victoria proceedings
By annexure “JJO 12” to the affidavit of Mr Jess (Jnr) filed 11 September 2013 and consistent with the intimation given by senior counsel for JJO before Cronin J on 11 September 2013, JJO annexes a draft statement of claim. The pleadings are relatively straight forward and provide a short history of the matter, but in particular pleads the following:
4.By a Deed of Declaration of Trust made 28 February 2002 (“Declaration of Trust”) [Mr N Jess] declared that all of the units which he held in the [Mr N Jess] Unit Trust were held upon trust for [Mr Jess (Jnr)].
5.On or about 24 July 2007 [Mr Jess (Jnr)] commenced a proceeding in this Honourable Court (proceeding number 7412 of 2007) (“Trust Proceeding”) against [Ms E Jess] seeking the following relief:
a)a Declaration that [Mr Jess (Jnr)] is the beneficial owner of 103 ordinary units and 1 class “D” unit in the [Mr N Jess] Unit Trust of which [Mr N Jess] was recorded as the holder in the Register of Unit Holders of [Mr N Jess] Unit Trust;
b)a Declaration that the Trust created by the Declaration of Trust has vested;
c)an order that [Mr N Jess] Pty Ltd amend the Register of Unit Holders in the [Mr N Jess] Unit Trust to record [Mr Jess (Jnr)] as the holder of the 103 ordinary units and 1 class “D” unit which [Mr N Jess] was recorded as the holder of.
By paragraph (7) of the said statement of claim, it is further alleged:
7.On 10 September 2007 Ms E Jess filed her defence in the Trust Proceeding alleging, inter alia, that:
a)she denied each and every allegation contained in paragraphs (5) and (6) of the statement of claim in the Trust Proceedings;
b)the Declaration of Trust was made to defeat an existing or anticipated order or likely [sic] to defeat such an order by the Family Court of Australia in anticipation of [Ms E Jess’] entitlement against [Mr N Jess] pursuant to the Family Law Act 1975 (Cth); [and]
c)the matters raised in the statement of claim were to be properly determined, and were the subject matter of proceedings instituted by her against [Mr N Jess], in the Family Court of Australia in suit number MLF3444/2006 and further that she had instituted proceedings against [Mr Jess (Jnr)] in the Family Court of Australia seeking a stay of the Trust Proceedings.
By amended defence the wife alleged that the Declaration of Trust is a “…sham and is void for illegality in that the execution was obtained by [Mr Jess (Jnr)] and [Mr N Jess] for the purpose of defeating any claim that she may have to assets of [Mr N Jess] by reason of their marriage.” (Summarised from paragraph (11(b)) of the proposed statement of claim).
The Trust Proceedings were fixed for hearing in the Supreme Court of Victoria on the 21 September 2009, but on 20 September 2009 it is alleged that the parties entered into a Deed of Settlement, which acknowledged that:
a)Mr N Jess acknowledges that Mr Jess (Jnr) is and had been since 28 February 2002 the beneficial owner of his units in the Mr N Jess Unit Trust by reason of the operation of the Declaration of Trust (clause 13(a));
b)in accordance with his obligations pursuant to the Declaration of Trust, Mr N Jess will forthwith execute and deliver to Mr Jess’ (Jnr) solicitors a transfer of his units in Mr N Jess Unit Trust (clause 13(b));
c)on the happening of certain events specified in clause 18 of the Deed of Settlement, Ms E Jess, Mr Jess (Jnr) and Mr N Jess Pty Ltd shall by consent seek orders in the Trust Proceedings that the proceedings be discontinued with no order as to costs (clause 18);
d)subject to payment (as defined in the Deed of Settlement) by Mr N Jess to Ms E Jess, Ms E Jess agrees to make no further claim against, inter alia, the plaintiffs based on any fact or circumstances existing as at the date of the Deed of Settlement and the Deed of Settlement may be pleaded in complete bar to any such claim (clause 25); [and]
e)subject to payment (as defined in the Deed of Settlement) by Mr N Jess to Ms E Jess, Ms E Jess hereby releases and forever discharges, inter alia, the plaintiffs from any claim that she now has or at any time in the future she may have based upon any fact or circumstance existing as at the date of the Deed of Settlement save only for future claims arising from the enforcement of the Deed of Settlement and the Deed of Settlement may be pleaded in complete bar to any such claims (clause 28).
Paragraph 20 of the proposed statement of claim pleads:
20.Wrongfully and in breach of clauses 25 and 28 of the Deed of Settlement, Ms E Jess:
a)on 3 September 2013 filed an Initiating Application in the Family Court of Australia proceeding number MLF3444/2006 against the Plaintiffs seeking, inter alia, an order that the Declaration of Trust be set aside and/or declared a sham; and
b)threatens and intends, unless restrained, to continue to prosecute the Initiating Application in the Family Court of Australia proceeding number MLF3444/2006.
Given that background, the plaintiff claims the following orders against the defendant:
A.An injunction (both permanent and interlocutory) restraining the Defendant from prosecuting the claims against the Plaintiffs in the Family Court of Australia proceeding number MLF3444/2006 or in any other proceeding; and
B. An order pursuant to clause 30 of the Deed of Settlement that the Defendant indemnify the Plaintiffs (other than [Ms P Jess]) for the claims brought in the initiating application in the Family Court of Australia proceeding number MLF3444/2006.
At line 25 of page 9 of the transcript of proceedings on 12 September 2013 the following passes between myself and senior counsel for the wife:
MR GLICK:
Paragraph 20:
“Wrongfully and in breach of clauses 25 and 28 of the Deed of Settlement, [Ms E Jess] on 3 September filed an initiating application in the Family Court against the Plaintiffs, seeking an order that the Declaration of Trust be set aside.”
That’s the breach. Now, your Honour, look at the – may we draw your
Honour’s attention to the relief, and the relief is – well, it speaks for itself. What the Plaintiffs are seeking to agitate and what we ask this Court to injunct on an interim basis is relief which seeks the following; an injunction of a permanent nature restraining [Ms E Jess], the Defendants from prosecuting the claims – all of the claims – against the Plaintiffs, not just the claims that are said to be a breach of contract, in the Family Court or in any other proceeding without time limitation or court limitation. So that, for example, if the Wife wishes to bring a cross claim as a separate stand-alone proceeding, she is barred in the Supreme Court. She is confined to a defence alone. Now, this Court won’t tolerate that your Honour.
HIS HONOUR:
And indeed, Mr Glick, as you would be aware, as far as the other party is concerned, significant reliance was had upon the matters that fell from both Brown J in the Family Court, but then Hansen J in the Supreme Court, and one of the issues that his Honour relied significantly upon – there were a number of issues – but one was that in terms of the dispute that was then before him, it did not bring him to challenge any issue of Commonwealth law. But of course the distinction in terms of the current proceedings now issued by the Wife is that it is very much an application of Commonwealth law; it has to be - - -.
MR GLICK:
Absolutely, your Honour. And further - - -
HIS HONOUR:
Sorry and the Supreme Court of Victoria could not possibly, it would seem to me – and I’m interested in the contrary argument – that the Supreme Court of Victoria certainly wouldn’t have any ability to hear and determine matters under ss 79A, 106B and 90K or 90G, and the difference between those proceedings before his Honour then and now is that we are dealing with the application and the operation of Commonwealth law. Is that - - -
It would appear against the background of that exchange, that when the further affidavit of Mr Jess (Jnr) was filed on 23 September 2013 annexing the reports of the wife’s handwriting expert namely, Mr JC, the draft statement of claim and summons was revised and forms annexure “JJO 15” which amends the orders sought in the following terms:
A. An injunction (both permanent and interlocutory) restraining the Defendant from prosecuting the Declaration of Trust claims against the Plaintiff in the Family Court of Australia proceedings number MLF3444/2006.
B. An order pursuant to clause 30 of the Deed of Settlement that the Defendant indemnify the Plaintiffs (other than [Ms P Jess]) for the Declaration of Trust claim brought in the Family Court of Australia proceedings number MLF3444/2006.
In summary, the injunction to be sought in the Supreme Court of Victoria both by way of permanent and interlocutory relief, is now to be confined to an issue arising in respect of the Declaration of Trust, ie. the application and orders sought to s 106B of the Act as opposed to the entirety of the proceedings.
Senior counsel for the wife argues that the foreshadowed proceedings now encapsulated by the draft statement of claim (annexure “JJO 15”) should be considered as “an anti-suit injunction” whereas the relief sought in the application in a case filed by the wife on 10 September 2013 should be considered as an “anti-anti-suit injunction”.
POSITION OF THE HUSBAND
As noted, the husband has not filed a response to the proceedings but has filed an application in a case on 23 September 2013, seeking an order that a certificate be granted pursuant to s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) for the husband.
The husband’s solicitor Ms Q swore an affidavit in support of the husband’s application. In summary, it is asserted that the evidence that the husband may give in the proceedings “…will give rise to a risk of his criminal prosecution.”
The focus of the purported concern is the circumstances in which the Declaration of Trust dated 28 February 2002 was created. It appears that in the original proceedings, the husband swore and had filed various affidavit material that raise the possibility that “…in giving that sworn evidence he committed one or more offences against or arising under Australian law”. I am not asked to deal with that application and I do not intend to do so, although it is necessary to note that in submissions by counsel for the husband, I was told that the husband had been given advice that the certificate may be required before the husband should file a response to the initiating application of the wife. It was generally conceded by the husband’s counsel that there would be no substantial challenge to the assertions made by the wife in support of the application.
background
The wife is aged 45 years. The husband is aged 83 years. The parties were married in 1988 with a divorce order being made on 2 May 2008. There are three adult children of the marriage. Mr Jess (Jnr) is a son from the Husband’s previous relationship. Proceedings for settlement of property commenced in 2006. Mr Jess (Jnr) was not a party to the original Family Court proceedings and it is only in relation to the current round of proceedings that the son and the other corporate respondents became parties to the proceedings.
On 24 July 2007, JJO filed proceedings in the Supreme Court of Victoria against the husband and the wife. It is alleged by JJO (and the husband) that they entered into a Declaration of Trust executed on 28 February 2002 with the essential terms, namely, that the units that the husband held in the Mr N Jess
Unit Trust were held on trust for JJO and accordingly he was the beneficial owner since 28 February 2002.
The relief sought by JJO is summarised as follows:
·That JJO was the beneficial owner of 103 ordinary units and one “D” class unit in Mr N Jess Unit Trust wherein the husband was recorded as the registered holder of the units.
·That the Trust created by the Declaration of Trust purportedly signed on 28 February 2002 had vested.
·That the Register of Unit Holders be amended to reflect the holding of the said units as being Mr Jess (Jnr) as opposed to the husband.
The wife asserts that “…the effect of the transfer of units pursuant to the Declaration of Trust had the effect that the son would control all of the assets of the [Mr N Jess] group of companies and in particular, the [Mr N Jess] franchise business, which significantly decreased the assets available for distribution between [Mr N Jess] and me in the Family Law proceedings.”
It is obviously not for me to determine the accuracy of the wife’s assertion in respect of the effect of the purported Declaration of Trust on the property that was available for division between the parties. It would not appear controversial however, that the value of the units affected by the Declaration of Trust was substantial.
By amended application in a case filed 27 July 2007, the wife sought orders that Mr Jess (Jnr) be joined as a fourth respondent to the proceedings and importantly, that the Supreme Court proceedings be transferred from the Supreme Court of Victoria to the Family Court of Australia. In addition, the wife sought an order that Mr Jess (Jnr) be restrained from continuing the proceedings in the Supreme Court action number 7412 of 2007. Whilst it will be the subject of further comment, the wife’s application for an anti-suit injunction and a transfer of proceedings (amongst other matters), was the subject of a decision delivered by Brown J on 30 January 2008 which dismissed the relevant parts of the wife’s application.
The wife filed her defence in the Trust Proceedings in September 2007, in which she denied the relevant allegations made by the plaintiff and asserted that the Declaration of Trust was made “…to defeat an existing or anticipated order or likely to defeat such an order by the Family Court of Australia in anticipation of Ms E Jess’s entitlements against Mr N Jess pursuant to the Family Law Act 1975 (Cth).”
As part of the determination of Brown J, she gave consideration to the orders sought by the wife for the transfer of the proceedings from the Supreme Court of Victoria to the Family Court of Australia. Whilst her Honour considered that the Court would not make the orders sought by the wife for transfer, her Honour recognised that the wife (as a defendant) in the Supreme Court proceedings could seek such a transfer.
At [59] her Honour said:
59.To turn briefly to the arguments relating to transfer (if an application were made) there is no doubt that the Supreme Court has jurisdiction to entertain the proceedings brought by [Mr Jess (Jnr)]. An applicant for transfer of them to this Court would have to convince the Supreme Court that this is the appropriate forum in which the dispute should be determined, having regard to the provisions of s.5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.). As there were proceedings between the husband and wife in this Court when the Supreme Court proceedings were instituted, the proceedings could also have been instituted in this Court, but only in reliance on accrued jurisdiction. That might be said to suggest that the Supreme Court is the more appropriate forum. The matters for determination in the Supreme Court proceedings do not arise under, or involve questions as to the application or validity of, the Commonwealth law; they are squarely within the jurisdiction of the Supreme Court. That may also suggest that the Supreme Court is the appropriate forum.
On 20 March 2008, the wife filed an amended defence alleging the Declaration of Trust is a “sham and is void for illegality in that its execution was obtained by Mr Jess (Jnr) and Mr N Jess for the purpose of defeating any claim that she may have to the assets of Mr N Jess by reason of their marriage.”
A further application was filed in the trust proceedings seeking an order of transfer of the proceedings from the Supreme Court to the Family Court of Australia. That application was heard by Hansen J in the Supreme Court of Victoria on 21 July 2008 with judgment delivered on 5 September 2008.
As part of the background reasons, his Honour records:
6.[Ms E] disputes the validity and bona fides of the alleged declaration of trust. Her amended defence filed 20 March 2008 alleges (at paragraph 4) that the document purporting to be a declaration of trust is a sham and is void for illegality in that its execution was obtained by [Mr Jess (Jnr) and Mr N Jess] for the purpose of defeating any claim that she may have to [Mr N Jess’] assets by reason of their marriage. Paragraph 7 alleges, further and in the alternative, that the declaration of trust “was made so as to defeat an existing or anticipated Order or likely to defeat such an Order by the Family Court of Australia in anticipation of [Ms E’s] entitlements as against [Mr N Jess] pursuant to the Family Law Act 1975”.
His Honour referred to the decision of Brown J delivered on 30 January 2008 and summarises her Honour’s findings in the following manner:
8.…[b]alancing all factors, her Honour concluded that it was not appropriate to require [Mr Jess (Jnr)] to make an application in the Supreme Court for the transfer of the proceeding, nor was it appropriate to restrain [Mr Jess (Jnr)] from prosecuting the Supreme Court proceeding. Her Honour noted, however, that [Ms E] retained the right to bring an application in the Supreme Court for transfer of the proceeding under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
9.[Ms E] has now brought such application under s 5(1) of the Act.
His Honour summarised the issues for determination in paragraphs 20 and 21 of his reasons for judgment. I set out those paragraphs because they provide a convenient summary of the basis by which their Honours Brown J in the Family Court and Hansen J in the Supreme Court of Victoria came to their separate decisions which was to dismiss the wife’s separate applications:
20.As to s 5(1)(b)(ii)(A), I note that [Mr Jess (Jnr)’s] proceeding was clearly capable of being instituted in the Supreme Court and, as Brown J correctly stated, the proceeding was capable of being instituted in the Family Court but only in reliance on that Court’s accrued jurisdiction. I have regard to these matters.
21.As to s 5(1)(b)(ii)(B), Brown J considered that the matters for determination in [Mr Jess (Jnr)’s] proceeding do not arise under, or involve questions as to the application or validity of the Commonwealth law, but rather are “squarely within the jurisdiction of the Supreme Court”. In my view, [Mr Jess (Jnr)’s] proceeding does raise the application or interpretation of a Commonwealth law - in that paragraph 7 of [Ms E’s] amended defence, while not expressly invoking s 106B of the Family Law Act 1975 (Cth), follows the wording of that section - but the matters raised fall within the equitable jurisdiction of the Court, in that the relief sought by [Mr Jess (Jnr)] is discretionary, and in exercising that discretion, any rights [Ms E] might have under s 106B would be a relevant factor for the Court to consider. Thus it cannot be said that [Mr Jess (Jnr)’s] proceeding raises matters of Commonwealth law which are only in this Court because of cross-vesting legislation. I agree with Brown J that the matters raised are squarely within the jurisdiction of the Supreme Court
I refer to the above references to highlight a significant distinction in respect of the current proceedings namely that the matters for determination are centred upon relief sought pursuant to the Family Law Act 1975 (Cth) (“the Act”) but in particular pursuant to s 106B, s 90K(1) and s 79A(1)(a).
An initial criticism by senior counsel for the wife was the breadth of the injunction sought by JJO, which would see the wife restrained, if granted, from bringing proceedings in the Family Court to which she is clearly entitled. There is no doubt that the relief sought by the wife is an application of Commonwealth law. It is not suggested in the proceedings brought by the wife that the matters raised therein are matters to which the Family Court does not have jurisdiction or that the exercise of the jurisdiction is conditional upon the exercise of accrued jurisdiction (as was the issue before Brown J). It is also not seriously asserted by senior counsel for JJO that the relief sought by the wife could or should consider to fall “…squarely within the jurisdiction of the Supreme Court…” or that it would be in the interests of justice or the efficacious resolution of the litigation if the relief sought by the wife were heard in the Supreme Court.
There is however an argument made by senior counsel for JJO that the limited topic of whether the Declaration of Trust was signed on 28 February 2002 or at some much later date, is a matter within the jurisdiction of the Supreme Court and by reason of the terms of the Deed of Settlement this Court may either lack jurisdiction to hear the dispute or should decline to do so. Whilst I do not disagree that this matter could be dealt with in the Supreme Court as a limited topic, it cannot be said that the Family Court lacks jurisdiction to hear and determine the issue, not as ancillary relief but rather pursuant to its clear jurisdiction to do so, namely pursuant to s 106B, and as a matter clearly inter-related to the s 79A proceedings.
In any event, Hansen J accepted that JJO should not be required “…to litigate his claim in the Family Court proceeding.” His Honour considered it persuasive that:
· there was a relatively discrete point which will bind the parties.
· the litigation could be heard and determined in the Supreme Court more swiftly than in the Family Court.
· the wife had not particularised her claim in the Family Court and that the case was, in all the circumstances, far from being ready.
· the costs could well be more significant for JJO if he was required to have regard to all of the matters that arise between the husband and the wife that did not necessarily involve a consideration of the Declaration of Trust.
Ultimately, Hansen J dismissed the wife’s application and the Trust Proceedings were therefore to remain in the Supreme Court.
The trial in relation to the trust proceedings was to commence on 21 September 2009. The Family Court proceedings were ongoing. On 20 September 2009 a Deed of Settlement (“the Deed”) was entered into by all parties (including JJO) which saw a resolution of all matters both as between the husband and the wife in terms of settlement of property, but also as between the wife and JJO.
Integral to the opposition by JJO to the wife’s application, reliance is placed upon the terms and conditions of the settlement but in particular, paragraphs 13(a) and (b), 18, 25, 28 and 30 of the Deed.
A broad overview of the Deed of Settlement is an acknowledgement that JJO has been the beneficial owner of the units held by the husband in Mr N Jess Unit Trust (“the Declaration of Trust”) since 28 February 2002 and further, that the wife agreed to make no further claims against the husband, JJO, any member of the family of Mr Jess (Jnr) or indeed any employee of the Mr N Jess group and reserved to JJO the right to plead the Deed of Settlement “…in complete bar to such claim”.
The wife also released and forever discharged the husband, JJO and others from any claim that she may now have or will have in the future “…based on any fact or circumstance existing as at the date of this Deed save only for future claims arising from the enforcement of this Deed and this Deed may be pleaded in complete bar to any such claim…” (paragraph 28).
A significant settlement sum was paid by the husband to the wife and the trust proceedings in the Supreme Court of Victoria were discontinued with each party to pay their own costs.
In May of 2010, it appears that arising out of a deleterious medical event affecting the husband, the husband and wife reconciled their differences.
At paragraph 25 of the affidavit of the wife filed 3 September 2013, she records:
25.On 31 May 2010, I visited [Mr N Jess] at the [V Hospital]. He made an emotional apology to me for the way he had treated me during our separation and divorce proceedings and admitted to me that I had been defrauded by the Deed of Declaration of Trust which he described as a sham, and admitted his complicity to proceed with a plan to defraud me of my proper entitlements pursuant to the Family Law Act, such plan being presented to him and discussed by [Mr Jess (Jnr)] and [Mr W] in or about early 2007. [Mr N Jess] also apologised for the way he had treated our children during the course of our matrimonial proceedings between 2006 and September 2009. [Mr N Jess] also specifically apologised for the way I had been treated as a result of the allegations arising from the incident on 15 December 2006 which resulted in my public humiliation as a result of the intervention order and criminal proceedings. He said that this was part of the plan designed by [Mr Jess (Jnr)], [Mr W] and him to humiliate my publicly to a point where they would attempt to force me to back down from my Family Court proceedings and the franchise proceedings which were on foot in the Supreme Court of Victoria at the time.
It is alleged by the wife that the Declaration of Trust purportedly executed on 28 February 2002 was in fact not entered into until at the earliest, early 2007. Accordingly, the wife asserts that the Declaration of Trust was “a sham”.
It is a reasonable summary of the wife’s position that if at the time the settlement between all parties took place on 20 September 2009, she knew by reason of the admission of the husband, the circumstances in which the Declaration of Trust had been entered into, she would not have felt compelled to explore, investigate, and ultimately agree to a settlement. I am not necessarily able to make any decision about that. It is not controversial that the settlement to the wife was significant. It may be the case that the wife considered she was entitled to more, but that she was not able to obtain the necessary evidence to support her contention that the Declaration of Trust was a sham. It may have been the case that if the proceedings in the Family Court had taken their course, the wife may or may not have received that which she ultimately did receive pursuant to the settlement.
To some extent these considerations are irrelevant in the sense that the issue to be considered is whether an injunction should be granted restraining JJO from issuing proceedings in the Supreme Court of Victoria, as opposed to the issue being heard and determined in the Family Court as part of the wider relief being sought.
It is clearly an apprehension of JJO that the wife’s case may be on stronger ground if the Court accepts that whilst the wife may have been suspicious in respect of the motive for JJO and the husband to enter into the Declaration of Trust in 2002, there was still uncertainty and a lack of prima facie evidence as distinct to her current position, namely, the purported confession of the husband that the Declaration of Trust was entered into a number of years later.
For that reason, a further affidavit of Mr Jess (Jnr) was filed on
23 September 2013 annexing expert reports of Mr JC, a handwriting expert instructed by the wife in the trust proceedings. The purpose of the handwriting reports was to establish a date or period when the Declaration of Trust may have been signed (if not 28 February 2002) and for the purposes of these current proceedings JJO relies upon the expert’s reports to demonstrate that the wife at least contemplated, or could have actually asserted that the Declaration of Trust was possibly not signed on 28 February 2002, but at some later date. In summary, JJO submits that when the wife settled the proceedings with all parties on 20 September 2009, she did so with sufficient support for her suspicion that the Declaration of Trust may have been a sham. It could now not be said, according to JJO, that the wife is taken by surprise in terms of the admissions allegedly forthcoming from the husband that he and his son had effectively conspired together to transfer assets potentially available for the Court’s consideration, thereby thwarting an order that could have potentially been made in the property settlement between the husband and the wife.
The summary of the position of JJO is conveniently set out in his later affidavit as follows:
8.If the Trust Proceedings had not settled on 20 September 2009, I was ready, willing and able to:
8.1commence the trial of that proceeding in the Supreme Court of Victoria on 21 September 2009; and
8.2meet and refute the allegations made by [Ms E Jess] in relation to the Deed of Declaration of Trust and, in particular, the allegation that it was a sham because despite it being dated 28 February 2002, it had in fact not been executed in 2002 but rather in 2006 or 2007.
9.In these proceedings, the purpose of the proposed proceeding in the Supreme Court of Victoria is to restrain [Ms E Jess] from prosecuting in this Court of claim in relation to the Deed of Declaration of Trust which was previously before the Supreme Court of Victoria and which she has comprised.
Submissions were made by senior counsel for JJO as to the use that I could make of the handwriting reports of Mr JC being reports dated
19 December 2008 and 15 January 2009 which form annexure “JJO 13” to the affidavit filed 23 September 2013. I do not propose to form any concluded view as to what the reports were intended to convey or what interpretation might be open following their publication.
I think that it is uncontroversial that the first report in time was inconclusive in terms of when the Declaration of Trust was signed if not 28 February 2002. It appears that further documents were provided by the wife and there was renewed focus on the Declaration of Trust being a document identified in the handwriting reports as “Document 8”. Whatever other expertise the handwriting expert brought to bear on the matter, it seems that the significant assumption arises out of two medical strokes allegedly suffered by the husband, one minor stroke in 2005 affecting the husband’s left side and a more serious stroke in 2006 affecting the right side. Put simply, there was at least the possibility that a more fluent or fluid (my words) signature was more likely prior to the strokes sustained by the husband but that after those medical events, it was more likely than not (again, my words) that the husband’s signature would be demonstrably different, and if on the wife’s case she considered the possibility of the signature being affixed in 2006 or 2007, then this might be self-evident by the quality of the signature.
My reading of the second report is that there is some level of equivocation as to whether the Declaration of Trust (Document 8) were signed before or after the strokes sustained by the husband. It appears that an inherent difficulty in the process is that the original of the Declaration of Trust is not available and that may have introduced a significant margin for error.
The report writer considers that further tests should be undertaken namely, that the originals of the document should be submitted for further examination, but the report writer forms the view that the signature that appears on the Declaration of Trust is that of the husband but that:
…the disputed [Mr N Jess] signatures imaged on the documents item 8 and 13 are consistent with the patterns formed by the signature standards in the period January to November 2007.
As such, it is my opinion that it is probable that both of the disputed [Mr N Jess] signatures were signed by this writer during the year 2007.
Accordingly, JJO argues that the current proceedings should not be assumed to have been motivated by the alleged admissions of the husband (even if the assertion of the wife as to those admissions is true), in circumstances where at the time of the settlement on 20 September 2009, the wife had evidence that supported the view of the documents having been signed at a later date namely 2007 as opposed to 28 February 2002.
The wife argues however that if the husband had made the admissions to her then that he makes now, she would have had less doubt as to the prospects of success and it may be the case that JJO would not have been quite so prepared to run the litigation in the Supreme Court if he knew that he did not necessarily have the support of his father. In any event, and irrespective of the inference that might reasonably arise from the handwriting reports, JJO maintains that the Declaration of Trust was indeed signed on 28 February 2002 as alleged, and not at any date thereafter.
Ultimately I am of the view that if the husband maintains, corroborates or gives evidence as to the admissions allegedly made by him and relied upon by the wife, this would represent a significant difference in terms of the position that the wife found herself in September 2009 as to the present date.
I do not lose sight of the fact however that at present the matters upon which the wife relies are by way of her allegation of admissions made by the husband, but which to the present date, are not supported by the husband’s evidence by affidavit. There appears to be some support however for the matters relied upon by the wife arising out of the application for a certificate pursuant to
s 128 of the Evidence Act and in any event, the wife relies upon other co-lateral evidence that she asserts supports the contention. For the purposes of this application I do not make any finding as to whether it is more likely than not, the Deed of Declaration was signed on 28 February 2002 or any other date. It is an issue raised, it is at first instance arguable and I consider that a prima facie issue arises. It is a matter for another day as to whether and to what extent the wife is ultimately able to support her contention by evidence that she is able to produce, whether that be from the husband and/or from any other source.
issues
The Court has been significantly assisted by senior counsel for each of the parties (not including the husband) in the preparation and tender of outlines of submissions. Those documents were also supported by lists of authorities. I have had close regard to the extensive submissions and the relevant authorities relied upon.
Senior counsel for the wife summarises the application of the wife as an interlocutory injunction seeking to restrain JJO from bringing the foreshadowed proceedings in the Supreme Court of Victoria.
The wife argues that the proposed proceedings in the Supreme Court should be considered as “an anti-suit injunction” and therefore the wife’s application seeking to restrain the foreshadowed proceedings in the Supreme Court should be considered as an “anti-anti-suit injunction”.
The important distinction is as set out in paragraph 4 of the outline namely:
4.The Wife’s application may be viewed, in the language of the Federal Court as an anti-anti-suit injunction. It is not an injunction directed at controlling how a litigant should conduct existing or present litigation in other Courts. On the contrary, it is an injunction which is granted to protect the right of the litigant to have his or her litigation proceed in an orderly manner and in accordance with the rules and procedures of the Court in which the proceeding is issued. Injunctive relief has received Judicial approval as the appropriate method for preventing attempts by litigants to interfere with the Court’s ability to control its own processes and proceedings and to give effect to the principles of comity between the Courts of Australia.
As has been earlier the subject of comment, the wife argues that the Family Court clearly has the appropriate jurisdiction to deal with the relief sought by the wife as against the husband and the third party being JJO, but importantly, JJO is not in any way impeded in his ability to challenge the part of the wife’s proceedings which he says must be considered as subject to the terms of the Deed of Settlement dated 20 September 2009. Put simply, there are appropriate remedies open to JJO namely, an application for summary dismissal of that part of the wife’s application considered offensive or a stay whether it be by way of interim or permanent injunction.
In short, the wife submits that it is only the Family Court that can deal with the entirety of the relief sought by her against both the husband and JJO.
In contrast, it is submitted on behalf of JJO that the wife seeks an anti-suit injunction against the foreshadowed proceedings in the Supreme Court. There is no admission that the wife’s application should be considered as an “anti-anti-suit injunction” or that if I were to so find, that its focus is not an injunction that seeks to restrain a party from proceeding in an appropriate court, but rather an injunction that has as its heart the purpose of protecting the Court’s process and to give real weight to the concept of the importance of comity between courts.
It is argued by JJO that the application of the wife is an “unusual step” and that what is proposed by the wife’s application is to restrain JJO from proceeding “…in their Court of choice to enforce a ‘clear contractual obligation’ owed to them.”
In summary, it is contended on behalf of JJO that it is the interpretation and if necessary, the enforcement of the contractual obligations by the wife arising out of the Deed of Settlement which is central to both the interim application, but also the principal relief sought by her. If the wife is successful in the Supreme Court, then the remedies she seeks in the Family Court will still be available to her. If she is unsuccessful and there are findings in favour of JJO and against the contention of the wife that the Deed of Declaration was either a fraud or a sham, then those findings will not have to be the subject of further or separate litigation and may have the effect of bringing the proceedings in the Family Court to an early conclusion.
JJO puts forward the proposition that it may be more simple and of a significantly more narrow compass to focus on the provenance of the Declaration of Trust in the Supreme Court as a single issue controversy rather than engage in the more uncertain proceedings in terms of scope and compass of the general relief sought by the wife in the Family Court.
Senior counsel for the wife counters the argument raised on behalf of JJO, and argues that the proposed summons and statement of claim “…create by its issue a competing controversy…” against the backdrop of proceedings already issued, broad in their nature and in any event enabling JJO to seek appropriate remedy, that if successful, would see JJO excused from further involvement in litigation in the Family Court between the parties.
legal issues
In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 the High Court considered whether an anti-suit injunction made by a judge at first instance and left in place by an appeal court should remain.
A dispute between an Australian company and a United States subsidiary arose with the United States parent company of an Australian led insurer. The Australian company and its subsidiary brought proceedings in a United States court seeking relief. The parent company insurer brought proceedings in the Supreme Court of New South Wales seeking an anti-suit injunction to restrain the continuation of the United States proceedings. The Australian company and the United States subsidiary sought a stay of the New South Wales proceedings. The trial judge at first instance granted the anti-suit injunction and dismissed the application for stay. The majority considered that the trial judge had erred in making the anti-suit injunction and considered that a stay of the New South Wales proceedings should have been granted. As part of the Court’s determination, consideration of any difference or distinction between a stay order and an anti-suit injunction was considered. At page 390 the Court approved of the consideration by the Privy Council in Société Aerospatiale v Lee Kui Jak [1987] AC 871, namely:
…[a]lthough stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
The High Court also made reference to Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 to further reinforce the position in Australia namely, that the Court has adopted an “inappropriate forum test” rather than the “more appropriate forum test”. A stay is therefore to be granted only if the Australian Court is considered to be a clearly inappropriate forum.
In considering the Court’s power to grant anti-suit injunctions the Court said in CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392:
The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the Court’s own proceedings or processes.
(references omitted)
At pages 395-396 the Court considered the appropriate practice with respect to interlocutory anti-suit injunctions and summarised the position as follows:
The cases concerned with injunctions in restraint of proceedings in foreign courts recognise that, although an injunction of that kind operates in personam, it nevertheless interferes with the processes of the foreign court and may well be perceived as a breach of comity by that court. Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot in the following terms:
“‘Comity’, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws.”
For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings, should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction.
(references omitted)
JJO would argue that far from the Supreme Court of Victoria being considered “a clearly inappropriate court”, it is in fact appropriate. It is a court that has a pleadings regime and in all the circumstances, it is argued that the Court is better suited to consider matters of fraud and sham as are likely to be alleged by the wife.
There appears also to be no doubt it is able to make orders necessary to protect its proceedings by restraining a party from pursuing relief in a State court (see Smith and Saywell (1980) FLC 90-856 at 75,438 – 75,439 and Bak and Bak (1980) FLC 90-877 at 75,551 – 75,552.
Whilst the ability to order an anti-suit injunction is well settled in circumstances when this Court should do so, is not necessarily straight forward. Senior counsel for JJO referred me to the decision of Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 at 3, namely that an order:
…should rarely, if ever, be granted to restrain a party not otherwise controlled by statute or clear contractual obligation, from proceeding in the appropriate court of another State of Australia.
It is noted that this decision was also applied in Lederer v Hunt (2007) FLC 93-311 at [35]-[36] and Yen v Yen [2010] Fam CA 1 at [40].
In Esmore v Esmore (1979) FLC 90-711, Nygh J, at pages 78,796 – 78,797, considered the proper interpretation of what fell from the Full Court in McCarney v McCarney (1977) FLC 90-200 at page 76,058 where their Honours said:
…[b]ut we consider it undesirable that an injunction should ever be framed to restrain a person from proceeding in another court of competent jurisdiction to seek relief to which he is entitled by law. While at all times prepared to assist applicants in proper circumstances and within the scope of the Act, this court should avoid making orders in terms which may give the impression of a jurisdictional conflict between judicial bodies.
Nygh J’s response to this statement in Esmore (supra) is found at page 78,797:
…whilst I would agree respectfully with the Full Court [in McCarney (supra) in respect of the passage quoted above], as to the desirability of such an action, I do not read the statement as implying that such orders cannot be made as a matter of law, or as indicating they should never be made under any circumstances. Where, as here, the exercise of jurisdiction by a State Court would defeat the rights of the party under the Family Law Act I feel that this Court should act. If the Full Court did imply that even in such situations this Court should not issue an injunction, then I would respectfully differ with a view which is not binding upon me.
In Lederer v Hunt (supra) the Full Court considered an appeal from an order which restrained the husband and others including various companies from filing proceedings in the Supreme Court of New South Wales seeking orders under s 175 of the Corporations Act 2001 (Cth) to correct the register of members of various companies in relation to shares held by a deceased party. The focus of the proceedings would potentially have had a significant effect on the control of the various companies in circumstances where the trial judge found:
…that each of the nine plaintiff companies were, prior to the death of Andrew Lederer, controlled and owned in various forms by Andrew Lederer, Paul Lederer and [the husband].
In the trial judge making the anti-suit injunction restraining the issuing and/or continuation of proceedings in the Supreme Court of New South Wales, the appellants alleged that the trial judge had fallen into error by not giving proper consideration to the principles in CSR Ltd v Cigna Insurance Australia Ltd (supra), had no or little regard to the consideration of comity between the Family Court and the Supreme Court, that the wife could have, but did not apply for a stay in the Supreme Court, and that in any event the Family Court was a clearly inappropriate forum. The appeal was dismissed.
The Full Court, at page 81346, referred with approval to the observations made by the Court in Beecham (Aust) Pty Ltd v Roque Pty Ltd (supra) and to the remarks of Nygh J in Baba v Jarvinen (1980) FLC 90-882. In summarising the general principles that should be applied, the Full Court considered that it would be an oversimplification of what fell from the High Court in CSR Ltd v Cigna Insurance Australia Ltd (supra) if it is suggested that to grant an anti-suit injunction should only occur in the most extreme and unusual circumstances, accordingly its application would have little application.
The Full Court referred to the explanation expressed by the High Court in
CSR Ltd v Cigna Insurance Australia Ltd(supra) under the heading “Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions” at page 389 to 390 ([39]):
…[t]he question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country[,]
and:
[a]lthough stay orders and anti-suit injunctions are not governed by the same principles, … in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings … [a]nd …that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
At [42] of Lederer v Anor v Hunt (supra) the Court gave a number of examples of where an anti-suit injunction may have a focus for “the protection of the integrity of a court’s own processes”. It was emphasised that the categories as described are by way of example only and it should not be assumed that “…[t]he inherent power to grant anti-suit injunctions is not confined to the examples just given.”
In summary, whilst the granting of an anti-suit injunction would be considered unusual, the matters raised by Nygh J in Baba v Jarvinen (supra) at paragraph 37, the Full Court in Savage v Hodgson (1982) FLC 91-281 focused the attention on issues relating to comity between courts.
It is submitted on behalf of JJO that he has a right to bring proceedings in the Supreme Court of Victoria and that it is a court with appropriate jurisdiction. Subject now to the proposed amended statement of claim, the injunctive relief sought by JJO is targeted only in respect of that part of the wife’s proceedings that relate to her attempt to set aside the disposition and transfer of units from the husband to JJO pursuant to the Declaration of Trust document executed on 28 February 2002.
It is also submitted that the process in the Supreme Court would be far more efficient litigation in the sense that it is of narrow focus and once resolved, is then a matter which will not need to be reconsidered in the Family Court.
Senior counsel for the wife submits that the argument presented on behalf of JJO is misconceived. The wife, according to senior counsel, is not seeking an anti-suit injunction but rather is seeking a process to “…protect the processes of this court and to stop the relevant respondents from bypassing this court by them seeking an anti-suit injunction against the wife in another court.”
It is also submitted that it is precisely in proper recognition of the principles of comity between courts in Australia that if an appropriate remedy is available a party should not institute proceedings in another forum but rather, should apply to the forum where proceedings have already commenced.
In summary, JJO could seek the orders that are being sought in the Supreme Court of Victoria in the Family Court as part of the proceedings already issued.
Senior counsel for the wife submits that the consideration should not be the principles that apply to an anti-suit injunction but rather that apply to an
anti-anti-suit injunction.
Reliance was placed on the decision of Rares J in Pan Australia Shipping Pty Ltd v The Ship Comandate [2006] FCA 881.
This case is one of a number of decisions that involve issues of contract as between parties which provide for arbitration rather than the issuing of proceedings if a conflict arises.
The outline of argument prepared by senior counsel for the wife refers to the following passage from the judgment of Rares J in Pan Australian Shipping Pty Ltd:
[18]I am of the opinion that those threats clearly conveyed that on the basis of English law as evidenced in Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90, the owners would seek to enjoin the further progress of these proceedings and the issue of any statement of claim pursuant to r 22 of the Admiralty Rules.
[19]The basis on which the plaintiff seeks an injunction is, in effect, to preserve the subject matter of such rights as the plaintiff may have, having regularly invoked, as the concession of the unconditional appearance demonstrates, the jurisdiction of this court to decide the in rem proceedings.
[20]The power of the court to protect its own process is one that is not susceptible of definition in closed categories. The purpose for which the court, as a superior court of record, has inherent powers it is to protect its processes is so that, inter alia, all persons may approach the court and so that its jurisdiction may be not merely invoked but exercised where it exists.
[21]In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 – 392 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said:
The counter point of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion (see, eg, with respect to the power to grant a Mareva injunction, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619 621 and 639… And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if “an estate is being administered…or a petition in bankruptcy has been presented…or winding up proceedings have been commenced…an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets”… [A] court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
…
[23]Just as the court can protect the efficacy of execution in proceedings which it has not yet decided, it can also protect the ability of persons to approach the court who seek the regular invocation and exercise of its jurisdiction.
…
[32]I am of the opinion that it is in the interest of justice that the authority of this court to hear and determine the matter which has been raised in the evidence before me as being a controversy between the parties, and such other matters as the plaintiff may wish to agitate, be safeguarded by an interlocutory injunction. All of those matters should be allowed to at least be put in a form which the court can consider whether its jurisdiction has been regularly invoked and whether there are any reasons for refusing to exercise that jurisdiction.
Accordingly, in respect of the proceedings already on foot in the Federal Court, any challenge to the jurisdiction was not to bring proceedings in another court but rather to seek a stay of the extant proceedings. As Rares J said at [25]:
In my opinion it is part of the court’s inherent power to protect the efficacy of proceedings already on foot which the Admiralty Rules contemplate can be supplemented by the pleading of a statement of claim. That may include in personam claims and other claims outside those contemplated under the Admiralty Act 1988 (Cth). These proceedings, which have been regularly instituted, should not be interfered with peremptorily by the threats which the defendant has made to enjoin the plaintiff from proceeding with its rights to invoke and have the court exercise its judicial power.
The judgment of Finkelstein J in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551 is of assistance. The short facts are that the applicant brought proceedings in the Federal Court on the basis of misleading and deceptive conduct by the respondent. Cosco whilst taking part in the proceedings foreshadowed that it might commence an arbitration in the United Kingdom based upon its interpretation of the contractual arrangements between the parties. The applicant sought to restrain the respondent from taking proceedings to pursue the arbitration.
At [55] his Honour referred with approval to remarks of Alsop J in Incitec Ltd v Alkimos Shipping Company (2004) 138 FCR 496 at 508:
…[t]he very existence of the possibility, if not probability, of duplicated litigation is, on modern authority of the highest persuasive stature a cogent consideration in assessing the effect of an exclusive jurisdiction clause. This is for good and powerful reasons based on the cost and inconvenience of litigation and the desire not to foster the circumstances of courts coming to different conclusions about the same facts on perhaps different, or even the same, evidence.
As was said in TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194 at [33]:
…[t]he existence of simultaneous proceedings alone does not, however, establish that a subsequent action is vexatious. Something more is needed; the applicant must “shew that there is vexation in point of fact, that is to say, that there is no necessity for harassing the Defendant by double litigation”: Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 at 232.
conclusion
Counsel for the wife argues that the foreshadowed action in the Supreme Court is not genuinely to be considered as a competing claim but rather is “…tactical only and has only one purpose: to block and frustrate and the wife’s attempt to have her claims heard in this (or any other) court”.
There is no suggestion on behalf of JJO that the wife is not entitled to bring proceedings in the Family Court in respect of the relief that she seeks. Whilst it is strongly asserted that there is either scant or no effective evidence upon which the wife relies to support her contention that the Declaration of Trust document is a sham (in the absence of the husband filing an affidavit in support), nonetheless I consider that that is a matter that goes to the weight to be attached to the evidence ultimately rather than fundamental to the entitlement of the wife to bring the proceedings at first instance. Indeed, if anything, it might provide an appropriate basis for JJO to bring an application seeking the summary dismissal of the proceedings or a permanent stay. It is not a basis to assert without challenge that the order the wife seeks should not be granted.
The wife has filed the proceedings in the Family Court seeking relief to which she is entitled. If her assertion has evidentiary foundation, she may very well obtain the orders and the relief that she seeks. The aspect of the wife’s application that has become the effective target of JJO, are the orders that the wife seeks pursuant to s 106B of the Act. The wife is clearly entitled to bring such an application. It is difficult to see why the wife should not be permitted to pursue that part of the proceedings.
The remedies that JJO seeks in the Supreme Court are available in the Family Court. Unlike the gravamen of the decisions of Brown J in this Court and Hansen J in the Supreme Court, there can be no argument that the Family Court is anything other than the appropriate jurisdiction. There is no suggestion that the Family Court is unable to properly deal with allegations raised by the wife of fraud, or that the Declaration of Trust is a sham. In any event, JJO seeks to issue proceedings in the Supreme Court, but to deny the entitlement of the wife to issue proceedings in the Family Court in circumstances where the relief sought is clearly the application of Commonwealth law and may be seen to constitute the day to day and routine business of the Family Court.
The application of the wife should be fairly seen as an anti-anti-suit injunction with its purpose to respect the processes of the Family Court, but as importantly, to encapsulate and reduce the scope of the litigation. JJO seeks to create new litigation in circumstances where any controversy raised can clearly be dealt with within the parameters of the extant proceedings.
In the circumstances of this case, I consider that the Supreme Court of Victoria is an inappropriate forum in terms of the entirety of the controversy. I do not consider that the late proposed amended statement of claim necessarily assists JJO in its argument seeking to restrain the wife from effectively being heard on the orders that she seeks pursuant to s 106B of the Act.
Accordingly, I propose to make orders in terms of the wife’s application in a case.
costs
I have received no submissions in respect of matters relating to costs. But in the circumstances of this case, I consider it appropriate to make some remarks on the issue of costs given that this application and the response have been argued as a discreet matter and not as part of the general proceedings.
The matter is unusual in the sense that I have not heard substantially from the husband and he has not sought to be involved in the proceedings other than the general position that appears to be adopted by him, namely that he supports the wife’s application. Whilst there is outstanding before the court the husband’s application seeking a certificate pursuant to s 128 of the Evidence Act, that is a matter for the husband in any event. I am not necessarily persuaded that whilst the husband may well seek a certificate in respect of a response and affidavit material yet to be filed, having proper regard to s 128(7) of the Evidence Act there may be little or no utility in the husband’s application in any event, he makes no application for costs and in any event I do not consider in the circumstances that he should be a proper recipient.
I am obliged to consider the provisions of s 117(2A) of the Act in circumstances where I am of the opinion that a costs order should be made. I consider that this application falls into that category.
Whilst I am not generally aware of the financial circumstances of each of the parties to the proceedings (in this case the wife and JJO), I consider that it is open to me to find that neither of the relevant parties are impecunious. I have some information in respect of the settlement that the wife received in 2009. There is no suggestion by JJO that he is unable to pay any order for costs that is made. Each of the parties were represented by senior counsel and whilst impecuniosity is not necessarily a barrier to costs, I do not consider that I need to be cautious in that regard in any event.
The only other relevant consideration is s 177(2A)(e) namely “whether any party to the proceedings has been wholly unsuccessful in the proceedings”.
It seems clear that the issue for the wife and JJO was whether the wife would be entitled to the order of injunction sought by her. I have found merit in the wife’s application and I propose to make orders in terms of order (1) of the said application in a case. On that basis the wife has been wholly successful. The wife’s entitlement to costs may also be affected by evidence to be given in the further conduct of the matter.
I do not consider that there are other relevant factors but because I have heard no submissions I think it proper to reserve the question of the wife’s costs.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 November 2013.
Associate:
Date: 5 November 2013.
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