Kent & Kent
[2017] FamCAFC 157
•10 August 2017
FAMILY COURT OF AUSTRALIA
| KENT & KENT | [2017] FamCAFC 157 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the primary judge dismissed an application to stay Australian proceedings – where the primary judge granted an anti-suit injunction concerning overseas proceedings – in respect of the stay application – whether the primary judge failed to take into account relevant considerations when deciding if Australia was a clearly inappropriate forum – where the husband’s contentions would have required the primary judge to consider the wrong test – where no error was demonstrated – in respect of the anti-suit injunction – where the injunction was granted primarily on a finding that parallel proceedings would exist overseas and in Australia – where the issues being litigated overseas are not the same as those in Australia – where the overseas proceedings would not be oppressive and vexatious in the Voth sense – application for leave to appeal granted – appeal allowed. FAMILY LAW – APPEAL – RE-EXERCISE – decision of the primary judge re-exercised – the anti‑suit injunction set aside and a more limited injunction made in lieu. |
| Family Law Act 1975 (Cth) ss 117(1), 94AA, 94(2) Family Law Regulations 1984 (Cth) reg 15A |
| CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Gilmore and Gilmore (1993) FLC 92-353 National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Puttick v Tenon Ltd (2008) 238 CLR 265 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 Skinner &Alfonso-Skinner [2010] FamCA 329 Teo & Guan (2015) FLC 93-653 Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 Whung v Whung and Ors (2011) 45 Fam LR 269 |
| APPELLANT: | Mr Kent |
| RESPONDENT: | Ms Kent |
| FILE NUMBER: | BRC | 11392 | of | 2016 |
| APPEAL NUMBER: | NA | 5 | of | 2017 |
| DATE DELIVERED: | 10 August 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Strickland & Murphy JJ |
| HEARING DATE: | 18 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 January 2017 |
| LOWER COURT MNC: | [2017] FamCA 21 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kirk QC and Mr Hackett |
| SOLICITOR FOR THE APPELLANT: | Hirst & Co Family Solicitors |
| COUNSEL FOR THE RESPONDENT: | Dr Ingleby |
| SOLICITOR FOR THE RESPONDENT: | HopgoodGanim Lawyers |
Orders
The appeal from paragraph 1 of the order made by the Honourable Justice Carew on 20 January 2017 be dismissed.
The appeal from paragraph 2 of the said order be allowed.
Paragraph 2 of the said order be set aside.
It be ordered in lieu that:
The husband is restrained and an injunction hereby issues restraining him from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.
Each party bear their own costs of and incidental to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Kent has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 5 of 2017
File Number: BRC 11392 of 2016
| Mr Kent |
Appellant
And
| Ms Kent |
Respondent
REASONS FOR JUDGMENT
The husband seeks leave to appeal orders made by Carew J on 20 January 2017.
Those orders dismissed his application seeking an order that proceedings for settlement of property instituted by the wife in Australia be permanently stayed, and granted an “anti-suit injunction” restraining the husband from prosecuting earlier-filed proceedings in Papua New Guinea (“PNG”).
It is accepted by counsel for both parties that the challenged orders are “prescribed decrees” within the meaning of s 94AA of the Family Law Act 1975 (Cth) (“the Act”) and reg 15A of the Family Law Regulations 1984 (Cth) (“the Regulations”) thereby necessitating leave to appeal.[1] It is convenient to first determine the merits of the proposed appeal before returning to the question of leave.
[1]Gilmore and Gilmore (1993) FLC 92-353; See also, D & L [2005] FamCA 479, a case which decided similarly in respect of anti-suit injunctions.
The Context Of The Primary Judge’s Orders
Her Honour’s orders were made against a broad factual background that is essentially uncontroversial.
The parties are both Australian citizens. They were married for approximately 48 years prior to their final separation in October 2016. Shortly after their marriage, the parties commenced residing in PNG where the husband established a company, Kent Limited. At the time of the proceedings before her Honour, the husband was a director and 80 per cent shareholder in Kent Limited, which is very successful and has very substantial businesses and assets situated in PNG.
In 1997 the wife returned to Australia and resided in a unit owned by the parties. From that time, the husband and wife regularly visited the resident country of the other party. Although the wife’s visits to PNG decreased from 2006 and ultimately ceased after 2013, the husband continued to spend time in Australia.
The parties own real estate in Australia. The estimated total value of that real estate is substantial but significantly less than the estimated total value of the assets held by Kent Limited in PNG.
At [31], her Honour noted that, upon the husband’s prospective retirement at the end of 2017, he intends to live “in Australia in the unit owned by the parties and [return] to PNG only when obliged to do so”. Paragraph 8 of the wife’s written summary of argument before her Honour contends (apparently uncontroversially) that the wife has lived in Australia for about 19 years preceding the hearing before her Honour.
How did the Proceedings before the Primary Judge Arise?
On 20 October 2016 the husband commenced proceedings by Petition for Decree of Dissolution of Marriage in the National Court of Justice at B Town, PNG. It is relevant to record that PNG retains grounds for divorce similar to those which pertained here prior to the introduction of the Act. It is also relevant to record that the husband’s Petition, as filed, relies upon only one ground (adultery) and that, at the time of the proceedings before her Honour, the named co-respondent had not been served. Also, the wife had not filed an Answer to that Petition.
Her Honour records at [9]:
On 25 October 2016 the husband informed the wife in writing (via a letter from his solicitor) inter alia that he regarded the marriage as irretrievably broken down and that he considered “all financial issues ... should be determined exclusively by a court in Papua New Guinea” and he “will oppose a Court in Australia exercising any jurisdiction to determine any financial or related matter”. The letter also gave notice to the wife that she should vacate the property in which she had been living as he “intends residing in that unit, except when he is obliged to travel to Papua New Guinea”.
The wife’s then solicitor responded that she had instructions to accept service. That assertion is denied by the wife. The solicitor’s letter said, relevantly:
I have received instructions to act on behalf of [the wife]. My client agrees to your client commencing proceedings for a divorce and I have instructions to accept service of the application. Please provide the application in due course.
I note there is an issue about the jurisdiction as far as the property settlement is concerned. It is my view that efforts should be made to resolve the matter without making an Application to the Court either in Australia or New Guinea. …
On 11 November 2016, the wife commenced proceedings for settlement of property in the Family Court of Australia. No application for divorce was filed by her. (On her contention, the parties had at that time not been separated continuously for twelve months).
The wife’s application initiating property proceedings did not seek any orders in respect of the PNG proceedings. However, on 23 November 2016 the wife filed an Application in a Case seeking an “anti-suit injunction” in respect of the husband’s PNG proceedings. The terms of the orders sought are important to our determination of the appeal and will be quoted later in these reasons.
When that application by the wife was filed, the only proceedings in PNG related to dissolution of marriage and that application referred only to adultery as a ground.
On 25 November 2016, the husband filed a Notice of Motion and Application for Ancillary Relief in PNG. As her Honour found at [11], those proceedings sought “leave to file an Amended Petition for Decree of Dissolution of Marriage to include a claim for property settlement”. The property proceedings are ancillary relief; if the ground of adultery fails, the application for property relief fails. The husband’s Notice of Motion sought to amend his Petition for Dissolution of Marriage so as to add the grounds of desertion and separation.
The husband also sought in those proceedings an anti-suit injunction[2] in the PNG court. As her Honour records at [11], that order sought to restrain the wife “from continuing with the Australian proceedings … until the final determination of the proceedings commenced by him in PNG … That Notice of Motion [was] returnable before the PNG court on 15 February 2017”, namely, after the proceedings before her Honour were heard and determined.
[2]Often referred to as an “anti-anti-suit injunction”.
Simultaneously with the husband filing proceedings for leave in PNG on 25 November 2016, he also filed in Australia a Response to the wife’s Initiating Application. By that Response, the husband sought a permanent stay of the wife’s Australian proceedings.
On 12 January 2017, the husband filed a Response to the wife’s Application in a Case by which he sought an order that the wife’s Australian proceedings be stayed pending the decision of the PNG court with respect to his application for dissolution of marriage and his application for leave to amend the same and apply for ancillary relief.
The Proceedings in PNG and Australia and the Orders Sought by the Parties
Her Honour records the orders sought by the parties in the opening two paragraphs of the reasons as follows:
1. [The wife] applies for an anti-suit injunction against [the husband] restraining him from continuing or commencing proceedings in Papua New Guinea (“PNG”) until determination of proceedings commenced by her in this Honourable Court.
2.The husband opposes the anti-suit injunction and cross-applies for an order that the proceedings commenced by the wife in this Honourable Court be stayed either permanently or until determination of proceedings commenced by him in PNG.
In a written outline of argument filed on behalf of the husband and relied upon before her Honour, Senior Counsel posed the issues before her Honour in this way (at [1.1], [1.2]):
The Husband seeks that the financial proceedings commenced by the Wife in the Family Court be permanently stayed or alternatively, be stayed pending the outcome of the marital proceedings commenced by the Husband [in PNG].
The Wife in these proceedings seeks an anti-suit injunction to restrain the Husband from continuing the PNG proceedings and that he be restrained from proceeding to seek an anti-suit injunction from the PNG Court against the Wife (which is set down for hearing in PNG on 15 February 2017 [)].
(Emphasis added).
As that outline suggests, the wife’s application sought two injunctions. Her application was in the following terms:
1. That [the husband] be restrained and an injunction shall issue restraining [the husband] from prosecuting or pursuing proceedings in any other court, including with respect to the:
(a)Petition for Decree of Dissolution of Marriage filed 20 October 2016;
(b)Notice of Petition filed 20 October 2016;
(c)Notice of Proceedings filed 20 October 2016 (and filed with Certificate of Marriage on 20 October 2016);
filed in [PNG],
pending the decision of the Family Court of Australia with respect to the Wife’s Initiating Application … filed in the Brisbane Registry of the Family Court of Australia (this proceeding).
2. That [the husband] be restrained and an injunction shall issue restraining [the husband] from pursuing proceedings in any other Court to restrain the wife continuing with this proceeding.
(Emphasis in original)
Apparently, no objection was taken before her Honour as to the breadth of the first injunction sought. Nor was any issue raised before us in that respect.
That issue aside, the injunction sought in the first order was in respect of the then filed Petition for Decree of Dissolution of Marriage (and its attendant documents). The record does not reveal that any amendment was sought so as to also restrain the subsequently filed proceedings for leave which, as well as seeking to amend the grounds for dissolution of marriage, also sought to claim ancillary property relief.
Her Honour’s reasons at [11], and the record more generally, suggest that the case proceeded before her Honour on the basis that both the initially-filed proceedings and the subsequently-filed Notice of Motion were sought to be restrained. Again, neither party raised any issue before us in that respect.
Her Honour ordered ultimately:
The respondent is restrained and an injunction hereby issues restraining him from commencing or continuing any proceedings, arising out of the marital relationship between himself and the applicant, in Papua New Guinea (in particular proceedings commenced in National Court of Justice at B Town, Papua New Guinea on 20 October 2016 MC No … of 2016 (CC4)) save as required to seek recognition and/or enforcement of orders made by this Honourable Court.
That order may be thought to address both of the injunctions sought in the wife’s application. However, nothing in her Honour’s reasons refers to the second of the orders sought by the wife nor draws any distinction between the two. Reference to both the transcript and the wife’s written outline of argument before her Honour does not reveal that submissions were separately addressed to each of the two injunctions sought. For reasons we will later discuss, we consider that distinction is important.
Forum: The Primary Judge’s Approach and Reasons
It was contended by each of the parties below that the husband’s application for a stay needed to be determined prior to a consideration of the competing claims for an anti-suit injunction.[3] That approach is in accordance with principle; the power to grant an anti-suit injunction “should not be exercised without the court concerned first considering whether its own proceedings should be stayed”.[4]
[3]Transcript, 16 January 2017, p 3 ln 1 – 5; Reasons, [3]; Outline of Argument filed by the husband on 13 January 2017, paragraph 4.1.
[4]Davies, M., Bell, A. S., Brereton, P. L. G., Nygh’s Conflict of Laws in Australia, 9th Ed at [9.4] citing CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 390 (“CSR”).
It was, and is, not in contention that, emerging from decisions of the High Court,[5] the test for determining whether the Family Court should permanently stay proceedings before it, is whether it is a “clearly inappropriate forum.”
[5]Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 (“Voth”); Henry v Henry (1995) 185 CLR 571 (“Henry”); CSR, 399 – 401; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; Puttick v Tenon Ltd (2008) 238 CLR 265.
Her Honour also specifically recognised, with respect correctly, that “[e]ven if PNG is a more appropriate forum it does not follow that Australia is a clearly inappropriate forum”.[6] The applicant husband’s contention that her Honour’s statement evidences the application of an incorrect test should be firmly rejected. In recording established principle her Honour was doing no more than underscoring an important aspect of the correct test.
[6] [28], referencing Voth, [66].
So, too, her Honour explicitly recognised, again with respect correctly, that “connecting factors” with a forum and “legitimate personal or juridical advantage” can provide “valuable assistance” in applying the clearly inappropriate forum test.[7] Contrary to what we perceive to be a major thrust of the husband’s argument to which we shall shortly refer, those connecting factors do not constitute the relevant test, and nor are they a substitute for the relevant test.
[7] [26]; [27], referencing Voth, [51].
In his written outline before the primary judge at [6.1], Senior Counsel for the husband outlined what he called the “non-exhaustive list” of “relevant matters to be considered [as] set out in … Henry at 592-3”. Senior Counsel’s “non-exhaustive list” repeated verbatim a summary that O’Reilly J extracted from Henry in Whung v Whung and Ors.[8] We respectfully adopt what her Honour there said as an accurate and convenient summary of the non-exhaustive list of some of “the matters properly to be taken into account” when considering whether Australia is a “clearly inappropriate forum”:
[8] (2011) 45 Fam LR 269, [43].
1. No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2. If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4. Other considerations include the order in which the proceedings were instituted.
5. Other considerations include the stage which the proceedings have reached.
6. Other considerations including the costs that have been incurred.
7. It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8. It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
(Emphasis in original)
Under two headings, “Factors that may favour a stay of the Australian proceedings” and “Factors that may not favour a stay”, the primary judge listed, at [30] and [31], a number of factors that pointed respectively for and against the granting of a stay (footnotes included):
Factors that favour a stay of the Australian proceedings include:
a)The husband holds an eighty percent shareholding in Kent Limited which will need to be valued and its assets, including real property, plant and equipment are situated in PNG as are documents relevant to the valuation;
b)The husband and wife have a significant personal connection to PNG having lived there together from 1968 to 1997;
c)The husband continues to regard PNG as his primary place of residence;
d)The husband commenced proceedings for divorce in PNG on 20 October 2016 and on 15 February 2017 will seek leave to amend his initiating process to include relief in relation to property settlement;[9]
[9]Her Honour’s footnote reads: “I have no reason to regard it as unlikely that the husband would be able to proceed with property settlement proceedings in PNG”.
e)The PNG court can provide a complete resolution of the controversy;
f)The husband informed the wife on 25 October 2016 that he insisted their financial affairs be sorted out in the PNG jurisdiction;
g)The wife through her then solicitors accepted service of his initiating legal process;[10]
[10]Her Honour’s footnote reads: “The wife disputes those instructions were provided but in any event jurisdiction in relation to the property proceedings remained in issue”.
h)Necessary witnesses including valuers and accountants are likely to be based in PNG and would have to be flown to Australia to give evidence thus increasing the costs of litigation;
i)There may be some difficulty transferring funds out of PNG (although what those difficulties might be and how that would ultimately affect the matter was not the subject of evidence);
j)Any orders made in PNG will be recognised in Australia.
…
Factors that do not favour a stay of the Australian proceedings:
a)Proceedings were regularly commenced by the wife in Australia on 11 November 2016 seeking property settlement (although this is not a significant factor);[11]
b)The parties have a significant personal connection to Australia both being Australian citizens, the wife having lived permanently in Australia since 1997 and the husband being a not infrequent visitor to Australia;
c)The parties own valuable real estate, chattels and financial investments in Australia such that any dispute over values will require witnesses to be flown to PNG thus increasing the costs of litigation;
d)The valuation of the husband’s shareholding in Kent Limited can be conducted by C Accountants, Melbourne, who have the requisite knowledge, expertise and capacity, including staff and resources located in PNG;
e)The husband intends retiring from his role with Kent Limited prior to the end of 2017 and intends living in Australia in the unit owned by the parties and returning to PNG only when obliged to do so;
f)There is a risk that the wife may not be awarded as much property in the PNG court process because the system of law in in PNG [sic] is a fault based system;
g)The Family Court of Australia can provide a complete resolution of the controversy;
h)Any orders made in Australia will be recognised in PNG.[12]
[11] Her Honour’s footnote reads: “Voth … at [69]”.
[12]Her Honour’s footnote reads: “See paragraph 6.4 of husband’s Outline of Argument - Judgment Enforcement (Reciprocal Arrangements) Act 1976 as amended (included in the Revised Laws of Papua New Guinea and styled Reciprocal Enforcement of Judgments Act Ch 50)”.
Forum: Asserted Errors and Conclusion
Senior Counsel for the husband asserts that issues significant to the determination of whether the Family Court was a clearly inappropriate forum do not appear in her Honour’s listing of those factors and, as such, her Honour has failed to consider relevant considerations in the exercise of her discretion.
The essential difficulty with that submission, to the extent that it is based on the matters that her Honour listed (or did not list) at [30] and [31] of the reasons, is that the listed matters are not the findings central to the exercise of her Honour’s discretion. Rather, at those paragraphs, her Honour summarises broadly the competing contentions of the parties by reference to the evidence before her. That much is made clear by her Honour subsequently turning to a “Consideration of relevant factors” under that heading and there making the findings informing her ultimate conclusion.
When regard is had to her Honour’s findings (as distinct from the earlier‑enumerated summaries of the arguments) what emerges is that among all the factors that might be taken into account – of which, it should be noted, the “connecting factors” is but one – her Honour concluded centrally, at [41] that “this is not a clear case justifying a stay”.
That conclusion in those terms is important; it has clear resonance in what was said by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay,[13] the judgment which was the precursor to the ultimate adoption by the High Court of the “clearly inappropriate forum” test. Deane J said:
… The power [to grant a stay] should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. …[14]
[13] (1988) 165 CLR 197.
[14] Above, 248.
The findings which her Honour made that are central to the exercise of her discretion are addressed at [32] – [40] of the reasons:
·The “significant connection” that both parties have to both PNG and Australia;
·Their joint residence in PNG for 29 years;
·The fact that the wife had moved back to Australia in 1997 when the parties youngest child turned 18 and that she had lived continuously in Australia since;
·The wife continued to travel between PNG and Australia until 2013 although less frequently after 2006;
·In October 2016 the husband informed the wife that he intended to reside in their jointly-owned unit in Australia and “only travel to PNG when obliged to do so”;
·According to the husband’s amended petition seeking property settlement it is the husband’s intention to retire from Kent Limited “on a date prior to 31 December 2017” ([32]);
·“[F]rom a personal and practical sense it would be more convenient for both parties to have the proceedings continue in Australia” ([33]);
·“It is not in contention that the law of both PNG and Australia has the capacity to quell the entire controversy arising between the parties as a consequence of the marriage breakdown” ([34]);
·“[The] orders made in either jurisdiction will be recognised by the other” [34];
·Assets in both jurisdictions will require valuations. The fact that this might result in valuers or other witnesses travelling to the other jurisdiction “is a consideration that will apply whether the proceedings take place in PNG or Australia” ([35]);
·The proceedings commenced in each jurisdiction at an early stage ([36]); and
·“[N]othing turns on who [was] determined to have been the first in time to commence proceedings” ([36]).
Four specific arguments are advanced by Senior Counsel for the husband in respect of findings that are made, or allegedly not made, by her Honour.
At [39], her Honour found that she was “not satisfied that there is any juridical advantage to the wife in proceeding in this jurisdiction”. It is argued that this finding is at odds with what was said by her Honour at [31(f)] quoted above. That contention is answered by reference to what we have earlier said about paragraphs [30] and [31] containing an enumeration of the arguments and evidence advanced by each of the parties. The finding made by her Honour is that which appears at [39]. That finding was open to her Honour and it is not said to the contrary in this appeal.
Secondly, Senior Counsel sought to challenge what was said at [40] of the reasons that “[i]t was suggested by the husband that there may be some difficulty transferring funds out of PNG should he be ordered to do so”. With respect to counsel, we had some difficulty in understanding the basis of that challenge. Her Honour made a specific finding (also at [40]) that she had “no evidence of that being so”. That finding is not challenged. Her Honour pointed out that, in any event, it was at that stage not known “whether the orders [the wife] particularises will involve a payment to her of money rather than, for instance a transfer to her of shares” with the consequence that, in any event, her Honour could not place any weight on that as a factor in deciding if the Family Court was a clearly inappropriate forum. In our view, that finding was plainly correct.
Thirdly, it is said that while her Honour refers to the property of the parties as including “a possible insurance payout from QBE the subject of a reserved judgment in the PNG court” her Honour fails to mention additional proceedings in PNG regarding the company X. Again, we have some difficulty in understanding the relevance of any such omission to the central question her Honour was obliged to answer. In any event, the QBE litigation was referred to at [18] where her Honour was listing, by way of background, the non-contentious fact that there was property in PNG and property in Australia. Senior Counsel apparently sought to place emphasis on the very substantial difference in the estimated value of the property in the two countries, and the extent of the very valuable assets in PNG. However, as it seems to us, her Honour properly took account of so much of those facts as were relevant to the question she was obliged to answer; namely that which her Honour refers to at [35] quoted above.
Finally, Senior Counsel argues that her Honour failed to take account of the fact that there would be the potential for “parallel proceedings” in Australia and PNG if a stay was not ordered. That contention is, we think, best answered by what Brennan CJ said in Henry:[15]
It is not helpful, in my respectful opinion, to inquire whether there are proceedings on foot elsewhere and then, perceiving that duplication of the proceedings in the selected forum would be undesirable, hold that the selected forum is clearly inappropriate. To adopt that line of reasoning would be to conclude that, as between two fora possessed of jurisdiction to determine the same matter, the forum in which the proceedings are not first brought is a clearly inappropriate forum. It is of the nature of the problem that two fora have jurisdiction to determine the same matter in dispute, but the Voth test requires that the focus be on the advantages and disadvantages of proceeding in the selected forum. Of course, there may be cases where proceedings instituted in the selected forum are oppressive in the relevant sense because the institution of those proceedings was delayed until the proceedings in the foreign forum were nearing completion. But that is a different case from one in which the jurisdictions of two fora have been invoked by parties because one of them favours the exercise of the jurisdiction of one forum, the other of whom favours the exercise of the jurisdiction of the other. That is the situation in the present case.
(Emphasis in original)
[15]At 581. Although the Chief Justice was in dissent in the result, nothing said by his Honour as to the relevant principles differed from the majority.
In our opinion that is also the situation in this case. The husband has regularly invoked the jurisdiction of the PNG court seeking dissolution of the marriage in accordance with the laws of that country. The PNG court has jurisdiction to grant that relief and it is uncontroversial that the husband as the applicant is amenable to that jurisdiction. The wife has regularly invoked the jurisdiction of the Family Court of Australia so as to deal with the settlement of property arising from the marital relationship. It is uncontroversial that she (and the husband for that matter) are amenable to the jurisdiction of that court.
Brennan CJ refers to “two fora possessed of jurisdiction to determine the same matter”. In our view, it cannot be said in the present case that the PNG court is yet possessed of “the same matter”. Rather, it is possessed of an application for leave to institute proceedings for the same matter noting that those proceedings are ancillary to, and therefore dependent upon, the establishment of the relevant ground of dissolution of marriage. That those proceedings for dissolution can rely upon more than one ground is also the subject of an application for leave.
We think there is considerable merit in the submission by counsel for the wife that, taken together, Senior Counsel for the husband’s arguments are a contention that her Honour ought to have engaged in a process of comparing one jurisdiction with the other so as to determine which is the “natural forum” or the “more appropriate forum”. Had her Honour done that she would have committed the very error which the High Court explains should be avoided. Her Honour did not do that; her Honour applied the correct test.
As Deane J recognised in Oceanic Sun Line Special Shipping Company Inc v Fay:
… [the] power [to order a stay] is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.[16]
[16]Above, 247–8.
Her Honour engaged in “a balancing process” and attributed weight to those matters which she deemed important. It is not demonstrated that in exercising her “individual judgment” her Honour committed any error or, in the absence of establishing the same, that her decision is “plainly wrong”.
The challenge to her Honour’s refusal to order a stay of proceedings in the Family Court should fail.
Anti-Suit Injunction: The Primary Judge’s Approach and Reasons
The Family Court’s power to grant an anti-suit injunction was not in issue before her Honour and is not in issue in this appeal.[17]
[17]See, Teo & Guan (2015) FLC 93-653 and the cases cited there, albeit in the context of considering the power of the Family Court of Western Australia to grant such relief.
The totality of her Honour’s reasons for making the anti-suit injunction earlier quoted comprise addressing, by reference to the first-instance decision of Skinner &Alfonso-Skinner,[18] the wife’s argument “that as there is a live jurisdictional issue to be determined in the PNG court the anti-suit injunction should be refused”. After discussing this at [41] – [49], her Honour concluded:
50.The husband in the present case is seeking to proceed with proceedings in PNG which concern or will concern (if he is granted leave to amend his originating Petition) the same issues being litigated in Australia as I propose to dismiss his application for a stay. In my view such an outcome would be oppressive and vexatious in the Voth sense. Further, as the proceedings will proceed in Australia an anti-suit injunction is necessary to protect the integrity of this Court’s processes.
[18] [2010] FamCA 329.
Anti-Suit Injunction: Asserted Errors and Conclusion
At paragraph 21 of the written submissions made on behalf of the wife before the primary judge, it was contended that “if … Australia is not a clearly inappropriate forum”, as her Honour determined, “it follows that … the Family Court should protect its jurisdiction by appropriate injunctive relief” (emphasis added).
The submission suggests that an anti-suit injunction against foreign proceedings follows inexorably from a refusal to stay local proceedings. That suggestion is erroneous, since one is not the corollary of the other. As the High Court has made clear, while some factors relevant to the power to stay and/or to grant an anti-suit injunction may overlap, different principles apply:
Because stay orders and anti-suit injunctions are the remedies by which actual or potential conflict is resolved, there has been a tendency, at least in the United Kingdom, to view both measures as governed by the same legal principles. That tendency has now been corrected, it having been pointed out by the Privy Council in Société Aerospatiale that the principles are not the same.[19]
[19]CSR, 390 (footnotes omitted).
Her Honour specifically recognised, at [44], that different principles apply, saying:
While the applicable principles in determining an ‘anti-suit injunction’ are not the same as determining a forum non conveniens argument, the High Court in Henry said:
… the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
(Footnotes omitted)
At [45], her Honour went on to say:
As to purpose of an anti-suit injunction the High Court in CSR Ltd v Cigna Insurance Australia Ltd said:
The counterpart 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. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. … 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.
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.
…
(Footnotes omitted)
However, also important to the arguments pertaining to her Honour’s issuing of an anti-suit injunction in the terms earlier quoted is recognition of the principle that “the mere co-existence of proceedings in different countries does not constitute vexation or oppression”; a point emphasised by the High Court’s approval in CSR of two statements of principle by the Privy Council:
In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that “double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]” does not amount to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if “complete relief” is available in the local proceedings.[20]
(Bold emphasis added; footnotes omitted)
[20] CSR, 393–4.
While the expression of those principles in those terms by the Privy Council and their adoption by the High Court has been criticised as being “surprisingly absolute in the context of the equitable jurisdiction”,[21] they underscore the principle that a person acting bona fide is perfectly entitled to invoke the jurisdiction of a court to which they and their property are amenable:
… Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject matter in this country.[22]
[21] Davies, M., Bell, A. S., Brereton, P. L. G., Nygh’s Conflict of Laws in Australia, 9th Ed at [9.27].
[22] CSR, 395.
As can be seen from [50] of the reasons earlier quoted, her Honour’s grant of an injunction in the terms earlier set out is premised primarily (if not exclusively) on a finding that, having refused a stay, the husband’s PNG proceedings “concern or will concern (if he is granted leave to amend his originating Petition) the same issues being litigated in Australia”.
We are respectfully unable to agree with that premise; the proceedings in PNG are, in our view, not the same as those in Australia.
As a result of her Honour’s order refusing a stay, there are proceedings for settlement of property on foot in Australia and proceedings for dissolution of marriage alleging adultery in PNG. There are also proceedings seeking leave to amend the petition for dissolution and leave to add ancillary proceedings for settlement of property. There is no reason advanced by her Honour, nor as we can see, validly by the wife, as to why the proceedings for dissolution should not proceed in accordance with PNG law nor why proceedings for leave to amend the petition for same cannot be heard and determined within the jurisdiction properly invoked by the husband.
No case is made out that those proceedings constitute a challenge to the Family Court’s orders or processes.[23] Nor is a case made out that the husband’s proceedings in PNG are vexatious or oppressive in the relevant sense.
[23] See by way of contrast the cases cited in Nygh’s Conflicts of Laws in Australia, above at [9.15].
To the extent that the proposed ancillary proceedings in PNG have similarity to the property proceedings on foot in Australia, it is in our view crucial to observe that the proceedings for leave to add that ancillary relief will be heard and determined in light of her Honour’s decision that a stay of the Australian proceedings for property proceedings should not be granted with the consequence that proceedings for property relief will proceed here. Neither any argument nor any evidence suggests that the PNG court will not have regard to international comity in deciding if leave should be granted, just as much as an Australian court would, and does, have regard to that principle. Indeed it might be thought offensive to notions of international comity on the part of an Australian court to operate upon any such assumption.
For those reasons we consider that it was not open to her Honour to find on the evidence before her that the husband’s proceedings for dissolution and leave in PNG “would be oppressive and vexatious in the Voth sense” and/or that an injunction restraining the husband from pursuing those proceedings was “necessary to protect the integrity of [the Family] Court’s processes”.
That conclusion does not, however, dispose of the issues on this appeal.
It has already been pointed out that her Honour’s reasons do not contain a consideration of the two distinct injunctions sought by the wife. While the first of those sought to restrain, relevantly, the petition for dissolution as filed (and, as it seems to have been assumed, the application for leave), the second of the injunctions sought by the wife was directed to separate proceedings instituted by the husband, namely proceedings for an “anti-anti-suit injunction”.
The principles applicable to a consideration of that relief are the same as those discussed, but the factual basis differs.
While we are unable to agree that the husband’s application for dissolution and his application to amend that petition are the same as the Australian proceedings for settlement of property in the relevant sense, in our view that is not true of his application for an anti-suit injunction in that jurisdiction, since it raises precisely the same issue as that raised in the second of the two orders sought by the wife in the Family Court.
If that part of the husband’s application in PNG is not enjoined, its continuation would constitute a challenge to the Family Court’s decision not to stay its own proceedings and thus should be construed as a challenge to the integrity of the Australian proceedings. For reasons explained in Teo & Guan¸ the Family Court has power to grant an injunction to protect its own processes, and one manifestation of the exercise of that power is the granting of an injunction to enjoin, as being vexatious or oppressive, foreign proceedings “which have a tendency to interfere with the due process of the domestic court”.[24]
[24]National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, 232.
While we consider that it was not open to her Honour to grant the injunction she made, we would, in the re-exercise of her discretion, grant an injunction preventing the husband from pursuing any application in PNG designed to prevent the continuation of the proceedings in Australia. By this means the integrity of the processes of the Family Court will be protected.
The result is that the challenge to her Honour’s order succeeds in part.
Leave to Appeal
It will be clear that we consider there is merit in the appeal to the extent we have indicated. It will also be clear that issues of some importance involving, for example, international proceedings are the subject of the appeal and that there is the potential for injustice if leave is not granted.
We consider that leave to appeal should be granted.
The Result of the Appeal and Orders
It will be clear from what we have said that consequent upon the grant of leave, the appeal against her Honour’s order in respect of the stay application should be dismissed but that the appeal in respect of the anti-suit injunction should be allowed.
We consider that her Honour’s order issuing an injunction should be set aside and it be ordered in lieu[25] that:
The husband is restrained and an injunction hereby issues restraining the husband from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.
[25] Section 94(2) of the Act.
Costs
Submissions were made on the question of costs at the conclusion of the hearing before us which embraced all possible results.
We have not been made aware of any offers to settle the appeal proceedings. On any view, the proceedings involve interests in property of very substantial value held by people of significant means.
Our conclusions on the appeal are such that neither party can be said to have been “wholly unsuccessful”. As a result, that consideration – which this court has said can be of particular importance in the context of appeals[26] – sees each of the parties as partially successful.
[26] See, for example, Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131, [51].
We are not persuaded that there are circumstances which justify an order for costs contrary to the position prescribed by s 117(1) of the Act. Each party to the appeal should bear his or her own costs.
We are not persuaded that certificates should issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Murphy JJ) delivered on 10 August 2017.
Associate:
Date: 10 August 2017
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