Kent & Kent

In the matter of Kent & Kent, the appellant, a husband, sought leave to appeal against a decision of the primary judge, who dismissed his application to stay Australian proceedings and granted an anti-suit injunction concerning overseas proceedings. The husband contended that the primary judge failed to take into account relevant considerations when deciding if Australia was a clearly inappropriate forum. He also argued that the primary judge had considered the wrong test in relation to his contentions.

The court considered whether the primary judge had erred in his assessment of whether Australia was a clearly inappropriate forum. The court found that no error was demonstrated in the primary judge's consideration of this matter. The court also considered whether the primary judge had correctly applied the test for granting an anti-suit injunction. The court found that the primary judge had primarily granted the injunction on the basis that parallel proceedings would exist overseas and in Australia, and that the issues being litigated overseas were not the same as those in Australia. The court held that the overseas proceedings would not be oppressive and vexatious in the Voth sense. The court granted the husband's application for leave to appeal and allowed the appeal.

The court set aside the anti-suit injunction and made a more limited injunction in its place. The husband was restrained from continuing proceedings in Papua New Guinea in so far as those proceedings sought to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia. Each party was ordered to bear their own costs of and incidental to the appeal. The form of the order is subject to the entry of the order in the Court’s records.