Lawson & Lawson & Wallmans
[1999] FamCA 1635
•29 September 1999
[1999] FamCA 1635
FAMILY LAW ACT 1975
IN THE FAMILY COURT
OF AUSTRALIA
AT ADELAIDE No. AD5638 OF 1996
IN THE MATTER OF: LAWSON
JOHN STEWART
Husband
AND: LAWSON
ELIZABETH RAE
Wife
AND: WALLMANS
Other Party
BEFORE THE HONOURABLE JUSTICE LINDENMAYER
DATE OF HEARING: 29 SEPTEMBER, 1999
DATE OF JUDGMENT: 29 SEPTEMBER, 1999
REASONS FOR JUDGMENT
Appearances: Miss Pyke of Counsel (instructed by Lesley Hastwell & Associates, Solicitors, 147 Frome Street, Adelaide, SA, 5000) for the Husband
Mr Tilmouth of Queens Counsel (instructed by Moran & Partners, Solicitors, 72 Kermode Street, North Adelaide, SA, 5006) for the Wife
Mr Walsh of Queens Counsel (instructed by Fountain & Bonig, Solicitors, 182 Melbourne Street, North Adelaide, SA, 5006) for the Other Party
HIS HONOUR:
This matter comes before me for the determination of an issue of jurisdiction which arises as a consequence of the decision of the High Court in re Wakim and Others (1999) 163 ALR 270, delivered on 17 June, 1999, in which the Jurisdiction of Courts (Cross-Vesting) Act 1987 was declared invalid insofar as it purported to authorise the exercise by Federal courts, including this Court, of jurisdiction in State matters.
Although the matter was listed by the Court without any relevant application having been filed by either party, when the matter came before me for directions yesterday morning counsel for Wallmans, a firm of solicitors who have become a party to the proceedings in circumstances which I shall shortly relate and to whom I shall hereafter refer as "the other party", sought and obtained my leave to file a Form 8 application seeking an order dismissing the proceedings against them for want of jurisdiction. It is essentially that application which I propose to deal with in this judgment.
HISTORICAL BACKGROUND.
Elizabeth Rae Lawson (“the wife”) and John Stewart Lawson (“the husband”) were married on 28 January, 1980 and separated on 1 November, 1996. On 25 February, 1997 the wife instituted proceedings in this Court against the husband for, inter alia, final orders under s.79 of the Family Law Act 1975 ("the Act”) altering the parties' interests in property. The other party was retained and acted as the husband's solicitors in those proceedings from the commencement of the proceedings until about November, 1998.
At all material times up until 22 June, 1998 an asset of the husband, and therefore part of the property of the parties to which the s.79 proceedings related, was an accountancy practice carried on by the husband either personally or through various corporate entities, and the value of that practice was a significant issue in the proceedings. The wife alleges, and the material does not indicate that the husband disputes this, that on 22 June, 1998 the husband contracted to sell part of his accountancy business to a third person for a price of approximately $87,000. That sale was apparently settled on 25 June, 1998, and the purchase price paid over to the husband by the purchaser. At the time of those events the pending property proceedings between the husband and wife were listed for hearing by this Court to commence on 21 July, 1998. The husband claims that since the receipt by him of the proceeds of sale of his business those proceeds have been expended by him and no longer exist, neither as cash nor as any other asset.
The wife contends that the other party was complicit with the husband in that disposal of a significant asset of the husband and wife at a time when proceedings between them in relation to their property were pending in this Court, and that that disposal has prejudiced her in relation to those proceedings on the basis that it will substantially, if not entirely, defeat any anticipated order in her favour in those proceedings.
As a result of the events to which I have earlier referred, the s.79 proceedings did not proceed to trial on 21 July, 1998, but were adjourned and have been further adjourned since that time.
On 1 December, 1998 the wife's counsel made an oral application to Robinson J to amend the wife's application for property settlement to include what was then a cross-vested claim for damages against the other party, and on 2 December, 1998 Robinson J granted the wife leave to so amend.
On 22 December, 1998, pursuant to that leave, the wife filed her amended application in which the other party is named as a second respondent and in which she seeks damages, interest and costs as against the other party and, perhaps arguably in part, also against the husband.
The claims for damages which the wife makes against the other party are framed in her pleading as claims for damages for breach of duty of care, for fraudulent misrepresentation (that is, deceit) for conspiracy and for false and misleading conduct contrary to s.56 of the Fair Trading Act 1987 (South Australia). Her claims for damages against the husband, if any, are for damages, it would seem, for fraudulent misrepresentation and for conspiracy. Those claims were brought in this Court pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Acts of the Commonwealth and the State of South Australia: see part 14 of the amended Form 7 application which was filed on 22 December, 1998.
With the demise of the cross-vesting scheme, purportedly established by that legislation, the wife's damages claims as presently pleaded are beyond the jurisdiction of this Court and stand liable to be dismissed for that reason. However, the wife has foreshadowed an amendment of her statement of claim to seek to rely, as the jurisdictional foundation for those claims, not upon the cross-vesting legislation but upon the accrued jurisdiction of this Court said to arise from the decisions of the High Court in such cases as Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Philip Morris Incorp. and Another v Adam P. Brown Male Fashions Pty Ltd (1981) 33 ALR 465; and re Wakim (supra).
Senior counsel for the other party has been content to argue the jurisdictional issue on the assumption that the wife's statement of claim will be appropriately amended to properly invoke the accrued jurisdiction of this Court, if it has any such jurisdiction, and for me to decide whether, on the facts and pleadings before me, this Court would then have the necessary jurisdiction to determine the proceedings.
Senior counsel for the other party submitted that there are three issues for my determination in these proceedings, as follows:
whether the Commonwealth Parliament has exercised its power under the Constitution to invest this Court, as a Federal court, with accrued non-Federal jurisdiction;
if it has, whether this case falls within the accrued jurisdiction of this Court; and
even if it does, whether I should exercise the discretion to retain the proceedings between the wife and the other party for determination in this Court.
Senior counsel for the wife did not, I think, disagree with the first two of those issues as identified by Mr Walsh, QC, but contended that if the proceedings come within the Court's jurisdiction there is really no discretion to decline to exercise that jurisdiction.
HAS THE FAMILY COURT OF AUSTRALIA ANY ACCRUED JURISDICTION?
So far as are relevant to these proceedings, the grant of jurisdiction to the Court for present purposes is contained in s.31(1)(a) of the Act. By that subsection it is provided:
“Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act.”
It is now established beyond doubt, by the decisions of the High Court to which I have earlier referred, that the Constitution gives the Federal Parliament the power “to give authority to federal courts to decide the whole of a single judiciable controversy of which a federal issue forms an integral part”: per Mason, Brennan and Deane JJ in Stack v Coast Securities (supra) at 293.
It is also established by those decisions that “the grant of jurisdiction to determine a matter carries with it jurisdiction to determine the whole matter, and that ‘a matter’ is a justiciable controversy which must either be constituted by or must include a claim arising under a federal law but which may also include another cause of action under another law, provided it is attached to and is not severable from the former claim”: per Gibbs CJ, Wilson and Dawson JJ in Smith v Smith (No 3) (1986) FLC 91 732 at 75,331 quoting from Fencott v Muller (supra) at 606.
However, the High Court has not yet determined authoritatively, at least expressly, that the Family Court of Australia has been invested by the Federal Parliament with accrued jurisdiction in non-Federal matters, and Gibbs CJ and Wilson and Dawson JJ, in their joint judgment in Smith (supra) at 75,331-2, expressed doubt about that, at least in the context of the proceedings which were then before that Court.
In Ireland and Ireland (1986) FLC 91-731, I had occasion, prior to the High Court's decision in Smith, to consider whether the Family Court of Australia has any accrued jurisdiction, and after referring to the division of opinion within this Court, exemplified in the decisions of the Full Court in Smith and Smith (No 2) (1985) FLC 91-604 and McKay and McKay (1984) FLC 91-573, concluded that I favoured the view that the Court has such jurisdiction.
For the purposes of these proceedings I am content to assume, without deciding, that in a proper case this Court, no less than the Federal Court, has accrued jurisdiction to determine the non-federal aspects of a single justiciable controversy which also involves a federal issue which is within the Court's primary jurisdiction conferred by the Act.
DOES THIS CASE FALL WITHIN THE COURT'S ACCRUED JURISDICTION?
The determination of this issue depends upon whether the wife's claims for damages against the other party and, so far as they may be made against the husband, also against him, are part of a single justiciable controversy which includes the claims of the husband and wife against each other in the s.79 proceedings. In order for the wife's damages claims to be seen as part of a single justiciable controversy which includes the s.79 claims, I must be satisfied that the former are “attached” to and not “severable” or “disparate” from the latter.
In Philip Morris v Adam P. Brown (supra) at 504 Mason J said this:
“The lesson to be learned from the authorities is that the court having jurisdiction to determine a matter falling within ss. 75 and 76 –“
that is, those sections of the Constitution -
“giving rise to the exercise of Federal jurisdiction, has jurisdiction to decide an attached non-severable claim. The classification of a claim as ‘non-severable’ does not necessarily mean that it is or must be united to the federal claim by a single claim for relief, though this is a common illustration of a non-severable claim. The non-severable character of the attached claim may emerge from other aspects of the relationship between the federal and the attached claim. For example, it may appear that the resolution of the attached claim is essential to a determination of the federal question. Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction.”
In Wakim's case( supra) at 294 McHugh J said this (at paragraph 73):
“Whether an issue whose resolution depends upon State law or the common law is within the accrued jurisdiction of the Federal Court depends upon whether it is part of a ‘matter’ arising under s.75 or s.76 of the Constitution. To be part of that matter it must be part of a single controversy. And as the Court said in Fencott v Muller, that ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’. As the Court went on to say in that case, ‘in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter’.”
In the same case Gummow and Hayne JJ, in their joint judgment, have a number of things to say which are of course relevant to this issue, and some of which were fairly heavily relied upon by senior counsel for the wife in the argument before me. I think it is appropriate that I refer to some at least of the more relevant passages from their Honours' judgment. In paragraph 135 thereof, at p.310, their Honours said this:
“It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by the Parliament is not ‘restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part’.”
Their Honours then went on to quote a passage from the majority judgment in Stack v Coast Securities, and, having done so, their Honours said this in paragraph 136:
“The decisions in this Court concerning what has been called the ‘accrued jurisdiction’ of the Federal Court have arisen in cases where the claims have been made in the one proceeding. In the present case there are three separate proceedings.”
Then a little later in the same paragraph their Honours said this:
“It is said, however, that the claims all arise out of a single set of transactions (that set being defined to include all aspects of the conduct of the claim against Mrs Nader).”
Then in paragraph 139 their Honours said this:
“The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings, if any, and to the factual basis of each claim.”
In paragraph 140 then, after again citing a passage from Fencott v Muller and, in particular, the passage which talks about it being a matter of impression and practical judgment whether a non-federal claim and a Federal claim joined in the proceedings are within the scope of one controversy, their Honours went on to say this:
“The references to ‘impression’ and ‘practical judgment’ cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information, but the question is not at large. What is a single controversy ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’. There is but a single matter if different claims arise out of ‘common transactions and facts’ or a ‘common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other.”
Then their Honours give an example, and they conclude that paragraph with this statement:
“Conversely, claims which are ‘completely disparate’, ‘completely separate and distinct’ or ‘distinct and unrelated’ are not part of the same matter.”
Then in paragraphs 146 and 147 in some passages to which senior counsel for the wife paid particular attention, their Honours said this in relation to the particular matter before the Court:
“[146] Each of these proceedings brought by Mr Wakim centres upon the making of claims and bringing of action against Mrs Nader and the prosecution and settlement of those claims and that action. Mr Wakim alleges against the Official Trustee that it was negligent and guilty of breach of duty in not continuing the action against Mrs Nader; he alleges against the solicitors that they negligently failed to advise the Official Trustee of its rights against her; he alleges against Mr Darvall that he negligently failed to advise the Official Trustee of its rights against her. It may be noted that nowhere in the Official Trustee's defence to Mr Wakim's claim does it allege that it acted in reliance on the advice of the solicitors or counsel and it makes no cross-claims against them, indeed the pleadings in the proceedings between Mr Wakim and the Official Trustee say nothing whatever about the role of the solicitors or the counsel in the matter.
[147] The cases arise out of one set of events. Of most significance is the fact that the damages which Mr Wakim alleges he has suffered as a result of what he says are the various breaches of duty by the Official Trustee, the solicitors and Mr Darvall is, in each case, the loss of what he might have recovered in the bankruptcy had the claims against Mrs Nader been prosecuted differently. There is, then, but a single claim for damages, that he seeks to pursue against each of the parties he has sued. And judgment and recovery against one will diminish the amount that may be recovered from the others. There is, in those circumstances, that common substratum of facts in each proceeding of which Mason J spoke in Philip Morris. And it is the exercise of that common substratum that leads to the conclusion that the three proceedings raise a single justiciable controversy. Accordingly, the proceedings against the solicitors and Mr Darvall are within the jurisdiction of the Federal Court.”
As I have said, Mr Tilmouth relied fairly heavily on those last two paragraphs.
Having listened, I hope carefully, to Mr Tilmouth's submissions I find myself unpersuaded that the wife's claim for damages against the other party, and the husband if she makes such a claim, and her claim against the husband for relief under s.79 of the Act form part of a single justiciable controversy, or that the former claims are attached to or non-severable from the latter, or that the two sets of claims arise from a common substratum of facts.
On the contrary I am of the clear opinion that the damages claims are quite severable and disparate from the s.79 proceedings. The s.79 proceedings can, and in my view should, conveniently be determined separately from the other claims. It is only once the s.79 proceedings have been completed that the wife will be able to demonstrate whether she has in fact suffered any and if so what loss and damage as a result of the conduct of the husband and/or the other party which forms the basis of her common law and statutory claims for damages.
The mere fact that one aspect of the factual history of the financial relationships between these parties, namely the sale of the interest in the husband's business and his dissipation of the proceeds, may be relevant in both sets of proceedings does not, in my view, serve to make the two sets of proceedings part of an indivisible matter. The nature and the basis of the claims in the two proceedings are quite different, and they arise from entirely different facts.
I conclude that the claims against the other party are entirely separate and severable from the s.79 proceedings between the husband and wife and that they therefore do not fall within any accrued jurisdiction which this Court may have. Accordingly, I propose to order that those proceedings be dismissed.
In the course of submissions there was some discussion of the provisions of the Federal Court (State Jurisdiction) Act of South Australia, which was assented to on 12 August, 1999 and proclaimed on 19 August, 1999. The wife's claim, as presently framed, is ex facie outside the jurisdiction of this Court, but I have determined that, even if amended to invoke the accrued jurisdiction of this Court, it would still remain outside this Court's jurisdiction for the reasons which I have given. Accordingly, I think the appropriate order is that the proceedings instituted by the wife's amended application filed on 22 December, 1998, insofar as it relates to the claims against the other party, Wallmans, and/or the husband as set out in the attached statement of claim, be dismissed for want of jurisdiction. Such an order, as it seems to me, would not prevent the wife from proceeding to seek to have the proceedings, invoked by that part of her claim, taken up as a pending matter in the Supreme Court of South Australia.
RECORDED : NOT TRANSCRIBED
HIS HONOUR:
I order that the proceedings instituted by the wife's amended application filed on 22 December, 1998, insofar as they include the proceedings against Wallmans and/or against the husband for damages as set out in the statement of claim annexed to that application, be dismissed for want of jurisdiction. That order clearly does not apply to the proceedings under s.79 instituted or carried on by that same application against the husband.
RECORDED : NOT TRANSCRIBED
HIS HONOUR:
I have now before me an application on behalf of the other party for costs and also on behalf of the husband. The first question which I need to resolve, I think, before determining the costs issue, is whether s.117 of the Family Law Act applies to the proceedings. Subsection (1) of that section provides that:
“Subject to subsection (2) and section 118 –“
which is not relevant -
“each party to proceedings under this Act shall bear his or her own costs.”
However, that prima facie rule is subject to the operation of subsection (2) which prescribes that:
“If in proceedings under this Act the Court is of opinion that there are circumstances that justify it in so doing the Court may, subject to subsection (2A) and the Rules of Court, make such order as to costs as the Court considers just.”
Then subs.(2A) sets out a catalogue of matters which the Court is required to take into account in considering what order, if any, should be made under subs.(2). But it is clear that that applies only if they are proceedings under this Act.
The proceedings before me had, really, two aspects. One was the cross-vested aspect, if I can use that expression, arising from the fact that the wife's pleading, as it stood, invoked the jurisdiction of this Court pursuant to the cross-vesting legislation.
So far as that aspect is concerned it is clear, as a result of the decision of the High Court in re Wakim, that the Court had no jurisdiction to continue with the proceedings. So, to that extent the proceedings which came before me today were not proceedings under this Act but under another Act, namely the Jurisdiction of Courts (Cross-Vesting) Act. However, as I indicated in my principal judgment, the matter proceeded before me not on that basis but on the basis that the applicant wife would seek to amend her statement of claim to invoke the accrued jurisdiction of this Court and the matter proceeded upon that basis. It is clear that all parties recognised and were aware prior to this morning that that is the basis upon which the matter would proceed.
In the end, I ruled that the matters sought to be raised by the wife in her claims against the husband and the other party do not fall within the accrued jurisdiction of the Court. However, the question which was debated today was a question of the Court's jurisdiction under the Family Law Act. I think that is clear because the argument really hinged upon s.31(1)(a), which defines the Court's jurisdiction, and the accrued jurisdiction of the Court, although it is non-federal, remains jurisdiction under the Family Law Act, because it is only the Act which confers any jurisdiction upon this Court.
So it seems to me that the proceedings today, insofar as the real substance of the matter is concerned, were proceedings under the Family Law Act, and therefore s.117 applies. The proceedings under the cross-vesting legislation were really only a formal and inconsequential part of the proceedings today. So I conclude that the application for costs falls to be determined in accordance with the principles set out in s.117, and accordingly I am obliged to consider whether there are circumstances that justify the making of an order for costs in favour of the other party and the husband against the wife. No costs order is sought by the wife against either of the other parties.
In considering that question, I must have regard to the matters set out in subs.(2A) of s.117.
The first of those matters is the financial circumstances of each of the parties to the proceedings.
Now, I know something of the financial circumstances of the husband and wife, in the sense that I have been informed basically of what the material filed in the Court in the substantive s.79 proceedings reveal about their financial circumstances, and I have been told from the bar table a little more about the wife's financial circumstances to bring them up to date from the time of the filing of her last financial statement.
So far as the two parties are concerned, when I say that I mean the husband and the wife, it seems to me that looked at overall the wife could be said to be in less advantaged financial circumstances than the husband. The husband at least has a business which he runs. I do not know what income that produces to him, but he has a source of cash flow at least. The wife, on the other hand, is supporting, apparently, two children, and has only a modest income from Social Security and part-time work.
I know nothing of the financial circumstances of the solicitors who are the other party, however I note there are a number of them. The statement of claim identifies several members of the firm, 11 in all. I cannot draw any conclusions about their individual financial circumstances, but as it is a firm of practising solicitors I think I can at least infer that the partnership is solvent, that each of the members of the partnership is solvent, and I think it is at least a reasonable inference to draw from that fact alone that the other party is certainly in a better and stronger financial position to bear the costs of these proceedings than is the wife, and that is all I say about that.
Paragraph (b) refers to legal assistance and I have not been informed but I assume nobody is on legal assistance.
Paragraph (c) refers to the conduct of the parties to the proceedings in relation to the proceedings and other matters of that kind. I must say I see nothing reprehensible, in relation to any of the parties to these proceedings, in relation to the conduct of these proceedings. They are potentially complex and difficult proceedings in some ways but I say nothing about the conduct of the parties in relation to the substantive property proceedings between the husband and wife because they are not strictly a matter which is relevant before me today.
Paragraph (d) refers to whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders, and that does not seem to be relevant.
Paragraph (e) is submitted to be the most relevant paragraph and that refers to whether any party to the proceedings has been wholly unsuccessful in the proceedings. And I think it cannot be gainsaid that the wife, ultimately, has been wholly unsuccessful in the proceedings before me today.
Paragraph (f) is not relevant, no relevant offers have been made, and paragraph (g) enables the Court to take into account such other matters as the Court considers relevant.
Having regard to those matters, it seems to me that in the exercise of my discretion the appropriate conclusion is that there are not circumstances that justify the making of an order for costs in these proceedings. I should say that I am considering only the costs of and incidental to today's proceedings. I am not considering any issue of costs as between the wife and the other party in respect of the proceedings generally, because it seems to me that it will be available to the other party to seek an order for those costs in the Supreme Court, if the matter ultimately proceeds there. If the wife does not choose to pursue the proceedings there, then there are avenues available to the other party to have the matter enlivened there for the very purpose, and solely for the purpose, of seeking an order for costs.
So I am dealing only with the costs of and incidental to today's proceedings, and as I have said, I am not satisfied, in all of the circumstances, having regard particularly to the financial circumstances of the wife as they are disclosed to me, the complexity of the issues and what I regard as the inherent arguability of the matter which was before me today, that there are circumstances justifying the making of an order that the wife, in her circumstances, pay the costs of the solicitors or indeed of the husband of these proceedings. So I make no order as to the costs of and incidental to today's proceedings. So the only order will be the order which I announced earlier.
JURISDICTION OF THE FAMILY COURT OF AUSTRALIA – Accrued – Cross-vested – Damages claim – S.79 application – “single judiciable controversy” – Family Law Act s.31(1)(a)
Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) (1983) 154 CLR 261; Phillip Morris v Adam P Brown (1981) 33 ALR 465 and Re Wakim (1999) 163 ALR 270 cited and followed.
Smith and Smith (No 3) (1984) FLC 91-732; Smith and Smith (No 2) (1985) FLC 91-604; McKay and McKay (1984) FLC 91-573; and Ireland and Ireland (1986) FLC 91-731 referred to.
This was an application by the husband’s former solicitors to dismiss proceedings for want of jurisdiction as a consequence of the High Court decision in Re Wakim (1999) 163 ALR 270.
The husband and wife were married on 28 January, 1980 and separated on 1 November, 1996. On 25 February, 1997 the wife instituted property proceedings and the husband’s solicitors were retained from the commencement of those proceedings until about November 1998.
Until at least 22 June, 1998 the husband operated, personally and through various business entities, an accountancy practice part of which was sold, without disclosure to the wife, on 25 June 1998. The husband alleged the proceeds of that sale were subsequently expended by him and no longer existed in the form of cash or any other asset. The wife contended the husband’s solicitors were, to her prejudice, complicit in the disposal by the husband of a significant asset at a time when property proceedings were pending.
On 2 December, 1998 the wife was given leave to amend her application to include a cross-vested claim for damages against the husband’s solicitors. While those claims were brought pursuant to the cross-vesting legislation and were, as a result of Re Wakim, beyond the jurisdiction of the Court, the wife subsequently sought to rely on the Court’s accrued jurisdiction, as identified in Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) (1983) 154 CLR 261; Phillip Morris v Adam P Brown (1981) 33 ALR 465 and Re Wakim, as the jurisdictional foundation for those claims.
When the matter came before the Court on 29 September, 1999 the issues for determination were:
(i)whether the Commonwealth Parliament has invested the Court with accrued non-federal jurisdiction;
(ii)whether this case falls within the Court’s accrued jurisdiction; and
(iii)whether, even if jurisdiction is satisfied, the Court should exercise its discretion to determine the matter.
Held, dismissing the application for want of jurisdiction:
It is beyond doubt that the Constitution gives Federal Parliament the power “to give authority to federal courts to decide the whole of a single judiciable controversy of which a federal issue forms an integral part”: per Mason, Brennan & Deane JJ in Slack v Coast Securities (1983) 154 CLR 261 at 293. However, the High Court has not yet authoritatively determined that the Family Court has been invested with such accrued jurisdiction (Smith v Smith (No 3) (1986) FLC 91-732 at 75,331-2. See also Ireland and Ireland (1986) FLC 91-731 ; Smith and Smith (No 2) (1985) FLC 91-604 and McKay and McKay (1984) FLC 91-573). For the purposes of these proceedings the Court assumed, without deciding, that in a proper case the Family Court, no less than the Federal Court, has accrued jurisdiction to determine the non-federal aspect of a single judiciable controversy which also involves a federal issue which is within the Court’s primary jurisdiction conferred by the Act.
The wife’s claim for damages against the husband’s solicitors and her claim against the husband for relief under s.79 did not form part of a single justiciable controversy, nor was the former claim attached to or non-severable from the latter, and nor did the two sets of claims arise from a common substratum of facts: Phillip Morris v Adam P Brown (1981) 33 ALR 465; Re Wakim (1999) 163 ALR 270 cited and followed.
The s.79 proceedings could and should be determined separately from the other claims. The mere fact that the husband’s sale of the business and dissipation of the proceeds may be relevant in both sets of proceedings did not make the two sets of proceedings part of the one indivisible matter.
The claim against the solicitors was entirely separate from the s.79 application and therefore did not fall within any accrued jurisdiction of the Court.
While, insofar as the real substance of the matter was concerned, the proceedings were proceedings under the Family Law Act and therefore s.117 applied, the circumstances did not justify an order for costs.
REPORTABLE
0
6
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