Martin and Martin and Anor
[2014] FamCA 98
FAMILY COURT OF AUSTRALIA
| MARTIN & MARTIN AND ANOR | [2014] FamCA 98 |
FAMILY LAW – INJUNCTIONS – Application for injunctive relief – application dismissed
| Family Law Act 1975 (Cth) |
| ABC v Lenah Game Meats Pty Ltd (2001) HCA 63; 208 CLR 199 Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000 Australian Security and Investments Commission & Rich (2003) FLC 93-171 Biltoft and Biltoft (1995) FLC 92-614 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Commissioner of Taxation & Worsnop & Anor (2009) FamCAFC 4 Deputy Commissioner of Taxation & Kliman & Kliman (2002) FLC 93-113 Dougherty & Dougherty v Dougherty (1987) FLC 91-823 Martin & Martin [2012] FamCA 869, (2013) 49 FamLR 76 Mullen & De Bry (2006) FLC 93-293 Puddy & Grossvard & Anor. (2010) FLC 93-432 Rowell & Rowell; Deputy Commissioner of Taxation (Intervener) (1989) FLC 92-026 Stanford v Stanford (2012) FLC 93-518 Zdravkovic & Zdravkovic (1982) FLC 91-220 |
| APPLICANT: | Ms Martin |
| RESPONDENT: | Mr Martin |
| INTERVENER: | X Firm |
| FILE NUMBER: | MLC | 9829 | of | 2007 |
| DATE DELIVERED: | 28 February 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 24 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ambrose |
| SOLICITOR FOR THE APPLICANT: | Cahill & Rowe Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Glick SC |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE INTERVENER: | Mr Kirkham QC with Dr Ingleby |
| SOLICITOR FOR THE INTERVENER: | Nedovic & Co |
Orders
That paragraph 2 of the application filed 19 February 2014 is dismissed.
That paragraphs 3 and 4 of the said application are adjourned to 3 March 2014 at 10.00am.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor 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 MELBOURNE |
FILE NUMBER: MLC 9829 of 2007
| Ms Martin |
Applicant
And
| Mr Martin |
Respondent
And
| X Firm |
Intervener
REASONS FOR JUDGMENT
This discrete application in a case was filed on 19 February 2014 by X Firm who are the interveners in proceedings between Mr Martin and Ms Martin.
For my convenience, I shall refer to Mr Martin and Ms Martin as husband and wife respectively.
The substantive dispute is modestly simple. After long and protracted property proceedings during which X Firm acted for the wife, the husband and wife reached a settlement. The settlement seems to have been resolved without their lawyers involved. Over opposition from X Firm (and at that time a commercial litigation funding company as well), the husband and wife sought that the Court make final orders reflecting their settlement. Coleman J refused to make the orders they proposed after hearing from all parties (see Martin & Martin [2012] FamCA 869, (2013) 49 FamLR 76) .
A contentious fact then but not now is the amount of the legal costs that were owed by the wife to X Firm. X Firm had acted for the wife as her lawyers in the property proceedings up until prior to the matter was before Coleman J.
It is now common ground that the amount owing would not be satisfied out of the financial settlement reached between husband and wife if it were put into effect. Since the hearing before Coleman J, a costs dispute between X Firm and the wife has been resolved by the Costs Court of the Supreme Court of Victoria. Needless to say, the costs are very significant.
X Firm opposed and still opposes the Court making the orders to reflect what the husband and wife agreed upon because X Firm alleges that the husband and wife colluded to avoid X Firm being paid. That issue is what is currently part heard before me.
The immediate application seeks relief in the following terms:
· That the husband pay …$849,241.94 to (the solicitors for [X Firm]) within 7 days such sum to be held in an interest bearing account… Pending agreement between the parties…
· The husband (direct) his commercial solicitors to provide to [X Firm], (a variety of documents).
The principal solicitor of X Firm swore an affidavit which is (in part) the evidence relied upon in this application. I am treating the application as one for injunctive relief. In that affidavit, she deposed to the fact that the husband was in dispute with the State Government in relation to the compulsory acquisition of some land. The dispute went to VCAT. The solicitor said that a bank’s file note showed that on 8 January 2013, the husband said an entity apparently within his control had received $1.1 million and expected more. The bank’s note was said to say that the husband had received a “further $2.9 to $3.4 million” beyond the $1 million he had already received.
Leaving aside how the solicitor perceived that the husband had explained that compensation dispute and payment in his affidavits filed in the period from April 2012 to November 2013, she said that he had failed to include the chose in action as an asset in his balance sheet for the hearings on 31 August 2012 or 28 January 2014 or otherwise and, he had not adjusted his corporate entity’s balance sheets to take into account that chose in action. I understand that to mean that the corporate entity instigated the action with the Government. The thrust of the assertion of the solicitor was that the husband had repeatedly asserted that the compensation monies from the compulsory acquisition were likely to be less that the cost of his expected capital expenditure required for the developing of another property to which the corporate business would have to move as a result of the Government’s compulsory acquisition of the land. The solicitor said the husband had not shown in his “court materials” a number of facts.
The clear thrust of the evidence, and the inference that the solicitor would have the Court draw, was that the husband had withheld information about the true financial position and was continuing to do so.
X Firm also relied upon two affidavits of a Mr G. The first of those said that the witness tried in September 2013 to negotiate the purchase of the land to which the husband was moving. He said he was told the husband had purchased it but he could not be told the details because of the husband’s personal circumstances.
Mr G said that he now passed the land and noted that the business of the husband was conducted on that new site. He said he ascertained it had been sold (presumably to someone connected with the husband) for $1.95 million.
A second affidavit by Mr G said that he had done business with the husband who had confided in him that he would make sure that the wife got nothing in this Court and that he would conduct the proceedings so that the wife’s lawyers would run out of money and the wife would have to walk away. He told of the husband referring to fictitious loans from his father. Mr G said one of his unnamed employees had telephoned the Victorian Government Solicitor to be told that the husband was paid $3.3 million in December 2013 presumably by way of compensation.
No objection was taken to the affidavit material filed by the husband or the wife. It is not necessary for me to make findings about the truth of the assertions of the solicitor or Mr G because this is an interlocutory application brought on quickly and the husband has been criticised for remaining silent on the whole set of transactions. The G evidence (and its admissibility) may be far more relevant to the question of whether the proposed orders of the husband and wife should be granted.
The evidence of the solicitor was also that in February 2014, requests were made to the husband’s legal practitioners for discovery to which a response was provided that the husband was under no such obligation to X Firm.
The solicitor then deposed to the fact that extant injunctions did not “protect” X Firm from the husband receiving “a windfall”. By that, I understand her to mean that there were extant injunctions against the husband but that they were insufficient to catch his use of the windfalls from the compensation.
In her affidavit, the solicitor asserted that she was concerned that because of the husband’s “previous conduct” during the proceedings, he would spend the money on capital expenditure for his business, making it “more difficult” for X Firm to recover “what it is owed by the husband and wife” including money to be paid to X Firm pursuant to orders of 12 September 2011 (to which Coleman J referred and to which I shall turn in a moment). The solicitor then set out a number of examples of what she said was the husband’s conduct.
I am not in a position to make any findings about the assertion set out in the foregoing paragraph. I note the reference to the orders of 2011 which read as follows:
That the Husband and the Wife each forthwith do all things necessary and sign all such documents as may be required to sell the properties at:
(a)[E Property] in the state of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“[E Property]”);
(b)[N Property] in the state of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“[N Property]”); and
(c)[A Property] in the State of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“[A Property]”),
(hereinafter collectively “Properties”) in accordance with the terms of these orders so that the total net proceeds of sale of all of the Properties after payment of the amounts prescribed by the terms of these orders in relation to each of the Properties respectively be disbursed such that the Wife receive the first one million dollars as and by way of partial property settlement (“Wife’s Million Dollar Entitlement”) such amount to be paid to [X Firm] and the parties share any remaining balance equally as and by way of partial property settlement respectively and the parties be equally responsible for the sale of the Properties.
Thus, it will be seen that the solicitor’s reference to money owed by the husband and wife arises because of the order that property owned by them or by an entity under the control of either of them, was to be sold. In passing, I observe that whilst that literal reading of the order is obvious, the issue of whether, upon payment to X Firm, the money was that of the husband and the wife or just that of the wife, is still to be argued.
Coleman J accepted that the quantum of the wife’s indebtedness to X Firm might not be met and in particular, the obligations under the order made on 12 September 2011 might not be met. His Honour found that that would affect the ability of X Firm to recover its indebtedness. His Honour rhetorically asked whether that would ultimately preclude the Court from concluding that the orders sought by the husband and wife were just and equitable within s 79(2) of the Family Law Act 1975 (Cth) (“theAct”). His Honour observed that that would depend upon findings of fact which he was then unable to make. The determination of that task is still pending before me. As Coleman J observed:
1.It may be that, if and when findings of fact are available ... the Court could be satisfied that it would be just and equitable to make the orders that the wife and the husband seek.
His Honour refused to make the orders sought by the husband and wife because the Court had to be “affirmatively satisfied” that in all the circumstances, it was just and equitable to make them. He found that having regard to the position of X Firm, the Court was not able to be satisfied that the proposed orders were just and equitable.
Coleman J left open the question of whether or not another hearing might result in those relevant findings being made.
There was no dispute that the Court has the jurisdiction and the power to make the injunctive orders sought. The question is whether it should do so.
Senior Counsel for X Firm set out the argument in a well-reasoned and helpful submission. He submitted:
· The behaviour of the husband and wife contaminates the court’s processes and should be taken into account as to whether the orders they are now seeking should be granted;
· The asset pool is larger than that contended for by the husband and wife and it is a relevant matter for the Court to consider in dealing with the third party’s rights;
· The authorities require the Court to ascertain the property of the parties which exercise takes into account the amounts owed to creditors to arrive at a net property value;
· The decision to approve consent orders must be made on the basis of reliable and up to date information based on admissible evidence;
· In considering the proposed orders, it is clearly relevant to take account of the capacity of X Firm to recover its debt;
· X Firm is a party and has the same rights as the other parties including access to evidence which is relevant to the case.
Senior Counsel for the husband and counsel for the wife did not address those submissions but the reality is that there can be little dispute that the submissions are correct. The difficulty about what to do with the substantive dispute is yet to be determined and what I am being asked to consider here is an order to preserve the assets of the parties until a future date. The question is whether that is proper.
Senior Counsel for the husband submitted that an injunction was not proper because there was no substantive relief or judgment to be protected and that if the Court found ultimately that the husband and/or the wife had colluded to avoid the wife’s debt to X Firm and it was found to be an abuse of the Court’s process, the Court might refuse to find that the orders were just and equitable under the provisions of s 79(2) of the Act.
Senior Counsel for X Firm drew my attention to Commissioner of Taxation & Worsnop & Anor (2009) FamCAFC 4, Australian Security and Investments Commission & Rich (2003) FLC 93-171, Puddy & Grossvard & Anor. (2010) FLC 93-432 and Stanford v Stanford (2012) FLC 93-518. All of those cases are only of assistance if there is some issue about whether the Court has the power to make orders of the nature agitated for by X Firm.
In respect of the power of the Court, no argument was put that a third party cannot protect their rights and interests in proceedings by successfully obtaining leave to intervene in proceedings under s 92 of the Act. Despite that, it is helpful to look at the statutory powers.
Section 92(3) provides:
Where a person intervenes in any proceedings by leave of the court he shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
The extent to which the Family Court can make orders affecting third parties was discussed in Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000. There, Gibbs J (as his Honour then was) at p 76,063 said:
It is obvious that this subsection [ie 92(3)] must be read down; it cannot mean that any intervener, whatever his, her or its situation, is to have all the rights and liabilities of a party to a marriage. For example, if the Registrar General were to intervene in proceedings in the Family Court…he would not thereby assume the liabilities of a party to the marriage, such as the liability to maintain the wife. Section 92(3) enables the court to make an order either in favour of or against an intervener if such order is one that can properly be made as a matter of substantive law; the subsection removes a possible procedural obstacle, but does not alter substantive rights and duties. It does not give the Family Court power to impose new duties upon, or to annul the rights of, third parties who are interveners. If the court had no power, apart from sec. 92(3), to order Ascot Investments to register the transfers, that subsection did not confer that power on it.
The provision which X Firm seeks to rely upon for this discrete application is in s 114 which allows the Court to make orders or grant injunctions. It provides (relevantly to these proceedings):
114(1) In proceedings of the kind referred to in paragraph (e) of the definition of ``matrimonial cause '' in sub-section 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including -
(a)…
(b)…
(c)…
(d)…
(e)an injunction in relation to the property of a party to the marriage; or
(f)…
114(3) also provides:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Does the power in s 114(1) or (3) extend to an application such as this in circumstances where the intervener is the applicant as a creditor of one of the parties to the marriage?
In Zdravkovic & Zdravkovic (1982) FLC 91-220, the Full Court held that in an appropriate case, in proceedings under s 79, an order may be made to require the discharge of a debt to a third person in appropriate proportions as a condition of, or as terms of, an alteration of the parties’ interests in their property. Pawley SJ, Strauss and Treyvaud JJ said:
We are, however, of opinion that in an appropriate case, as part of the adjustment of the financial rights of the parties, the court may in proceedings under s 79 order the discharge of a debt to a third person, whether such person is an intervener or not. Once it is clear and beyond doubt that a debt is owing to a third person and that all the probabilities are that it will be enforced unless it is discharged by payment, then the court is not precluded from ordering its discharge by the parties or one of them as a condition or as part of the overall readjustment of the parties’ financial rights, if such a course is convenient or just. Situations, where such orders have been appropriate and where they have been made, are numerous. Amongst the almost innumerable examples which come to mind are the discharge of a debt due under some credit facility granted to both or one of the parties, the payment of existing liabilities of one or both of the parties to a store or for medical or like accounts, or for rates or income tax liabilities or motor car registration or insurances. The mere fact that a debt is owed to a relative does not prevent the court from ordering its discharge by payment as a term or condition of an order under s 79, provided it is recognized by all concerned that it is a debt then due and owing, and likely to be enforced, if it is not repaid.
In Rowell & Rowell; Deputy Commissioner of Taxation (Intervener) (1989) FLC 92-026, the facts were that the husband owed a tax debt he could not pay. The Tax Commissioner had obtained from the NSW Supreme Court, a Mareva order preventing the husband from disposing of a property. The trial judge nevertheless ordered the transfer of that property to the wife. The Full Court allowed the appeal as there was no legitimate reason for the debt to the Tax Commissioner to be disregarded. It was noted that the existence of the Mareva order “in a sense” provided the property as security for the satisfaction of the judgment debt in due course.
McCall J at 453 stated:
The Family Court has always taken into account liabilities, not only liabilities which are certain or reasonably established but even those liabilities which are contingent and which have to be established…
At 454, his Honour went on to say that:
In fact in my view this is a very strong case demanding that the liabilities be taken into account. There was in fact a judgment of the Supreme Court so that the liability in terms of quantum was fixed. The property had been made the subject of a Mareva injunction whereby the husband was restrained from disposing of it and in a sense that provided the property as a security for the satisfaction of the judgment debt in due course.
In Biltoft and Biltoft (1995) FLC 92-614 the Full Court said at 82,124:
A general practice has developed over the years that, in relation to applications pursuant to the provisions of s 79, the Court ascertains the value of the property of the parties to a marriage by deducting from the value of their assets the value of their total liabilities. In the case of encumbered assets, the value thereof is ascertained by deducting the amount of the secured liability from the gross value of the asset. See, Ascot Investments Pty Ltd v Harper & Anor (1981) 148 CLR 337 where Gibbs J (as he then was) pointed out at p 355 that the Court “must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions and covenants that limit the rights of the party who owns it”. Where the assets are not encumbered and moneys are owed by the parties or one of them to unsecured creditors, the court ascertains the value of their property by deducting from the value of their assets the value of their total liabilities, including the unsecured liabilities. (emphasis is mine)
The Full Court then said:
Of course, the Court cannot ignore the fact that there is or may be a liability; the effect is simply that it does not consider that the other spouse should be called upon to in effect ‘contribute’ to the liability by having that spouse’s fair share in the parties’ property reduced by virtue of its existence. The effect is that the party who has incurred the liability will be left to meet it out of whatever funds remain to that party after satisfying the property order made under s 79.
Senior counsel for X Firm pointed to Deputy Commissioner of Taxation & Kliman & Kliman (2002) FLC 93-113 not only as to the source of the power but also as to how the Court dealt with a debt situation. The Court referred to the statement of Gibbs J in Ascot Investments Pty Ltd v Harper and Harper (supra) and said that while s 92(3) operated to deem an intervener to be a party to the proceedings with all the rights, duties and liabilities of a party, it did not confer on the intervener the right to seek any substantive relief which was not otherwise available to the intervener under some other provision of the Act. As the Court made clear, the proceedings did not lose their character as a “matrimonial cause” (see s 4 paragraph (ca)) because of the intervention. (see also Dougherty & Dougherty v Dougherty (1987) FLC 91-823 per Mason CJ and Wilson and Dawson JJ at 76, 194).
In the context of and relevant to, the current application, I observe that in Kliman,(supra) Ellis and Finn JJ noted that:
[22] […] certain of the powers conferred on the Family Court to grant injunctive orders (being the powers contained in s 114(1) and (3)) are conferred only in the context of jurisdiction being exercised in particular types of proceedings.
Also in Kliman, Ellis and Finn JJ discussed the issue of creditors in the context of injunctive relief under s 114 and observed that that the essential purpose of an asset preservation order was to prevent an abuse or frustration of the processes of the court. Significantly in that case and relevant here, their Honours said that where the intervener sought “final orders”, there was jurisdiction to grant an asset preservation order.
It is also now beyond dispute that the Court may make an order for the payment of a debt owed by one of the parties to a marriage to “a public authority” (see Kilman and also s 80(1)(f)).
Whilst the power of this Court to alter the interests of the parties to the marriage is also beyond doubt, absent some provision in Part VIIIAA or the use of the accrued jurisdiction, the power of the Court only enables it to give effect to the rights and entitlements of third parties. (Ascot Investments Pty Ltd v Harper (supra)).
In the submissions of Senior Counsel for X Firm, some emphasis was placed on the basis upon which injunctive relief should be granted (as distinct from could be granted) (see Mullen & De Bry (2006) FLC 93-293). That is uncontroversial. The provisions of s 114 require the Court to be satisfied that it is proper to make the order or, in the case of s 114(3), that it is just and convenient to make the order. Each case requires an assessment of its facts to determine that.
This case has had a long gestation period as will be evident from the date of the decision of Coleman J and, in the hearing some weeks ago, the issue of the disputed compensation money was certainly raised. Thus, I question the urgency and expense relating to this particular application even allowing for the nature of the evidence of Mr G and the concerns of the solicitor.
In my view, the evidence does not support the drastic action sought by X Firm because at least some of this material was known previously to X Firm but, one thing has apparently not changed. That is, the wife, against whom there is now a costs judgment in favour of X Firm and for whatever reason, has chosen to persist in seeking the orders alongside the husband. That is particularly poignant in the context of the G evidence as to what the husband told him some years ago. Throughout this discrete application and the part heard case, the wife has been represented by solicitors and counsel. Now knowing what is asserted by X Firm, she has not waivered. In my view, this could have been a matter canvassed at the resumed hearing and there was no urgency about it at all.
Leaving aside the issue of why the application was brought as it was, in my view it would not be proper to make an order here. The evidence suggests that the money is now apparently uncovered. It suggests that the solicitor has Mr G to show that discussions about defeating the wife’s interests occurred long ago. Mr G’s evidence indicates that the husband is putting money and/or effort into the business. It shows that if what the Victorian Government Solicitor told Mr G’s employee was true (and I find it extraordinary that such information could be so readily conveyed), the money is now traceable and by inference, reflected in the new business. In those circumstances, I cannot find that it is proper to make the order.
Even if I am wrong about whether an injunction should be granted or indeed whether the power to enable X Firm to achieve the payment of its debt is wider than I have set out, I am very mindful of what the High Court said in ABC v Lenah Game Meats Pty Ltd (2001) HCA 63; 208 CLR 199. This decision was relied on by Senior Counsel for the husband and adopted by counsel for the wife. Based on the approach taken by the High Court, I would not make an order here for the reasons that follow.
Senior Counsel in this Court referred to the famous statement of Sir Frederick Jordan in his authoritative text on equity. In ABC, Gleeson CJ also referred to it. It is my starting point:
The purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit.
It was the submission of Senior Counsel for the husband that there is no relief that X Firm can obtain in this Court and the judgement debt is against the wife only. Absent some evidence to show that the wife has equitable interests in property owned by the husband (something not apparently pursued by the wife), it was the husband’s submission that there were no matters to keep in statu quo. There is some force in that bearing in mind what I have said about the evidence of Mr G.
In ABC (supra), Gleeson CJ said of the proceeding before the High Court:
In order to preserve the subject matter of the dispute, and to prevent the practical destruction of the right claimed by the respondent before the action could be heard on a final basis, the Supreme Court had power to grant an interlocutory injunction. The immediate source of that power was s 11 of the Supreme Court Civil Procedure Act 1932 (Tas). Power of that nature has a long history, and is exercised according to principle, not unguided discretion. I agree with what is said by Gummow and Hayne JJ as to the relevant principles. For present purposes, what is most significant is that the justice and convenience of granting an interlocutory injunction, in a case such as the present, is to be found in the purpose for which the power exists.
The Chief Justice went on to say:
We are not concerned in the present case with forms of relief, such as the Mareva order, or anti-suit injunctions, which have expanded the boundaries of this area of jurisprudence. Nor are we concerned with some special statutory jurisdiction.
To an extent therefore, ABC might be distinguished because the application before me relies on a specific statutory injunctive power. Be that as it may, the language in s 114 of the Family Law Act is very much the same as that contained in the 1932 Tasmanian legislation that was considered by their Honours.
Gleeson CJ referred with apparent approval to the test in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153.
If that test is applied, X Firm has to show;
(1)That there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief;
(2)That he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
(3)That the balance of convenience favours the granting of an injunction.
On the basis that the test in s 114 is whether it is proper to make the order or that it is just and convenient to do so, as Gleeson CJ said, the discretion is not unguided. In my view, the guidelines (and that is all they are) are as set out in Castlemaine Tooheys. In this case, X Firm has not satisfied me about any of those three questions.
As Gleeson CJ observed, an interlocutory injunction is usually made “until further order” and in the case of the pursuit by X Firm, one has to ask until what order? Or, what right is being sought to be protected on an interlocutory basis?
In my view, it is not necessary to look at ABC in depth but it is helpful to look at what Gummow and Hayne JJ said at para 90. Their Honours observed (citations omitted):
The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature. In Muschinski v Dodds, Deane J said that an equitable remedy:
is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles.
To guide the exercise of the discretion in s 114, I consider it is important to contemplate what remedy or right is being sought to be protected or, what order is likely to be agitated for in a final hearing in this Court. There is little doubt that the fundamental principle upon which X Firm is litigating in the current proceedings is that the husband and wife have acted unconscionably. The question of whether that is correct remains to be decided and nothing I am now doing should be taken to mean that the determination has been made on that issue. Coleman J made that question clear.
Unconscionability is at the very core of this case. X Firm says that there has been collusion and the Court is being misled but unconscionability can only be of relevance to the question of the right of X Firm or the order sought by the parties, to be made. As was submitted by senior counsel for the husband that if the Court considers the proposal of the husband and wife unconscionable because of the conduct of the husband (or either or both of the husband wife), the Court will decline to make the order.
How far the Court should go to consider whether or not to make an injunction depends upon the facts of the case. If (as was said by Gleeson CJ in ABC at para 18) it is necessary or appropriate to examine the ultimate claim for final relief, it may be that on the uncontroversial facts, X Firm has to produce evidence of a prima facie argument for some final order. Having regard to the authorities to which I have referred earlier, that potential final order is not apparent to me from the evidence presented to me on this (and I stress this) interlocutory application.
The application for the injunction must therefore fail.
The application also sought orders for discovery. Having regard to the concentration on the injunctive orders and the fact that little was said about that, I propose to leave that until Monday.
I certify that the preceding Sixty One (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 February 2014.
Associate:
Date: 28 February 2014
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