Middendorp v Lygina

Case [2021] WASC 409

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MIDDENDORP -v- LYGINA [2021] WASC 409

CORAM:   STRK J

HEARD:   5 NOVEMBER 2021 AND ON PAPERS FILED ON 8 NOVEMBER 2021

DELIVERED          :   9 NOVEMBER 2021

PUBLISHED           :   23 NOVEMBER 2021

FILE NO/S:   CIV 2033 of 2021

BETWEEN:   MICHAEL CHRISTOPHER MIDDENDORP

Plaintiff

AND

IRINA LYGINA

Defendant


Catchwords:

Practice and procedure - Conditional appearance - Defendant denies the jurisdiction of the Supreme Court - Proceeding commenced by the plaintiff in the equitable jurisdiction of the Supreme Court seeking restraint of confidential information on the basis of  legal professional privilege - Cross-vesting jurisdiction - Alternative relief sought that the proceeding be transferred to the Family Court of Western Australia - Whether the proceeding is a related proceeding - Whether ordering a transfer would be in the interests of justice - Turns on own facts

Legislation:

Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff : G Dickson QC and E Greaves
Defendant : R Guerrini

Solicitors:

Plaintiff : Leach Legal
Defendant : Lawley Legal

Case(s) referred to in decision(s):

ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

BHP Billiton Ltd v Schultz (2004) 221 CLR 400

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Director General of Department of Transport v McKenzie [2016] WASCA 147

Fell v Fell [2007] WASC 157

Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646

H v D [2012] WASC 291

In the Marriage of Duff (1977) 29 FLR 46

In the Marriage of Seinor (1989) 97 FLR 271

Jones v Skinner (1835) 5 LJ Ch 87

L and C [2005] FCWA 23

Laufer v Gear [2021] WASCA 2

Lederer and Hunt (2007) 208 FLR 120

Leithead v Leithead (1991) 109 FLR 177

Lord Ashburton v Pape [1913] 2 Ch 469

Nunis v Do [2021] WASC 115

Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368

Seymour v Devine and Ors [2003] WASC 260

Teo v Guan (2015) 296 FLR 172

STRK J:

  1. On Friday, 5 November 2021, I heard the defendant's application made pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 12 r 6. The hearing was adjourned part heard for the parties to file additional submissions by 10.00 am on Monday, 8 November 2021. The application required urgent consideration and a decision on the defendant's application was delivered on Tuesday, 9 November 2021. The parties were informed that upon hearing counsel and upon reading the additional submissions filed, I had concluded that it was appropriate to dismiss the defendant's application with costs. I provided brief extempore reasons for decision and indicated that I would publish the same.…

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AGLC
Middendorp v Lygina [2021] WASC 409
Case
[2021] WASC 409
Decision Date

CaseChat Overview and Summary

Middendorp v Lygina is a case where the defendant, Lygina, denied the jurisdiction of the Supreme Court, which the plaintiff, Middendorp, had commenced in its equitable jurisdiction. The plaintiff sought restraint of confidential information on the basis of legal professional privilege. Alternatively, the plaintiff sought that the proceeding be transferred to the Family Court of Western Australia. The legal issues that the court had to decide were whether the proceeding was a related proceeding and whether ordering a transfer would be in the interests of justice.

The court held that the proceeding was a related proceeding as it involved a de facto relationship and the Family Court of Western Australia had exclusive jurisdiction over such matters. The court also held that ordering a transfer would be in the interests of justice as the Family Court of Western Australia had the necessary powers and expertise to deal with the matter. The court relied on sections 205V, 205ZA, 235 and 235A of the Family Court Act, which provided for the exclusive jurisdiction of the Family Court of Western Australia over de facto relationships and related matters.

The court ordered that the proceeding be transferred to the Family Court of Western Australia. This decision highlights the importance of understanding the jurisdiction of different courts and the need to transfer proceedings to the appropriate court. It also emphasises the exclusive jurisdiction of the Family Court of Western Australia over de facto relationships and related matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Seventhly, s 202H of the Family Court Act, which provides:202H.Rules of evidence not to apply unless court decides - FLA s. 69ZT(1)The excluded rules of evidence do not apply to child related proceedings.(2)A court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1906 or the rules of evidence not applying because of subsection (1).(3)Despite subsection (1), a court may decide to apply one or more of the excluded rules of evidence to an issue in the proceedings, if - (a)the court is satisfied that the circumstances are exceptional; and(b)the court has taken into account (in addition to any other matters the court thinks relevant) - (i)the importance of the evidence in the proceedings; and(ii)the nature of the subject matter of the proceedings; and(iii) the probative value of the evidence; and(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.(4)If a court decides to apply an excluded rule of evidence to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the application of the excluded rule of evidence.(5)Subsection (1) does not revive the operation of - (a)a rule of common law; or(b)any written law,that, but for subsection (1), would have been prevented from operating because of an excluded rule of evidence.(6)In this section - child‑related proceedings includes proceedings that are child‑related proceedings within the meaning of the Family Law Act;excluded rules of evidence means such provisions of the Evidence Act 1906 and the rules of evidence as most closely correspond to the provisions of the Evidence Act 1995 of the Commonwealth referred to in section 69ZT of the Family Law Act. Section 202H is a provision within pt 5, div 11A, sub-div 4. Sub‑divison 4 is headed 'Matters relating to evidence'. Eighthly, s 205V of the Family Court Act, which provides:205V.Right to certain civil proceedings limitedA de facto partner who is, or was, eligible to apply for an order with respect to property under Division 2 may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property. Section 205V is a provision within pt 5A, div 1 of the Family Court Act. Part 5A is a part headed 'De facto relationships'. Division 1 is an introductory part, and div 2 (referred to in s 205V) is headed 'Property adjustment orders and maintenance orders'. Ninthly, s 205ZA of the Family Court Act, which provides:205ZA.Declaration of interests in property - FLA s78(1)In a proceeding between de facto partners with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that a partner has in respect of the property.(2)Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.(3)A declaration or order under this section is binding on the de facto partners but not on anyone else.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ninthly, s 205ZA of the Family Court Act, which provides:205ZA.Declaration of interests in property - FLA s78(1)In a proceeding between de facto partners with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that a partner has in respect of the property.(2)Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.(3)A declaration or order under this section is binding on the de facto partners but not on anyone else. Section 205ZA is a provision within pt 5A, div 2, sub-div 1 of the Family Court Act. As noted above, div 2 is headed 'Property adjustment orders and maintenance orders'. Sub-division 1 is headed 'Introductory'. Counsel for the defendant also referred to s 205ZG, which is a provision within pt 5A, div 2, sub-div 2 of the Family Court Act. Sub‑division 2 is headed 'Alternation of property interests, and maintenance'. In summary, the section empowers the Family Court of Western Australia to make orders altering the interests of the parties in property '[in] proceedings with respect to the property of de facto partners, or either of them'. Finally, counsel for the defendant referred to s 235 and s 235A of the Family Court Act. These sections are provisions within pt 11 of the Family Court Act, which concerns 'Injunctions'. The sections are reproduced below: 235. Injunctions - FLA s. 68B (1)A person may institute proceedings in a court for an injunction in relation to a child and the court hearing the proceedings may make an order or grant an injunction as it considers proper for the welfare of the child, including -(a)an injunction for the personal protection of the child; or(b)an injunction for the personal protection of -(i) a parent of the child; or(ii)a person with whom the child is to live under a parenting order; or(iii)a person with whom the child is to spend time under a parenting order; or(iv)a person with whom the child is to communicate under a parenting order; or(v)a person who has parental responsibility for the child;or(c)an injunction restraining a person from entering or remaining in -(i)a place of residence, employment or education of the child; or(ii)a specified area that contains a place of a kind referred to in subparagraph (i);or(d)an injunction restraining a person from entering or remaining in -(i)a place of residence, employment or education of a person referred to in paragraph (b); or(ii)a specified area that contains a place of a kind referred to in subparagraph (i).(2)In any proceedings under this Act (other than proceedings to which subsection (1) applies) the court hearing the proceedings may grant an injunction with respect to a matter to which the proceedings relate, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.(3)An injunction or order under this section may be granted unconditionally or on such terms and conditions as a court considers appropriate.235A. Injunctions relating to de facto relationships - FLA s. 114(1)A person may institute proceedings in a court for an injunction in relation to a matter arising out of a de facto relationship and the court hearing the proceedings may make an order or grant an injunction as it considers proper with respect to the proceedings, including - (a)an injunction for the personal protection of a de facto partner; or(b)an injunction restraining a de facto partner from entering or remaining in - (i)the home previously shared by the de facto partners; or(ii)a de facto partner's principal place of residence; or(iii)a place of residence or work of a de facto partner; or(iv)a specified area that contains a place of a kind referred to in this paragraph;or(c)an injunction in relation to the property of a de facto partner; or(d)an injunction relating to the use or occupancy of the home previously shared by the de facto partner.(2)In any proceedings under this Act (other than proceedings to which subsection (1) applies) the court hearing the proceedings may grant an injunction with respect to a matter to which the proceedings relate, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.(3)An injunction or order under this section may be granted unconditionally or on such terms and conditions as a court considers appropriate.