Miric v Romanous
[2021] NSWSC 805
•01 July 2021
Supreme Court
New South Wales
Medium Neutral Citation: Miric v Romanous [2021] NSWSC 805 Hearing dates: 1 July 2021 Date of orders: 1 July 2021 Decision date: 01 July 2021 Jurisdiction: Equity Before: Kunc J Decision: No power to transfer proceedings to Federal Circuit Court of Australia; NSW Supreme Court proceedings stayed
Catchwords: CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit Court of Australia
Legislation Cited: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases Cited: Chan v Johnson [2014] NSWSC 1439
CPPIB Credit Investments Inc v Ren (No 2) [2018] NSWSC 1016
Category: Procedural rulings Parties: Dejana Miric (Plaintiff)
Joe Romanous (First Defendant)
Lionheart Lawyers Pty Ltd (Second Defendant)
Vanessa Marie Romanous (Third Party)Representation: Counsel:
N Obrart (Plaintiff)
Solicitors:
T Barber (First Defendant)
J Tabbernor (Third Party)
Harper James Law Group (Plaintiff)
Barber Lawyers (First Defendant)
Lionheart Lawyers Pty Ltd (Third Party)
File Number(s): 2020/302966 Publication restriction: No
EX TEMPORE Judgment (REVISED)
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This judgment concerns whether certain proceedings in this Court can and should be transferred to the Federal Circuit Court of Australia (as it was at the time the parties’ motions were filed and to which I shall still refer for convenience as the FCCA). The Court has concluded that it has no power to order such a transfer and that the proceedings in this Court should be stayed so that the FCCA can deal with the issues raised by the proceedings in this Court. Without disrespect, I shall refer to the parties in these proceedings by their given names.
The two proceedings
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By statement of claim filed on 22 October 2020 the plaintiff, Dejana Miric, sues the first defendant, Joe Romanous, for declarations concerning their respective interests in the assets of a unit trust, including the proceeds of sale of two properties (the Supreme Court Proceedings). Some of those proceeds are currently being held in a solicitor's trust account pursuant to orders of the FCCA in proceedings under the Family Law Act 1975 (Cth) (the Family Law Proceedings) in which Joe is the defendant and the plaintiff is his estranged wife, Vanessa Romanous.
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Dejana consented to being joined to the Family Law Proceedings. However, she says it was a limited joinder for the purposes of the orders about the proceeds of sale to which I have just referred. It is not necessary for this Court to form any view about Vanessa's joinder in the Family Law proceedings. The outcome of this application has the practical effect that she will now take a full role, at least in relation to the issues that concern her, in the Family Law Proceedings.
The current motions
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The Court has before it two notices of motion. By notice of motion filed on 14 January 2021, Joe seeks these orders:
“1. That proceedings 2020/00302966 be transferred and joined with current family law proceedings SYC8049/2019 at the Federal Circuit Court with both the balance of convenience and interest of justice to be served.
2. Any other order the court deems fit.”
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By notice of motion filed on 3 March 2021 pursuant to leave granted by Ward CJ in Eq on 16 February 2021, Vanessa supports Joe's notice of motion by seeking these orders:
“1. That Vanessa Marie Romanous be joined to the proceedings as the Third Defendant for the purposes of the First Defendant’s Notice of Motion filed on 14 January 2021.
2. That Supreme Court proceedings 2020/00302966 be transferred to the Federal Circuit Court of Australia to be heard together with proceedings SYC8409/2019 in that Court.
3. That the Plaintiff pay the Third Defendant’s costs.”
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The motions were fixed for hearing before me in the Applications List on 30 April 2021. The parties sensibly agreed that the motions could be dealt with on the papers. The Court subsequently received written submissions from Ms J Tabbernor of Counsel for Vanessa (which were adopted by Joe) and from Ms N Obrart of Counsel for Dejana.
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Correctly, in my respectful view, no party suggested that the recently enacted Federal Circuit and Family Court of Australia Act 2021 (Cth) is relevant to the present question, because the FCCA is expressly continued in existence by s 8(2) of that legislation but renamed the Federal Circuit and Family Court of Australia (Division 2).
Consideration
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I considered the motions in chambers. On 1 June 2021, my Associate sent the parties an e-mail which included:
“His Honour has reviewed the evidence and submissions in this matter, noting that the parties agreed to the motions being dealt with in chambers on the papers. He has asked me to convey the following matters.
His Honour has determined finally that it is clear that the Supreme Court has no power to transfer matters to the Federal Circuit Court: Chan v Johnson [2014] NSWSC 1439 (Brereton J) and CPPIB Credit Investments Inc v Ren (No 2) [2018] NSWSC 1016.
The only questions then become what should happen to the proceedings in this Court and costs. His Honour’s preliminary views on those matters (which have not been the subject of submissions) are as follows.
Conformably with s 56 of the Civil Procedure Act, the proceedings in this Court should be permanently stayed because the issues in this Court can all be dealt with in the Federal Circuit Court, which proceedings in any event were commenced before the proceedings in this Court. The parties should not be engaged in litigation in two courts where one can deal with everything.
In the light of these conclusions there is no utility in joining Vanessa Romanous to the proceedings and her intervention has not resulted in any additional costs. His Honour therefore proposes to dismiss her motion with no order as to costs. In relation to Mr Romanous’ motion, he has failed in the relief which he sought and costs should follow the event. The costs of the stayed proceedings in this Court should otherwise be the parties’ costs in the Federal Circuit Court.
His Honour therefore proposes these orders:
1. The motion of Vanessa Romanous filed on 3 March 2021 is dismissed with no order as to costs.
2. The motion of the First Defendant, Joe Romanous, filed on 14 January 2021 is dismissed.
3. The First Defendant is to pay the Plaintiff’s costs of the First Defendant’s motion filed on 14 January 2021.
4. Stay these proceedings permanently.
5. Other than as provided in these orders, the parties’ costs of these proceedings be the parties’ costs in Federal Circuit Court proceedings SYC8049/2019. …”
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Since then, counsel have provided further short written submissions and, at the request of Dejana’s lawyers, I have today heard the parties in a further short hearing.
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Joe and Vanessa support the making of the orders which I foreshadowed in the e-mail set out in [8] above.
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Dejana's position has evolved somewhat. Ms Obrart now accepts that the FCCA has jurisdiction both expressly under the Family Law Act 1975 (Cth) and under that Court’s accrued jurisdiction to deal with the questions raised by the Supreme Court Proceedings. Her client's concern has primarily been directed to the foreshadowed order that the proceedings in this Court be stayed permanently. That concern seems to turn on some residual doubt about what might happen in the FCCA.
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It is clear that the FCCA has jurisdiction to deal with the issues raised in the Supreme Court Proceedings under the FCCA’s power to deal with the interests of third parties whose interests are tied up with one or both parties to a marriage. It is contrary to the overriding principle in this Court and, if I may say so, to fundamental common sense that there be two sets of proceedings in two different courts when one court can conveniently deal with all of those matters. For those reasons I am satisfied that these proceedings should be stayed to allow the FCCA to deal with the issues raised in these proceedings.
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How the FCCA does so is a matter for the case management procedures of that Court. This includes the possibility that the judge with carriage of the matter may think it appropriate to take whatever steps she or he thinks can be taken to ensure that Dejana's role in the Family Law Proceedings is no greater nor more time consuming than it has to be because there will be other issues ventilated in determining the size of the matrimonial asset pool in which Dejana will have no interest. That type of case management is one with which all courts are familiar and I have no doubt is something which is dealt with regularly in the FCCA.
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Nevertheless, to accommodate the concerns raised by Ms Obrart on behalf of her client, I will make an order staying these proceedings until further order rather than expressing that order to be a permanent stay. The reason for doing so is to ensure that if, for some unforeseen reason and contrary to what now appears to be everyone's expectation, the FCCA does not resolve the questions raised in these proceedings, then these proceedings can be reactivated.
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With the exception of the matter to which I have just referred, Ms Obrart's client also now accepts that the other orders foreshadowed in my Associate’s e-mail of 1 June 2021 should be made (although in those orders I will refer to the FCCA by its new name).
Conclusion
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The orders of the Court are:
The motion of Vanessa Romanous filed on 3 March 2021 is dismissed with no order as to costs.
The motion of the First Defendant, Joe Romanous filed on 14 January 2021 is dismissed.
The First Defendant is to pay the Plaintiff’s costs of the First Defendant’s motion filed on 14 January 2021.
Stay these proceedings until further order.
Other than as provided in these orders, the parties’ costs of these proceedings be the parties’ costs in Federal Circuit and Family Court of Australia (Division 2) proceedings SYC8049/2019.
Liberty to any party to apply on seven days’ notice.
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Decision last updated: 02 July 2021
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