Mitchell v Schneider No. Scciv-03-83

MITCHELL v SCHNEIDER

[2003] SASC 221

Civil

1. SULAN J:             This is an application by the defendant, Harold Schneider (“Schneider”) in an action commenced by the plaintiff, Diane Mitchell (“Mitchell”), seeking an order that the action be transferred to the Supreme Court of Northern Territory pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (SA) (“the South Australian Act”). On 21 January 2003, Mitchell commenced proceedings in the Supreme Court of South Australia seeking a property adjustment order pursuant to the De Facto Relationships Act 1991 (NT) and equitable relief against Schneider, her former de facto partner.

   Introduction

2. There are two issues to be determined. First, whether the Court should exercise its discretion to accept jurisdiction in the proceedings brought by the plaintiff pursuant to s 9 of the South Australian Act.[1]  Secondly, if the Court accepts jurisdiction, whether it should transfer the matter to the Supreme Court of the Northern Territory pursuant to s 5(2) of the South Australian Act.  If it appears to the Court that it is more appropriate in the interests of justice that the proceedings be determined in the Northern Territory then the Court should transfer the said proceedings.

   [1] s 9.  The Supreme Court –

   (a)may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to cross vesting of jurisdiction; and 

   (b)may hear and determine a proceeding transferred to that court under such a provision”

   The plaintiff’s proceedings

3. In or about May 1992, Mitchell and Schneider commenced living in a de facto relationship in Darwin in the Northern Territory. Mitchell claims that apart from a short time in 1995 when she and Schneider lived separately, at all times during the relationship they lived together at 14 Lanyon Terrace, Moil, in Darwin.

4. In the statement of claim, Mitchell alleges that at the beginning of the relationship, Schneider and herself had developed a common intention that they would conduct a commercial enterprise and this would be for the purposes of their joint relationship. During the relationship, Schneider operated and owned a cement carting business in Darwin.  It is alleged that Mitchell performed tasks for the business for no remuneration, such as assisting in the keeping of the books of account and washing uniforms. Mitchell states that during the relationship the business generated significant profits and goodwill.

5. The relationship continued up to February 2001, apart from a period in 1995 when the parties separated. At the time of the cessation of the relationship Mitchell alleges that she was forced to leave the residence due to Schneider’s constant mental abuse and episodes of physical violence against her and her possessions. The statement of claim alleges that the relationship broke down because Schneider had problems with alcohol.  It is further alleged that she was forced to move to South Australia, as a matter of urgency, to escape the defendant’s mental and physical abuse. Mitchell claims that she chose…