Nevill and Nevill - [2016] FamCAFC 41

FAMILY COURT OF AUSTRALIA

NEVILL & NEVILL

[2016] FamCAFC 41

FAMILY LAW – APPEAL – PROPERTY – forum – where property applications made in Australia and in New Zealand – application for stay of Australian proceedings under Trans-Tasman Proceedings Act 2010 (Cth) – where correct test is “more appropriate forum test” not the common law “clearly inappropriate forum” test – where the trial judge determined that New Zealand is the more appropriate forum to determine the dispute – consideration of factors identified in s 19(2) of the Trans-Tasman Proceedings Act 2010 (Cth) – where no merit found in any of the grounds of appeal – appeal dismissed – costs ordered.

Family Law Act 1975 (Cth)
Trans-Tasman Proceedings Act 2010 (Cth) Part 3, ss 3, 4, 17(1), 19(1) and 19(2)
Trusts (Hague Convention) Act 1991 (Cth)
Explanatory Memorandum, Trans-Tasman Proceedings Bill 2009 (Cth)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Henry v Henry (1996) 185 CLR 571
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Re Featherston Resources Ltd; Tetley & Ors v Weston & Ors (2014) 101 ACSR 394
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Trask & Westlake (Costs) [2015] FamCAFC 214
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPELLANT:

Ms Nevill

RESPONDENT:

Mr Nevill

FILE NUMBER:

BRC

2103

2015

APPEAL NUMBER:

2015

DATE DELIVERED:

17 March 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ryan and Murphy JJ

HEARING DATE:

2 February 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 October 2015

LOWER COURT MNC:

[2015] FamCA 876

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr G Page QC

SOLICITOR FOR THE APPELLANT:

Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT:

Dr M Sayers

SOLICITOR FOR THE RESPONDENT:

Jones McCarthy Lawyers

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal in such amount as may be agreed in writing between the parties or, failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nevill & Nevill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 82 of 2015
File Number: BRC 2103 of 2015

Ms Nevill

Appellant

And

Mr Nevill

Respondent

REASONS FOR JUDGMENT

On 20 October 2015, Kent J ordered that proceedings for settlement of property commenced initially by the wife in the Federal Circuit Court of Australia be “permanently stayed”. That decision was made by reason of a finding that the High Court of New Zealand was “the more appropriate court” within the meaning the Trans-Tasman Proceedings Act 2010 (Cth) (“the TTP Act”). The wife appeals that order.

The TTP Act And The Trial Judge’s Findings

On 24 July 2008 the Australian and New Zealand governments signed an agreement that has since found reflection in the legislation of each of those countries; in Australia, in the TTP Act. Part 3 of that Act concerns when an Australian court may stay a proceeding “on the grounds that a New Zealand court is the more appropriate forum”. Section 17 provides, relevantly:
(1) A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue.
Section 19(1) provides:
On application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:
(a)has jurisdiction to determine the matters in issue between the parties to the proceeding; and
(b)is the more appropriate court to determine those matters.
It was not controversial before his Honour that a New Zealand court has jurisdiction to determine all the matters in dispute between the instant parties. Accordingly the only issue before his Honour was whether a New Zealand court is “the more appropriate court” to determine the matters in issue between the parties.
In answering that question, the Australian court is given a discretion that is constrained by two matters. First, the court must take into account a number of matters prescribed in s 19(2). Secondly, the court must not take into account “the fact that the proceeding was commenced in Australia”. Otherwise, the discretion is at large. Section 19(2) provides in its entirety:
In determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account the following matters:
(a)the places of residence of the parties or, if a party is not an individual, its principal place of business;
(b)the places of residence of the witnesses likely to be called in the proceeding;
(c)the place where the subject matter of the proceeding is situated;
(d)any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies);
(e)the law that it would be most appropriate to apply in the proceeding;
(f)whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;
(g)the financial circumstances of the parties, so far as the Australian court is aware of them;
(h)any matter that is prescribed by the regulations;
(i)any other matter that the Australian court considers relevant;
and must not take into account the fact that the proceeding was commenced in Australia.
The trial judge’s reasons reveal a series of findings referenced, seriatim, to the nine matters required to be taken into account by that subsection.

The Grounds of Appeal

The grounds of appeal as pleaded in the Notice of Appeal are as follows:
1. That in adopting the words used by Brereton J in relation to the “more appropriate forum” test the trial judge erred in that he failed to consider the fact that the proceedings brought in Australia were proceedings under the Family Law Act and did not primarily concern commercial transactions in New Zealand.
2.That in finding that the parties had lived the greater part of their lives in New Zealand the trial judge erred in that he failed to have regard to the uncontested evidence of the wife that the parties had spent a greater part of their lives outside of New Zealand.
3. That the trial judge erred in determining that the possible existence of any juridical advantage to one party who had commenced proceedings in Australia was not a relevant factor to be accounted for in the exercise of the court’s discretion.

The Abandonment of Ground 2

It will be seen that ground 2 refers to the “uncontested evidence of the wife” and asserts that this evidence establishes that the “parties had spent a greater part of their lives outside of New Zealand”. When the wife’s counsel, Mr Page QC, was asked to take the Court to the “evidence of the wife” referred to in the ground, he responded that the ground should refer to evidence of the husband. That was an error addressed neither in any amended notice of appeal, nor any mooted amended notice of appeal. It was also an error that was not flagged in the wife’s written outline of argument drawn by Mr Page. The respondent husband (and the Court) prepared accordingly.
The apparent error was raised for the first time when the Court asked Mr Page to identify the “uncontested evidence” to which the ground refers. When the ground was “corrected”, the Court asked him to identify the “uncontested evidence of the husband” that sustained the (amended) ground’s premise. He was unable to do so.
The wife’s written outline of argument makes two further specific assertions. First, it is contended that “[t]here was no evidence before the trial judge that led him to [the] conclusion” at [62] of the reasons. Secondly, the written outline asserts that “[n]either of these parties addressed the question of their cohabitation between January 2003 and January 2013”. It was necessary for this Court to point out to Mr Page that each of those statements in the outline drawn by him is manifestly contrary to the evidence before his Honour.
The clear, unequivocal (and “uncontested”) evidence of the husband is that the parties commenced their relationship in April 2002 and commenced cohabitation in January 2003.[1] Although they dispute the date of final separation, both agreed that it occurred in June 2013.[2] The parties spent the first approximately four and a half years of their relationship in New Zealand and a further two years there between 2010 and 2012. In the approximately 11 and a half years of their relationship,[3] the parties lived in Australia for about three years and in New Zealand for about six and a half years.[4] Given that the competing forums before his Honour were those two countries, it might also be observed that the remaining two years of the parties’ relationship were spent in London.
[1]          Affidavit of Husband, 26 June 2015, at paragraph 5.
[2]          Affidavit of Wife, 10 March 2013, at paragraph 6 and Affidavit of Husband, 31 March 2015, at paragraph 4.
[3]          Their cohabitation was for 10 and a half years from January 2003.
[4]Affidavit of Husband, 26 June 2015, at paragraphs 5 and 7 – more precisely, the affidavit deposes to 80 months of the relationship in New Zealand; 31 months in Australia and 24 months in London.
When the erroneous contentions in the written summary of argument prepared by Mr Page were pointed out to him, together with the erroneous premise upon which ground 2 was based (in either its original or “amended” form), counsel agreed that the ground could not be sustained and abandoned it.

The Terms of Grounds 1 and 3

In terms, ground 1 would appear to assert error by reason of the application by his Honour of principles emerging from a decision by Brereton J that are said to be relevant to the TTP Act’s application to “commercial transactions”,[5] whereas the TTP Act in the instant case applied to “proceedings brought in Australia…under the [Family Law Act1975 (Cth)]”. In oral argument, Mr Page rejected that interpretation of the ground but we find it difficult to reconcile his contentions in that respect with the terms of the ground. In any event, Mr Page accepted that the TTP Act applies to “a civil proceeding” which, as defined in the TTP Act, does not make any such distinction as that apparent in the ground.[6] He also accepted that no other provision of the TTP Act suggests any such distinction.
[5] ReFeatherston Resources Ltd; Tetley & Ors v Weston & Ors (2014) 101 ACSR 394.
[6]TTP Act, s 4 – “civil proceeding means a proceeding that is not a criminal proceeding” (nor does any statutory exclusion apply, as to which see, for example, s 8(2) of the TTP Act).
Counsel also contended that, despite ground 3 referring in terms to error by reason of his Honour failing to accord relevance to “the possible existence of any juridical advantage to one party who had commenced proceedings in Australia”, the ground and the argument behind it did not offend the statutory edict earlier referred to, that, in deciding the “more appropriate forum”, a court “must not take into account that the proceeding was commenced in Australia”. Again, we are unable to reconcile counsel’s argument with the terms of the ground. The ground mirrors arguments raised orally before Kent J. It was said there, for example, “the wife chose to invoke the Australian jurisdiction, and quite properly as she could. And that pervades the whole of the question of the issues that then arise under s 19”.[7] As there expressed, the submissions appear to us to plainly offend the statutory prohibition.
[7]Transcript of proceedings, 15 September 2015, p 32, (emphasis added).
However, the asserted errors evident from the terms of the grounds as pleaded, as we see them, differ from those at the centre of the arguments advanced both orally and in writing on behalf of the appellant wife. Although we have some considerable difficulty in relating those arguments to the grounds of appeal as pleaded, no objection was taken to the formulation of asserted error in that way and, of course, the husband and his counsel, Dr Sayers, had notice of those arguments by reference to the wife’s filed outline of argument and he addressed them in his responsive written argument.

The Appellant’s Arguments

The Explanatory Memorandum to the TTP Act

The written outline of argument on behalf of the wife seeks to develop an argument advanced by reference to the TTP Act’s Explanatory Memorandum. In particular, reference is made to the use of the expression “a new statutory test” referred to within the Explanatory Memorandum to found an argument that “these words require special consideration” and that his Honour erred in failing to give consideration to “those words”.[8]
[8] Wife’s outline of argument, 25 January 2016, at paragraph 6.
Three points emerge immediately. First, as Dr Sayers points out, no such submission was made before his Honour; indeed, the Explanatory Memorandum was not referred to at all before his Honour by either counsel. Secondly, and we think more fundamentally, the words to which it is said consideration should have been given do not appear in the TTP Act. Thirdly, a complete reading of the Explanatory Memorandum makes it clear in our view that, in any event, the words relied upon do no more than make it clear that a new statutory test replaces the common law tests in each country irrespective of the content of those tests in each of the two countries.
As is pointed out in the husband’s written outline of argument, ambiguity in legislation is not a necessary precondition to recourse to statutory and other relevant materials in interpreting legislation.[9] Conversely, where the terms of legislation are straightforward, “[t]he judges complete the law promulgated by Parliament by applying it”.[10] Thus:
… [T]he task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language…of legislation is the surest guide to legislative intention…[11]
[9] See, for example, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408.
[10]Phillip Sayles, ‘Judges and Legislature: Values into Law’, (2012) 71(2) Cambridge Law Journal 287, at 292, quoted by Justice Kenny, ‘Current Issues in The Interpretation of Federal Legislation’, (Paper presented at the National Commercial Law Seminar Series), 3 September 2013, p 3.
[11]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, at [47], per Hayne, Heydon, Crennan and Kiefel JJ, quoted by Kenny J in ‘Current Issues in The Interpretation of Federal Legislation’ (above), p 5.
We are unable to see any uncertainty, ambiguity or difficulty in the text of the TTP Act. It sits within a broader context of seeking to streamline and simplify the law and processes applicable to disputes with a trans-Tasman element.[12] The TTP Act seeks to harmonise the test for establishing whether a court in New Zealand or Australia should be the forum for determining civil proceedings as defined. The means by which the TTP Act does so is equally unremarkable; it accords to the Australian court a broad discretion exercised within, but not confined to, mandatory considerations.
[12] TTP Act, s 3.
There is no merit in the arguments advanced on behalf of the wife to the extent that they are founded in the contents of the relevant Explanatory Memorandum.

The Comparison Between The Law of New Zealand and Australia

The wife’s primary arguments before us centre on an error said to arise from his Honour’s failure to compare the relevant law of each of Australia and New Zealand and give weight to what is said to derive therefrom. Those arguments build on arguments expressed within the wife’s written outline of argument as follows:
9.What the reasons of the trial judge do not include and should have included is the fact that these proceedings instituted by the appellant in Australia and the respondent in New Zealand each related to the division of property between the two parties who having married were now separated. It was a necessary consideration that the trial judge takes into account the significantly different regimes that operated in each of the two countries relating to the division of matrimonial property.
10.It is accepted that the reasons address submissions made to the trial judge as to the state of the law in New Zealand at the time of the hearing before him. Such submissions were not confined to the suggestion by the appellant that the trial judge needed to take into account a perceived juridical advantage to the appellant litigating her claim [sic] Australia.
11.In looking at the “circumstances” the trial judge of necessity needed to have regard to the nature of the regimes applicable in each of the countries and given acceptance that in the case of the existence of trusts formed and operated in the course of a marriage and of which a party may have had control, the evidence required by an applicant in Australian proceedings was well defined whereas both the process and the evidence required in New Zealand proceedings was less defined and more cumbersome.
12.The trial judge was at pains to point out counsel for the appellant that he would inform himself as to the nature of the law applicable in New Zealand courts by reference to the decisions of Thompson v Thompson [2015] NZSC 26 and Clayton v Clayton (FRNZ) 1. The second of these cases had been argued [sic] Supreme Court of New Zealand at the time of the hearing of this application. At the time of the hearing of this appeal the decision of the Supreme Court has not been delivered. It is believed that the parties have settled the matter.
13.It is submitted that it was not possible for the trial judge to determine that the New Zealand Court was “more appropriate” than the Australian Court unless there was a proper regard had to the nature of the regimes in each of the countries relating to trusts and the processes involved associated with each of those regimes. Without that it was not possible for the trial judge to find that the circumstances of the New Zealand proceedings made their court more suitable or proper.
(Underlining in original; Italic emphasis added)
The nature of the appealable error said to have been made by his Honour is not articulated clearly. Some of the arguments, including many of the passages emphasised above, suggest a contention that his Honour erred as a matter of principle. Other arguments suggest that his Honour failed to take account of a relevant consideration, namely s 19(2)(e), or that this factor was not given sufficient (or, perhaps, any) weight.
In our judgment none of those arguments have merit.

Relevant Findings

His Honour’s central findings relevant to s 19(2)(e) emanate from a rejection of a “narrow interpretation”[13] of that paragraph in favour of a “wider interpretation”, referred to at [45] of the reasons, that focuses “upon the law that it would be most appropriate to apply to the particular dispute in issue having regard to the circumstances in which that dispute arises”. His Honour went on to say:
45. … That is, having regard to connecting factors with each country, whether it would be more appropriate for the law of New Zealand than that of Australia to apply to determination of issues consequent upon the breakdown of the marriage.
[13] Reasons, [42]-[46].

In Re Featherston Resources Ltd; Tetley & Ors v Weston & Ors,[14] Brereton J said:
… the "more appropriate forum" test mirrors the test provided in respect of domestic proceedings by s 20 Service and Execution of Process Act 1992 (Cth), ands 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) in place of the "clearly inappropriate forum" that applies at common law. The test directs attention to the more appropriate, not the more convenient, court. While convenience is undoubtedly an importance [sic] consideration, it is not determinative. Notions of the "natural forum" can inform what is the "more appropriate forum", as I observed, in the context of the Cross-Vesting Act, in BioAg Pty Ltd v Hickey[2007] NSWSC 296 (at [7]):
[7] In identifying the "more appropriate forum", relevant considerations including the cost and efficiency of proceedings in the respective jurisdictions, and the connecting factors referred to by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd[1987] AC 460, 478 - including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [BHP v Schultz, 422 [18]]. Sometimes, consideration of relevant connecting factors will identify a "natural forum". Ordinarily, the residence of the defendant is more significant than that of the plaintiff to establish jurisdiction and this may count in identifying the natural forum [BHP v Schultz, 423 [19]; British American Tobacco Australia Ltd v Gordon & Anor[2007] NSWSC 230, [44]].
(Emphasis in original)
[14] (2014) 101 ACSR 394, at [53].
At [46] of the reasons, Kent J continued:
46.It would seem to me that the wider interpretation commends itself having regard to the express reference in s 17(1) of the [TTP Act] referring to the more appropriate court to determine the matters in issue (as is repeated in s 19(1) of the [TTP Act] itself). However, even if that is not so, subsection (i) of s 19(2) of the [TTP Act] requires the Court to take into account any other matter that the Australian court considers relevant. It would be consistent with authority where the “more appropriate” test applies (including Re Featherston) to have regard to the appropriateness of the law to be applied having regard to connecting factors. In this context, the connecting factors between the marriage and each country, in determining the appropriate law to be applied.
(Emphasis in original)
His Honour then sought to address Mr Page’s arguments, which mirror his arguments before us in asserting that his Honour erred. His Honour said:
51.Counsel for the wife sought to emphasise the juridical advantage to the wife of her claim to property settlement being determined in these proceedings, as distinct from that determination being made in the husband’s proceedings in New Zealand.
52.That juridical advantage contended for seemed to be based upon two related aspects advanced on behalf of the wife. First, and perhaps summarising the position somewhat crudely, under New Zealand law there is the question of “relationship property” to which each party has, prima facie, an equal entitlement. In circumstances where the husband’s trust was established in advance of the relationship (as likewise was his business partnership earlier referred to), I infer from the submissions on both sides of the record that in proceedings in New Zealand there would, or may be, issues as to the extent to which the husband’s trust (which overwhelmingly holds the greatest assets in value) forms part of the parties’ “relationship property” under the relevant New Zealand legislation.
53.Second, counsel for the wife submitted that New Zealand’s family law is currently “in disarray” in terms of conflicted approaches as to how discretionary trusts and the interests in discretionary trusts are considered. That was said to be so as compared with what was submitted to be the now clear and established approach under Australian family law following, in particular, the High Court’s determination in Kennon v Spry (2008) 238 CLR 366.
Counsel conceded before us that the submission that the law in New Zealand “is in disarray” had no evidentiary foundation in the materials before his Honour. The contention was, apparently, based on an assertion as to what had been decided in two recent New Zealand cases,[15] and the fact that one of those cases was under appeal to the Supreme Court in that country. His Honour found, by reference to the evidence before him and what is said in each of the two New Zealand cases cited by Mr Page, that he was “by no means satisfied that New Zealand’s law on this topic is unclear, much less meeting the description of being in disarray”. Based on the record and what is said in those decisions, we respectfully share his Honour’s view.
[15]Thompson v Thompson [2015] NZSC 26 and Clayton v Clayton (2015) 30 FRNZ 1 – referred to in counsel’s submissions quoted earlier.
In oral submissions before us, Mr Page suggested that proceedings would be “quicker and more efficient” in New Zealand, but when asked what evidence before his Honour might sustain that proposition, Mr Page conceded that there was none.
Stripped to its bare essentials, the submission made before his Honour, mirrored in the assertion of error before us, is that there was a juridical disadvantage for the wife in proceeding in New Zealand which his Honour did not take into account in considering s 19(2)(e).[16] That juridical advantage is said to derive from the different system in New Zealand by which settlements of property consequent upon breakdown of marriage are decided, which, in turn, the wife contends might result in her receiving less by way of settlement of property than what she might receive from an Australian court.
[16]As to the submissions before his Honour, see for example transcript of proceedings 15 September 2015, pp 9, 37 and 38.
There was no evidence before his Honour as to any such advantages or disadvantages or what any such asserted advantages or disadvantages might comprise. The affidavits of each of the parties contained within the record before us make no such assertion. Despite the fact that each of the parties’ solicitors swore affidavits, and that they each make reference to documents being filed in New Zealand, those affidavits, too, contain no such assertion. Nor did either party file any other evidence from which conclusions might be drawn about juridical advantage or disadvantage in each forum.
In respect of the central contention as to juridical disadvantage, his Honour found that:
57.Having regard to the scheme of this legislation generally, it does not seem to me that there is any merit in the contention that an Australian court is more appropriate than a New Zealand court because the party invoking the jurisdiction of the Australian court has some juridical advantage, procedural or substantive, by so doing. That necessarily means disadvantage to the other party.
In so finding, his Honour made reference to statements to that effect by Callinan J in Regie Nationale des Usines Renault SA v Zhang,[17] and BHP Billiton Ltd v Schultz.[18] Of course, those cases were concerned with the application of the common law test for deciding forum; the “clearly inappropriate forum test” established authoritatively in Voth v Manildra Flour Mills Pty Ltd.[19] That test is fundamentally different to the “more appropriate forum test” required to be applied under the TTP Act.
[17] (2002) 210 CLR 491.
[18] (2004) 221 CLR 400.
[19] (1990) 171 CLR 538.
The former involves a “legitimate juridical advantage” devolving, at least in part, from the right of a plaintiff to properly choose a forum in which to commence proceedings and the consequent need for a defendant to establish that the chosen forum is “clearly inappropriate”. As has been seen, s 19(2) of the TTP Act specifically excludes any juridical advantage deriving from proceedings being instituted first in Australia. Any bi-lateral agreement establishing a common test must, almost of necessity, eliminate any such juridical advantage, and that of course is what s 19(2) does.
However, even where the common law test applies and “legitimate juridical advantage” is gained by filing in the forum of choice, caution needs to attend the role of juridical advantage in deciding if that forum is “clearly inappropriate”. In Henry v Henry,[20] by reference to proceedings under the Family Law Act 1975 (Cth) not governed by the TTP Act, it was held that:
It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice’”.[21]
(Citations omitted)
[20] (1996) 185 CLR 571.
[21] (1996) 185 CLR 571, at 587, per Dawson, Gaudron, McHugh and Gummow JJ.
Also, some circumspection is called for as to what might constitute the components of “legitimate juridical advantage” as that expression is used in Voth. In BHP v Schultz, Callinan J said:
… It is wrong to say that proceedings should be conducted in the, or indeed any Tribunal because a plaintiff, or for that matter a defendant, is likely to have a better chance of winning or more easily winning there …[22]
[22] BHP v Schultz (above), at [258].
In Voth, the plurality said:
On the other hand, the plaintiffs in the action are residents of New South Wales and may therefore reasonably point to the advantages to them in practical terms of bringing an action in the local courts; the transactions concerned have some connexion with New South Wales and with Australian revenue laws; and, to a large extent at least, the damage was suffered in New South Wales. However, these last considerations are natural consequences and incidents of residence in a particular jurisdiction and, as such, are merely different aspects of the right of any plaintiff to bring an action in the courts of the jurisdiction wherein he or she resides. That is a legitimate personal or juridical advantage which is acknowledged by the prima facie right of a plaintiff to insist upon the exercise of a jurisdiction which he or she has regularly invoked, but beyond that it has little weight. More importantly, the plaintiffs in this case point to three further legitimate juridical advantages. First, it is said that an effective limitation bar exists in Missouri, through which the appellant could, if he wished, successfully resist the action. Secondly, there is evidence that, in proceedings of this kind in Missouri, the costs awarded in favour of a successful plaintiff may not include attorneys' fees. Finally, there is evidence that the rules as to the awarding of damages by way of interest are less advantageous to a plaintiff in Missouri than in the Supreme Court of New South Wales.
…
The first of these advantages was the subject of an undertaking by the appellant, both in the Court of Appeal and in this Court, when special leave to appeal was granted. Accordingly, it may be made a condition of any order staying the action. The second and third advantages, while doubtless significant to the respondent plaintiffs, are of diminished importance in the overall task of the court exercising the discretion based upon the competing connections of the respective forums with the subject-matter of the proceedings. They are not sufficient to resist the conclusion to which the other considerations irresistibly point, that New South Wales is clearly an inappropriate forum in which to permit the action to proceed.[23]
(Emphasis added)
[23] Voth (above), at [69]-[70].
His Honour determined that the requisite question should be answered not by reference to juridical advantage in the senses just described but to the connecting factors with the law on New Zealand as compared to the law of Australia. His Honour’s findings in that respect are summarised at [62] and [63] of the reasons:
62.In the context of only property issues being in dispute in the proceedings the facts which loom large in my judgment are:
(i)The parties are both New Zealand nationals and they lived for the greater part of their married life in New Zealand, having commenced cohabitation there in January 2003 and marrying there in January 2005. Conversely, the marriage relationship (prior to final separation) only subsisted for some six months after the parties came to Australia in January 2013;
(ii)The parties accumulated their existing property or the property interests of either of them predominately whilst they pursued their married life together in New Zealand;
(iii)The property of the parties or either of them is substantially situated in New Zealand. There are obviously substantial property interests involved;
(iv)The wife’s trust, which predominately owns or controls the vast majority of what may be conveniently described as the wife’s assets (including the real property that was the parties’ former matrimonial home in [City F]) is a New Zealand trust with a corporate trustee which is New Zealand based;
(v)The husband’s trust, which overwhelmingly in terms of value owns or controls the vast majority of property interests which are the focus of these proceedings, is a New Zealand trust with New Zealand trustees including both an individual resident in New Zealand and a corporate trustee;
(vi)Neither party has acquired any asset of any significance in Australia beyond personal items;
(vii)All, or predominately all, events referred to by either party in their respective evidence to date (accepting that to be preliminary) as to the acquisition or improvement of property or property interests (and historical real property transactions during the course of the marriage) occurred in New Zealand, and some of these are seemingly in dispute.
63.In my judgment, overwhelmingly, the connecting factors in this case tend in favour of the conclusion that the law of New Zealand would be the most appropriate law to apply to the determination of property issues consequent upon the breakdown of the parties’ marriage.
No challenge is mounted to any of those findings. Those paragraphs of the reasons do not refer to an important additional matter raised by his Honour with both counsel during the course of the proceedings. His Honour referred both counsel to the “Trusts (Hague Convention) Act 1991 (Cth) under which Australia has adopted the articles of that convention…[as] part of our domestic law…within those articles is how one determines the proper law of a trust in a case that arises” resulting in the (correct) concession by both counsel that the law of New Zealand governed the trusts.[24]
[24]Transcript of proceedings, 15 September 2015, p 11.
Legitimate juridical advantage, gained absent statutory provision by filing regularly in the forum, is specifically excluded by s 19(2) of the TTP Act. Neither s 19(2)(e), nor s 19(2) more broadly, make mention of “juridical advantage” (or, indeed, “juridical disadvantage”) as a factor which must be considered in the exercise of discretion. What s 19(2)(e) requires is an assessment of the “law that it would be most appropriate to apply” – a concept plainly consistent with the overall test of the most appropriate forum.
His Honour determined that question by reference to what might conveniently be called “connecting factors” with the law of each forum. We consider his Honour was entirely correct in doing so.
To the extent that the submissions of the wife suggest an error of principle, they should be rejected.
To the extent that the submissions on behalf of the wife suggest an error of discretion, they would appear to be based on an assertion that his Honour failed to consider relevant considerations, namely asserted juridical advantage or disadvantage, or a comparison of the law of New Zealand with that of Australia or, perhaps, that his Honour gave too little weight to that factor.
The broad discretion accorded to the Australian court by s 19(2) might permit, in an appropriate case, a comparison of issues such as the speed, expediency, cost and the like of proceedings in each of the two countries to be taken into account in the exercise of the s 19(2) discretion. Here, however, as has been seen, the wife’s capacity to challenge his Honour’s decision on that basis suffers from an insuperable problem – it cannot be said that his Honour has failed to consider evidence that was not put before him. The same is true in respect of what is asserted as to be potential outcomes in each of the two countries (even assuming that inherently uncertain outcomes could in any event found any such comparison).
The second problem confronting any such challenge has already been alluded to. Within the context of legislation reflecting a bi-lateral agreement in which legitimate juridical advantage gained by commencing proceedings in a forum of choice is eliminated and only applies where the New Zealand court has jurisdiction to determine all matters in dispute between the parties, the role for advantage or disadvantage emanating from asserted potential outcomes by reference to the law of each forum may have a very limited role, if indeed it has any role at all.
Thirdly, and crucially, his Honour’s conclusion that the law of New Zealand was more appropriate to apply, was but one of a series of findings informing his Honour’s conclusion as to the manner in which the discretion should be exercised. No challenge is made to any of the other conclusions which, correctly, also informed that conclusion.
The decision to be made pursuant to s 19(2) of the TTP Act is quintessentially discretionary. The challenges faced by an appellant seeking to challenge a quintessential discretionary decision are established by well-trodden authority. Nevertheless, in the context of the exercise of a discretion required to be exercised by reference to a number of legislatively-mandated considerations, what was said by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[25] bears repeating:
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made…
…
Because a decision-maker charged with the making of the discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal …
(Emphasis added; Citations omitted)
[25](2000) 203 CLR 194, at 204-5, per Gleeson CJ, Gaudron & Hayne JJ. The same point is made specifically in respect of the common law test for deciding forum in Voth (above), at 140.
It has not been established that his Honour failed to take account of any irrelevant consideration, failed to accord weight to any relevant factor, or committed any other discretionary error.
The arguments founded on any such arguments should be rejected.

Conclusion

The appeal should be dismissed.

Costs

It is contended on behalf of the wife that this was an untested area of the law. We consider that his Honour’s judgment represents an orthodox application of the principles of statutory construction and a methodical application of the requirements of the TTP Act. We see no merit in that argument. The appellant wife has been wholly unsuccessful. We consider that factor significant in the context of this appeal.[26]
[26]See, for example, Trask & Westlake (Costs) [2015] FamCAFC 214, at [4]. See also Limousin & Limousin (Costs) (2008) 38 Fam LR 478, at [60].

The circumstances justify an order that the wife pay the husband’s costs of and incidental to the appeal.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Murphy JJ) delivered on 17 March 2016.

Associate:

Date: 17 March 2016