Norton & Locke
[2013] FamCAFC 202
•18 December 2013
FAMILY COURT OF AUSTRALIA
| NORTON & LOCKE | [2013] FamCAFC 202 |
| FAMILY LAW – APPEAL – JURISDICTION – where the respondent contends the parties were in a de facto relationship – where the appellant denies that claim – where the respondent sought an injunction, inter alia, restraining the appellant from evicting her from a real property and otherwise dealing with that property – where the injunction was granted – where the appellant contends the court lacked jurisdiction to make the order – where the trial judge found the court had the power to grant the injunction pursuant to s 114(2A) of the Family Law Act 1975 (Cth) – whether the trial judge erred in the manner alleged – where the power contained in s 114(2A) is expressly confined to circumstances in which the relevant jurisdictional facts have been determined – where those jurisdictional facts had not been determined at the time the injunction was ordered – where the trial judge erred in relying upon s 114(2A) to make the order granting the injunction – whether the court otherwise has an “inherent jurisdiction” to grant an injunction pending determination of the relevant jurisdictional facts – consideration of R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 – where the court has a limited jurisdiction to grant an injunction pending determination of jurisdictional facts, where the injunction is necessary to “protect its function” as a court – where the evidence in the instant case was insufficient to demonstrate “compelling circumstances” warranting the grant of the injunction – error demonstrated – leave to appeal granted. FAMILY LAW – APPEAL – JURISDICTION – practice and procedure – where, prior to a determination of the relevant jurisdictional facts, the trial judge ordered the provision of information by the appellant pursuant to Part 24 of the Federal Circuit Court Rules 2001 (Cth) – where the appellant contends the court does not have the power to make orders pursuant to Part 24 when jurisdiction has not been determined – whether the trial judge erred in making orders pursuant to Part 24 – where the application of Part 24 is confined to “financial matters” which includes proceedings pursuant to s 90SM – where s 90SM depends, for its application, upon the breakdown of a de facto relationship – where the existence of a de facto relationship is a “jurisdictional fact” – where, then, Part 24 does not apply in circumstances where jurisdiction has not been determined – where, however, the court has the power to control its own process – where, in certain circumstances, the court may order provision of financial information for the purpose of determining the jurisdictional fact, being the existence of a de facto relationship. |
| Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) Family Law Rules 2004 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Re Forbes; Ex parte Bevan (1972) 127 CLR 1 Re LSH; Ex parte RTF and Another (1987) 164 CLR 91 |
| APPELLANT: | Mr Norton |
| RESPONDENT: | Ms Locke |
| FILE NUMBER: | SYC | 2828 | of | 2013 |
| APPEAL NUMBERS: | EA | 112 | of | 2013 |
| EA | 134 | of | 2013 |
| DATE DELIVERED:: | 18 December 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Murphy and Benjamin JJ |
| HEARING DATE: | 4 December 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATES: | 6 August 2013 3 September 2013 |
| LOWER COURT MNC: | [2013] FCCA 1154 [2013] FCCA 1259 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC and Ms Bridger |
| SOLICITOR FOR THE APPELLANT: | Barrakat Stanton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr White SC |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
Orders
The application in an appeal filed 30 September 2013 is dismissed.
The application for leave to appeal in EA 134 of 2013 is dismissed.
The application for leave to appeal in EA 112 of 2013 is granted and the appeal is allowed.
Paragraphs 1-5 of Judge Scarlett’s orders made on 6 August 2013 be set aside.
Paragraphs 1-5 of the Application filed in the Federal Circuit Court on 23 May 2013 seeking interim orders be dismissed and paragraphs 1-5 of the Amended Initiating Application filed in the Family Court of Australia on 2 December 2013 seeking interim orders also be dismissed.
Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorize a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorize a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Norton & Locke 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 SYDNEY |
Appeal Numbers: EA 112 of 2013 and EA 134 of 2013
File Number: SYC 2828 of 2013
| Mr Norton |
Appellant
And
| Ms Locke |
Respondent
REASONS FOR JUDGMENT
Initiating proceedings filed by the respondent to this appeal assert that she and the appellant were in a de facto relationship between about 2007 and 2012. The appellant admits that the parties were in a relationship of some type during at least part of that time but denies that it was a de facto relationship. That issue has not been determined.
On 6 August 2013, Judge Scarlett granted to the respondent interlocutory injunctions. The first effectively prevented the appellant from “…interfering with the [respondent’s] continued exclusive occupancy…” of a home unit owned by the appellant. A second injunction restrained the appellant from dealing with that unit. In addition to those orders, his Honour ordered the appellant to pay a number of outgoings in respect of the unit, including mortgage payments. The appellant contends this is an interim maintenance order; the respondent a mandatory injunction.
However the third order be classified, the appellant contends that it and the two injunctions were made without jurisdiction. That contention forms the basis of his application for leave to appeal all three orders. The appellant also seeks leave to appeal an order that he file and serve a Financial Statement “as required by Rule 24.02”. That order, too, is said to have been made without jurisdiction.
For the reasons which follow, we are of the view that leave to appeal should be granted and the appeal allowed.
In a later-filed appeal (EA 134 of 2013), the appellant also seeks leave to appeal the subsequent decision of his Honour refusing to stay the Orders just referred to. Senior counsel for both parties agree that this appeal has been rendered nugatory by subsequent events. They agree it should be dismissed; an order to that effect will be made. An Application in an Appeal, filed on behalf of the appellant on 30 September 2013, was not pressed by senior counsel for the appellant. It, too, will be dismissed.
Leave to Appeal
It is accepted by both parties that leave to appeal is required (s 94AA(1)). As is common, an order has been made that the proposed appeal be argued at the same time as the application for leave to appeal (r 22.12(b), Family Law Rules 2004 (Cth)). Frequently, as was said in Waugh and Waugh (2000) FLC 93-052 (at [25]), the question of leave is “…closely linked to the merits of the proposed appeal…” and this court considers the merits of the appeal prior to a consideration of the application for leave.
In Erdal and Erdal (1992) FLC 92-292, this court referred to Niemann vElectronic Industries Ltd [1978] VR 431 in holding that, “[w]here, as here, an issue of substantive rights is involved then leave to appeal will normally be granted as a matter of course…” The Full Court of the Federal Court, referring to the same decision in Décor Corporation Pty Ltd and Another v Dart Industries (1991) 104 ALR 621, observed that, “[i]n National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 161 and United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 522, Full Courts granted leave on the footing that, in each case, a matter of importance was raised which it was appropriate should be determined by a Full Court” (at 623).
In this case, for reasons about to be given, we are of the view that the trial judge has acted without jurisdiction in making the orders that he did. The appeal also raises issues of importance beyond the facts of this case. Leave to appeal should be granted.
The Ambit of the Appeal
The injunctions and grounds of appeal
The grounds of appeal as ultimately argued are:
1.That his Honour erred in determining that he had jurisdiction to make the orders sought until such time as he was satisfied as [to] essential jurisdictional facts.
2.That in the event that ground 1 be refused then in the alternative his Honour’s discretionary decision miscarried in that:
2.1he erred in principle in failing to make orders which would operate for a short period and ensure prompt determination of the controversy as to jurisdiction;
2.2he failed to take into account that the orders sought did not operate to preserve the subject matter of the substantive proceeding;
…
3.That his Honour erred in principle in failing to provide adequate reasons for his decision.
4.That his Honour erred in making Order 3.6 which was an interim maintenance order without being satisfied as to jurisdiction.
5.That his Honour erred in ordering the Appellant to file and serve a Financial Statement and provide documents referred to in Rule 24.04 [of the Federal Circuit Court Rules 2001 (Cth)] prior to being satisfied as to the jurisdictional facts which would be capable of constituting a relevant financial cause and further failed, in the event that the rules upon their proper construction required to the contrary, to find that the rules required reading down or were otherwise ultra vires in any proceeding where the Court had not been satisfied as to jurisdiction.
The appellant’s central contentions
The determination of Grounds 1, 2, 4 and 5 turn upon the arguments by the appellant which can, we think, be fairly summarised as follows:
(a)in making the orders that he did, the Judge purported to exercise the power given by s 114(2A) of the Family Law Act 1975 (Cth) (“the Act”) to grant injunctions in a “de facto financial cause”;
(b)the power to make orders pursuant to s 114(2A) is dependent upon satisfaction of the jurisdiction to do so which, in turn, is dependent upon satisfaction of there being a “de facto financial cause” (s 114(2A)). That, in turn, is dependent upon satisfaction of jurisdictional facts, relevantly the requirements of ss 4AA, 90SB and 90SK;
(c)the relevant jurisdictional facts had not been established and, as a result, the trial judge did not have jurisdiction to exercise power pursuant to s 114(2A) to make the orders which his Honour did;
(d)because the power to grant injunctive relief in a de facto financial cause is to be found solely within s 114(2A), where the relevant jurisdictional facts have not been established (and where, as a result, jurisdiction is not established) the court has no power to grant the injunction sought by the respondent in this case;
(e)further to the argument advanced in the previous paragraph, the court has no implied or inherent jurisdiction to grant an interlocutory injunction prior to satisfaction of the relevant jurisdictional facts;
(f)alternatively, if the Family Court has such an implied or inherent jurisdiction, the Federal Circuit Court does not;
(g)alternatively to each of the arguments advanced in the preceding two sub-paragraphs, if there is jurisdiction, the factual circumstances of this case do not justify the granting of an interlocutory injunction.
The appellant’s contentions and the reasons for judgment
His Honour’s reasons refer to the argument then advanced on behalf of the appellant in respect of jurisdiction:
23.The submission is that there must be or must have been a de facto relationship; if there is or was no such relationship the Court does not have the power to make the order…
…
25.…The Court can only exercise its power if there existed a de facto relationship.
(Italics in original).
Earlier in the reasons, his Honour repeated the submissions made on behalf of the current respondent:
10.…[t]he authorities make it clear that the Court has the power to grant an injunction to preserve the subject matter of the litigation pending determination of jurisdiction. The injunctions are designed to go no further than necessary to maintain the status quo pending determination of the jurisdiction issue and thereafter any property adjustment orders the Court may make. The interlocutory relief is within power (R v Ross-Jones; Ex Parte Green [(1984) 156 CLR 185]; Wall & Mitchell [[2010] FamCA 1194]; Ting & Fingal [[2013] FamCA 29]).
(Italics in original).
Under the heading “Conclusions”, his Honour says:
30.…True it is that the very existence of the claimed de facto relationship is in issue, but it would lead in my view to an unjust situation for the applicant in the nature of the Applicant in this case if there was no jurisdiction to seek an injunctive order to preserve the status quo until the de facto relationship can be established.
(Italics in original).
More will be said of the court’s power later in these reasons. For present purposes, senior counsel for the respondent before us points to the passage just quoted in support of the proposition that his Honour’s orders were in fact supported by, and were said by his Honour to be supported by, a power distinct from that contained within s 114(2A). That conclusion is, it is said, supported by reference to what his Honour says when his Honour’s reasons move from a recitation of the submissions on behalf of each of the parties (at [6]-[28]) to the central dispositive passages in the reasons.
A significant difficulty with that submission lies in what his Honour says explicitly in his reasons for judgment. Having summarised the arguments for each of the parties, his Honour opens his disposition of the application under the heading “Conclusion” with the words: “[i]n my view, it is open to the Applicant to rely upon the provisions of s 114(2A)” (at [29]). His Honour immediately thereafter quotes that section, but, in that extraction, omits part of the section. In its entirety, the section provides:
(2A) In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a)make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b)if it makes an order or grants an injunction under paragraph (a)—make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i) that residence; or
(ii) specified area in which that residence is situated; and
(c)make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.
Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.
Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.
Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.
(Underlined emphasis added).
The parts of the extract underlined above, and the Notes to the section, were omitted from the trial judge’s extract of the section quoted in the reasons. Those parts of the section are crucial to arguments in respect of the issues upon which this appeal turns. More broadly, and equally importantly, the terms of this section – indeed any section which confers power – are vital. In Ex parte Green, Gibbs CJ said, “[t]he provisions of s 114 … are precisely limited … no doubt to ensure that they do not exceed constitutional power…” (at 200). (The same is, in our respectful view, equally true of s 114(2A)).
In the case of that section, the constitutional power with which the section must concern itself are ss 76(ii) and 51(xxxvii) because the Commonwealth cannot in s 114(2A) grant power beyond that which it has been referred by the relevant States (which, in the case of New South Wales, occurred via the Commonwealth Powers (De Facto Relationships) Act2003 (NSW)).
The terms of s 114(2A) are clear; the court’s power to grant injunctions pursuant to the section can only be granted “in a de facto financial cause”. There is no “de facto financial cause” until a de facto relationship is established and the additional ss 90SK and 90SB conditions met. Until they are met – that is, relevantly, a decision has been made by the court consistent with the case advocated by the respondent – there is no “de facto financial cause” and no jurisdiction to make an order of the type contemplated by s 114(2A). (Nor, it might said, more broadly pursuant to s 90SM or s 90SE as sought by the respondent in the substantive proceedings).
In our view, his Honour’s reasons plainly demonstrate that his Honour purported to make orders in reliance upon s 114(2A). In doing so, his Honour was acting without jurisdiction.
We accept, then, the first three of the arguments on behalf of the appellant earlier summarised by us. It follows that we consider that Ground 1 (and, for the same reasons, Ground 4) is each made out and that the appeal must be allowed and paragraphs 1 to 3 of his Honour’s orders set aside. (In that respect, the reasons just outlined require the setting aside of paragraph 3 of those orders whether the order is classified as a mandatory injunction or an order for interim maintenance, the resolution of which issue is not, as a result, necessary).
Is There An Alternative Source of Power?
Re-exercise by the Full Court?
Senior counsel for the respondent argues that, in the event that this court sets aside the trial judge’s orders, this court should, by reference to s 94(2) of the Act, nevertheless grant for itself the injunctions sought. Obviously, for the reasons just advanced, this court, too, does not have jurisdiction to make those orders pursuant to s 114(2A) but it is argued that the orders can be made by reference to other powers said to lie within the jurisdiction of the court to determine whether it has jurisdiction.
There is no doubt that the Family Court has the “…authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction…” (per Gibbs CJ in Ex Parte Green at 193, citing Reg. v Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190). Equally, there is no doubt that this court can itself “… make such decree or decision as, in the opinion of the court, ought to have been made in the first instance…” (s 94AAA(6)); Allesch v Maunz (2000) 203 CLR 172, at [24]) and it does so by reference to the circumstances as exist as at the date of the hearing before it (Allesch at [30]).
The parties are agreed that, should the appeal be successful, this court is able to re-exercise the relevant discretion in this case by reference to the evidence that was before the trial judge. In doing so, the circumstances that now exist include the uncontroversial fact that the substantive proceedings now reside in the Family Court by reason of an order of the trial judge that is not the subject of any challenge on this appeal.
During the course of the hearing of the appeal, there was some discussion between counsel and the Bench as to the jurisdiction and powers of the Federal Circuit Court, as distinct from the Family Court, to grant interlocutory relief of the type sought. Written submissions were subsequently provided by senior counsel for each of the parties. However, for the purposes of this court’s consideration of whether the court ought grant the injunctions sought pursuant to the exercise of its powers pursuant to s 94AAA(6), it is the jurisdiction and power of the Family Court to make orders that is in issue, not that of the Federal Circuit Court.
What power(s) does this court have to grant the interlocutory injunctions?
Senior counsel for the appellant argues that the sole source of power to make the interlocutory orders sought lies in s 114(2A). If that submission is correct, a result is, as counsel accepts, that parties who have a bona fide dispute as to the existence of relevant jurisdictional facts are unable to obtain from this court interlocutory injunctive relief so as to preserve assets until such time as those jurisdictional facts have been determined in a manner favourable to the existence of jurisdiction.
Counsel argues that the clear words used in s 114(2A) point to that conclusion. The concluding words omitted by the trial judge and the Notes are said to underscore the proposition just advanced by clearly establishing a confined operation of the section – namely, a situation where jurisdiction has been established by satisfaction of the relevant jurisdictional facts. It is argued that “[t]his statutory limitation distinguishes the case from Ex parte Green…” and that “[t]his construction is supported by” the Supplementary Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) in which it was said:
37.An order or injunction under the new subsection 114(2A) will only be able to be made in relation to a de facto relationship in respect of which a spouse maintenance order or an order for declaration about property can be made under Part VIIIAB.
(Emphasis added)
A necessary result of that argument is, as counsel accepts and contends, that the court has no power to grant relief of the type sought so as to prevent a dissipation of assets pending a determination of the jurisdictional issue.
We reject the argument that s 114(2A) provides the sole source of power to grant injunctions in a de facto financial cause.
Section 114(3) of the Act 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.
As is plain from its terms, the section is not confined in its operation to proceedings involving matrimonial causes. The section has, by its terms, the same relationship to s 114(2A) as it does to s 114(1). In addition, s 90SS also provides a source of power to grant injunctions in maintenance and property proceedings in de facto financial causes. (Of course, the power contained in s 114(3) – whatever its precise relationship with s 114(2A) and Part VIIIAB – and the power given in s 90SS is each confined to proceedings validly instituted under the Act. That is, their operation is each dependent upon satisfaction of the relevant jurisdictional facts establishing a de facto financial cause).
We also reject the purpose which counsel for the appellant’s argument attributes to the words in the section omitted by the trial judge.
We consider that the concluding words of the section, and the Notes, embrace the concept referred to by Gibbs CJ in Ex parte Green. That is, the concluding words of the section, and the Notes to it, underscore the constitutional limits of the power conferred by that section; the power to make orders for injunction in the circumstances there specified are to be read so as to be consistent with the referral of power given in respect of de facto financial matters. Put another way, the words are inserted in the section so as to preclude an argument that the power given by the section is wider than that referral and is, as a result, unconstitutional.
“Inherent” or “Implied” Jurisdiction or Power?
Expressions such as “implied jurisdiction”, “inherent jurisdiction”, “implied power” and the like should be used with caution in respect of a court which, like this court, is not a court of unlimited jurisdiction (see, for example, Jackson v Sterling Industries Ltd (1986) 69 ALR 92 at 97, per Bowen CJ). If the court has “implied powers”, they must be powers within jurisdiction and referable to a power which the court expressly has.
In Ex parte Green, Gibbs CJ discussed two separate arguments in respect of the power to order interlocutory injunctions when the Family Court’s jurisdiction is in issue. The first argument dealt with by his Honour pertained to whether the proceedings were a matrimonial cause (at 195-199).His Honour then turned to the second argument dealing with the court’s power pursuant to s 114 of the Act, “…or alternatively the inherent jurisdiction of the Court…” (at 199). In respect of the latter, the then Chief Justice said (at 200):
…The provisions of s. 114, which are precisely limited as they are, no doubt to ensure that they do not exceed constitutional power, cannot be extended by resort to the so-called inherent jurisdiction. Such inherent jurisdiction as the Family Court may have could not go beyond protecting its function as a court constituted with the limited jurisdiction afforded by the Act: cf. Reg. v. Forbes; Ex parte Bevan [(1972) 127 CLR 1].
The issue in Ex parte Bevan, referred to by the Chief Justice in the passage just quoted, was the jurisdiction and power of the then Commonwealth Industrial Court – a court which, like this court, was created by statute as a “superior Court of record” but whose powers derive from and are necessarily confined by statute made within constitutional power. Menzies J held in Ex parte Bevan, (at 7-8):
“Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have “inherent jurisdiction” … An examination of the provisions of the Act which do confer jurisdiction upon the Court or upon a judge of the Court provides no warrant for implying a power to make the order…
The only basis upon which inherent jurisdiction to make the order can plausibly be suggested is the establishment of the Industrial Court as a “Superior Court of Record”, s.98. Has then the Court jurisdiction to make the order because it is such a court in which proceedings under s. 141 were pending at the time? I think not. In the first place, if the Court has inherent power to make some order for the preservation of the status quo pending the determination of the proceedings instituted under s. 141 that power would not, I think, extend to freezing the society's funds. The proceedings under s. 141 do not relate to the property of the society. They relate to the cancellation of the registration of the society and to its amalgamation with other unions. The orders sought under s. 141 could be made even if the society had, in the meantime, transferred its funds lawfully or unlawfully from its bank accounts. This is not a case where the ownership of a fund is in question in pending litigation and a party seeks an order for the preservation of the fund, while the ownership is determined. In such a case the disappearance of the fund would frustrate the litigation but as I have pointed out the proceedings under s. 141 could continue effectively regardless of what has been done in the meantime with the society's funds. There is, however, a more fundamental objection to recognizing the order as a valid exercise of inherent jurisdiction. In my opinion a court with the limited jurisdiction of the Commonwealth Industrial Court has not by virtue of its being a superior court of record, jurisdiction in relation to the property of an organisation which is party to litigation in the Court where no question of the exercise of powers or duties under the rules of the organization in relation to such property is involved.
The Court is not concerned with property and the protection of property. It is, as its name and charter indicate, an industrial court and although part of its statutory jurisdiction is to exercise control over registered organizations, it has not inherent jurisdiction to do so. Provisions such as ss.109 and 141, expressed in limited terms, cannot be extended by resort to so-called inherent jurisdiction. Such inherent jurisdiction as the Court may have, could not go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the Act.
Consistent with what is said in both Ex parte Green and Ex parte Bevan, Gibbs CJ continued in the former (at 202):
The Court has no wider jurisdiction to grant an interlocutory injunction than to grant a permanent injunction. There is, however, this practical difference, that while the Family Court is exercising its power to determine whether or not it has jurisdiction in a particular case, it may be right to keep matters in statu[s] quo by the grant of an interlocutory injunction. That would be so only while the question whether it had jurisdiction remained in doubt and was being determined and it goes without saying that if an interlocutory injunction were granted in those circumstances the questions of fact and law on which jurisdiction depended would have to be determined as a matter of the utmost urgency – not after a lapse of two or three months as was proposed in the present case – and that once it appeared that jurisdiction was lacking, the injunction would have to be dissolved, however inconvenient that course might appear.
In Ex parte Green, Wilson and Dawson JJ, after first pointing out (at 209) that s 114 “…is only to be exercised in aid of the jurisdiction otherwise conferred … it does not enlarge the ambit of that jurisdiction” continued (at 213):
The limits which mark out the jurisdiction of the Family Court must be found in the Family Law Act. It is by reference to that Act that the scope of that jurisdiction may be discerned – the subject-matters with which the Court may deal, the relief which it may grant and the parties to whom it may grant that relief …
However, important to the determination of the issue under consideration, their Honours went on to say (at 213):
Of course, there may be times when it is necessary for a court to determine, though not conclusively, the existence or otherwise of facts upon which its jurisdiction depends: D.M.W v. E.G.W (74); Reg. v. Federal Court of Australia; Ex parte WA. National Football League (75). In such cases, there may be times when a court concludes on the material available and often upon an ex parte application that prima facie there is jurisdiction and that the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted. But even then an interim order, subject to the usual undertaking as to damages, should only be made against a third party, in respect of whom the court’s jurisdiction may be in question, for such limited time as is necessary to enable that question to be determined, even if it means an alteration in the court's ordinary arrangements. It is only then that the granting of an interim injunction prior to the hearing and determination of the question of jurisdiction could be justified.
Reflections of the same principles can also be seen in Re LSH; Ex parte RTF and Another (1987) 164 CLR 91 in which Mason CJ held (at 104):
…Although the Family Court has no wider jurisdiction to grant an interlocutory injunction than to grant a permanent injunction, that Court, like other courts, has authority to grant an interlocutory injunction and in such terms as may be necessary to preserve the status quo pending determination of its jurisdiction … And it does not matter that the terms of such an injunction travel beyond the terms of any injunction which the court is empowered to grant by way of final relief…
Similarly, in Re LSH, Dawson J held (at 122):
…whilst a court may by interlocutory judgment preserve the status quo pending the final determination of a matter it can only do so in protection or assertion of some right which it has jurisdiction to enforce by way of final relief … As Wilson J and I put it in [Ex parte Green], if a matter is beyond the jurisdiction of a court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief…
Those decisions of the High Court can be seen to provide the jurisprudential foundations for what was said by this Court in Yunghanns & Yunghanns (1999) FLC 92-836 and, in particular, the summary of “essential principles” identified at [109] of the judgment. Of particular relevance for present purposes, in the final sub-paragraph of that summary, the Full Court said:
(8)The only circumstance in which the [Family] court may proceed to make orders, despite a challenge to its jurisdiction and before it has found the existence of the jurisdictional facts, is that referred to by Gibbs CJ [in Ex parte Green quoted above], namely when it is considered necessary to make holding orders to maintain the status quo pending its determination (with “the utmost urgency”) of whether it does have jurisdiction.
(Emphasis in original).
Conclusions as to this Court’s Jurisdiction and Power
This court does not have power to make an interlocutory injunction of the type sought pursuant to s 114(2A) of the Act. That relief is dependent upon the establishment of a “de facto financial cause” which, in this case, is dependent upon the establishment of facts central to jurisdiction which are bona fide in dispute and which have not been established. The power to grant such an injunction pursuant to s 114(3) or s 90SS of the Act is subject to the same limitation because each is dependent upon proceedings under the Act (and the other preconditions contained within each section) and those proceedings cannot be brought or continued without satisfaction of the relevant jurisdictional facts.
This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect[…] its function as a court”.
Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions (see, for example, Ex parte Green; Re LSH; and, Jackson v Sterling Industries Pty Ltd at 617, per Wilson and Dawson JJ). In both the High Court and this court orders of that type have been expressed as orders “preserving the status quo” pending resolution of the question of jurisdiction.
However, in our view, an analysis of the principles which form the foundation for that conclusion do not suggest that preservation of the “status quo” is per se the criterion for, or foundation for, the relief. If that were the criterion, an applicant would be entitled to relief almost as of right pending resolution of the jurisdictional question; the narrow ambit of the relief and the foundation for it suggest no such thing.
The language of “preserving the status quo” and the concept of a court deriving power from its capacity to protect its own processes and its “function as a court” can be seen used in the cases which shaped the remedy of Mareva orders in Australia (see, for example, Jackson v Sterling Industries Pty Ltd and Cardile v LED Builders Pty Ltd (1999) 198 CLR 380). Like this court, the Federal Court’s jurisdiction is derived from statutes enacted within the limits of constitutional power. However, in Jackson v Sterling Industries Ltd, while Deane J found that s 23 of the Federal Court of Australia Act 1976 (Cth) provided the power to grant Mareva orders “…in relation to a matter in which the Federal Court has jurisdiction…”, his Honour also held (at 623):
…even in the absence of the provisions of s 23, the Federal Court would have possessed power to make such orders in relation to matters properly before it, as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters. In that regard, I agree with the following comments of Bowen C.J. in his judgment in the present matter [(1986) 69 ALR 92 at 97]:
“In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words “inherent jurisdiction”. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so, it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.”
The clear foundation for the remedy is to prevent an abuse of the court’s process, as Dawson and Wilson JJ held specifically in the same case (at 627). The language of preservation of the status quo has been used in that context. For example, in Cardile at 403-4, the majority quote Dixon J (as the Chief Justice then was) in Glover v Walters (1950) 80 CLR 172, at 175-6:
[A Mareva order] is a drastic remedy which should not be granted lightly … A [Mareva order] is an interlocutory order which, if granted, imposes a severe restriction upon a defendant’s right to dealt with his or her assets. It is granted at the suit of the plaintiff whose status as a creditor is in dispute and who need not be a secured creditor. Its purpose is to preserve the status quo, not to change it in favour of the plaintiff …
(Square brackets in High Court judgment).
In Waugh, their Honours suggested that there were “…essential differences which may exist between the proceedings in this Court … and the type of proceedings in other jurisdictions out of which those principles have sprung” (at [30]):
31.For example, we think it is important to bear in mind that there may be a distinction to be drawn between proceedings at law for a debt or damages in which the plaintiff seeks a Mareva injunction to restrain the defendant from dissipating assets to which it is expected that resort might ultimately be had to enforce a judgment obtained in the proceedings under s 79 of the Act in which one spouse seeks an interlocutory injunction to restrain the other from dissipating assets, which, although not the subject of a specific claim under s 79, represents property of the parties to the marriage to which the applicant spouse claims to have made a relevant contribution … In the latter case, there is an essential connection between the substantive proceedings and the relevant property, notwithstanding that the applicant spouse may not seek an order altering the parties’ interests in that property in his or her favour, but only the payment of a lump sum of money as a “settlement”. That essential connection between the property and the proceedings may not, and usually does not exist in the case of proceedings for a Mareva injunction in other jurisdictions.
Taken together, the authorities point to the Family Court having power – within its jurisdiction to determine if it has jurisdiction – to control its own processes and to protect its function as a court by granting interlocutory injunctions so as to “preserve the status quo” pending the resolution of the issue of jurisdiction.
However, the ambit of relief “preserving the status quo” is limited by the narrow ambit of the power itself and by the narrow jurisdiction within which the power is being exercised. As a result, the cautionary notes sounded by the authorities in respect of Mareva orders have a direct bearing upon the nature and ambit of interlocutory injunctions of the type under discussion. In particular:
a)the preservation of an existing state of affairs (the “status quo”) is not sufficient, of itself, to grant the relief – an injunction is not granted “as of right” when an assertion of jurisdiction and an entitlement to de facto financial relief is sought;
b)the injunction “…must be necessary to prevent the abuse of the process of the court” (per Wilson and Dawson JJ in Jackson at 617-8) or to “protecting its function as a court” (per Menzies J in Ex parte Bevan; Gibbs CJ in Ex parte Green);
c)the relief must be required by reference to an emergent state of affairs which demonstrate a clear danger to the applicant obtaining relief reasonably sought. That is where “…the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted” (per Wilson and Dawson JJ in Ex parte Green);
d)the relief should be granted only “ …while the question whether [the court] had jurisdiction remained in doubt” (Ex parte Green);
e)the questions of fact and law upon which jurisdiction depended would have to be determined as a matter of the “utmost urgency” and “…once it appeared that jurisdiction was lacking, the injunction would have to be dissolved, however inconvenient that course might appear” (Ex parte Green);
f)the remedy is not to be used so as to “create security for the [applicant] or to require a [respondent] to provide security as a condition of being allowed to defend the action …” (per Deane J in Jackson v Sterling Industries Pty Ltd);
g)pending a decision as to jurisdiction, regard must be given to the fact that the injunction “…imposes a severe restriction upon a [respondent’s] right to dealt with his or her assets” (per Dixon J in Glover v Walters);
h)proper regard must be had to the fact that jurisdiction has not been decided and the fact that, consequently, a possible outcome is that no remedy sought by the applicant may be granted. Equally, proper regard must be had to the nature, extent and value of the relief claimed by the applicant in the event that jurisdiction is established;
i)the remedy, if granted should go no further than that which is required to preserve property in respect of which a danger is established pending determination of the jurisdictional question.
The Federal Circuit Court’s Jurisdiction and Power
During the course of oral submissions, the issue of whether or not the Federal Circuit Court was similarly possessed of jurisdiction to determine whether it has jurisdiction and, as an ancillary to that, the power to control its own process so as to enable it to make orders of the type sort by the respondent was touched upon by each party’s senior counsel. Subsequent to the hearing and pursuant to a direction made by this court, senior counsel for each party forwarded to the court short written submissions addressed to that issue.
It is submitted on behalf of the appellant that the Federal Circuit Court is not expressed to be a “superior court of record” (see, Federal Circuit Court of Australia Act 1999 (Cth), s 8) and, as a result, does not possess any “inherent jurisdiction”. As the Full Court of the Federal Court stated recently, “[t]he Federal Circuit Court is neither a common law court nor a superior court of record” (Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC 131at [20]).
It is submitted on behalf of the respondent that whatever be the status of the Federal Circuit Court, it nevertheless possesses the power necessary to control its own processes, which extends to the power to make an order preserving the status quo until determination of jurisdiction.
As was sought to make plain earlier in these reasons, the use of terms such as “inherent jurisdiction”, “implied jurisdiction” and the like should be avoided when dealing with statutory courts such as the Federal Circuit Court or, indeed the Family Court (see, for example, DJL v The Central Authority (2000) 201 CLR 226 at 240-241, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). In addition, it is critical to bear in mind the distinction between jurisdiction and power (see Harris v Caladine (1991) 172 CLR 84).
All courts, including statutory courts, have jurisdiction to determine whether or not their “…jurisdiction has been properly invoked” (see, PT Garuda Indonesia Ltd (ARBN 000 861 165) v Australian Competition and Consumer Commission (2012) 247 CLR 240 at [16]. See also Ex parte Green at 193-194, per Gibbs CJ). In PT Garuda French CJ, Gummow, Hayne and Crennan JJ cited with approval for the preceding proposition, the judgment of Khatri v Price (1999) 95 FCR 287 and, in particular, the following statements made by Katz J:
[13]“[I]n truth there is within the federal system of this country no court of unlimited jurisdiction”: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630 (Toohey J). (Of course, the High Court of Australia, as the apex of the Australian judicial system, must, of necessity and uniquely, be the sole arbiter of the limits of its own jurisdiction, but that does not detract from the correctness of the proposition which I have just set out.)
[14] Because any Australian court is a court of limited jurisdiction, its “first duty”, when there has been a purported invocation of its jurisdiction, is to satisfy itself that it has the jurisdiction purportedly invoked: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415 (Griffith CJ). (In making his well-known statement, Griffith CJ gave, as a reason for the existence of such a “first” duty, “if only to avoid putting the parties to unnecessary risk and expense”. That reason appears to imply that the duty is one which must be fulfilled “first” in the sense that the court concerned must determine the question of its jurisdiction before hearing any evidence or argument on issues which would arise in the proceeding if it did have the jurisdiction purportedly invoked. However, in spite of that reason having been given by Griffith CJ, the duty has not been generally understood to be “first” in that sense. The duty has been generally understood instead as permitting the court concerned to exercise a discretion (subject, obviously (if the court is not the High Court), to appellate or supervisory review, whichever is appropriate) to postpone determining the question of its jurisdiction until after it has heard the whole case, provided, however, that having done so, it then “first” determines that question. (It appears, incidentally, that, in recent years, an approach had grown up among some lower American federal courts which denied the primacy of a court’s duty to determine its jurisdiction in a case, even in the limited sense which I have just described. That approach, called “the doctrine of hypothetical jurisdiction”, was rejected by the American Supreme Court in Steel Co v Citizens for Better Environment 140 L Ed 2d 210 at 226-32 (1998).))
[15] Given the duty to which I have just referred, it follows that every Australian court must have at least a limited jurisdiction in every proceeding in which its jurisdiction is purportedly invoked, namely, a jurisdiction to determine whether it has the jurisdiction which has been purportedly invoked.
(Bold emphasis added).
Plainly, then, as it seems to us, the Federal Circuit Court has jurisdiction to ascertain whether or not it has jurisdiction to make orders pursuant to Part VIIIAB of the Act.
Within that jurisdiction the authorities referred to earlier in these reasons make plain that statutory courts have the “implied power” necessary to prevent an abuse of its process and, in our view, for the reasons set out above, we consider that “power” includes, in “compelling circumstances”, maintaining the status quo pending a determination of jurisdiction.
Whilst not expressed to be a “superior court of record” the Federal Circuit Court is, nevertheless, a court created pursuant to Ch III of the Constitution and, by virtue of that fact, exercises the judicial power of the Commonwealth. We are of the view that, regardless of the fact that the Federal Circuit Court is not a “superior court of record” or can be described as an “inferior court”, that court, when exercising the judicial power of the Commonwealth has, as does the Family Court and the Federal Court, the power to control its own processes: “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker. Emphasis added).
For the preceding reasons, we are of the view that the Federal Circuit Court has the jurisdiction to determine whether “…it has the jurisdiction which has been purportedly invoked” and, within that jurisdiction, has the power to “control its own process” and prevent an abuse of same which extends, in “compelling circumstances”, to an order maintaining the status quo pending a determination regarding jurisdiction.
Should An Interlocutory Injunction Issue in This Case?
The Respondent’s Case for Financial Relief
The broad parameters within which the respondent’s application for financial de facto relief will be decided in the event that the relevant jurisdictional facts are established have earlier been outlined. The respondent contends for a de facto relationship subsisting for about five years; there are no children of the relationship, nor is it contended that either party otherwise has a child relevant to the proceedings.
The factual foundations for the respondent’s case for the injunctions can be seen in her lengthy affidavit filed in the proceedings below. In summary, the respondent asserts she has a strong prima facie case regarding the existence of a de facto relationship with the appellant over approximately five years. It is submitted on her behalf that she has made contributions to the appellant’s property, including the real property the subject of the injunctions, such that there is a strong likelihood of an order being made transferring the property to her.
Notably, subsequent to the injunctions being granted, the respondent filed an Amended Initiating Application seeking by way of final order a declaration pursuant to s 90SL that the appellant holds the relevant real property on constructive trust for the respondent. That relief is consistent with claims made throughout the respondent’s affidavit material to the effect that the appellant told her on a number of occasions that he was purchasing the real property for her and that he was holding it on trust for her. In any event, the respondent’s contention is that there is sufficient evidence to demonstrate a prima facie interest in the real property.
As to the need for an interlocutory injunction, the respondent contends that the appellant has previously sought to change the locks on the property in an attempt to exclude her and has advised her, through his solicitors, that he wants to sell the property.
In response, senior counsel for the appellant argues before us that none of the orders made on 6 August 2013, except “perhaps order 2 tenuously”, seek to preserve the subject of the respondent’s claim. The appellant contends that the respondent’s final claim for relief is for a “lump sum payment”, with transfer to her of the real property the subject of the injunction being merely an alternative to any such payment. That argument is based on the respondent’s Initiating Application filed on 23 May 2013. Relevantly, it seeks, by way of final order:
That as either maintenance pursuant to s 90SH or, by way of alteration of property interests pursuant to 90SM of the FLA, the Property be transferred from the [appellant] to the [respondent], alternatively, that the [appellant] pay the [respondent] an amount of $1,500,000.
At the commencement of the appeal, the respondent tendered an Amended Initiating Application which, as noted earlier, was filed on 2 December 2013 – that is, subsequent to the injunctions being granted – in part, it seems, to counter the argument just advanced. That document seeks, relevantly, by way of final relief:
…
2.A declaration pursuant to s. 90SL(1) of the Family Law Act that the [appellant] holds the property … on constructive trust for the [respondent].
3.Pursuant to s 90SL(2) of the Family Law Act within 28 days from the date of Order the [appellant] do all things including signing all documents necessary to transfer the … property to the [respondent] free of all encumbrances.
4.In the alternative to paragraph 2 hereof pursuant to s. 90SM of the Family Law Act by way of alteration of property interests the [appellant] transfer to the [respondent] all of the [appellant’s] right[,] title and interest in the … property.
…
The respondent contends that, because the respondent’s case is now “clarified” as her seeking substantive relief by way of constructive trust, the injunction is necessary to preserve the subject matter of the action. Her case is said to be “clarified by” the amending document because, it is said, although a case in trust was not “pleaded” in the initiating application, that case was effectively “pleaded” in the respondent’s affidavit to which reference has been made. As a result, senior counsel for the respondent argues that the respondent has an interest in the property which she is seeking to protect pending the determination of the matter and if the injunction were not granted, there is a real risk that there would be a “loss of the subject matter of the dispute”.
Neither counsel referred in written or oral argument to the decision of this court in Waugh. There, this court said (in the context of a case for Mareva order in which there was no issue of the establishment of facts necessary to found jurisdiction) that the “fundamental question” when determining whether or not an interlocutory injunction restraining a party from dealing with property ought be granted is “…whether there was any evidence of any intention by the [appellant] to dispose of any assets pursuant to any scheme to defeat any judgment which the [respondent] might obtain in the substantive proceedings...” (at 76). As we have already sought to make plain, in our view the “fundamental question” identified by the Full Court in Waugh is akin to the “compelling circumstances” referred to by Wilson and Dawson JJ in Ex parte Green and, at the core of each, is the necessity to establish a real risk that the court’s function will be undermined in the absence of the interlocutory relief sought.
The judgment in Waugh refers to the possibility of substantive relief in a matrimonial cause providing a context for the relevant principles to have a different emphasis than that which applies when the substantive proceedings relate to a debt. By analogy, similar considerations may be applicable when the substantive proceedings are a de facto financial cause (see, also analogously, Crone v Konig [2001] QSC 284). However, in the present case, that potential circumstance will matter little if, otherwise, the circumstances are insufficiently compelling to require an interlocutory injunction.
Compelling Circumstances or the Protection of the Court’s Authority?
The respondent relies upon the attendance at the real property of a locksmith on 3 July 2013, together with a letter from the appellant’s solicitors dated 19 June 2013 in which it is stated that the appellant “…intends to take possession of [the real property]…” in 14 days, so as to contend that there is a real risk that the appellant was embarking upon a course of action the effect of which would be the likely defeat of any anticipated order in the respondent’s favour.
On the respondent’s own case, the appellant is a man of considerable means (see, for example, [7], [14] and [104] of, and annexure “OO” to, the respondent’s affidavit filed 1 August 2013). Whilst the appellant’s evidence of his own financial resources is limited, it is uncontroversial that he is the owner of at least three real properties (including the real property the subject of the injunctions) (see [19] and [20] of the appellant’s affidavit filed 18 July 2013).
Further, the respondent’s evidence must be considered in light of the appellant’s evidence which is to the effect that whilst there was a sexual relationship with the respondent, it was not a de facto relationship. Further, whilst the appellant accepts that he allowed the respondent to live in the property the subject of the injunction, his evidence is that he made it clear to the respondent that this was for a limited time and only until she found employment. He denies a trust interest and the representations to that effect alleged by the respondent.
The respondent’s evidence in respect of the asserted trust interest, based largely on asserted representations allegedly made by the appellant, does not, even if accepted in their entirety, necessarily lead to the relief for which she contends. Even if her evidence is ultimately accepted in its entirety, other relief, including other equitable relief, may be considered more appropriate, noting that equity intervenes to the minimum extent necessary to do justice (see, for example, Giumelli v Giumelli (1999) 196 CLR 101 at [10], per Gleeson CJ, McHugh, Gummow and Callinan JJ).
That consideration is, in our view, important when deciding whether to grant an interlocutory injunction before jurisdiction to grant substantive relief is established. Whilst it may be open to the respondent to argue that the failure to grant an interlocutory injunction may leave her without the remedy she seeks, the evidence falls short of that which would persuade us that the subject matter of the action will be lost without it or that the respondent will be left without a remedy should the injunction not be granted.
It follows that we do not consider the circumstances compelling and, where we are not persuaded that there is evidence that the appellant will or might engage in actions that will eliminate the subject matter of the action or otherwise act in a manner inconsistent with the authority of the court to grant appropriate substantive relief or the court’s processes associated therewith, no basis is made out for interlocutory injunctive relief of the type sought.
Conclusion as to Re-Exercise
We would refuse the application for interlocutory injunctions.
Additional Grounds of Appeal
The consideration of Ground 1 and the conclusion just outlined is sufficient to dispose of the application for leave to appeal and the appeal in EA 112 of 2013, and renders it unnecessary to deal with the challenges contained in Grounds 2.1, 2.2 and 3-5 of the Amended Further Amended Notice of Appeal filed on 12 November 2013.
We consider it important, however, to say something in respect to Ground 5 which is in the following terms:
That his Honour erred in ordering the Appellant to file and serve a Financial Statement and provide documents referred to in Rule 24.04 [of the Federal Circuit Court Rules 2001 (Cth)] prior to being satisfied as to the jurisdictional facts which would be capable of constituting a relevant financial cause and further failed, in the event that the rules upon their proper construction required to the contrary, to find that the rules required reading down or were otherwise ultra vires in any proceeding where the Court had not been satisfied as to jurisdiction.
Part 24 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) is confined, in its application to “…proceedings in relation to financial matters” (r 24.01). “Financial matters” is defined, relevantly, in the FCC Rules as including proceedings under s 90SM of the Act. Section 90SM requires, for its application, “the breakdown of a de facto relationship”. Plainly enough, that must, in turn, depend upon the prior existence of a “de facto relationship”. The existence of a de facto relationship is, then, a jurisdictional fact in the sense earlier described.
In our view, perforce of the reasons earlier outlined, until such time as the relevant jurisdictional facts are established, there is no power to order the provision of financial information pursuant to Part 24 of the Rules.
However, as has been said, the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact. For example, the intermingling relationship or lack of intermingling of the parties’ respective financial affairs, may be directly relevant to the establishment of whether a de facto relationship exists (see, s 4AA(2)(d) of the Act).
Here, the specific order made by his Honour required of the appellant the filing of a Financial Statement in compliance with r 24.02 and the provision by the appellant “of all documents referred to in Rule 24.04”. The latter rule requires production of:
(a) copies of the party's 3 most recent taxation returns;
(b) copies of the party's 3 most recent taxation assessments;
(c) if the party is a member of a superannuation plan:
(i) if not already filed or exchanged--the completed superannuation information form for any superannuation interest of the party; and
(ii) for a self-managed superannuation fund--the trust deed and copies of the 3 most recent financial statements for the fund;
(d) if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;
(e) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
It is, in our view, difficult to see how the documents required by that rule could be required for the narrow purpose to which directions might be fashioned by the court for the limited “jurisdictional purpose” just outlined.
In our view, it is established that the order was made without jurisdiction and it, too, should be set aside.
In our view it would not be appropriate for this court to embark upon a process of making directions confined to the establishment of jurisdictional facts; that is a matter for the Judge who will embark upon the hearing of the jurisdictional question.
For completeness, we should mention that the decision by Cronin J in Ting & Fingal [2013] FamCA 29 was referred to by counsel. In that case, the point just referred to was not argued – it apparently being accepted by counsel for each of the parties that his Honour had power to make the relevant directions pursuant to Chapter 13 of the Family Law Rules 2004 (Cth). To the extent that his Honour’s decision advances a proposition different to that which we have just advanced, we respectfully disagree with it.
Conclusion - Appeal EA 112 of 2013
For the preceding reasons, leave to appeal should be granted, the appeal should be allowed and the orders made on 6 August 2013 by Judge Scarlett should be discharged.
Application for Stay – Appeal EA 134 of 2013
Subsequent to the orders made on 6 August 2013, the appellant filed an Application in a Case seeking a stay of those orders. That application was heard by the learned judge below on 23 August 2013. On 3 September 2013, his Honour delivered reasons and made orders dismissing the appellant’s application.
Leave to appeal is sought in respect of those orders.
Senior counsel for each of the parties agreed that the application for leave and appeal have been rendered nugatory and each agree that the appeal should be dismissed. An order will be made to that effect.
Costs
At the conclusion of the hearing of the appeals, we sought submissions from counsel for each party on the issue of costs.
Senior counsel for the appellant submitted that, in the event the appeal in EA 112 of 2013 was successful, the appellant would be seeking a costs order against the respondent. It was submitted by senior counsel for the respondent that success on the appeal ought sound in certificates to each party pursuant to the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”).
Although the respondent might be seen to have been wholly unsuccessful, that lack of success pertains directly to an error of law made by the trial judge. It is uncontroversial that the respondent is presently unemployed and, according to a Financial Statement filed on 12 July 2013, has limited financial resources. Aside from the respondent’s lack of success, and noting that no one matter in s 117(2A) should be afforded greater weight than any other, no other matters specified in s 117(2A) of the Act suggest to us that the rule provided for in s 117(1) of the Act should be displaced.
We consider that each party should bear their own costs.
In those circumstances, each of the parties applies for a certificate to issue pursuant to the Costs Act.
Costs Certificate – Appellant
As is plain from these reasons, the appeal has succeeded on a question of law and, as just discussed, we consider, in accordance with s 117 of the Act, that each party should bear their own costs.
In the exercise of discretion as to whether to grant to the appellant a costs certificate pursuant to s 9 of the Costs Act, we take account of the fact that nothing to which the court has been taken suggests any unreasonableness in respect of the position adopted by the appellant or in his conduct of the appeal. We also take account of the complexity of the issues the subject of the appeal and the wider importance of their resolution. We consider, in those circumstances, that it is appropriate that a certificate should issue in respect of the costs incurred by the appellant in and about the preparation of the appeal.
Costs Certificate – Respondent
In respect of the respondent, we repeat that the appeal has succeeded on a question of law and, in our view, each of the matters just referred to apply equally to her in respect of her conduct in and about the appeal.
We consider it appropriate to grant to the respondent a costs certificate pursuant to s 6 of the Costs Act in respect of the appeal.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy and Benjamin JJ) delivered on 18 December 2013.
Associate:
Date: 18 December 2013
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