Norwich Investment Management Ltd Burke

[1999] VSC 283

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No.6697 of 1998

NORWICH INVESTMENT MANAGEMENT LTD.	Plaintiff
v.
SHANE JOSEPH BURKE AND WILLIAM JOSEPHINE BURKE	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 MAY 1999
DATE OF JUDGMENT:	12 AUGUST 1999
CASE MAY BE CITED AS:	NORWICH INVESTMENT MANAGEMENT LTD. v. BURKE AND ANOTHER
MEDIA NEUTRAL CITATION:	[1999] VSC 283

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CATCHWORDS:      Application to cross-vest proceeding to Family Court of Australia – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. I. Jones	Ebsworth & Ebsworth
For the Defendants	Mr. C. Caleo	Kenna Croxford & Co

HIS HONOUR:

1. Following the decision of the High Court in Wakin: Ex parte McNally and Anor. – unreported, 17 June 1999, the Family Court of Australia has determined that it does not have jurisdiction to determine matters cross-vested to it from a State Supreme Court.

1. In this regard I set out hereunder the relevant paragraphs from a circular letter dated 28 June 1999 sent by that Court to parties and solicitors involved in cross-vested matters in the Family Court.

"On 17 June 1999 the High Court of Australia delivered judgment in a case that challenged the constitutional validity of certain aspects of schemes intended to confer State jurisdiction on federal courts.  The scheme was entered into by the Commonwealth and the States to save parties the expense and inconvenience of having to try related matters in different courts.

As a result of the High Court decision, this Court does not have jurisdiction to determine cross-vested matters.

In relation to completed matters, it is expected that the States will shortly pass legislation to deem any orders already made by this Court to be valid orders of the relevant State Court.

In relation to incomplete matters, it is expected that the proposed State legislation will allow parties currently seeking cross-vested orders in the Family Court to apply to the relevant State Supreme Court for an order that the proceeding be treated as a proceeding commenced in the Supreme Court.  Upon the making of such an order by the Supreme Court, the cross-vested application in the Family Court will be transferred to the Supreme Court.  It is also proposed that the State legislation will protect parties from Statute of Limitations implications imposing time limits within which applications may be made."

1. Having considered the decision of the majority in Wakin I agree with that view of the matter.

1. In that situation there can be no question now of transferring this proceeding to the Family Court and the second named defendants application is dismissed.

1. In the circumstances I consider the appropriate order to make concerning the costs of the application is that they be the plaintiff’s and second named defendant’s costs in the cause.

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